FACULTY OF CIVIL LAW (1734)

REMEDIAL LAW

2022 GOLDEN NOTES

FACULTY OF CIVIL LAW
UNIVERSITY OF SANTO TOMAS
MANILA
VII. EVIDENCE ....................................................................................................................................................... 579

A. GENERAL CONCEPTS ....................................................................................................................... 579

1. PROOF VS. EVIDENCE .................................................................................................................. 580
2. BURDEN OF PROOF VS. BURDEN OF EVIDENCE ..............................................................580
3. EQUIPOISE RULE............................................................................................................................ 581
B. ADMISSIBILITY ................................................................................................................................. 581
1. REQUISITES (RULE 128) ............................................................................................................ 581
2. EXCLUSIONARY RULES ...............................................................................................................581
3. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS (Rule 129) .........................................586
C. OBJECT (REAL) EVIDENCE (RULE 130, A) ............................................................................... 592
D. DOCUMENTARY EVIDENCE (RULE 130, B) ............................................................................. 602
1. DEFINITION...................................................................................................................................... 602
2. ORIGINAL DOCUMENT RULE
(PREVIOUSLY KNOWN AS THE BEST EVIDENCE RULE) .................................................. 603
3. SECONDARY EVIDENCE .............................................................................................................. 606
4. Parol Evidence Rule ......................................................................................................................611
5. INTERPRETATION OF DOCUMENTS .................................................................................... 615
E. TESTIMONIAL EVIDENCE (RULE 130, C) .................................................................................. 616
1. QUALIFICATION OF WITNESSES ............................................................................................ 616
2. TESTIMONIAL PRIVILEGE ......................................................................................................... 621
3. ADMISSIONS AND CONFESSIONS ........................................................................................... 633
4. PREVIOUS CONDUCT AS EVIDENCE ...................................................................................... 641
5. TESTIMONIAL KNOWLEDGE ....................................................................................................644
6. HEARSAY AND EXCEPTIONS TO THE HEARSAY RULE.................................................. 644
7. OPINION RULE ................................................................................................................................ 662
8. CHARACTER EVIDENCE .............................................................................................................. 664
F. BURDEN OF PROOF AND PRESUMPTIONS (RULE 131) ....................................................... 666
G. PRESENTATION OF EVIDENCE (RULE 132)............................................................................. 673
1. EXAMINATION OF WITNESSES ............................................................................................... 673
2. AUTHENTICATION AND PROOF OF DOCUMENTS ......................................................... 686
3. OFFER AND OBJECTION .............................................................................................................. 693
H. JUDICIAL AFFIDAVIT RULE (A.M. No. 12-8-8-SC).................................................................. 699
I. WEIGHT AND SUFFICIENCY OF EVIDENCE (RULE 133)........................................................ 705
J. RULES ON ELECTRONIC EVIDENCE (A.M. No. 01-7-01-SC) .................................................. 717
 Evidence

Evidence in Civil Cases and Evidence in Criminal

VII. EVIDENCE Cases

EVIDENCE IN CIVIL EVIDENCE IN

CASE CRIMINAL CASE
The party having the The guilt of the
A. GENERAL CONCEPTS burden of proof must accused must be
prove his claim by a proved beyond
preponderance of reasonable doubt. (Sec.
Concept of Evidence evidence. (Sec. 1, Rule 2, Rule 133, ROC, as
133, ROC, as amended) amended)
Evidence is the means, sanctioned by the Rules of GR: An offer of
Court, of ascertaining in a judicial proceeding the compromise is not an
truth respecting a matter of fact. (Sec. 1, Rule 128, implied admission of
ROC, as amended) any liability, and is not
admissible in evidence
Principle of Uniformity GR: An offer of
against the offeror.
compromise by the
The Rules of Evidence shall be the same in all courts accused may be
Neither is evidence of
and in all trials and hearings, except as otherwise received in evidence as
conduct nor statements
provided by law or the Rules of Court. an implied admission of
made in compromise
guilt.
negotiations
Applicability of the Rules on Evidence admissible.
XPNs:
The Rules of Evidence, being part of the Rules of 1. Those involving
XPN: Evidence
Court, apply only to judicial proceedings. (Sec. 1, quasi-offenses
otherwise discoverable
Rule 128, ROC, as amended) (criminal
or offered for another
negligence); and
purpose, such as
The Rules of Court shall not apply to: (N-I-C-O-L-E) proving bias or
2. Criminal cases
prejudice of a witness,
1. Naturalization proceedings; allowed by law to
negativing a contention
2. Insolvency proceedings; be compromised.
of undue delay, or
3. Cadastral proceedings; (Sec. 28, Rule 130,
proving an effort to
4. Other cases not provided in the Rules of Court; ROC, as amended)
obstruct a criminal
5. Land registration proceedings; and investigation or
6. Election cases (Sec. 4, Rule 1, ROC, as amended) prosecution. (Sec. 28,
Rule 130, ROC, as
However, the rules may apply to the amended)
abovementioned proceedings and cases by analogy The concept of
or in a suppletory character and whenever presumption of
practicable and convenient. (Sec. 4, Rule 1, ROC, as innocence does not
amended) The accused enjoys the
apply and generally
constitutional
there is no
presumption of
presumption for or
innocence.
against a party except
in cases provided for by
law.
The concept of Confession is a
confession does not declaration of an

579 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 Remedial Law

apply. accused 2. BURDEN OF PROOF VS. BURDEN OF

acknowledging his EVIDENCE
guilt.
BURDEN OF
BURDEN OF PROOF
1. PROOF VS. EVIDENCE EVIDENCE
It is the duty of a party
PROOF EVIDENCE to present evidence
It is the duty of a party
It is the mode or sufficient to establish
It is merely the to present evidence on
manner of proving or rebut a fact in issue
probative effect of the facts necessary to
competent facts in to establish a prima
evidence and is the establish his or her
judicial proceedings. facie case. (Sec. 1, Rule
conviction or claim or defense by the
(Bustos v. Lucero, 81 131, ROC, as amended)
persuasion of the mind amount of evidence
Phil. 640)
resulting from required by law. (Sec. 1,
Burden of evidence is
consideration of the Rule 131, ROC, as
Without evidence, that logical necessity
evidence. amended)
there is no proof. which rests upon a
Effect or result of party at any particular
Medium of proof. Burden of proof or
evidence. time during the trial to
“onus probandi”
create a prima facie
traditionally refers to
Factum Probandum vs. Factum Probans case in his favor or to
the obligation of a party
overthrow one when
to a litigation to
FACTUM created against him.
FACTUM PROBANS persuade the court that
PROBANDUM (People of the
he is entitled to relief.
The facts or material Philippines v. CA, G.R.
The fact or proposition (Riano, 2019)
evidencing the fact or No. 183652, 25 Feb.
to be established. 2015)
proposition to be
established. Duty of a party to
The fact to be proved, The probative or present evidence to
the fact which is in evidentiary fact establish his claim or Duty of the party to go
issue and to which the tending to prove the defense by the amount forward with the
evidence is directed. fact in issue. of evidence required by evidence to overthrow
Intermediate or law, which is the prima facie
Ultimate Facts. preponderance of evidence against him.
evidentiary facts.
Hypothetical. Existent. evidence in civil cases. (Bautista v. Sarmiento,
(Supreme Transliner, G.R. No. L-45137,
Illustration: If P claims to have been injured by the Inc. v. CA, G.R. No. September, 23, 1985)
negligence of D, while D denies having been 125356, November 21, (Bautista v. Sarmiento,
negligent, the negligence is the fact to be 2001) (Supreme G.R. No. L-45137, 23
established. It is the factum probandum. The Transliner, Inc. v. CA, Sept. 1985)
evidence offered by P constitutes the material to G.R. no. 125356, 21 Nov.
prove the liability of D. The totality of the evidence 2001)
to prove the liability is the factum probans. (Riano, Never shifts. (Sec. 1, May shift from one
2019) Rule 131, ROC, as party to the other in
amended) the course of the
It remains throughout proceedings,
the entire case exactly depending on the
where the pleadings exigencies of the case.
originally placed it or (Sec. 1, Rule 131, ROC,
with the party upon as amended)

580
 Evidence

whom it is imposed. plaintiff makes out a prima facie case in his favor,
(Republic v. Mupas, G.R. the duty or the burden of evidence shifts to
No. 181892, September defendant to controvert plaintiff’s prima facie case,
8, 2015) (Republic v. otherwise, a verdict must be returned in favor of
Mupas, G.R. No. 181892, plaintiff. Hence, the plaintiff must establish the
08 Sept. 2015) failure to pay on the part of the defendant, the latter,
Generally determined on the other hand, has to prove their defense that
by the developments the obligation was extinguished.
of the trial, or by the
provisions of In this case, BPI, as plaintiff, had to prove that
Generally determined
substantive law or spouses De Leon failed to pay their obligations
by the pleadings filed
procedural rules under the promissory note. The spouses, on the
by the party.
which may relieve the other hand, had to prove their defense that the
party from presenting obligation was extinguished by the loss of the
evidence of the facts mortgaged vehicle, which was insured. The mere
alleged. loss of the mortgaged vehicle does not automatically
relieve the spouses De Leon of their obligation. As
Test for determining where the Burden of Proof provided in the Promissory Note with Chattel
lies Mortgage, the mortgagor must notify and submit
proof of loss to the mortgagee. (De Leon v. BPI, G.R.
Ask which party to an action or suit will fail if he No. 184565, 20 Nov. 2013)
offers no evidence competent to show the facts
averred as the basis for the relief he seeks to obtain.
B. ADMISSIBILITY
3. EQUIPOISE RULE

A situation where the evidence of the parties is

1. REQUISITES (RULE 128)
evenly balanced, or there is doubt on which side the
evidence preponderates (or weighs more heavily).
1. The evidence is relevant to the issue; and
(Rivera v. Court of Appeals, G.R. No. 115625, January
23, 1998) (Rivera v. Coart of Appeals, G.R. No. 115625, NOTE: It is relevant if it has such a relation to
23 Jan. 1998)
the fact in issue as to induce belief in its
existence or non-existence. (Sec. 4, Rule 128,
It is based on the principle that no one shall be ROC, as amended)
deprived of his life, liberty or property without due
process of law. (Sec. 1, Art III, 1987 Constitution)
2. The evidence is competent.

In criminal cases, where the evidence is evenly

balanced, the constitutional presumption of
innocence tilts the scales in favor of the accused.
In civil cases, when the evidence of the parties is in
equipoise, the party who has the burden of proof
loses.
NOTE: The evidence is competent when it is not
excluded by the Constitution, the law or the
Rules of Court. (Sec. 3, Rule 128, ROC, as
amended). Competency is determined by the
prevailing exclusionary rules of evidence.
2. EXCLUSIONARY RULES

Q: In a collection case, who has the burden of proof?
A: The party who alleges a fact has the burden of
proving it. In the course of trial in a civil case, once
Rules on evidence consist of established precepts
for inclusion or exclusion of factum probans toward
the desired factum probandum. Whatever tends in
reason to establish a fact in issue is relevant, and

581 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 Remedial Law

that which does not answer this requirement is not. of 2009) (Sec. 8, R.A. No. 9745 or Anti Torture Act
(Peralta & Peralta, Jr., 2020) of 2009)

Evidence is admissible when it is relevant to the C. Under the Rules of Court, Rule 130 is the
issue and is not excluded by the Constitution, the applicable rule in determining the admissibility
law, or these rules. (Sec. 3, Rule 128, ROC, as of evidence.
amended)
D. Court issuances, such as:
A. Constitutional Exclusionary Rules
1. Rules on Electronic Evidence, e.g., compliance
1. Unreasonable searches and seizures; (Sec. 2, with authentication requirements for electronic
Art. III, 1987 Constitution) evidence;
2. Privacy of communication and correspondence; 2. Rule on Examination of Child Witness, e.g.,
(Sec. 3, Art. III, 1987 Constitution) sexual abuse shield rule; and
3. Right to counsel, prohibition on torture, force, 3. Judicial Affidavit Rule.
violence, threat, intimidation, or other means
which vitiate the free will; prohibition on secret Admissibility vs. Weight
detention places, solitary, incommunicado; and
(Sec. 12, Art. III, 1987 Constitution) WEIGHT
4. Right against self-incrimination. (Sec. 17, Art. III, ADMISSIBILITY (PROBATIVE
1987 Constitution) VALUE)
Refers to the question
B. Statutory Exclusionary Rules of whether or not the
Refers to the question
evidence is to be
of whether or not the
1. Lack of documentary stamp tax in documents, considered at all.
evidence proves an
instruments, or papers required by law to be (Atienza v. Board of
issue.
stamped makes such documents inadmissible Medicine, G.R. No.
as evidence in court until the requisite stamp/s 177407, 09 Feb. 2011)
shall have been affixed thereto and cancelled. Pertains to evidence
(Sec. 201, NIRC) already submitted
and its tendency to
Depends on relevance
2. Any communication obtained by a person, not convince or persuade.
and competence.
being authorized by all the parties to any (Tating v. Marcella,
private communication, by tapping any G.R. No. 155208, 27
wire/cable or using any other Mar. 2007)
device/arrangement to secretly
overhear/intercept/record such information Doctrine of the Fruit of the Poisonous Tree
by using any device, shall not be admissible in
evidence in any judicial/quasi- Illegally obtained evidence shall be inadmissible in
judicial/legislative/administrative hearing or evidence for any purpose in any proceeding because
investigation. (Secs. 1 and 4, R.A. No. 4200, Anti- they are the “fruit of the poisonous tree.”
Wire Tapping Act)
E.g., Evidence obtained without a valid search
3. Any confession, admission or statement warrant subject to exceptions; issuance of general
obtained as a result of torture shall be warrants that encourage law enforcers to go on
inadmissible in evidence in any proceedings, fishing expeditions (Sec. 3 (2), Art. III, 1987
except if the same is used as evidence against a Constitution) (2010 BAR)
person or persons accused of committing
torture. (Section 8, RA 9745 or Anti Torture Act

582
 Evidence
Illegally seized evidence is obtained as a direct
result of the illegal act, whereas the "fruit of the
poisonous tree" is the indirect result of the same
illegal act. The "fruit of the poisonous tree" is at least
once removed from the illegally seized evidence, but
it is equally inadmissible. The rule is based on the
principle that evidence illegally obtained by the
State should not be used to gain other evidence
because the originally illegally obtained evidence
taints all evidence subsequently obtained. (People v.
Alicando, G.R. No. 117487, 12 Dec. 1995)
Relevancy of Evidence
Evidence must have such a relation to the fact in
issue as to induce belief in its existence or non-
existence. (Sec. 4, Rule 128, ROC, as amended)
The court will admit only evidence which is relevant
to the issue. (Sec. 3, Rule 128, ROC, as amended)
Collateral matters
Collateral matters refer to matters other than the
fact in issue.
GR: Evidence on collateral matters is not allowed.
Illustration: Motive of a person or his reputation is
a matter that may be considered collateral to the
subject of controversy.
XPN: It is allowed when it tends in any reasonable
degree to establish the probability or improbability
of the fact in issue. (Sec. 4, Rule 128, ROC, as
amended)
Multiple Admissibility (2005 BAR)
Where the evidence is relevant and competent for
two or more purposes, such evidence should be
admitted for any or all purposes for which it is
offered provided it satisfies all the requirements of
law for its admissibility (Regalado, 2008).
Illustration: Depending upon circumstances, the
declaration of a dying person may be admissible for
two or more purposes. It may be offered as a dying
declaration under Sec. 38, Rule 130, ROC, as
amended, and as part of res gestae under Sec. 44,
583
Rule 130, ROC, as amended. The statement by a bus
driver immediately after the collision that he dozed
off in the wheel while driving may be admissible as
an admission under Sec. 27, Rule 130, ROC, as
amended and/or as part of res gestae pursuant to
Sec. 44, Rule 130, ROC, as amended.
Conditional Admissibility (2011 BAR)
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 will be stricken out.
(Regalado, 2008)
Curative Admissibility
It allows a party to introduce otherwise
inadmissible evidence to answer the opposing
party’s previous introduction of inadmissible
evidence. (Riano, 2019)
Illustration: In an action for damages arising from
car accident, the plaintiff, despite objection by the
defendant, was allowed to introduce evidence to
show that, on several occasions, the defendant, in
the past, had injured pedestrians because of
negligence. Following the concept of curative
admissibility, the court may be asked to give the
defendant the chance to contradict or explain his
alleged past acts and to show evidence of his past
acts of diligence to counteract the prejudice which
the improperly admitted evidence may have caused.
(Riano, 2019)
Thus, a party who first introduces either irrelevant
or incompetent evidence into the trial cannot
complain of the subsequent admission of similar
evidence from the adverse party relating to the
subject matter. (Commonwealth v. Alexander, 5
S.W.rd 104, 26 Aug. 1999) Conversely, the doctrine
should not be invoked where evidence was properly
admitted.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
Multiple, Conditional, and Curative
Admissibility
In gist, if relevant and competent, evidence may be
(1) Conditional, which connotes tentative or
temporary evidence; (2) Multiple, where it is
legally permissible for different aspects; or (3)
Curative, when it is intended to receive
inadmissible evidence from a party to neutralize a
previously accepted inadmissible evidence from the
other party. (Peralta & Peralta, 2020)
Direct Evidence
That which proves a fact without the need to make
an inference from another fact. (Riano, 2019)
Circumstantial Evidence or Indirect Evidence
That which proves a fact in issue indirectly through
an inference which the fact finder draws from the
evidence established. (People v. Matito, G.R. No.
144405, 24 Feb. 2004)
It may happen that no prosecution witness has
actually seen the commission of the crime. However,
jurisprudence tells us that direct evidence of the
crime is not the only matrix from which a trial court
may draw its conclusion and finding of guilt. The
rules on evidence allow a trial court to rely on
circumstantial evidence Circumstantial Evidence to
support its conclusion of guilt.
Illustration: The prosecution presented
corroborating evidence which constitute an
unbroken chain leading to the inevitable conclusion
that accused is guilty of killing the victim. For
instance, the presence of gunpowder nitrates on
accused after a paraffin test; the firearm used in the
killing which could either be a .38 caliber or 9 mm
pistol details with the testimony of a witness that he
saw accused carrying a .38 caliber short firearm
which was later found to have been recently fired;
and the absence of gunpowder nitrates on the hands
of the victim after a paraffin test which belies
accused’s claim that he was shot by the victim or
that the latter exchanged fire with a police office.
(People v. Alawig, G.R. No. 187731, 13 Sept. 2013)
584
Difference between Direct Evidence and
Circumstantial Evidence
The difference involves a relationship of the fact
inferred to the facts that constitute the offense.
Their difference does not relate to the probative
value of the evidence. Direct evidence proves a
challenged fact without drawing any inference.
Circumstantial evidence, on the other hand,
indirectly proves a fact in issue, such that the fact-
finder must draw an inference or reason from
circumstantial evidence. (Planteras v. People, G.R.
No. 238889, 03 Oct. 2018)
Q: X and Y were charged with Robbery with
Homicide. The prosecution established that on
the day of the incident, J and L were having a
conversation in their house when two (2)
persons asked them where the house of the
victim was located. J and L, in response, pointed
to the house of their neighbor. Later, J and L
heard someone shouting and moaning inside
the house of the victim, who was their neighbor.
J went out of the house and saw somebody
waving a flashlight inside the victim's house, as
if looking for something. This prompted him to
call L and V. A few minutes later, a man wearing
a black t-shirt and carrying a backpack, followed
by another man wearing a green shirt and
carrying a pair of shoes, came out of the house of
the victim. J and L immediately ran after them
unto the basketball court and saw that the two
were already on board a black Yamaha
motorcycle. Luckily, V arrived with the barangay
tanod and immediately accosted the two men. J,
L, and V recognized the two as the same persons
who asked them earlier about the location of
Laurora's house. The man wearing black shirt
was identified as the accused-appellant, while
the one wearing green shirt was identified as Y.
Recovered from their possession were personal
properties belonging to the victim. When
Accused-appellant was further frisked, a screw
driver was found in his possession. V then asked
the victim's laundrywoman to check on the
victim. When she returned, she told them that
the victim was killed. The laundrywoman also
identified that the green shirt worn by Y belongs
to the victim. Is the RTC correct in convicting the
accused based on circumstantial evidence?
 Evidence
A: YES. The lack or absence of direct evidence does
not necessarily mean that the guilt of the accused
cannot be proved by evidence other than direct
evidence. Direct evidence is not the sole means of
establishing guilt beyond reasonable doubt,
because Circumstantial evidence, if sufficient, can
supplant the absence of direct evidence. The crime
charged may also be proved by circumstantial
evidence, sometimes referred to as indirect or
presumptive evidence. In this case, the Court agreed
with the RTC and CA that the circumstantial
evidence proven by the prosecution sufficiently
established that appellant committed the offense
charged. (People v. Papillero, G.R. No. 229087, 17 June
2020)
Cumulative Evidence and Corroborative
Evidence
Cumulative Evidence refers to evidence of the same
kind and character as that already given and that
tends to prove the same proposition. (Wyne v.
Newman, 75 Va., 811, 817)
Corroborative Evidence is one that is
supplementary to that already given tending to
strengthen or confirm it. It is additional evidence of
a different character to the same point. (Edwards v.
Edwards, Tenn. App., 501 S.W. 2d 283. 289)
An extrajudicial confession made by an accused
shall not be sufficient ground for conviction, unless
corroborated by evidence of corpus delicti. (Sec. 3,
Rule 133, ROC, as amended)
NOTE: Corroborative testimony is not always
required.
The law does not require that the testimony of a
single witness must be corroborated except where
expressly mandated. The weight and sufficiency of
evidence is determined not by the number of the
witnesses presented but by the credibility, nature,
and quality of the testimony. (People v. Gapasan, G.R.
No. 110812, 29 Mar. 1995)
585
Positive Evidence
Exists when the witness affirms in the stand that a
certain state of facts does exist or that a certain
event happened.
Negative Evidence
Exists when the witness states that an event did not
occur or that the state of facts alleged to exist does
not actually exist. (Riano, 2019)
Greater probative value is given to evidence that is
positive in nature than that which is accorded to
evidence that is negative in character. (Republic v.
Bautista, G.R. No. 169801, 11 Sept. 2007)
NOTE: When a witness declares of his personal
knowledge that a fact did not take place, that is
actually positive testimony since it is an affirmation
of the truth of a negative fact. (Regalado, 2008)
Denial as Negative Evidence
Denial is considered by the Court to be a very weak
form of defense and can never overcome an
affirmative or positive testimony particularly when
the latter comes from the mouth of a credible
witness. (People v. Mendoza, G.R. No. 146693-94, 31
July 2003)
The defense of denial is viewed with disfavor for
being inherently weak. To be worthy of
consideration at all, denials should be substantiated
by clear and convincing evidence. (Riano, 2019)
Competent Evidence
One that is not excluded by law in a particular case.
Competence, in relation to evidence in general,
refers to eligibility of an evidence to be received as
such. The test of competence is the Constitution, the
laws or the rules.
Credibility
The worthiness of belief, that quality which renders
a witness worthy of belief. (Black’s Law Dictionary,
5th Ed., p.330)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
NOTE: Admissible evidence is not necessarily
credible evidence. Admissibility does not guarantee
credibility. (Riano, 2019)
Findings and conclusions of the trial court on the
credibility of witnesses are entitled to great respect
because they have the advantage of observing the
demeanor of witnesses as they testify. (Riano, 2019)
When affirmed by the appellate court, it is accorded
full weight and credit as well as great respect, if not
conclusive effect, except when facts and
circumstances of weight and influence were
overlooked or the significance of which was
misappreciated or misinterpreted by the lower
courts. (Riano, 2019)
3. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS
(Rule 129)
Facts that need not be proved (JN-JA-C-D-I-F-R-
A)
1. Those of which the courts may take Judicial
Notice (Rule 129, ROC, as amended);
2. Those that are Judicially Admitted (Rule 129,
ROC, as amended);
3. Those that are Conclusively presumed (Rule
131, ROC, as amended);
4. Those that are Disputably presumed but
uncontradicted (Rule 131, ROC, as amended);
5. Immaterial allegations;
6. Facts admitted or not denied provided they
have been sufficiently alleged (Sec. 11, Rule 8,
ROC, as amended);
7. Res Ipsa Loquitur; and
8. Admissions by adverse party (Rule 26, ROC, as
amended)
Judicial Notice
It is the cognizance of certain facts which judges
may properly take and act upon without proof
because they are supposed to be known to them. It
is based on considerations of expediency and
convenience. It displaces evidence, being equivalent
to proof. (Regalado, 2008)
586
Function of Judicial Notice
It dispenses the presentation of evidence and fulfills
the purpose for which the evidence is designed to
fulfill. Its function is to abbreviate litigation by
admission of matters that needs no evidence
because judicial notice is a substitute for formal
proof of a matter by evidence. (Riano, 2019)
Kinds of judicial notice
1. Mandatory – insofar as those matters
enumerated under Sec. 1, Rule 129;
2. Discretionary – on matters which are of
public knowledge, or are capable of
unquestionable demonstration, or ought to
be known to judges because of their
functions (Sec. 2, Rule 129, ROC, as amended)
Mandatory Judicial Notice
When the matter is subject to a mandatory judicial
notice, no motion or hearing is necessary for the
court may take judicial notice of a fact.
When Judicial Notice is Mandatory
(E-PO-L-A-P-O-L-M-G)
1. Existence and territorial extent of states;
2. 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 legislative, executive and judicial
departments of the National Government of the
Philippines;
7. Laws of nature;
8. Measure of time; and
9. Geographical divisions (Sec. 1, Rule 129, ROC, as
amended)
NOTE: The list here is EXCLUSIVE.
 Evidence

When Judicial Notice of a fact may be taken
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.
No hearing is required in the enumeration under
Sec. 2, Rule 129.
Requisites for the application of the Principle of
Discretionary Judicial Notice

Before judgment or on appeal, the court, motu 1. The matter must be one of common and general
proprio or upon motion, may take judicial notice of knowledge;
any matter and shall hear the parties thereon if such 2. It must be well and authoritatively settled and
matter is decisive of a material issue in the case. not doubtful or uncertain; and
(Sec. 3, Rule 129, ROC, as amended) 3. It must be one which is not subject to a
reasonable dispute in that it is either:
When Judicial Notice is Discretionary (P-D-F)
(2005 BAR) a. Generally known within the territorial
jurisdiction of the trial court; or
1. Matters which are of Public knowledge; b. Capable of accurate and ready
determination by resorting to sources
NOTE: Public knowledge are those matters whose accuracy cannot reasonably be
coming to the knowledge of men generally in questionable. (Expert Travel & Tours, Inc. v.
the course of ordinary experiences of life, or CA, G.R. No. 152392, 26 May 2005)
they may be matters which are generally
accepted by mankind as true and are capable of Test of Notoriety
ready and unquestioned demonstration.
Whether the fact involved is so notoriously known
2. Capable of unquestionable Demonstration; or as to make it proper to assume its existence without
proof.
NOTE: Matters which are capable of
unquestionable demonstration are facts, Mandatory Judicial Notice vs. Discretionary
theories and conclusions which have come to be Judicial Notice
established and accepted by the specialists in
the areas of natural science, natural MANDATORY DISCRETIONARY
phenomena, chronology, technology, JUDICIAL NOTICE JUDICIAL NOTICE
geography, statistical facts and other fields of Court is compelled to Court is not compelled
professional and scientific knowledge. take judicial notice. to take judicial notice.
(Francisco, 1996) May be at court’s own
Takes place at court’s
initiative or on request
initiative.
3. Ought to be known to judges because of their of a party.
judicial Functions. (Sec. 2, Rule 129, ROC, as No motion or hearing. Needs hearing.
amended)
Instances when the Court takes Judicial Notice
NOTE: Judicial Notice is not Judicial Knowledge. The
mere personal knowledge of the judge is not the 1. The existence and location within the territory
judicial knowledge of the court, and he is not over which they exercise jurisdiction of great
authorized to make his individual knowledge of a rivers and lakes, and their relation to provincial
fact, not generally or professionally known, the boundaries, of navigability of streams,
basis of his action. Judicial cognizance is taken only constituting highway commerce and notorious
of those matters which are "commonly" known. facts concerning the same. (Banatao v. Tuliao,
(State Prosecutors v. Muro, A.M. No. RTJ-92-876, 19 G.R. No. 12264, 23 Sept. 1918)
Sept. 1994)

587 UNIVERSITY OF SANTO TOMAS

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 Remedial Law
2. The financial problem is a factor that beset the
sugar industry; that there is crisis in the sugar
industry. (Hilado v. Leogardo, Jr., G.R. No. L-
65863, 11 June 1986)
3. The general increase in rentals of real estate
especially of business establishments.
(Commander Realty, Inc. v. CA, G.R. No. L-77227,
29 Nov. 1988)
4. The reality that, especially in local elections,
political rivals or operators benefited from the
usually belated decisions by COMELEC on
petitions to cancel or deny due course to CoCs
of potential nuisance candidates. (Dela Cruz v.
Commission on Elections, G.R. No. 192221, 13
Nov. 2012)
5. How rapists are not deterred by the presence of
people nearby, such as the members of their
own family inside the same room, with the
likelihood of being discovered, since lust
respects no time, locale or circumstance.
(People of the Philippines v. Neil B. Colorado, G.R.
No. 200792, 14 Nov. 2012)
6. The government is and has for many years been
financially strapped, to the point that even the
most essential services have suffered serious
curtailment. (La Bugal-B’Laan Tribal Assoc. v.
Ramos, G.R. No. 127882, 01 Dec. 2004)
7. That Oakwood standoff was widely known and
was extensively covered by the media made it a
proper subject of judicial notice. (Magdalo Para
sa Pagbabago v. COMELEC, G.R. No. 190793, 19
June 2012)
8. Senate Report on the Maysilo Estate being an
official act of the legislative department of the
National Government of the Philippines. (CLT
Realty Development Corporation v. Hi-Grade
Feeds Corporation, et al., G.R. No. 160684, 02
Sept. 2015)
9. Moral damages and death indemnity require
neither pleading nor evidence simply because
death through crime always occasions moral
sufferings on the part of the victim’s heirs.
588
(Barut v. People of the Philippines, G.R. No.
167454, 24 Sept. 2014)
Matters NOT Proper Subject of Judicial Notice
1. GR: Courts are not mandated to take judicial
notice of the practice of banks in conducting
background checks on borrowers and sureties.
XPN: They nevertheless may do so under the
rule on discretionary judicial notice
Discretionary Judicial Notice. (Solidbank
Corporation v. Mindanao Ferroalloy Corp., G.R.
No. 153535, 28 July 2005)
2. GR: Courts are not authorized to take judicial
notice of the contents of the records of other
cases even when said cases have been tried or
are pending in the same court or before the
same judge.
XPN: They may, however, take judicial notice of
a decision or the facts prevailing in another case
sitting in the same court if:
a. the parties present them in evidence, absent
any opposition from the other party; or
b. the court, in its discretion, resolves to do so.
(Land Bank v. Yatco Agricultural, G.R. No.
172551, 15 Jan. 2014)
3. Proprietary acts of GOCCs, e.g., management
contract entered into by the GOCC (Asian
Terminals v. Malayan Insurance, G.R. No. 171406,
April 4, 2011). (Asian Terminals v. Malayan Insurance,
G.R. No. 171406, 04 April 2011)
4. The assessed value of realty.
5. Administrative regulation of a statute that is not
yet effective.
6. No judicial notice is taken of whiplash injury
since it is not capable of unquestionable
demonstration and the courts lack the proper
medical knowledge to assume this fact. (Dela
Llana v. Biong, G.R. No. 182356, 04 Dec. 2013)
NOTE: Judicial knowledge is different from
judicial notice. Judicial knowledge is
knowledge of the judge. Judicial notice must be
knowledge of everyone or almost everyone
 Evidence
such that there is no doubt, it is certain, and
that it is well-settled. (Sps. Latip v. Chua, G.R.
No. 177809, 16 Oct. 2009)
7. Criminal activities such as robbery and
kidnappings are becoming daily fares in the
society. (New Sun Valley Homeowner’s
Association v. Sangguniang Barangay,
Barangay Sun Valley, Parañaque City, G.R. No.
156686, 27 July 2011)
8. Actual Damages. (Barut v. People of the
Philippines, G.R. No. 167454, 24 Sept. 2014)
Judicial Notice of Foreign Laws (2005 BAR)
GR: Courts cannot take judicial notice of foreign
laws. They must be alleged and proved.
XPN: When said laws are within the actual
knowledge of the court and such laws are:
1. Well and generally known; or
2. Actually ruled upon in other cases before it; and
none of the parties claim otherwise. (PCIB v.
Escolin, G.R. Nos. L-27860 and L-27896, G.R. No.
29 Mar. 1974)
Doctrine of Processual Presumption
In international law, the party who wants to have a
foreign law applied to a dispute or case has the
burden of proving the foreign law. Where a foreign
law is not pleaded or even if pleaded, is not proved,
the presumption is that the foreign law is same as
ours. (ATCI Overseas Corporation v. Echin, G.R. No.
178551, 11 Oct. 2010)
When Foreign law is part of a Published
Treatise, Periodical or Pamphlet
When the foreign law is part of a published treatise,
periodical or pamphlet and the writer is recognized
in his profession or calling as expert in the subject,
the court, may take judicial notice of the treatise
containing the foreign law. (Sec. 48, Rule 130, ROC,
as amended)
589
When a Foreign Law refers to the Law of Nations
The Philippines adopts the generally accepted
principles of international law as part of the law of
the land. (Sec. 2, Art. II, 1987 Constitution of the
Philippines)
Being part of the law of the land, they are therefore,
technically in the nature of local laws and hence, are
subject to mandatory judicial notice under Sec. 1 of
Rule 129. (Riano, 2019)
Rules regarding Judicial Notice of Municipal or
City Ordinances
1. MTCs are required to take judicial notice of the
ordinances of the municipality or city wherein
they sit.
2. RTCs must take judicial notice of ordinances in
force in the municipalities within their
jurisdiction only:
a. When expressly authorized to do so by
statute; or
b. In case on appeal before them and wherein
the inferior court took judicial notice of an
ordinance involved in the same case.
3. Appellate courts may also take judicial notice of
ordinances not only because the lower courts
took judicial notice thereof but because these
are facts capable of unquestionable
demonstration. (Riano, 2019)
Rules on Judicial Notice of Records of another
case previously tried
GR: 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 heard or are actually
pending before the same judge. (Calamba Steel
Center, Inc. v. CIR, G.R. No. 151857, 28 Apr. 2005)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law

