U.P.

LAW BOC EVIDENCE REMEDIAL LAW

EVIDENCE
REMEDIAL LAW

Page 453 of 525

U.P. LAW BOC EVIDENCE
IV. EVIDENCE
A. GENERAL PRINCIPLES
1. Concept of Evidence
The means, sanctioned by these rules, of
ascertaining in a judicial proceeding, the truth
respecting a matter of fact [Sec. 1, Rule 128]
“Truth” is not necessarily the actual truth, but
one referred to as the judicial or legal truth.
[Riano, 2, 2016 Ed.]
2. Scope and Applicability of the
Rules of Evidence
a. Scope of Application
Under the Rules of Court (ROC), the rules of
evidence are specifically applicable only to
judicial proceedings [Sec. 1, Rule 128]
Judicial proceedings are of THREE KINDS
ONLY
1. Civil action – which is of two kinds:
a. ordinary civil action, and
b. special civil action
2. Criminal action
3. Special Proceeding [Sec. 3, Rule 1]
Note: All other proceedings are NON-
JUDICIAL, hence, application of the rules of
evidence in the ROC is not mandatory unless
provided to be so by law or regulation [see Sec.
4, Rule 1]
b. Uniformity of Application
General rule: The rules of evidence shall be
the same in all courts and in all trials and
hearings [Sec. 2, Rule 128]
Exceptions:
Page 454 of 525
REMEDIAL LAW
If otherwise provided by:
1. Law [e.g. 1987 Constitution, statutes]
2. Rules of Court [Sec. 2, Rule 128].
3. SC issuances [e.g., Judicial Affidavit Rule,
Rules on Procedure for Environmental
Cases, Child Witness Rule, Rules on
Electronic Evidence, Rules on DNA
Evidence]
No Vested Right of Property in Rules of
Evidence
Any evidence inadmissible according to the
laws in force at the time the action accrued, but
admissible according to the laws in force at the
time of trial, is receivable [Francisco 8, 1996
Ed., citing Aldeguer v. Hoskyn, G.R. No. 1164
(1903)]
Rules of Evidence May be Waived
According to Francisco [9, 1996 Ed., citing
American cases], there are rules of evidence
established merely for the protection of the
parties. If, according to the well-established
doctrine, the parties may waive such rules
during the trial of a case, there is no reason
why they cannot make the waiver in a contract
(ex. a contract of insurance requiring the
testimony of eyewitness as the only evidence
admissible concerning the death of the insured
person).
However, if the rule of evidence waived by the
parties has been established on grounds of
public policy, the waiver is void (ex. waiver
of the privilege against the disclosure of state
secrets).
U.P. LAW BOC EVIDENCE REMEDIAL LAW

3. Distinguish: Proof vs. In civil cases:

Evidence elements of
the cause of
action
Proof Evidence
In criminal
Result or Mode and manner of cases:
effect of proving competent facts in elements of
evidence [2 judicial proceedings the crime
Regalado [Bustos v. Lucero, G.R. No. [Prof. Avena]
698, 2008 L-2068, (1948)]
[2 Regalado 698-699, 2008 Ed.]
Ed.]

The end The means to an end One must adduce during trial the factum
result probans or the evidentiary facts by which the
factum probandum or the ultimate fact can be
established. [Dela Llana vs. Biong, G.R. No.
Note: evidence is a relative term; it signifies a 182356 (2018)]
relation between facts: the factum probans and
factum probandum [Wigmore, Principles of
5. Admissibility of Evidence
Judicial Proof, 5, as stated in Riano 11, 2016
Ed.]
Evidence is admissible when it is relevant to
the issue and not excluded by the Constitution,
4. Distinguish: Factum Probans the law or these Rules [Sec. 3, Rule 128]
v. Factum Probandum
Admissibility does not concern weight
Admissibility of evidence should not be
Factum probans Factum
equated with weight of evidence. The
probandum
admissibility of evidence depends on its
Evidentiary fact Ultimate fact relevance and competence, while the weight of
evidence pertains to evidence already admitted
and its tendency to convince and persuade.
Fact by which the factum Fact sought to Thus, a particular item of evidence may be
probandum is to be be established admissible, but its evidentiary weight depends
established on judicial evaluation within the guidelines
provided by the Rules of Court [Dela Llana v.
Materials evidencing the Proposition Biong, G.R. No. 182356 (2013)]
proposition
Admissibility of evidence refers to the question
of whether or not the circumstance (or
evidence) is to be considered at all. On the
other hand, the probative value of evidence
refers to the question of whether or not it
proves an issue [PNOC Shipping and
Transport Corporation v. C.A., G.R. No.
107518 (1998)]

Page 455 of 525

U.P. LAW BOC EVIDENCE
Since admissibility of evidence is determined
by its relevance and competence, admissibility
is, therefore, an affair of logic and law. On the
other hand, the weight to be given to such
evidence, once admitted, depends on judicial
evaluation within the guidelines provided in
Rule 133 and the jurisprudence laid down by
the Court. Thus, while evidence may be
admissible, it may be entitled to little or no
weight at all. Conversely, evidence which may
have evidentiary weight may be inadmissible
because a special rule forbids its reception.
[People v. Turco, G.R. No. 137757, (2000)]
To emphasize, “a preliminary investigation is
merely preparatory to a trial; it is not a trial on
the merits.” Since “it cannot be expected that
upon the filing of the information in court the
prosecutor would have already presented all
the evidence necessary to secure a conviction
of the accused,” the admissibility or
inadmissibility of evidence cannot be ruled
upon in a preliminary investigation. [Maza v.
Judge Turla, G.R. No. 187094 (2017)].
a. Requisites for Admissibility;
Exclusions
Requisites for Admissibility
a. Relevant to the issue; and
b. Not excluded by the Constitution, the law
or the ROC (“competent”) [Sec. 3, Rule
128]
Relevant Competent
When the evidence Not excluded by the
has such a relation Constitution, the law,
to the fact in issue or the Rules [Sec. 3,
as to induce belief in Rule 128]
its existence or non-
existence [Sec. 4,
Rule 128]
Page 456 of 525
REMEDIAL LAW
The Importance of Offer in Relation to
Admissibility
Parties are required to inform the courts of the
purpose of introducing their respective exhibits
to assist the latter in ruling on their admissibility
in case an objection thereto is made [Star Two
v. Ko, G.R. No. 185454 (2011)]
The court shall consider no evidence which has
not been formally offered. The purpose for
which the evidence is offered must be
specified. [Sec. 34, Rule 132]
All evidence must be offered orally. [Sec.
35, Rule 132]
# Offer of testimonial evidence—made at
the time the witness is called to testify
# Offer of documentary and object
evidence—made after the presentation of
a party’s testimonial evidence
Objection
Objection to offer of evidence must be made
orally immediately after the offer is made
# Objection to the testimony of a witness for
lack of formal offer must be made as soon
as the witness begins to testify
# Objection as to a question propounded in
the course of the oral examination of a
witness must be made as soon as the
grounds therefor become reasonably
apparent
# The grounds for objections must be
specified [Sec. 36, Rule 132]
U.P. LAW BOC EVIDENCE
Exclusionary rules of evidence
1. Constitutional exclusionary rules
Consequence Violation
Inadmissible for any Art III, Sec 2
proceeding (unreasonable
searches and
seizure)
Art III, Sec 3 (privacy
of communication
and
correspondence)
Inadmissible against Art III, Sec 12 (right
the accused, but to counsel,
may be used by the prohibition on
offended party in a torture, force,
suit for damages violence, threat,
against the violator intimidation or other
means which vitiate
the free will;
prohibition on secret
detention places,
solitary,
incommunicado)
Art III, Sec 17 (right
against self-
incrimination)
It is settled that for an extrajudicial confession
to be admissible in evidence against the
accused, the same “must be (a) voluntary, (b)
made with the assistance of a competent and
independent counsel, (c) express, and (d) in
writing.”
Moreover, Section 2 of Republic Act No. 7438
requires that "any person arrested, detained or
under custodial investigation shall at all times
be assisted by counsel.”
Page 457 of 525
REMEDIAL LAW
Statutory exclusionary rules
a. Lack of documentary stamp tax to
documents required to have one makes
such document inadmissible as evidence
in court until the requisite stamp/s shall
have been affixed thereto and cancelled
[Sec. 201, NIRC];
b. Any communication obtained by a person,
not being authorized by all the parties to
any private communication, by tapping
any wire/cable or using any other
device/arrangement to secretly
overhear/intercept/record such information
by using any device, shall not be
admissible in evidence in any hearing or
investigation [Secs. 1 and 4, R.A. 4200
(Wire-Tapping Act)]
Note: there must be a law that renders the
evidence inadmissible [Ejercito v.
Sandiganbayan G.R. Nos. 157294-95 (2006)].
In this case, the SC held that nowhere in R.A.
1405 (Bank Secrecy Law) does it provide that
an unlawful examination of bank accounts shall
render the evidence obtained therefrom
inadmissible in evidence.
3. Exclusions under the Rules on Evidence
• Original document rule (previously
best evidence rule)
• Hearsay evidence rule
• Offer of compromise in civil cases
4. Exclusions under Court issuances
# Rule on Electronic Evidence, e.g.
compliance with authentication
requirements for electronic evidence
# Rule on Examination of a Child
Witness, e.g. sexual abuse shield rule
# Judicial Affidavit Rule
U.P. LAW BOC EVIDENCE
b. Relevance of Evidence and
Collateral Matters
Relevancy
Evidence is relevant when it has “such a
relation to the fact in issue as to induce belief
in its existence or non-existence” [Sec. 4, Rule
128]
(e.g., evidence as to the age of a person who
has been raped is relevant in a situation where
the age would qualify the offence to statutory
rape)
Determinable by the rules of logic and human
experience [2 Regalado 704, 2008 Ed.]
Collateral matters
Matters other than the fact in issue and which
are offered as a basis for inference as to the
existence or non-existence of the facts in issue
[2 Regalado 708, 2008 Ed.]
General rule: Evidence on collateral matters is
NOT allowed
Exceptions: When it tends in any reasonable
degree to establish the probability or
improbability of the fact in issue [Sec. 4, Rule
128]
Note: What the Rules prohibit is evidence of
irrelevant collateral facts [2 Regalado 708,
2008 Ed.]
c. Multiple Admissibility
Where the evidence is relevant and competent
for two or more purposes, such evidence
should be admitted for any or all the purposes
for which it is offered, provided it satisfies all
the requisites of law for its admissibility therefor
[2 Regalado 706, 2008 Ed.]
When a fact is offered for one purpose, and is
admissible insofar as it satisfies all rules
applicable to it when offered for that purpose,
Page 458 of 525
REMEDIAL LAW
its failure to satisfy some other rule which
would be applicable to it if offered for another
purpose does not exclude it. [Francisco 11,
1996 Ed.]
d. Conditional Admissibility
Where the evidence at the time of its offer
appears to be immaterial or irrelevant unless it
is connected with the other facts to be
subsequently proved, such evidence may be
received on condition that the other facts will be
proved thereafter; otherwise, the evidence
already given shall be stricken out [2 Regalado
705, 2008 Ed.]
Example: a copy of a writing may not be
considered competent evidence until the
original is proven to be lost or destroyed
Conditional admissibility requires no bad faith
on the part of the proponent.
e. Curative Admissibility
The right of a party to introduce incompetent
evidence in his behalf where the court has
admitted incompetent evdience adduced by
the adverse party
Three theories (Wigmore)
1. American Rule – admission of
incompetent evidence, without objection
by the opponent, does not justify such
opponent in rebutting it by similar
incompetent evidence
2. English Rule – adverse party may resort
to similar inadmissible evidence
3. Massachussetts Rule – adverse party may
be permitted to introduce similar
incompetent evidence in order to avoid a
plain and unfair prejudice caused by the
admission of the other party’s evidence
U.P. LAW BOC EVIDENCE REMEDIAL LAW

Note: none of these rules apply in the g. Positive and Negative Evidence
Philippines because there is no law or Rule that
allows it [Prof. Avena]
Positive Negative evidence
evidence
f. Direct and Circumstantial
Evidence Witness affirms Witness states he/she
that a certain did not see or does not
Direct Circumstantial evidence state of facts did know of the occurrence
evidence exist or that a of a fact
certain event
Proves the Proof of facts from which, happened.
fact in taken collectively, the
[2 Regalado 703, 2008 Ed.]
dispute existence of a particular fact
without the in dispute may be inferred
aid of any as a necessary or probable h. Competent and Credible
inference or consequence Evidence
presumption
[Francisco 2, 1996 Ed.] Competent Credible Evidence
Evidence
Requisites to warrant a conviction based on
Not excluded by Refers to probative
circumstantial evidence
the Constitution, value or convincing
a. there is more than one circumstance;
the law, or the weight
b. the facts from which the inferences are
Rules [Sec. 3,
derived are proven; and Rule 128] Weight involves the
c. the combination of all the circumstances is effect of evidence
such as to produce conviction beyond admitted, its tendency to
reasonable doubt [Sec. 4, Rule 133] convince and persuade.
It is not determined
The totality of the evidence must constitute an mathematically by the
unbroken chain showing the guilt of the numerical superiority of
accused beyond reasonable doubt [People v. the witnesses testifying
Matito, G.R. No. 144405 (2004)] to a given fact, but
depends upon its
Note: Circumstantial evidence is not a weaker practical effect in
form of evidence vis-a-vis direct evidence inducing belief on the
[People v. Matito, G.R. No. 144405 (2004)] part of the judge trying
the case [Francisco 11,
1996 Ed.]

Page 459 of 525

U.P. LAW BOC EVIDENCE REMEDIAL LAW

proceedings, depending on the exigencies of

Determined by
the case. [Sec. 1, Rule 131]
the prevailing
exclusionary
A party will have the burden of evidence only
rules of evidence
if there is any factum probandum (whether
[2 Regalado 704,
evidentiary or otherwise) that the adverse party
2008 Ed.]
has already established (whether by law, rule,
or by virtue of evidence that he has presented)
Note:
that he (the potential proponent) has to
Exclusionary
overcome. A party will not have any burden of
rules may affect
evidence at all if the adverse party has not
due process. To
established any factum probandum in the first
the extent that
place [Prof. Avena]
they might
prejudice
The burden of proof is generally determined
substantive
by the pleadings filed by the party; the burden
rights, therefore,
of evidence is generally determined by the
they cannot be
developments at the trial, or by the provisions
made to apply
of the substantive law or procedural rules
retroactively.
which may relieve the party from presenting
evidence on the fact alleged, i.e.,
6. Burden of Proof and Burden presumptions, judicial notice and admissions [2
of Evidence Regalado 816-817, 2008 Ed.]

Burden of proof is the duty of a party to
present evidence on the facts in issue
necessary to establish his or her claim or
defense by the amount of evidence required by
law. Burden of proof never shifts. [Sec. 1, Rule
131]
• In civil cases, the burden of proof is on
the party who would be defeated if no
evidence were given on either side, the
plaintiff with respect to his complaint,
the defendant with respect to his
counterclaim, and the cross-claimant,
with respect to his cross-claim. [2
Regalado 816, 2008 Ed.]
• In criminal cases, the burden of proof
rests on the prosecution [Boac v.
People, G.R. No. 180597 (2008)]
Burden of evidence is the duty of a party to
present evidence sufficient to establish or
rebut a fact in issue to establish a prima facie
case. Burden of evidence may shift from one
party to the other in the course of the
In both civil and criminal cases, the burden of
evidence lies with the party who asserts an
affirmative allegation [2 Regalado 817, 2008
Ed.]
Example:
In a case for collection of a sum of money, if
the defendant asserts that she has paid, then
she has the burden of proving that she had, not
on the creditor that she had not. While the
creditor had needed to prove the existence of
a debt, the burden shifts to the debtor because
she alleged an affirmative defense, which
admits the creditor’s allegation [Vitarich v.
Losin, G.R. No. 181560 (2010)]
Equipoise Rule or Equipoise Doctrine
The doctrine refers to the situation where the
evidence of the parties are evenly balanced or
there is doubt on which side the evidence
preponderates. In this case, the decision
should be against the party with the burden of

Page 460 of 525

U.P. LAW BOC EVIDENCE REMEDIAL LAW

proof [Rivera v. C.A., G.R. No. 115625 (1998); essentially an common logic or
Marubeni v. Lirag, G.R. No. 130998, (2001)] inference probability

In criminal cases, the equipoise rule provides e.g. Inference of In the absence of a
that where the evidence is evenly balanced, guilt upon discovery legal provision or
the constitutional presumption of innocence of bloodied garment ruling, there is no
tilts the scales in favor of the accused [Malana in possession of presumption of law.
v. People, G.R. No. 173612, (2008)] accused
e.g. Presumption of
7. Presumptions innocence in favor of
the accused,
Presumptions are inferences as to the presumption of
existence of a fact not actually known, arising negligence of a
from its usual connection with another which is common carrier
known, or a conjecture based on past
experience as to what course human affairs Conclusive Disputable
ordinarily take. [University of Mindanao, Inc. v.
Bangko Sentral ng Pilipinas, G.R. No. 194964-
65 (2016)] Inferences which Satisfactory if
the law makes so uncontradicted, but
A presumption can rest only upon ascertained peremptory that it may be contradicted
facts. It cannot be based on other will not allow them and overcome by
presumptions, assumptions, probabilities or to be overturned by other evidence [Sec.
inferences [Francisco, 52] any contrary proof 3, Rule 131]
however strong
Presumptions are not allegations, nor do they [Datalift Movers v.
supply their absence. Presumptions are Belgravia Realty,
conclusions. They do not apply when there are G.R. No. 144268
no facts or allegations to support them (2006)]
[University of Mindanao, Inc. v. Bangko Sentral
ng Pilipinas, G.R. No. 194964-65 (2016)] a. Conclusive Presumptions

Presumption of Presumption of law The technical definition of “conclusive

fact presumption” is implied by way of contra-
Praesumptiones Praesumptiones juris distinction with that for the term “disputable
hominis [2 [2 Regalado 819, presumption” in Sec. 3 of Rule 131 of the Rules
Regalado 819, 2008 Ed.] of Court.
2008 Ed.]
Those which the law Thus, a conclusive presumption is a class of
Those which the requires to be drawn evidence which the law does not allow to be
experience of from the existence of contradicted. [2 Regalado 703, 2008 Ed.]
mankind has shown established facts in
to be valid, founded the absence of Conclusive presumptions in the ROC [Sec.
on general contrary evidence; 2, Rule 131]:
knowledge and derived from the law a. A party is not permitted falsify a thing
information; itself rather from whenever:

Page 461 of 525

U.P. LAW BOC EVIDENCE
i. By his or her own declaration, act or
omission;
ii. He or she intentionally and
deliberately led another to believe a
particular thing is true;
iii. To act upon such belief; and
iv. The litigation arises out of such
declaration act or omission
b. A tenant is not permitted to deny the title
of his or her landlord at the time of the
commencement of the relation of landlord
and tenant between them
These conclusive presumptions are based
upon the doctrine of estoppel in pais, see Arts.
1431-1439, Civil Code [2 Regalado 820, 2008
Ed.]
Once a contract of lease is shown to exist
between the parties, the lessee cannot by any
proof, however strong, overturn the conclusive
presumption that the lessor has a valid title to
or a better right of possession to the subject
premises than the lessee [Santos v. National
Statistics Office., G.R. No. 171129, (2011)]
What a tenant is estopped from denying is the
title of his landlord at the time of the
commencement of the landlord-tenant relation.
If the title asserted is one that is alleged to have
been acquired subsequent to the
commencement of that relation, the
presumption will not apply. Hence, the tenant
may show that the landlord's title has expired
or been conveyed to another or himself; and he
is not estopped to deny a claim for rent, if he
has been ousted or evicted by title paramount
[Ermitaño v Paglas, G.R. No. 174436 (2013)]
Sources of conclusive presumptions other
than the Rules of Court:
a. Law
i. The decree of registration and the
certificate of title issued shall become
incontrovertible, upon the expiration of
the one-year period within which any
Page 462 of 525
REMEDIAL LAW
person deprived of land or of any estate
or interest therein by such adjudication
or confirmation of title obtained by
actual fraud, to file in the proper court a
petition for reopening and review of the
decree of registration [Sec. 32, P.D.
1529]
ii. The child shall be considered
legitimate although the mother may
have declared against its legitimacy or
may have been sentenced as an
adulteress. [Art. 167, FC]. Factum
probans that the child was conceived
or born during the marriage of its
parents conclusively establishes the
factum probandum of the legitimate
status of that child, Art. 167 is saying
that any factum probans presented and
offered to prove the truth of the latter
declaration (of the mother) will be
inadmissible in evidence.
b. SC issuances
b. Disputable Presumptions
a. Person is innocent of crime or wrong;
b. Unlawful act is done with an unlawful
intent;
c. Person intends the ordinary consequences
of his or her voluntary act;
d. Person takes ordinary care of his or her
concerns;
e. Evidence willfully suppressed would be
adverse if produced;
f. Money paid by one to another was due to
the latter;
g. Thing delivered by one to another
belonged to the latter;
h. Obligation delivered up to the debtor has
been paid;
i. Prior rents or installments had been paid
when a receipt for the later ones is
produced;
U.P. LAW BOC EVIDENCE
j. A person found in possession of a thing
taken in the doing of a recent wrongful act
is the taker and doer of the whole act;
otherwise, that things which a person
possesses or exercises acts of ownership
over are owned by him or her;
k. Person in possession of an order on
himself or herself for the payment of the
money, or the delivery of anything, has
paid the money or delivered the thing
accordingly;
l. Person acting in a public office was
regularly appointed or elected to it;
m. Official duty has been regularly performed;
n. A court, or judge acting as such, whether in
the Philippines or elsewhere, was acting in
the lawful exercise of jurisdiction;
o. All the matters within an issue raised in a
case were laid before the court and passed
upon by it; and in like manner that all
matters within an issue raised in a dispute
submitted for arbitration were laid before
the arbitrators and passed upon by them;
p. Private transactions have been fair and
regular;
q. Ordinary course of business has been
followed;
r. There was a sufficient consideration for a
contract;
s. Negotiable instrument was given or
indorsed for a sufficient consideration;
t. An indorsement of a negotiable instrument
was made before the instrument was
overdue and at the place where the
instrument is dated;
u. A writing is truly dated;
v. Letter duly directed and mailed was
received in the regular course of the mail;
w. Presumptions concerning absence:
1. Ordinary but continued absence of:
■ 7 years, it being unknown WON the
absentee still lives, he or she is
considered dead for all purposes,
except for those of succession
Page 463 of 525
REMEDIAL LAW
■ 10 years – the absentee shall be
considered dead for the purpose of
opening his succession; but if he
disappeared after the age of 75
years, an absence of 5 years shall
be sufficient to open his or her
succession
■ 4 consecutive years – the spouse
present may contract a subsequent
marriage if s/he has a well-founded
belief that the absent spouse is
already dead; but where there is
danger of death, an absence of
only 2 years shall be sufficient for
remarriage
➢ Note: before marrying again,
the present spouse must
institute summary proceedings
for declaration of presumptive
death of spouse
2. Qualified absence – The following shall
be considered dead for all purposes
including the division of the estate
among the heirs
■ A person on board a vessel lost
during a sea voyage, or an aircraft
which is missing, who has not been
heard of for 4 years since the loss
of the vessel or aircraft
■ A member of the armed forces who
has taken part in armed hostilities,
and has been missing for 4 years
■ A person who has been in danger
of death under other circumstances
and whose existence has not been
known for 4 years
a. Acquiescence resulted from a belief that
the thing acquiesced in was conformable to
the law or fact
1. “Acquiescence” – reluctant
acceptance without protest
b. Things have happened according to the
ordinary course of nature and the ordinary
habits of life
U.P. LAW BOC EVIDENCE REMEDIAL LAW

c. Persons acting as co-partners have h. A thing once proved to exist continues as

entered into a contract of co-partnership;
d. A man and woman deporting themselves
as husband and wife have entered into a
lawful contract of marriage;
e. Property acquired by a man and a woman
who are capacitated to marry each other
and who live exclusively with each other as
husband and wife without the benefit of
marriage or under a void marriage, has
been obtained by their joint efforts, work or
industry;
f. In cases of cohabitation by a man and a
woman who are not capacitated to marry
each other and who have acquired
property through their actual joint
contribution of money, property or industry,
such contributions and their corresponding
shares including joint deposits of money
and evidences of credit are equal;
g. Presumptions governing children of
women who contracted another marriage
within 300 days after termination of her
former marriage (in the absence of proof to
the contrary):
When Child was Born Presumption
Before 180 days after Considered to have
the solemnization of been conceived during
the subsequent the former marriage,
marriage provided it be born
within 300 days after
the termination of the
former marriage
long as is usual with things of the nature;
i. The law has been obeyed;
j. A printed/published book, purporting to be
printed/published by public authority, was
so printed/published;
k. A printed/published book, purporting to
contain reports of cases adjudged in
tribunals of the country where the book is
published, contains correct reports of such
cases;
l. A trustee or other person whose duty it was
to convey real property to a particular
person has actually conveyed it to him
when such presumption is necessary to
perfect the title of such person or his
successor in interest;
m. Presumptions regarding survivorship:
(Applicable for all purposes except
succession)
1. When 2 persons perish in the same
calamity
2. It is not shown who died first; and
3. There are no particular circumstances
from which the order of death can be
inferred
The survivorship is determined from the
probabilities resulting from the strength and the
age of the sexes:
Situation Person presumed to
have survived
Both < 15 y/o The older