XPNs: witness on the same matter. Each magistrate who

1. When in the absence of any objection, with the
knowledge of the opposing party, the contents
of said other cases are clearly referred to by title
and number in a pending action and adopted or
read into the record of the latter;
2. When the original record of the other case or
any part of it is actually withdrawn from the
archives at the court’s discretion upon the
request, or with the consent, of the parties, and
admitted as part of the record of the pending
case (Jumamil v. Cafe, G.R. No. 144570, 21 Sept.
2005);
3. When the action is closely interrelated to
another case pending between the same
parties;
4. Where the interest of the public in ascertaining
the truth are of paramount importance;
hears the testimony of a witness is called upon to
make his own appreciation of the evidence. (People
v. Langit, G.R. Nos. 134757-58, 04 Aug. 2000)
Judicial Admissions
These are admissions, oral or written, made by a
party in the course of the proceedings in the same
case, which do not require proof. (Sec. 4, Rule 129,
ROC, as amended)
Requisites of Judicial Admission (P-C-OW)
1. It must be made by a Party to the case or his
counsel;
2. It must be made in the Course of the
proceedings in the same case; and
3. It can be Oral or Written. (Sec. 4, Rule 129, ROC,
as amended)
Judicial Admissions vs. Extrajudicial Admissions

5. In cases seeking to determine what is JUDICIAL EXTRAJUDICIAL

reasonable exercise of discretion or whether ADMISSIONS ADMISSIONS
the previous ruling is applicable in a case under Those made out of
Those made in the
consideration; or court or in a judicial
course of the
proceeding other than
proceeding in the same
6. Where there is finality of a judgment in another the one under
case.
case that was previously pending consideration.
determination and therefore, res judicata. Do not require proof
(Herrera, 1999) and may be
contradicted only by
Regarded as evidence
Q: Anna and Badong were accused of killing showing that it was
and must be offered as
Cathy. However, only Anna was arrested since made through palpable
such, otherwise the
Badong went into hiding. After trial, Anna was mistake or that the
court will not consider
acquitted of the charge in a decision rendered by imputed admission
it in deciding the case.
Judge Santos. Subsequently, Badong was was not, in fact, made.
arrested and brought to trial. After trial, Badong (Sec. 4, Rule 129, ROC,
was found guilty of homicide in a decision as amended)
rendered by Judge Yantok, the judge who Judicial admissions
replaced Judge Santos after the latter retired. On need not be offered in
appeal, Badong argues that Judge Yantok should evidence since it is not
Requires formal offer
have taken judicial notice of the acquittal of evidence. It is superior
for it to be considered.
Anna rendered by Judge Santos. Is Badong to evidence and shall be
correct? considered by the court
as established.
A: NO. The appreciation of one judge of the Conclusive upon the
testimony of a certain witness is not binding on Rebuttable.
admitter.
another judge who heard the testimony of the same

590
 Evidence

Admissible even if self- Not admissible if self- 2. They cannot be contradicted because they are
serving. serving. conclusive upon the party making it. (Solivio v.
Subject to cross- Not subject to cross- CA, G.R. No. 83484, 12 Feb. 1990)
examination. examination.
Admissions made in pleadings which were NOT
Different Forms of Judicial Admission filed with the court

1. Oral – Verbal waiver of proof made in open Admissions made therein are not judicial
court, a withdrawal of contention, or disclosure admissions:
made before the court, or admission made by
witness in his testimony or deposition; 1. If signed by the party litigant himself or
herself – Considered as extrajudicial admission.
2. Writing – Pleading, bill of particulars, 2. If signed by the counsel – Not admissible
stipulation of facts, request for admission, or a because a counsel only binds his or her client
judicial admission contained in an affidavit with respect to admissions in open court and in
used in the case (Programme Inc. v. Province of pleadings actually filed with the court. (Riano,
Bataan, G.R. No. 144635, 26 June 2006) 2019)

How Judicial Admissions are made
Judicial admissions may be made in:
1. The pleadings filed by the parties;
2. The course of the trial either by verbal or
written manifestations or stipulations,
including depositions, written interrogatories
and requests for admissions; or
3. Other stages of the judicial proceedings, as in
pre-trial. (Binarao v. Plus Builders, Inc., G.R. No.
154430, 16 June 2006)
Two ways in which admissions are made in
pleadings
1. Actual Admission – When a party categorically
admits a material allegation made by the
adverse party.
2. Implied Admission – When the admission is
inferred from the failure to specifically deny the
material allegations in the other party’s
pleadings.
Effect of Judicial Admissions
1. They do not require proof; and
Averments in pleadings which are not deemed
admissions
1. Immaterial allegations (Sec. 11, Rule 8, ROC, as
amended);
2. Conclusions, non-ultimate facts in the pleadings
(Sec 1, Rule 8, ROC, as amended); and
3. Amount of unliquidated damages (Sec. 11, Rule
8, ROC, as amended)
Effect of an Invalid and Ineffective Denial of
Actionable Documents Attached to the
Complaint
When an action or defense is founded upon an
actionable document, the genuineness and due
execution of the same instrument shall be deemed
admitted unless it is specifically denied under oath.
(Sec. 8, Rule 8, ROC, as amended)
Failure to deny the genuineness and due execution
of said document amounts to a judicial admission.
(PNB v. Refrigeration Industries, Inc. G.R. No. 156178,
20 Jan. 2006)
NOTE: But the failure to deny the genuineness and
due execution of an actionable document does not
preclude a party from arguing against the document
by evidence of fraud, mistake, compromise,
payment, statute of limitations, estoppel and want
of consideration. He or she is however, precluded
from arguing that the document is a forgery because

591 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 Remedial Law
the genuineness of document is impliedly admitted.
(Acabal v. Acabal, G.R. 148376, 31 Mar. 2005)
Admissions made in Amended Pleadings
Admissions in a pleading which had been
withdrawn or superseded by an amended pleading,
although filed in the same case, are considered as
extrajudicial admissions.
Pleadings that have been amended disappear from
the record, lose their status as pleadings, and cease
to be judicial admissions. To be utilized as
extrajudicial admission, they must, in order to have
such effect, be formally offered in evidence. (Ching
v. Court of Appeals, G.R. No. 110844, 27 Apr. 2000)
Rule regarding Self-Serving Evidence
Self-serving declaration is one that is made by a
party, out of court and in his favor. It does not
include the testimony he gives as a witness in court.
(People v. Villarama, G.R. No. 139211, 12 Feb. 2003)
This cannot be said of a party’s testimony in court
made under oath, with full opportunity on the part
of the opposing party for cross-examination. (People
v. Omictin, G.R. No. 188130, 26 July 2010)
Effect of a guilty plea made by the accused
during his arraignment later withdrawn
A plea of guilty entered by the accused may be later
withdrawn at any time before the judgment of
conviction becomes final. Such plea is not
admissible in evidence against the accused and is
not even considered as an extrajudicial admission.
Grounds for contradicting Judicial Admissions
1. Upon showing that the admission was made
through palpable mistake; or
2. When it is shown that the imputed admission
was not, in fact, made. (Sec. 4, Rule 129, ROC, as
amended)
NOTE: This argument 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. (Riano, 2019)
592
Remedy of a party who made a Judicial
Admission
1. In case of written admission – File a motion to
withdraw such pleading, or any other written
instrument containing such admission; and
2. In case of oral admission – The counsel may
move for the exclusion of such admission.
Admissions in the Pre-trial of Civil Cases
Pre-trial is mandatory. One of the purposes of pre-
trial in civil cases is for the court to consider the
possibility of obtaining stipulations or admissions
of facts. Admissions, therefore, in the pre-trial, as
well as those made during depositions,
interrogatories or requests for admissions, are all
deemed judicial admissions because they are made
in the course of the proceedings of the case. (Riano,
2019)
Admissions in the Pre-trial of Criminal Cases
Admission made by the accused in the pre-trial of a
criminal case is not necessarily admissible against
him or her. To be admissible, the conditions set
forth by Sec. 2 of Rule 118 must be complied with.
All the agreements or admissions made or entered
during the pre-trial conference shall be:
1. Reduced in writing; and
2. Signed by the accused and counsel.
Otherwise, they cannot be used against the accused.
(Sec. 2, Rule 118, ROC, as amended)
C. OBJECT (REAL) EVIDENCE
(RULE 130, A)
Nature of Object (Real) Evidence (2005 BAR)
Objects as evidence are those addressed to the
senses of the court. When an object is relevant to the
fact in issue, it may be exhibited to, examined or
viewed by the court. (Sec. 1, Rule 130, ROC, as
amended)
 Evidence
It is not limited to the view of an object. It covers the
entire range of human senses: hearing, taste, smell,
and touch. (Riano, 2019)
Physical evidence is a mute, but eloquent
manifestation of truth and it ranks high in our
hierarchy of trustworthy evidence- where physical
evidence runs counter to testimonial evidence, the
physical evidence should prevail. (Bank of the
Philippine Islands v. Reyes, G.R. No. 157177, 11 Feb.
2008)
In criminal cases such as murder/homicide or rape,
in which the accused stand to lose their liberty if
found guilty, the Supreme Court has, on many
occasions, relied principally upon physical evidence
in ascertaining the truth. Where the physical
evidence on record runs counter to the testimonies
of witnesses, the primacy of the physical evidence
must be upheld. (PO1 Ocampo v. People of the
Philippines, G.R. No. 194129, 15 June 2015)
NOTE: Documents are object (real) evidence or
Object (Real) Evidence if the purpose is to prove
their existence or condition, or the nature of the
handwriting thereon, or to determine the age of the
paper used, or the blemishes or alterations thereon,
as where falsification is alleged. (Regalado, 2008)
Examples of Object (Real) Evidence
1. Any article or object which may be known or
perceived using the senses;
2. Examination of the anatomy of a person or of
any substance taken therefrom;
3. Conduct of tests, demonstrations or
experiments;
4. Examination of representative portrayals of the
object in question (e.g., maps, diagrams);
5. Documents, if the purpose is to prove their
existence or condition, or the nature of the
handwriting thereon or to determine the age of
the paper used, or the blemishes or alterations
(Regalado, 2008); and
593
6. A person’s appearance, where relevant. (People
v. Rullepa, G.R. No. 131516, 05 Mar. 2003)
Paraffin Test
A test which can establish the presence or absence
of nitrates or nitrites on the hand, but the test alone
cannot determine whether the source of the nitrates
or nitrites was discharge of a firearm.
NOTE: The paraffin test Paraffin Test is merely
corroborative evidence, neither proving nor
disproving that a person did indeed fire a gun. The
positive or negative results of the test can be
influenced by certain factors such as the wearing of
gloves by the subject, perspiration of the hands,
wind direction, etc. (People v. Buduhan, G.R. No.
178196, 06 Aug. 2008)
A person who tests positive may have handled one
or more substances with the same positive reaction
for nitrates such as explosives, fireworks, fertilizers,
pharmaceuticals, tobacco and leguminous plants.
(People v. Cajumocan, G.R. No. 155023, 28 May 2004)
Polygraph Test (Lie Detector Tests)
It is an electromechanical instrument that
simultaneously measures and records certain
physiological changes in the human body that are
believed to be involuntarily caused by an
examinee’s conscious attempt to deceive the
questioner. (West’s Legal Thesaurus Dictionary,
1986)
A polygraph test operates on the principle that
stress causes physiological changes in the body
which can be measured to indicate whether the
subject examination is telling the truth. (Riano,
2019)
Q: Ron was charged with murder for shooting
Carlo. After trial, Ron was found guilty as
charged. On appeal, Ron argued that the trial
court should have acquitted him as his guilt was
not proved beyond reasonable doubt. He argues
that the paraffin test conducted on him 2 days
after he was arrested yielded a negative result.
Hence, he could not have shot Carlo. Is Ron
correct?
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
A: NO. While the paraffin test was negative, such fact
alone did not ipso facto prove that Ron is innocent.
A negative paraffin result is not conclusive proof
that a person has not fired a gun. It is possible to fire
a gun and yet be negative for nitrates, as when the
culprit is wearing gloves or he washes his hands
afterwards. Here, since Ron submitted himself for
paraffin testing only two days after the shooting, it
was likely he had already washed his hands
thoroughly, thus removing all traces of nitrates
therefrom. (People v. Brecinio, G.R. No. 138534, 17
Mar. 2004)
Requisites for Admissibility (ReCo-A-C-O)
1. It must be Relevant and Competent;
2. It must be Authenticated;
NOTE: To authenticate the object, it must be
shown 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.
3. The authentication must be made by a
Competent witness who should identify the
object to be the actual thing involved; and
4. The Object must be formally offered in
evidence. (Riano, 2019)
Purposes of Authentication of Object (Real)
Evidence
1. Prevent the introduction of an object different
from the one testified about; and
2. Ensure that there have been no significant
changes in the object’s condition.
Circumstances when the court may refuse the
introduction of Object or Real Evidence and rely
on Testimonial Evidence alone
1. Its exhibition is contrary to public morals or
decency;
NOTE: But if the exhibition of such object is
necessary in the interest of justice, it may still
be exhibited, and the court may exclude the
public from such view. Such exhibition may not
594
be refused if the indecent or immoral objects
constitute the very basis of the criminal or civil
action. (Moran, 1980)
2. To require its being viewed in court or in ocular
inspection would result in delays,
inconvenience, or unnecessary expenses which
are out of proportion to the evidentiary value of
such object;
3. Such Object Evidence would be confusing or
misleading, as when the purpose is to prove the
former condition of the object and there is no
preliminary showing that there has been no
substantial change in said condition; or
4. The Testimonial or Documentary Evidence
already presented clearly portrays the object in
question as to render a view thereof
unnecessary. (Regalado, 2008)
Q: In a criminal case for murder, the prosecution
offered as evidence, photographs showing the
accused mauling the victim with several of the
latter’s companions. The person who took the
photograph was not presented as a witness. Be
that as it may, the prosecution presented the
companions of the victim who testified that they
were the ones in the photographs. The defense
objected to the admissibility of the photographs
because the person who took the photographs
was not presented as witness. Is the contention
of the defense tenable?
A: NO. Photographs, when presented in evidence,
must be identified by the photographer as to its
production and testified as to the circumstances
under which they were produced. The value of this
kind of evidence lies in its being a correct
representation or reproduction of the original, and
its admissibility is determined by its accuracy in
portraying the scene at the time of the crime.
The photographer, however, is not the only witness
who can identify the pictures he has taken. The
correctness of the photograph as a faithful
representation of the object portrayed can be
proved prima facie, either by the testimony of the
person who made it or by other competent
witnesses who can testify to its exactness and
 Evidence
accuracy, after which the court can admit it subject
to impeachment as to its accuracy. Here, the
photographs are admissible as evidence in as much
as the correctness thereof was testified to by the
companions of the victim. (Sison v. People, G.R. Nos.
108280-83, 16 Nov. 1995)
Q: Thor was charged with and convicted of the
special complex crime of robbery with homicide
by the trial court. On his appeal, he asseverates
that the admission as evidence of victim's wallet
together with its contents, violates his right
against self-incrimination. Likewise, Thor
sought for their exclusion because during the
custodial investigation, wherein he pointed to
the investigating policemen the place where he
hid the victim's wallet, he was not informed of
his constitutional rights (Miranda rights).
Decide the case.
A: The Right Against Self-Incrimination does not
apply to the instant case where the evidence sought
to be excluded is not an incriminating statement but
an Object Evidence. Infractions on the so-called
“Miranda rights” render inadmissible only the
extrajudicial confession or admission made during
custodial investigation. The admissibility of other
evidence is not affected even if obtained or taken in
the course of custodial investigation. Concededly,
Thor was not informed of his rights during the
custodial investigation. Neither did he execute a
written waiver of these rights in accordance with
the constitutional prescriptions. Nevertheless, these
constitutional shortcuts do not affect the
admissibility of the victim's wallet and its contents.
(People v. Malimit, G.R. No. 109775, 14 Nov. 1996)
Categories of Object (Real) Evidence for
purposes of Authentication
1. Unique objects – Those that have readily
identifiable marks (e.g., a caliber 40 gun with
serial number XXX888);
595
2. Objects made unique – Those that are made
readily identifiable (e.g., a bolo knife with
identifying marks on it); and
3. Non-unique objects – Those which have no
identifying marks and cannot be marked (e.g.,
drops of blood). (Riano, 2019)
NOTE: In case of non-unique objects, the proponent
of the evidence must establish a chain of custody.
Chain of Custody in relation to Section 21 of the
Comprehensive Dangerous Drugs Act Of 2002
Purpose
To guaranty the integrity of the physical evidence
and to prevent the introduction of evidence which is
not authentic. Where the exhibit is positively
identified, the chain of custody of physical evidence
is irrelevant.
Since it is called a chain, there must be links to the
chain. The links are the people who actually handled
or had custody of the object. Each link must show
how he received the object, how he handled it to
prevent substitution and how it was transferred to
another. Each must testify to make the foundation
complete.
Links in the chain of custody
1. Seizure and marking, if practicable, of the
illegal drug recovered from the accused;
2. Turnover of the illegal drug by the
apprehending officer to the investigating
officer;
3. Turnover by the investigating officer to the
forensic chemist for laboratory examination;
and
4. Turnover and submission of the marked illegal
drug by the forensic chemist to court. (People
v. Gayoso, G.R. No. 206590, 27 Mar. 2017)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law

Procedure to be followed in the custody and handling of seized dangerous drugs (Sec. 21, Art. II of R.A. No.
9165, as amended by R.A. No. 10640)

Apprehending team shall, immediately after seizure and confiscation, make a physical inventory and photograph of the
same in the
presence of:

1. Accused or the` person/s from which such

items were confiscated and/or seized;
2. His/her representative or counsel; WITH
3. A representative of the National Prosecution Service (NPS) OR the media; AND
4. Any elected public official who shall be required to sign the copies of the inventory and be given a copy. (People v.
Santos, G.R. No. 243627, 27 Nov. 2019)

The objects seized must be submitted to PDEA for qualitative and quantitative examination within 24 hours from the
confiscation/seizure.

The forensic laboratory examiner is required to issue within 24 hours after receipt of the drugs a certification of the
forensic laboratory examination results which shall be done under oath.

After filing of the criminal case, the court shall, within 72 hours, conduct an ocular inspection and the PDEA shall within
24 hours proceed with the destruction of the same.

Dangerous Drugs Board shall then issue a sworn certification as to the fact of destruction or burning to be submitted to
the court. Also, to be submitted are the representative samples (only minimum quantity) of the substances in the
custody of PDEA.

NOTE: The alleged offender or his/her representative or counsel shall be allowed to personally observe all the
above proceedings. His presence shall NOT constitute an admission of guilt.

Strict Compliance with Section 21 receipt for “a sachet containing marijuana

Q: Banding was arrested at Mercury Drug Store
Lagro branch in Quezon City for illegal sale of
dangerous drugs (Section 5, R.A. No. 9165). The
dangerous drugs sachets containing white
crystalline substance were marked by PO2
Inway with AB-20-09-10. To avoid the on-going
commotion in the area, the team proceeded to
Camp Karingal which is 17 kilometers car ride
away from the place of arrest.
There, physical inventory, and photographing
required under Sec. 21 of R.A. No. 9165 was
conducted in the presence of Banding, the buy-
bust team, and a media representative. After the
inventory, PO3 Corona prepared the inventory
fruiting tops.” This was submitted to the QCPD
Crime Laboratory. Banding was later on charged
with violation of Section 5 of R.A. No. 9165.
Banding argues that he cannot be convicted due
to lapses in the chain of custody of the drugs
seized. Can Banding be held criminally liable
under Section 5 of R.A. No. 9165?
A: Banding cannot be convicted under Section 5 of
R.A. No. 9165 due to the lapses in the chain of
custody procedure required under Section 21 of the
same law. Section 21 requires strict compliance. The
accuracy it requires goes into the covertness of buy-
bust operation and the very nature of narcotic
substance.

596
 Evidence
From the language of Section 21, the mandate to
conduct inventory and take photographs
"immediately after seizure and confiscation"
necessarily means that these shall be
accomplished at the place of arrest. When this is
impracticable, the Implementing Rules and
Regulations of R.A. No. 9165 allows for two (2) other
options: at the nearest police station or at the
nearest office of the apprehending officer/team,
whichever is practicable, in case of warrantless
seizures. To sanction non-compliance, the
prosecution must prove that the inventory was
conducted in either practicable place.
The physical inventory and photographing of the
drugs seized was not done in the place of arrest, but
was done in Camp Karingal, which was impractical
since it was 17 kilometers car ride away from the
place of arrest. The clerical errors and discrepancies
in the inventory receipt and the chemistry report
cannot be dismissed since they cast doubt as to the
origin of the drug seized. (People of the Philippines v.
Banding, G.R. No. 2333470, 14 Aug. 2019)
In the case of People of the Philippines v. Ramos, the
Supreme Court ruled that the witnesses' absence at
the time of seizure is not a justifiable ground for not
immediately marking the items, since they should
have at the onset, been present or near the place of
seizure. Since the law requires the apprehending
team to conduct the inventory in front of the
required witnesses and immediately after seizure,
this necessarily means that, in buy-bust operations,
the required witnesses must be present at the time
of seizure. (G.R. No. 225335, 28 Aug. 2019)
The phrase "immediately after seizure and
confiscation" means that the physical inventory and
photographing of the drugs were intended by the
law to be made immediately after, or at the place of
apprehension. It is only when the same is not
practicable that the law allows the inventory and
photographing to be done as soon as the buy-bust
team reaches the nearest police station or the
nearest office of the apprehending team/officer.
Well-entrenched in jurisprudence is the rule that
the conviction of the accused, must rest, not on the
weakness of the defense, but on the strength of the
prosecution. Since there is no showing that a proper
597
inventory and taking of pictures was done by the
apprehending officers, the Court is left with
absolutely no guarantee of the integrity of the
sachets other than the self-serving assurances of the
police officers. (People of the Philippines v. Que, G.R.
No. 212994, 31 Jan. 2018)
Citing People v. Que, what is critical in drug cases is
not the bare conduct of the inventory, marking, and
photographing. Instead, it is the certainty that the
items allegedly taken from the accused retain their
integrity, even as they make their way from the
accused to an officer effecting the seizure, to an
investigating officer to a forensic chemist, and
ultimately, to courts where they are introduced as
evidence. Sec. 21(1)’s requirements are designed to
make the first and second link foolproof. Conducting
the inventory and photographing immediately after
seizure, exactly where the seizure was done, or at a
location as practicably close to it, minimizes, if not
eliminates, room for adulteration or planting of
evidence. (People of the Philippines v. Banding,
supra.)
Q: Karlo was charged with Illegal Possession of
Dangerous Drugs. He questions his conviction
by arguing that there are inconsistencies in the
testimonies of the witnesses. He argues that the
prosecution failed to establish compliance with
the three-witness rule mandated by R.A. No.
9165. Furthermore, Karlo casts doubt on the
validity of the search conducted in that the
implementation of the search warrant was
documented to begin at 4:30 A.M. while the
seizure of the drugs was made at around 6:30
A.M. Such interval, Karlo claims, gave the police
officers an opportunity to fabricate evidence
against him. Do the alleged inconsistencies in
the testimonies of the witnesses warrant the
reversal of the conviction of Karlo?
A: NO. As to the first argument, the fact that Cruz's
affidavit neglects to categorically mention the
presence of DOJ representative Mendoza during the
search operation does not run counter to his
testimony. The perceived discrepancy neither
affects the truth of the testimony of the prosecution
witness nor discredits his positive identification of
appellant. Besides, apart from the duly signed
Certificate of Inventory and Certificate of orderly
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
Search, it had already been stipulated and admitted
by the parties that Mendoza was indeed a witness in
the conduct of the search and inventory of the
confiscated drugs. For this reason, such stipulation
is already a judicial admission of the facts stipulated.
Appellant is clearly beyond his bearings in disputing
this judicially admitted fact. What is more,
photographs were offered in evidence to prove that
the necessary witnesses, including Mendoza, had
been present during the search operation.
As to the second argument, the supposed
inconsistency regarding the exact time the search
warrant was implemented is, if at all, minor and
without consequence. As argued by the appellee, the
team had arrived at appellant's house to implement
the search warrant at 4:30 a.m. The police officers
did not immediately search the residence because
they still had to wait for the barangay officials and
the media representatives. Such minor
inconsistency does not warrant the reversal of
appellant's conviction. (Concepcion y Tabor v.
People, G.R. No. 243345, 11 March 2019, J. Caguioa)
Integrity and Evidentiary Value of the Seized
Items
The prosecution is not required to elicit testimony
from every custodian or from every person who had
an opportunity to come in contact with the evidence
sought to be admitted. As long as one of the chains
testifies and his testimony negates the possibility of
tampering and that the integrity of the evidence is
preserved, his testimony alone is adequate to prove
the chain of custody.
Failure to strictly comply with rules of procedure,
however, does not ipso facto invalidate or render
void the seizure and custody over the items. Minor
deviations from the chain of custody rule Chain of
Custody Rule are justified when the prosecution is
able to show that:
1. There is justifiable ground for non-compliance;
and
2. The integrity and evidentiary value of the
seized items are properly preserved (People v.
Dumagay, G.R. No. 216753, 07 Feb. 2018)
598
Q: A buy-bust operation was conducted wherein
PO2 Montales was designated as the poseur-
buyer. The buy-bust team proceeded to Saunar's
residence. PO2 Montales introduced herself as a
buyer of shabu and handed Saunar the marked
money. After a brief conversation, Saunar went
inside the house. She returned moments later
"with two (2) transparent plastic sachets
containing white crystalline substance." PO2
Montales examined the plastic sachets and gave
the pre-arranged signal by removing her
sunglasses. This indicated the consummation of
the transaction to the other members of the buy-
bust team. PO2 Montales brought the seized
items to the crime laboratory for scientific
examination. The contents of the two (2) plastic
sachets weighed 0.0496 grams and 0.0487
grams. They tested positive for shabu. Is Saunar
liable even if only a miniscule amount is alleged
to have been seized from him?
A: NO. The prosecution must prove beyond
reasonable doubt that the transaction actually took
place by establishing the following elements: "(1)
the identity of the buyer and the seller, the object
and the consideration; and (2) the delivery of the
thing sold and the payment." Aside from this, the
corpus delicti must be presented as evidence in
court. In cases involving dangerous drugs, "the
corpus delicti is the dangerous drug itself." Although
strict compliance with the Chain of Custody Rule
may be excused provided that the integrity and
evidentiary value of the seized items are preserved,
a more exacting standard is required of law
enforcers when only a miniscule amount of
dangerous drugs are alleged to have been seized
from the accused.
In this case, only 0.0496 grams and 0.0487 grams or
a total of 0.0983 grams of shabu were allegedly
taken from accused-appellant. Such a miniscule
amount of drugs is highly susceptible to tampering
and contamination. A careful review of the factual
findings of the lower courts shows that the
prosecution failed to discharge its burden of
preserving the identity and integrity of the
dangerous drugs allegedly seized from accused-
appellant. The prosecution failed to establish who
held the seized items from the moment they were
taken from accused-appellant until they were
 Evidence
brought to the police station. The designated
poseur-buyer, PO2 Montales, did not mention who
took custody of the seized items for safekeeping.
(People v. Saunar, G.R. No. 207396, 09 Aug. 2017)
Marking after seizure is the starting point in the
custodial link, thus it is vital that the seized
contrabands are immediately marked because
succeeding handlers of the specimen will use the
markings as reference. (People v. Salim, G.R. No.
208093, 20 Feb. 2017)
Q: A buy-bust operation was conducted by the
police where PO1 Aure, as the poseur-buyer,
was accompanied by the informant. The team
proceeded to the whereabouts of Holgado. PO1
Aure handed Holgado two marked Php 100 bills.
Holgado called Misarez. Misarez stepped out of
the restroom and handed a plastic sachet
containing a white crystalline substance to PO1
Aure. PO1 Aure examined the sachet’s contents
and took out his cellphone signaling that the sale
of drugs had been consummated. The police
operatives then approached PO1 Aure and
apprehended Holgado and Misarez. PO3
Abuyme prepared an inventory of the seized
items. PO1 Aure supposedly marked the plastic
sachet handed to him by Misarez at the site of
the buy-bust operation.
Following their arrest, Holgado and Misarez
were charged with violating Secs. 5 (Sale of
dangerous drugs), 11 (Possession of dangerous
drugs), and 12 (Possession of drug
paraphernalia) of R.A. No. 9165.
RTC found Holgado and Misarez guilty of illegal
sale of dangerous drugs and acquitted them of
the charges pertaining to Sec. 11 as the drugs
supposedly seized were not introduced in
evidence. Holgado, was also acquitted of the
charges relating to Sec. 12 of as the
paraphernalia to which PO2 Castulo testified to
in court were different from those indicated in
the inventory supposedly made. CA affirmed the
conviction. Is the presumption of regularity in
the performance of duties applicable in this
case?
A: The presumption of regularity in the
performance of duties cannot be applied in this case.
599
Given the flagrant procedural lapses the police
committed in handling the seized shabu and the
obvious evidentiary gaps in the chain of its custody,
a presumption of regularity in the performance of
duties cannot be made in this case. The presumption
applies when nothing in the record suggests that the
law enforcers deviated from the standard conduct
of official duty required by law; where the official
act is irregular on its face, the presumption cannot
arise. (People of the Philippines v. Holgado, G.R. No.
207992, 11 Aug. 2014)
DNA EVIDENCE
Meaning of DNA
DNA is the fundamental building block of a person’s
entire genetic make-up. A person’s DNA profile can
determine his identity. The DNA profile is unique
for each person, except for identical twins.
Everyone is born with a distinct and genetic
blueprint called DNA.
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.
DNA analysis
A procedure in which DNA extracted from a
biological sample obtained from an individual is
examined. (Herrera v. Alba, G.R. No. 148220, 15 June
2000)
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:
1. The samples are different and therefore
must have originated from different sources
(exclusion). This conclusion is absolute and
requires no further analysis or discussion;
2. It is not possible to be sure, based on the
results of the test, whether the samples have
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
similar DNA types (inconclusive). 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
3. The samples are similar, and could have
originated from the same source (inclusion). 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, 09 May 2002)
Rule on DNA Evidence (A.M. No. 06-11-5-SC)
It shall apply whenever DNA evidence is offered,
used, or proposed to be offered or used as evidence
in all criminal and civil actions as well as special
proceedings. (Sec. 1, A.M. No. 06-11-5-SC)
Application for DNA Testing Order
DNA testing order may be done motu proprio or on
application of any person having legal interest in the
matter in litigation.
DNA testing order shall issue after due hearing and
notice to the parties upon showing that:
1. A biological sample exists that is relevant to the
case;
2. The biological sample:
a. was not previously subjected to the type of
DNA testing now requested; or
b. was previously subjected to DNA testing,
but the results may require confirmation
for good reasons;
3. The DNA testing uses a scientifically valid
technique;
4. The DNA testing has the scientific potential to
produce new information that is relevant to the
proper resolution of the case; and
600
5. The existence of other factors, if any, which the
court may consider as potentially affecting the
accuracy of integrity of the DNA testing.
NOTE: This Rule shall not preclude a DNA testing,
without need of a prior court order, at the behest of
any party, including law enforcement agencies,
before a suit or proceeding is commenced. (Sec. 4,
A.M. No. 06-11-5-SC)
Post-Conviction DNA Testing
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. 5, A.M. No. 06-11-5-SC) (2012
BAR)
Assessment of Probative Value of DNA Evidence
and Admissibility
The courts must consider the following standards,
known as the Vallejo Standards, in assessing the
probative value of DNA evidence: (2009, 2010
BAR)
a. How the samples were collected;
b. How they were handled;
c. The possibility of contamination of the samples;
d. The procedure followed in analyzing the
samples;
e. Whether the proper standards and procedures
were followed in conducting the tests; and
f. The qualification of the analyst who conducted
the tests. (People v. Vallejo, G.R. No. 144656, 09
May 2002)
Rules on evaluation of Reliability of DNA testing
Methodology
In assessing the probative value of the DNA
evidence presented, the court shall consider the
following:
 Evidence

a. The chain of custody, including how the alone. (Herrera v. Alba, G.R. No. 148220, 15 June
biological samples were collected, how they 2005)
were handled, and the possibility of
contamination of the samples; Real Evidence vs. Demonstrative Evidence

b. The DNA testing methodology, including the DEMONSTRATIVE

REAL EVIDENCE
procedure followed in analyzing the samples, EVIDENCE
the advantages and disadvantages of the Tangible object that Tangible evidence that
procedure, and compliance with the played some actual role merely illustrates a
scientifically valid standards in conducting the in the matter that gave matter of importance
tests; rise to the litigation in the litigation
Intends to show that
c. The forensic DNA laboratory, including the demonstrative
accreditation by any reputable standards- object fairly
setting institution and the qualification of the represents or
analyst who conducted the tests. If the illustrates a Real
laboratory is not accredited, the relevant Evidence
experience of the laboratory in forensic
casework and credibility shall be properly Illustration: Where a
established; and drawing is presented to
illustrate the relative
d. The reliability of the testing result, as positions of the
hereinafter provided. (Sec. 7 (a), A.M. No. 06-11- protagonists and
Intends to prove that
5-SC) witnesses to the killing,
the object is used in the
the foundation for
underlying event
DNA is Admissible Evidence of Paternity demonstrative
evidence will normally
It is not enough to state that the child's DNA profile consist of the
matches that of the putative father. A complete testimony of an
match between the DNA profile of the child and the eyewitness or
DNA profile of the putative father does not investigator stating
necessarily establish paternity. that the drawing
indeed fairly
For this reason, following the highest standard represents the position
adopted in an American jurisdiction,53 trial courts of those present in the
should require at least 99.9% as a minimum value event. (Francisco,
of the Probability of Paternity ("W") prior to a 1996)
paternity inclusion. W is a numerical estimate for
the likelihood of paternity of a putative father View of an Object or Scene
compared to the probability of a random match of
two unrelated individuals. When an object is relevant to the fact in issue, it may
be exhibited to, examined or viewed by the court.
An appropriate reference population database, such (Sec 1, Rule 130, ROC, as amended)
as the Philippine population database, is required to
compute for W. Due to the probabilistic nature of Where the object in question cannot be produced in
paternity inclusions, W will never equal to 100%. court because it is immovable or inconvenient to
However, the accuracy of W estimates is higher remove, it is proper for the tribunal to go to the
when the putative father, mother and child are object in its place and there observe it (Francisco,
subjected to DNA analysis compared to those 1996).
conducted between the putative father and child

601 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 Remedial Law

An ocular inspection conducted by the judge
without the presence of the parties or due notice is
not valid, as an ocular inspection is part of the trial.
(Regalado, 2008, citing Adan v. Abucejo-Luzano, et.
al., A.M. No. MTJ-00-1298, 03 Aug. 2000)
that words were uttered in a particular accent, then
it is object evidence. (Francisco, 1996)
Q: May a private document be offered and
admitted in evidence both as documentary
evidence and object evidence? (2005 BAR)

D. DOCUMENTARY EVIDENCE A: YES. A private document may be offered and

(RULE 130, B) admitted in evidence both as documentary evidence
and as object evidence depending on the purpose
for which the document is offered. If offered to
prove its existence, conditions or for any purpose
1. DEFINITION
other than the contents of a document, the same is
considered as object evidence. When the private
Documents as evidence consist of writings,
document is offered as proof of its contents, the
recording, photographs, or any material containing
same is considered as documentary evidence. The
letters, words, sounds, numbers, figures, symbols,
document may be offered for both purposes under
or their equivalent, or other modes of written
the principle of multiple admissibility. (Riano, 2019)
expressions, offered as proof of their contents.
Photographs include still pictures, drawings, stored
Requisites for Admissibility
images, x-ray films, motion picture or videos. (Sec. 2,
Rule 130, ROC, as amended)
The requisites for admissibility of documentary
evidence are: (R-A-M-O)
NOTE: Being writing or materials containing modes
of written expressions do not ipso facto make such
1. The document should be Relevant;
materials documentary evidence. For such writings
or materials to be deemed documentary evidence,
2. The documents should be Authenticated and
the same must be offered as proof of their contents.
proved in the manner provided in the Rules of
(Riano, 2019)
Court. Such authentication must be done by a
competent witness;
Categories of Documentary Evidence

3. The documents should be identified and

1. Writings;
Marked; and
2. Recordings;
3. Photographs;
4. They should be formally Offered to the court
4. Any other material containing letters, words,
and shown to the opposing party so that the
sounds, numbers, figures, symbols or their
latter may have the opportunity to object
equivalent; or
thereto. (Ramcar, Inc. v. Hi-Power Marketing,
5. Other modes of written expression offered as a
G.R. No. 157075, 17 July 2006)
proof of their contents.

Q: When Linda died, her common-law husband,

NOTE: Photographs include still pictures, drawings,
Lito and their alleged daughter, Nes, executed an
stored images, x-ray films, motion pictures or
extrajudicial partition of Linda’s estate.
videos. (Sec. 2, Rule 130, ROC, as amended)
Thereafter, the siblings of Linda filed an action
for partition of Linda’s estate and annulment of
Tape-recording as Documentary Evidence
titles and damages with the RTC. The RTC
dismissed the complaint and ruled that Nes was
If a tape recording is played to show that particular
the illegitimate daughter of the decedent and
words were uttered, it will constitute documentary
Lito based solely on her birth certificate, which
evidence. However, if it is played to simply show
on closer examination, reveals that Nes was

602
 Evidence
listed as “adopted” by both Linda and Lito. Is the
trial court correct?
A: NO. A record of birth is merely prima facie
evidence of the facts contained therein. It is not
conclusive evidence of the truthfulness of the
statements made therein by the interested parties.
Nes should have adduced evidence of her adoption,
in view of the contents of her birth certificate. The
mere registration of a child in his or her birth
certificate as the child of the supposed parents is not
a valid adoption, does not confer upon the child the
status of an adopted child and the legal rights of
such child, and even amounts to simulation of the
child's birth or falsification of his or her birth
certificate, which is a public document. (Rivera v.
Heirs of Villanueva, G.R. No. 141501, 21 July 2006)
Theory of Indivisibility (Rule on Completeness)
When part of an act, declaration, conversation,
writing, or record is given in evidence by one party,
the whole of the same subject may be inquired into
by the other; and when a detached act, declaration,
conversation, writing, or record is given in evidence,
any other act, declaration, conversation, writing or
record necessary to its understanding may also be
given in evidence. (Sec. 17, Rule 132, ROC, as
amended)
2. ORIGINAL DOCUMENT RULE
(PREVIOUSLY KNOWN AS THE
BEST EVIDENCE RULE)
The erstwhile “Best Evidence Rule” is now known as
the “Original Document Rule” in order to avoid
confusion.
The “Best Evidence Rule” is a misnomer because it
misleadingly suggests that the doctrine applies to all
types of evidence. The Best Evidence Rule only
applies to documents or writings; there is no
requirement that parties introduce the best
evidence bearing on other matters they seek to
prove in court. Thus, the more accurate or apt label
for the doctrine is the “Original Document Rule.”
(Rules Committee Notes, as cited in Peralta & Peralta,
2020)
603
Meaning of the Rule
GR: It provides that when the subject of the inquiry
is the contents of the document, writing, recording,
photograph or other record, no evidence shall be
admissible other than the original document itself.
XPNs: (Lo-Cus-Ju-N-Pu-C)
1. When the original is Lost, or destroyed, or
cannot be produced in court, without bad faith
on the part of the offeror;
2. When the original is in the Custody or under the
control of the party against whom the evidence
is offered, and the latter fails to produce it after
reasonable notice, or the original cannot be
obtained by local Judicial processes or
procedures;
3. When the original consists of Numerous
accounts or other documents which cannot be
examined in court without great loss of time
and the fact sought to be established from them
is only the general result of the whole;
4. When the original is a Public record in the
custody of a public officer or is recorded in a
public office; and
5. When the original is not closely-related to a
Controlling issue. (Sec. 3, Rule 130, ROC, as
amended)
NOTE: Where the issue is only as to whether such a
document was actually executed, or exists, or on the
circumstances relevant to or surrounding its
execution or delivery (external facts), the best
evidence rule (now, original document rule), does
not apply, and testimonial evidence is admissible.
(Moran, 1980)
The Best Evidence Rule (now original document
rule), applied to documentary evidence, operates as
a rule of exclusion, that is, secondary evidence
cannot be inceptively introduced as the original
writing itself must be produced in court, except in
the instances mentioned in Sec. 3. (Regalado, 2008)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
Q: What is the reason underlying the adoption of
the best evidence rule (now the original
document rule)? (1998 BAR)
A: There is a need to present to the court the exact
words of a writing where a slight variation of words
may mean a great difference in rights. It is also for
the prevention of fraud or mistake in the proof of
the contents of a writing.
Q: Police officers arrested Mr. Druggie in a buy-
bust operation and confiscated from him 10
sachets of shabu and several marked genuine
peso bills worth P5,000.00 used as the buy-bust
money during the buy-bust operation. At the
trial of Mr. Druggie for violation of R.A. No. 9165,
the Prosecution offered in evidence, among
others, photocopies of the confiscated marked
genuine peso bills. The photocopies were
offered to prove that Mr. Druggie had engaged at
the time of his arrest in the illegal selling of
dangerous drugs. Invoking the Best Evidence
Rule Atty. Maya Bang, the defense counsel,
objected to the admissibility of the photocopies
of the confiscated marked genuine peso
bills. Should the trial judge sustain the
objection of the defense counsel? Briefly explain
your answer. (2017 BAR)
A: NO. The best evidence rule (now the original
document rule) applies only to documentary
evidence, not to object or testimonial evidence. The
presentation at the trial of the "buy-bust money" is
not indispensable to the conviction of the accused
especially if the sale of dangerous drugs had been
adequately proved by the testimony of the police
officers. So long as the drug actually sold by the
accused had been submitted as an exhibit, the
failure to produce the marked money itself would
not constitute a fatal omission.
Q: Respondent Martinez is the registered owner
of the Pingol Property. Two mortgages were
constituted over this property – the first (PNB
Mortgage), and the second (DBP Mortgage).
Respondent agreed to constitute the DBP
Mortgage upon Clark’s request, and that, in
order to release the Pingol Property from the
PNP Mortgage, the Petitioner Spouses Tapayan
and Respondent agreed to utilize a portion of
604
the proceeds of the DBP Loan to settle the
remaining balance of the proceeds of the DBP
Loan to settle the remaining Respondent’s PNB
Loan (P65,320.55). Subsequently, the parties
executed a Deed of Undertaking in reference to
the DBP Mortgage that in the event of the
Petitioners could not pay the loan and
consequently, the property of the Respondent is
foreclosed and is not redeemed, the Petitioners
shall acknowledge as his indebtedness the
amount due to the DBP upon foreclosure or the
amount paid by the Respondent in paying the
loan, but in either case shall be deducted
therefrom the amount of P65,320.55 plus
interests and fees. The DBP Loan was not paid
when it fell due.
Petitioners assert that the RTC and CA erred in
ruling that the plain copy of the Deed of
Undertaking was admissible as proof of its
contents, in violation of the Best Evidence Rule
under Rule 130 of the Rules of Court. Also,
Petitioners insist that the Deed of Undertaking
is a falsity and should not be given credence. Are
the Petitioners correct?
A: NO. Petitioners waived their right to object to the
admission of the Deed of Undertaking on the basis of
the Best Evidence Rule (now Original Document
Rule). The Best Evidence Rule (now Original
Document Rule) requires that when the subject of
inquiry is the contents of the document, no evidence
is admissible other than the original document itself
except in the instances mentioned in Section 3, Rule
130 of the Revised Rules of Court. Nevertheless,
evidence not objected to is deemed admitted
and may be validly considered by the court in
arriving at its judgement. Courts are not
precluded to accept in evidence a mere
photocopy of a document when no objection was
raised when it was formally offered.
Petitioners failed to object to the admission of the
plain copy of the Deed of Undertaking at the time it
was formally offered in evidence before the RTC. In
fact, in their Reply, Petitioners admit that they only
raised this objection for the first time before the CA.
Having failed to timely raise their objection when
the Formal Offer of Evidence was filed in the RTC,
petitioners are deemed to have waived the same.
 Evidence
Hence, they are precluded from assailing the
probative value of the plain copy of the Deed of
Undertaking.
Petitioners failed to rebut the presumption of
regularity ascribed to the Deed of Undertaking as
a notarized public document.
The Deed of Undertaking became a public document
by virtue of its acknowledgement before a notary
public. Hence, it enjoys the presumption of
regularity, which can only be overcome by clear and
convincing evidence. While Petitioners vehemently
deny participation in the execution of the Deed of
Undertaking, they did not present any evidence to
support their claim that their signatures thereon
were forged. Hence, the presumption of regularity
ascribed to the Deed of Undertaking must be upheld.
(Sps. Tapayan v. Martinez, G.R. No. 207786, 30 Jan.
2017, J. Caguioa)
When Applicable
1. The original document of the writing is the
writing itself;
2. The contents of which is the subject of the
inquiry; and
3. The original document must be produced if
the purpose is to prove its contents. (Tan,
2019)
NOTE: When the truth of the document is in issue
and not the contents thereof, the original document
rule is not applicable. In such case, it is the hearsay
rule that will apply. (Riano, 2019)
Where the issue is the execution or existence of the
document or the circumstances surrounding its
execution, the original document does not apply and
testimonial evidence is admissible. (Arceo, Jr. v.
People, G.R. No. 142641, 17 July 2006)
Subject of Inquiry
When the original document rule comes into
operation, it is presumed that the subject of the
inquiry is the contents of the document, thus the
party offering the document must present the
original thereof and not any other secondary
evidence.
605
Collateral Facts Rule
A document or writing which is merely “collateral”
to the issue involved in the case on trial need not be
proved. Where the purpose of presenting a
document is not to prove its contents, but merely to
give coherence to, or to make intelligible the
testimony of a witness regarding a fact
contemporaneous to the writing, the original of the
document need not be presented.
Meaning of Original Document and Duplicate
An “original” of a document is either:
1. the document itself; or
2. any counterpart intended to have the same
effect by a person executive or issuing it.
NOTE: An original of a photograph includes the
negative or any print therefrom.
NOTE: 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.” This is considered as the
“Functional Equivalent” of the original under the
Rules on Electronic Evidence.
A “duplicate” is a counterpart produced by the
same impression as the original, or from the same
matrix, or by means of photography, including
enlargements and miniatures, or by mechanical or
electronic re-recording, or by chemical
reproduction, or by other equivalent techniques
which accurately reproduce the original.
GR: A duplicate is admissible to the same extent as
an original.
XPN:
1. A genuine question is raised as to the
authenticity of the original; or
2. In the circumstances, it is unjust or inequitable
to admit the duplicate in lieu of the original.
(Sec. 4, Rule 130, ROC, as amended)
NOTE: Writings with identical contents made by
printing, mimeographing, lithography, and other
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
similar methods executed at the same time are
considered as original document. Thus, each
newspaper sold in the stand is an original. (Riano,
2019)
Production of the original may be dispensed with if,
in the trial court’s discretion, the opponent (1) does
not dispute the contents of such document and (2)
no other useful purpose will be served by the
production. Secondary evidence of the contents of
the writing would be received in evidence if no
objection was made to its reception. (Estrada v.
Desierto, G.R. No. 146710-15, 02 Mar. 2001)
3. SECONDARY EVIDENCE
Evidence other than the original instrument or
document itself. It is the class of evidence that is
relevant to the fact in issue, it being first shown that
the primary evidence of the fact is not obtainable. It
performs the same functions as that of primary
evidence. (EDSA Shangri-La Hotel and Resort, Inc. v.
BF Corporation, G.R. Nos. 145842 & 145873, 27 June
2008)
NOTE: A party must first present to the court proof
of loss or other satisfactory explanation for the non-
production of the original instrument. 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. (Country Bankers Insurance Corp. v. Lagman,
G.R. No. 165487, 13 July 2011)
The non-production of the original document,
unless it falls under any of the exceptions in Sec. 3,
Rule 130, gives rise to the presumption of
suppression of evidence. (De Vera, et. Al. v. Aguilar,
et. al. G.R. No. 83377, 09 Feb. 1993)
Requisites before the Contents of the Original
Document may be proved by Secondary
Evidence (Laying the Basis/Laying the
Predicate) (2000 BAR)
The offeror must prove the following: (E-C-U)
1. The Execution or existence of the original
document;
2. The Cause of its unavailability; and
606
3. The Unavailability of the original is not due to
bad faith on his or her part. (Sec. 5, Rule 130,
ROC, as amended)
NOTE: Accordingly, the correct order of proof is as
follows: existence, execution, loss, and contents.
This order may be changed, if necessary, at the
sound discretion of the court. (Citybank, N.A.
MasterCard v. Teodoro, G.R. No. 150905, 23 Sept.
2003)
Due Execution and Authenticity of Private
Document
It may be proved by any of the following means:
1. By anyone who saw the document executed or
written;
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, ROC, as
amended)
NOTE: Any other private document need only be
identified as that which it is claimed to be.
Q: Young Builders Corporation (YBC for brevity)
filed before the Regional Trial Court in Cebu City
(RTC) a complaint for collection of sum of money
against Benson Industries, Inc (BII). Among the
pieces of evidence presented were: 1. YBC's
Accomplishment Billing dated 18 May 1998
(Exhibit "B"/Exhibit "2"); 2. BII’s Letter dated 7
May 1998 (Exhibit "F"); and 3. The Certification
dated 15 November 1997 (Exhibit "E"). With
respect to YBC's Accomplishment Billing dated
18 May 1998 (Exhibit "B"/Exhibit "2"), YBC is of
the position that there is no longer the need to
prove the genuineness and due execution of the
Accomplishment Billing because it is an
actionable document that was attached to the
complaint and not specifically denied under
oath by BII. YBC argues that BII's denial in its
Answer was insufficient because it did not
specifically deny the genuineness and due
execution of the Accomplishment Billing. With
respect to BII's Letter dated 7 May 1998 (Exhibit
"F"), YBC claims that the CA erred in holding
inadmissible the letter dated 7 May 1998
 Evidence
(Ernesto Letter), allegedly written by Ernesto
Dacay, Sr. (Ernesto), who apologized to YBC for
BII's inability to fulfill its payment due to
financial constraints. YBC reasoned that the CA
should have given credence to the Ernesto
Letter because it is an admission against BII's
interest. With respect to The Certification dated
15 November 1997 (Exhibit "E"), YBC argues
that the CA should not have disregarded the
Certification dated 15 November 1997 (Mary
Certification), allegedly issued by BII's
President, Mary Dacay, affirming YBC's
successful completion of the subject building
even if YBC's witness, Yu, allegedly admitted in
his testimony that the subject building was not
completed. Decide whether those pieces of
evidence are admissible.
A: NO. With respect to YBC's Accomplishment
Billing dated 18 May 1998 (Exhibit "B"/Exhibit "2"),
the complaint filed by YBC is an action for a sum of
money arising from its main contract with BII for
the construction of a building. YBC's cause of action
is primarily based on BII's alleged non-payment of
its outstanding debts to YBC arising from their main
contract, despite demand. If there was a written
building or construction contract that was executed
between BII and YBC, then that would be the
actionable document because its terms and
stipulations would spell out the rights and
obligations of the parties. However, no such
contract or agreement was attached to YBC's
Complaint.
With respect to BII 's Letter dated 7 May 1998
(Exhibit "F") and the Certification dated 15
November 1997 (Exhibit "E"), for the Ernesto Letter
to be given credence as an admission against BII's
interest, it should first be admissible as
documentary evidence. Like the Accomplishment
Billing, which is also a private document, the due
execution and authenticity of the Ernesto Letter
must be proved by YBC. As a prerequisite to the
admission in evidence of the Ernesto Letter, which
is private document, its identity and authenticity
must be properly laid and reasonably established.
This is mandated by Section 20, Rule 132 of the
Rules. Here, the records of the case show that the
Ernesto Letter was only entered into evidence but
was never actually identified in open court by YBC's
607
witness, Yu. The CA thus correctly ruled that the
Ernesto Letter is inadmissible in evidence in view of
YBC's failure to authenticate the same. No probative
value can be accorded to it.
With respect to The Certification dated 15
November 1997 (Exhibit "E"), The Court notes that
Exhibit "E" is a mere photocopy. Pursuant to Section
3, Rule 130 of the Rules or the Best Evidence Rule:
SEC. 3. Original document must be produced;
exceptions. - When the subject of inquiry is the
contents of a document, no evidence shall be
admissible other than the original document
itself, except in the following cases:
(a) When the original has been lost or
destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;
(b) When the original is in the custody or under
the control of the party against whom the
evidence is offered, and the latter fails to
produce it after reasonable notice;
(c) When the original consists of numerous
accounts or other documents which cannot be
examined in court without great loss of time
and the fact sought to be established from them
is only the general result of the whole; and
(d) When the original is a public record in the
custody of a public officer or is recorded in a
public office.
The records show that YBC did not invoke any of the
foregoing exceptions to the Best Evidence Rule to
justify the admission of a secondary evidence in lieu
of the original Mary Certification. Having been
admitted in violation of the Best Evidence Rule,
Exhibit "E" should have been excluded and not
accorded any probative value. (Young Builders Corp.
v. Benson Industries, Inc., GR No. 198998. 19 June
2019, J. Caguioa)
Intentional Destruction of the Original
Document
Intentional destruction of the originals by a party
who acted in good faith does not preclude the
introduction of secondary evidence of the contents
thereof. (Regalado, 2008)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
Proof of Loss or Destruction
It may be proved by:
1. Any person who knew of such fact;
2. Anyone who, in the judgment of the court, has
made sufficient examination in the places
where the document or papers of similar
character are usually kept by the person in
whose custody the document was and has been
unable to find it; or
3. Any person who has made any other
investigation which is sufficient to satisfy the
court that the document is indeed lost.
NOTE: A reasonable probability of its loss is
sufficient, and this may be shown by a bona fide and
diligent search, fruitlessly made, in places where it
is likely to be found. (Paylago v. Jarabe, G.R. No. L-
20046, 27 Mar. 1968)
All duplicates or counterparts of a lost or destroyed
document must be accounted for before using
copies thereof since all duplicates are parts of the
writing to be proved. (De Vera, et al. v. Aguilar, et al.,
G.R. No. 83377, 09 Feb. 1993)
While a marriage certificate is considered the
primary evidence of a marital union, it is not
regarded as the sole and exclusive evidence of
marriage. Jurisprudence teaches that the fact of
marriage may be proven by relevant evidence other
than the marriage certificate. Hence, even a person’s
birth certificate may be recognized as competent
evidence of marriage between parents. (Vda. De
Avenido v. Avenido, G.R. No. 173540, 22 Jan. 2014)
Order of Presentation of Secondary Evidence
Upon proof of its execution and loss of the original
document, its contents may be proved by the
following, in the order stated:
1. By a copy of the original;
2. By recital of the contents of the document in
some authentic document; or
3. By the testimony of witnesses (Sec. 5, Rule 130,
ROC, as amended)
608
Definite Evidentiary Rule
Where the law specifically provides for the class and
quantum of secondary evidence to establish the
contents of a document, or bars secondary evidence
of a lost document, such requirement is controlling.
E.g., evidence of a lost notarial will should consist of
a testimony of at least two credible witnesses who
can clearly and distinctly establish its contents. (Sec.
6, Rule 76, ROC, as amended; Regalado, 2008)
Waiver of the Presentation or Offer of the
Original
The presentation or offer of the original may be
waived upon failure to object by the party against
whom the secondary evidence is offered when the
same was presented, as the secondary evidence
becomes primary evidence. But even if admitted as
primary evidence, admissibility of evidence should
not be confused with its probative value. (Heirs of
Teodoro De la Cruz v. CA, G.R. No. 117384, 21 Oct.
1998)
When Original Document is in Adverse party’s
Custody or Control
If the document is in the custody or under the
control of the adverse party, he or she must have
reasonable notice to produce it. If after such notice
and after satisfactory proof of its existence, he fails
to produce the document, secondary evidence may
be presented as in the case of its loss. (Sec. 6, Rule
130, ROC, as amended)
Requisites for Admissibility of Secondary
Evidence when the Original Document is in the
Custody or Control of the Adverse party
1. That the original exists;
2. That said document is under the custody or
control of the adverse party;
3. That the proponent of secondary evidence has
given the adverse party reasonable notice to
produce the original document; and
NOTE: No particular form of notice is required,
to be given to the adverse party, as long as it
fairly appraises the other party as to what
 Evidence
papers are desired. Even an oral demand in
open court for such production at a reasonable
time thereafter will suffice. Such notice must,
however, be given to the adverse party, or his
attorney, even if the document is in the actual
possession of a third person. (Regalado, 2008)
The notice may be in the form of a motion for
the production of the original or made in an
open court in the presence of the adverse party,
or via a subpoena duces tecum, provided that
the party in custody of the original has sufficient
time to produce the same. When such party has
the original of the writing and does not
voluntarily offer to produce it, secondary
evidence may be admitted. (Magdayao v. People
G.R. No. 152881, 17 Aug. 2004)
4. That the adverse party failed to produce the
original document despite the reasonable
notice. (Sec. 6, Rule 130, ROC, as amended)
NOTE: A justified refusal or failure of the
adverse party to produce the original document
will not give rise to the presumption of
suppression of evidence or create an
unfavorable inference against him. It only
authorizes the presentation of secondary
evidence. (Regalado, 2008)
The mere fact that the original of the writing is in the
custody or control of the party against whom it is
offered does not warrant the admission of
secondary evidence. The offeror must prove that he
has done all in his power to secure the best evidence
by giving notice to the said party to produce the
document. (Magdayao v. People, G.R. No. 152881, 17
Aug. 2004)
Q: Paula filed a complaint against Lynette for the
recovery of a sum of money based on a
promissory note executed by the latter. During
the hearing, Paula testified that the original note
was with Lynette and the latter would not
surrender to Paula the original note which
Lynette kept in a place about one day's trip from
where she received the notice to produce the
note and despite such notice to produce the
same within 6 hours from receipt of such notice,
Lynette failed to do so. Paula presented a copy of
609
the note which was executed at the same time as
the original and with identical contents. Over
the objection of Lynette, can Paula present a
copy of the promissory note and have it
admitted as valid evidence in her favor? Why?
(2001 BAR)
A: YES. Although the failure of Lynette to produce
the original of the note is excusable since she was
not given reasonable notice, a requirement under
the Rules before secondary evidence may be
presented, the copy in possession of Paula is not
secondary evidence but a duplicate original because
it was executed at the same time as the original and
with identical contents. Hence, being an original, the
rule on secondary evidence need not be complied
with. (Sec. 6, Rule 130, ROC, as amended)
When the Original consists of Numerous
Accounts
When the contents of documents, records,
photographs, or numerous accounts are
voluminous and cannot be examined in court
without great loss of time, and the fact sought to be
established is only the general result of the whole,
the contents of such evidence may be presented in
the form of a chart, summary, or calculation. (Sec. 7,
Rule 130, ROC, as amended)
NOTE: A witness may be allowed to offer a
summary of a number of documents, or a summary
of the contents may be admitted if documents are so
voluminous and intricate as to make an examination
of all of them impracticable. They may also be
presented in the form of charts or calculations.
(Riano, 2019)
Q: In 2004, the Province of Isabela procured, by
direct contracting, 15,333 bottles of liquid
organic fertilizer. The Commission on Audit
found that the procurement was done without
open competitive bidding, and that the procured
items were overpriced. On 04 July 2011, the
Ombudsman filed a complaint against the public
officers involved in the subject transaction,
including Javier and Tumamao, who were the
Provincial Accountant and Provincial
Agriculturist of Isabela, respectively. After
almost five years, or on 19 September 2016, the
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
Special Panel on Fertilizer Fund Scam of the
Ombudsman issued its Resolution finding
probable cause to indict Javier and Tumamao
for violation of Section 3(e), of R.A. No. 3019
(R.A. No. 3019). Thereafter, on 04 October 2017,
an Information dated 14 June, 2017 was filed
against Javier and Tumamao for violation of
Section 3(e) of R.A. No. 3019. Javier and
Tumamao filed a Motion to Quash on 24
November 2017, arguing that the period
constituting five years and four months from the
filing of the complaint to the approval of the
resolution finding probable cause constituted
delay which violated their right to speedy
disposition of cases. Is the contention of Javier
and Tumamao correct?
A: YES. The right to speedy disposition of cases of
both Javier and Tumamao were violated by the
Ombudsman's delay in concluding the preliminary
investigation. For purposes of computing the length
of delay in the present case, the Cagang guidelines
will be followed, and the case against Javier and
Tumamao would be deemed initiated only upon the
filing of the complaint, or on 27 April 2011. Javier
and Tumamao were given the opportunity to be
heard and were therefore able to file their counter-
affidavits on 15 November 2011 and 22 November
2011, respectively. After these dates, it appears
from the record that the case had become dormant
until 05 December 2016 when the Ombudsman
approved the resolution finding probable cause
against Javier and Tumamao.
The prosecution must be able to prove: First, that it
followed the prescribed procedure in the conduct of
preliminary investigation and in the prosecution of
the case; Second, that the complexity of the issues
and the volume of evidence made the delay
inevitable; and third, that no prejudice was suffered
by the accused as a result of the delay. In this case,
the prosecution justified the delay of five years by
merely claiming that the case had voluminous
records, without offering any proof as to the said
assertion or at least specifying how voluminous
such records were. The prosecution basically relied
on such unsubstantiated claim and rested on the
Court's recognition in a previous case that there is a
steady stream of cases that reaches their office.
610
Another requisite to invoke the right to speedy
disposition of cases as provided for in Cagang is the
timely assertion of the right. Here, the Court holds
that Javier and Tumamao's acts, or their inaction,
did not amount to acquiescence. While it is true that
the records are bereft of any indication that Javier
and/or Tumamao "followed-up" on the resolution
of their case, the same could not be construed to
mean that they acquiesced to the delay of five years.
(Pete Gerald L. Javier and Danilo B. Tumamao v.
Sandiganbayan and People of the Philippines, G.R. No.
237997, 10 June 2020, J. Caguioa)
Requisites for the Admissibility of Secondary
Evidence when the Original consists of
Numerous Accounts
1. The original must consist of numerous accounts
or other documents;
2. They cannot be examined in court without great
loss of time or inconvenient inconvenience
(Riguera, 2020 citing Republic v. Mupas, G.R. No.
181892, 08 Sept. 2015);
NOTE: The court may admit a summary of
voluminous original documents, in lieu of the
original documents, if the party has shown that
the underlying writings are numerous and that
an in-court examination of these documents
would be inconvenient. The rule does away
with item-by-item court identification and
authentication of voluminous exhibits which
would only be burdensome and tedious for the
parties and the court.
However, as a condition precedent to the
admission of a summary of numerous
documents, the proponent must lay a proper
foundation for the admission of the original
documents on which the summary is based. The
proponent must prove that the source
documents being summarized are also
admissible if presented in court. In concrete
terms, the source must be shown to be original,
and not secondary. (Ibid.)
3. The fact sought to be established from them is
only the general result of the whole. (Sec. 7, Rule
130, ROC, as amended)
 Evidence

NOTE: Voluminous records must be made Production of Documents under Sec. 9, Rule 130
accessible to the adverse party so that the vs. Rule 27 (Modes of Discovery)
correctness of the summary of the voluminous
records may be tested on cross-examination. SEC. 9, RULE 130 RULE 27
(Compaña Maritima v. Allied Free Workers Union, et Procured by mere The production of
al., G.R. No. L-28999, 24 May 1977) notice to the adverse document is in the
party, which is a nature of a mode of
When Original Document is a Public Record condition precedent discovery and can be
(2000 BAR) for the subsequent sought only by proper
introduction of motion in the trial
When the original of a document is in the custody of secondary evidence by court and is permitted
public officer or is recorded in a public office, its the proponent. only upon good cause
contents may be proved by a certified copy issued shown.
by the public officer in custody thereof. (Sec. 8, Rule Contemplates a
130, ROC, as amended) situation wherein the
Presupposes that the
document is either
document to be
Proof of the Contents if the Original Document is assumed to be
produced is intended
a Public Record favorable to the party
as evidence for the
in possession thereof
proponent who is
The contents may be proved by: or that the party
presumed to have
seeking its production
knowledge of its
1. A certified copy issued by the public officer in is not sufficiently
contents.
custody thereof (Sec. 8, Rule 130, ROC, as informed of the
amended); and contents of the same.