After 180 days Considered to have

following the been conceived during
Both > 60 y/o The younger
celebration of the the subsequent
subsequent marriage marriage, even though One < 15 y/o, The one < 15
it be born within the
the other > 60 y/o
300 days after the
termination of the
former marriage.
Both > 15 and < 60 The male
y/o, of different sexes

Page 464 of 525

U.P. LAW BOC EVIDENCE
Both > 15 and <60 The older
y/o, of the same sex
One < 15 or > 60 y/o, The one between
and the other those ages
between those ages
n. As between 2 or more persons called to
succeed each other: If there is a doubt as
to which of them died first, whoever alleges
the death of one prior to the other, shall
prove the same.
1. In the absence of proof, they shall
be considered to have died at the
same time.
[Sec. 3, Rule 131]
No presumption of legitimacy or
illegitimacy
There is no presumption of legitimacy or
illegitimacy of a child born after 300 days
following the dissolution of marriage or the
separation of spouses. Whoever alleges the
legitimacy or illegitimacy of such child must
prove his or her allegation [Sec. 4, Rule 131]
The adverse presumption of suppression of
evidence is not applicable when:
a. The suppression is not willful;
b. The evidence suppressed or withheld is
merely corroborative or cumulative;
c. The evidence is at the disposal of both
parties; and
d. The suppression is an exercise of a
privilege [Tarapen v. People, G.R. No.
173824 (2008)]
The presumption of regularity in the
performance of official duty obtains only when
there is no deviation from the regular
performance of duty. Where the official act in
question is irregular on its face, no presumption
of regularity can arise [People v. Casabuena,
G.R. No. 186455 (2014)]
Page 465 of 525
REMEDIAL LAW
When there is gross disregard of the
procedural safeguards set forth in Republic Act
No. 9165 (Comprehensive Dangerous Drugs
Act of 2002), serious uncertainty is generated
as to the identity of the seized items that the
prosecution presented in evidence. Such doubt
cannot be remedied by merely invoking the
presumption of regularity in the performance of
official duties [People v. Lagahit, G.R. No.
200877 (2014)]
c. Presumptions in civil actions
and proceedings; against an
accused in criminal cases
Civil actions and proceedings
In all civil actions and proceedings not
otherwise provided for by the law or these
Rules, a presumption imposes on the party
against whom it is directed the burden of going
forward with evidence to rebut or meet the
presumption.
If presumptions are inconsistent, the
presumption that is founded upon weightier
considerations of policy shall apply.
If considerations of policy are of equal weight,
neither presumption applies. [Sec. 5, Rule 131]
Criminal cases
If a presumed fact that established guilt, is an
element of the offense charged, or negates a
defense, the existence of the basic fact must
be proved beyond reasonable doubt and the
presumed fact follows from the basic fact
beyond reasonable doubt. [Sec. 6, Rule 131]
8. Construction of the Rules of
Evidence
The Rules of Court, including the Revised
Rules on Evidence, shall be liberally
construed in order to promote their objective
of securing a just, speedy and inexpensive
disposition of every action and proceeding
[Sec. 6, Rule 1]
U.P. LAW BOC EVIDENCE REMEDIAL LAW

2. The witnesses’ manner of testifying, their

Rules on Electronic Evidence shall likewise be intelligence, their means and opportunity
liberally construed [Sec. 2, Rule 2, Rules on of knowing the facts to which they testify,
Electronic Evidence] the nature of the facts to which they
testify, the probability or improbability of
9. Quantum of Evidence their testimony, their interest or want of
interest, and also their personal credibility
a. Proof Beyond Reasonable so far as the same may legitimately
Doubt appear upon the trial;
3. Number of witnesses (although
In a criminal case, the accused is entitled to an preponderance is not necessarily with the
acquittal, unless his or her guilt is shown greater number) [Sec. 1, Rule 133]
beyond reasonable doubt. Proof beyond
reasonable doubt does not mean such a
c. Substantial Evidence
degree of proof as, excluding possibility of
error, produces absolute certainty. Moral
Degree of evidence required in cases filed
certainty only is required, or that degree of
before administrative or quasi-judicial
proof which produces conviction in an
bodies
unprejudiced mind [Sec. 2, Rule 133]
It is the amount of relevant evidence which a
The burden is on the prosecution to prove guilt
reasonable mind might accept as adequate to
beyond reasonable doubt, NOT on the
justify a conclusion. [Sec. 6, Rule 133]
accused to prove his/her innocence [Boac v
People, G.R. No. 180597, (2008)]
Also applies to petitions under the Rule on the
Writ of Amparo [Sec. 17, Rule on the Writ of
The prosecution must not rely on the weakness
Amparo] and the Rule on the Writ of Habeas
of the evidence of the defense [Ubales v
data [Sec. 16, Rule on the Writ of Habeas data]
People, G.R. No. 175692, (2008); People v.
Hu, G.R. No. 182232, (2008)]
Substantial Evidence Rule
Factual findings, especially when affirmed by
b. Preponderance of Evidence the Court of Appeals, are accorded not only
great respect but also finality, and are deemed
Applicable quantum of evidence in civil cases
binding upon this Court so long as they are
[Sec. 1, Rule 133]
supported by substantial evidence [Tan
Brothers Corp. v. Escudero, G.R. No. 188711
Means that the evidence adduced by one side
(2013)]
is, as a whole, superior to or has greater weight
than that of the other [Habagat Grill v. DMC-
d. Clear and Convincing Evidence
Urban Property Developer, Inc., G.R. No.
155110, (2005); Bank of the Philippine Islands
Clear and convincing evidence is more than
v. Reyes, G.R. No. 157177, (2008)]
mere preponderance, but not to the extent
of such certainty as is required beyond
In determining preponderance of evidence, the
reasonable doubt as in criminal cases
court may consider:
[Manalo v. Roldan-Confesor, G.R. No. 102358
1. All the facts and circumstances of the
(1992)]
case;

Page 466 of 525

U.P. LAW BOC EVIDENCE REMEDIAL LAW

The standard of proof required in granting or

denying bail in extradition cases is “clear and
B. JUDICIAL NOTICE AND
convincing evidence” that the potential JUDICIAL ADMISSIONS
extraditee is not a flight risk and will abide with
all the orders and process of the extradition 1. What Need Not Be Proved
court [Government of Hongkong Special
Administrative Region v. Olalia, Jr., G.R. No. a. Facts of Judicial Notice
153675, (2007)] b. Judicial Admissions
c. Conclusive Presumptions
It must be added that the defenses of denial
and improper motive can only prosper when Note: Evidence is also not required when the
substantiated by clear and convincing issue is purely a question of law. The definition
evidence [People v. Colentava, G.R. No. of “evidence” in Sec. 1, Rule 128 refers to “a
190348 (2015)] matter of fact”.

It is used for overturning disputable 2. Matters of Judicial Notice

presumptions, such as the presumption of
regularity in the performance of official duties
[Portuguez v. People, G.R. No. 194499,
(2015)] or the existence of a valuable
consideration [Tolentino v. Sps. Jerera, G.R.
No. 179874 (2015)]
Note however: The addressee's “direct
denial” of receipt of mail alleged to have been
mailed to it defeats the presumption in Sec.
3(v), Rule 131 and shifts the burden upon the
party favored by the presumption to prove that
the mailed letter was indeed received by the
addressee [Commissioner of Internal Revenue
v. Metro Star, G.R. No. 185371 (2010)]
It is also the standard of proof for invoking the
justifying circumstance of self-defense for the
defense and proving the aggravating
circumstance of treachery for the prosecution
[People v. C.A.sas, G.R. No. 212565 (2015)]
The former is because having admitted the
killing requires the accused to rely on the
strength of his own evidence, not on the
weakness of the Prosecution’s, which, even if
it were weak, could not be disbelieved in view
of his admission [People v. Mediado, G.R. No.
169871 (2011)]
Judicial Notice
Judicial notice is the cognizance of certain
facts that judges may properly take and act on
without proof because these facts are already
known to them. Put differently, it is the
assumption by a court of a fact without need of
further traditional evidentiary support.
[Republic v. Sandiganbayan, G.R. No. 166859,
(2011)]
Courts must take judicial notice with caution.
Any reasonable doubt on the subject must be
resolved in the negative (court will not take
judicial notice).
a. When Mandatory
1. Existence and territorial extent of states;
2. Their political history, forms of government,
and symbols of nationality;
3. Law of nations;
4. Admiralty and maritime courts of the world
and their seals;
5. Political constitution and history of the
Philippines;
6. Official acts of the legislative, executive
and judicial departments of the National
Government of the Philippines;
a. Note: the 2019 Amendment added the
words “of the National Government of
the Philippines”
7. Laws of nature;
8. Measure of time; and

Page 467 of 525

U.P. LAW BOC EVIDENCE
9. Geographical divisions [Sec. 1, Rule 129]
Note: It is grave abuse of discretion if the court
does not allow the taking of judicial notice.
[Prof. Avena]
Since we consider the act of cancellation by
President Macapagal-Arroyo of the proposed
ZTE- NBN Project during the meeting of
October 2, 2007 with the Chinese President in
China as an official act of the executive
department, the Court must take judicial
notice of such official act without need of
evidence. [Suplico v. NEDA, G.R. No. 178830
(2008)]
The Management Contract entered into by
petitioner and the Philippine Ports Authority is
clearly not among the matters which the courts
can take judicial notice of. It cannot be
considered an official act of the executive
department. The PPA was only performing a
proprietary function when it entered into a
Management Contract with the petitioner.
[Asian Terminals v. Malayan Insurance, G.R.
No. 171406 (2011)]
The RTC declared that the discrepancy arose
from the fact that Barrio Catmon was
previously part of Barrio Tinajeros. The RTC
has authority to declare so because this is a
matter subject to mandatory judicial notice.
Geographical divisions are among matters that
courts should take judicial notice of [B.E. San
Diego, Inc. v. C.A., G.R. No. 159230 (2010)]
b. When Discretionary
1. Matters of public knowledge;
2. Matters capable of unquestionable
demonstration; and
3. Matters ought to be known to judges
because of their judicial functions [Sec. 2,
Rule 129]
Requisites
1. The matter must be one of common and
general knowledge;
2. It must be well and authoritatively settled
and not doubtful or uncertain;
Page 468 of 525
REMEDIAL LAW
3. It must be known to be within the limits of
the jurisdiction of the court
The principal guide in determining what facts
may be assumed to be judicially-known is that
of notoriety. Hence, it can be said that judicial
notice is limited to facts evidenced by public
records and facts of general notoriety.
Moreover, a judicially-noticed fact must be one
not subject to a reasonable dispute in that it is
either (1) generally known within the territorial
jurisdiction of the trial court; or (2) capable of
accurate and ready determination by resorting
to sources whose accuracy cannot reasonably
be questionable. [Expertravel & Tours, Inc. v.
CA and Korean Airlines, GR No. 152392
(2005)]
Things of “common knowledge,” of which
courts take judicial notice, may be matters
coming to the knowledge of men generally in
the course of the ordinary experiences of life,
or they may be matters which are generally
accepted by mankind as true and are capable
of ready and unquestioned demonstration.
[State Prosecutors v, Muro, A.M. No. RTJ-92-
876 (1994)]
Judicial notice is not judicial knowledge. The
mere personal knowledge of the judge is not
the judicial knowledge of the court, and he is
not authorized to make his individual
knowledge of a fact, not generally or
professionally known, the basis of his action.
[Ibid]
Note: When Hearing Necessary
During the Pre-Trial and the Trial
The court, motu proprio, or upon motion, shall
hear the parties on the propriety of taking
judicial notice of any matter. [Sec. 3, Rule 129]
After the Trial and Before Judgment or on
Appeal
The court, motu proprio or upon motion, may
take judicial notice of any matter and shall hear
the parties thereon if such matter is decisive of
a material issue in the case [Sec. 3, Rule 129]
U.P. LAW BOC EVIDENCE
Note: With Respect to the Court’s Own Acts
and Records
A court will take judicial notice of its own acts
and records in the same case, of facts
established in prior proceedings in the same
case, of the authenticity of its own records of
another case between the same parties, of the
files of related cases in the same court, and of
public records on file in the same court
[Republic v. C.A., G.R. No. 119288 (1997)]
With Respect to Records of Other Cases
General rule:
As a general rule, courts are not authorized to
take judicial notice of the contents of the
records of other cases, even when such cases
have been tried or are pending in the same
court, and notwithstanding the fact that both
cases may have been tried or are actually
pending before the same judge. [People v.
Hernandez, G.R. No. 108028 (1996)]
Exceptions:
In the absence of objection, and as a matter of
convenience to all parties, a court may properly
treat all or any part of the original record of a
case filed in its archives as read into the record
of a case pending before it, when:
1. With the knowledge of the opposing party,
reference is made to it for that purpose, by
name and number or in some other manner
by which it is sufficiently designated; or
2. The original record of the former case or
any part of it, is actually withdrawn from the
archives by the court's direction, at the
request or with the consent of the parties,
and admitted as a part of the record of the
case then pending [US v Claveria, G.R. No.
G.R. No. 9282 (1915)].
Courts may also take judicial notice of
proceedings in other causes because of their:
1. Close connection with the matter in
controversy. Ex: In a separate civil action
against the administrator of an estate
arising from an appeal against the report of
the committee on claims appointed in the
administration proceedings of the said
estate, the court took judicial notice of the
record of the administration proceedings to
Page 469 of 525
REMEDIAL LAW
determine whether or not the appeal was
taken on time,
2. To determine whether or not the case
pending is a moot one or whether or not a
previous ruling is applicable in the case
under consideration.
3. The other case had been decided by the
same court, involving the same subject
matter, with the same cause of action, and
was between the same parties (which was
not denied), and constituted res judicata on
the current cause before the court [Tiburcio
v. PHHC, G.R. No. L-13479, (1959)]
In this case, the requisite of notoriety is belied
by the necessity of attaching documentary
evidence, i.e., the Joint Affidavit of the
stallholders, to prove the alleged practice of
paying goodwill money in a particular area
[Latip v. Chua, G.R. No. 177809 (2009)]
The classification of the land is obviously
essential to the valuation of the property. The
parties should thus have been given the
opportunity to present evidence on the nature
of the property before the lower court took
judicial notice of the commercial nature of a
portion of the subject landholdings [LBP v.
Honeycomb Farms, G.R. No. 166259 (2012)]
It can be considered of public knowledge and
judicially noticed that the scene of the rape is
not always nor necessarily isolated or secluded
for lust is no respecter of time or place. [People
v. Tundag, G.R. Nos. 135695-96. (2000)]
Laws of nature involving the physical sciences,
specifically biology, include the structural
make-up and composition of living things. The
Court may take judicial notice that a person’s
organs were in their proper anatomical
locations [Atienza v. Board of Medicine, G.R.
No. 177407 (2011)]
The distance between places may be taken as
a matter of judicial notice [Maceda v. Vda. De
Macatangay, G.R. No. 164947 (2006)]
The Court may take judicial notice of the
assessed value of property. [Bangko Sentral
U.P. LAW BOC EVIDENCE
ng Pilipinas v. Legaspi, G.R. No. 205966
(2016)]
3. Judicial Admissions
In General
To be a judicial admission, the same:
a. May be oral or written;
b. Must be made by a party to the case; and
c. Must be made in the course of the
proceedings in the same case.
[Sec. 4, Rule 129]
Note: The admission, to be judicial, must be
made in the course of the proceedings in the
same case. Thus, an admission made in
another judicial proceeding will not be deemed
a judicial admission in the case where the
admission is not made. Instead, it will be
considered an extrajudicial admission for
purposes of the other proceeding where such
admission is offered [Riano 87, 2016 Ed.]
Judicial admissions may be made in
a. the pleadings filed by the parties,
b. in the course of the trial, either by verbal or
written manifestations or stipulations, or
c. in other stages of the judicial proceeding;
ex. stipulation of facts in a pre-trial
conference [People v. Hernandez, G.R.
No. 108028 (1996)], allegations in motions
not specifically denied [Republic v. de
Guzman, G.R. No. 175021 (2011)], pre-
trial, depositions, written interrogatories or
requests for admission [2 Regalado 836-
837, 2008 Ed.]
Note:
a. Admissions made by a party pursuant to a
request for admission is for the purpose of
the pending action only [Sec. 3, Rule 26]
b. In criminal cases, all agreements or
admissions made or entered during the
pre-trial conference shall be reduced in
writing and signed by the accused and
counsel, otherwise, they cannot be used
against the accused [Sec. 2, Rule 118]
However, in the civil case instituted with the
criminal case, such admission will be
admissible against any other party.
Page 470 of 525
REMEDIAL LAW
There are averments made in pleadings which
are not deemed admissions even if the adverse
party fails to make a specific denial of the same
like immaterial allegations [Sec. 11, Rule 8],
conclusions, as well as the amount of
liquidated damages [Sec. 11, Rule 8] [Riano
89, 2016 Ed.]
Note: The theory of adoptive admission has
been adopted by the court in this jurisdiction.
An adoptive admission is a party’s reaction to
a statement or action by another person
when it is reasonable to treat the party’s
reaction as an admission of something
stated or implied by the other person. The
basis for admissibility of admissions made
vicariously is that arising from the ratification or
adoption by the party of the statements which
the other person had made.
In the Angara Diary, Estrada’s options started
to dwindle when the armed forces withdrew its
support. Thus, Executive Secretary Angara
had to ask Senate President Pimentel to advise
the petitioner to consider the option of
dignified exit or resignation. Estrada did not
object to the suggested option but simply said
he could never leave the country. [Estrada v.
Desierto, G.R. Nos. 146710-15 (2001)]
Judicial Proceeding [Sec. 3, Rule 1]
a. Civil – includes special civil actions
b. Criminal
c. Special Proceeding
Examples of statements made that are not
judicial admissions
a. Statements made during preliminary
investigation
b. Statements during Court-Annexed
Mediation
Note: Execution of judgment is part of a judicial
proceeding. The Court retains control over the
case until the full satisfaction of the final
judgment [People v. Gallo, G.R. No. 124736
(1999)]
U.P. LAW BOC EVIDENCE
a. Effect of Judicial Admissions
The judicial admission does not require proof.
[Sec. 4, Rule 129]
Sec. 8, Rule 10 (as amended) provides that
“[a]n amended pleading supersedes the
pleading that it amends. However,
admissions in superseded pleadings may
be offered in evidence against the pleader.”
Thus, admissions in superseded pleadings
have to be “[offered] in evidence” precisely
because they become extra-judicial in nature
the moment the pleading containing them are
superseded by virtue of amendment. See
Bastida v. Menzi & Co, Inc [G.R. No. L-35840
(1933)], cited in 2 Regalado 837, 2008 Ed.
A party who judicially admits a fact cannot later
challenge that fact, as judicial admissions are
a waiver of proof; production of evidence is
dispensed with [Alfelor v. Halasan, G.R. No.
165987 (2006)]
Consequently:
1. An admission made in the pleadings
cannot be controverted by the party making
such admission and are conclusive as to
such party, and all proofs to the contrary or
inconsistent therewith should be ignored,
whether objection is interposed by the
party or not.
2. The allegations, statements or admissions
contained in a pleading are conclusive as
against the pleader.
3. A party cannot subsequently take a
position contrary of or inconsistent with
what was pleaded. [Florete, Sr. v. Florete,
Jr., G.R. No. 223321, (2018)]
b. How Judicial Admissions May
be Contradicted
As an exception to the general rule, judicial
admissions may be contradicted only by
showing that:
1. It was made through palpable mistake; or
2. The imputed admission was not, in fact,
made.
[Sec. 4, Rule 129]
Page 471 of 525
REMEDIAL LAW
This may be invoked when the statement of a
party is taken out of context or that his
statement was made not in the sense it is made
to appear by the other party [Phil. Health Care
Providers v. Estrada, G.R. No. 171052, (2008),
citing Atillo, III v. C.A. (1997)]
An admission against interest binds the person
who makes the same, and absent any showing
that this was made through palpable mistake,
no amount of rationalization can offset it,
especially so in this case where respondents
failed to present even one piece of evidence in
their defense. [Heirs of Donton v. Stier, G.R.
No. 216491 (2017)]
Note: Allegations (and admissions) in a
pleading, even if not shown to be made through
“palpable mistake”, can still be corrected or
amended provided that the amendment is
sanctioned under Sec. 8, Rule 10 of the Rules
of Court. [(Yujuico v. United Resources, G.R.
No. 211113 (2015)]
a. Pre-trial Admissions
Facts subject of a stipulation or agreement
entered into by the parties at the pre-trial of a
case constitute judicial admissions by them
[Lim v. Jabalde, L-36786 (1989), cited in 2
Regalado 837, 2008 Ed.]
When the parties in a case agree on what the
foreign law provides, these are admissions of
fact which the other parties and the court are
made to rely and act upon, hence they are in
estoppel to subsequently take a contrary
position [PCIB v Escolin G.R. L-27860 and L-
27896 (1974], cited in 2 Regalado 838, 2008
Ed.]
When contradicted:
1. In civil cases: if to prevent manifest
injustice [Sec. 7, Rule 18];
2. In criminal cases: if the pre-trial admission
was reduced to writing and signed by the
accused and his counsel [Secs. 2 and 4,
Rule 118]
U.P. LAW BOC EVIDENCE
C. OBJECT (REAL)
EVIDENCE
1. Nature of object evidence
Object Evidence
Those addressed to the senses of the court
[Sec. 1, Rule 130]
A person’s appearance, where relevant, is
admissible as object evidence, the same being
addressed to the senses of the court [People v.
Rullepa, G.R. No. 131516 (2003)]
An ocular inspection of the body of the accused
is permissible. [Villaflor v. Summers, G.R., No.
16444 (1920)]
The right against self-incrimination cannot be
invoked against object evidence. [People v.
Malimit, G.R. No. 109775 (1996)]
View of an object or scene
The inspection or view outside the
courtroom should be made in the presence of
the parties or at least with previous notice to
them in order that they may show the object to
be viewed. Such inspection or view is a part of
the trial, inasmuch as evidence is thereby
being received, which is expressly authorized
by law. [5 Moran 81, 1970 Ed., cited in In re
Climaco, A.C. No. 134-J (1974)
2. Requisites for Admissibility
Basic requisites for admissibility
a. Evidence must be relevant;
b. Evidence must be authenticated by a
competent witness;
c. Object must be formally offered [Sec. 34,
Rule 132]
[Riano 101, 2016 Ed.]
RELEVANT
General rule: When an object is relevant to the
fact in issue, it may be exhibited to, examined
or viewed by the court [Sec. 1, Rule 130]
Page 472 of 525
REMEDIAL LAW
Exceptions: Court may refuse exhibition of
object evidence and rely on testimonial
evidence alone if—
a. Exhibition is contrary to public policy,
morals or decency;
b. It would result in delays, inconvenience,
unnecessary expenses out of proportion to
the evidentiary value of such object;
[People v. Tavera, G.R. No. L-23172
(1925)]
c. Evidence would be confusing or
misleading;
d. The testimonial or documentary evidence
already presented clearly portrays the
object in question as to render a view
thereof unnecessary.
COMPETENT AND AUTHENTICATED
Evidence must be authenticated
To authenticate the object is to show that the
object is the very thing that is either the subject
matter of the lawsuit or the very one involved to
prove an issue in the case.
Authentication must be made by a
competent witness
The witness must have the capacity to identify
the object as the very thing involved in the
litigation.
A witness can testify only to those facts which
he/she knows of his/her personal knowledge;
that is, which are derived from his/her own
perception [Sec. 22, Rule 130]
Note: Requisites for the admissibility of
tape recording
a. A showing that the recording was capable
of taking testimony
b. A showing that the operator of the
recording device is competent
c. Establishment of the authenticity and
correctness of recording
d. A showing that no changes, deletions, or
additions have been made on the
recordings
e. A showing of the manner of preservation of
the recording
f. Identification of speakers
U.P. LAW BOC EVIDENCE REMEDIAL LAW