2. Official publication. (Herrera, 1999) 4. Parol Evidence Rule

NOTE: Public records are generally not to be Meaning of the Rule

removed from the places where they are recorded
and kept. Hence, proof of the contents of a document
which forms part of a public record may be done by
secondary evidence.
When a document produced is not offered in
evidence
If the party who calls for the production of a
document does not offer the same in evidence, no
unfavorable inference may be drawn from such
failure. This is because a party who calls for the
production of a document is not required to offer it.
(Sec. 9, Rule 130, ROC, as amended)
When the terms of an agreement have been reduced
to writing, it is considered as containing all the
terms agreed upon and there can be, as between the
parties and their successors-in-interest, no
evidence of such terms other than the contents of
the written agreement. (Sec. 10, Rule 130, ROC, as
amended)
NOTE: Among the evidentiary rules, it is the parol
evidence rule that has direct application to the law
on contracts. The rule applies only to contracts
which the parties have decided to set forth in
writing. Hence, parol evidence does not apply to oral
contracts. (Riano, 2019)

Parol evidence

It is any evidence aliunde (extrinsic evidence) which

is intended or tends to vary or contradict a complete
and enforceable agreement embodied in a

611 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 Remedial Law
document (Regalado, 2008). It may refer to
testimonial, real or documentary evidence.
NOTE: Parol evidence is evidence outside of the
agreement of the parties while the parol evidence
rule prevents the presentation of such parol
evidence.
Rationale for the adoption of the Parol Evidence
Rule (2009 BAR)
When the parties have reduced their agreement in
writing, it is presumed that they made such writing
as the repository of all terms of the agreement, and
whatever is not found in the said writing must be
considered as waived and abandoned. (Tan, 2010)
Condition Precedent and a Condition
Subsequent established by Parol Evidence
Condition precedent may be established by parol
evidence because there is no varying of the terms of
the written contract by extrinsic agreement. There
is no contract in existence so there is nothing in
which to apply the excluding rule. Meanwhile,
conditions subsequent may not be established by
parol evidence since a written contract already
exists.
NOTE: The present rule now requires that the
admissibility of subsequent agreements be
conditioned upon its being put in issue in a verified
pleading. (Sec. 10, Rule 130, ROC, as amended)
Requisites for the Application of the Rule
1. There must be a valid contract;
2. The terms of the agreement must be reduced to
writing. The term “agreement” includes wills;
3. The dispute is between the parties or their
successors-in-interest; and
4. There is dispute as to the terms of the
agreement.
Parties should be Privies to the Contract
The parol evidence rule does not apply, and may not
be properly invoked, by either party to the litigation
against the other, where at least one party to the suit
is not a party or privy to the written instrument in
612
question and does not base a claim or assert a right
originating in the instrument of the relation
established thereby. Thus, if one of the parties to the
case is a complete stranger to the contract involved
therein, he is not bound by this rule and can
introduce extrinsic evidence against the efficacy of
the writing. (Lechugas v. CA, et al., G.R. Nos. L-39972
& L-40300, 06 Aug. 1986)
Application of the Rule to Wills
The parol evidence rule applies to agreements, i.e.,
contractual obligations. However, the term
“agreement” includes wills. Therefore, there can be
no evidence of the terms of the will other than the
contents of the will itself. (Riano, 2019)
NOTE: While parol evidence applies to wills, an
express trust concerning an immovable or any
interest therein may not be proved by parol
evidence. (Art. 1443, NCC)
Q: IPAMS is a corporation recruiting nurses for
work deployment. It entered a memorandum of
agreement (MOA) with an insurer, Country
Bankers, for surety bonds to be provided to the
recruited nurses and to secure the latter's
obligations in the immigration and deployment
processes. The MOA stated that IPAMS needs to
present two demand letters, an affidavit stating
reason of any violation, a statement of account,
and the transmittal claim letter, in order to
claim on the surety bonds.
Country Bankers initially paid the claims of
IPAMS, but later began neglecting their
payment. Country Bankers later on asked for
official receipts, which could not be produced by
IPAMS. Since the claims remained unpaid, the
IPAMS sought the intervention of the Insurance
Commission (IC). The IC ruled that Country
Bankers is liable to settle the subject claim, and
if it does not, the IC will take disciplinary action.
The Department of Finance and the Office of the
President later affirmed this decision. However,
the Court of Appeals reversed.
In the present petition before the Supreme
Court (SC), IPAMS prays for the reversal of the
CA's decision, as well as the
suspension/revocation of the license of Country
 Evidence

Bankers, the awarding of the total amount of its
claim, as well as damages. Should the SC grant
the claim for suspension of Country Bankers'
license, the awarding of IPAMS' claim and
damages?
the true intent of the parties. In this case, parol
evidence then becomes competent and admissible
to prove that the instrument was in truth and in fact
given merely as a security for the repayment of a
loan. (Madrigal v. CA, G.R. No. 142944. 15 Apr. 2005)

A: NO. The prayer of IPAMS for the total amount of Kinds of Ambiguities
its claims as well as damages could be granted, since
the orders of the IC in question were issued in its INTRINSIC EXTRINSIC
INTERMEDIATE
capacity as a regulator and not as an adjudicator of OR LATENT OR PATENT
claims. This being the case, jurisprudence states On its face, Ambiguity is
that the matter should be referred back to the IC so the writing apparent on
that it could determine the remaining amount and appears clear the face of Ambiguity
extent of the liability that should be settled by and the writing consists in the
respondent Country Bankers in order to avoid the unambiguous and requires use of equivocal
IC's disciplinary action. (Industrial Personnel and but there are that words
Management Services, Inc. v. Country Bankers collateral something susceptible of
Insurance Corporation, G.R. No. 194126, 17 Oct. 2018, matters be added to two or more
J. Caguioa) which make make the interpretation.
the meaning meaning
Exceptions to Parol Evidence Rule uncertain. certain.
Cannot be
A party may present evidence to modify, explain or cured by
add to the terms of the written agreement if he or evidence
she puts in issue in a verified pleading the following: aliunde
(F-I-V-E) because it is
only
1. Failure of the written agreement to express the intrinsic
Curable by Curable by
true intent of the parties thereto (2001 BAR); ambiguity
evidence evidence
not extrinsic
aliunde. aliunde.
2. Intrinsic ambiguity, mistake or imperfection in ambiguity
the written agreement; which serves
as an
3. Validity of the written agreement; or exception to
the parol
4. Existence of other terms agreed to by the evidence
parties or their successors in interest after the rule.
execution of the written agreement. (Sec. 10, Where the Where the
Rule 130, ROC, as amended) document contract
refers to a refers to an
Mistake particular unidentified
Use of terms
person or grantee or
such as “dollars”
The mistake contemplated is one which is a mistake thing but does not
“tons” and
of fact mutual to both parties. (Gurango vs. IAC, G.R. there are two particularly
“ounces.”
No. 75290, 04 Nov. 1992) or more identify the
persons subject
Even when a document appears on its face to be a having the matter
sale, the owner of the property may prove that the same name thereof such
contract is really a loan with mortgage by raising as or two or that, in
an issue the fact that the document does not express

613 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 Remedial Law

more things either case executed at the same time as the original and
to which the the text does with identical contents. Over the objection of
description not disclose Lynette, will Paula be allowed to testify as to the
in the writing who are or true agreement or contents of the promissory
may apply. what is note? Why? (2001 BAR)
referred to.
A: YES. As an exception to the parol evidence rule, a
Failure of the Written Agreement to Express party may present evidence to modify, explain or
True Intent of the Parties add to the terms of the written agreement if he puts
in issue in his pleading the failure of the written
Parol evidence may be admitted to show the true agreement to express the true intent and agreement
consideration of the contract, or the want or of the parties thereto. Here, Paula has alleged in her
illegality thereof, or the incapacity of the parties, or complaint that the promissory note does not
the fact that the contract was fictitious or absolutely express the true intent and agreement of the parties.
simulated, or that there was fraud in inducement The parol evidence rule may be admitted to show
(Regalado, 2008). Despite the meeting of the minds, the true consideration of the contract. (Sec. 10, Rule
the true agreement of the parties is not reflected in 130, ROC, as amended)
the instrument. (Riano, 2019)
Distinctions between the Original Document
NOTE: In an action for reformation of instrument Rule and the Parol Evidence Rule
under Art. 1359 of the Civil Code of the Philippines,
the plaintiff may introduce parol evidence to show ORIGINAL DOCUMENT PAROL EVIDENCE
the real intention of the parties. An action for RULE RULE
reformation presupposes that a meeting of the The original document
minds exists between the parties, i.e., there is a is not available or there Presupposes that the
contract between them although the instrument is a dispute as to original document is
that evidences the contract does not reflect the true whether said writing is available in court
agreement of the parties by reason of, for instance, original
fraud or mistake. (Riano, 2019) Prohibits the
introduction of
Q: Paula filed a complaint against Lynette for the secondary evidence in Prohibits the varying of
recovery of a sum of money based on a lieu of the original the terms of a written
promissory note executed by the latter. Paula document regardless of agreement
alleged in her complaint that although the whether it varies the
promissory note says that it is payable within contents of the original
120 days, the truth is that the note is payable Applies only to written
Applies to all kinds of
immediately after 90 days but that if Paula is agreements (contracts)
writings
willing, she may, upon request of Lynette give and wills
the latter up to 120 days to pay the note. During Can be invoked only
the hearing, Paula testified that the truth is that Can be invoked by any when the controversy is
the agreement between her and Lynette is for party to an action between the parties to
the latter to pay immediately after 90 days’ time. whether he has the written agreement,
Also, since the original note was with Lynette participated in the their privies, or any
and the latter would not surrender to Paula the writing involved party affected thereby
original note which Lynette kept in a place about like a cestui que trust
one day's trip from where she received the
notice to produce the note and in spite of such
notice to produce the same within 6 hours from
receipt of such notice, Lynette failed to do so.
Paula presented a copy of the note which was

614
 Evidence
Waiver of the Parol Evidence Rule
Failure to invoke the benefits of the rule constitutes
as waiver. Inadmissible evidence may be rendered
admissible by failure to object. (Riano, 2019)
Probative Value
Even if the parol evidence is admitted, it does not
mean that the court would give probative value to
the parol evidence. Admissibility is not the
equivalent of probative value or credibility. (Riano,
2019)
Considering the agreement’s mistake, imperfection
or supposed failure to express the parties’ true
intent was successfully put in issue in the complaint,
this case falls under the exceptions provided by Sec
9, Rule 130. Accordingly, the testimonial and
documentary parol evidence sought to be
introduced, which attest to these supposed flaws
and what they aver to have been the parties’ true
intent, may be admitted and considered. However,
this admission and availability for consideration is
no guarantee of how exactly the parol evidence
adduced shall be appreciated by the court. They do
not guarantee the probative value, if any, that shall
be attached to them. (Paras v. Kimwa Construction
and Development Corp., G.R. No. 171601, 08 Apr.
2015)
5. INTERPRETATION OF DOCUMENTS
How interpreted
The language of a writing is to be interpreted
according to the legal meaning it bears in the place
of its execution, unless the parties intended
otherwise. (Sec. 11, Rule 130, ROC, as amended)
When there are Several Provisions or
Particulars
In the construction of an instrument, where there
are several provisions or particulars, such a
construction is, if possible, to be adopted as will give
effect to all. (Sec. 12, Rule 130, ROC, as amended)
615
Conflict between General and Particular
Provision
When a general and a particular provision are
inconsistent, the following rules shall be followed:
1. The particular provision is paramount to the
general;
2. A particular intent will control a general one
that is inconsistent with it. (Sec. 13, Rule 130,
ROC, as amended)
Interpretation according to Circumstances
The proper construction of an instrument according
to the circumstances shall be as follows:
a. The circumstances under which it was made,
including the situation of the subject thereof
and of the parties to it, may be shown;
b. Such circumstances must be shown so that the
judge may be placed in the position of those
whose language he or she is to interpret. (Sec.
14, Rule 130, ROC, as amended)
Presumption on Terms of Writing
The terms of a writing shall be interpreted as
follows:
1. It shall be presumed to have been used in their
primary and general acceptation;
2. Evidence is admissible to show that they have a
local, technical, or otherwise peculiar
signification; and
3. Evidence is admissible to show that it was so
used and understood in the particular instance,
in which case the agreement must be construed
accordingly. (Sec. 15, Rule 130, ROC, as
amended)
Conflict between Written and Printed
When an instrument consists partly of written
words and partly of a printed form, and the two are
inconsistent, the written controls the printed form.
(Sec. 16, Rule 130, ROC, as amended)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
When the Character of Writing is Difficult to
Decipher
When the characters in which an instrument is
written are difficult to be deciphered, or the
language is not understood by the court, it can be
proved by evidence of:
1. Persons skilled in deciphering the characters;
or
2. Those who understand the language, is
admissible to declare the characters or the
meaning of the language. (Sec. 17, Rule 130, ROC,
as amended)
Q: What is the rule in case the terms of an
agreement admit of two (2) interpretations?
A: When the terms of an agreement have been
intended in a different sense by the different parties
to it, it shall be construed as follows, to wit:
1. That sense is to prevail against either party in
which he supposed the other understood it; and
2. When different constructions of a provision are
otherwise equally proper, that is to be taken which
is the most favorable to the party in whose favor the
provision was made. (Sec. 18, Rule 130, ROC, as
amended)
E. TESTIMONIAL EVIDENCE
(RULE 130, C)
Testimonial or oral evidence is evidence elicited
from the mouth of a witness. It is sometimes called
viva voce evidence which literally means “living
voice” or by word of mouth. In this kind of evidence,
a human being (witness) is called to the stand, is
asked questions, and answers the question asked of
him. (Riano, 2019)
616
1. QUALIFICATION OF WITNESSES
Who may be a witness
A person may be a witness if he or she:
1. Can perceive;
2. Can make known his perceptions to others (Sec.
21, Rule 130, ROC, as amended);
3. Must take either an oath or an affirmation; and
4. Must not possess any of the disqualifications
imposed by law or the rules. (Riano, 2019)
Factors that do not affect the competency of a
witness
1. Religious belief;
2. Political belief;
3. Interest in the outcome of the case; or
4. Conviction of a crime, unless otherwise
provided by law. (Sec. 21, Rule 130, ROC, as
amended)
Related jurisprudence
There is no provision in the Rules disqualifying
parties declared in default from taking the witness
stand for non-disqualified parties. (Cavili v.
Florendo, G.R. No. 73039, 09 Oct. 1987)
It is axiomatic that truth is established not by the
number of witnesses but by the quality of their
testimonies. The testimony of a single witness, if
positive and credible, is sufficient to support a
conviction even in a charge of murder.
The number of witnesses does not determine the
outcome of the case. A positive identification will
prevail over the defense of alibi, the latter being
considered as a weaker defense since it can be easily
fabricated. (People v. Gani, G.R. No. 195523, 05 June
2013)
Drug abuse will not render a person incompetent to
testify. Drug abuse becomes relevant only if the
witness was under the influence of drugs at the time
he is testifying. (Riano, 2019) (2011 BAR)
The relationship of a witness with a party does not
ipso facto render him a biased witness in a criminal
 Evidence

case and likewise in a civil case. (Northwest Airlines produced for examination in court or at the taking
v. Chiong, G.R. No. 155550, 31 Jan. 2008) of their depositions. (Regalado, 2008)

Inconsistencies in the testimonies of prosecution Burden of Proof

witnesses that do not relate to the elements of the
offense are too inconsequential to warrant a The burden is upon the party objecting to the
reversal of the trial court’s judgment of conviction. competency of a witness to establish the ground of
Also, the defenses of denial and frame-up must be incompetency.
substantiated with clear and convincing evidence;
otherwise, same cannot prevail over the positive Competency vs. Credibility of a Witness
and credible testimonies of the prosecution
witnesses. (Aurelio v. People, G.R. No. 174980, 31 COMPETENCY CREDIBILITY
Aug. 2011) OF WITNESS OF WITNESS
Refers to the basic Refers to the
Presumption of Competency of a Witness qualifications of a believability of a
witness. witness.
GR: A person who takes the witness stand, is It is a matter of law or a
presumed to be qualified to testify. A party who matter of rule.
desires to question the competence of a witness Refers to the weight
must do so by making an objection as soon as the It also includes the and trustworthiness or
facts tending to show incompetency are apparent. absence of any of the reliability of the
(Jones on Evidence, Vol. 3, Sec. 796) disqualifications testimony.
imposed upon a
A prospective witness must show that he has the witness.
following abilities:
GR: Discrepancies between the statements of the
1. To observe – The testimonial quality of affiant in his affidavit and those made by him or her
perception; on the witness stand do not necessarily discredit
2. To remember – The testimonial quality of him or her because it is a matter of judicial
memory; experience that an affidavit, being taken ex parte, is
3. To relate – The testimonial quality of narration; almost always incomplete and often inaccurate.
and
4. To recognize a duty to tell the truth – The XPN: The credibility of witnesses will be impaired
testimonial quality of sincerity. (Herrera, 1999) if:

XPNs: There is prima facie evidence of 1. The omission in the affidavit refers to a very
incompetency in the following: important detail of the incident that one
relating the incident as an eyewitness would
1. The fact that a person has been recently found not be expected to fail to mention; or
of unsound mind by a court of competent
jurisdiction; or 2. When the narration in the sworn statement
2. That one is an inmate of an asylum. (Torres v. substantially contradicts the testimony in court.
Lopez, 48 Phil. 772)
The point of inquiry is whether the omission is
Time when the Witness must Possess the important or substantial. (People v. Calegan, G.R.
Qualifications No. 93846, 30 June 1994)

The qualifications and disqualifications of witnesses

are determined as of the time said witnesses are

617 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 Remedial Law

Credibility of a Witness witnesses themselves and observed their

deportment during trial. Here, there is nothing from
A testimony must not only come from a credible the records that would impel this Court to deviate
witness, but must be credible in itself, tested by from the findings and conclusions of the trial court
human experience, observation, common as affirmed by the CA. (People v. Ending G.R. No.
knowledge, and accepted conduct that has evolved 183827, 12 Nov. 2012)
through the years. (People v. Mirandilla Jr., G.R. No.
186417, 21 July 2011) Disqualification of Witnesses

NOTE: Mental unsoundness of the witness which
occurred at the time of taking his testimony, affects
only his credibility. Nevertheless, as long as the
witness can convey ideas by words or signs and give
sufficiently intelligent answers to questions
propounded, she is a competent witness even if she
is feeble-minded or is a mental retardate or is a
schizophrenic. (People v. De Jesus, G.R. No. L-39087,
27 Apr. 1984)
Findings on the Credibility of a Witness
GR: The determination of credibility of witnesses is
properly within the domain of the trial court as it is
in the best position to observe their demeanor and
bodily movements. The findings of the trial court
with respect to the credibility of witnesses and their
testimonies are entitled to great respect, and even
finality. (Llanto v. Alzona, G.R. No. 150730, 31 Jan.
2005)
1. Disqualification by reason of marriage or the
Marital Disqualification Rule (Sec. 23, Rule 130,
ROC, as amended);
2. Disqualification by reason of privileged
communication:
a. Marital privilege;
b. Attorney-client privilege;
c. Doctor-patient privilege;
d. Minister-penitent privilege; or
e. Public officer as regards communications
made in official confidence. (Sec. 24, Rule
130, ROC, as amended)
NOTE: The qualifications and disqualifications of
witnesses are determined as of the time they are
produced for examination in court or at the taking
of the depositions. Blood relationship does not
disqualify a witness. (Bernardo, 2008)

XPNs: Absolute Disqualification vs. Relative

1. The lower court has reached conclusions that Disqualification
are clearly unsupported by evidence; or
2. It has overlooked some facts or circumstances ABSOLUTE RELATIVE
of weight and influence which, if considered, DISQUALIFICATION DISQUALIFICATION
would affect the result of the case. (People v. The proposed witness
Dalag, G.R. No. 129895, 30 Apr. 2003) is prohibited to testify
only on certain matters
NOTE: It is a jurisprudentially conceded rule that it The proposed witness specified under Secs.
is against human nature for a young girl to fabricate is prohibited to take 23 and 24 (now only
a story that would expose herself as well as her the witness stand. Sec. 24), Rule 130 due
family to a lifetime of shame, especially when her (Herrera, 1999) to interest or
charge could mean the death or lifetime relationship, or to
imprisonment of her own father. "AAA" was without privileges of other
doubt telling the truth when she declared that her parties. (Ibid.)
father raped her on three separate occasions. The Disqualification by
Disqualification by
attempt to discredit the testimony of "AAA" by the reason of privileged
reason of marriage.
accused deserves no merit. When credibility is in communication. (Sec.
(Sec. 23, Rule 130, ROC,
issue, the Court generally defers to the findings of 24, Rule 130, ROC, as
as amended)
the trial court considering that it was in a better amended)
position to decide the question, having heard the

618
 Evidence
Conviction of a Crime as a Ground for
Disqualification
GR: Conviction of a crime is not a ground for
disqualification as a witness. (Sec. 21, Rule 130, ROC,
as amended)
XPNs: Otherwise provided by law, such as the
following:
1. Those who have been convicted of falsification
of a document, perjury or false testimony are
prohibited from being witnesses to a will (Art.
821, NCC);
2. Those who have been convicted of an offense
involving moral turpitude cannot be discharged
to become a State witness (Sec. 17, Rule 119,
ROC, as amended); and
3. Those who fall under the disqualification
provided under Secs. 23 and 24, Rule 130.
Disqualification by Reason of Marriage (Marital
Disqualification/Spousal Immunity Rule)
During their marriage, the husband or the wife
cannot testify against the other without the consent
of the affected spouse, except in a civil case by one
against the other, or in a criminal case for a crime
committed by one against the other or the latter’s
direct descendants or ascendants. (Sec. 23, Rule 130,
ROC, as amended)
Rationale for the Disqualification
a. There is identity of interests between husband
and wife;
b. There is a consequent danger of perjury if one
were to testify for or against the other;
c. The policy of the law is to guard the security and
confidences of private life, even at the risk of an
occasional failure of justice, and to prevent
domestic disunion and unhappiness; and
d. 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, 14 Oct.
2005)
619
Requisites for the Applicability of Spousal
Immunity
1. That the spouse for or against whom the
testimony of the other is offered is a party to the
case;
2. That the spouses are legally married (valid until
annulled);
3. That the testimony is offered during the
existence of the marriage; and
4. That the case is not by one against the other.
(Herrera, 1999)
Exceptions to Spousal Immunity
1. Consent is given by the party-spouse;
2. In a civil case filed by one against the other;
3. In a criminal case for a crime committed by one
against the other or the latter’s direct
descendants or ascendants (Sec. 23, Rule 130,
ROC, as amended);
4. Where the testimony was made after the
dissolution of the marriage (Riano, 2019); or
5. Where the spouse-party fails to raise the
disqualification, it is deemed a waiver.
Waiver of Spousal Immunity
Objections to the competency of a husband or wife
to testify in a criminal prosecution against the other
may be waived as in the case of the other witnesses
generally. Thus, the accused waives his or her
privilege by calling the other spouse as a witness for
him or her. It is also true that objection to the
spouse's competency must be made when he or she
is first offered as witness, and that the
incompetency may be waived by the failure of the
accused to make timely objection to the admission
of the spouse's testimony, although knowing of such
incompetency, and the testimony admitted. (People
v. Francisco, 78 Phil. 694, citing 3 Wharton's Criminal
Evidence, 11th Ed., Section 1205, pp. 2060-2061)
Extent of Prohibition
The prohibition extends not only to a testimony
adverse to the spouse but also to a testimony in
favor of the spouse. It also extends to both criminal
and civil cases (Riano, 2019), and not only consists
of utterances but also the production of documents.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
(Riano, 2019, citing State v. Bramlet, 114 S. C. 389,
103 S.E. 755)
Who can claim Spousal Immunity
The privilege to object may be claimed only by the
spouse-party and not the other spouse who is
offered as a witness. (Herrera, 1999, citing Ortiz vs.
Arambulo, 8 Phil. 98)
Testimony where Spouse is Accused with Others
The spouse could testify in a murder case against
the other co-accused who were jointly tried with the
accused-spouse. This testimony cannot, however,
be used against accused-spouse directly or through
the guise of taking judicial notice of the proceedings
in the murder case without violating the marital
disqualification rule, if the testimony is properly
objected. (People v. Quidato, Jr., G.R. No. 117401, 01
Oct. 1998)
Marrying the Witness
An accused can effectively “seal the lips” of a witness
by marrying the witness. As long as a valid marriage
is in existence at the time of the trial, the witness-
spouse cannot be compelled to testify –even though
the marriage was entered into for the express
purpose of suppressing the testimony. (Herrera,
1999)
Testimony by the Estranged Spouse
Q: Ivy was estranged from her husband Bob for
more than a year due to Bob’s suspicion that she
was having an affair with Jeff, their neighbor. Ivy
was temporarily living with her sister in Pasig
City. For unknown reasons, the house of Ivy’s
sister was burned, killing the latter. Ivy
survived. Ivy saw her husband in the vicinity
during the incident. Later, Bob was charged with
arson in an Information filed with the RTC, Pasig
City. During the trial, the prosecutor called Ivy to
the witness stand and offered her testimony to
prove that her husband committed arson. Can
Ivy testify over the objection of her husband on
the ground of marital privilege? (2006, 2013
BAR)
620
A: YES. The marital disqualification rule is aimed at
protecting the harmony and confidences of marital
relations. Hence, 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 marital disqualification
no longer applies.
The act of Bob in setting fire to the house of his
sister-in-law, knowing fully well that his wife was
there, is an act totally alien to the harmony and
confidences of marital relations which the
disqualification primarily seeks to protect. The
criminal act complained of had the effect of directly
and vitally impairing the conjugal relation. (Alvarez
v. Ramirez, G.R. No. 143439, 14 Oct. 2005)
Q: Alex and Bianca are legally married. Alex is
charged in court with the crime of serious
physical injuries committed against Carding,
son of Bianca and stepson of Alex. Bianca
witnessed the infliction of the injuries on
Carding by Alex. The public prosecutor called
Bianca to the witness stand and offered her
testimony as an eyewitness. Counsel for Alex
objected on the ground of the marital
disqualification rule under the Rules of Court.
a. Is the objection valid?
b. Will your answer be the same if Bianca’s
testimony is offered in a civil case for
recovery of personal property filed by
Carding against Alex? (2000, 2004 BAR)
A:
a. NO. While neither the husband nor the wife
may testify against each other without the
consent of the affected spouse, one exception is
if the testimony of the spouse is in a criminal
case for a crime committed by one against the
other or the latter’s direct descendants or
ascendants. (Sec. 23, Rule 130, ROC, as amended)
Here, Carding is the direct descendant of
Bianca, the wife of Alex. Hence, the testimony of
Bianca falls under the exception to the marital
disqualification rule.
b. NO. The marital disqualification rule applies
this time. One of the exceptions to the marital
disqualification rule is when the testimony is
given in a civil case by one spouse against the
 Evidence

other. Here, the case involves a case by Carding maintenance of the sacred institution of marriage.
for the recovery of personal property against (Herrera, 1999)
Bianca’s spouse Alex.
Requisites for the Application of Marital
2. TESTIMONIAL PRIVILEGE Privilege

Scope of Disqualification by reason of Privileged 1. There must be a valid marriage between the
Communication husband and wife;
2. There is a communication received in
The disqualification by reason of privileged confidence by one from the other;
communication applies to both civil and criminal 3. The confidential communication was received
cases except doctor-patient privilege, which is during the marriage (Riano, 2019); and
applicable only in civil cases. Unless waived, the 4. The spouse against whom such evidence is
disqualification under Sec. 24, Rule 130 remains being offered has not given his or her consent to
even after the various relationships therein have such testimony. (Regalado, 2008)
ceased to exist.
Cases when Marital Privilege is NOT Applicable
Who may assert the Privilege
A. In a civil case by one against the other;
The holder of the privilege, authorized persons and B. In a criminal case for a crime committed by one
persons to whom privileged communication were against the other or the latter’s direct
made may assert the privilege. (Herrera, 1999) descendants or ascendants (Sec. 24[a], Rule
130) (Sec. 24(a), Rule 130, ROC, as amended); or
Rule on Third Parties C. Information acquired by a spouse before the
marriage even if received confidentially will not
The communication shall remain privileged, even in fall squarely within the privilege. (Riano, 2019)
the hands of a third person who may have obtained
the information, provided that the original parties Marital Disqualification vs. Marital Privilege
to the communication took reasonable precaution
to protect its confidentiality. (Sec. 24, Rule 130, ROC, DISQUALIFICATION
DISQUALIFICATION
as amended) BY REASON OF
BY REASON OF
MARITAL
MARRIAGE
MARITAL/SPOUSAL PRIVILEGE PRIVILEGE
(SEC. 23)
(Sec. 24(A), Rule 130) (SEC. 24(A))
When can be invoked
The husband or the wife, during or after the
Can be invoked only if Can be claimed whether
marriage, cannot be examined without the consent
one of the spouses is a the other spouse is a
of the other as to any communication received in
party to the action. party to the action.
confidence by one from the other during the
marriage except in a civil case by one against the Coverage
other, or in a criminal case for a crime committed by Includes facts,
Only to confidential
one against the other or the latter's direct occurrences or
information received
descendants or ascendants. (Sec. 24(a), Rule 130, information even prior
during the marriage.
ROC, as amended) to the marriage.
Duration
Purpose of Marital Privilege Applies only if the
Can be claimed even
marriage is existing at
The society has a deeply rooted interest in the after the marriage has
the time the testimony
preservation of peace in families and in the been dissolved.
is offered.

621 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 Remedial Law

Limitations this time on the ground of marital privilege

Constitutes a total Applies only to rule under Sec. 24, Rule 130?
prohibition against confidential c. Suppose the information received by B was
any testimony for or communications communicated to A during their marriage,
against the spouse of between the spouses. can A validly object to the testimony of B if it
the witness. (Regalado, 2008) was offered after the dissolution of their
The spouse affected by marriage on the ground of marital
the disclosure of the disqualification rule under Sec. 23 Rule 130?
information or
testimony may object A:
Can no longer be even after the a. YES. Irrespective of the fact that B was
invoked once the dissolution of the informed of the killing before her marriage to A,
marriage is dissolved. marriage. (Riano, 2019) still, the testimony was offered during their
marriage, which brings it into the ambit of the
NOTE: It is not affected marital disqualification rule under Sec. 23, Rule
by the death of the 130.
other spouse.
In both cases, it is essential that the marriage be b. NO. The testimony even if confidential was not
valid in order to claim such privilege. communicated to B during the time of marriage,
but after the marriage.
Other Items of Communication Overheard or in
Presence of Third Parties c. NO. He can only object based on the marital
disqualification rule if the testimony was
GR: Third persons who, without the knowledge of offered during their marriage and not to
the spouses, overheard the communication are not testimony offered after the dissolution of the
disqualified to testify. marriage. The proper objection must be based
on marital privilege rule under Sec. 24, Rule 130
XPNs: because such defense is applicable even after
1. When there is collusion and voluntary the dissolution of marriage provided that the
disclosure to a third party, that third party communication was made confidentially to B
becomes an agent and cannot testify. (Francisco, during their marriage.
1993)
Q: James, an alien, was criminally charged of
2. The communication shall remain privileged, promoting and facilitating child prostitution
even in the hands of a third person who may and other sexual abuses under R.A. 7610. The
have obtained the information, provided that principal witness against him was his Filipina
the original parties to the communication took wife, Conching. Earlier, she had complained that
reasonable precaution to protect its James’ hotel was being used as a center for sex
confidentiality. (Sec. 24, Rule 130, ROC, as tourism and child trafficking. The defense
amended) counsel for James objected to the testimony of
Conching at the trial of the child prostitution
Q: In June 1998, A told B that he killed C. After a case and the introduction of the affidavits she
year, A married B. Upon the offer of testimony of executed against her husband as a violation of
B for the alleged killing of C. spousal confidentiality and marital privilege
rule. It turned out that Patring, the minor
a. Can A validly make an objection? daughter of Conching by her first husband who
b. Suppose the testimony was offered at the was a Filipino, was molested by James earlier.
time the marriage between A and B was Thus, Conching had filed for legal separation
already terminated, can A still validly object, from James since last year. May the court admit
the testimony and affidavits of the wife,