g. A showing that the testimony elicited was Audio, photographic and video evidence of
voluntarily made without any kind of events, acts or transactions shall be admissible
inducement provided it shall be:
[Torralba v. People, G.R. No. 153699 (2005)] 1. shown, presented or displayed to the court,
and
3. Categories of Object 2. identified, explained or authenticated
i. by the person who made the recording,
Evidence or
ii. by some other person competent to
Two classifications: testify on the accuracy thereof.
a. Actual physical or “autopic” evidence – [Sec. 1, Rule 11, Rules on Electronic Evidence]
those which have a direct relation or part in
the fact or incident sought to be proven and Note: reenactments are object evidence
those brought to the court for personal because they are exhibited, examined and
examination by the presiding magistrate; viewed by the court. E.g. a person who hears a
man cat-call a woman, and mimics the cat-call
Objects that in court is reenacting the event. He is not
have readily testifying because he was not declaring
E.g., gun with
identifiable anything nor making a statement. [Prof. Avena]
a serial
marks; or
number
Unique 4. Chain Of Custody In Relation
objects Exhibit
Car with a To Sec 21 Of The
identifiable
dent on its left Comprehensive Dangerous
visual or
bumper
physical Drugs Act Of 2002
peculiarities
Objects with no “Chain of Custody” means the duly recorded
unique authorized movements and custody of seized
E.g.,sachet of drugs or controlled chemicals or plant sources
characteristic
shabu with of dangerous drugs or laboratory equipment of
Objects but are made
initials of the each stage, from the time of
made readily
police officer seizure/confiscation to receipt in the forensic
unique identifiable by
who retrieved laboratory to safekeeping to presentation in
law enforcers
it court for destruction. [Sec. 1(b), Dangerous
upon retrieval or
confiscation Drugs Board Resolution No. 1 (2002)]
Objects with no
Non- identifying E.g., narcotic As a method of authenticating evidence, the
unique marks and substances, chain of custody rule requires that the
objects cannot be bodily fluids admission of an exhibit be preceded by
marked evidence sufficient to support a finding that the
matter in question is what the proponent claims
[People v. Olarte, G.R. No. 233209 (2019)]
it to be. It would include testimony about every
b. Demonstrative Evidence
Those which represent the actual or physical link in the chain, from the moment the item was
object (or event in case of pictures or videos) picked up to the time it is offered into evidence,
being offered to support or draw an inference in such a way that every person who touched
or to aid in comprehending the verbal the exhibit would describe how and from whom
testimony of a witness. [People v. Olarte, G.R. it was received, where it was and what
No. 233209 (2019)] happened to it while in the witness' possession,
the condition in which it was received and the

Page 473 of 525

U.P. LAW BOC EVIDENCE
condition in which it was delivered to the next
link in the chain. These witnesses would then
describe the precautions taken to ensure that
there had been no change in the condition of
the item and no opportunity for someone not in
the chain to have possession of the same.
[Mallillin v. People, 576 Phil. 576 (2008)]
As a general rule, four links in the chain of
custody of the confiscated item must be
established:
a. first, the seizure and marking, if
practicable, of the illegal drug recovered
from the accused by the apprehending
officer;
b. second, the turnover of the illegal drug
seized by the apprehending officer to the
investigating officer;
c. third, the turnover by the investigating
officer of the illegal drug to the forensic
chemist for laboratory examination; and
d. fourth, the turnover and submission of the
marked illegal drug seized from the
forensic chemist to the court. [People v.
Gayoso, G.R. No. 206590 (2017)]
Note: If the proffered evidence is unique,
readily identifiable, and relatively resistant to
change, that foundation need only consist of
testimony by a witness with knowledge that the
evidence is what the proponent claims;
otherwise, the chain of custody rule has to be
resorted to and complied with by the proponent
to satisfy the evidentiary requirement of
relevancy. And at all times, the source of
amorphous as well as firmly structured objects
being offered as evidence must be tethered to
and supported by a testimony.
In the case at hand, the chain of custody rule
does not apply to an undetonated grenade (an
object made unique), for it is not amorphous
and its form is relatively resistant to change. A
witness of the prosecution need only identify
the hand grenade, a structured object, based
on personal knowledge that the same
contraband or article is what it purports to be —
that it came from the person of accused-
Page 474 of 525
REMEDIAL LAW
appellant. [People v. Olarte, G.R. No. 233209
(2019)]
5. DNA Evidence
When a crime is committed, material is
collected from the scene of the crime or from
the victim’s body for the suspect’s DNA. This is
the evidence sample. The evidence sample is
then matched with the reference sample taken
from the suspect and the victim. The purpose
of DNA testing is to ascertain whether an
association exists between the evidence
sample and the reference sample. The
samples collected are subjected to various
chemical processes to establish their
profile. The test may yield three possible
results:
a. Exclusion – The samples are different and
therefore must have originated from
different sources. This conclusion is
absolute and requires no further analysis or
discussion;
b. Inconclusive – It is not possible to be sure,
based on the results of the test, whether
the samples have similar DNA types. This
might occur for a variety of reasons
including degradation, contamination, or
failure of some aspect of the protocol.
Various parts of the analysis might then be
repeated with the same or a different
sample, to obtain a more conclusive result;
or
c. Inclusion – The samples are similar, and
could have originated from the same
source. In such a case, the samples are
found to be similar, the analyst proceeds to
determine the statistical significance of the
similarity [People v. Vallejo, G.R. No.
144656 (2002)].
Obtaining DNA samples from an accused in a
criminal case or from the respondent in a
paternity case, contrary to the belief of
respondent in this action, will not violate the
right against self-incrimination. [Herrera v.
Alba, G.R. No. 148220 (2005)]
U.P. LAW BOC EVIDENCE
a. Meaning of DNA
“DNA” means deoxyribonucleic acid, which is
the chain of molecules found in every
nucleated cell of the body. The totality of an
individual’s DNA is unique for the individual,
except identical twins.
“DNA evidence” constitutes the totality of the
DNA profiles, results and other genetic
information directly generated from DNA
testing of biological samples.
“DNA testing” means verified and credible
scientific methods which include the extraction
of DNA from biological samples, the generation
of DNA profiles and the comparison of the
information obtained from the DNA testing of
biological samples for the purpose of
determining, with reasonable certainty,
whether or not the DNA obtained from two or
more distinct biological samples originates
from the same person (direct identification) or
if the biological samples originate from related
persons (kinship analysis).
[Sec. 3, AM No. 06-11-5-SC or Rule on DNA
Evidence]
b. Application for DNA testing
order
The appropriate court may, at any time, either
motu proprio or on application of any person
who has a legal interest in the matter in
litigation, order a DNA testing.
Such order shall issue after due hearing and
notice to the parties upon a showing of the
following:
1. A biological sample exists that is relevant
to the case;
2. The biological sample: (i) was not
previously subjected to the type of DNA
testing now requested; or (ii) was
previously subjected to DNA testing, but
the results may require confirmation for
good reasons;
3. The DNA testing uses a scientifically valid
technique;
Page 475 of 525
REMEDIAL LAW
4. The DNA testing has the scientific potential
to produce new information that is relevant
to the proper resolution of the case; and
5. The existence of other factors, if any, which
the court may consider as potentially
affecting the accuracy of integrity of the
DNA testing.
Exception: DNA testing may be done without
a prior court order, at the behest of any party
(including law enforcement agencies), before a
suit or proceeding is commenced [Sec. 4, Rule
on DNA Evidence]
Note: The death of the petitioner (putative
father) does not ipso facto negate the
application of DNA testing for as long as there
exist appropriate biological samples of his
DNA. The term “biological sample” means any
organic material originating from a person’s
body, even if found in inanimate objects, that is
susceptible to DNA testing. This includes
blood, saliva, and other body fluids, tissues,
hairs and bones. [Ong v. Diaz, G.R. No.
1717113 (2007)]
c. Post-conviction DNA testing;
remedy
Post-conviction DNA testing may be available,
without need of prior court order, to the
prosecution or any person convicted by final
and executory judgment provided that:
1. a biological sample exists;
2. such sample is relevant to the case; and
3. the testing would probably result in the
reversal or modification of the judgment of
conviction. [Sec. 6, Rule on DNA Evidence]
The medical evidence clearly established that
Carmela was raped and, consistent with this,
semen specimen was found in her. It is true
that Alfaro identified Webb in her testimony as
Carmela's rapist and killer but serious
questions had been raised about her credibility.
At the very least, there exists a possibility that
Alfaro had lied. xxx If, on examination, the DNA
of the subject specimen does not belong to
Webb, then he did not rape Carmela. It is that
simple. [Lejano v. People, G.R. No. 176864
(2010)].
U.P. LAW BOC EVIDENCE
Remedy if the results are favorable to the
convict
The convict or the prosecution may file a
petition for a writ of habeas corpus in the
court of origin if the results of the post-
conviction DNA testing are favorable to the
convict.
In case the court, after due hearing finds the
petition to be meritorious, if shall reverse or
modify the judgment of conviction and order
the release of the convict, unless continued
detention is justified for a lawful cause.
A similar petition may be filed either in the
Court of Appeals or the Supreme Court, or with
any member of said courts, which may conduct
a hearing thereon or remand the petition to the
court of origin and issue the appropriate orders.
[Sec. 10, Rule on DNA Evidence]
d. Assessment of probative value
of DNA evidence and
admissibility
In assessing the probative value of the DNA
evidence presented, the court shall consider
the following:
1. The chain of custody, including how the
biological samples were collected, how
they were handled, and the possibility of
contamination of the samples;
2. The DNA testing methodology, including
the procedure followed in analyzing the
samples, the advantages and
disadvantages of the procedure, and
compliance with the scientifically valid
standards in conducting the tests;
3. The forensic DNA laboratory, including
accreditation by any reputable standards-
setting institution and the qualification of
the analyst who conducted the tests. If the
laboratory is not accredited, the relevant
experience of the laboratory in forensic
casework and credibility shall be properly
established; and
4. The reliability of the testing result, as
provided in Sec. 8 [Sec. 7, Rule on DNA
Evidence]
Page 476 of 525
REMEDIAL LAW
Note: The provisions of the Rules of Court
concerning the appreciation of evidence shall
apply suppletorily. [Sec. 7, Rule on DNA
Evidence]
e. Rules on evaluation of
reliability of the DNA testing
methodology
In evaluating the results of DNA testing, the
court shall consider the following:
1. The evaluation of the weight of matching
DNA evidence or the relevance of
mismatching DNA evidence;
2. The results of the DNA testing in the light
of the totality of the other evidence
presented in the case; and that
3. DNA results that exclude the putative
parent from paternity shall be conclusive
proof of non-paternity. If the value of the
Probability of Paternity is less than 99.9%,
the results of the DNA testing shall be
considered as corroborative evidence. If
the value of the Probability of Paternity is
99.9% or higher there shall be a
disputable presumption of paternity. [Sec.
9, Rule on DNA Evidence]
It is not enough to state that the child’s DNA
profile matches that of the putative father. A
complete match between the DNA profile of the
child and the DNA profile of the putative father
does not necessarily establish paternity. For
this reason, following the highest standard
adopted in an American jurisdiction, trial courts
should require at least 99.9% as a minimum
value of the Probability of Paternity (“W”) prior
to a paternity inclusion. W is a numerical
estimate for the likelihood of paternity of a
putative father compared to the probability of a
random match of two unrelated individuals.
Due to the probabilistic nature of paternity
inclusions, W will never equal to 100%.
[Herrera v. Alba, G.R. No. 148220 (2005)]
U.P. LAW BOC EVIDENCE
D. DOCUMENTARY
EVIDENCE
1. Meaning of Documentary
Evidence
Consist of writings, recordings, photographs, or
any material containing letters, words, sounds,
numbers, figures, symbols, or their equivalent,
or other modes of written expressions offered
as proof of their contents. [Sec. 2, Rule 130]
If offered for some other purpose, they
constitute object evidence.
Photographs include still pictures, drawings,
stored images, x-ray films, motion pictures or
videos. [Sec. 2, Rule 130]
Note: 2019 Amendments expanded the
definition of documentary evidence.
2. Requisites for Admissibility
a. The document must be relevant;
b. The evidence must be authenticated;
c. The document must be authenticated by a
competent witness;
d. The document must be formally offered in
evidence
[Riano 132, 2016 Ed.]
3. Original Document Rule
a. Meaning of the Rule
When the subject of inquiry is the contents of
a document, writing, recording, photograph, or
other record, no evidence is admissible other
than the original document itself [Sec. 3, Rule
130]
Note: Original document rule is a rule on
admissibility (competence). This rule replaced
the Best Evidence Rule.
Page 477 of 525
REMEDIAL LAW
b. When Not Applicable
Where the issue is only as to whether such
document was actually executed, or exists, or
on the circumstances relevant to or
surrounding its execution, the best evidence
rule (now original document rule) does not
apply and testimonial evidence is admissible.
Any other substitutionary evidence is likewise
admissible without need for accounting for the
original.
[Republic v. Gimenez, G.R. No. 174673
(2016)]
Affidavits and depositions are considered as
not being the best evidence, hence not
admissible if the affiants or deponents are
available as witnesses [2 Regalado 721, 2008
Ed., citing 4 Martin 82]
The best evidence rule (now original document
rule) does not apply to all types of evidence. It
does not comprehend object and testimonial
evidence. [Riano, 133, 2016 Ed.]
c. Meaning of Original Document
and Duplicate
Original—the document itself or any
counterpart intended to have the same effect
by a person executing or issuing it.
An “original” of a photograph includes the
negative or any print therefrom.
If data is stored in a computer or similar
device, any printout or other output
readable by sight or other means, shown to
reflect the data accurately, is an “original”.
[Sec. 4, Rule 130]
Duplicate—counterpart produced by:
a. the same impression as the original, or
from the same matrix;
b. means of photography, including
enlargements and miniatures;
c. mechanical or electronic recording;
U.P. LAW BOC EVIDENCE
d. chemical reproduction; or
e. other equivalent techniques which
accurately reproduce the original.
[Sec. 2, Rule 130]
General Rule: A duplicate is admissible to the
same extent as an original.
Exceptions:
1. a general question is raised as to the
authenticity of the original; or
2. in the circumstances, it is unjust or
inequitable to admit the duplicate in lieu of
the original.
[Sec. 4, Rule 130]
Note: 2019 Amendments made substantial
changes to Sec. 4, Rule 130
Carbon copies are deemed duplicate
(originals). [People v Tan, G.R. No. L-14257
(1959); Skunac v. Sylianteng, G.R. No. 205879
(2014)]
d. Secondary Evidence;
Summaries
The following are the exceptions to the original
document rule:
1. When the original is unavailable
a. When the original has been lost or
destroyed, or cannot be produced in court;
b. Upon proof of its execution or existence
and the cause of its unavailability; and
c. Without bad faith on the offeror’s part
What to present to prove contents (in this
order)
a. A copy;
b. A recital of its contents in some authentic
document; or
c. The testimony of witnesses
[Rule 130, Sec. 5]
Page 478 of 525
REMEDIAL LAW
In order that secondary evidence may be
admissible, there must be proof by satisfactory
evidence of:
1. due execution of the original;
2. loss, destruction, or unavailability of all
such originals; and
3. reasonable diligence and good faith in the
search for or attempt to produce the
original.
[Republic v. Marcos-Manotoc, G.R.
171701 (2012)]
The correct order of proof is existence,
execution, loss, and contents. [Republic v.
Cuenca, G.R. No. 198393 (2018)]
Due execution of the document should be
proved through the testimony of either:
a. the person or persons who executed it;
b. the person before whom its execution was
acknowledged; or
c. any person who was present and saw it
executed and delivered, or who, after its
execution and delivery, saw it and
recognized the signatures, or by a person
to whom the parties to the instruments had
previously confessed the execution thereof
[Director of Lands v. C.A., G.R. No. L-29575
(1971))
When more than one original copy exists, it
must appear that all of them have been lost,
destroyed, or cannot be produced in court
before secondary evidence can be given of any
one. A photocopy may not be used without
accounting for the other originals. [Citibank v.
Teodoro, G.R. No. 150905 (2003)].
The general rule concerning proof of a lost
instrument is, that reasonable search shall be
made for it in the place where it was last known
to have been, and, if such search does not
discover it, then inquiry should be made of
persons most likely to have its custody, or who
have some reasons to know of its
whereabouts. [Tan v. CA, G.R. No. L-56866
(1985)]
U.P. LAW BOC EVIDENCE
2. When the original is in the
custody or control of the
adverse party OR original
cannot be obtained by local
judicial processes or
procedures
What to present to prove contents
Same as when lost, destroyed, or cannot be
produced in court [Sec. 6, Rule 130]
3. When the contents of
documents, records,
photographs, or numerous
accounts are voluminous and
cannot be examined in court
without great loss of time, and
the fact sought to be established
from them is only the general
result of the whole
(“Summaries”)
What to present to prove contents
Chart, summary, or calculation of the contents
of such evidence
The originals shall be available for examination
or copying, or both, by the adverse party at a
reasonable time and place. The court may
order that they be produced in court. [Sec. 7,
Rule 130]
4. When the original is a public
record in the custody of a public
officer or is recorded in a public
office
What to present to prove contents
Certified copy issued by the public officer in
custody thereof [Sec. 8, Rule 130]
5. When original is outside the
jurisdiction of the court
When the original is outside the jurisdiction of
the court, secondary evidence is admissible.
[Regalado 784, 2008 Ed., citing PNB v. Olila,
G.R. No. L-8189 (1956), unreported]
Page 479 of 525
REMEDIAL LAW
4. Electronic Evidence
Scope
General Rule: The Rules on Electronic
Evidence (A.M. No. 01-7-01-SC) shall apply
whenever an electronic document or electronic
data message is offered or used in evidence
Exception: when otherwise provided [Sec. 1,
Rule 1, Rules on Electronic Evidence]
Cases covered
The Rules apply to all civil actions and
proceedings, as well as quasi-judicial and
administrative cases. [Sec. 2, Rule 1, Rules on
Electronic Evidence]
However, according to People v. Enojas [G.R.
No. 182835 (2010)], the Rules may also apply
to criminal cases.
a. Meaning of electronic evidence;
electronic data message
Electronic evidence—evidence, the use of
which is sanctioned by existing rules of
evidence, in ascertaining in a judicial
proceeding, the truth respecting a matter of
fact, which evidence is received, recorded,
transmitted, stored, processed, retrieved or
produced electronically [Sec. 3(u), Rule 1, IRR
of Cybercrime Prevention Act of 2012]
Electronic data message—information
generated, sent, received or stored by
electronic, optical or similar means [Sec. 1(g),
Rule 2, Rules on Electronic Evidence]
Electronic document—information or the
representation of information, data, figures,
symbols or other modes of written expression,
described or however represented, by which a
right is established or an obligation
extinguished, or by which a fact may be proved
and affirmed, which is received, recorded,
transmitted, stored, processed, retrieved or
produced electronically. It includes digitally
signed documents and any print- out or output,
U.P. LAW BOC EVIDENCE
readable by sight or other means, which
accurately reflects the electronic data message
or electronic document. For purposes of these
Rules, the term "electronic document" may be
used interchangeably with "electronic data
message". [Sec. 1(h), Rule 2, Rules on
Electronic Evidence]
Whenever a rule of evidence refers to the term
writing, document, record, instrument,
memorandum or any other form of writing, such
term shall be deemed to include an electronic
document as defined in these Rules. [Sec. 1,
Rule 3, Rules on Electronic Evidence]
Electronic signature— any distinctive mark,
characteristic and/or sound in electronic form,
representing the identity of a person and
attached to or logically associated with the
electronic data message or electronic
document or any methodology or procedure
employed or adopted by a person and
executed or adopted by such person with the
intention of authenticating, signing or
approving an electronic data message or
electronic document. For purposes of these
Rules, an electronic signature includes digital
signatures. [Sec. 1(j), Rule 2, Rules on
Electronic Evidence]
Digital signature— an electronic signature
consisting of a transformation of an electronic
document or an electronic data message using
an asymmetric or public cryptosystem such
that a person having the initial untransformed
electronic document and the signer's public key
can accurately determine:
a. whether the transformation was created
using the private key that corresponds to
the signer's public key; and
b. whether the initial electronic document had
been altered after the transformation was
made.
[Sec. 1(h), Rule 2, Rules on Electronic
Evidence]
Page 480 of 525
REMEDIAL LAW
Ephemeral electronic communication—
telephone conversations, text messages,
chatroom sessions, streaming audio,
streaming video, and other electronic forms of
communication the evidence of which is not
recorded or retained. [Sec. 1(k), Rule 2, Rules
on Electronic Evidence]
b. Probative value of electronic
documents or evidentiary
weight; method of proof
Factors that may be considered in assessing
evidentiary weight:
1. The reliability of the manner or method in
which it was generated, stored or
communicated, including but not limited to
input and output procedures, controls, tests
and checks for accuracy and reliability of
the electronic data message or document,
in the light of all the circumstances as well
as any relevant agreement;
2. The reliability of the manner in which its
originator was identified;
3. The integrity of the information and
communication system in which it is
recorded or stored, including but not limited
to the hardware and computer programs or
software used as well as programming
errors;
4. The familiarity of the witness or the
person who made the entry with the
communication and information system;
5. The nature and quality of the
information which went into the
communication and information system
upon which the electronic data message or
electronic document was based; or
6. Other factors which the court may
consider as affecting the accuracy or
integrity of the electronic document or
electronic data message
[Rule 1, Sec 7, Rules on Electronic
Evidence]
U.P. LAW BOC EVIDENCE
Method of proof
All matters relating to the admissibility and
evidentiary weight may be established by an
affidavit:
1. stating facts of direct personal knowledge
of the affiant or facts based on authentic
records; and
2. affirmatively showing the competence of
the affiant to testify on the matters
contained therein
[Sec. 1, Rule 9, REE]
The affiant shall be made to affirm the contents
of the affidavit in open court and may be cross-
examined as a matter of right [Sec. 2, Rule 9,
REE].
c. Authentication of electronic
documents and electronic
signatures
Burden of proof
The person seeking to introduce an electronic
document in any legal proceeding has the
burden of proving its authenticity in the manner
provided in this Rule. [Sec. 1, Rule 5, REE]
Manner of authentication of private
electronic document offered as authentic
a. by evidence that it had been digitally
signed by the person purported to have
signed the same;
b. by evidence that other appropriate
security procedures or devices as may
be authorized by the Supreme Court or by
law for authentication of electronic
documents were applied to the document;
or
c. by other evidence showing its integrity
and reliability to the satisfaction of the
judge.
[Sec. 2, Rule 5, REE]
Proof of electronically notarized document
A document electronically notarized in
accordance with the rules promulgated by the
Supreme Court shall be considered as a public
Page 481 of 525
REMEDIAL LAW
document and proved as a notarial document
under the Rules of Court. [Sec. 3, Rule 5, REE]
Manner of authentication of electronic
signature
a. By evidence that a method or process
was utilized to establish a digital signature
and verify the same;
b. By any other means provided by law; or
c. By any other means satisfactory to the
judge as establishing the genuineness of
the electronic signature.
[Sec. 2, Rule 6, REE]
d. Electronic documents and
hearsay rule
General Rule: Hearsay rule does not apply to:
1. A memorandum, report, record or data
compilation of acts, events, conditions,
opinions, or diagnoses
2. made by electronic, optical or other similar
means
3. at or near the time of or from transmission
or supply of information
4. by a person with knowledge thereof
5. kept in the regular course or conduct of a
business activity and
6. such was the regular practice to make the
memorandum, report, record, or data
compilation by electronic, optical or similar
means and
7. shown by the testimony of the custodian or
other qualified witnesses [Sec. 1, Rule 8,
REE]
Exception: The presumption may be
overcome by evidence of the untrustworthiness
of the source of information or the method or
circumstances of the preparation, transmission
or storage thereof. [Sec. 2, Rule 8, REE]
e. Audio, photographic, video and
ephemeral evidence
Audio, photographic and video evidence of
events, acts or transactions
U.P. LAW BOC EVIDENCE
1. Must be shown, presented or displayed to
the court; and
2. Shall be identified, explained or
authenticated by the person who made the
recording or by some other person
competent to testify on the accuracy
thereof [Sec. 1, Rule 11, REE]
Ephemeral electronic communications
1. Proven by the testimony of:
a. a person who was a party to the same;
or
b. has personal knowledge thereof
2. In the absence or unavailability of such
witnesses, other competent evidence may
be admitted
Recording of the telephone conversation or
ephemeral electronic communication
Same as audio, photo and video evidence
If recorded or embodied in an electronic
document, provisions of Rule 5 How Parol Evidence Can Be Introduced
(Authentication of electronic documents) shall
apply.
[Sec. 2, Rule 11, REE]
5. Parol Evidence Rule
Parol evidence
Any evidence aliunde, whether oral or written,
which is intended or tends to vary or contradict
a complete and enforceable agreement
embodied in a document [2 Regalado 730,
2008 Ed.].
a. Application of the Parol
Evidence Rule
General Rule
When the terms of an agreement (including
wills) have been reduced to writing, it is
considered as containing all the terms agreed
upon and there can be, as between the parties
and their successors in interest, no evidence of
such terms other than the contents of the
written agreement [Sec. 10, Rule 130]
Page 482 of 525
REMEDIAL LAW
The parol evidence rule forbids any addition to
or contradiction of the terms of a written
instrument by testimony or other evidence
purporting to show that, at or before the
execution of the parties' written agreement,
other or different terms were agreed upon by
the parties, varying the purport of the written
contract. [Felix Plazo Urban Poor Settlers v.
Lipat, G.R. No. 182409 (2017)]
Where not applicable
It does not apply when third parties are
involved or those not privy to the written
instrument in question and does not base a
claim or assent a right originating in the
instrument [Lechugas v. C.A., G.R. No. L-
39972 & L-40300 (1986)]
b. When Parol Evidence Can Be
Introduced
General rule: Ground/s for presenting parol
evidence is put in issue in a verified pleading
[Sec. 10, Rule 130]
Exception: If the facts in the pleadings all lead
to the fact that it is being put in issue then the
Parol Evidence exception may apply [Sps.
Paras v. Kimwa Corporation, G. R. No. 171601
(2015)]
In sum, two (2) things must be established for
parol evidence to be admitted:
1. That the existence of any of the four (4)
exceptions has been put in issue in a
party's pleading or has not been objected
to by the adverse party; and
2. That the parol evidence sought to be
presented serves to form the basis of the
conclusion proposed by the presenting
party. [Sps. Paras v. Kimwa Corporation,
G. R. No. 171601 (2015)]
U.P. LAW BOC EVIDENCE REMEDIAL LAW

When Can Parole Evidence Can Be

Introduced 2. FAILURE OF THE WRITTEN
1. Intrinsic ambiguity, mistake or imperfection AGREEMENT TO EXPRESS THE
in the written agreement TRUE INTENT AND
2. Failure of the written agreement to express AGREEMENT OF THE PARTIES
the true intent and agreement of the parties THERETO
thereto
3. Validity of the written agreement Purpose
4. Existence of other terms agreed to by the To enable court to ascertain the true intention
parties or their successors-in-interest after of the parties [Tolentino v. Gonzales Sy Chiam,
the execution of the written agreement. G.R. No. 26085 (1927)]

1. INTRINSIC AMBIGUITY, 3. VALIDITY OF THE WRITTEN

MISTAKE OR IMPERFECTION IN AGREEMENT
THE WRITTEN AGREEMENT
Parol evidence may be admitted to show:
Intrinsic ambiguity (latent)– writing admits of 1. True consideration of a contract
two constructions, both of which are in 2. Want/Illegality of consideration
harmony with the language used [Ignacio v. 3. Incapacity of parties
4. Fictitious/absolutely simulated contract
Rementeria, 99 Phil. 1054 (Unrep.)]
5. Fraud in inducement
[2 Regalado 733, 2008 Ed.]
The document is clear on its face, but matters
outside the agreement create the ambiguity
c. Distinction Between the
(Ex. “I bequeath this land to my cousin
George.” However, the testator has two
Original Document Rule and
cousins named George) [Riano, 161, 2016 Ed.] Parol Evidence Rule

Note: American jurisprudence also refers to a Original Document Parol Evidence

situation where an ambiguity partakes of the Rule Rule
nature of both patent and latent ambiguity, that
is, an intermediate ambiguity, because the Contemplates the Presupposes that the
words of the writing, though seemingly clear situation wherein the original document is
and with a settled meaning, is actually original writing is not available in court
equivocal and admits of two interpretations. available and/or
Parol evidence, in such a case is admissible to there is a dispute as
clarify the ambiguity [2 Regalado 734, 2008 to whether said
Ed., citing 20 Am. Jur 1011] (Ex. “dollar” may writing is the original
mean USD, CAD, HKD, etc.)
Prohibits the Prohibits the varying
introduction of of the terms of a
Mistake refers to mistake of fact which is
substitutionary written agreement
mutual to the parties [BPI v. Fidelity and Surety,
evidence in lieu of
Co., G.R. No. L-26743 (1927)]
the original
document regardless
Imperfection includes an inaccurate
of WON it varies the
statement in the agreement or incompleteness
contents of the
in the writing, or the presence of inconsistent
original
provisions [2 Regalado 732, 2008 Ed.]

Page 483 of 525

U.P. LAW BOC EVIDENCE REMEDIAL LAW

Applies to all kinds of Applies only to in force between the Philippines and the
writings, recordings, documents country of source
photographs, or any contractual in nature Note: This is a new addition to the original
material containing and to wills provision.
letters, words, 4. Public records, kept in the Philippines, of
sounds, numbers, private documents required by law to be
figures, symbols, or entered therein
their equivalent, or [Sec. 19, Rule 132]
other modes of
written expression A public document enjoys the presumption of
offered as proof of regularity. It is a prima facie evidence of the
their contents truth of the facts stated therein and a
conclusive presumption of its existence and
Can be invoked by Can be invoked only due execution. To overcome this presumption,
any party to an action when the there must be clear and convincing evidence
regardless of WON controversy is [Chua v. Westmont Bank, G.R. No. 182650
such party between the parties (2012)].
participated in the to the written
writing involved agreement, their A public document is self-authenticating and
privies or any party requires no further authentication in order to be
directly affected presented as evidence in court [Patula v.
thereby People, G.R. No. 164457 (2012)]
[2 Regalado 731, 2008 Ed.]
Private Documents
All other writings are private. [Sec. 20, Rule
6. Authentication and Proof of 130]
Documents
A private document is any other writing, deed,
a. Meaning of Authentication or instrument executed by a private person
without the intervention of a notary or other
Proving that the objects and documents person legally authorized by which some
presented in evidence are genuine and what it disposition or agreement is proved or set forth
purports to be. [Patula v. People, G.R. No. 164457 (2012)]

b. Classes of Documents c. When a Private Writing

Public Documents
1. Written official acts or records of the official
acts of the sovereign authority, official
bodies and tribunals, and public officers,
whether of the Philippines or of a foreign
country
2. Notarial documents (except last wills and
testaments)
3. Documents considered public documents
under treaties and conventions which are
Requires Authentication; Proof
of Private Writing
General rule: Before any private document
offered as authentic is received in evidence, its
due execution and authenticity must be proved
[Sec. 20, Rule 132]
How to Prove Due Execution and
Authenticity
1. By anyone who saw the document
executed or written;

Page 484 of 525

U.P. LAW BOC EVIDENCE
2. By evidence of the genuineness of the
signature or handwriting of the maker; or
3. By other evidence showing its due
execution and authenticity. [Sec. 20, Rule
132]
Before a private document is admitted in
evidence, it must be authenticated either by:
1. the person who executed it,
2. the person before whom its execution was
acknowledged,
3. any person who was present and saw it
executed, or
4. who after its execution, saw it and
recognized the signatures, or
5. the person to whom the parties to the
instruments had previously confessed
execution thereof
[Malayan Insurance v. Phil. Nails and Wires
Corp., G.R. No. 138084 (2002)]
If a private writing itself is inserted officially into
a public record, its record, its recordation, or its
incorporation into the public record becomes a
public document, but that does not make the
private writing itself a public document so as to
make it admissible without authentication
[Republic v Sandiganbayan, G.R. No. 188881
(2014)]
d. When Evidence of Authenticity
of a Private Writing is Not
Required
The requirement of authentication of a private
document is excused only in four instances,
specifically:
1. when the document is an ancient one
which is:
a. More than 30 years old;
b. Produced from a custody in which it
would naturally be found if genuine;
and
c. Unblemished by any alterations or
circumstances of suspicion [Sec. 21,
Rule 132]
Page 485 of 525
REMEDIAL LAW
2. when the genuineness and authenticity of
the actionable document have not been
specifically denied under oath by the
adverse party;
3. when the genuineness and authenticity of
the document have been admitted; or
4. when the document is not being offered as
genuine.
e. Genuineness of a Handwriting
1. By any witness who believes it to be the
handwriting of such person because:
a. He/she has seen the person write; or
b. He/she has seen writing purporting to
be his/hers upon which the witness has
acted or been charged, and has thus
acquired knowledge of the handwriting
of such person [Sec. 22, Rule 132]
2. A comparison by the witness or the court of
the questioned handwriting, and admitted
genuine specimens thereof or proved to be
genuine to the satisfaction of the judge
[Sec. 22, Rule 132]
3. Expert evidence
[Sec. 52, Rule 130]
f. Public Documents as Evidence;
Proof of Official Records
Documents consisting of entries in public
records made in the performance of a duty by
a public officer are prima facie evidence of the
facts therein stated. All other public documents
are evidence, even against a third person, of
the fact which gave rise to their execution and
of the date of the latter [Sec. 23, Rule 132]
Proof of official record referred to in Sec.
19(a), Rule 132
1. By an official publication thereof; or
2. By a copy of the document attested by the
officer having legal custody of the record,
or his/her deputy
a. If record is not kept in the Philippines:
accompany with a certificate that such
officer has the custody
U.P. LAW BOC EVIDENCE
i. If the foreign country is a
contracting party to a treaty or
convention to which the Philippines
is also a party, or it is considered a
public document under the treaty or
convention: certificate or its
equivalent shall be in the form
prescribed therein, subject to
reciprocity
ii. If not a contracting party: certificate
made by a secretary of the
embassy or legation, consul
general, consul, vice-consul, or
consular agent, or any officer in the
foreign service of the Philippines
stationed in the country where the
record is kept
1. Must be authenticated by the
seal of his/her office
The certificate shall not be required when a
treaty or convention between a foreign country
and the Philippines has abolished the
requirement or has exempted the document
itself [Sec 24, Rule. 132]
Note: Substantial amendment to Sec 24, Rule
132
g. Attestation of a Copy of a
Document or Record
1. Must state that the copy is a correct copy
of the original or a specific part thereof, as
the case may be
2. Must be under the official seal of the
attesting officer, if there be any, or if he/she
be the clerk of a court having a seal, under
the seal of such court
[Sec. 25, Rule 132]
h. Public Record of Private
Documents
1. By the original record; or
Page 486 of 525
REMEDIAL LAW
2. By a copy thereof, attested by the legal
custodian of the record, with an appropriate
certificate that such officer has the custody
[Sec. 27, Rule 132]
See Sec. 25, Rule 132
i. Proof of Lack of Record
1. Written statement
a. Signed by an officer having the custody
of an official record or by his/her deputy
b. Must state that after diligent search, no
record or entry of a specified tenor is
found to exist in the records of his/her
office
2. Certificate
a. Accompanying the written statement
b. Must state that that such officer has the
custody
[Sec. 28, Rule 132]
j. How a Judicial Record is
Impeached
Establish:
1. Want of jurisdiction in the court or judicial
officer;
2. Collusion between the parties; or
3. Fraud in the party offering the record, with
respect to the proceedings
[Sec. 29, Rule 132]
k. Proof of Notarial Documents
Notarial Documents
Every instrument duly acknowledged or proved
and certified as provided by law which may be
presented in evidence without further proof, the
certificate of acknowledgment being prima
facie evidence of the execution of the
instrument or document involved [Sec. 30,
Rule 132]
Such notarized documents are evidence, even
against 3rd persons, of the facts which gave
rise to their execution and of the date of
execution [Sec. 23, Rule 132]
U.P. LAW BOC EVIDENCE
Note: Last wills and testaments are not public
documents [Sec. 19, Rule 132]
l. Alterations in a Document
When Applicable and Whose Burden of
Proof
The party producing a document as genuine
which has been altered and appears to have
been altered after its execution, in a part
material to the question in dispute, must
account for the alteration. If he or she fails to
do that, the document shall not be admissible
in evidence [Sec. 31, Rule 132]
How to Account for Alteration
Party producing a document as genuine may
show that the alteration
1. Was made by another, without his/her
concurrence;
2. Was made with the consent of the parties
affected by it;
3. Was otherwise properly or innocently
made; or
4. Did not change the meaning or language of
the instrument.
[Sec. 31, Rule 132]
m. Documentary Evidence in an
Unofficial Language
Not admissible unless accompanied by a
translation into English or Filipino. Parties or
their attorneys are directed to have the
translation prepared before trial [Sec. 33, Rule
132]
Where such document, not so accompanied
with a translation in English or Filipino, is
offered in evidence and not objected to, either
by the parties or the court, it must be presumed
that the language in which the document is
written is understood by all, and the document
is admissible in evidence. [Heirs of Doronio v.
Heirs of Doronio, G.R. No. 169454 (2007)]
Page 487 of 525
REMEDIAL LAW
E. TESTIMONIAL
EVIDENCE
1. Qualifications of a Witness
Witness
A witness is one who, being present,
personally sees or perceives a thing, a
beholder, spectator or eyewitness. One who
testifies to what he has seen or heard, or
otherwise observed [Herrera citing Black’s Law
Dictionary]
Qualifications of a Witness
All persons who can perceive, and perceiving,
can make known their perception to others,
may be witnesses.
Religious/political belief, interest in the
outcome of the case, or conviction of a crime
unless otherwise provided by law, shall not be
ground for disqualification [Sec. 21, Rule 130]
Basic Qualifications of a Witness
a. He/she can perceive
i. Corollary to perception is that the
witness must have personal knowledge
of the facts surrounding the subject
matter of his testimony [Sec. 22, Rule
130]
b. He/she can make known his perception
i. This means that he/she must have the
ability to remember and communicate
the remembered perception
c. He/she must take an oath or affirmation
[Sec. 1, Rule 132]
d. He/she must not possess any of the
disqualifications
A deaf-mute is competent to be a witness so
long as he/she has the faculty to make
observations and he/she can make those
observations known to others [People v.
Aleman y Longhas, G.R. No. 181539 (2013)]
Parties declared in default are not disqualified
from taking the witness stand for non-
disqualified parties. The law does not provide
U.P. LAW BOC EVIDENCE
default as an exception [Marcos v. Heirs of
Navarro, G.R. No. 198240 (2013)]
There is no substantive or procedural rule
which requires a witness for a party to present
some form of authorization to testify as a
witness for the party presenting him or her
[AFP Retirement and Separation Benefits
System v. Republic, G.R. No. 188956 (2013)]
When determined
Qualification of a witness is determined at the
time the said witness is produced for
examination or at the taking of their
depositions.
With respect to children of tender years,
competence at the time of the occurrence is
also taken into account.
In case person is convicted of a crime
General rule: Not disqualified
The fact that a witness has been convicted of
felony is a circumstance to be taken into
consideration as affecting his character and
credibility [Enrile, et al. v. Roberto, et al. G.R.
No. L-42309 (1935)]
Exception: Otherwise provided by law, e.g.
under Art. 821 of the Civil Code, a person
convicted of any of the following crimes cannot
be a witness to a will:
a. Falsification of documents,
b. Perjury; or
c. False testimony
Competency of a Witness
One is qualified to take the witness stand if:
a. He is capable of perceiving at the time of
the occurrence of the fact; and
b. He came make his perception known
[Sec. 20, Rule 130]
Competency has reference to the basic
qualifications and the absence of
disqualifications of a witness to testify. [Riano,
185, 2016 Ed.]
Competency Presumed
A person who takes the witness stand is
presumed to possess the qualifications of a
Page 488 of 525
REMEDIAL LAW
witness. His competence may be questioned
by the other party by interposing an objection.
[Herrera]
Remedy for Errors or Questions on
Competence
Appeal, not certiorari, is the proper remedy for
the correction of any error as to the
competency of a witness committed by an
inferior court in the course of the trial [Icutanim
v. Hernandez, G.R. No. L-1709, June 8, 1948]
Credibility of a Witness
Credibility has nothing to do with the law or the
rules. It refers to the weight and trustworthiness
or reliability of the testimony. [Riano, 185, 2016
Ed.]
Questions concerning the credibility of a
witness are best addressed to the sound
discretion of the trial court as it is in the best
position to observe his demeanor and bodily
movements. [Llanto v. Alzona, 450 SCRA 288
(2005)]
2. Disqualifications of
Witnesses
EFFECT OF INTEREST IN THE SUBJECT
MATTER
A person is not disqualified by reason of his
interest in the subject matter.
Interest only affects credibility, not
competency.
EFFECT OF RELATIONSHIP
General rule: Mere relationship does not
impair credibility [People v. De Guzman, G.R.
130809 (2000)]
Exception:
To warrant rejection, it must be clearly shown
that:
a. Testimony was inherently improbable or
defective
b. Improper/evil motives had moved the
witness to incriminate falsely
[People v. Daen Jr., G.R. No. 112015 (1995)]
U.P. LAW BOC EVIDENCE
Note: Disqualification by reason of mental
incapacity or immaturity (previously Sec. 21,
Rule 130) and disqualification by reason of
death or insanity of adverse party aka Dead
Man’s Statute (previously Sec. 23, Rule 130)
have been deleted in the 2019 Revisions.
a. Disqualification by Reason of
Marriage
Also known as Marital Disqualification Rule
[Alvarez v. Ramirez, G.R. No. 143439 (2005)]
or Spousal Immunity
Elements
1. During their marriage
i. The marriage must be valid and
existing at the time of the offer of the
testimony
2. The husband or the wife cannot testify
against the other
i. The “other” spouse must be a party to
the action, either as a plaintiff or
defendant
ii. Note: 2019 Revision removed the
words “for or”
3. Without the consent of the affected spouse
[Sec. 23, Rule 130]
Except: Spouse may testify against the other
even without the consent of the latter
1. In a civil case by one against the other; or
2. In a criminal case for a crime committed by
one against the other or the latter's direct
descendants/ascendants [Sec. 23, Rule
130]
Rationale
1. There is identity of interests between
husband and wife;
2. If one were to testify against the other,
there is a consequent danger of perjury;
3. Policy of the law is to guard the security
and confidence of private life, and to
prevent domestic disunion and
unhappiness; and
4. Where there is want of domestic tranquility,
there is danger of punishing one spouse
through the hostile testimony of the other
[Alvarez v. Ramirez, G.R. No. 143439 (2005)]
Page 489 of 525
REMEDIAL LAW
Duration
General rule: During their marriage [Sec. 23
Rule 130]
Exception: Where the marital and domestic
relations are so strained that there is no more
harmony to be preserved nor peace and
tranquility which may be disturbed, the reason
based upon such harmony and tranquility fails.
In such a case, identity of interests disappears,
and the consequent danger of perjury based on
that identity is non-existent [Alvarez v.
Ramirez, G.R. No. 143439 (2005)]
Scope of Rule
The rule also includes utterance as to facts or
mere production of documents. It does not only
prevent disclosure of matters communicated in
nuptial confidence but is an absolute
prohibition against the spouse’s testifying to
any facts affecting the other however these
facts may have been acquired. [Herrera]
Waiver of Disqualification
If one spouse imputes the commission of a
crime against the other, the latter may testify
against the former. [People v. Francisco, G.R.
No. L-568 (1947)]
Spouses as Co-Accused
The other cannot be called as an adverse party
witness under this Rule
b. Disqualifications by Reason of
Privileged Communications;
Rule on Third Parties
Privilege
A privilege is a rule of law that, to protect a
particular relationship or interest, either permits
a witness to refrain from giving testimony he
otherwise could be compelled to give, or
permits someone usually one of the parties, to
prevent the witness from revealing certain
information. [Herrera]
Privilege may only be invoked by the persons
protected thereunder. It may also be waived by
the same persons, either impliedly or
expressly.
U.P. LAW BOC EVIDENCE REMEDIAL LAW

Note: this Section was substantially amended 3. Any conduct constructed as implied
in the 2019 Revised Rules consent.
[Herrera]
i. Husband and Wife
The objection to the competency of the spouse
Also known as marital privilege must be made when he or she is first offered
as a witness. The incompetency is waived by
Rationale failure to make a timely objection to the
Confidential nature of the privilege; to preserve admission of spouse’s testimony [People v.
marital and domestic relations Pasensoy, G. R. No. 140634 (2002)]

Elements Marital
1. The husband or the wife Marital Privilege
Disqualification
2. During or after the marriage [Sec. 24(a)]
[Sec. 22]
3. Cannot be examined One spouse should Neither of the
4. Without the consent of the other be a party to the spouses need to be
5. As to any communication received in
case; a party;
confidence by one from the other during
the marriage Applies only if the
[Sec. 24(a), Rule 130] marriage is existing Does not cease even
at the time the after the marriage is
Except: Spouse may testify for or against the testimony is offered; dissolved; and
other even without the consent of the latter and
1. In a civil case by one against the other, or Constitutes a total Prohibition is limited
2. In a criminal case for a crime committed by prohibition on any to testimony on
one against the other or the latter’s direct testimony against confidential
descendants or ascendants. the spouse of the communications
[Sec. 24(a), Rule 130] witness between spouses
A widow of a victim allegedly murdered may
ii. Attorney and Client
testify as to her husband’s dying declaration as
to how he died since the same was not
Elements
intended to be confidential [US v. Antipolo,
As regards an attorney or any person
G.R. No. L-13109 (1918)]
reasonably believed by the client to be
licensed to engage in the practice of law
Scope: “Any communication”
1. Without the consent of his client
Includes utterances, either oral or written, or
2. Cannot be examined as to
acts [Herrera]
a. Any communication made by the client
to him/her, or
When not applicable
b. His/her advice given thereon in the
1. When the communication was not intended
course of, or with a view to,
to be kept in confidence
professional employment
2. When the communication was made prior
[Sec 24(b), Rule 130]
to the marriage
3. Waiver of the privilege
As regards an attorney’s secretary,
[Herrera]
stenographer, clerk, or other persons
assisting the attorney
Waiver
1. Without the consent of the client and
1. Failure of the spouse to object; or
his/her employer
2. Calling spouse as witness on cross
2. Cannot be examined
examination