622
 Evidence
Conching, against her husband, James, in the
criminal case involving child prostitution?
Reason. (2004 BAR)
A: YES. If the testimony and affidavit of the wife are
evidence used in the case against her husband for
child prostitution involving her daughter, the
evidence are admissible. The marital privileged
communication rule under Sec. 24 of Rule 130, as
well as the marital disqualification rule under Sec.
23 of the same rule, do not apply to and cannot be
invoked in a criminal case committed by a spouse
against the direct descendants of the other.
A crime committed by the husband against the
daughter of his wife is considered a crime
committed against the wife and directly attacks or
vitally impairs the marital relations. (Riano, 2019,)
Q: John filed a petition for declaration of nullity
of his marriage to Anne on the ground of
psychological incapacity under Article 36 of the
Family Code. He obtained a copy of the
confidential psychiatric evaluation report on his
wife from the secretary of the psychiatrist. Can
he testify on the said report without offending
the rule on privileged communication? (2016
BAR)
A: YES. Under the rule on privileged
communication, the husband or the wife, during or
after the marriage, cannot be examined without the
consent of the other as to any communication
received in confidence by one from the other during
the marriage except in a civil case filed by one
against the other, or in a criminal case for a crime
committed by one against the other or the latter’s
direct descendants or ascendants. (Sec. 24(a), Rule
130, ROC, as amended) In this case, Anne cannot
prevent John from testifying against her since the
petition for declaration of nullity is a civil case filed
by one spouse against the other; hence, the rule on
privileged communication between the spouses
does not apply. John could testify on the confidential
psychiatric evaluation report of his wife that he
obtained from the secretary of the psychiatrist,
without offending the rule on privileged
communication.
623
ATTORNEY AND CLIENT
(Sec. 24(B), Rule 130)
Requisites for the Privilege
1. There must be a communication made by the
client to the attorney, or and advice given by the
attorney to his client;
2. The communication or advice must be given in
confidence; and
3. The communication or advice must be given
either in the course of the professional
employment or with a view of professional
employment. (Riano, 2019)
The Rules safeguarding privileged communications
between attorney and client shall apply to similar
communications made to or received by the law
student, acting for the legal clinic (Sec. 3, Rule 138-A,
ROC, as amended). The privilege does not extend to
communications where the client’s purpose is the
furtherance of a future intended crime or fraud, or
for the purpose of committing a crime or a tort, or
those made in furtherance of an illicit activity
(Riano, 2019).
Purpose of Attorney-Client Privilege
To encourage full disclosure by client to her
attorney of all pertinent matters, so as to further the
administration of justice. (Herrera, 1999)
Test in Applying the Attorney-Client Privilege
The test is whether the communications are made
to an attorney with a view of obtaining from him
professional assistance or advice regardless of
whether there is a pending or merely impending
litigation or any litigation. (Herrera, 1999)
NOTE: The present rules do not require a perfected
attorney-client relationship for the privilege to
exist. It is enough that the communication or advice
be “with a view to” professional employment.
(Riano, 2019)
The scope of this privilege is extended not only to
the Attorney but also to those persons reasonably
believed by the client to be licensed to engage in the
practice of law.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
In addition, an attorney’s secretary, stenographer,
or clerk, or other persons assisting the attorney
cannot be examined without the consent of the
client and his or her employer, concerning any fact
the knowledge of which has been acquired in such
capacity. (Section 24(b), Rule 130, ROC, as amended)
Confidential communication
It refers to information transmitted by voluntary act
of disclosure between attorney and client in
confidence and by means which, so far as the client
is aware, discloses the information to no third
person other than one reasonably necessary for the
transmission of the information or the
accomplishment of the purpose for which it was
given. (Mercado v. Vitriolo, A.C. No. 5108, 26 May
2005)
Waiver of Attorney-Client Privilege
The privilege belongs to the client and if he waives
the privilege, no one else, including the attorney, can
invoke it. (Riano, 2019)
Doctrine of Absolute Privilege
A communication is absolutely privileged when it
is not actionable, even if the author has acted in bad
faith. This class includes allegations or statements
made by parties or their counsel in pleadings or
motions or during the hearing of judicial and
administrative proceedings, as well as answers
given by the witness in reply to questions
propounded to them in the course of said
proceedings, provided that said allegations or
statements are relevant to the issues, and the
answers are responsive to the questions
propounded to said witnesses. (Belen v. People, G.R.
No. 211120, 13 Feb. 2017)
The absolute privilege remains regardless of the
defamatory tenor and the presence of malice,
pertinent or material to the cause in and or subject
of the inquiry. (Ibid.)
624
Cases when the Privilege is Applicable
1. Privilege is not confined to communications
regarding actual pending cases. It may also
refer to anticipated litigations;
2. Communication may be oral or written but it is
deemed to extend to other forms of conduct,
like physical demonstration;
3. The statement of the client need not be made to
the attorney in person. Those made to the
attorney’s secretary, clerk or stenographer for
purpose of the professional relationship, or the
knowledge acquired by such employees in such
capacity; and
4. In an action filed for payment of attorney’s fees
or for damages against the negligence of the
attorney.
Communications NOT Covered by the Privilege
If the communication is:
1. Intended to be made public;
2. Intended to be communicated to others;
3. Intended for an unlawful purpose;
NOTE: The privilege does not extend to
communications where the client’s purpose is
the furtherance of a future intended crime or
fraud, or for the purpose of committing a crime
or a tort, or those made in furtherance of an
illicit activity (Riano, 2019).
4. Received from third persons not acting in behalf
or as agents of the client; or
5. Made in the presence of third parties who are
strangers to the attorney-client relationship.
(Regalado, 2008)
Cases when the Privilege is NOT Applicable
a. Furtherance of crime or fraud/ “Future crime-
fraud exception”. If the services or advice of the
lawyer were sought or obtained to enable or aid
anyone to commit or plan to commit what the
client knew or reasonably should have known
to be a crime or fraud;
 Evidence
NOTE: The rationale for this exception is that
clients are not entitled to use lawyers to help
them in pursuing unlawful or fraudulent
objectives. If the privilege were to cloak such
activity, the result would be loss of public
confidence and corruption of profession.
(Explanatory Notes, ROC, as amended)
The policy of the privilege is that of promoting
the administration of justice and it would be a
perversion of the privilege to extend it to the
client who seeks advice to aid him in carrying
out an illegal fraudulent scheme. This would be
tantamount to participating in a conspiracy.
(Explanatory Notes, ROC, as amended)
b. Claimants through some deceased client. As to
communication relevant to an issue between
parties who claim through the same deceased
client, regardless of whether the claims are by
testate or intestate or by inter vivos transaction;
NOTE: While the attorney-client privilege
survives the death of the client, there is no
privilege in a will contest or other case between
parties who both claim through that very client.
This is because his communications may be
essential to an accurate resolution of competing
claims of succession, and the testator would
presumably favor disclosure in order to dispose
of his estate accordingly. (Explanatory Notes,
ROC, as amended)
c. Breach of duty by lawyer or client/Self-defense
exception. As to communication relevant to an
issue of breach of duty by the lawyer to his or
her client, or by the client to his or her lawyer;
NOTE: If the lawyer and client become involved
in a dispute between themselves concerning the
services provided by the lawyer, the privilege
does not apply to their dispute. Thus, where a
client alleges breach of duty on the part of the
lawyer, i.e., professional malpractice,
incompetence, or ethical violations – or where
the lawyer sues a client for his fee, either the
lawyer or client may testify as to
communications between them. (Explanatory
Notes, ROC, as amended)
625
In theory, the client has impliedly waived the
privilege by making allegations of breach of
duty against the lawyer. (Ibid.)
d. Document attested by the lawyer. As to a
communication relevant to an issue concerning
an attested document to which the lawyer is an
attesting witness;
e. Joint clients. As to a communication relevant to
a matter of common interest between two or
more clients if the communication was made by
any of them to a lawyer retained or consulted in
common, when offered in action between any of
the clients, unless they have expressly agreed
otherwise. (Sec. 24(b), Rule 130, ROC, as
amended)
NOTE: The rationale for the exception is that
joint clients do not intend their
communications to be confidential from each
other, and typically their communications are
made in each other’s presence. Agreeing to joint
representation means that each joint client
accepts the risk that another joint client may
later use what he or she has said to the lawyer.
(Explanatory Notes, ROC, as amended,)
Applicability of the Rule regarding the Identity
of the Client
GR: A lawyer may NOT invoke the privilege and
refuse to divulge the name or identity of his client.
XPNs:
1. Where a strong possibility exists that revealing
the client’s name would implicate the client in
the very activity for which he sought the
lawyer’s advice;
2. Where disclosure would open the client to civil
liability; or
3. Last Link Doctrine – Where the government’s
lawyers have no case against an attorney’s
client unless, by revealing the client’s name, the
said name would furnish the only link that
would form the chain of testimony necessary to
convict an individual for a crime. (Regala v.
Sandiganbayan, G.R. No. 105938, 03 Sept. 1996)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
Q: On August 15, 2008, Edgardo committed
estafa against Petronilo in the amount of 3
million pesos. Petronilo brought his complaint
to the National Bureau of Investigation, which
found that Edgardo had visited his lawyer twice,
the first time on August 14, and the second
August 16, 2008; and that both visits concerned
the swindling of Edgardo.
During the trial, the RTC issued a subpoena ad
testificandum to Edgardo’s lawyer for him to
testify the conversations during their first and
second meetings. May the subpoena be quashed
on the ground of privileged communication?
Explain fully. (2008 BAR)
A: NO. The subpoena may not be simply quashed on
the allegation that the testimony to be elicited
constitutes privileged communication. It may be
noted that the accused committed the crime
swindling on August 15, 2008, whereas he first
visited his lawyer on August 14, 2008 or before he
committed the swindling.
Clearly, the conversations the accused had with his
lawyer before he committed the swindling cannot
be protected by the privilege between attorney and
client because the crime had not been committed
yet and it is no part of a lawyer’s professional duty
to assist or aid in the commission of a crime; hence
not in the course of professional employment.
The second visit by accused Edgardo to his lawyer
on the next day (August 16, 2008) after the
swindling was committed may also suffer from the
same infirmity as the conversations had during
their first meeting inasmuch as there could not be a
complaint made immediately after the estafa was
committed. The privilege covering a lawyer-client
relation under Sec. 24(b), Rule 130, may not be
invoked, as it is not a ground for quashal of a
subpoena ad testificandum under Sec. 4, Rule 21 of
the Rules of Court.
Q: A tugboat owned by SPS sank in Manila Bay
while helping to tow another vessel, drowning
five (5) of the crew in the resulting shipwreck. At
the maritime board inquiry, the four (4)
survivors testified. SPS engaged Atty. Ely to
defend against potential claims and to sue the
626
company owning the other vessel for damages to
the tug. Ely obtained signed statements from the
survivors. He also interviewed other persons, in
some instances making memoranda. The heirs
of the five (5) victims filed an action for damages
against SPS.
Plaintiff’s counsel sent written interrogatories
to Ely, asking whether statements of witnesses
were obtained; if written, copies were to be
furnished; if oral, the exact provisions were to
be set forth in detail. Ely refused to comply,
arguing that the documents and information
asked are privileged communication. Is the
contention tenable? Explain. (2008 BAR)
A: NO. The documents and information sought to be
disclosed are not privileged. They are evidentiary
matters which will eventually be disclosed during
the trials.
Under Sec. 24(b) of Rule 130, the privileged matters
are:
a. The communication made by the client to the
attorney; or
b. The advice given by the attorney, in the course
of, or with the view to professional
employment.
The information sought is neither a communication
by the client to the attorney nor an advice by the
attorney to his client (Riano, 2019).
PHYSICIAN AND PATIENT
(SEC. 24(C), RULE 130)
Requisites for the Applicability of the Privilege
1. The privilege is claimed in a civil case;
NOTE: This privilege cannot be claimed in a
criminal case presumably because the interest
of the public in criminal prosecution should be
deemed more important than the secrecy of the
communication. (Riano, 2019)
2. The person against whom the privilege is
claimed is a physician, psychotherapist or a
person reasonably believed by the patient to be
 Evidence
authorized to practice medicine or psychology;
and
3. It refers to any confidential communication
made for the purpose of diagnosis or treatment
of the patient’s physical, mental or emotional
condition, including alcohol or drug addiction.
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.
Psychotherapist
a. A person licensed to practice medicine
engaged in the diagnosis or treatment of a
mental or emotional condition; or
b. A person licensed as a psychologist by the
government while similarly engaged. (Sec 24
(c), Rule 130, ROC, as amended)
NOTE: For one to be considered a
“psychotherapist,” a medical doctor need only be
“licensed” to practice medicine and need not be a
psychiatrist, whereas a psychologist must be
“licensed” by the government. (Explanatory Notes,
ROC, as amended)
Purpose of the Privilege
The privilege is intended to facilitate and make safe,
full and confidential disclosure by patient to doctor
of all facts, circumstances, and symptoms,
unrestricted by apprehension of their subsequent
and enforced disclosure and publication on the
witness stand, to the end that the physician may
form a correct opinion and be enabled safely and
efficaciously to treat his patient. (Herrera, 1999)
This rule is intended to encourage the patient to
open up to the physician, relate to him the history of
his ailment, and give him access to his body,
enabling the physician to make a correct diagnosis
of that ailment and provide the appropriate cure.
Any fear that a physician could be compelled in the
future to come to court and narrate all that had
transpired between him and the patient might
627
prompt the latter to clam up, thus putting his own
health at great risk. (Chan v. Chan, G.R. No. 179786,
24 July 2013)
NOTE: This privilege does not apply to autopsy.
There is no patient or treatment involved in
autopsies, the autopsy having been conducted on a
dead person. (Riguera, 2020)
This privilege is not limited to testimonial evidence
because to compel physician to disclose records or
such documents would be in effect to compel him to
testify against the patient. (Ibid.)
Attending physician may testify as an expert
provided that his opinion is strictly based on
hypothetical facts, excluding and disregarding any
personal knowledge of the information on the
patient acquired to the physician-patient
relationship. (Ibid.)
Information which CANNOT be Disclosed
1. Any confidential communication made for the
purpose of diagnosis or treatment of the
patient’s physical, mental or emotional
condition, including alcohol or drug addiction;
and
2. Any information acquired by 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, ROC, as
amended)
Waiver of Privilege by the patient; Express or
Implied
1. By a contract, as in medical or life insurance;
2. Disclosure by the patient of the information;
3. When the patient answers questions on matters
which are supposedly privileged on cross-
examination (Riano, 2019); or
4. By operation of law. (Sec. 4, Rule 28, ROC, as
amended)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
Cases when the Privilege is NOT Applicable
a. The communication was not given in
confidence;
b. The communication is irrelevant to the
professional employment;
c. The communication was made for an unlawful
purpose;
d. The information was intended to be made
public; or
e. There was a waiver of the privilege either by
provisions of contract or law (Regalado, 2008);
and
f. Dentists, pharmacists or nurses are
disqualified.
XPN: If the third person is acting as an agent of
the doctor in a professional capacity.
NOTE: It is essential that at the time the
communication was made, the professional
relationship is existing when the doctor was
attending to the patient for curative, preventive or
palliative treatment. The treatment may have been
given at the behest of another, the patient being in
extremis. (Regalado, 2008)
The rule does not require that the relationship
between the physician and the patient be a result of
a contractual relationship. It could be the result of a
quasi-contractual relationship as when the patient
is seriously ill and the physician treats him even if
he is not in a condition to give his consent. (Riano,
2019)
PRIEST AND PENITENT
(SEC. 24(D), RULE 130)
A minister, priest or person reasonably believed to
be so cannot, without the consent of the affected
person, be examined as to any confession made to
or any advice given by him or her in his or her
professional character in the course of discipline
enjoined by the church to which the minister or
priest belongs. (Sec. 24(d), Rule 130, ROC, as
amended)
628
Purpose of the Priest-Penitent Privilege
Allow and encourage individuals to fulfill their
religious, emotional or other needs by protecting
confidential disclosures to religious practitioners.
(Peralta, Jr., 2005)
Requisites for the Applicability of the Priest-
Penitent Privilege
1. The communication, confession, or advice must
have been made to the priest in his or her
professional character in the course of
discipline enjoined by the church to which the
minister or priest belongs. (Sec. 24(d), Rule 130,
ROC, as amended); and
2. Communications made must be confidential
and must be penitential in character, e.g., under
the seal of the confessional. (Regalado, 2008)
NOTE: The privilege also extends not only to a
confession made by the penitent but also to any
advice given by the minister or priest.
Extent of the Priest-Penitent privilege
The communication must be made pursuant to
confession of sins. Where the penitent discussed
business arrangements with the priest, the privilege
does not apply. (Riano, 2019)
A third person who overheard the confession is not
disqualified. (Herrera, 1999)
Who holds the Privilege
The person making the confession holds the
privilege. The priest or minister hearing the
confession in his professional capacity is prohibited
from making a disclosure of the confession without
the consent.
Q: For over a year, Nenita had been estranged
from her husband Walter because of the latter’s
suspicion that she was having an affair with
Vladimir, a barangay kagawad who lived in
nearby Mandaluyong. Nenita lived in the
meantime with her sister in Makati. One day, the
house of Nenita’s sister inexplicably burned
almost to the ground. Nenita and her sister were
 Evidence
caught inside the house but Nenita survived as
she fled in time, while her sister was caught
inside when the house collapsed. As she was
running away from the burning house, Nenita
was surprised to see her husband also running
away from the scene. Dr. Carlos, Walter’s
psychiatrist who lived near the burned house
and whom Walter medically consulted after the
fire, also saw Walter in the vicinity some
minutes before the fire. Coincidentally, Fr.
Platino, the parish priest who regularly hears
Walter’s confession and who heard it after the
fire, also encountered him not too far away from
the burned house. Walter was charged with
arson and at his trial, the prosecution moved to
introduce the testimonies of Nenita, the doctor
and the priest confessor, who all saw Walter at
the vicinity of the fire at about the time of the
fire. (2006, 2013 BAR)
a. May the testimony of Nenita be allowed over
the objection of Walter?
b. May the testimony of Dr. Carlos, Walter’s
psychiatrist, be allowed over Walter’s
objection?
c. May the testimony of Fr. Platino, the priest
confessor, be allowed over Walter’s
objection?
A:
a. NO. Nenita may not be allowed to testify against
Walter. Under the Marital Disqualification Rule,
neither the husband nor the wife, during their
marriage, may testify for or against the other
without the consent of the affected spouse,
except in a civil case by one against the other, or
in a criminal case for a crime committed by one
against the other or the latter's direct
descendants or ascendants. (Sec. 23, Rule 130,
ROC, as amended)
The foregoing exceptions cannot apply since it
only extends to a criminal case of one spouse
against the other or the latter’s direct
ascendants or descendants. Clearly, Nenita is
not the offended party and her sister is not her
direct ascendant or descendant for her to fall
within the exception.
629
b. YES. The testimony of Walter’s psychiatrist may
be allowed. The privileged communication
contemplated under Sec. 24(c) Rule applies
only in civil cases and not in a criminal case for
arson. Besides, the subject of the testimony of
Dr. Carlos was not in connection with the advice
or treatment given by him to Walter, or any
information he acquired in attending to Walter
in a professional capacity. The testimony of Dr.
Carlos is limited only to what he perceived at
the vicinity of the fire and at about the time of
the fire.
c. YES. The priest can testify over the objection of
Walter. The disqualification requires that the
same were made pursuant to a religious duty
enjoined in the course of discipline of the sect
or denomination to which they belong and must
be confidential and penitential in character, e.g.,
under the seal of confession. (Sec. 24(d), Rule
130, ROC, as amended) Here, the testimony of Fr.
Platino was not previously subject of a
confession of Walter or an advice given by him
to Walter in his professional character. The
testimony was merely limited to what Fr.
Platino perceived “at the vicinity of the fire and
at about the time of the fire.”
PUBLIC OFFICERS
(SEC. 24(E), RULE 130)
A public officer cannot be examined during or after
his or her tenure as to communications made to him
or her in official confidence, when the court finds
that the public interest would suffer by the
disclosure.
Rationale
General grounds of public policy.
The right of the people to information on matters of
public concern shall be recognized. Access to official
records, and to documents and papers pertaining to
official acts, transactions, or decisions, as well as to
government research data used as basis for policy
development, shall be afforded the citizen, subject
to such limitations as maybe provided by law. (Sec.
7, Article III, 1987 Constitution)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
Requisites for its Application
1. The holder of the privilege is the government,
acting through a public officer;
2. The communication was given to the public
officer in official confidence;
3. The communication was given during or after
his or her tenure; and
4. The public interest would suffer by the
disclosure of the communication. (Herrera,
1999)
Cases when the Privilege is Inapplicable and
Disclosure will be Compelled
1. The disclosure is useful to vindicate the
innocence of an accused person;
2. To lessen risk of false testimony;
3. The disclosure is essential to the proper
disposition of the case; or
4. The benefit to be gained by a correct disposition
of the litigation was greater than any injury
which could inure to the relation by a disclosure
of information. (Francisco, 1996)
NOTE: To invoke this rule, it must first be
established that public interest would suffer by the
disclosure. In the case of closed bank, any
disclosure of tapes and transcripts would not pose
danger or peril to the economy. (Riguera, 2020)
The disclosure or non-disclosure is not dependent
on the will of the officer but on the determination by
a competent court. (Riano, 2019)
Executive Privilege
The power of the President and other high-ranking
executive officers to withhold information from the
public, the courts, and the Congress.
This privilege, based on the constitutional doctrine
of separation of powers, exempts the executive from
disclosure requirements applicable to the ordinary
citizen or organization where such exemption is
necessary to the discharge of highly important
executive responsibilities involved in maintaining
governmental operations, and extends not only to
military and diplomatic secrets but also to
documents integral to an appropriate exercise of the
630
executive’s domestic decisional and policy making
functions, that is, those documents reflecting the
frank expression necessary in intra-governmental
advisory and deliberative communications. (Senate
v. Ermita, G.R. No. 169777, 20 Apr. 2006)
There are types of information which the
government may withhold from the public like
secrets involving military, diplomatic, and national
security matters, and information on investigations
of crimes by law enforcement agencies before the
prosecution of the accused before the prosecution
of the accused were exempted from the right to
information. (Chavez v. Public Estates Authority. G.R.
No. 133250, 09 July 2002)
It is a privilege which protects the confidentiality of
conversations that take place in the President’s
performance of his official duties. The privilege may
be invoked not only by the President, but also by his
close advisors under the “operational proximity
test.” (Neri v. Senate Committee on Accountability of
Public Officers and Investigations, G.R. No. 180643, 25
Mar. 2008)
Requisites of Presidential Communications
Privilege
1. The protected communication must relate to a
“quintessential and non-delegable presidential
power;”
2. The communication must be authored or
“solicited and received” by a close advisor of the
president or the president himself. The judicial
test is that an advisor must be in operational
proximity with the president;
3. The presidential communication privilege
remains a qualified privilege that may be
overcome by a showing of adequate need, such
that the information sought “likely contains
important evidence” and by the unavailability
of the information elsewhere by an appropriate
investigating authority. (Neri v. Senate
Committee on Accountability of Public Officers
and Investigations, G.R. No. 180643, 25 Mar.
2008)
 Evidence
Q: The Senate sought to question Mr. Romulo
Neri, a member of President Arroyo’s cabinet, on
whether President Arroyo followed up the
National Broadband Network project financed
by Chinese loans, whether she directed him to
prioritize it, and whether she directed him to
approve it. Mr. Neri invoked executive privilege
stating that his conversations with the president
dealt with delicate and sensitive national
security and diplomatic matters relating to the
impact of scandal on high government officials
and the possible loss of confidence by foreign
investors and lenders. May Mr. Neri’s invocation
of executive privilege be upheld?
A: YES. The Supreme Court upheld Mr. Neri’s
invocation of executive privilege (more specifically
the presidential communications privilege) stating
that the disclosure might impair our diplomatic as
well as economic relations with China (Neri v. Senate
Committee on Accountability of Public Officers and
Investigations, G.R. No. 180643, 25 Mar. 2008)
Deliberative Process Privilege
The privilege protects from disclosure advisory
opinions, recommendations, and deliberations
comprising part of a process by which
governmental decisions and polices are formulated.
(Riguera, 2020)
Written advice from variety of individuals is an
important element of the government’s decision-
making process and the interchange of advice could
be stifled if courts forced the government to disclose
those recommendations; thus, the privilege is
intended to prevent the “chilling” of deliberative
communications. (Ibid.)
The deliberative process privilege applies if its
purpose is served, that is, to protect the frank
exchange of ideas and opinions critical to the
government’s decision-making process where
disclosure would discourage such discussion in the
future. (Ibid.)
631
PARENTAL AND FILIAL PRIVILEGE RULE
(Sec. 25, Rule 130)
No person shall be compelled to testify against his
or her parents, other direct ascendants, children or
other direct descendants, except when such
testimony is indispensable in a crime against that
person or by one parent against the other.
NOTE: It is a privilege which consist of exempting
the witness, having attended the court where his
testimony is desired, from disclosing a certain part
of his knowledge. (Fit for a Queen Agency, Inc. v.
Ramirez, SP-06510, 15 Nov. 1977)
Two Types of Privileges under Sec. 25, Rule 130
1. Parental privilege rule - a parent cannot be
compelled to testify against his child or other
direct descendants.
NOTE: A person, however, may testify against
his parents or children voluntarily but if he
refuses to do so, the rule protects him from any
compulsion. Said rule applies to both criminal
and civil cases since the rule makes no
distinction. (Sec. 25, Rule 130, ROC, as amended)
2. Filial privilege rule – a child may not be
compelled to testify against his parents, or
other direct descendants.
NOTE: The filial privilege rule applies only to
“direct” ascendants and descendants, a family
tie connected by a common ancestry – a
stepdaughter has no common ancestry by her
stepmother. (Lee v. Court of Appeals, G.R. No.
177891, 13 July 2010)
NOTE: An adopted child is covered by the rule.
Criminal Cases
GR: No descendant shall be compelled, in a criminal
case, to testify against his parents and grandparents.
XPNs: The descendant may be compelled to give his
testimony in the following instances:
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FACULTY OF CIVIL LAW
 Remedial Law
1. When such testimony is indispensable in a
crime committed against said descendant; or
2. In a crime committed by one parent against the
other. (Art. 215, Family Code)
Q: A was convicted of raping his own daughter.
His son, an 8-year-old boy, testified against him.
Can he object to the testimony on the ground of
filial privilege and invoke the incompetence of
the child?
A: NO. The competency of his son is not affected by
the filial privilege rule. The Rule is not strictly
speaking a disqualification but refers to a privilege
not to testify, which can be invoked and waived like
other privileges. The son was not compelled to
testify against his father but chose to waive that
filial privilege when he voluntarily testified against
the accused. (People v. Invencion, G.R. No. 131636, 05
Mar. 2003)
Q: A, married to B, killed the latter. One of the
witnesses was C, the mother of B, who was being
compelled to testify against A. Can A object on
the ground of parental privilege?
A: NO. C is not a direct ascendant of A but that of B,
being the mother of the latter. Thus, the privilege
does not belong to A.
NOTE: The Child Witness Rule provides that every
child is presumed qualified to be a witness. (Sec. 6,
A.M. NO. 004-07-SC or the Rule on Examination of a
Child Witness, 21 Nov. 2000)
Q: C is the child of the spouses H and W. H sued
his wife W for judicial declaration of nullity of
marriage under Article 36 of the Family Code. In
the trial, the following testified over the
objection of W: C, H and D, a doctor of medicine
who used to treat W. Rule on W's objections
which are the following:
a. H cannot testify against her because of the
rule on marital privilege;
b. C cannot testify against her because of the
doctrine on parental privilege; and
c. D cannot testify against her because of the
doctrine of privileged communication
between patient and physician. (1998 BAR)
632
A:
a. The rule of marital privilege cannot be invoked
in the annulment case under Article 36 of the
Family Code because it is a civil case filed by one
against the other. (Sec. 23, Rule 130, ROC, as
amended)
b. W cannot invoke the privilege which belongs to
the child. C may testify if he wants to although
he may not be compelled to do so. (Sec. 25, Rule
130, ROC, as amended)
c. D, as a doctor who used to treat W, is
disqualified to testify against W over her
objection as to any advice or treatment given by
him or any information which he may have
acquired in his professional capacity. (Sec.
24(c), Rule 130, ROC, as amended)
TRADE SECRETS
(Sec. 26, Rule 130)
Trade Secret
A secret formula or process not patented but known
only to certain individuals using it in compounding
some article of trade having a commercial value.
Trade secrets are privilege matters whose
disclosure is proscribed and penalized under the
Securities and Exchange Commission and the
Revised Penal Code.
A person cannot be compelled to testify about any
trade secret unless the non-disclosure will conceal
fraud or otherwise work injustice. When disclosure
is directed, the court shall take such protective
measure as the interest of the owner of the trade
secret and of the parties and the furtherance of
justice may require. (Sec. 26, Rule 130, ROC, as
amended)
Trade secrets should receive greater protection
from discovery because they derive economic value
from being generally unknown and not readily
ascertainable by the public. (Air Philippines
Corporation v. Pennswell, Inc., G.R. No. 1723835, 13
Dec. 2007)
 Evidence
Exception to the Application of the Privilege
The privilege is not absolute; the court may compel
disclosure where it is indispensable for doing
justice. (Ibid.)
Other Privileged Matters (Gu-E-V-Ta-Ba-C-A-I-
M)
1. The Guardian ad litem shall not testify in any
proceeding concerning any information,
statement, or opinion received from the child in
the course of serving as guardian ad litem,
unless the court finds it necessary to promote
the best interests of the child; (Sec. 5(e), Rule on
Examination of a Child Witness)
2. Editorial Privilege – Editors may not be
compelled to disclose the source of published
news; (R.A. No. 53, as amended by R.A. No. 1477)
3. Voters may not be compelled to disclose for
whom they voted;
4. Information contained in Tax census returns
(Ibid.);
5. Bank deposits, except in certain cases provided
for by law; (Sec. 2, R.A. No. 1405)
6. Information and statements made at
Conciliation proceedings; (Art. 233, Labor Code)
7. Institutions covered by the law and its officers
and employees who communicate a suspicious
transaction to the Anti-Money Laundering
Council; (Sec. 6 of R.A. No. 9194 amending Sec. 9
of R.A. No. 9160) and
8. Informer’s Privilege - The Prosecutor may not
be compelled to present an informer to protect
his identity and when his testimony would be
merely corroborative and cumulative. (Herrera,
1999)
NOTE: Human Security Act provides that the
name and identity of the informant of on a
suspect in the crime of terrorism shall be
considered confidential and shall not be
unnecessarily revealed until after the
633
proceedings against the suspect shall have been
terminated.
9. Media Practitioner’s Privilege
GR: Without prejudice to his liability under the
civil and criminal law, any publisher, owner,
duly registered or accredited journalist, writer,
reporter, contributor, opinion writer, editor,
columnist manager, media practitioner
involved in the writing, editing, production, and
dissemination of news for mass circulation of
any print, broadcast, wire service organization,
or electronic mass media cannot be compelled
to reveal the source of any news item, report or
information appearing or being reported or
disseminated through said media which was
related in confidence to the abovementioned
media practitioners.
XPN: Revelation can be compelled if the court
or the Congress or any of its committees finds
that such revelation is demanded by the
security of the State.
NOTE: On the ground of public policy, the rules
providing for the production and inspection of
books and papers do not authorize the production
or inspection of privileged matter; that is, books and
papers which, because of their confidential and
privileged character, could not be received in
evidence. Such a condition is in addition to the
requisite that the items be specifically described
and must constitute or contain evidence material to
any matter involved in the action and which are in
the party’s possession, custody or control. (Air
Philippines Corporation v. Pennswell Inc., G.R. No.
172835, 13 Dec. 2007)
3. ADMISSIONS AND CONFESSIONS
Admission
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.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law

CLASSIFICATIONS OF ADMISSIONS Development Corp., G.R. No.

It is a positive statement or act. 149576, 08 Aug. 2006)
Express
Those made in definite, certain
and unequivocal language. Requisites for admissions to be admissible
It is one which may be inferred
from the declarations or acts of a 1. They must involve matters of fact and not of
Implied person. Therefore, an admission law;
may be implied from conduct, 2. They must be categorical and definite;
statement of silence of a party. 3. They must be knowingly and voluntarily made;
When made in the course of a and
Judicial judicial proceeding. 4. They must be adverse to the admitter’s
interests, otherwise it would be self-serving
When made out of court or even and inadmissible. (Regalado, 2008)
Extrajudicial in a proceeding other than the
one under consideration. Admissions vs. Confessions
It is a party’s reaction to a
statement or action by another ADMISSION CONFESSION
person when it is reasonable to A statement of fact A statement of fact
treat the party’s reaction as an which does not involve which involves an
admission of something stated an acknowledgment of acknowledgment of
or implied by the other person. A guilt or liability. guilt or liability.
third person’s statement May be made by third Can be made only by
becomes the admission of the persons and in certain the party himself and,
party embracing or espousing it. cases, are admissible in some instances, are
Adoptive admission may occur against a party. admissible against his
when a party: co-accused.
Applies to both
Applies only to
a. Expressly agrees to or criminal and civil
criminal cases.
concurs in an oral cases.
statement made by another; Must be express.
May be express or tacit.
(Regalado, 2008)
Adoptive b. Hears a statement and later
on essentially repeats it; NOTE: An admission, in general sense, includes
confessions, the former being a broader term
c. Utters an acceptance or because, accordingly, a confession is also an
builds upon the assertion of “admission… by the accused of the fact charged
another; against him or of some fact essential to the charge.”
(4 Wigmore, Sec. 1050) A confession is a specific
d. Replies by way of rebuttal type of admission which refers only to an
to some specific points acknowledgement of guilt. (Riano, 2019)
raised by another but
ignores further points Admission by a Party
which he or she has heard
the other make; or The act, declaration or omission of a party as to a
relevant fact may be given in evidence against him
e. Reads and signs a written or her. (Sec. 27, Rule 130, ROC, as amended)
statement made by another.
(Republic v. Kendrick

634
 Evidence
Requisites for the admissibility of an admission
1. The act, declaration or omission must have
been made by a party or by one by whom he is
legally bound;
2. The admission must be as to a relevant fact; and
3. The admission may only be given in evidence
against him. (Herrera, 1999)
Self-Serving Declaration
It is one which has been made extra-judicially by the
party to favor his interest. It is not admissible in
evidence because they are inherently
untrustworthy and would open the door to fraud
and fabrication of testimony. (Lichauco v. Atlantic
Gulf and Pacific Co. of Manila, 84 Phil. 330)
NOTE: Self-serving evidence are inadmissible
because the adverse party is not given the
opportunity for cross-examination, and their
admission would encourage fabrication of
testimony. (Hernandez v. CA, G.R. No. 104874, 14 Dec.
1993)
Statements in affidavits are not sufficient to prove
the existence of agricultural tenancy. It is self-
serving. It will not suffice to prove consent of the
owner. Independent evidence is necessary.
(Rodriguez v. Salvador, G.R. No. 171972, 08 June
2011)
An admission against interest is the best evidence
which affords the greatest certainty of the facts in
dispute since no man would declare anything
against himself unless such declaration is true.
Thus, an admission against interest binds the
person who makes the same, and absent any
showing that this was made thru palpable mistake,
no amount of rationalization can offset it. (Stanley
Fine Furnitures, Elena and Carlos Wang v. Gallano,
G.R. No. 190486, 26 Nov. 2014)
Q: After working as a laborer for 43 years, A
resigned from Rufina Patis Factory. Thereafter,
he availed of his pension from the SSS and
executed an affidavit stating that he was never
re-employed. However, when he filed a claim for
retirement benefits from his employer before
the NLRC, he alleged that he continued working
635
for Rufina Patis Factory for 4 more years. Can
Rufina Patis Factory use A’s affidavit executed
before the SSS as an admission against his
interest?
A: YES. The document is the best evidence which
affords greater certainty of the facts in dispute.
While the affidavit may have facilitated the release
of the retirement benefits from SSS, hence,
beneficial to him at that time, it may still be
considered as an admission against interest since
the disserving quality of the admission is judged as
of the time it is used or offered in evidence and not
when such admission was made. Thus, it matters
not that the admission was self-serving at the time
it was made, so long as it is against A’s present claim.
(Rufina Patis Factory v. Alusitain, G.R. No. 146202, 14
July 2004)
RES INTER ALIOS ACTA RULE
Res inter alios acta alteri nocere non debet
This principle literally means “things done between
strangers ought not to injure those who are not
parties to them.” (Dynamic Signmaker Outdoor
Advertising Services, Inc. v. Potongan, G.R. No.
156589, 27 June 2005)
Reason for the Rule on Res inter alios acta
On the principle of good faith and mutual
convenience, a man’s own acts are binding upon
himself and are evidence against him. So are his
conduct and declarations. It would not only be
rightly inconvenient but also manifestly unjust, that
a man should be bound by the acts of mere
unauthorized strangers; and if a party ought not to
be bound by the acts of strangers, neither ought
their acts or conduct be used as evidence against
him. (People v. Guittap, G.R. No. 144621, 09 May
2003)
Two branches of Res inter alios acta Rule
1. Admission by third party. The rights of a party
cannot be prejudiced by an act, declaration, or
omission of another (Sec. 29, Rule 130, ROC, as
amended) (2003 BAR); and
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
2. Similar Acts Rule. Evidence that one did or did
not do a certain thing at one time is not
admissible to prove that he did or did not do the
same or similar thing at another time. (Sec. 35,
Rule 130, ROC, as amended)
NOTE: The rule has reference to extrajudicial
declarations. Hence, statements made in open court
by a witness implicating persons aside from him are
admissible as declarations from one who has
personal knowledge of the facts testified to. (Riano,
2019)
The testimony of the accused against his co-accused
in open court is considered as admissible testimony
and not subject of the res inter alios acta rule since
such testimony is subject to cross examination.
Q: Mau sued Kenstar Travel Corporation for
breach of contract on the ground that when she
went on a European tour, there was no European
tour manager, the Filipino guide was a first
timer, and the hotels where they were billeted
were not first class. Kenstar contended that the
tour was satisfactory because out of 18
participants, only Mau actually complained. Can
the fact that the other participants in the tour
filed no case against Kenstar be used as evidence
to show that B has no cause of action?
A: NO. Sec. 28, Rule 130 of the Rules of Court
provides that the rights of a party cannot be
prejudiced by an act, declaration or omission of
another. The failure of the other participants to file
and action should not prejudice Mau. (Geraldez v.
Court of Appeals, G.R. No. 108253, 23 Feb. 1994)
Admission by a Third Party
The rights of a party cannot be prejudiced by an act,
declaration, or omission of another. (Sec. 28, Rule
130, ROC, as amended)
GR: The act, declaration or omission made out of
court of a party as to a relevant fact may be given in
evidence against him but may not be given in
evidence against another person.
636
XPN: The act or omission of one party made out of
court may be used as evidence against another
when its admission is made by:
a. A partner, during the existence of the
partnership (Sec. 30, Rule 130, ROC, as
amended);
b. An agent authorized by the party to make a
statement concerning the subject or within the
scope of his or her authority, during the
existence of the agency (Ibid.);
c. A joint owner;
d. A joint debtor;
e. A person jointly interested with the party;
f. A conspirator; or
g. A privy or successor in interest (Suarez and De
la Banda, 2006)
Q: Francisco was charged with violating PD No.
1612 or the Anti Fencing Decree. Among the
evidence submitted against him was the
testimony of Jovita in a previous criminal case
wherein the accused therein, Pacita, was
convicted of theft and where she stated that
Francisco bought stolen jewelries from her. Can
the admission in the previous case be used
against Francisco?
A: NO. Francisco was not a party to the previous
criminal case where Pacita was the accused. The
acts or declarations of a person are not admissible
against a third party. Only parties to a case are
bound by a judgment of the trial court. (Francisco v.
People, G.R. No. 146584, 12 July 2004)
Without presenting Jovita to testify on her
admission during the previous criminal case, even if
made in a previous judicial proceeding, it remains
an extrajudicial admission without any effect,
insofar as the present action against Francisco is
concerned.
Admission by a Co-Partner or Agent
The act or declaration of a partner or agent
authorized by the party to make a statement
concerning the subject, or within the scope of his or
her authority and during the existence of the
 Evidence
partnership or agency, may be given in evidence
against such party after the partnership or agency is
shown by evidence other than such act or
declaration. The same rule applies to the act or
declaration of a joint owner, joint debtor, or other
person jointly interested with the party. (Sec. 30,
Rule 130, ROC, as amended)
Requisites for an Admission of a Partner to bind
his Co-Partners or for an Agent to bind his
Principal
1. The act or declaration of a partner or agent of
the party must be within the scope of his
authority;
2. The admission was made during the existence
of the partnership or agency; and
3. The existence of the partnership or agency is
proven by independent evidence other than
such act or declaration. The Articles of
Incorporation or a Special Power of Attorney
may be presented for such purpose. (Suarez and
De la Banda, 2000)
NOTE: Any declaration made before the
partnership or agency existed, or those made after,
are not admissible against the other partners or
principal but remains admissible as against the
partner or agent making the declaration. (Riano,
2019)
The same rule applies to an act or declaration of a
joint owner, joint debtor or other person jointly
interested with the party. (Sec. 29, Rule 130, ROC, as
amended)
Dissolved Partnership
GR: Admissions made after a partnership has been
dissolved do not fall within the exception because
such are made when the partnership ceased to exist.
XPN: 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-partner in said winding
up. (Regalado, 2008)
637
Q: The Republic of the Philippines filed a
forfeiture case against the heirs of the late
former President Marcos. In one of her
manifestations before the Sandiganbayan,
Imelda Marcos admitted that she owned 90% of
the Swiss bank deposits and only 10% belongs
to the estate of the late President Marcos. The
other heirs also made separate admissions in
their pleadings. What is the value of these
admissions?
A: The individual and separate admissions of each
respondent bind all of them pursuant to Sec. 29
(now Sec. 30), Rule 130 of the Rules of Court. The
declaration of a party is admissible against a party
whenever a “privity of estate” exists between the
declarant and the party. It generally denotes a
succession of rights. Without doubt, privity exists
among the respondents in this case. Where several
co-parties exist, who are jointly interested in the
subject matter of the controversy, the admission of
one is competent against all. (Republic v.
Sandiganbayan, G.R. No. 152154, 15 July 2003)
Admission by a Conspirator
The act or declaration of a conspirator in
furtherance of the conspiracy and during its
existence may be given in evidence against the co-
conspirator after the conspiracy is shown by
evidence other than such act or declaration. (Sec. 31,
Rule 130, ROC, as amended)
Conspiracy
A conspiracy exists when two or more persons come
to an agreement concerning the commission of a
felony and decide to commit it. (Herrera, 1999)
NOTE: Once conspiracy is proven, the act of one is
the act of all. The statement therefore of one may be
admitted against the other co-conspirators as an
exception to the rule of res inter alios acta. (Riano,
2019)
Requisites of an Admission by a Conspirator
a. The declaration or act be made or done during
the existence of the conspiracy;
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
b. The declaration or act must be in furtherance of
the purpose and object of the conspiracy; and
c. The conspiracy must be shown by evidence
other than the declaration or act (evidence
aliunde). (Sec. 31, Rule 130, ROC, as amended)
NOTE: This rule applies only to extrajudicial acts or
admission and not to testimony at trial where the
party adversely affected has the opportunity to
cross-examine the witness. (People v. Baharan, G.R.
No. L-188314, 10 Jan. 2011)
Q: A was convicted of robbery with homicide.
Among the evidence used to convict her was the
extrajudicial confession of her co-accused, an
alleged co-conspirator, which confession was
made with the assistance of counsel. Can such
admission be used against A?
A: NO. In order for such admission to be admissible
in evidence, there must be independent evidence
aside from the extrajudicial confession to prove
conspiracy. There being no independent evidence to
prove conspiracy, A’s culpability was not
sufficiently established. (People v. Guittap, G.R. No.
144621, 09 May 2003)
Extrajudicial Admissions made After the
Conspiracy had Terminated
GR: Extrajudicial admissions made by a conspirator
after the conspiracy had terminated and even
before trial are not admissible against the co-
conspirator.
XPNs:
1. If made in the presence of the co-conspirator
who expressly or impliedly agreed therein;
2. Where the facts in said admission are confirmed
in the individual extrajudicial confessions made
by the co-conspirator after their apprehension;
3. As a circumstance to determine the credibility
of the witness; or
4. As circumstantial evidence to show the
probability of the co-conspirator’s participation
in the offense. (Regalado, 2008)
638
When extrajudicial admission becomes a
judicial admission
While it is true that statements made by a
conspirator against a co-conspirator are admissible
only when made during the existence of the
conspiracy, if the declarant repeats the statement in
court, his extrajudicial confession becomes a
judicial admission, making the testimony
admissible as to both conspirators. (People v.
Baharan, G.R. No. 188314, 10 Jan. 2011)
Admission by Privies
Where one derives title to property from another,
the latter’s act, declaration, or omission of the latter,
while holding the title, in relation to the property, is
evidence against the former if done while the latter
was holding the title. (Sec. 32, Rule 130, ROC, as
amended)
Privies
Persons who are partakers or have an interest in
any action or thing, or any relation to another.
(Black’s Law Dictionary, 5th Ed.)
The declarations of a person are admissible against
a party whenever a "privity of estate" exists
between the declarant and the party, the term
"privity of estate" generally denoting a succession
in rights. Consequently, an admission of one in
privity with a party to the record is
competent. Without doubt, privity exists among the
respondents in this case. And where several co-
parties to the record are jointly interested in the
subject matter of the controversy, the admission of
one is competent against all. (Republic v.
Sandiganbayan, Ferdinand E. Marcos, and Imelda
Romualdez Marcos, G.R. No. 152154, 15 July 2003)
Requisites of an Admission by Privies
1. There must be an act, declaration, or omission
by a predecessor-in-interest;
2. The act, declaration, or omission of the
predecessor must have occurred while he was
holding (not after) the title to the property; and
 Evidence
3. The act, declaration, or omission must be in
relation to the property. (Sec. 32, Rule 130, ROC,
as amended; Riano 2016)
Q: Del Monte Development Corporation filed a
case to be adjudged owner of a piece of land
against Ababa claiming that it acquired a lot
from Lucero in 1964. As a defense, Ababa
presented a document executed by Lucero in
1968 to settle the controversy. Can the
document bind Del Monte as successor in
interest of Lucero?
A: NO. The admission of a former owner of a
property must have been made while he was the
owner thereof in order that such admission may be
binding upon the present owner. Hence, Lucero’s
act of executing the 1968 document have no binding
effect on Del Monte, the ownership of the land
having passed to it in 1964. (Gevero v. IAC, G.R. No.
77029, 30 Aug. 1990)
Admission by Silence
There is admission by silence when a party does or
says nothing when he hears or observes an act or
declaration made in his presence when such act or
declaration is such as naturally to call for action or
comment if not true, and when proper and possible
for him or her to do so. Such may be given in
evidence against him or her. (Sec. 33, Rule 130, ROC,
as amended)
Requisites of an Admission by Silence
1. The party heard and understood the statement;
2. He or she was at a liberty to make a denial;
3. The statement was about a matter affecting his
or her rights or in which he or she was
interested and which naturally calls for a
response;
4. The facts were within his or her knowledge; and
5. The fact admitted from his or her silence is
material to the issue. (Riano, 2019)
639
NOTE: The silence of a person under investigation
for the commission of an offense should not be
construed as an admission by silence because a
person has the right to remain silent and to be
informed of that right. (Sec. 12, Art. III, 1987
Constitution; Riano, 2019)
However, if it is not the police investigators who
confronted the accused but the owner of a
carnapped vehicle, the silence of one after being
implicated by the other accused serves as an
admission by silence as he did not refute the
statements of his co-accused despite having heard
of them. (People v. Garcia, Jr., G.R. No. 138470, 01 Apr.
2003)
Q: Pogi was brought to the police station for
investigation on the alleged rape of Ganda.
While in the police station, Ganda pointed to
Pogi and said, “He’s the one who raped me.” Pogi
remained silent. May Pogi’s silence be offered in
evidence as an implied admission of guilt?
A: NO. The rule on admission by silence does not
apply since Pogi had a right to remain silent while
under custodial investigation. (Riguera, 2020)
Principle of Adoptive Admission
It 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 the
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.
(Estrada v. Desierto, G.R. Nos. 146710-15, 3 Apr.
2001)
Illustration: The alleged admissions made by
President Estrada when his options had dwindled
when, according to the Angara Diary, the Armed
Forces withdrew its support from him as President
and Commander-in-Chief. Thus, Angara had to
allegedly ask Senate President Pimentel to advise
Estrada 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. According to the court, his silence on this
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
and other related suggestions can be taken as
adoptive admissions by him. (Ibid.)
CONFESSIONS
The declaration of an accused acknowledging his
guilt of the offense charged, or of any offense
necessarily included therein, may be given in
evidence against him or her. (Sec. 34, Rule 130, ROC,
as amended)
Requisites for the admissibility of a confession
1. It must involve an express and categorical
acknowledgement of guilt (U.S. v. Corrales, 28
Phil. 362);
2. Facts admitted must be constitutive of a
criminal offense (U.S. v. Flores, 26 Phil. 262);
3. It must have been given voluntarily (People v.
Nishishima, 57 Phil. 26);
4. It must have been intelligently made (Bilaan v.
Cusi, G.R. No. L-18179, 29 June 1962), the
accused realizing the importance or legal
significance of his act (U.S. v. Agatea, 40 Phil.
596);
5. There must have been no violation of Sec. 12,
Art. III, 1987 Constitution (Regalado, 2008); and
NOTE: A confession to a person, who is not a
police officer, is admissible in evidence. The
declaration acknowledging his guilt of the
offense charged, or of any offense necessarily
included therein, may be given in evidence
against the declarant. Such admissions are not
covered by Secs. 12 (1) and (3), Article III, 1987
Constitution, because they were not extracted
while he or she was under custodial
investigation. (People v. Davao, et al., G.R. No.
174660, 30 May 2011)
6. It must be in writing and signed by such person
in the presence of his counsel or in the latter’s
absence, upon a valid waiver and in the
presence of any of the parents, elder brothers
and sisters, his spouse, the municipal mayor,
the municipal judge, district school supervisor
640
or priest or minister of the gospel as chosen by
him or her. (Sec. 2(d), R.A. No. 7438)
CLASSIFICATION OF CONFESSIONS
One made by the accused before
an open court in which the case
is pending and in the course of
Judicial legal proceedings therein and, by
confession itself, can sustain conviction and
is admissible against one’s co-
accused. It is governed by Secs. 1,
3 & 4 of Rule 116.
One made in any other place or
occasion other than the court
where the case is pending and
cannot sustain a conviction
unless corroborated by evidence
of corpus delicti. It is generally
binding only upon the confessant
and is not admissible against his
Extrajudicial co-accused. It is governed by Sec.
confession 33 of Rule 130. (Regalado, 2008)
NOTE: If the accused admits
having committed the act in
question but alleges a
justification therefor, such as
absence of criminal intent, the
same is merely an admission.
(Ibid.)
Admissibility of Extrajudicial Confessions
GR: An extrajudicial confession is not admissible
against the confessor’s co-accused. Said confession
is hearsay evidence and violative of the res inter
alios acta rule.
XPN: It may be admitted in evidence against his co-
accused in the following cases:
1. In case of implied acquiescence of the co-
accused to the extrajudicial confession;
2. In case of interlocking confessions;
3. Where the accused admitted the facts stated by
the confessant after being apprised of such
confession;
 Evidence
4. If they are charged as co-conspirators of the
crime which was confessed by one of the
accused and said confession is used only as
corroborating evidence;
5. Where the confession is used as circumstantial
evidence to show the probability of
participation by the co-conspirator;
6. When the confessant testified for his co-
defendant; and
7. Where the co-conspirator’s extrajudicial
confession is corroborated by other evidence
on record. (Regalado, 2008)
Q: The mutilated cadaver of a woman was
discovered near a creek. Due to witnesses
attesting that he was the last person seen with
the woman when she was still alive, Carlito was
arrested within 5 hours after the discovery of
the cadaver and brought to the police station.
The crime laboratory determined that the
woman had been raped. While in police custody,
Carlito broke down in the presence of an
assisting counsel and orally confessed to the
investigator that he had raped and killed the
woman, detailing the acts he had performed up
to his dumping of the body near the creek. He
was genuinely remorseful. During the trial, the
State presented the investigator to testify the
oral confession of Carlito. Is the oral confession
admissible as evidence of guilt? (2008 Bar)
A: NO. The oral confession is not admissible as
evidence of guilt. The confession is in the nature of
an extrajudicial confession before an investigator
while under custodial investigation. Hence, the
statutory provisions under R.A. No. 7438 (Sec. 2(d))
will have to be complied with.
Under said law, any extrajudicial confession made
by a person arrested, detained, or under custodial
investigation shall be in writing and signed by such
person in the presence of his counsel. An oral
confession does not comply with the mandatory
provisions of the law. Under R.A. No. 7438, the
confession is inadmissible in evidence in any
proceeding. (Sec. 2(d), R.A. No. 7438)
641
Requirements for an admission of guilt of an
accused during a custodial investigation to be
admitted in evidence
1. The admission must be voluntary (Sec. 12(1),
1987 Constitution);
2. The admission must be in writing (R.A. No.
7438);
3. The admission must be made with the
assistance of competent, independent counsel
(Sec. 12, 1987 Constitution);
4. The admission must be express (People v.
Prinsipe, G.R. No. 135862, 02 May 2002); and
5. In case the accused waives his rights to silence
and to counsel, such waiver must be in writing,
executed with the assistance of competent,
independent counsel. (R.A. No. 7438)
Doctrine of Interlocking Confessions
It states that extrajudicial confessions
independently made without collusion which are
identical with each other in their essential details
and corroborated by other evidence against the
persons implicated, are admissible to show the
probability of the latter’s actual participation in the
commission of the crime. (People v. Mulit, G.R. No.
181043, 08 Oct. 2008)
Q: May an extrajudicial confession made by an
accused be sufficient ground for conviction
A: NO, unless it is corroborated by evidence of
corpus delicti. (Riguera, 2020)
4. PREVIOUS CONDUCT AS EVIDENCE
Similar Acts as Evidence
GR: Evidence that one did or did not do a certain
thing at one time is not admissible to prove that he
or she did or did not do the same or similar thing at
another time. (Sec. 35, Rule 130, ROC, as amended)
This is also referred to as the “Propensity Rule.”
(2002 Bar)
NOTE: This provision constitutes as the second
branch of the res inter alios acta rule as previously
mentioned.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law

XPNs: Evidence of similar or previous acts may be to act in a given manner but rather conduct that is
received to prove the following: semi-automatic in nature. In determining whether
(S-K-I-P-S – S-C-H-U-L) the examples are numerous enough and sufficiently
regular, the key criteria are adequacy of sampling
1. Specific intent; and uniformity of response.
2. Knowledge;
3. Identity; Here the defendants did not introduce evidence that
4. Plan; XEI and all the lot buyers in the subdivision had
5. System; executed contracts of sale containing uniform terms
6. Scheme; and conditions. Moreover, even in the 3 contracts
7. Custom; adduced by the defendants, there was no uniformity
8. Habit; as two referred to 120-month terms while the third
9. Usage; and mentioned a 180-month term. (Boston Bank v.
10. The Like (Ibid.) Manalo, G.R. No. 158149, 09 Feb. 2006).

Purpose of the Rule Admissibility of Offers of Compromise

Evidence of similar acts or occurrences compels the CIVIL CASE CRIMINAL CASE
defendant to meet allegations that are not GR: It is NOT an GR: It may be received in
mentioned in the complaint, confuses him in his admission of any evidence as an implied
defense, raises a variety of relevant issues, and liability and is NOT admission of guilt.
diverts the attention of the court from the issues admissible against
immediately before it. Hence, the evidentiary rule the offeror. XPNs:
guards the practical inconvenience of trying 1. In quasi-offenses
collateral issues and protracting the trial, and Neither is evidence where there is no
prevents surprise or other mischief prejudicial to of conduct nor criminal intent
litigants. (Cruz v. CA, G.R. No. 126713, 27 July 1998) statements made in (negligence), such as
compromise reckless imprudence;
Q: The defendants argued that Xavierville Estate negotiations 2. In criminal cases
Inc. (XEI) had allowed them to pay the balance of admissible. allowed by law to be
the purchase of a subdivision lot in 120 monthly compromised such
installments. The defendants introduced three XPN: Evidence as:
contracts to sell in which XEI granted two lot otherwise a. Sec. 7(c), National
buyers a 120-month term of payment and a discoverable or Internal Revenue
third one a 180-month term. May these three offered for another Code – The CIR
contracts to sell prove a habit or custom on the purpose, such as has the power to
part of XEI to grant 120-month terms of proving bias or compromise
payments to it buyers? prejudice of a minor criminal
witness, negativing a violations as may
A: NO. Under Sec. 35, Rule 130, evidence that one contention of undue be determined by
did or did not do a certain thing at one time is not delay, or proving an the Secretary of
admissible to prove that he did or did not do the effort to obstruct a Finance;
same or a similar thing at another time; but it may criminal b. Sec. 408, Local
be received to prove usage, habit or custom. investigation or Government Code
prosecution. – Allowed in
Courts must contend with the caveat that before (Sec. 28, Rule 130, minor offenses
they admit evidence of usage, habit or pattern or ROC, as amended) whose penalties
conduct, the offering party must establish the do not exceed one
degree of specificity and frequency of uniform year;
response that ensures more than a mere tendency

642
 Evidence

c. Art. 266-C, filing of the criminal case against Lloydie for

Revised Penal serious physical injuries through reckless
Code – In cases of imprudence, Lloydie’s insurance carrier offered
marital rape, to pay for the injuries and damages suffered by
where Bea. The offer was rejected because Bea
subsequent considered the amount offered as inadequate.
forgiveness by
the wife a. Is the offer by Lloydie to pay the
extinguishes the hospitalization expenses of Bea admissible
criminal action or in evidence?
penalty. (Suarez
and De la Banda, b. Is the offer by Lloydie’s insurance carrier to
2006) pay for the injuries and damages of Bea
admissible in evidence? (1997 BAR)
NOTE: No compromise is valid in the following
cases: A:
a. NO. It is not admissible in evidence to prove his
1. Civil status of persons; guilt in both the civil and criminal cases. (Sec.
2. Validity of a marriage or legal separation; 28, Rule 130, ROC, as amended)
3. Any ground for legal separation;
4. Future support; b. NO. It is irrelevant. The obligation of the
5. Jurisdiction of courts; insurance company is based on the contract of
6. Future legitime; insurance and is not admissible in evidence
7. Habeas corpus; and against the accused because it was not offered
8. Election cases (Herrera, 1999) by the accused but by the insurance company
which is not his agent.
Q: What is the underlying reason for the
adoption of the rule against the admission of an Admissibility of Plea or Offer (2008 BAR)
offer of compromise in civil cases? (1997 BAR)
OFFER OR PLEA ADMISSIBILITY
A: It is for the reason that parties are encouraged to Plea of guilty later Not admissible in
enter into compromises. Courts should endeavor to withdrawn by the evidence against the
persuade the litigants in a civil case to agree upon accused accused who made the
some fair compromise. (Art. 2029, NCC) During pre- plea
trial, courts should direct the parties to consider the Offer by the accused to Not admissible in
possibility of an amicable settlement. (Sec. 2(a), Rule plead guilty to a lesser evidence against the
18, ROC, as amended) offense but unaccepted accused who made the
by prosecution offer
Q: Berting was accused of having raped Lisa. Offer to pay or Not admissible in
Rule on the admissibility of an offer of Berting to payment of medical, evidence as proof of
marry Lisa. (1998 BAR) hospital or other civil or criminal
expenses occasioned liability for the injury.
A: Berting’s offer to marry Lisa is admissible in by injury (Good (Suarez and De la
evidence as an implied admission of guilt because Samaritan Rule) Banda, Evidence: A
rape cases are not allowed to be compromised. (Sec. Lawyer’s Companion,
28, Rule 130 ROC, as amended) 2006 ed.)
Statement made in the Not admissible against
Q: Lloydie, while driving his car, ran over Bea. course of plea the accused who made
Lloydie visited Bea at the hospital and offered to bargaining with the the statement (Sec. 28,
pay for her hospitalization expenses. After the

643 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 Remedial Law
prosecution, which Rule 130, ROC, as
does not result in a amended)
plea of guilty or which
results in a plea of
guilty later withdrawn
Good Samaritan Rule
An offer to pay or the payment of medical, hospital
and other expenses occasioned by an injury is not
admissible in evidence as proof of civil and criminal
liability for the injury.
RATIO: Humanitarian acts or charitable responses
should be encouraged and rewarded instead of
being discouraged or penalized. (Regalado, 2008)
Unaccepted offer
An offer in writing to pay a particular sum of money
or to deliver a written instrument or specific
personal property is, if rejected without valid cause,
equivalent to the actual production and tender of
the money, instrument, or property. (Sec. 36, Rule
130, ROC, as amended)
5. TESTIMONIAL KNOWLEDGE
A witness can testify only to those facts which he or
she knows of his or her personal knowledge; that is,
which are derived from his or her own perception.
(Sec. 23, Rule 130, ROC)
The personal knowledge of a witness is a
substantive prerequisite for accepting testimonial
evidence that establishes the truth of a disputed
fact. A witness bereft of personal knowledge of the
disputed fact cannot be called upon for that purpose
because her testimony derives its value not from the
credit accorded to her as a witness presently
testifying but from the veracity and competency of
the extra judicial source of her information. (People
of the Philippines v. Estibal, G.R. No. 208749, 26 Nov.
2014)
644
6. HEARSAY AND EXCEPTIONS TO THE
HEARSAY RULE
Meaning of Hearsay
Hearsay is a statement other than one made by the
declarant while testifying at a trial or hearing,
offered to prove the truth of the facts asserted
therein. (Sec. 37, Rule 130, ROC, as amended)
The hearsay statement may be:
1. An oral or written assertion; or
2. A non-verbal conduct of a person if it is
intended by him or her as an assertion. (ibid)
Q: In a police lineup, victim from behind a one-
way mirror points to the accused as the one who
assaulted him. The victim dies before trial.
During the trial, the police officer conducting the
lineup is asked who the victim pointed to as the
culprit. May the defense object and if so, on what
grounds?
A: YES, the defense may object on the ground of
hearsay. An out-of-court statement includes not
only oral or written assertions but also non-verbal
conduct intended as an assertion. The victim’s act of
pointing out a person in the lineup is a nonverbal
assertion. It is as if the victim was saying, “He’s the
one who assaulted me.” The proponent may try to t
the identification under the excited-utterance
exception. (Riguera, 2020)
When a Statement is NOT Considered as Hearsay
A statement is not hearsay if the declarant testifies
at the trial or hearing and is subject to cross-
examination concerning the statement, and the
statement is:
a. Prior inconsistent statement under oath -
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. Prior consistent statement - Consistent with
the declarant’s testimony and is offered to rebut
an express or implied charge against the
 Evidence
declarant of recent fabrication or improper
influence or motive; or
c. Prior statement of identification - One of
identification of a person made after perceiving
him or her. (Par. 2, Sec. 37, Rule 130, ROC, as
amended)
NOTE: Newspaper clippings are hearsay and of no
evidentiary value at all whether objected to or not,
unless offered for a purpose other than proving the
truth of the matter asserted. (Feria v. CA, G.R. No.
122954, 15 Feb. 2000)
Medical certificates cannot be admitted in the
absence of the testimony of the physician who
examined the complaint for alleged torture wounds.
Affidavits are inadmissible unless the affiants
themselves are placed in the witness stand to testify
therefrom.
Q: UCPB General Insurance Co., Inc. issued
Comprehensive Car Insurance Policy to Rommel
Lojo. On December 09, 2005, at around 3:30
p.m., the insured vehicle was bumped at the rear
portion by Pascual Liner, Inc.'s bus driven by
Leopoldo Cadavido. As a result of the impact, the
insured vehicle was pushed forward, causing it
to hit another vehicle, an aluminum van driven
by Nilo Nuñez. The vehicular accident was
investigated by the Traffic Management and
Security Department of the PNCC Skyway
Corporation, for which Solomon Tatlonghari
prepared a Traffic Accident Sketch. Thereafter,
the matter was endorsed to the PNP, for which
PO3 Joselito Quila prepared a Traffic Accident
Report. Lojo filed a claim with UCPB under his
insurance policy, which was approved by UCPB.
Thereafter, UCPB filed a Complaint for sum of
money for P350,000.00 before the RTC, which
was subsequently transferred to MeTC, against
Pascual Liner and Cadavido alleging that as a
result of Lojo's receipt of the insurance
indemnity it paid arising from the damage
caused on the insured vehicle, it was subrogated
to the rights of Lojo. Pascual Liner filed its
Answer (with Affirmative Defense), denying
allegations. It asserted that the Traffic Accident
Report and the Traffic Accident Sketch were not
645
categorical in proving its negligence or that of its
employee; rather, these only proved that the
driver of the insured vehicle was at fault. Is
Hearsay Rule under the Amended Rules of
Evidence applicable?
A: NO. At the time when UCPB filed its complaint
before the MeTC on December 21, 2009, the
prevailing Rules on Evidence was the Rules adopted
on March 14, 1989, under which Sec. 36, Rule 130,
governed the appreciation of hearsay evidence. The
principle of retroactivity of procedural rules cannot
be applied. The Traffic Accident Report serves as the
anchor by which liability for negligence is claimed
by UCPB. To adopt the amended Rules would affect
the manner by which the Traffic Accident Report
was appreciated, which could be used as basis for
re-examination to determine its admissibility in
evidence. This will result into a violation of due
process, which will ultimately cause injustice on the
part of the respondent who relied on the Rules then
existing. As such, we shall continue to be guided by
the superseded provisions of the Rules of Court.
(UCPB General Insurance, Co. v Pascual Liner, Inc.,
G.R. 242328, 26 Apr. 2021)
Statements made through an Interpreter
GR: Statements made through an interpreter are
considered hearsay if a witness is offered to testify
to the statements of another person, spoken in a
language not understood by him, but translated for
him by an interpreter, such witness is not qualified,
because he does not speak from personal
knowledge. All that he can know as to the testimony
is from the interpretation thereof which is in fact
given by another person.
XPNs: In cases where the interpreter had been
selected:
1. By common consent of the parties endeavoring
to converse; or
2. By a party against whom the statements of the
interpreter where offered in evidence
(Principal-Agent Rule).
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law

Reasons for Exclusion of Hearsay Evidence The witness purports

to give the facts
a. The lack of opportunity on the part of the party The witness purports directly upon his own
against which it is offered to cross-examine to give an account of credit (though it may
the declarant, that is, the person who made the what another has told appear later that he
statement. him and this is offered was speaking only on
b. The statement or declaration under oath. to evidence the truth of the faith of report from
c. The court does not have the opportunity to the other’s report. others. (Rules
observe the demeanor of the declarant. Committee Notes, citing
(Riguera, 2020) McCormick)
Has no formal
In criminal cases, its admission would be a violation Subject to certain exceptions. (Rules
of the constitutional provision that the accused shall exceptions. Committee Notes, citing
enjoy the right of being confronted with the Lempert & Saltzbur)
witnesses testifying against him and to cross-
examine them. Moreover, the court is without Q: Romeo is sued for damages for injuries
opportunity to test the credibility of hearsay suffered by the plaintiff in a vehicular accident.
statements by observing the demeanor of the Julieta, a witness in court, testifies that Romeo
person who made them. (People v. Pruna, G.R. No. told her that he heard Antonio, a witness to the
138471, 10 Oct. 2002) accident, gives an excited account of the
accident immediately after its occurrence. Is
Evidence not based on personal knowledge Julieta’s testimony admissible against Romeo
(Lack of first-hand knowledge rule) vs. Hearsay over proper and timely objection? Why? (2002
Evidence BAR)

A witness can testify only to those facts which he or A: NO, because the testimony is hearsay. In her
she knows of his or her personal knowledge; that is, testimony, Julieta purports to give an account of
which are derived from his or her own perception. what Romeo had told her. In effect, she is testifying
(Sec. 22, Rule 130, ROC, as amended) to nothing more than her statement, and not the
truth of the facts asserted therein.
If it can be shown from the surrounding
circumstances that a hearsay declarant lacked Exceptions to the Hearsay Rule (1999 BAR)
firsthand knowledge of the subject of his
declaration, evidence of that declaration will 1. Dying declaration (Sec. 38, Rule 130, ROC, as
ordinarily be excluded even if it would otherwise amended);
come within some exception to the hearsay rule. 2. Statement of decedent or person of unsound
(Rules Committee Notes, citing Lempert & Saltzbur) mind (Sec. 39, Rule 130, ROC, as amended)
3. Declaration against interest (Sec. 40, Rule 130,
LACK OF FIRST- ROC, as amended);
HEARSAY RULE HAND KNOWLEDGE 4. Act or declaration about pedigree (Sec. 41, Rule
RULE 130, ROC, as amended);
A statement other than 5. Family reputation or tradition regarding
one made by the pedigree (Sec. 42, Rule 130, ROC, as amended);
Consists of testimony
declarant while 6. Common reputation (Sec. 43, Rule 130, ROC, as
that is not based on
testifying at a trial or amended);
personal knowledge of
hearing, offered to 7. Part of res gestae (Sec. 44, Rule 130, ROC, as
the person testifying.
prove the truth of the amended);
facts asserted therein. 8. Records of regularly conducted business
activity (Sec. 45, Rule 130, ROC, as amended);