Page 490 of 525

U.P. LAW BOC EVIDENCE
3. Concerning any fact the knowledge of
which has been acquired in such capacity
[Sec. 24(b), Rule 130]
Subject-matter of the privilege
1. Communications
2. Observations by the lawyer (regardless of
medium of transmission which may include
oral or written words and actions)
3. Tangible evidence delivered to a lawyer
4. Documents entrusted to a lawyer
[Herrera]
Exceptions
1. Furtherance of crime or fraud
a. If the services or advice of the lawyer
were sought or obtained
b. To enable or aid anyone
c. To commit or plan to commit
d. What the client knew or reasonably
should have known to be a crime or
fraud [Sec. 24(b)(i), Rule 130]
2. Claimants through same deceased
client
a. As to communication relevant to an
issue between parties who
b. Claim through the same deceased
client
c. Regardless of whether the claims are
by testate, intestate, or inter vivos
transaction [Sec. 24(b)(ii), Rule 130]
3. Breach of duty by lawyer or client
a. As to communications relevant to an
issue of breach of duty
i. By the lawyer to his/her client; or
ii. By the client to his/her lawyer [Sec.
24(b)(iii), Rule 130]
4. Document attested by the lawyer
a. As to communication relevant to an
issue concerning an attested document
b. The lawyer is an attesting witness [Sec.
24(b)(iv), Rule 130]
5. Joint clients
a. As to a communication relevant to a
matter of common interest between
two or more clients
b. The communication was made by any
of them to
c. The lawyer retained or consulted in
common
Page 491 of 525
REMEDIAL LAW
d. Communication is offered in an action
between any of the clients
e. Neither expressly agreed otherwise
[Sec. 24(b)(v), Rule 130]
Identity of Client
General rule: The attorney-client privilege may
not be invoked to refuse to divulge the identity
of the client.
Exceptions:
1. When a strong probability exists that
revealing the name would implicate that
person in the very same activity for which
he sought the lawyer’s advice;
2. When disclosure would open the client to
liability;
3. When the name would furnish the only link
that would form the chain of testimony
necessary to convict
[Regala v. Sandiganbayan, G.R. No. 105938
and G.R. No. 108113 (1996)]
Duration of the privilege
In the absence of a statute, the privilege is
permanent. It may even be claimed by a client’s
executor or administrator after the client’s
death [Herrera]
iii. Physician and Patient
Elements
1. A physician, psychotherapist or person
reasonably believed by the patient to be
authorized to practice medicine or
psychotherapy
a. Psychotherapist:
i. Person licensed to practice
medicine engaged in the diagnosis
or treatment of a mental or
emotional condition; or
ii. A person licensed as a
psychologist by the government
while similarly engaged
2. In a civil case
a. Note: the privilege cannot be claimed in
a criminal case because the interest of
the public in a criminal prosecution
should be deemed more important than
the secrecy of the communication
[Riano, 211, 2016 Ed.]
U.P. LAW BOC EVIDENCE
3. Without the consent of the patient
4. Cannot be examined as to
a. Any confidential communication made
between the patient and his/her
physician or psychotherapist
b. For the purpose of diagnosis or
treatment
i. Of the patient’s physical, mental, or
emotional condition
ii. Including drug or alcohol addiction
Note: this privilege also applies to persons,
including members of the patient’s family, who
have participated in the diagnosis or treatment
of the patient under the direction of the
physician or psychotherapist. [Sec. 24(c), Rule
130]
Physician-patient relationship need not be
entered into voluntarily.
When not applicable
1. Communication was not given in
confidence
2. Communication was irrelevant to the
professional employment
3. Communication was made for an unlawful
purpose
4. Communication was intended for the
commission/concealment of a crime
5. Communication was intended to be made
public/divulged in court
6. When there was a waiver
7. When the doctor was presented as an
expert witness and only hypothetical
problems were presented to him [Lim v.
C.A., G.R. No. 91114 (1992)]
Waiver
1. Express waiver – may only be done by the
patient
2. Implied waiver
a. By failing to object
b. When the patient testifies
c. A testator procures an attending doctor
to subscribe his will as an attesting
witness
d. Disclosure of the privileged information
either made or acquiesced by the
privilege holder before trial
Page 492 of 525
REMEDIAL LAW
e. Where the patient examines the
physician as to matters disclosed in a
consultation
f. Also check Rule 28 on Physical and
Mental Examination [Rules on Civil
Procedure]
[Herrera]
Physician allowed to testify as an expert
A doctor is allowed to be an expert witness
when he does not disclose anything obtained
in the course of his examination, interview and
treatment of a patient. [Lim v. C.A., G.R. No.
91114 (1992)]
Autopsical information
If the information was not acquired by the
physician in confidence, he may be allowed to
testify thereto. But if the physician performing
the autopsy was also the deceased’s
physician, he cannot be permitted either
directly or indirectly to disclose facts that came
to his knowledge while treating the living
patient [Herrera, citing US Case Travelers’
Insurance Co. v. Bergeron]
Duration of privilege
The privilege survives the death of the patient.
[Riano, 212, 16th Ed.]
Hospital Records during discovery
procedure
To allow the disclosure during discovery
procedure of the hospital records would be to
allow access to evidence that is inadmissible
without the patient’s consent. Disclosing them
would be the equivalent of compelling the
physician to testify on privileged matters he
gained while dealing with the patient, without
the latter’s prior consent. [Chan v. Chan, G.R.
No. 179786 (2013)]
iv. Priest and Penitent
Elements
1. A minister or priest or person reasonably
believed to be so
2. Without the consent of the affected person
3. Cannot be examined as to any
a. communication; or
b. confession made to; or
U.P. LAW BOC EVIDENCE REMEDIAL LAW

c. advice given by him/her from communication that landed in the hands

4. in his/her professional character of third parties.
5. in the course of discipline enjoined by the
church to which the minister or priest c. Parental and Filial Privilege
belongs Rule
[Sec. 24(d), Rule 130]
Art. 315, CC
v. Public Officers Sec. 25,
Art. 215, FC (repealed
Rule 130
by FC)
Elements
1. A public officer No person
2. During or after his/her tenure shall be
3. Cannot be examined as to communications compelled to
made to him/her in official confidence testify No
No
4. When the court finds that the public interest against descendant
descendant
would suffer by the disclosure his/her shall be
can be
[Sec. 24(e), Rule 130] 1. Parents compelled,
compelled,
2. other in a criminal
Elements of “presidential communications in a criminal
direct case, to
privilege” case, to
ascenda testify
1. Must relate to a “quintessential and non- testify
nts against his
delegable presidential power;” against his
3. children parents and
2. Must be authored or “solicited and parents and
or grandparent
received” by a close advisor of the ascendants
President or the President himself; and 4. other s
3. Privilege may be overcome by a showing direct
of adequate need such that the information descend
sought “likely contains important evidence” ants
and by the unavailability of the information Except when
Except when
elsewhere [Neri v. Senate, G.R. No. such
180643 (2008)] such
testimony is
testimony is
indispensabl
Purpose indispensabl
e in a crime
The privilege is not intended for the protection e in a crime
1. against
of public officers but for the protection of the 1. against
the NONE
public interest. When no public interest would that person
descend
be prejudiced, this privilege cannot be invoked or
[Banco Filipino v. Monetary Board, G.R. No. ant or
2. by one
70054 (1986)). 2. by one
parent
parent
against the
Rule on Third Parties against
other.
The communication shall remain privileged, the other
even in the hands of a third person who may
have obtained the information, provided that Applicability
the original parties to the communication took The rule is applied to both civil and criminal
reasonable precaution to protect its cases [Herrera]
confidentiality. [Sec. 24, Rule 130 (last par.)]
The privilege cannot apply between
Note: This amendment is a stark contrast from stepmothers and stepchildren because the rule
the previous rule which removes the privilege applies only to direct ascendants and
descendants, a family tie connected by a