646
 Evidence
9. Entries in official records (Sec. 46, Rule 130,
ROC, as amended);
10. Commercial lists and the like (Sec. 47, Rule 130,
ROC, as amended);
11. Learned treatises. (Sec. 48, Rule 130, ROC, as
amended);
12. Testimony or deposition at a former proceeding
(Sec. 49, Rule 130, ROC, as amended); and
13. Residual exception (Sec. 50, Rule 130, ROC, as
amended)
NOTE: The exceptions are hearsay but they are
deemed admissible by reason of necessity and
trustworthiness (Riano, 2019).
Reason for Admissibility
They are admissible by reason of relevancy,
necessity and trustworthiness. (Estrada v. Desierto,
supra)
DYING DECLARATION
(Sec. 38, Rule 130)
The declaration of a dying person, made under the
consciousness of an impending death, may be
received in any case wherein his death is the subject
of inquiry, as evidence of the cause and surrounding
circumstances of such death. (Sec. 38, Rule 130, ROC,
as amended) (1991, 1992, 1993, 1996, 1998,
1999, 2007, 2010, 2017 BAR)
These are ante mortem statements made by a
person after the mortal wound has been inflicted
under the belief that the death is certain, stating the
fact concerning the cause of and the circumstances
surrounding the attack. (Herrera, 1999)
NOTE: Where the elements of both a dying
declaration and a statement as part of the res gestae
are present, the statement may be admitted as a
dying declaration and at the same time as part of res
gestae. (People v. Gado, G.R. No. 129556, 11 Nov.
1998)
647
Requisites for the admissibility of a dying
declaration
1. The declaration concerns the cause and the
surrounding circumstances of the declarant’s
death;
2. It is made when death appears to be imminent
and the declarant is under consciousness of an
impending death;
3. The declarant would have been competent to
testify had he or she survived; and
4. The dying declaration is offered in a case in
which the subject inquiry involves the
declarant’s death. (People of the Philippines v.
Gatarin, G.R. No. 198022, 7 Apr. 2014)
NOTE: 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. (People of the
Philippines v. Quiasayas, G.R. No. 198022, 7 Apr.
2014)
Test to determine the Application of the Rule on
Dying Declaration
Whether the declarant has abandoned all hopes of
survival and looked on death as certainly
impending. (Ibid.)
Time Interval
GR: The intervening time from the making of a dying
declaration up to the time of death is immaterial in
its admissibility, as long as it was made under the
consciousness of impending death.
XPNs:
1. If there is retraction made by the declarant
before he died; or
2. His declaration is ambiguous as to whether he
believed that his death was imminent when he
made such declaration. (Regalado, 2008)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
It is of no moment that the victim died seven days
from the stabbing incident and after receiving
adequate care and treatment, because the apparent
proximate cause of his death was a consequence of
the stabbing. (People of the Philippines v. Rarugal,
G.R. No. 188603, 16 Jan. 2013)
Factors in Determining whether the Declarant is
Conscious of his Impending Death
1. The words or statements of the declarant on the
same occasion;
2. His conduct at the time the declaration was
made; and
3. The serious nature of his wounds as would
necessarily engender a belief on his part that he
would not survive therefrom. (Regalado, 2008)
NOTE: The dying declaration of the deceased is not
admissible as an ante-mortem declaration when the
deceased was in doubt as to whether he would die
or not. It may, however, be admitted as part of res
gestae when it is made immediate after a startling
occurrence. (People of the Philippines v. Laquinon,
G.R. No. L-45470, 28 Feb. 1985)
Q: Sam was charged with robbery and homicide.
Kitchie, the victim, suffered several stab
wounds. It appears that 11 hours after the crime,
while Kitchie was being brought to the hospital
in a jeep, with his brother and a policeman as
companions, Kitchie was asked certain
questions which she answered, pointing to Sam
as her assailant. Her answers were put down in
writing, but since she was in a critical condition,
her brother and the policeman signed the
statement. Is the statement admissible as a
dying declaration? Explain. (1999 BAR)
A: YES. The statement is admissible as a dying
declaration if the victim subsequently died and her
answers were made under the consciousness of an
impending death. The fact that she did not sign the
statement pointing to the accused as her assailant
because she was in a critical condition does not
affect its admissibility as a dying declaration.
(People v. Viovicente, G.R. No. 118707, 02 Feb. 1998)
NOTE: A dying declaration may be oral or written. If
oral, the witness who heard it may testify thereto
648
without the necessity of reproducing the word of
the decedent, if he is able to give the substance
thereof. An unsigned dying declaration may be used
as a memorandum by the witness who took it down.
(People v. Boller, G.R. Nos. 144222-24, 03 Apr. 2002)
Q: Zapanta, while watching television, heard 4
successive gunshots. When Zapanta looked
through the open door, he saw 2 men armed
with .38 caliber revolvers standing a meter away
from Borre. He saw Palanas deliver the fourth
shot but he could not identify the other shooter.
On the way to the hospital, Borre told Zapanta
that it was "Abe", "Aspog" or "Abe Palanas", his
neighbor, who shot him. This statement was
repeated to Borre’s wife, Resurreccion, who
followed him at the hospital. For his part,
Palanas interposed the defense of denial and
alibi. He claimed that on the day before the
incident, he was in Parañaque City attending to
the needs of his sick father. On the next day, he
went to Tondo, Manila for a baptism and stayed
there from morning until 9:00 p.m., after which
he returned to his father in Parañaque City. He
maintained that he was not aware of the death of
Borre until he was informed by a neighbor that
Resurreccion was accusing him of killing her
husband.
Can Borre’s statements on his way to the
hospital be considered a dying declaration and
part of the res gestae?
A: YES. Borre’s statements constitute a dying
declaration as they pertained to the cause and
circumstances of his death. Moreover, taking into
consideration the number and severity of his
wounds, it may be reasonably presumed that he
uttered the same under a fixed belief that his own
death was already imminent.
In the same vein, Borre’s statements may likewise
be deemed to form part of the res gestae as they
refer to a startling occurrence, i.e., him being shot.
While on his way to the hospital, Borre had no time
to contrive the identification of his assailants, thus,
his utterance was made in spontaneity and only in
reaction to the startling occurrence. (People v.
Palanas, G.R. No. 214453, 17 June 2015)
 Evidence
Assailing a Dying Declaration
The declaration may be attacked in the same
manner as one would do a testimony in open court.
The declarant himself may be impeached through
the normal methods provided for under the rules. A
dying declaration, as an exception to the hearsay
rule, is not meant to confer competency on an
otherwise incompetent witness.
STATEMENT OF DECEDENT OR A PERSON OF
UNSOUND MIND
(Sec. 39, Rule 130)
Requisites:
1. There is an action against an executor or
administrator or another representative of a
deceased person, or against a person of
unsound mind;
2. The action is upon a claim or demand against
the estate of such deceased person or against
such person of unsound mind;
3. A party or assignor of a party or a person in
whose behalf a case is prosecuted testifies on a
matter of fact occurring before the death of the
deceased person or before the person became
of unsound mind.;
4. There was a statement made by the deceased or
the person of unsound mind;
5. Such statement was made upon the personal
knowledge of the deceased or the person of
unsound mind at a time when:
a. the matter had been recently perceived by
him or her; and
b. while his or her recollection was clear.
If all the requisites are met the statement of the
decedent or the person of unsound mind may be
received in evidence as an exception to the hearsay
rule.
NOTE: Such statement, however, is INADMISSIBLE
if made under circumstances indicating its lack of
trustworthiness.
649
DECLARATION AGAINST INTEREST
(Sec. 40, Rule 130)
The declaration made by a person deceased or
unable to testify against the interest of the
declarant, if the fact asserted in the declaration was
at the time it was made so far contrary to the
declarant’s own interest that a reasonable person in
his or her position would not have made the
declaration unless he or she believed it to be true
may be received in evidence against himself or
herself or his or her successors in interest and
against third persons.
A statement tending to expose the declarant to
criminal liability and offered t exculpate the accused
is not admissible unless corroborating
circumstances clearly indicate the trustworthiness
of the statement. (Sec. 40, Rule 130, ROC, as
amended)
NOTE: A statement against interest tending to
expose the declarant to criminal liability and offered
to exculpate the accused (which is presumably
different from the declarant) is not admissible
unless corroborating circumstances clearly indicate
trustworthiness of the statement.
These are ante litem motam statements made by a
person who is neither a party nor in privity with a
party to the suit. Such are considered secondary
evidence and admissible only when the declarant is
already dead or unavailable to testify as a witness
and may be admitted against himself or successors-
in-interest and against third persons.
Reason for the admissibility of declaration
against interest
1. Necessity - as such declaration, act, or omission
is frequently the only mode of proof available;
and
2. Trustworthiness - presumed that men will
neither falsify nor commit mistakes when such
falsehood or mistake would be prejudicial to
their own pecuniary interest, and because of the
fact that any fraudulent motive for making the
statement may be shown.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law

Requisites of Declaration against Interest identified in legal

interest with such
1. The declarant is dead or unable to testify; party.
2. The declaration relates to a fact against the Must be against the Need not be against the
interest of the declarant; declarant’s interest. admitter’s interest.
3. At the time he made said declaration, he was
Secondary evidence is
aware that the same was contrary to his Primary evidence is
admissible only when
interest; and admissible whether
the declarant is already
4. The declarant had no motive to falsify and the declarant is
dead or unavailable to
believed such declaration to be true. available as a witness.
testify as a witness.
Q: Alejandro Cuenca was charged with the crime Hearsay, but
admissible as an Not hearsay, thus
of kidnapping Hector Ocampo. One of the
testimonies presented by the prosecution was exception to the admissible.
that of Maribelle Magdayao, who testified that hearsay rule.
Hector confided to her that he and Alejandro’s Must have been made May be made at any
wife Rubi were having an affair. Undoubtedly, ante litem motam, i.e., time, before or during
his wife’s infidelity was ample reason for before the controversy the trial.
Alejandro to contemplate revenge. The declarant must be No requirement that
Consequently, the trial court convicted dead or unable to the admitter is dead or
Alejandro based on the testimonies of the testify. unable to testify.
witnesses. Was the testimony of Maribelle Admissible against the
Admissible only
admissible as evidence? declarant and third
against the admitter.
persons.
A: YES. Hector’s revelation to Maribelle regarding
his illicit relationship with Alejandro’s wife is ACT OR DECLARATION ABOUT PEDIGREE
admissible in evidence, pursuant to Section 38, Rule (Sec. 41, Rule 130)
130. With the deletion of the phrase “pecuniary or
moral interest” from the present provision, it is safe The act or declaration of a person deceased or
to assume that “declaration against interest” has unable to testify, in respect to the pedigree of
been expanded to include all kinds of interest, that another person related to him or her by birth,
is, pecuniary, proprietary, moral or even penal. adoption or marriage, or in the absence thereof,
Hector having been missing since his abduction, with whose family he or she was so intimately
cannot be called upon to testify. His confession to associated as to be likely to have accurate
Maribelle, definitely a declaration against his own information concerning his or her pedigree, may be
interest, since his affair with Rubi was a crime, is received in evidence where it occurred before the
admissible in evidence because no sane person will controversy, and the relationship between the two
be presumed to tell a falsehood to his own persons is shown by evidence other than such act or
detriment. (People v. Bernal, G.R. No. 113685, 19 June declaration. The word “pedigree” includes
1997) relationship, family genealogy, birth, marriage,
death, the dates when and the places where these
Declaration against Interest vs. Admission facts occurred, and the names of the relatives. It
against Interest embraces also facts of family history intimately
connected with pedigree. (Sec. 4, Rule 130, ROC, as
DECLARATION ADMISSION AGAINST amended)
AGAINST INTEREST INTEREST
Made by a party to a
Made by a non-party. litigation or by one in
privity with or

650
 Evidence

Pedigree 5. The relationship between the declarant and the

person whose pedigree is in question must be
It includes: shown by evidence other than such act or
declaration. (Tecson v. COMELEC, G.R. No.
1. Relationship; 161434, 03 Mar. 2004)
2. Family genealogy;
3. Birth; NOTE: Such declarations are natural expressions of
4. Marriage; persons who must know the truth. Although
5. Death; hearsay, it is best that the nature of the case admits
6. The dates when and the places where the facts and because greater evil might arise from the
occurred; rejection of such proof than from its admission.
7. Names of the relatives; and
8. Facts of family history intimately connected FAMILY REPUTATION OR TRADITION
with pedigree. (Ibid.) REGARDING PEDIGREE
(Sec. 42, Rule 130)
NOTE: The relationship between the declarant and
the person subject of the inquiry must be legitimate The declarant is the witness himself and a member
unless the issue is the legitimacy itself. of the family. The witness is the one to whom the
fact relates, it is not necessary for him to establish
There is no provision as to the extent of degree of by independent evidence his relationship to the
relationship. family.

Rationale for Admissibility The reputation or tradition existing in a family

1. Necessity- since the facts about pedigree are
usually those which occurred many years
before the trial and known only to a few
persons; and
2. Trustworthiness- since these are matters
which members of a family are presumed to be
interested in ascertaining the truth.
Requisites for the Admissibility of Acts or
Declarations about Pedigree
1. The declarant is dead or unable to testify;
2. The pedigree should be in issue;
previous to the controversy in respect to the
pedigree of any one of its members, may be received
in evidence if the witness testifying thereon be also
a member of the family, either by consanguinity,
affinity or adoption. Entries in family bibles or other
family books or charts, engraving on rings, family
portraits and the like, may be received as evidence
of pedigree. (Sec 42, Rule 130, ROC, as amended)
Reason for Admissibility
These are admissible by reason of necessity since
tradition is often the sole method by which proof of
matters of pedigree can be obtained.
Requisites for the Admissibility of Family
Reputation or Tradition Regarding Pedigree

3. The declarant must be a relative of the person
whose pedigree is in question, either by birth or
marriage or adoption (Sec. 4, Rule 130, ROC, as
amended) or in the absence thereof, by person
whose family he or she was so intimately
associated as to be likely to have accurate
information concerning his or her pedigree;
4. The declaration must be made ante litem
motam or before the controversy occurred; and
1. There is controversy in respect to the pedigree
of any member of the family;
2. The reputation or tradition of the pedigree of
the person concerned existed previous to the
controversy;
3. The statement is about the reputation or
tradition of the family in respect to the pedigree
of any member of the family; and
4. The witness testifying to the reputation or
tradition regarding pedigree of the person

651 UNIVERSITY OF SANTO TOMAS

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concerned must be a member of the family of
said person either by consanguinity, affinity or
adoption.
How to establish Family Reputation or Tradition
with respect to One’s Pedigree
to events of general history important to the
community, or respecting marriage or moral
character, may be given in evidence. Monuments
and inscriptions in public places may be received as
evidence of common reputation. (Sec 43, Rule 130,
ROC, as amended)

1. Through testimony in open court of a witness It is the definite opinion of the community in which
who must be a member of the family either by the fact to be proved is known or exists. It means the
consanguinity, affinity, or adoption; or general or substantially undivided reputation, as
distinguished from a partial or qualified one,
2. Through entries in: although it need not be unanimous. (Regalado,
2008)
a. Family bible;
b. Family books or charts; NOTE: As a general rule, the reputation of a person
c. Engravings on rings; or should be that existing in the place of his residence;
d. Family portraits and the like. it may also be that existing in the place where he is
best known. (Ibid.) Character is what a man is, and
Act or Declaration about Pedigree (Sec. 41, Rule reputation is what he is supposed to be in what
130) vs. Family Reputation regarding Pedigree people say he is. (Lim v. CA, G.R. No. 91114, 25 Sept.
Sec. 42, Rule 130) 1992)

ACT OR FAMILY Reasons for Admissibility

DECLARATION REPUTATION OR
ABOUT PEDIGREE TRADITION 1. Necessity arising from the inherent difficulty of
REGARDING obtaining any other evidence than that in the
PEDIGREE nature of common reputation; and
Witness need not be a Witness is a member of
member of the family. the family. 2. Trustworthiness of the evidence arising from:
Relation of the The witness is the one
declarant and the to whom the fact a. The supposition that the public is
person subject of the relates, it is not conversant with the subject to be proved
inquiry must be necessary for him to because of their general interest therein;
established by establish by and
independent evidence. independent evidence
his relationship to the b. The fact that the falsity or error of such
family. (Francisco, evidence could be exposed or corrected by
1992) other testimony since the public are
Testimony is about Testimony is about interested in the same. (Francisco, 1992)
what the declarant has family reputation or
said concerning the tradition covering Matters that may be Established by Common
pedigree of the family. matters of pedigree. Reputation

COMMON REPUTATION 1. Matters of public and general interest more

(Sec. 43, Rule 130) than 30 years old;
2. Matters respecting marriage or moral character
Common reputation existing previous to the and related facts; and
controversy, as to boundaries of or customs 3. Individual moral character.
affecting lands in the community and reputation as

652
 Evidence
NOTE: Marriage, if not proven through an act or
declaration about pedigree may be proven through
common reputation. (Trinidad v. CA, G.R. 118904, 20
Apr. 1998)
Q: In an attempt to discredit and impeach a
prosecution witness in a homicide case, the
defense counsel called to the stand a person who
had been the boyhood friend and next-door
neighbor of the said witness for 30 years. One
question that the defense counsel asked of the
impeaching witness was: "Can you tell this
Honorable Court about the general reputation of
the prosecution witness in your community for
aggressiveness and violent tendencies?" As the
trial prosecutor, would you interpose your
objection to the question of the defense counsel?
Explain your answer.
A: YES. Under the Rules, an adverse party’s witness
may be properly impeached by reputation evidence
provided that it is to the effect that the witness’
general reputation for honesty, truth, or integrity
was bad. The reputation must only be on character
for truthfulness or untruthfulness. (Cordial v.
People, G.R. No. L-75880, 25 Sept. 1992)
Difference between Matters of Public Interest
and Matters of General Interest
Matters of public interest involve those which are
common to all citizen of the state or to the entire
people.
Matters of general interest involve those which
are common only to a single community or to a
considerable number of persons forming part of the
community.
PART OF THE RES GESTAE
(Sec. 44, Rule 130)
Res Gestae (2005, 2007, 2014 BAR)
It is a Latin phrase which literally means “things
done.”
Statements made by a person while a startling
occurrence is taking place or immediately prior or
subsequent thereto, under the stress of excitement
653
caused by the occurrence with respect to the
circumstances thereof, may be given in evidence as
part of the res gestae. So, also, statements
accompanying an equivocal act material to the
issue, and giving it a legal significance may be
received as part of the res gestae.
As an exception to the hearsay rule, it refers to those
exclamations and statements by either the
participants, victims, or spectators to a crime
immediately before, during or immediately after the
commission of the crime, when the circumstances
are such that the statements were made as
spontaneous reactions or utterances inspired by the
excitement of the occasion, and there was no
opportunity for the declarant to deliberate and
fabricate a false statement. (Capila v. People, G.R. No.
146161, 17 July 2006)
Res gestae refers to the circumstances, facts, and
declarations that grow out of the main fact and
serve to illustrate its character and are so
spontaneous and contemporaneous with the main
act as to exclude the idea of deliberation and
fabrication. (People of the Philippines v. Quiasayas,
G.R. No. 198022, 07 Apr. 2014)
Test of Admissibility
The test is whether the act, declaration, exclamation
is so intimately interwoven or connected with the
principal fact or even that it characterizes as to be
regarded as a part of the transaction itself, and also
whether it clearly negates any premeditation or
purpose to manufacture testimony. (Ibid.)
Q: 4 separate Information for Rape and 1
Information for Attempted Rape were filed in
the RTC against XXX. In her direct testimony,
AAA testified that the accused is her father. At
the hearing on January 20, 2003, Public
Prosecutor Marites Macarubbo informed the
court that AAA died. The prosecution adduced
evidence of res gestae through the testimonies
of its witnesses, EEE and Gelmie Calug. EEE
testified that at noontime on April 16, 2001, AAA
arrived at her house. She noticed that AAA was
sad and crying. Upon her inquiry, AAA told her
that she was raped by her father on April 8, and
3 times hours ago on April 15, 2001. While
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
Gelmie Calug testified that on April 18, 2001,
AAA reported for work for the first time as a
house helper in the house of Pedro de los Santos.
He noticed that AAA was sad and lonely, and
often saw her crying. She confided to him her
problems and revealed to him that she was
raped by her own father on April 8 and 15 2001.
Were the testimonies of Calug and EEE
pertaining to the statements of AAA considered
part of the res gestae and thus produce a
conviction?
A: YES. It is well entrenched that a witness may only
testify on facts derived from his own perception and
not on what he has merely learned or heard from
others. Hence, as a general rule, hearsay evidence is
inadmissible in courts of law. As an exception,
however, Sec. 42 of Rule 130 allows the admission
of hearsay evidence as part of the res gestae.
In determining the admissibility of evidence as part
of the res gestae, the test is whether the act or
declaration was made as a spontaneous reaction
and is so intimately interwoven or connected with
the principal fact or event that it characterizes as to
be regarded as a part of the transaction itself and
whether it negates any premeditation or purpose to
manufacture testimony.
EEE’s testimony places AAA’s utterances only
several hours from the time the disputed incidents
took place on April 15, 2001. Meanwhile, with
respect to Calug’s testimony, which consisted of
statements given by AAA on April 18, 2001, or 3
days after April 15, 2001, incidents, the Court finds
that the RTC and CA incorrectly considered the
same as part of the res gestae. In this light, the Court
finds that the utterances made to Calug are far too
removed from the event described as to form part of
the res gestae. The clear and straightforward
testimony of EEE, together with the medico-legal
findings consistent with the facts described,
produces a conviction beyond reasonable doubt
that XXX is guilty for the repeated defilement of his
own daughter, AAA. (People v. XXX, G.R. No. 205888,
2 Aug. 2018, J. Caguioa)
654
Reason for admissibility
The reason for the rule is human experience. It has
been shown that under certain external
circumstances of physical or mental shock, the state
of nervous excitement which occurs in a spectator
may produce a spontaneous and sincere response to
the actual sensations and perceptions produced by
the external shock.
The spontaneity of the declaration is such that the
declaration itself may be regarded as the event
speaking through the declarant rather than the
declarant speaking for himself.
Requisites for the admissibility of res gestae
1. That the principal act, the res gestae, be a
startling occurrence;
2. The statements were made before the declarant
had the time to contrive or devise a falsehood;
and
3. That the statements must concern the
occurrence in questions and its immediate
attending circumstances. (People of the
Philippines v. Estibal, G.R. No. 208749, 26 Nov.
2014)
Factors to determine spontaneity of declaration
1. The time that has lapsed between the
occurrence of the act or transaction and the
making of the statement;
2. The place where the statement is made;
3. The condition of the declarant when the
utterance is given;
4. The presence or absence of intervening events
between the occurrence and the statement
relative; and
5. The nature and the circumstances of the
statement itself. (Francisco, 1992)
Q: Edgardo Lupac was convicted of the crime of
rape. One of the evidence adduced was AAA’s
spontaneous, unhesitating and immediate
denunciation of the rape to her Tita Terry and
 Evidence

her mother (hindot and inano ako ni Kuya Ega May precede, or Confined to matters
being the term she used). Is the statement made accompany or follow occurring after the
by AAA part of the res gestae under Section 42, the principal act. homicidal act.
Rule 130 of the Rules of Court?
Justification is the Justification is the
A: YES. AAA’s denunciation was part of the res spontaneity of the trustworthiness, being
gestae. AAA went to Tita Terry’s house immediately statement. given by the person
after fleeing from Lupac and spontaneously, who was aware of his
unhesitatingly and immediately declared to Tita impending death.
Terry that Lupac had sexually abused her. Such
manner of denunciation of him as her rapist was Q: Gilberto Villarico, Sr., Gilberto Villarico, Jr.,
confirmed by Tita Terry’s testimony about AAA’s Jerry Ramentos, and Ricky Villarico were
panic-stricken demeanor that rendered it difficult to convicted of the crime of murder for the killing
quickly comprehend what the victim was then of Haide Cagatan. One of the pieces of evidence
saying. Of course, AAA’s use of the words “hindot adduced was a statement of Haide to his mother
and inano ako ni Kuya Ega” said enough about her saying that Berting shot him in the immediate
being raped. (People v. Lupac, G.R. No. 182230, 19 aftermath of the shooting where he was the
Sept. 2012) victim. Is the statement made by Haide
admissible?
Verbal Acts
A: YES. Haide’s statement was part of the res gestae
1. The principal act to be characterized must be and was admissible. The requisites concurred
equivocal; herein. Firstly, the principal act of shooting Haide
2. The equivocal act must be material to the issue; was a startling occurrence. Secondly, his statement
3. The statement must accompany the equivocal to his mother about being shot by the group of
act; and Berting was made before Haide had time to contrive
4. The statement gives a legal significance to the or to devise considering that it was uttered
equivocal act. immediately after the shooting. And, thirdly, the
statement directly concerned the startling
NOTE: The reason for the admissibility of verbal occurrence itself and its attending circumstance:
acts is that the motive, character and object of an act that is, the identities of the assailants. (People v.
are frequently indicated by what was said by the Villarico, et. al., G.R. No. 158362, 04 Apr. 2011)
person engaged in the act.
Q: While passing by a dark uninhabited part of
Part of Res Gestae vs. Dying Declaration their barangay, PO2 Asintado observed
shadows and heard screams from a distance.
PART OF RES GESTAE DYING PO2 Asintado hid himself behind the bushes and
DECLARATION saw a man beating a woman whom he
It is the event itself A sense of impending recognized as his neighbour, Kulasa. When
which speaks. death takes the place of Kulasa was already in agony the man stabbed
an oath and the law her and she fell on the ground. The man
regards the declarant hurriedly left thereafter. PO2 Asintado
as testifying. immediately went to Kulasa’s rescue. Kulasa
May be made by the Can be made by the who was then in a state of hysteria, kept
killer after or during victim only. mentioning to PO2 Asintado “Si Rene, gusto
the killing or that of a akong patayin! Sinaksak niya ako!” When PO2
third person. Asintado was about to carry her, Kulasa refused
and said “Kaya ko. Mababaw lang to. Habulin mo
si Rene.” The following day, Rene learned of

655 UNIVERSITY OF SANTO TOMAS

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Kulasa’s death and, bothered by his conscience,
surrendered to the authorities with his counsel.
As his surrender was broadcasted all over
media, Rene opted to release his statement to
the press which goes:
“I believe that I am entitled to the
presumption of innocence until my guilt
is proven beyond reasonable doubt.
Although I admit that I performed acts
that may take one’s life away, I hope and
pray that justice will be served in the
right way. God bless us all.
(Sgd.)
Rene”
The trial court convicted Rene of homicide on
the basis of PO2 Asintado’s testimony, Kulasa’s
statements, and Rene’s statement to the press.
On appeal, Rene raises the following error:
The trial court erred in giving weight to PO2
Asintado’s testimony, as the latter did not have
personal knowledge of the facts in issue, and
violated Rene’s right to due process when it
considered Kulasa’s statements despite lack of
opportunity for her cross-examination. Resolve.
(2014 BAR)
A: The trial court did not err in giving weight to PO2
Asintado’s testimony. While a witness can only
testify as to those facts which he has personal
knowledge, the Rules provide that a statement
made under the influence of a startling event
witnessed by the person who made the declaration
before he had time to think and make up a story, or
to concoct or contrive a falsehood, or to fabricate an
account, and without any undue influence in
obtaining it, aside from referring to the event in
question or its immediate attending circumstances,
is an exception being part of res gestae. (Belbis, Jr., v.
People, G.R. No. 181052, 14 Nov. 2012)
In the case, the statements made by PO2 Asintado
constitutes part of res gestae since the same were
made without any opportunity to fabricate and
while a startling occurrence was actually taking
place. In addition, the statement of PO2 Asintado
may fall within the purview of the doctrine of
independent relevant statement, where only the
656
fact that such statements were made is relevant, and
the truth and falsity thereof is immaterial. (People v.
Malibiran, G.R. No. 178301, 24 Apr. 2009) On the
other hand, Kulasa’s statements are also admissible
as part of res gestae since the same were made
under the influence of a startling event and without
any opportunity to concoct or devise a falsehood.
RECORDS OF REGULARLY CONDUCTED
BUSINESS ACTIVITY
(Sec. 45, Rule 130)
A memorandum, report, record or data compilation
of acts, events conditions, opinions or diagnoses
made by writing, typing, electronic, optical or other
similar means at or near the time of or from
transmission or supply of information by a person
with knowledge thereof, and kept in the regular
course or conduct of a business activity, and such
was the regular practice to make the memorandum,
report, record, or data compilation by electronic,
optical or similar means, all of which are shown by
the testimony of the custodian or other qualified
witnesses is excepted from the rule in hearsay
evidence. (Sec. 45, Rule 130, ROC, as amended)
NOTE: Reliability is furnished by the fact that
regularly kept records typically have a high degree
of accuracy. The law does not fix any precise
moment when the entries should be made. It is
sufficient if the entry was made within a reasonable
period of time so that it may appear to have taken
place while the memory of the facts was
unimpaired.
Availability or Unavailability of the Entrant
A significant change or innovation under Sec. 45 is
that the availability or unavailability of the entrant
is no longer material. Under the old rule on business
entries, it was required that the entrant be dead or
unavailable to testify. (Riguera, 2020)
Requisites for the admission of a business
record as an exception to the hearsay rule
Requisites for the Admission of a Business
Record as an Exception to the Hearsay Rule
1. There is a memorandum, report or data
compilation of acts, events, conditions,
 Evidence

opinions, made by writing, typing, electronic, Reason for admissibility

optical or other similar means;
2. The memorandum etc. is made at or near the
time of the act, event, etc.;
3. The memorandum etc., is made by, or from
transmission or supply of information by, a
person with knowledge of the act, event, etc.;
1. Necessity – due to the impossibility of requiring
the official’s attendance as a witness to testify to
the innumerable transactions occurring in the
course of his duty; and
2. Trustworthiness – there is a presumption of
regularity in the performance of official duty.

4. The memorandum, etc. is kept in the regular Requisites for the Admissibility of Entries in
course or conduct of a business activity; Official Records (K-P-O)

5. It was the regular practice of the business 1. Entrant had personal Knowledge of the facts
activity to make the memorandum, report, stated by him or such facts were acquired by
record or data compilation by writing, typing, him from reports made by persons under a legal
electronic, optical or similar means; duty to submit the same.

6. All of the foregoing conditions are shown by the 2. Entries were made by a Public officer in the
testimony of the custodian or other qualified performance of his duties or by a person in the
witnesses. (Riguera, 2020) performance of a duty especially enjoined by
law; and
Q: Are business records prima facie evidence of
the facts stated therein? 3. Entries must have been made in Official
records. (Ibid.)
A: No longer under the ROC, as amended. (Riguera,
2020) Entries in Official Record vs. Entries in the
Course of Business
ENTRIES IN OFFICIAL RECORDS
(Sec. 46, Rule 130) ENTRIES IN ENTRIES IN THE
OFFICIAL RECORD COURSE OF BUSINESS
Entries in official records made in the performance The entrant, if a private It is sufficient that the
of his or her duty by a public officer of the individual, must have entrant made the
Philippines, or by a person in the performance of a acted pursuant to a entries pursuant to a
duty specially enjoined by law, are prima facie specific legal duty duty be it legal,
evidence of the facts therein stated. (Sec. 46, Rule specially enjoined by contractual, moral or
130, ROC, as amended) law. religious.
Entrant need not be Entrant must be dead
Official record dead or unable to or unable to testify.
testify.
The original document that is legally recognized and Need not be Needs authentication.
thus ensuring the quality of a fact when it is authenticated.
established. It may be a:
Q: Should entries in the police blotter be given
1. Register; probative value?
2. Cash book; or
3. An official return or certificate (Regalado, 2008) A: NO, as they are not conclusive evidence of the
truth of the contents but merely of the fact that they

657 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 Remedial Law
were recorded. (People v. Cabrera, Jr., G.R. No.
138266, 30 Apr. 2003)
COMMERCIAL LISTS AND THE LIKE
(Sec. 47, Rule 130)
Evidence of statements of matters of interest to
persons engaged in an occupation contained in a
list, register, periodical, or other published
compilation is admissible as tending to prove the
truth of any relevant matter so stated if that
compilation is published for use by persons engaged
in that occupation and is generally used and relied
upon by them therein. (Sec. 47, Rule 130, ROC, as
amended)
Reason for Admissibility of Commercial Lists
1. Necessity - because of the usual inaccessibility
of the persons responsible for the compilation
of matters contained in such lists, it would
cause the court inconvenience if it would issue
summons to these numerous individuals; and
2. Trustworthiness - persons responsible for
such lists have no motive to deceive and they
further realize that unless the list, register or
periodical or other published compilation are
prepared with care and accuracy, their work
will have no commercial or probative value.
Requisites for the Admissibility of Commercial
Lists and the like
1. Statements of matters of interest to persons
engaged in an occupation;
2. Statements must be contained in a list, register,
periodical, or other published compilation;
3. Compilation is published for use by persons
engaged in that occupation; and
4. Such is generally relied upon by them.
Q: In a compulsory arbitration case between
Mercalco and its union, may the Secretary of
Labor take into account a newspaper report
citing an All Asia Capital finance analyst’s
estimate o Meralco’s 1996 net operating income
at P5.6 billion and upon which the union relied
upon in order to support its position on the wage
issue?
658
A: NO. Under Sec. 47, Rule 130, statement of matters
contained in a periodical may be admitted only “if
that compilation is published for use by persons
engaged in that occupation and is generally used
and relied upon by them therein.” The cited report
is a mere newspaper account and not even a
commercial list. At most, it is but an analysis or
opinion which carries no persuasive weight as no
sufficient figures to support it were presented.
Neither did anybody testify to its accuracy. It cannot
be said that businessmen generally rely on news
items such as this in their occupation. Besides, no
evidence was presented that the publication was
regularly prepared by a person in touch with the
market and that it is generally regarded as
trustworthy or reliable. Absent extrinsic proof of
the accuracy, these reports are not admissible.
(Riguera, 2020, citing Manila Electric Co. v.
Quisumbing, G.R. No. 127598, 22 Feb. 2000)
Examples of Commercial Lists
1. Trade journals reporting current prices and
other market data;
2. Mortality tables compiled for life insurance;
3. Abstracts of title compiled by reputable title
examining institutions or individuals; or
4. Business directories, animal pedigree registers,
and the like. (Francisco, 1992)
LEARNED TREATISES
(Sec. 48, Rule 130)
A published treatise, periodical or pamphlet on a
subject of history, law, science, or art is admissible
as tending to prove the truth of a matter stated
therein if the court takes judicial notice, or a witness
expert in the subject testifies, that the writer of the
statement in the treatise, periodical or pamphlet is
recognized in his or her profession or calling as
expert in the subject. (Sec. 48, Rule 130, ROC, as
amended)
Reason for Admissibility
The learned writers have no motive to misrepresent
due to the awareness that his work will be carefully
scrutinized by the learned members of the
profession and that he shall be subject to criticisms
and be ultimately rejected as an authority on the
 Evidence
subject matter if his conclusions are found to be
invalid.
Requisites for the Admissibility of Learned
Treatises
1. When the court can take judicial notice of them;
or
2. When an expert witness testifies that the author
of such is recognized as expert in that
profession. (Sec. 48, Rule 130, ROC, as amended)
TESTIMONY OR DEPOSITION AT A FORMER
PROCEEDING
(Sec. 49, Rule 130)
The testimony or deposition of a witness deceased
or out of the Philippines or who cannot, with due
diligence, be found therein, or is unavailable or
otherwise unable to testify, given in a former case or
proceeding, judicial or administrative, involving the
same parties and subject matter, may be given in
evidence against the adverse party who had the
opportunity to cross examine him or her. (Sec. 49,
Rule 130, ROC, as amended)
Requisites for the Rule on Former Testimony to
Apply
1. The witness is dead or unable to testify;
2. His testimony or deposition was given in a
former case or proceeding, judicial or
administrative, between the same parties or
those representing the same interests;
3. The former case involved the same subject as
that in the present case, although on different
causes of action;
NOTE: Section 47 (now Sec. 49), Rule 130
requires that the issues involved in both cases
must, at least, be substantially the same;
otherwise, there is no basis in saying that the
former statement was - or would have been -
sufficiently tested by cross-examination or by
an opportunity to do so. The requirement of
similarity though does not mean that all the
issues in the two proceedings should be the
same. Although some issues may not be the
659
same in the two actions, the admissibility of a
former testimony on an issue which is similar in
both actions cannot be questioned.
These considerations, among others, make
Section 47, Rule 130 a distinct rule on evidence
and therefore should not be confused with the
general provisions on deposition under Rule 23
of the Rules of Court. In other words, even if the
petitioner complies with Rule 23 of the Rules of
Court on the use of depositions, the observance
of Section 47, Rule 130 of the Rules of Court
cannot simply be avoided or
disregarded. (Republic v. Sandiganbayan, G.R.
No. 152375, 13 Dec. 2011)
4. The issue testified to by the witness in the
former trial is the same issue involved in the
present case; and
5. The adverse party had an opportunity to cross-
examine the witness in the former case.
(Ambray v. Tsuorous, G.R. No. 209264, 05 July
2016)
Reason for Admissibility
The reasons for the admissibility of testimony taken
at a former trial or proceeding are the necessity for
the testimony and its trustworthiness. However,
before the former testimony can be introduced in
evidence, the proponent must first lay the proper
predicate therefor, i.e., the party must establish the
basis for the admission of testimony in the realm of
admissible evidence. (Ibid.)
Grounds which make a Witness Unable to
Testify in a Subsequent Case
1. Death;
2. Insanity or mental incapacity or the former
witness’ loss of memory through old age or
disease;
3. Physical disability by reason of sickness or
advanced age;
4. The fact that the witness has been kept away by
contrivance of the opposite party; or
5. The fact that after diligent search the former
witness cannot be found. (Francisco, 1992)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
Proof of Former Testimony
1. If reduced to writing, such writing is the
primary evidence thereof and should be used;
or
2. The stenographic notes or a copy thereof.
NOTE: The judge’s notes are not evidence of what
the witness said, and, as a rule, they can be used only
to refresh the memory of a witness.
RESIDUAL EXCEPTION
(Sec. 50, Rule 130)
A statement not specifically covered by any of the
exceptions, having circumstantial guarantees of
trustworthiness, is admissible provided the
conditions under Sec. 50, Rule 130 are present.
Requisites for Admissibility
1. The statement, having equivalent
circumstantial guarantees of trustworthiness,
must not be covered by any of the foregoing
exceptions;
2. The statement is offered as evidence of a
material fact;
3. The statement is more probative on the point
for which it is offered than any other evidence
which the proponent can procure through
reasonable efforts; and
4. The general purposes of these rules and the
interests of justice will be best served by
admission of the statement of evidence. (Sec. 50,
Rule 130, ROC, as amended)
NOTE: A statement may not be admitted under this
exception unless the proponent makes known to the
adverse party, sufficiently in advance of the hearing,
or by the pre-trial stage in the case of a trial of the
main case, to provide the adverse party with a fair
opportunity to meet it, the proponent’s intention to
offer the statement and the particulars of it,
including the name and address of the declarant.
(Ibid.)
660
Independently Relevant Statements
These are statements which are relevant
independently of whether they are true or not. They
are neither hearsay nor an exception to the hearsay
rule as the purpose thereof is not to prove the truth
of the declaration or document. (Estrada v. Desierto,
supra) It merely proves the fact that a statement
was made and not the truth of the fact asserted in
the statement. (1999, 2005, 2009, 2010 BAR)
An out-of-court statement which is relevant not for
the truth off a matter asserted therein, but for
something else, e.g., state of mind, intent, belief, the
mere fact of utterance, or legal effect. It is a
statement relevant for something else than its truth.
Not being hearsay, independently relevant evidence
is admissible. (Riguera, 2020)
Classification of Independently Relevant
Statements
1. Those statements which are the very facts in
issue; and
2. Those statements which are circumstantial
evidence of the fact in issue. It includes the
following:
a. Statements 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, i.e., 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.
 Evidence
Q: Annie overheard Billy call Rocky a thief. In an
action for defamation filed by Rocky against
Billy, is the testimony of Annie offered to prove
the fact of utterance i.e., that Billy called Rocky a
thief, admissible in evidence? Explain. (1999
BAR)
A: YES. The testimony of Annie is admissible in
evidence as an independently relevant statement. It
is offered in evidence only to prove the tenor
thereof, not to prove the truth of the facts asserted
therein. Independently relevant statements include
statements which are on the very facts in issue or
those which are circumstantial evidence thereof.
The hearsay rule does not apply. (People v. Gaddi,
G.R. No. 74065, 27 Feb. 1989)
Q: A foreign dog trained to sniff dangerous drugs
from packages, was hired by FDP Corporation, a
door-to-door forwarder company, to sniff
packages in their depot at the international
airport. In one of the routinary inspections of
packages waiting to be sent to the USA, the dog
sat beside one of the packages, a signal that the
package contained dangerous drugs.
Thereafter, the guards opened the package and
found 2 kilograms of cocaine. During the trial,
the prosecution, through the trainer who was
present during the incident and an expert in this
kind of field, testified that the dog was highly
trained to sniff packages to determine if the
contents were dangerous drugs and the sniffing
technique of their highly trained dogs was
accepted worldwide and had been successful in
dangerous drugs operations. The prosecution
moved to admit this evidence to justify the
opening of the package. The accused objected on
the grounds that: (i) the guards had no personal
knowledge of the contents of the package before
it was opened; (ii) the testimony of the trainer of
the dog is hearsay; and (iii) the accused could
not cross-examine the dog. Decide. (2014 BAR)
A: The objections of the accused should be
overruled. Evidence is admissible when it is
relevant to the issue and is not excluded by the law
or the rules. (Section 3, Rule 128, ROC, as amended)
Under Section 22, Rules 130 of the Rules of Court, a
witness can testify only to those which he knows of
661
his personal knowledge and derived from his own
perception.
The contention that the guards had no personal
knowledge of the contents of the package before it
was opened is without merit. The guards can testify
as to the facts surrounding the opening of the
package since they have personal knowledge of the
circumstances thereof, being physically present at
the time of its discovery.
On the other hand, the testimony of the trainer of
the dog is not hearsay on the basis of the following
grounds:
a. He has personal knowledge of the facts in issue,
having witnessed the same;
b. Hearsay merely contemplates an out-of-court
declaration of a person which is being offered to
prove the truthfulness and veracity of the facts
asserted therein;
c. He is an expert witness; hence, his testimony
may constitute an exception to the hearsay rule;
d. The accused has the opportunity to cross-
examine him; and
e. Testimony of a witness as to statements made
by nonhuman declarants does not violate the
rule against hearsay.
The law permits the so-called “non-human
evidence” on the ground that machines and animals,
unlike humans, lack a conscious motivation to tell
falsehoods, and because the workings of machines
can be explained by human witnesses who are then
subject to cross-examination by opposing counsel.
(City of Webster Groves v. Quick. 323 S.W. 2d 386)
Conversely, the accused may not argue that he
cannot cross examine the dog as the Constitutional
right to confrontation refers only to witnesses. As
alluded, the human witnesses who have explained
the workings of the non-human evidence is the one
that should be cross-examined. There is no doubt
that the evidence of the prosecution is admissible
for being relevant and competent.
Q: In Estrada v. Desierto, supra., at issue was
whether President Estrada resigned from his
position. Submitted to prove Estrada’s intent to
resign was the Angara Diary in which Executive
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law