Page 493 of 525

U.P. LAW BOC EVIDENCE
common ancestry. [Lee v. C.A., G.R. No.
177861 (2010)]
A child can waive the filial privilege and choose
to testify against his father. The rule refers to a
privilege not to testify, which can be invoked or
waived like other privileges. [People v.
Invencion y Soriano, G.R. No. 131636 (2003)]
d. Trade Secrets
General Rule: A person cannot be compelled
to testify about any trade secret
Except: the non-disclosure will conceal fraud
or otherwise work injustice
When disclosure is directed, the court shall
take protective measures, as required by
1. the interests of the owner of the trade
secret;
2. the interests of the parties; and
3. the furtherance of justice
[Sec. 26, Rule 130]
Note: This is a new rule.
OTHER PRIVILEGED COMMUNICATION
NOT IN THE RULES OF COURT
1. Newsman’s Privilege
General rule: Publisher, editor or duly
accredited reporter of any newspaper,
magazine or periodical of general
circulation cannot be compelled to reveal
the source of any news-report or
information appearing in said publication
which was related in confidence to such
publisher, editor or reporter
Exception: Court or a House/Committee of
Congress finds that such revelation is
demanded by security of the State
Note: This is without prejudice to his liability
under the civil and criminal laws
[R.A. 53, as amended by R.A. 1477]
Page 494 of 525
REMEDIAL LAW
2. Information in Conciliation Proceedings
All information and statements made at
conciliation proceedings shall be treated as
privileged communications [Art. 233, Labor
Code]
3. Data Privacy Act
Personal information controllers may
invoke the principle of privileged
communication over privileged information
that they lawfully control or process.
Subject to existing laws and regulations,
any evidence gathered on privileged
information is inadmissible [Sec. 15, RA
10173]
4. Food and Drug Administration Act
Prohibits the use of a person to his own
advantage, or revealing, other than to the
Secretary of Health or officers or
employees of the Department of Health or
to the courts when relevant in any judicial
proceeding under this Act, any information
acquired under authority Board of Food
Inspection and Board of Food and Drug, or
concerning any method or process which
as a trade secret is entitled to protection
[Secs. 9, 11 (f) and 12, RA 3720]
3. Examination of a Witness
Shall be done
a. in open court, and
b. under oath or affirmation.
Answers shall be given orally, unless the
a. witness is incapacitated to speak, or
b. question calls for a different mode of
answer
[Sec. 1, Rule 132]
Proceedings to be recorded, including
a. the questions propounded to a witness and
his answers thereto
b. the statements made by the judge or any of
the parties, counsel, or witnesses with
reference to the case
by means of shorthand or stenotype or by other
means of recording found suitable by the court
[Sec. 2, Rule 132]
U.P. LAW BOC EVIDENCE
Transcript deemed prima facie correct
A transcript of the record of the proceedings
made by the official stenographer, stenotypist
or recorder and certified as correct by him shall
be deemed prima facie a correct statement of
such proceedings [Sec. 2, Rule 132]
Exclusion and separation of witnesses
The court, motu proprio or upon motion, shall
order witnesses excluded so that they cannot
hear the testimony of other witnesses
However, this rule does NOT AUTHORIZE
exclusion of:
a. a party who is a natural person;
b. a duly designated representative of a
juridical entity which is a party to the case;
c. a person whose presence is essential to
the presentation of the party’s cause; or
d. a person authorized by a statute to be
present.
The court may also cause witnesses to be kept
separate and to be prevented from conversing
with one another, directly or through
intermediaries, until all shall have been
examined. [Sec. 15]
a. Rights and Obligations of a
Witness
RIGHTS
1. To be protected from irrelevant, improper,
or insulting questions, and from harsh or
insulting demeanor;
2. Not to be detained longer than the interests
of justice require;
3. To only be examined as to matters
pertinent to the issue;
4. Not to give an answer which will tend to
subject him/her to a penalty for an offense
a. Unless: otherwise provided by law
Example of this right: Sec. 8, R.A. 1379 and
other immunity statutes which grant the
witness immunity from criminal prosecution
for offenses admitted
5. Not to give an answer which will tend to
degrade his/her reputation
a. Exceptions:
Page 495 of 525
REMEDIAL LAW
i. the answer is the very fact in issue;
ii. the answer is a fact from which the
fact in issue would be presumed
b. Exception to the exception: he/she
must answer to the fact of his/her
previous final conviction for an offense
[Sec. 3, Rule 132]
OBLIGATION
A witness must answer questions, although
his/her answer may tend to establish a claim
against him/her. [Sec. 3, Rule 132]
One-Day Examination of Witness Rule
A witness has to be fully examined in one (1)
day only. It shall be strictly adhered to subject
to the courts' discretion during trial on whether
or not to extend the direct and/or cross-
examination for justifiable reasons. [A.M. No.
03-1-09-SC]
b. Order in the Examination of an
Individual Witness
1. Direct examination by the proponent;
2. Cross-examination by the opponent;
3. Re-direct examination by the proponent;
4. Re-cross examination by the opponent.
[Sec. 4, Rule 132]
Direct examination — examination-in-chief of
a witness by the party presenting him/her on
the facts relevant to the issue [Sec. 5, Rule
132]
Cross-examination — the witness may be
cross examined by the adverse party on any
relevant matter with sufficient fullness and
freedom
• Purpose: to test the witness’ accuracy,
truthfulness and freedom from interest or
bias, or the reverse; and to elicit all
important facts bearing upon the issue
[Sec. 6, Rule 132]
Right to cross-examination
Cross-examination is the most reliable and
effective way known of testing the credibility
and accuracy of testimony. This is an essential
element of due process. [Herrera, citing Alford
v. US (1931)]
U.P. LAW BOC EVIDENCE
The right to cross-examine under the
constitution is superior to technical rules on
evidence. [Herrera, citing People v. Valero,
G.R. No. L-45283-84 (1982)]
Effect of denial of right to cross-examine
Most courts require that the testimony given on
direct examination be stricken off – provided
the unavailability of the witness is through no
fault of the party seeking to cross-examine.
[Herrera]
Cross-examination must be completed or
finished. When cross-examination is not and
cannot be done or completed due to causes
attributable to the party offering the witness,
the uncompleted testimony is thereby rendered
incompetent. [Herrera, citing Ortigas, Jr. v.
Lufthansa German Airlines, G.R. No. L-28773
(1975)]
Re-direct examination—re-examination of
the witness by the party calling him/her
• Purpose: to explain or supplement his/her
answers given during the cross-
examination
• Questions on matters not dealt with during
the cross-examination may be allowed by
the court in its discretion. [Sec. 7, Rule 132]
Re-cross-examination — re-cross-
examination of the witness by the adverse
party on matters stated in his/her re-direct and
on other matters allowed by the court in its
discretion [Sec. 8, Rule 132]
Recalling the witness
After examination by both sides has been
concluded, the witness cannot be recalled
without leave of court. [Sec. 9, Rule 132]
Why conducted
1. Particularly identified material points were
not covered in cross-examination
2. Particularly described vital documents
were not presented to the witness
3. Cross-examination was conducted in so
inept a manner as to result in a virtual
absence thereof
[People v. Rivera, G.R. No. 98376 (1991)]
Page 496 of 525
REMEDIAL LAW
c. Leading and Misleading
Questions
Leading question: A question which suggests
to the witness the answer which the examining
party desires
General rule: Not allowed
Except:
a. On cross examination;
b. On preliminary matters;
c. When there is difficulty in getting direct and
intelligible answers from a witness who is
ignorant, or a child of tender years, or is of
feeble mind, or a deaf-mute;
d. Of an unwilling or hostile witness; or
e. Of a witness who is an adverse party or an
officer, director, or managing agent of a
public or private corporation or of a
partnership or association which is an
adverse party
[Sec. 10, Rule 132]
Misleading question: One which assumes as
true a fact not yet testified to by the witness, or
contrary to that which he/she has previously
stated. It is not allowed. [Sec. 10, Rule 132]
d. Impeachment of Witness
i. Adverse party’s witness
a. By contradictory evidence;
b. By evidence that his/her general reputation
for truth, honesty or integrity is bad;
c. By evidence that he/she has made at other
times statements inconsistent with his
present testimony
But NOT by evidence of particular wrongful
acts, EXCEPT that it may be shown by the
examination of the witness, or the record of the
judgment, that he/she has been convicted of an
offense.
[Sec. 11, Rule 132]
U.P. LAW BOC EVIDENCE
ii. By evidence of conviction of crime
a. By evidence that he/she has been
convicted by final judgment of a crime:
i. Punishable by a penalty in excess of
one year; or
ii. Involving moral turpitude,
regardless of penalty
HOWEVER, evidence of conviction is not
admissible if the conviction has been subject
of an amnesty or annulment of the conviction.
[Sec. 12, Rule 132]
Note: This is a new rule.
iii. Own witness
Party may not impeach his own witness
EXCEPT with respect to
a. An unwilling or hostile witness; or
b. A witness who is an adverse party or an
officer, director, or managing agent of a
public or private corporation or of a
partnership or association which is an
adverse party
When witness considered unwilling or
hostile
Only if so declared by the court upon adequate
showing of his/her
a. adverse interest
b. unjustified reluctance to testify, or
c. having misled the party into calling him/her
to the witness stand
How impeached: The unwilling or hostile
witness so declared, or the witness who is an
adverse party, may be impeached by the party
presenting him/her in all respects as if he/she
had been called by the adverse party, except
by evidence of his bad character. He/she
may also be impeached and cross-examined
by the adverse party, but such cross-
examination must only be on the subject matter
of his examination-in-chief.
[Sec. 13, Rule 132]
Page 497 of 525
REMEDIAL LAW
iv. How the witness is impeached by
evidence of inconsistent
statements
a. The statements must be related to him/her,
with the circumstances of the times and
places and the persons present, and
b. He/she must be asked whether he/she
made such statements, and if so, allowed
to explain them.
c. If the statements be in writing, they must be
shown to the witness before any question
is put to him/her concerning them
[Sec. 14, Rule 132]
e. Referral of Witness to
Memorandum
When witness may refer to memorandum
a. A witness may be allowed to refresh
his/her memory respecting a fact
1. by anything written or recorded
2. by himself/herself or under his/her
direction
3. at the time when the fact occurred, or
immediately thereafter, or at any other
time when the fact was fresh in his/her
memory and
4. he/she knew that the same was
correctly written or recorded
5. the writing or record must be produced
and may be inspected by the adverse
party, who may, if he/she chooses,
cross-examine the witness upon it, and
may read it in evidence.
b. A witness may also testify from such a
writing or record, though he/she retain no
recollection of the particular facts, if
he/she is able to swear that the writing or
record correctly stated the transaction
when made; but such evidence must be
received with caution.
[Sec. 16, Rule 132]
When part of transaction, writing or record
given in evidence, the remainder
admissible.
a. When part of an act, declaration,
conversation, writing or record is given in
evidence by one party, the whole of the
U.P. LAW BOC EVIDENCE
same subject may be inquired into by the
other
b. When a detached act, declaration,
conversation, writing or record is given in
evidence, any other act, declaration,
conversation, writing or record necessary
to its understanding may also be given in
evidence
[Sec. 17, Rule 132]
Right to inspect writing shown to witness
Whenever a writing is shown to a witness, it
may be inspected by the adverse party [Sec.
18, Rule 132]
f. Examination of a child witness
(A.M. No. 004-07-SC)
i. Applicability of the rule
Unless otherwise provided, this rule shall
govern the examination of a child witness who
are:
1. victims of a crime;
2. accused of a crime; and
3. witnesses to a crime
Where applicable: all criminal and non-criminal
proceedings involving child witnesses [Sec. 1,
Rule on Examination of a Child Witness]
ii. Meaning of “child witness"
Child witness—any person who at the time of
giving testimony is:
1. below the age of 18 years; or
2. in child abuse cases, may be over 18 but is
found by the court unable to fully take care
of himself or protect himself from abuse,
neglect, cruelty, exploitation, or
discrimination because of a physical or
mental disability or condition
[Sec. 4 (a), Rule on Examination of a Child
Witness]
iii. Competency of a child witness
General Rule: Every child is presumed
qualified to be a witness.
Page 498 of 525
REMEDIAL LAW
Exception: the court shall conduct a
competency examination of a child, motu
proprio or on motion of a party when it finds that
substantial doubt exists regarding the child’s
ability to:
1. Perceive
2. Remember
3. Communicate
4. Distinguish from falsehood, or
5. Appreciate the duty to tell the truth in court
[Sec. 6]
Proof of necessity
The party seeking a competency examination
must present proof of its necessity. The age of
the child, by itself, is not a sufficient basis. [Sec.
6(a)]
Burden of proof lies with the party challenging
the child’s competence. [Sec. 6(b)]
Conduct of examination
1. Conducted only by the judge
2. Counsel for the parties may submit
questions to the judge
a. It is discretionary upon the judge if he
will ask the child the submitted
questions [Sec. 6(d)]
Developmentally appropriate questions
The questions asked shall:
1. be appropriate to the age and
developmental level of the child;
2. not be related to the issues at trial; and
3. focus on the ability of the child to
remember, communicate, distinguish
between truth and falsehood, and
appreciate the duty to testify truthfully.
[Sec. 69(d)]
Continuing duty to assess competence
The court has the duty of continuously
assessing the competence of the child
throughout his testimony [Sec. 6(f)]
iv. Examination of a child witness
Done in open court
General Rule: Given orally
U.P. LAW BOC EVIDENCE
Exception: If the witness is incapacitated to
speak or the question calls for a different mode
of answer
[Sec. 8]
v. Live-link TV testimony of a child
witness
The prosecutor, counsel or guardian ad litem
may apply for an order that the testimony of the
child be taken in a room outside the courtroom
and be televised to the courtroom by live-link
television.
Prerequisite for applying: the guardian ad
litem shall consult the prosecutor or counsel
and defer to their judgment regarding the
necessity of applying for an order.
If the guardian is convinced that the decision of
the prosecutor or counsel not to apply will
cause the child serious emotional trauma, he
himself may apply for the order. [Sec. 25(a)]
When applied for: at least 5 days before the
trial date UNLESS the court finds on the record
that the need for such an order was not
reasonably foreseeable [Sec. 25(a)]
The court shall issue an order granting or
denying the use of live-link television and
stating the reasons therefor. [Sec. 25(e)]
When granted: if there is a substantial
likelihood that the child would suffer trauma
from testifying in the presence of the accused,
his counsel or the prosecutor
a. the trauma must be of a kind which would
impair the completeness or truthfulness of
the testimony of the child [Sec. 25(f)]
The testimony of the child shall be preserved
on videotape, digital disc, or other similar
devices which shall be made part of the court
record and shall be subject to a protective order
as provided in Sec. 31(b). [Sec. 25(h)]
Page 499 of 525
REMEDIAL LAW
vi. Videotaped deposition of a child
witness
The prosecutor, counsel or guardian ad litem
may apply for an order that a deposition be
taken of the testimony of the child and that it be
recorded and preserved on videotape.
Prerequisite for applying: Same as
application for live-link TV testimony in Sec.
25(a)
When granted: If the court finds that the child
will not be able to testify in open court at trial
The judge shall preside at the videotaped
deposition of the child.
Objection to deposition testimony or evidence,
or parts thereof, and the grounds of objection
shall be stated and ruled upon at the time of the
taking of the deposition.
Who else is allowed in the proceeding:
a. prosecutor
b. defense counsel
c. guardian ad litem
d. accused, subject to subsection (e)
1. if there is evidence that the child is
unable to testify in the physical
presence of the accused, the court may
direct the latter to be excluded from the
room where the deposition is
conducted
2. in case of exclusion of the accused, the
court shall order the testimony of the
child to be taken by live-link TV in
accordance with Sec. 25
3. it is not necessary for the child to be
able to view an image of the accused
e. other persons whose presence is
determined by the court to be necessary for
the welfare and well-being of the child
f. one or both of his support persons, the
facilitator and interpreter, if any
g. court stenographer; and
h. persons necessary to operate the
videotape equipment [Sec. 27(c)]
U.P. LAW BOC EVIDENCE
Rights of the accused during trial, especially
the right to counsel and confront and cross-
examine the child, shall NOT BE VIOLATED
during the deposition.
If, at the time of the trial, the court finds that the
child is unable to testify for a reason stated in
Sec. 25(f) of this Rule or is unavailable for any
reason described in Rule 23, Sec 4(c) of the
1997 Rules of Civil Procedure, the court may
admit into evidence the videotaped deposition
of the child in lieu of his testimony at the trial.
[Sec. 27]
vii. Hearsay exception in child abuse
cases
Applicability: Any criminal and non-criminal
proceeding
A statement made by a child describing any act
or attempted act of child abuse, not otherwise
admissible under the hearsay rule, may be
admitted in evidence subject to the following
rules:
1. Before the hearsay statement may be
admitted, its proponent shall make known
to the adverse party the intention to offer
such statement and its particulars
a. Reason: to provide him a fair
opportunity to object
b. if the child is available: the court shall,
upon motion of the adverse party,
require the child to be present at the
presentation of the hearsay statement
for cross-examination
c. if the child is unavailable: the fact of
unavailability must be proved by the
opponent [Sec. 28(a)]
2. The court shall consider the time, content
and circumstances of the hearsay
statement which provide sufficient indicia
of reliability
a. factors to consider:
i. motive to lie
ii. general character of declarant child
iii. whether more than one person
heard the statement
iv. whether the statement was
spontaneous
Page 500 of 525
REMEDIAL LAW
v. timing of the statement and the
relationship between the declarant
child and witness
vi. cross-examination could not show
the lack of knowledge of the
declarant child
vii. possibility of faulty recollection of
the declarant child is remote
viii. the circumstances surrounding the
statement are such that there is no
reason to suppose the declarant
child misrepresented the
involvement of the accused [Sec.
28(b)]
When a child is considered unavailable:
a. He/she is deceased, suffers from mental
infirmity, lack of memory, mental illness, or
will be exposed to severe psychological
injury; or
b. He/she is absent from the hearing and the
proponent of his statement has been
unable to procure his attendance by
process or other reasonable means [Sec.
28(c)]
Condition for admissibility if child is
unavailable: His/her hearsay testimony must
be corroborated by other admissible evidence
[Sec. 28(d)]
viii. Sexual abuse shield rule
General Rule: The following evidence is
inadmissible in any criminal proceeding
involving alleged child sexual abuse:
1. Evidence offered to prove that the alleged
victim engaged in other sexual behavior;
and
2. Evidence to prove the sexual
predisposition of the alleged victim
Exception: Evidence of specific instances of
sexual behavior by the alleged victim to prove
that a person other than the accused was
the source of the semen, injury, or other
physical evidence shall be ADMISSIBLE
U.P. LAW BOC EVIDENCE
Requirements for party intending to offer
such evidence:
1. Written motion filed at least 15 days before
trial, specifically describing the evidence
and stating the purpose for which it is
offered
a. Exception: if the court, for good cause,
requires a different time for filing or
permits filing during trial
2. Motion served on all parties and the
guardian ad litem at least 3 days before the
hearing of the motion
Hearing necessary
Before admitting such evidence, the court must
conduct a hearing in chambers and afford the
child, his/her guardian ad litem, the parties, and
their counsel a right to attend and be heard.
The motion and the record of the hearing must
be sealed and remain under seal and protected
by a protective order.
The child shall not be required to testify at the
hearing in chambers EXCEPT if he consents.
[Sec. 30]
ix. Protective orders
Coverage: Any videotape or audiotape of a
child that is part of the court record
Provisions of the order:
1. Tapes may be viewed only by the parties,
their counsel, their expert witnesses, and
the guardian ad litem
2. No tape, or any portion thereof, shall be
divulged by any person mentioned in Sec.
31(a) to any other person, except as
necessary for the trial
a. Persons in Sec. 31(a): members of the
court staff for administrative use, the
prosecuting attorney, defense counsel,
guardian ad litem, agents of
investigating law enforcement
agencies, and other persons as
determined by the court
3. No person shall be granted access to the
tape, its transcript, or any part thereof,
UNLESS:
Page 501 of 525
REMEDIAL LAW
a. he signs a written affirmation that he
has received and read a copy of the
protective order;
b. he submits to the jurisdiction of the
court with respect to the protective
order; and
c. in case of violation, he will be subject to
the contempt power of the court
4. Each of the cassette tapes and transcripts
thereof made available to the parties, their
counsel, and their respective agents shall
bear the following cautionary notice:
a. “This object or document and the
contents thereof are subject to a
protective order issued by the court in
(case title), (case number). They shall
not be examined, inspected, read,
viewed, or copied by any person, or
disclosed to any person, except as
provided in the protective order. No
additional copies of the tape or any of
its portion shall be made, given, sold,
or shown to any person without prior
court order. Any person violating such
protective order is subject to the
contempt power of the court and other
penalties prescribed by law.”
5. No tape shall be given, loaned, sold, or
shown to any person EXCEPT as ordered
by the court
6. Within 30 days from receipt, all copies of
the tape and any transcripts thereof shall
be returned to the clerk of court for
safekeeping UNLESS the period is
extended by the court on motion of a party
7. This protective order shall remain in full
force and effect until further order of the
court. [Sec. 31(b)]
Additional protective order
The court may, motu proprio or on motion of
any party, the child, his parents, legal guardian,
or the guardian ad litem, issue additional
orders to protect the privacy of the child. [Sec.
31(c)]
U.P. LAW BOC EVIDENCE
4. Admissions and Confessions
a. Admission by a Party
Elements
1. The act, declaration or omission
2. Of a party
3. As to a relevant fact
4. Against his or her interest
[Sec. 27, Rule 130]
5. Made out of court
(Those made in court are governed by Sec.
4, Rule 129.) [2 Regalado 754, 2008 Ed.]
6. Offered and presented in court in an
admissible manner (e.g. non-hearsay)
EXTRAJUDICIAL ADMISSIONS
Any statement of fact made by a party against
his interest or unfavorable to the conclusion for
which he contends or is inconsistent with the
facts alleged by him. [2 Regalado 754, 2008
Ed., citing 31 C.J.S. 1022]
A statement by the accused, direct or implied,
of facts pertinent to the issue, and tending in
connection with proof of other facts, to prove
his guilt. [People v. Lorenzo, G.R. No. 110107
(1995)]
Requisites for Admissibility
1. They must involve matters of fact;
2. They must be categorical and definite;
3. They must be knowingly and voluntarily
made; and
4. Is adverse to admitter’s interests
[2 Regalado 754, 2008 Ed.]
Effect of an Admission
It may be given in evidence against the
admitter. [Sec. 27, Rule 130]
Flight from justice is an admission by conduct
and circumstantial evidence of consciousness
of guilt. [US v. Sarikala, G.R. No. L-12988
(1918)]
Rationale
No man would make any declaration against
himself unless it is true. [Republic v. Bautista,
G.R. No. 169801 (2007)]
Page 502 of 525
REMEDIAL LAW
Judicial and Extrajudicial Admissions
Judicial Extrajudicial
Made in connection
with a judicial Any other admission
proceeding in which [Secs. 27 and 33,
it is offered [Sec. 4, Rule 130]
Rule 129]
Must still be formally
offered in evidence
Does not require
(Note the language
proof [Sec. 4, Rule
of Sec. 27, Rule 130:
129]
“may be given in
evidence”)
May be conclusive
unless contradicted Rebuttable
[Sec. 4, Rule 129]
May be written, oral express or implied
[Sec. 4, Rule 129; Sec. 27, Rule 130]
b. Res Inter Alios Acta Rule
“Res inter alios acta alteri nocere non debet”—
Things done between strangers ought not to
injure those who are not parties to them
[Black’s Law Dictionary]
Two Branches
1. First branch: Admission by a third party
[Sec. 29, Rule 130]
2. Second branch: Similar acts as evidence
[Sec. 35, Rule 130]
[2 Regalado 758, 774, 2008 Ed.]
c. Admission by a Third Party
General rule: The rights of a party cannot be
prejudiced by an act, declaration, or omission
of another [Sec. 29, Rule 130]
Admission by a third party is inadmissible as
against another. The act, declaration or
omission of another is generally irrelevant, and
that in justice, a person should not be bound by
the acts of mere unauthorized strangers.
The rule is well-settled that a party is not bound
by any agreement of which he has no
knowledge and to which he has not given his
consent and that his rights cannot be
U.P. LAW BOC EVIDENCE
prejudiced by the declaration, act or omission
of another, except by virtue of a particular
relation between them.
Exceptions:
1. Partner’s or Agent’s Admission [Sec. 30,
Rule 130]
2. Admission by conspirator [Sec. 31, Rule
130]
3. Admission by privies [Sec. 32, Rule 130]
Basis of exception
A third party may be so united in interest with
the party-opponent that the other person’s
admissions may be receivable against the
party himself. The term “privy” is the orthodox
catchword for the relation.
Note: the res inter alios acta rule only applies
to extrajudicial declarations (admissions and
confessions). However, when the declarant
repeats his extrajudicial declaration in open
court and his co-accused are given the
opportunity to cross-examine him, the
declaration becomes admissible against the
co-accused.
d. Admission by a Co-Partner or
Agent
Requisites for Admissibility
1. The act or declaration
2. Of a partner or agent
a. authorized by the party to make a
statement concerning the subject; or
b. within the scope of his/her authority
3. During the existence of the partnership or
agency,
4. May be given in evidence against such
party
5. After the partnership or agency is shown by
evidence other than such act or declaration
(evidence aliunde)
[Sec. 30, Rule 130]
This rule also applies to the act or declaration
of a joint owner, joint debtor, or other persons
jointly interested with the party [Sec. 30, Rule
130]
Page 503 of 525
REMEDIAL LAW
Statements made after partnership is
dissolved
As a rule, statements made after the
partnership has been dissolved do not fall
within the exception, but where the admissions
are made in connection with the winding up
of the partnership affairs, said admissions
are still admissible as the partner is acting as
an agent of his co-partners in said winding up
[2 Regalado 759, 2008 Ed.]
Joint interests
1. The joint interest must be first made to
appear by evidence other than the
admission itself
2. The admission must relate to the subject-
matter of joint interest [Herrera]
The word “joint” must be construed according
to its meaning in the common law system, that
is, in solidum for the whole. [Jaucian v. Querol,
G.R. No. L-11307 (1918)]
A mere community of interests between
several persons is not sufficient to make the
admissions of one admissible against all.
[Herrera]
Just like in partnership and agency, the interest
must be a subsisting one unless for the
admission to be admissible. [Herrera]
e. Admission by a Conspirator
Requisites for Admissibility
1. The act or declaration
2. Of a conspirator
3. In furtherance of the conspiracy and during
its existence,
4. May be given in evidence against the co-
conspirator
5. After the conspiracy is shown by evidence
other than such act or declaration
(evidence aliunde)
[Sec. 31, Rule 130]
An exception to the res inter alios acta rule is
an admission made by a conspirator under
Sec. 30, Rule 130. [People v. Cachuela, G.R.
No. 191752 (2013)]
U.P. LAW BOC EVIDENCE
Existence of the conspiracy may be inferred
from acts of the accused [People v. Belen, G.R.
No. L-13895 (1963)).
Applies only to extra-judicial statements, not to
testimony given on the stand [People v.
Serrano, G.R. No. L-7973 (1959)] or at trial
where the party adversely affected has the
opportunity to cross-examine. [People v.
Palijon, G.R. No. 123545 (2000]
As regards extrajudicial admissions AFTER
termination of conspiracy, BEFORE trial
General rule: Not admissible [People v.
Badilla, G.R. No. 23792 (1926); People v.
Yatco, G.R. No. L-9181 (1955)]
Exceptions:
1. Made in the presence of the co-conspirator
who expressly/impliedly agreed (tacit
admission)
2. Facts in admission are confirmed in the
independent extrajudicial confessions
made by the co-conspirators after
apprehension [People v. Badilla, G.R. No.
23792 (1926)]
3. As a circumstance to determine credibility
of a witness [People v. Narciso, G.R. No.
L-24484 (1968)]
4. Circumstantial evidence to show the
probability of the latter’s participation
[2 Regalado 761, 2008 Ed.]
Doctrine of interlocking confessions
Extrajudicial statements of co-accused may be
taken as circumstantial evidence against
the person implicated to show the
probability of the latter’s actual
participation, provided that the statements are
made by several accused are:
1. Made without collusion
2. Identical with each other in their essential
details;
3. Corroborated by other evidence on record
[People v. Molleda, G.R. No. L-34248 (1978),
People v. Tuniaco, G.R. No. 185710 (2010)]
Note: Interlocking confessions may also be
used as evidence aliunde to prove conspiracy
Page 504 of 525
REMEDIAL LAW
Applicable to extrajudicial statements
The evidence adduced in court by the
conspirators as witnesses are not declarations
of conspirators, but direct testimony to the acts
to which they testify. This is applicable only
when it is sought to introduce extrajudicial
declarations and statements of the co-
conspirators [Herrera, citing People v.
Vizcarra, G.R. No. L-38859 (1982)]
f. Admission by Privies
Privies
Persons who are partakers or have an interest
in any action or thing, or any relation to another
[Riano 262, 2016 Ed., citing Black’s Law
Dictionary]
It denotes the idea of succession, not only by
right of heirship and testamentary legacy, but
also that of succession by singular title, derived
from acts inter vivos, and for special purposes.
(example: assignee of a credit and one
subrogated to it are privies.) [Alpuerto v. Perez
Pastor and Roa, G.R. No. L-12794 (1918)]
Requisites for Admissibility
1. One derives title to property from another
2. The act, declaration, or omission
a. of the latter (the person from whom title
is derived)
b. while holding the title
c. in relation to the property
3. is evidence against the former (one who
derives title from another)
[Sec. 32, Rule 130]
g. Admission by Silence
An act or declaration made in the presence and
within the hearing or observation of a party who
does or says nothing when the act or
declaration is such as naturally to call for action
or comment if not true, and when proper and
possible for him/her to do so, may be given in
evidence against him/her. [Sec. 33, Rule 130]
Requisites: When silence is deemed an
admission
1. Person heard or understood the statement;
2. That he was at a liberty to make a denial;
U.P. LAW BOC EVIDENCE
3. That the statement was about a matter
affecting his rights or in which he was
interested and which naturally calls for a
response;
4. That the facts were within his knowledge;
and
5. That the fact admitted from his silence is
material to the issue
[People v. Paragsa, G.R. No. L-44060 (1978)]
This rule applies even when a person was
surprised in the act [US v. Bay, G.R. No. 9341
(1914)] or even if he was already in the custody
of the police [People v. Ancheta, G.R. No.
143935 (2004)]
When not applicable
1. Statements adverse to the party were
made in the course of an official
investigation [U.S. v. De la Cruz, G.R. No.
4740 (1908)], as where he was pointed out
in the course of a custodial investigation
and was neither asked to reply nor
comment on such imputations [People v.
Alegre, G.R. No. L-30423 (1979)]
2. Party had justifiable reason to remain
silent, e.g. acting on advice of counsel
[2 Regalado 763, 2008 Ed.]
Failure to file a comment
Respondent’s failure to file a comment despite
all the opportunities afforded him constituted a
waiver of his right to defend himself. In the
natural order of things, a man would resist an
unfounded claim or imputation against him. It is
generally contrary to human nature to remain
silent and say nothing in the face of false
accusations. As such, respondents' silence
may be construed as an implied admission and
acknowledgement of the veracity of the
allegations against him [OCA v. Amor, A.M.
No. RTJ-08-2140 (2014)]
h. Confessions
The declaration of an accused acknowledging
his/her guilt of the offense charged, or of any
offense necessarily included therein, may be
given in evidence against him/her. [Sec. 34,
Rule 130]
Page 505 of 525
REMEDIAL LAW
An acknowledgment in express words or
terms, by a party in a criminal case, of his
guilt of the crime charged. [People v. Lorenzo,
G.R. No. 110107 (1995)]
Requisites
1. Express and categorical acknowledgement
of guilt [U.S. v. Corrales, G.R. No. 9230
(1914)]
2. Facts admitted constitutes a criminal
offense [U.S. v. Flores, G.R. No. 9014
(1913)]
3. Given voluntarily [People v Nishishima,
G.R. No. 35122 (1932)]
4. Intelligently made [Bilaan v Cusi, G.R. No.
L-18179 (1962)], realizing the importance
or legal significance of the act [U.S. v.
Agatea, G.R. No. 15177 (1919)]
5. No violation of Secs. 12 and 17, Art. III of
the Constitution
[2 Regalado 765, 2008 Ed.]
If the accused admits having committed the act
in question but alleges a justification therefore,
the same is merely an admission. [Ladiana v.
People, G.R. No. 144293 (2002)]
Any confession, including a re-enactment,
without admonition of the right to silence and to
counsel, and without counsel chosen by the
accused is inadmissible in evidence. [People v.
Yip Wai Ming, G.R. No. 120959 (1996)]
[T]he basic test for the validity of a confession
is – was it voluntarily and freely made. The term
"voluntary" means that the accused speaks of
his free will and accord, without inducement of
any kind, and with a full and complete
knowledge of the nature and consequences of
the confession, and when the speaking is so
free from influences affecting the will of the
accused, at the time the confession was made,
that it renders it admissible in evidence against
him. Plainly, the admissibility of a confession in
evidence hinges on its voluntariness [People v.
Satorre, G.R. No. 133858 (2003)]
An extrajudicial confession may be given in
evidence against the confessant but not
against his co-accused (since) they are
deprived of the opportunity to cross-examine
U.P. LAW BOC EVIDENCE REMEDIAL LAW

him. A judicial confession is admissible i. Similar Acts as Evidence

against the declarant’s co-accused since the
latter are afforded the opportunity to cross-
examine the former. [People v. Palijon, G.R.
No. 123545 (2000), cited in People v. Janjalani,
G.R. No. 188314 (2011)]
General rule: Evidence that one did or did not
do a certain thing at one time is not admissible
to prove that he/she did or did not do the same
or similar thing at another time

Effect of Extrajudicial Confession of Guilt Exceptions: Said evidence may be received to

General rule: An extrajudicial confession prove a:
made by an accused, shall not be a sufficient 1. specific intent or knowledge
ground for conviction 2. identity
3. plan, system, or scheme
Exception: When corroborated by evidence of 4. habit
corpus delicti 5. custom or usage and the like
[Sec. 3, Rule 133] [Sec. 35, Rule 130]

Corpus Delicti 2nd Branch of res inter alios acta rule [2

Substance of the crime; the fact that a crime Regalado 774, 2008 Ed.]
has actually been committed [People v. De
Leon, G.R. No. 180762 (2009)] Reason for General Rule
The lone fact that a person committed the
As Distinguished from Admissions of a same or similar act at some prior time affords,
Party as a general rule, no logical guaranty that he
Admission of a committed the act in question. A man’s mind
Confession
Party and even his modes of life may change; and
Acknowledgment of objectively, the conditions which he may find
A statement of fact [2
guilt or liability [2 himself at a given time make likewise change
Regalado 754, 2008
Regalado 754, 2008 and induce him to act a different way [Herrera,
Ed.]
Ed.] citing Moran]
Maybe express or Must be express [2
tacit [2 Regalado 754, Regalado 754, 2008 j. Admissibility of Offers of
2008 Ed.] Ed.] compromise
Can be made only by
Maybe made by 3rd
the party himself, and In civil cases
parties, and in certain
admissible against An offer of compromise is not an admission of
cases, admissible
his co-accused in any liability and is not admissible in evidence
against a party [2
some instances [2 against the offeror
Regalado 754, 2008
Regalado 754, 2008
Ed.]
Ed.] General rule: Evidence of conduct or
Acts, declarations or statements made in compromise negotiations
Declarations [Sec. are also not admissible
omissions [Sec. 26,
34, Rule 130]
Rule 130]
May be in any Exceptions: Evidence otherwise discoverable
proceeding or offered for another purpose such as
a. proving bias or prejudice of a witness;
Criminal case (Sec. b. negativing a contention of undue delay; or
(Sec. 27, Rule 130
34, Rule 130 refers to c. proving an effort to obstruct a criminal
refers to a party
“accused”) investigation or prosecution
without distinction as
to nature of
In criminal cases
proceeding)

Page 506 of 525

U.P. LAW BOC EVIDENCE
General rule: An offer of compromise by the
accused may be received as an implied
admission of guilt
Exception: In cases involving quasi-offenses
(criminal negligence) or those allowed by the
law to be compromised
Pleas of guilty
Not admissible against the accused who made
the plea or offer:
a. Plea of guilty later withdrawn;
b. Unaccepted offer of a plea of guilty to a
lesser offense; or
c. Statement made in the course of plea
bargaining with the prosecution which does
not result in a plea of guilty or which results
in a plea of guilty later withdrawn
Offer to pay medical, hospital or other
expenses
Offer to pay or the payment of medical, hospital
or other expenses occasioned by an injury is
not admissible in evidence as proof of civil or
criminal liability for the injury
[Sec. 28, Rule 130]
5. Hearsay Rule
Note: Provisions on hearsay were substantially
changed in the 2019 Amended Rules.
a. Meaning of Hearsay
Hearsay is a statement other than the one
made by the declarant while testifying at a trial
or hearing, offered to prove the truth of the facts
asserted therein
Statement—oral or written assertion OR non-
verbal conduct of a person if it is intended by
him/her as an assertion [Sec. 39, Rule 130]
Elements
1. Declarant is out of court
2. Out of court declaration is offered as proof
of its contents
3. Absence of opportunity for cross-
examination
Page 507 of 525
REMEDIAL LAW
General Rule on Hearsay
A witness can testify only as to those facts
which he/she knows of his personal
knowledge, that is, which are derived from
his/her own perception [Sec. 22, Rule 130]
If a party does not object to hearsay evidence,
the same is admissible, as a party can waive
his right to cross-examine [People v. Ola, G.R.
No. L-47147 (1987)]
Repeated failure to cross-examine is an
implied waiver [Savory Luncheonette v. Lakas
ng Manggagawang Pilipino, G.R. No. L-38964
(1975)]
When a statement is NOT hearsay:
1. If the declarant testifies at the trial or
hearing and is subject to cross-
examination concerning the statement; and
2. The statement is:
a. Inconsistent with the declarant’s
testimony and was given under oath
subject to the penalty of perjury at a
trial, hearing, or other proceeding, or in
a deposition
b. Consistent with the declarant’s
testimony and is offered to rebut an
express or implied charge against the
declarant of recent fabrication or
improper influence or motive
c. Identification of a person made after
perceiving him/her
[Sec. 37, Rule 130]
b. Reason for Exclusion of
Hearsay Evidence
The underlying rule against hearsay are
serious concerns about the worth
(trustworthiness, reliability) of hearsay
evidence. Because such evidence:
1. was not given under oath or solemn
affirmation; and
2. was not subject to cross-examination by
opposing counsel to test the perception,
memory, veracity and articulateness of out-
of-court declarant or actor upon whose
reliability on which the worth of the out-of-
court testimony depends
[Herrera]
U.P. LAW BOC EVIDENCE
Hearsay evidence is excluded precisely
because the party against whom it is presented
is deprived of or is bereft of opportunity to
cross-examine the persons to whom the
statements or writings are attributed
[Philippines Free Press v. C.A., G.R. No.
132864 (2005)]
c. Exceptions to the Hearsay Rule
1. Dying declaration
2. Statement of decedent or person of
unsound mind
3. Declaration against interest
4. Act or declaration about pedigree
5. Family reputation or tradition regarding
pedigree
6. Common reputation
7. Part of the res gestae
8. Records of regularly conducted business
activity
9. Entries in official records
10. Commercial lists and the like
11. Learned treatises
12. Testimony or deposition at a former trial
13. Residual exception
i. Dying Declaration
Also known as “antemortem statement” or
“statement in articulo mortis” [People v.
Mendoza, G.R. No. 142654 (2001)]
Requisites for Admissibility
a. Declaration of a dying person
b. Declaration was made under the
consciousness of an impending death
c. Declaration may be received in any case
wherein his/her death is the subject of
inquiry, as evidence of the cause and
surrounding circumstances of such death
[Sec. 38, Rule 130]
d. Declarant would have been competent as
a witness had he survived [Geraldo v
People, G.R. No. 173608 (2008)); and
e. Declarant should have died [People v.
Macandog, G.R. No. 129534 and 1411691
(2001)]
Page 508 of 525
REMEDIAL LAW
A dying declaration must be single hearsay to
be admissible [People v. Bautista, G.R. No.
117685 (1999)]
Rationale for Admissibility
As a general rule, when a person is at the point
of death, every motive to falsehood is silenced
[People v Bacunawa, G.R. No. 136859 (2001)]
The law considers the point of death as a
situation so solemn and awful as creating an
obligation equal to that which is imposed by an
oath administered by the court. [People v.
Cerilla, G.R. No. 177147 (2007)]
The admissibility of an ante mortem declaration
is not affected by the fact that the declarant
died hours or several days after making his
declaration. It is sufficient that he believes
himself in imminent danger of death at the time
of such declaration [Herrera, citing People v.
Ericta 77 SCRA 199]
The rule is that, in order to make a dying
declaration admissible, a fixed belief in
inevitable and imminent death must be entered
by the declarant. It is the belief in impending
death and not the rapid succession of death in
point of fact that renders a dying declaration
admissible. The test is whether the declarant
has abandoned all hopes of survival and
looked on death as certainly impending.
Objections to the dying declaration
May be premised on any of the requisites for its
admissibility embodied in Sec. 38, Rule 130.
[Riano 302, 2016 Ed.]
Dying declarations are admissible in favor of
the defendant as well as against him [US v.
Antipolo, 37 Phil. 726 (1918)]
U.P. LAW BOC EVIDENCE REMEDIAL LAW

ii. Statement of Decedent or Person Exception: Admissible if corroborating

of Unsound Mind circumstances clearly indicate the
trustworthiness of the statement [Sec. 40, Rule
Requisites for Admissibility 130]
General rule: Any statement of the deceased
or the person of unsound mind may be received Inability to testify means that the person is
in evidence dead, mentally incapacitated or physically
incompetent. Mere absence from the
a. In an action against: jurisdiction does not make him ipso facto
1. an executor, administrator or other unavailable. [Fuentes v. C.A., G.R. No.
representative of a deceased person; 111692 (1996)]
OR
2. a person of unsound mind Admissible against third persons
b. Upon a claim or demand against the estate Declaration against interest made by the
of such deceased person or against such deceased, or by one unable to testify, is
person of unsound mind admissible even against the declarant’s
c. Where party or assignor of a party or a successors-in-interest or even against third
person in whose behalf a case is persons [Sec. 40, Rule 130]
prosecuted testifies on a matter of fact
occurring before the death of the deceased Actual or real interest
or before the person became of unsound It is essential that at the time of the statement,
mind the declarant’s interest affected thereby should
d. Statement was made by the deceased or be actual, real or apparent, not merely
person of unsound mind at a time where contingent, future or, conditional; otherwise the
the matter had been recently perceived by declaration would not in reality be against
him/her while his/her recollection was clear interest. (Example: declarations regarding a
declarant’s inheritance are not admissible
Exception: The statement is inadmissible if because these are future interests) [Herrera]
made under circumstances indicating its lack of
trustworthiness [Sec. 39, Rule 130] As Distinguished from Admissions
Admission by a Declaration
iii. Declaration Against Interest party [Sec. 27, against Interest
Rule 130] [Sec. 40, Rule 130]
Requisites for Admissibility Admitter is a party Declarant is neither
a. Declarant is dead or unable to testify; himself, or in privity a party nor in privity
b. Declaration relates to a fact against the
with such party with a party
interest of the declarant;
c. At the time he made said declaration, Admissible whether Admissible only
declarant was aware that the same was or not admitter is when declarant is
contrary to the declarant’s own interest; available as a unavailable as a
and witness witness
d. Declarant had no motive to falsify and Can be made any Must have been
believed such declaration to be true [Sec. time, even during made ante litem
40, Rule 130] trial motam
Admissible only Admissible even
When NOT admissible against the admitter against 3rd persons
General rule: If the statement tends to expose
Admissible as an
the declarant to criminal liability and is offered Admissible not as an
exception to the
to exculpate the accused exception to any rule
hearsay rule

Page 509 of 525

U.P. LAW BOC EVIDENCE REMEDIAL LAW

Made against one’s v. Family Reputation or Tradition

Made against one’s Regarding Pedigree
claim or defense,
pecuniary or moral
although not moral
interest Requisites for Admissibility
or pecuniary interest
Primary evidence Secondary evidence a. Witness must be a member, by
consanguinity, affinity, or adoption, of the
[Estrada v. Desierto, G.R. Nos. 146710-15
same family as the subject; and
(2001)]
b. Such reputation or tradition must have
existed in that family ante litem motam
iv. Act or Declaration About Pedigree
(before the controversy) [Sec. 42, Rule
130]
Requisites for Admissibility
1. Note: ante litem motam means before
a. The act or declaration
the controversy arose, not before the
b. Of a person deceased or unable to testify
suit was brought (Prof. Avena)
c. In respect to the pedigree of another
person related to him/her by
Other Admissible Evidence
1. birth;
a. Entries in family bibles or other family
2. adoption;
books;
3. marriage; or
b. Charts;
4. in the absence thereof, with those
c. Engravings on rings;
family he/she was so intimately
d. Family portraits and the like
associated as to be likely to have
[Sec. 42, Rule 130]
accurate information concerning
his/her pedigree
This enumeration, by ejusdem generis, is
d. May be received in evidence where the
limited to "family possessions," or those
act/declaration occurred before the
articles which represent, in effect, a family's
controversy; and
joint statement of its belief as to the pedigree of
e. Relationship between the declarant and
a person [Jison v. C.A., G.R. No. 124853.
the person whose pedigree is in question
(1998)]
must be shown by evidence other than
such act or declaration (evidence aliunde)
A person’s statement as to his date of birth and
[Sec. 41, Rule 130]
age, as he learned of these from his parents or
relatives, is an ante litem motam declaration of
Pedigree includes
a family tradition [Gravador v. Mamigo, G.R.
a. Relationship;
No. L-24989, (1967)]
b. Family genealogy;
c. Birth;
Distinguished from Declaration about
d. Marriage;
Pedigree
e. Death;
Sec. 41 – Sec. 42 – Family
f. Dates when these facts occurred;
g. Places where these facts occurred; Declaration about Reputation or
h. Names of relatives; and Pedigree Tradition
i. Facts of family history intimately connected There must be a The witness
with pedigree [Sec. 40, Rule 130] declarant and a testifying to the
witness family reputation
Pedigree declaration by conduct The witness need and tradition must be
This rule may also consist of proof of acts or not be a relative of a member of the
conduct of relatives and the mode of treatment the person whose family member of the
in the family of one whose parentage is in pedigree is in person whose
question [Herrera 649] question, it must be pedigree is in
the declarant. controversy.

Page 510 of 525

U.P. LAW BOC EVIDENCE REMEDIAL LAW

The witness may Reputation has been held admissible as

Independent evidence of age, birth, race, or race-ancestry,
testify about the
evidence is needed and on the question of whether a child was
relationship himself.
to establish born alive [In re: Florencio Mallare, A.M. No.
The author of the
relationship between 533 (1974)]
reputation need not
declarant and
be established by
person whose Unlike that of matters of pedigree, general
independent
pedigree is in issue reputation of marriage may proceed from
evidence. persons who are not members of the family —
[Herrera] the reason for the distinction is the public
interest. [In re: Florencio Mallare, AM No. 533
vi. Common Reputation (1974)]

Definition: The definite opinion of the vii. Part of the Res Gestate
community in which the fact to be proved is
known or exists. It means the general or Res gestae — “things done”
substantially undivided reputation, as Res gestae, as an exception to the hearsay
distinguished from a partial or qualified one, rule, refers to those exclamations and
although it need not be unanimous [2 statements made by either the participants,
Regalado, 787, 2008 Ed.] victims, or spectators to a crime immediately
before, during, or after the commission of the
Requisites for Admissibility crime, when the circumstances are such that
a. Common reputation existed ante litem the statements were made as a spontaneous
motam reaction or utterance inspired by the
b. Reputation pertains to: excitement of the occasion and there was no
1. boundaries of or customs affecting opportunity for the declarant to deliberate and
lands in the community to fabricate a false statement [DBP Pool of
2. events of general history important to Accredited Insurance Companies v. Radio
the community Mindanao Network, Inc., G.R. No. 147039
3. marriage, or (2006)]
4. moral character
[Sec. 43, Rule 130] A dying declaration can be made only by the
victim, while a statement as part of the res
Note: The 30-year rule was removed in the gestae may be that of the killer himself after or
Amended Rules during the killing [2 Regalado 788, 2008 Ed.,
citing People v. Reyes, G.R. Nos. L-1846–48
Other Admissible Evidence (1949)]
a. Monuments
b. Inscriptions in public places A statement not admissible as dying
[Sec. 43, Rule 130] declaration because it was not made under
consciousness of impending death, may still be
Pedigree may be established by reputation in admissible as part of res gestae if made
the family, but not in the community [Secs. 42- immediately after the incident [People v.
43, Rule 130] Gueron, G.R. No. L-29365 (1983)]

Common reputation is hearsay like any other

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

Page 511 of 525

U.P. LAW BOC EVIDENCE REMEDIAL LAW

Requisites for res gestae

Spontaneous Sec. 44. Res Sec. 38. Dying
Verbal Acts
Statements gestae Declaration
a. The principal a. The res gestae Statement may be Can be made only
act, the res or principal act made by the killer by the victim
gestae, be or to be himself
made due to a characterized after or during the
startling must be killing [People v.
occurrence equivocal;
Reyes, G.R. Nos. L-
b. The statements b. Such act must
1846–48 (1949)] OR
were made be material to
that of a
before the the issue
declarant had c. The statements 3rd person.
the opportunity must May precede, Made only after the
to contrive accompany the accompany or be homicidal attack has
c. The statements equivocal act. made after the been committed
must refer to the d. The statements homicidal attack was
occurrence in give a legal committed
question and its significance to Justification in the Trustworthiness
attending the equivocal act spontaneity of the based upon in its
circumstances [Talidano v. statement. being given in
[Talidano v. Falcon Maritime,
awareness of
Falcon G.R. No. 172031
impending death
Maritime, G.R. (2008)]
No. 172031 [2 Regalado 790, [2 Regalado 788-789, 2008 Ed.]
(2008)]] 2008 Ed.]
viii. Records of Regularly Conducted
Business Activity
[2 Regalado 788,
2008 Ed., citing
Requisites for Admissibility
People v. Siscar, a. Memorandum, report, record or data
G.R. No. 55649 compilation
(1985)] 1. Of acts, events, conditions, opinions, or
Spontaneous diagnoses
exclamations may 2. Made by writing, typing, electronic,
have been made optical, or other similar means
before, 3. At or near the time of or from
during or transmission or supply of information
immediately after Verbal act must have b. Entrant had knowledge thereof
the startling been made at the c. Records are kept in the regular course or
conduct of a business activity
occurrence time, and not after,
d. The making of the memorandum, report,
equivocal act [2 the equivocal act
record, or data compilation by electronic,
Regalado 790, 2008 was being performed optical or similar means is regular practice
Ed.] [2 Regalado 790, e. All of the above are shown by the testimony
2008 Ed.] of a custodian or other qualified witness
AND must be under [Sec. 45, Rule 130]
the stress or
excitement caused Note: Sec. 45 has no counterpart in the
by the occurrence previous Rules but it is the exact reproduction
[Sec. 44, Rule 130] of Sec. 2, Rule 8, Rules on Electronic Evidence

Page 512 of 525

U.P. LAW BOC EVIDENCE
(“Business records as exception to the hearsay
rule under the Rules on Electronic Evidence”)
If the entrant is available as a witness, the
entries will not be admitted, but they may
nevertheless be availed of by said entrant as a
memorandum to refresh his memory while
testifying on the transactions reflected therein
[Cang Yui v. Gardner, G.R. No. L-9974 (1916)]
Entries in the payroll, being entries in the
course of business, enjoy the presumption of
regularity [Sapio v. Undaloc Construction, G.R.
No. 155034 (2008)]
Reason for rule
The duty of the employees to communicate
facts is of itself a badge of trustworthiness of
the entries [Security Bank and Trust Company
v. Gan, G.R. No. 150464 (2006)]
These entries are accorded unusual reliability
because their regularity and continuity are
calculated to discipline record keepers in the
habit of precision [LBP v. Monet’s Export and
Manufacturing Corp., G.R. No. 184971 (2010)]
ix. Entries in Official Records
Requisites for Admissibility
a. Entries in official records were made by a
public officer in the performance of his/her
duties or by a person in the performance of
a duty specially enjoined by law [Sec. 46,
Rule 130];
b. Entrant must have personal knowledge of
the facts stated by him or such facts
acquired by him from reports made by
persons under a legal duty to submit the
same [Barcelon, Roxas Securities v. CIR,
G.R. 157064 (2006)]; and
c. Entries were duly entered in a regular
manner in the official records [People v.
Mayingque, G.R. No. 179709 (2010)]
The trustworthiness of public documents and
the value given to the entries made therein
could be grounded on:
a. the sense of official duty in the preparation
of the statement made;
Page 513 of 525
REMEDIAL LAW
b. the penalty which is usually affixed to a
breach of that duty;
c. the routine and disinterested origin of most
such statements; and
d. the publicity of record which makes more
likely the prior exposure of such errors as
might have occurred
[Herce, Jr. v Municipality of Cabuyao, Laguna,
GR. No. 166645 (2005)]
A sheriff’s return is an official statement by a
public official in the performance of a duty
specially enjoined by law and is prima facie
evidence of the facts therein stated. Being an
exception to the hearsay rule, the sheriff need
not testify in court as to the facts stated in said
return [Manalo v Robles Trans.Co., GR. No. L-
8171, (1956)]
Entries in official records are merely prima
facie evidence of the facts therein stated [Sec.
46, Rule 130]
Entries in a police blotter are not conclusive
proof of the truth of such entries [People v.
Cabuang, G.R. No. 103292 (1993)]
Baptismal certificates or parochial records of
baptism are not official records [Fortus v.
Novero, G.R. No. L-22378 (1968)]
x. Commercial Lists and the Like
Requisites for Admissibility
a. Evidence of statements of matters of
interest to persons engaged in an
occupation
b. Such statements are contained in a list,
register, periodical, or other published
compilations
c. Compilation is published for use by
persons engaged in that occupation; and
1. Example: mortality tables, MIMS drug
database
d. It is generally used and relied upon by them
[Sec. 47, Rule 130]
U.P. LAW BOC EVIDENCE
xi. Learned Treatises
Requisites for Admissibility
a. Published treatise, periodical or pamphlet
is on a subject of history, law, science, or
art; and
b. Court takes either:
1. judicial notice of it, or
2. a witness expert in the subject testifies
that the writer of the statement in the
treatise, periodical or pamphlet is
recognized in his/her profession or
calling as expert in the subject
[Sec. 48, Rule 130]
Scientific studies or articles and websites
which were culled from the internet, attached to
the Petition, and were not testified to by an
expert witness are basically hearsay in nature
and cannot be given probative weight. [Paje v.
Casiño, G.R. No. 207257 (2015)]
xii. Testimony or Deposition at a
Former Trial
Requisites for Admissibility
a. Witness is dead, out of the Philippines or
with due diligence cannot be found therein,
unavailable, or unable to testify;
b. The testimony or deposition was given in a
former case or proceeding, judicial or
administrative, between the same parties
or those representing the same interests;
c. Former case involved the same subject as
that in the present case although on
different causes of action;
d. Issue testified to by the witness in the
former trial is the same issue involved in
the present case; and
e. Adverse party had the opportunity to cross-
examine the witness in the former case
[Sec. 49, Rule 130]
Inability to testify (meaning and standard)
The inability of the witness to testify must
proceed from a grave cause, almost amounting
to death, as when the witness is old and has
lost the power of speech. Mere refusal shall not
suffice [Tan v. C.A., G.R. No. L-22793 (1967)]
Page 514 of 525
REMEDIAL LAW
xiii. Residual Exception
Requisites for admissibility
a. Statement not specifically covered by any
of the foregoing exceptions;
b. Has the equivalent circumstantial
guarantees of trustworthiness
c. The court determines that:
1. the statement is offered as evidence of
a material fact;
2. it is more probative on the point for
which it is offered than any other
evidence which the proponent can
procure through reasonable efforts;
and
3. the general purposes of these rules
and the interests of justice will be best
served by its admission
d. Proponent makes known to the adverse
party, sufficiently in advance of the hearing
or by the pre-trial stage in case of a trial of
the main case, to provide the adverse party
with a fair opportunity to prepare to meet it,
the proponent’s intention to offer the
statement and its particulars, including the
name and address of the declarant [Sec.
50, Rule 130]
Note: This is a new provision under the
Amended Rules.
OTHER EXCEPTIONS OUTSIDE THE
RULES OF COURT
a. Affidavit in the Rules of Summary
Procedure - shall not be considered as
competent evidence for the party
presenting the affidavit, but the adverse
party may utilize the same for any
admissible purpose [Sec. 14, Rules on
Summary Procedure]
b. Under the Rule on Examination of a Child
Witness, hearsay exception in child abuse
cases [see Sec. 28]
d. Independently Relevant
Statements (IRS)
Statements or writings attributed to a person
not on the witness stand, which are being
offered not to prove the truth of the facts stated
U.P. LAW BOC EVIDENCE
therein, but only to prove that such were
actually made.
These are not covered by the hearsay rule
[People v. Cusi, G.R. No. L-20986 (1965)]
These are statements which are relevant
independently of whether they are true or not
[Estrada v. Desierto, G.R. No. 146710 (2001)]
Two classes of independently relevant
statements:
1. Statements which are the very facts in
issue, and
2. Statements which are circumstantial
evidence of the facts in issue. They include
the following:
a. Statement of a person showing his
state of mind, that is, his mental
condition, knowledge, belief, intention,
ill will and other emotions;
b. Statements of a person which show his
physical condition, as illness and the
like;
c. Statements of a person from which an
inference may be made as to the state
of mind of another, that is, the
knowledge, belief, motive, good or bad
faith, etc. of the latter;
d. Statements which may identify the
date, place and person in question; and
e. Statements showing the lack of
credibility of a witness [Estrada v.
Desierto, G.R. No. 146710 (2001)]
6. Opinion Rule
Opinion is an inference or conclusion drawn
from facts observed [Black’s Law Dictionary]
General rule: The opinion of witness is not
admissible [Sec. 51, Rule 130]
Exceptions:
a. Expert witness [Sec. 52, Rule 130]
b. Ordinary witness [Sec. 53, Rule 130]
a. Opinion of Expert Witness;
Weight given
Page 515 of 525
REMEDIAL LAW
The opinion of a witness on a matter requiring
special knowledge, skill, experience, training,
or education, which he/she shown to possess,
may be received in evidence [Sec. 52, Rule
130]
Expert witness is one who has made the
subject upon which he gives his opinion a
matter of particular study, practice or
observation and he must have particular and
special knowledge on the subject [People v.
Dekingco, G.R. No. 87685 (1990)]
ADMITTING EXPERT TESTIMONY
Question in admitting expert testimony
Whether the opinion called for will aid the fact
finder in resolving an issue, or whether the
judge is as well qualified as the witness to draw
its own or his own deductions from the
hypothetical facts [Herrera]
Court discretion to exclude or include
expert evidence
If men of common understanding are capable
of comprehending the primary facts and
drawing correct conclusions from them, expert
testimony may be excluded by the Court
[Herrera]
Competency of witness is a preliminary
question before testimony is admitted
It must be shown that the witness is really an
expert; determination of competency is a
preliminary question [Herrera]
The competence of an expert witness is a
matter for the trial court to decide upon in the
exercise of its discretion. The test of
qualification is necessarily a relative one,
depending upon the subject matter of the
investigation, and the fitness of the expert
witness. In our jurisdiction, the criterion
remains to be the expert witness' special
knowledge, experience and practical
training that qualify him/her to explain
highly technical medical matters to the
Court.
It is the specialist's knowledge of the
requisite subject matter, rather than his/her
U.P. LAW BOC EVIDENCE
specialty that determines his/her
qualification to testify. [Casumpang v.
Cortejo, G.R. No. 171127 (2015)]
EXAMINING AN EXPERT WITNESS
Mode of examination of expert witness
He may base his opinion on the basis of
hypothetical questions where the facts are
presented to him hypothetically, and on the
assumption that they are true, formulates his
opinion on this hypothesis [Herrera]
The lack of personal examination and interview
of the respondent, or any other person
diagnosed with personality disorder, does not
per se invalidate the testimonies of the doctors.
Neither do their findings automatically
constitute hearsay that would result in their
exclusion as evidence. Within their
acknowledged field of expertise, doctors can
diagnose the psychological make up of a
person based on a number of factors culled
from various sources. [Camacho-Reyes v
Reyes, G.R. No. 185286 (2010)]
How to present an expert witness
1. Introduce and qualify the witness;
2. Let him give his factual testimony, if he has
knowledge of the facts;
3. Begin the hypothetical question by asking
him to assume certain facts as true;
4. Conclude the question, by first asking the
expert if he has an opinion on a certain
point
5. assuming that these facts are true and
secondly, asking him, after he has
answered affirmatively, to give his opinion
on the point;
6. After he has stated his opinion, ask him to
give his reasons.
Weight given to expert testimony
Courts are not bound by the findings or
opinions of the expert. Their evidence is not
conclusive, but merely advisory.
b. Opinion of Ordinary Witness
The opinion of an ordinary witness is
admissible:
Page 516 of 525
REMEDIAL LAW
1. If proper basis is given, and
2. Regarding:
a. Identity of a person about whom he/she
has adequate knowledge;
b. Handwriting with which he/she has
sufficient familiarity;
c. Mental sanity of a person with whom
he/she is sufficiently acquainted; and
d. Impressions of the
i. emotion,
ii. behavior,
iii. condition, or
iv. appearance of a person
[Sec. 53, Rule 130]
IDENTITY OF A PERSON ABOUT WHOM HE
HAS ADEQUATE KNOWLEDGE
Statements of a witness as to identity are not
to be rejected because he is unable to describe
features of the person in question [Herrera]
Identification by voice is recognized by the
courts, especially in a case where it was
impossible to see the accused but the witness
has known the accused since their childhood
[Herrera, citing US v. Manabat]
HANDWRITING WITH WHICH HE HAS
SUFFICIENT FAMILIARITY
The ordinary witness must be acquainted with
the characteristics of the handwriting of a
person. He may only draw on the knowledge
which he already has, and which enables him
to recognize the handwriting.
Only experts are allowed to give conclusions
from the comparison of samples of handwriting
of a person whose handwriting he is not familiar
with [Herrera]
MENTAL SANITY OF A PERSON WITH
WHOM HE IS SUFFICIENTLY ACQUAINTED
These are allowed where the witness can
adequately describe the actions, looks or
symptoms of a person’s sanity or insanity
which is impossible for the court to determine
[Herrera]
U.P. LAW BOC EVIDENCE
IMPRESSIONS OF THE EMOTION,
BEHAVIOR, CONDITION OR APPEARANCE
OF A PERSON
The rule recognizes instances when a witness
may be permitted to state his inferences that
are drawn from minute facts and details which
the witness cannot fully and properly describe
in court. Such expressions are expressed to
the countenance, the eye and the general
manner and bearing of the individual;
appearance which are plainly enough
recognized by a person of good judgment, but
which he cannot otherwise communicate by an
expression of results in the shape of an opinion
[Herrera, citing US case Hardy v. Merill]
7. Character Evidence
Note: There are substantial changes in this part
in the 2019 Revised Rules
Character distinguished from reputation
'Character' is what a man is, and 'reputation' is
what he is supposed to be in what people say
he is. 'Character' depends on attributes
possessed, and 'reputation' on attributes which
others believe one to possess. The former
signifies reality and the latter merely what is
accepted to be reality at present [Lim v. C.A.,
G.R. No. 91114 (1992)].
General rule:
Evidence of a person’s character or a trait of
character is not admissible for the purpose of
proving action in conformity therewith on a
particular occasion
[Sec. 54, Rule 130]
Exceptions:
a. Criminal cases [Sec. 54(a), Rule 130]
b. Civil case [Sec. 54(b), Rule 130]
c. In both civil and criminal cases [Sec. 54(c),
Rule 130]
1. Evidence of good character of witness
is not admissible until such character
has been impeached
2. When the character or trait of character
is an essential element of a charge,
claim or defense
Page 517 of 525
REMEDIAL LAW
a. Criminal Cases
1. Accused – May prove his/her good moral
character, which is pertinent to the moral
trait involved in the offense charged.
2. Prosecution – May not prove the bad
moral character of the accused, except in
rebuttal.
3. Offended Party –May be proved if it tends
to establish in any reasonable degree the
probability or improbability of the offense
charged.
[Sec. 54, Rule 130]
Good moral character of accused
The purpose of presenting evidence of good
moral character is to prove the improbability of
his doing the act charged. The accused may
prove his good moral character only if it is
pertinent to the moral trait involved in the
offense charged [Herrera]
Bad moral character of accused in rebuttal
Unless and until the accused gives evidence of
his good moral character the prosecution may
not introduce evidence of his bad character
[Herrera, citing People v. Rabanes, G.R. No.
93709 (1992)]
Character evidence must be limited to the traits
and characteristics involved in the type of
offense charged. Thus:
● on a charge of rape: character for chastity
● on a charge of assault: character for
peaceableness or violence
● on a charge of embezzlement: character
for honesty [CSC v. Belagan, G.R. No.
132164 (2004)]
Proof of the bad character of the victim is
not admissible:
● In a murder case: If the crime was
committed through treachery and evident
premeditation [People v. Soliman, G.R. No.
L-9723 (1957)]
● In a rape case: If through violence and
intimidation [People v. Blance, G.R. No.
20063, (1923)]
U.P. LAW BOC EVIDENCE
Rape Shield Rule
In prosecution for rape, evidence of
complainant’s past sexual conduct, opinion
thereof or of his/her reputation shall not be
admitted unless, and only to the extent that the
court finds that such evidence is material and
relevant to the case [Sec 6, R.A. 8505]
Sexual Abuse Shield Rule
The following evidence is not admissible in any
criminal proceeding involving alleged child
sexual abuse:
1. Evidence to prove that the alleged victim
engaged in other sexual behavior; and
2. Evidence offered to prove the sexual
predisposition of the alleged victim [Sec 30,
Rule on Examination of a Child Witness]
b. Civil cases
Moral character is admissible only when
pertinent to the issue of character involved in
the case [Sec. 54(b), Rule 130]
c. Criminal and civil cases
Evidence of the witness’ good character is not
admissible until such character has been
impeached
In all cases in which evidence of character or a
trait of character of a person is admissible,
proof may be made by:
1. Testimony as to reputation; or
2. Testimony in the form of an opinion
On cross-examination, inquiry is allowable into
relevant specific instances of conduct.
In cases where the character or trait of
character is an essential element of a charge,
claim, or defense, proof may also be made of
specific instances of that person’s conduct.
[Sec. 54(c), Rule 130]
Page 518 of 525
REMEDIAL LAW
8. Judicial Affidavit Rule [A.M.
12-8-8-SC]
a. Scope
Where Applicable
Applies to all actions and proceedings, and
incidents requiring the reception of evidence
before:
1. Courts (but not to small claims cases)
2. Investigating officers and bodies
authorized by the SC to receive evidence,
including the IBP
3. Quasi-judicial bodies, whose rules of
procedure are subject to disapproval of the
Supreme Court, insofar as their existing
rules of procedure contravene the
provisions of this Rule
[Sec. 1]
b. Submission in lieu of direct
testimony
1. The parties shall file with the court and
serve on the adverse party, personally or
by licensed courier service, not later than
five days before pre-trial or preliminary
conference or the scheduled hearing with
respect to motions and incidents, the
following
a. The judicial affidavits of their
witnesses, which shall take the place of
such witnesses' direct testimonies; and
b. The parties' documentary or object
evidence, if any, shall be marked and
attached to the judicial affidavits
2. Should a party or a witness desire to keep
the original document or object evidence in
his possession, he may, after the same has
been identified, marked as exhibit, and
authenticated, warrant in his judicial
affidavit that the copy or reproduction
attached to such affidavit is a faithful copy
or reproduction of that original. In addition,
the party or witness shall bring the original
document or object evidence for
comparison during the preliminary
conference with the attached copy,
reproduction, or pictures, failing which the
latter shall not be admitted. This is without
U.P. LAW BOC EVIDENCE
prejudice to the introduction of secondary
evidence in place of the original when
allowed by existing rules.
[Sec. 2]
c. Contents
Shall be prepared in the language known to the
witness and, if not in English or Filipino,
accompanied by a translation in English or
Filipino [Sec. 3]
1. The name, age, residence or business
address, and occupation of the witness
2. The name and address of the lawyer who
conducts or supervises the examination of
the witness and the place where the
examination is being held
3. A statement that the witness is answering
the questions asked of him, fully conscious
that he does so under oath, and that he
may face criminal liability for false
testimony or perjury
4. Questions asked of the witness and his
corresponding answers, consecutively
numbered, that
a. Show the circumstances under which
the witness acquired the facts upon
which he testifies
b. Elicit from him those facts which are
relevant to the issues that the case
presents; and
c. Identify the attached documentary and
object evidence and establish their
authenticity in accordance with the
Rules of Court
5. The signature of the witness over his
printed name
6. A jurat with the signature of the notary
public who administers the oath or an
officer who is authorized by law to
administer the same
[Sec. 3]
7. A sworn attestation at the end, executed by
the lawyer who conducted or supervised
the examination of the witness, to the effect
that:
a. He faithfully recorded or caused to be
recorded the questions he asked and
the corresponding answers that the
witness gave; and
Page 519 of 525
REMEDIAL LAW
b. Neither he nor any other person then
present or assisting him coached the
witness regarding the latter's answers.
A false attestation shall subject the lawyer
mentioned to disciplinary action, including
disbarment.
[Sec. 4]
d. Offer and objection
Offer of and objections to testimony in
judicial affidavit
1. The party presenting the judicial affidavit of
his witness in place of direct testimony shall
state the purpose of such testimony at the
start of the presentation of the witness.
2. The adverse party may move to disqualify
the witness or to strike out his affidavit or
any of the answers found in it on ground of
inadmissibility.
3. The court shall promptly rule on the motion
and, if granted, shall cause the marking of
any excluded answer by placing it in
brackets under the initials of an authorized
court personnel, without prejudice to a
tender of excluded evidence under Section
40 of Rule 132 of the Rules of Court.
[Sec. 6]
Examination of the witness on his judicial
affidavit
1. The adverse party shall have the right to
cross-examine the witness on his judicial
affidavit and on the exhibits attached to the
same.
2. The party who presents the witness may
also examine him as on re-direct.
3. In every case, the court shall take active
part in examining the witness to determine
his credibility as well as the truth of his
testimony and to elicit the answers that it
needs for resolving the issues.
[Sec. 7]
Oral offer of and objections to exhibits
1. Upon the termination of the testimony of his
last witness, a party shall immediately
make an oral offer of evidence of his
documentary or object exhibits, piece by
piece, in their chronological order, stating
U.P. LAW BOC EVIDENCE REMEDIAL LAW

the purpose or purposes for which he offers documentary and object evidence
the particular exhibit. previously marked as Exhibits 1, 2, 3, and
2. After each piece of exhibit is offered, the so on. These affidavits shall serve as direct
adverse party shall state the legal ground testimonies of the accused and his
for his objection, if any, to its admission, witnesses when they appear before the
and the court shall immediately make its court to testify.
ruling respecting that exhibit. [Sec. 9]
3. Since the documentary or object exhibits
form part of the judicial affidavits that f. Effect of non-compliance
describe and authenticate them, it is
sufficient that such exhibits are simply cited Non-compliant
by their markings during the offers, the Consequence
behavior
objections, and the rulings, dispensing with Deemed to have waived
the description of each exhibit. their submission
[Sec. 8]
Note: Court may allow,
e. Application in criminal cases only once late submission,
Party’s failure provided
This Judicial Affidavit Rule shall apply to all 1. the delay (a) is for a
to submit
criminal actions: valid reason, (b)
1. Where the maximum of the imposable would not prejudice
penalty does not exceed six years; the opposing party
2. Where the accused agrees to the use of and
judicial affidavits, irrespective of the 2. the defaulting party
penalty involved; or pays a fine.
3. With respect to the civil aspect of the Witness’ failure
actions, whatever the penalties involved to appear at the Affidavit shall not be
are scheduled considered by the court
[Sec. 9] hearing
Deemed to have waived
Procedure Counsel’s
his client’s right to cross-
1. The prosecution shall submit the judicial failure to
examine the witnesses
affidavits of its witnesses not later than five appear
there present
days before the pre-trial, serving copies ·of Judicial affidavit cannot be
the same upon the accused. admitted as evidence
2. The complainant or public prosecutor shall
attach to the affidavits such documentary The court may, however,
or object evidence as he may have, allow only once the
marking them as Exhibits A, B, C, and so subsequent submission of
on. Non-
compliance the compliant replacement
3. No further judicial affidavit, documentary,
with content affidavits before the
or object evidence shall be admitted at the
and attestation hearing or trial provided
trial.
requirements 1. the delay (a) is for a
4. If the accused desires to be heard on his
valid reason, (b)
defense after receipt of the judicial would not prejudice
affidavits of the prosecution, he shall have the opposing party
the option to submit his judicial affidavit as and
well as those of his witnesses to the court 2. the defaulting party
within ten days from receipt of such pays a fine.
affidavits and serve a copy of each on the [Sec. 10]
public and private prosecutor, including his

Page 520 of 525

U.P. LAW BOC EVIDENCE
Issuance of Subpoena
If the government employee or official, or the
requested witness, who is neither the witness
of the adverse party nor a hostile witness,
unjustifiably declines to execute a judicial
affidavit or refuses without just cause to make
the relevant books, documents, or other things
under his control available for copying,
authentication, and eventual production in
court, the requesting party may avail himself of
the issuance of a subpoena ad testificandum or
duces tecum under Rule 21 of the Rules of
Court. The rules governing the issuance of a
subpoena to the witness in this case shall be
the same as when taking his deposition except
that the taking of a judicial affidavit shall be
understood to be ex parte [Sec. 5]
Adverse party witnesses and hostile witnesses
are excluded since they are not covered by
Sec. 5 [Tam v. China Banking Corporation,
G.R. No. 214054 (2015)]
There is nothing in the provisions of the Judicial
Affidavit Rule, which prohibits a defendant from
filing a demurrer to evidence, if he truly
believes that the evidence adduced by the
plaintiff is insufficient. [Lagon v. Velasco, G.R.
No. 208424 (2018)]
The provisions of the Rules of Court and other
rules of procedure in the investigative or quasi-
judicial bodies covered by this rule are
repealed or modified insofar as these are
inconsistent with the provisions of this Rule
[Sec. 11]
F. OFFER AND
OBJECTION
1. Offer of Evidence
General rule: The court shall consider no
evidence which has not been formally offered.
The purpose for which the evidence is offered
must be specified [Sec. 34, Rule 132]
Exception:
Page 521 of 525
REMEDIAL LAW
Evidence not formally offered may be
admissible when two essential conditions
concur:
a. the same must have been duly identified by
testimony duly recorded and,
b. the same must have been incorporated in
the records of the case
[Star Two v. Ko, G.R. No. 185454 (2011)]
As Distinguished from Identification of
Documentary Evidence
Identification of
Formal Offer of
Documentary
Evidence
Evidence
Done in the course Done only when the
of the trial and party rests his/her
accompanied by the case
marking of the
evidence
[Interpacific Transit v. Aviles, G.R. No. 86062
(1990)]
Why Formal Offer is Necessary
Parties are required to inform the courts of the
purpose of introducing their respective exhibits
to assist the latter in ruling on their admissibility
in case an objection thereto is made. [Star Two
v. Ko, G.R. No. 185454 (2011)]
A formal offer is necessary because it is the
duty of a judge to rest his findings of facts and
his judgment only and strictly upon the
evidence offered by the parties to the suit. It is
a settled rule that the mere fact that a particular
document is identified and marked as an
exhibit does not mean that it has thereby
already been offered as part of the evidence of
a party. [Parel v. Prudencio, G.R. 146556
(2006).
No evidentiary value can be given to pieces of
evidence not formally offered [Dizon v. CTA,
G.R. No. 140944 (2008)]
However, where the absence of an offer of
testimonial evidence was not objected to as
when the witness was cross-examined by the
adverse party despite failure to make an offer
of the testimony, the court must consider the
testimony.
U.P. LAW BOC EVIDENCE REMEDIAL LAW

The provisions of the ROC on the inclusion n 2. When to Make an Offer

appeal of documentary evidence or exhibits in
the records, cannot be stretched as to include Kind of
such pleadings or documents not offered at the When to offer
evidence
hearing of the case [Candido v. C.A., G.R.No.
At the time the witness is
107493 (1996)] Testimonial
called to testify
When Formal Offer is NOT Required After the presentation of a
Documentary
a. In a summary proceeding because it is a party’s testimonial
and Object
proceeding where there is no full-blown evidence
trial; [Sec. 35, Rule 132]
b. Documents judicially admitted or taken
judicial notice of; @ The party who terminated the presentation of
c. Documents, affidavits, and depositions evidence must make an oral offer of evidence
used in rendering a summary judgment; on the very day the party presented the last
d. Documents or affidavits used in deciding witness. Otherwise, the court may consider the
quasi-judicial or administrative cases party’s documentary or object evidence waived
[Bantolino v. Coca Cola Bottlers, G.R. No. [Heirs of Pasag v. Sps. Parocha, G.R. No.
153660 (2003)] 155483 (2007)]
e. Lost objects previously marked, identified,
described in the record, and testified to by Manner of Offer
witness who had been subjects of cross- ALL evidence must be offered orally [Sec. 35,
examination in respect to said objects Rule 132]
[Tabuena v. C.A., G.R. No. 85423 (1991),
citing People v. Napat-a, G.R. No. 84951 Note: This is a revision under the 2019 Revised
(1989)] Rules.
[Riano 343, 2016 Ed.]
f. When duly identified in a testimony duly The Court shall consider the evidence solely
recorded and it was incorporated in the for the purpose for which it is offered, not for
records of the case [Vda. de Oate v. C.A., any other purpose [Spouses Ragudo v Fabella
G.R. No. 116149 (1995)] Estate Tenants Association, Inc., G.R. No.
146823, (2005)].
Evidence can be considered only for the
purposes it was specifically offered [Republic v 3. Objection
Reyes-Bakunawa, G.R. No. 180418 (2013)]
Concept
Waiver of Right to Make Formal Offer When a party desires the court to reject the
It is deemed waived by a party if it fails to evidence offered, he must so state in the form
submit within a considerable period of time its of objection. Without such objection, he cannot
formal offer [Heirs of Pasag v. Parocha, G.R. raise the question for the first time on appeal
No. 155483 (2007)] [People v. Diaz, G.R. No. 197818 (2015)]
A party is not deemed to have waived objection Purposes of Objection
to admissibility of documents by his failure to 1. Made to keep out inadmissible evidence
object to the same when they were marked, that would cause harm to client’s cause
identified and then introduced during the trial. (rules of evidence are not self-operating);
This is because objection to documentary 2. To protect the record (for future appeal);
evidence must be made at the time it is formally 3. To protect witness from being
offered and not earlier [Interpacific Transit v. embarrassed or harassed;
Aviles, G.R. No. 86062 (1990)] 4. To expose adversary’s unfair tactics;

Page 522 of 525

U.P. LAW BOC EVIDENCE
5. To give trial court an opportunity to correct
its own errors and at the same time warn
the court that a ruling adverse to the
objector may supply a reason to invoke a
higher court’s appellate jurisdiction; and
6. To avoid a waiver of inadmissibility
[Riano]
Objections must be specific enough to
adequately inform the court the rule of
evidence or of substantive law that authorizes
the exclusion of evidence [Riano]
MANNER
Objection to offer of evidence must be made
ORALLY immediately after the offer is made
[Sec. 35, Rule 132]
When to Object
What to object to When to object
Testimony of a Immediately as soon
witness for lack of as the witness
formal offer begins to testify
A question Must be made as
propounded in the soon as the grounds
course of oral become reasonably
examination apparent
The grounds for objection must be specified
in any case.
[Sec. 36, Rule 132]
Waiver of Objection
When there is failure to point out some defect,
irregularity or wrong in the admission or
exclusion of evidence. Such failure may take
various forms and may either be expressed or
implied [Riano 353, 2016 Ed.]
Effect of waiver
Although hearsay evidence may be admitted
because of lack of objection, it is nonetheless
without probative value, unless the proponent
can show that the evidence falls within the
exception to the hearsay evidence rule [Bayani
v. People, G.R. No. 155619 (2007)]
4. Repetition of an Objection
When it becomes reasonably apparent in the
course of examination of a witness that the
Page 523 of 525
REMEDIAL LAW
questions being propounded are of the same
class as those to which objection was
sustained or overruled, it shall not be
necessary to repeat the objection, it being
sufficient for the adverse party to record his/her
continuing objection to such class of
questions [Sec. 37, Rule 132]
A court may, motu proprio, treat the objection
as a continuing one [Keller v. Ellerman &
Bucknall Steamship, G.R. No. L-12308 (1918)]
Objection prior to the formal offer is premature
and could not be considered by the Court as
basis for a continuing one [Interpacific Transit
v. Aviles, G.R. No. 86062 (1990)]
Where a continuing objection had been
interposed on prohibited testimony, the
objection is deemed waived where the
objecting counsel cross-examined the witness
on the very matters subject of the prohibition
[De Abraham v. Recto-Kasten, G.R. No. L-
16741 (1962)]
5. Ruling
General rule: The ruling of the court must be
given immediately after the objection is made.
Exception: The court desires to take a
reasonable time to inform itself on the question
presented; but the ruling shall always be made
during the trial and at such time as will give the
party against whom it is made an opportunity to
meet the situation presented by the ruling.
[Sec. 38, Rule 132]
A reasonable time must not extend beyond the
ninety (90)-day reglementary period from the
date of submission of the formal offer of
evidence [Beltran v. Paderanga, AM No. RTJ-
03-1747 (2003)]
The reason for sustaining or overruling an
objection need not be stated. However, if the
objection is based on two or more grounds, a
ruling sustaining the objection on one or some
of them must specify the ground/s relied upon
[Sec. 38, Rule 132]
U.P. LAW BOC EVIDENCE
Reservation of a ruling by the court on an
objection to the admissibility of evidence,
without subsequently excluding the same,
amounts to a denial of an objection [People v.
Tavera, G.R. No. L-23172 (1925)]
No Express Ruling Needed
The trial court need not make an express ruling
admitting the exhibits if there is no objection
interposed to their admission [Herrera, citing
Boix v. Rivera, CA Rep. 2d 104]
The ruling of the court is required only when
there is an objection to a question or to the
admission of an exhibit [Herrera]
Objections based on irrelevancy and
immateriality need no specification or
explanation. Relevancy or materiality of
evidence is a matter of logic, since it is
determined simply by ascertaining its logical
connection to a fact in issue in the case [Cruz-
Arevalo v. Querubin-Layosa, AM No. RTJ-06-
2005 (2006)]
6. Striking Out an Answer
Motion to Strike
A motion to strike out goes to admissibility and
not to weight; evidence should not be stricken
out because of its little probative value
[Herrera]
1. Court may sustain an objection and order
the answer, testimony, or narration to be
stricken off the record if:
a. the witness answers the question
before the adverse party had the
opportunity to object;
b. a question is not objectionable, but the
answer is not responsive;
c. the witness testifies without a question
being posed;
d. the witness testifies beyond limits set
by the court; or
e. the witness does a narration instead of
answering the question; AND
f. such objection is found to be
meritorious.
2. The court may also, upon motion, order the
striking out of answers, which are
Page 524 of 525
REMEDIAL LAW
a. incompetent,
b. irrelevant or
c. otherwise improper
[Sec. 39, Rule 132]
Motion to strike out should specify
objection
A motion to strike out should specify the
objection as well as the portion of the evidence
which is objected to [Herrera]
7. Tender of Excluded Evidence
The procedure in Section 40 is known as the
offer of proof or tender of excluded evidence
and is made for purposes of appeal. If an
adverse judgment is eventually rendered
against the offeror, he may in his appeal assign
as error the rejection of the excluded evidence.
The appellate court will better understand and
appreciate the assignment of error if the
evidence involved is included in the record of
the case [Cruz-Arevalo v. Querubin-Layosa,
AM No. RTJ-06-2005 (2006)]
The SC had advised trial courts to allow the
rejected [documentary] evidence to be
attached to the record to enable the appellate
court to examine the same and determine
whether the exclusion of the same was proper
or not [Herrera, citing Banez v. C.A., G.R. No.
L-30351 (1974)]
If an exhibit sought to be presented in evidence
is rejected, the party producing it should ask
the courts permission to have the exhibit
attached to the record. Any evidence that a
party desires to submit for the consideration of
a higher court must be formally offered by him
otherwise it is excluded and rejected and
cannot even be taken cognizance of on appeal
[Catacutan v. People, G.R. No. 175991 (2011)]
Before tender of excluded evidence is made,
the evidence must have been formally offered
before the court. And before formal offer of
evidence is made, the evidence must have
been identified and presented before the court
[Yu v. C.A., G.R. No. 154115 (2005)]
U.P. LAW BOC EVIDENCE REMEDIAL LAW

How to Tender Evidence case. Any such opportunity, however, for the
Kind of How to tender the ultimate purpose of the admission of additional
evidence evidence evidence is already addressed to the sound
Offeror may have the same discretion of the court [Republic v.
Documentary attached or made part of Sandiganbayan, G.R. No. 152375 (2011)
the record
Offeror may state for the
record the name and other
personal circumstances of
Testimonial
the witness and the
substance of the proposed
testimony
[Sec. 40, Rule 132]

Rationale
1. to allow the court to know the nature of the
testimony or the documentary evidence
and convince the trial judge to permit the
evidence or testimony; and
2. even if he is not convinced to reverse his
earlier ruling, the tender is made to create
and preserve a record for appeal
[Riano 360, 2016 Ed.]

Two Methods of making the Tender

1. Where the counsel tells the court what the
proposed testimony would be;
2. By using the question and answer form
[Riano 361-362, 2016 Ed.]

Erroneous Way of Making Tender

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

Harmless error rule

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

The Rules of Court does not prohibit a party

from requesting the court to allow it to present
additional evidence even after it has rested its

Page 525 of 525