Secretary Edgardo Angara recorded Estrada’s NOTE: Opinion testimony involving questions of
statements in which he said, “Pagod na pagod na law or the ultimate fact in issue is not admissible.
ako. Ayoko na, masyado nang masakit. Pagod na
ako sa red tape, bureaucracy, intriga. I just want Evidence not based on personal knowledge vs.
to clear my name, then I will go.” Angara himself Opinion evidence (2002, 2004 BAR)
did not testify in court. Estrada’s lawyers argued
that these statements were hearsay. Were they? EVIDENCE NOT OPINION EVIDENCE
BASED ON PERSONAL
A: NO. The statements are independently relevant, KNOWLEDGE
that is, relevant independently of whether they are Consists of testimony Expert evidence based
true or not. Independently relevant statements are that is not based on on the personal
of two classes: (1) those statements which are the personal knowledge of knowledge, skill,
very facts in issue, and (2) those statements which the person testifying. experience or training
are circumstantial evidence of the acts in issue. of the person testifying
and evidence of an
The second includes statements of a person ordinary witness on
showing his state of mind (i.e., his mental condition, limited matters.
knowledge, belief, intention, ill will, and other
emotions) and statements of a person from which Opinion of Expert Witness
an inference may be made as to the state of mind of
another. The opinion of a witness on a matter requiring
special knowledge, skill, experience or training
The Angara Diary contains statements of Estrada which he shown to possess may be received in
which reflect his state of mind and are evidence. (Sec. 52, Rule 130, ROC, as amended)
circumstantial evidence of his intent to resign. It
also contains statements which one can reasonably NOTE: The use of the word “may”, signifies that the
infer Estrada’s intent to resign. Such statements are use of opinion of expert witness is permissive and
independently relevant and are excluded from the not mandatory on the part of the courts. It only
hearsay. (Riguera, 2020) assists the court in the determination of the issue
before it, and is for the court to adopt or not to adopt
7. OPINION RULE depending on its appreciation of the attendant facts
and the applicable law. (Tabao v. People, G.R. No.
Opinion 187246, 20 July 2011)

A person’s thought belief, or inference, especially a Expert Witness

witness’s view about facts in dispute, as opposed to
personal knowledge of the facts themselves. (Black’s
Law Dictionary, 2004)
GR: The opinion of a witness is not admissible. (Sec.
51, Rule 130, ROC, as amended) A witness testifies
only with respect to facts personally observed by
him and it is for the court to draw conclusions from
the facts testified to. (2011 BAR)
XPNs:
1. Opinion of expert witness; and
2. Opinion of ordinary witnesses.
He is one who belongs to the profession or calling to
which the subject matter of the inquiry relates and
who possesses special knowledge on questions on
which he proposes special knowledge to express an
opinion. (Regalado, 2008)
Before one may be allowed to testify as an expert
witness, his qualification must first be established
by the party presenting him. (People vs. Fundano,
G.R. No. 124737, 26 June 1998)
NOTE: Expert testimony is not admissible as to a
matter not in issue.

662
 Evidence
NOTE: Expert witness is not necessary when the
doctrine of res ipsa loquitur is applicable. (Rosit v.
Davao Doctor’s Hopital, G.R. No. 210445, 05 Dec.
2015)
Degree of Skill or Knowledge
There is no definite standard in determining the
degree of skill or knowledge that a witness must
possess in order to testify as an expert as long as the
following are present:
1. Training and education;
2. Particularity, first-hand familiarity with the
facts of the case; and
3. Presentation of authorities or standards upon
which his opinion is based. (People v. Abriol, G.R.
No. 123137, 17 Oct. 2001)
NOTE: An expert witness may base his opinion
either on the first-hand knowledge of the facts or on
the basis of hypothetical questions where the facts
are presented to him hypothetically and on the
assumption that they are true, formulates his
opinion on such hypothesis.
The probative force of the testimony of an expert
does not lie in a mere statement of his theory or
opinion, but rather in the aid that he can render to
the courts in showing the facts which serve as a
basis for his criterion and the reasons upon which
the logic of his conclusion is founded. (Dizon v.
Tuazon, G.R. No. 172167, 09 July 2008)
NOTE: 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 or her to explain highly technical
medical matters to the court. (Casumpang v. Cortejo,
G.R. Nos. 171127, 171217, 171228, 11 Mar. 2015)
Weight to be given Opinion of Expert Witness
In any case where the opinion of an expert witness
is received in evidence, the court has a wide latitude
663
of discretion in determining the weight to be given
to such opinion, and for that purpose may consider
the following:
1. Whether the opinion is based upon sufficient
facts or data;
2. Whether it is the product of reliable principles
and methods;
3. Whether the witness has applied the principles
and methods reliably to the facts of the case;
and
4. Such other factors as the court may deem
helpful to make such determination. (Sec. 5,
Rule 133, ROC, as amended)
Discretion of the Court in Giving Weight to the
Testimony
Although courts are not ordinarily bound by expert
testimonies, they may place whatever weight they
may choose upon such testimonies in accordance
with the facts of the case. The relative weight and
sufficiency of expert testimony is peculiarly within
the province of the trial court to decide, considering
the ability and character of the witness, his actions
upon the witness stand, the weight and process of
the reasoning by which he has supported his
opinion, his possible bias in favor of the side for
whom he testifies, the fact that he is a paid witness,
the relative opportunities for study and observation
of the matters about which he testifies, and any
other matters which deserve to illuminate his
statements.
The opinion of the expert may not be arbitrarily
rejected; it is to be considered by the court in view
of all the facts and circumstances in the case and
when common knowledge utterly fails, the expert
opinion may be given controlling effect. The
problem of the credibility of the expert witness and
the evaluation of his testimony is left to the
discretion of the trial court whose ruling thereupon
is not reviewable in the absence of abuse of
discretion. (Tabao v. People, G.R. No. 187246, 20 July
2011)
NOTE: The testimony of a qualified medical doctor
cannot be excluded simply because he is not a
specialist. The matter of training and specialization
of the witness goes to the weight rather than
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
admissibility. (Casumpang v. Cortejo, G.R. Nos.
171127, 171217, 171228, 11 Mar. 2015)
Test in Determining the Need to Resort to Expert
Evidence
Whether the opinion called for will aid the court in
resolving an issue.
Handwriting Expert
The opinion of handwriting experts is not
necessarily binding upon the court, the expert’s
function being to place before the court data upon
which the court can form its own opinion. This
principle holds true especially when the question
involved is mere handwriting similarity or
dissimilarity, which can be determined by a visual
comparison of specimens of the questioned
signatures with those of the currently existing ones.
A finding of forgery does not depend entirely on the
testimonies of handwriting experts, because the
judge must conduct an independent examination of
the questioned signature in order to arrive at a
reasonable conclusion as to its authenticity.
(Gepulle-Garpo v. Spouses Garabato, G.R. No. 200013,
14 Jan. 2015)
Q: In a case where the issue involves forgery, two
expert witnesses were presented by the
plaintiff, the NBI official and a handwriting
expert from the PNP. The NBI official testified
that the signatures in the deed of sale and the
other sample signatures are the same. However,
the PNP handwriting expert declared that the
person who signed are not the same person. The
lower court gave credit and based the ruling on
the testimony of the PNP handwriting expert on
the fact that the said witness has better
credentials than the NBI witness. Is the ruling
valid, because of the fact that the court based the
ruling on the credentials?
A: NO. While credentials of an expert witness play a
factor in the evidentiary and persuasive weight of
his testimony, the same cannot be the sole factor in
determining its value. The judge must conduct his
own independent examination of the signatures
under scrutiny. (Tamani, et al. v. Salvador and Bravo,
G.R. No. 171497, 04 Apr. 2011)
664
Opinion of Ordinary Witness
That which is given by a witness who is of ordinary
capacity and who has by opportunity acquired a
particular knowledge which is outside the limits of
common observation and which may be of value in
elucidating a matter under consideration.
The opinion of a witness for which proper basis is
given, may be received in evidence regarding:
1. The identity of a person about whom he or
she has adequate knowledge;
2. A handwriting with which he or she has
sufficient familiarity;
3. The mental sanity of a person with whom
he or she is sufficiently acquainted (People
v. Castillo, G.R. No. 1865333, 09 Aug. 2010);
NOTE: Where the sanity of a person is at
issue, expert opinion is not necessary, the
observation of the trial judge coupled with
evidence establishing the person’s state of
mental sanity will suffice. (Hernandez v. San
Juan-Santos, G.R. No. 166470 & 169217, 07
Aug. 2009)
4. The witness’ impressions of the emotion,
behavior, condition or appearance of a
person. (Sec. 53, Rule 130, ROC, as amended)
(2005 BAR)
8. CHARACTER EVIDENCE
Character
The aggregate of the moral qualities which
belong to and distinguish an individual person;
the general result of one’s distinguishing
attributes. (Black’s Law Dictionary, 2004)
Admissibility of Character Evidence
GR: Evidence of a person’s character or a trait of
character is INADMISSIBLE for the purpose of
proving action in conformity therewith on a
particular occasion, except as provided in the rules.
NOTE: The reason for this is that the evidence of a
person’s character does not prove that such person
 Evidence
acted in conformity with such character or trait in a
particular occasion.
XPNs:
CRIMINAL CASES
AS TO THE ACCUSED
The character of the offended party may be
proved if it tends to establish in any reasonable
degree the probability or improbability of the
offense charged.
The accused may prove his or her good moral
character pertinent to the moral trait involved in
the offense charged.
AS TO THE PROSECUTION
They may not prove the bad moral character of
the accused which is pertinent to the moral trait
involved in the offense charged, unless in rebuttal
when the accused opens the issue by introducing
evidence of his good moral character.
AS TO THE OFFENDED PARTY
His good or bad moral character may be proved
as long as it tends to establish in any reasonable
degree the probability or improbability of the
offense charged. (2002, 2010 BAR)
NOTE: In criminal cases, character evidence is
inadmissible under the following situations:
1. In rebuttal, proof of the bad character of the
victim is not admissible if the crime was
committed through treachery and
premeditation; and
2. In rape cases, the evidence of complainant’s
past sexual conduct, or reputation or opinion
thereof 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. No. 8505)
Q: Dave is on trial for sexual assault of Delly, a
law student who sidelines as a call center agent.
Dave offers the testimony of Danny, who says
that Dave is known in the community as a decent
and discerning person. The prosecution
presents a rebuttal witness, Dovie, who testifies
that, if Dave was reputed to be a good person,
that reputation was a misperception because
665
Dave had been previously convicted of
homicide.
Is Dovie's testimony admissible as to the
character of Dave? (2018 BAR)
A: NO. Dovie’s testimony on Dave’s previous
conviction for homicide as evidence of his bad
character does not refer to a moral trait involved in
the offense charged which is sexual assault.
Civil Cases
Evidence of the moral character of a party in a civil
case is admissible only when pertinent to the issue
of character involved in the case. (Sec. 54[b], Rule
130, ROC, as amended) (Sec. 54(b), Rule 130, ROC, as
amended)
Proof of bad character
1. Cross-examination; or
2. Independent evidence of bad character.
NOTE: It is permitted only when pertinent to the
issue of character involved in the case like in a civil
action for damages emanating from the offense of
libel, slander, or seduction. (Peralta, 2020)
Personal opinion as to the moral character of the
accused and the specific conduct of the part
exhibiting character is excluded as evidence.
However, reputation in the community is
admissible.
Q: Don was prosecuted for homicide for
allegedly beating up Vilma to death with an iron
pipe. May the prosecution introduce evidence
that Vilma had a good reputation for
peacefulness and non-violence? Why? (2002
BAR)
A: NO. The prosecution may introduce evidence of
the good or even bad moral character of the victim
if it tends to establish in any reasonable degree the
probability or improbability of the offense charged.
In this case, the evidence is not relevant.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law

Criminal and Civil Cases evidence by the the prima facie

amount of evidence evidence against him.
Evidence of the good character of a witness is not required by law, which (Bautista v. Sarmiento,
admissible until such character has been is preponderance of G.R. No. L-45137, 23
impeached. evidence in civil cases. Sept. 1985)
(Supreme Transliner,
In all cases in which evidence of character or a trait Inc. v. CA, G.R. No.
of character of a person is admissible, proof may be 125356, 21 Nov. 2001)
made by testimony as to reputation or by testimony Never shifts. (Sec. 1,
in the form of an opinion. On cross examination, Rule 131, ROC, as
inquiry is allowable into relevant specific instances amended) May shift from one
of conduct. party to the other in
It remains throughout the course of the
In cases in which character or a trait of a character the entire case exactly proceedings,
of a person is an essential element of a charge, claim where the pleadings depending on the
or defense, proof may also be made of specific originally placed it or exigencies of the case.
instances of that person’s conduct. (Sec. 54[c], Rule with the party upon (Sec. 1, Rule 131, ROC,
130, ROC, as amended) (Sec. 54(c), Rule 130, ROC, as whim it is imposed. as amended)
amended) (Republic v. Mupas, G.R.
No. 181892, 08 Sept.
2015)
F. BURDEN OF PROOF AND PRESUMPTIONS Generally determined
(RULE 131) by the developments of
the trial, or by the
provisions of
Generally determined
Burden of Proof vs. Burden of Evidence substantive law or
by the pleadings filed
procedural rules which
by the party.
may relieve the party
BURDEN OF
BURDEN OF PROOF from presenting
EVIDENCE
evidence of the facts
It is the duty of a party It is the duty of a party
alleged.
to present evidence on to present evidence
the facts necessary to sufficient to establish
Test for Determining where the Burden of Proof
establish his or her or rebut a fact in issue
Lies
claim or defense by the to establish prima facie
amount of evidence case. (Sec. 1, Rule 131,
Ask which party to an action or suit will fail if he
required by law. (Sec. 1, ROC, as amended)
offers no evidence competent to show the facts
Rule 131, ROC, as
averred as the basis for the relief he seeks to obtain.
amended) Burden of evidence is
Burden of proof or that logical necessity
Q: In a collection case, who has the burden of proof?
“onus probandi” which rests upon a
traditionally refers to party at any particular
A: The party who alleges a fact has the burden of
the obligation of a time during the trial to
proving it. In the course of trial in a civil case, once
party to the litigation create a prima facie
plaintiff makes out a prima facie case in his favor,
to persuade the court case in his favor or to
the duty or the burden of evidence shifts to
that he is entitled to overthrow one created
defendant to controvert plaintiff’s prima facie case,
relief. against him.
otherwise, a verdict must be returned in favor of
Duty of a party to Duty of the party to go
plaintiff. Hence, the plaintiff must establish the
present evidence to forward with the
failure to pay on the part of the defendant, the latter,
establish his claim or evidence to overthrow

666
 Evidence

on the other hand, has to prove their defense that establish a fact in issue. One need not introduce
the obligation was extinguished. evidence to prove the fact for a presumption is
prima facie proof of the fact presumed. (Diesel
In this case, BPI, as plaintiff, had to prove that Construction, Inc v. UPSI Property Holdings, Inc., G.R.
spouses De Leon failed to pay their obligations No. 154937, 24 Mar. 2008)
under the promissory note. The spouses, on the
other hand, had to prove their defense that the Presumption of Law vs. Presumption of Fact
obligation was extinguished by the loss of the
mortgaged vehicle, which was insured. The mere PRESUMPTION OF PRESUMPTION OF
loss of the mortgaged vehicle does not automatically LAW FACT
relieve the spouses De Leon of their obligation. As (PRAESUMPTIONES (PRAESUMPTIONES
provided in the Promissory Note with Chattel JURIS) HOMINIS)
Mortgage, the mortgagor must notify and submit It is a deduction which
proof of loss to the mortgagee. (De Leon v. BPI, G.R. It is a deduction which reason draws from
No. 184565, 20 Nov. 2013) the law expressly the facts proved
directs to be made from without an express
Presumptions particular facts. direction from law to
that effect.
Presumptions are inferences of the existence or A certain inference must
Discretion is vested in
non-existence of a fact which courts are permitted be made whenever the
the tribunal as to
to draw from the proof of other facts. (In the matter facts appear which
drawing the
of the Intestate Estates of Delgado and Rustia, G.R. furnish the basis of the
inference.
No. 175733, 27 Jan. 2006) inference.
Derived wholly and
NOTE: A presumption shifts the burden of going directly from the
forward with the evidence. It imposes on the party Reduced to fixed rules circumstances of the
against whom it is directed the burden of going and forms a part of the particular case by
forward with evidence to meet or rebut the system of jurisprudence means of the common
presumption. (Bautista, 2004) experience of
mankind
In a sense, a presumption is an inference which is Need not be pleaded or
mandatory unless rebutted. proved if the facts on
Has to be pleaded and
which they are based
Presumption vs. Inference proved
are duly averred and
established
PRESUMPTION INFERENCE
It is mandated by law It is a factual conclusion Kinds of Presumptions of Law
and establishes a that can rationally be
legal relation drawn from other facts. 1. Conclusive presumptions (presumptions juris et
between or among (Riano, 2019) de jure); and
the facts. 2. Disputable presumptions (presumptions juris
It is a deduction It is a permissive tantum). (Regalado, 2008)
directed by law. deduction. (Francisco,
1996) Conclusive Presumption

Effect of Presumption A presumption which is irrebuttable and any

evidence tending to rebut the presumption is not
A party in whose favor the legal presumption exists admissible. This presumption is in reality a rule of
may rely on and invoke such legal presumption to substantive law. (Riano, 2019)

667 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 Remedial Law
Classes of Conclusive Presumptions
a. Estoppel in pais (Equitable Estoppel) –
Whenever a party has, by his or her own
declaration, act or omission, intentionally and
deliberately led another to believe a particular
thing to be true, and to act upon such belief, he
cannot, in any litigation arising out of such
declaration, act or omission, be permitted to
falsify it (Sec. 2(a), Rule 131, ROC, as amended);
and
b. Estoppel by deed – A party to a property deed
is precluded from asserting, as against another
party to the deed, any right or title in derogation
of the deed, or from denying the truth of any
material fact asserted in the deed
E.g. The tenant is not permitted to deny the title
of his or her landlord at the time of the
commencement of the relation of landlord and
tenant between them (Sec. 2[b], Rule 131, ROC,
as amended) (Sec. 2(b), Rule 131, ROC, as
amended)
NOTE: Estoppel may attach even though the
landlord does not have title at the commencement
of the relations. It may inure in favor of the
successor. (Golden Horizon Realty Corporation vs. St
Chuan, G.R. No. 145416, 21 Sept. 2001)
The rule on estoppel against tenants is subject to a
qualification. It does not apply if:
1. The landlord’s title has expired;
2. It has been conveyed to another; or
3. It has been defeated by a title paramount,
subsequent to the commencement of lessor-
lessee relationship.
In other words, if there was a change in the nature
of the title of the landlord during the subsistence of
the lease, then the presumption does not apply.
Otherwise, if the nature of the landlord’s title
remains as it was during the commencement of the
relation of landlord and tenant, then estoppel lies
against the tenant. (Santos v. NSO, G.R. No. 171129,
06 Apr. 2011)
668
Distinguish Estoppel from Waiver
A waiver is a voluntary and intentional
abandonment or relinquishment of a known right. It
must be supported by an agreement founded upon
a valid consideration.
An equitable estoppel may arise however, in the
absence of any intention on the part of the person
estopped to relinquish or change any existing right,
and it need not be supported by any consideration,
agreement, or legal obligation. (Francisco, 1996)
Disputable Presumption
This refers to a presumption which is satisfactory if
uncontradicted but may be contradicted and
overcome by other evidence. (Sec. 3, Rule 131, ROC,
as amended)
Disputable Presumptions under Section 3, Rule
131
1. A person is innocent of a crime or wrong;
NOTE: It applies to both civil and criminal
cases. Presumption of innocence of the accused
accompanies him until the rendition of
judgment and disappears after conviction, such
that upon appeal, the appellate court will then
presume the guilt of the accused. The
prosecution’s case must rise and fall on its own
merits and cannot draw strength from the
weakness of the defense. (People v. Mingming,
G.R. No. 174195, 10 Dec. 2008)
2. Unlawful act is done with an unlawful intent;
3. Person intends the ordinary consequences of
his or her voluntary act;
4. Person takes ordinary care of his concerns;
GR: All people are sane and normal and moved
by substantially the same motives. When of age
and sane, they must take care of themselves.
Courts operate not because one person has
been defeated or overcome by another but
because that person has been defeated or
overcome illegally. There must be a violation of
the law. (Vales v. Villa, G.R. No. 10028, 16 Dec.
 Evidence
1916)
XPN: When one of the parties is unable to read
or if the contract is in a language not
understood by him, and mistake or fraud is
alleged, the person enforcing the contract must
show that the terms thereof have been fully
explained to the former. (Art. 1332, NCC)
5. Evidence willfully suppressed would be
adverse if produced;
Requisites:
a. The evidence is material;
b. The party had the reasonable opportunity
to produce it; and
c. The evidence is available only to the said
party.
The presumption will NOT be applicable when:
a. Suppression of evidence is not willful;
b. Evidence suppressed or withheld is merely
corroborative or cumulative;
c. Evidence is at the disposal of both parties;
and
d. Suppression is by virtue of an exercise of
privilege.
NOTE: Failure of the prosecution to present a
certain witness and to proffer a plausible
explanation does not amount to willful
suppression of evidence since the prosecutor
has the discretion/prerogative to determine the
witnesses he is going to present. (People v.
Jalbuena, G.R. No. 171163, 04 July 2007)
6. Money paid by one to another was due to the
latter;
7. Thing delivered by one to another belonged to
the latter;
8. Obligation delivered up to the debtor has been
paid;
9. Prior rents or installments had been paid when
a receipt for the later ones is produced;
10. 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
669
which a person possesses or exercises acts of
ownership over, are owned by him or her;
NOTE: In order to raise the presumption, the
following must be proved:
a. That a crime was committed;
b. That it was committed recently;
c. That the stolen property was found in the
possession of the defendant; and
d. That the defendant is unable to explain his
possession satisfactorily. (U.S. v. Espia 16,
G.R. No. L-5813, 27 Aug. 1910)
11. A person in possession of an order on himself or
herself for the payment of the money, or the
delivery of anything, has paid the money or
delivered the thing accordingly;
12. Person acting in public office was regularly
appointed or elected to it;
Ratio: It would cause great inconvenience if in
the first instance strict proof were required of
appointment or election to office in all cases
where it might be collaterally in issue.
However, the presumption of a regular
appointment does not apply to a public officer
seeking to recover salary attached to the office,
or the benefits of a pension system.
13. Official duty has been regularly performed;
NOTE: All things are presumed to have been
done regularly and with due formality until the
contrary is proved. This presumption extends
to persons who have been appointed pursuant
to a local or special statute to act in quasi-public
or quasi-official capacities and to professionals
like lawyers and surgeons.
GR: Presumption applies to both civil as well as
criminal cases.
XPNs:
a. Petition for writ of amparo – presumption
may not be invoked by the respondent
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
public officer or employee (Rule on the Writ
of Amparo, A.M. No. 17-9-12-SC);
b. The presumption does not apply during in-
custody investigation (People v. Camat, G.R.
No. 112262, 2 Apr. 1996); or
c. When the official conduct in question is
irregular on its face. (People v. Obmiranis,
GR. No. 181492, 16 Dec. 2008)
24. Presumption of Death;
14. A court or judge acting as such, whether in the
Philippines or elsewhere, was acting in the
lawful exercise of jurisdiction;
NOTE: Lawful exercise of jurisdiction is
presumed unless the record itself shows that
jurisdiction has not been acquired or the record
itself shows the absence of jurisdiction.
15. All the matters within an issue raised in a case
were laid before the court and passed upon by
it;
16. All matters within an issue raised in a dispute
submitted for arbitration were laid before
arbitrators and passed upon by them;
17. Private transactions have been fair and regular;
18. Ordinary course of business has been followed;
19. There was a sufficient consideration for a
contract;
20. Negotiable instrument was given or indorsed
for a sufficient consideration;
21. An indorsement of negotiable instrument was
made before the instrument was overdue and at
the place where the instrument is dated;
NOTE: Except where an endorsement bears
date after the maturity of the instrument, every
negotiation is deemed prima facie to have been
effected before the instrument was overdue.
(Sec. 45, Act. No. 2031)
22. A writing is truly dated;
23. Letter duly directed and mailed was received in
the regular course of the mail;
NOTE: For this presumption to arise, it must be
proved that the letter was properly addressed
670
with postage pre-paid and that it was actually
mailed.
Bare denial of receipt of a mail cannot prevail
over the certification of the postmaster, whose
official duty is to send notices of registered mail.
(Duarte v. Duran, G.R. No. 173038, 14 Sept. 2011)
a. Absence of 7 years – It being unknown
whether, the absentee still lives, he or she
shall be presumed dead for all purposes,
except for those of succession;
b. Absence of 10 years – The absentee shall be
considered dead for the purpose of opening
his succession only after an absence of 10
years; and if he or she disappeared after the
age of 75, absence of only 5 years is
sufficient;
c. The following shall be considered dead for
all purposes including the division of estate
among the heirs:
1. 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;
2. Member of the armed forces who has
taken part in armed hostilities, and has
been missing for 4 years;
3. Person who has been in danger of
death under other circumstances and
whose existence has not been known
for 4 years;
4. If a married person has been absent for
4 consecutive years, the spouse
present may contract a subsequent
marriage if he or she has well-founded
belief that the absent spouse is already
dead; 2 years in case of disappearance
where there is danger of death under
the circumstances hereinabove
provided. Before marrying again, the
spouse present must institute a
summary proceeding as provided in
the Family Code and in the rules for
declaration of presumptive death of
the absentee, without prejudice to the
 Evidence
effect of re-appearance of the absent
spouse.
25. Acquiescence resulted from a belief that the
thing acquiesced in was conformable to the law
or fact;
26. Things have happened according to the
ordinary course of nature and ordinary habits
of life;
27. Persons acting as co-partners have entered into
a contract of co-partnership;
28. A man and woman deporting themselves as
husband and wife have entered into a lawful
contract of marriage;
29. 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
void marriage, has been obtained by their joint
efforts, work or industry;
30. In cases of cohabitation by a man and a woman
who are not capacitated to marry each other
and who have acquired properly 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;
31. If the marriage is terminated and the mother
contracted another marriage within 300 days
after such termination of the former marriage,
these rules shall govern in the absence of proof
to the contrary;
a. A child born before 180 days after the
solemnization of the subsequent
marriage is considered to have been
conceived during the former marriage,
provided it be born within 300 days after
the termination of former marriage;
b. A child born after 180 days following the
celebration of the subsequent marriage is
considered to have been conceived
during such marriage, even though it be
born within the 300 days after the
671
termination of the former marriage.
32. A thing once proved to exist continues as long
as is usual with things of that nature;
33. The law has been obeyed;
34. A printed or published book, purporting to be
printed or published by public authority, was so
printed or published;
35. A printed or published book, purporting to
contain reports of cases adjudged in tribunals of
the country where the book is published,
contains correct reports of such cases;
36. 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;
37. Except for purposes of succession, when 2
persons perish in the same calamity, and it is
not shown who died first, and there are no
particular circumstances from which it can be
inferred, the survivorship is determined from
the probabilities resulting from the strength
and age of the sexes, according to the following
rules:
a. If both were under the age of 15 years, the
older is deemed to have been survived;
b. If both were above the age of sixty, the
younger is deemed to have survived;
c. If one is under 15 and the other above 60,
the former is deemed to have survived;
d. If both be over 15 and under 60, and the sex
be different, the male is deemed to have
survived; if the sex be the same, the older;
e. If one be under 15 or over 60, and the other
between those ages, the latter is deemed to
have survived.
38. If there is a doubt, as between two or more
persons who are called to succeed each other,
as to which of them died first, whoever alleges
the death of one prior to the other, shall prove
the same; in the absence of proof, they shall be
considered to have died at the same time. (Sec.
3, Rule 131, ROC, as amended)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
Q: Anastacia, who was then an 84-year old,
illiterate, rheumatic and bedridden mother,
agreed to the offer of petitioner to undertake the
subdivision of her land in consideration for one
lot in the subdivision and a first preference to
buy any portion that might be for sale; but
taking advantage of the ignorance of
respondents' family, petitioner managed to
have the DOS executed and misled Feliciana and
Donata into believing that the document was the
instrument of subdivision.
By the DOS, which was executed and notarized
on November 18, 1992, Anastacia, with her
husband's consent, purportedly sold her
paraphernal property – a lot located at Barrio
Gaboc, Tagbilaran City to spouses Sepe for
P15,000.00. Anastacia executed a notarized
Notice of Adverse Claim, wherein she claimed
that "the second duplicate copy of the TCT was
lost and was found in the possession of one
Generoso Sepe without the knowledge and
consent of the owner" and the "parcel of land
was never sold nor encumbered to anybody
else."
Respondents, save Dominga, executed the COS
for a consideration of P40,000.00, wherein they
confirmed absolutely and irrevocably the sale of
the subject lot situated at Barrio Gaboc (now
Cabawan District) made and executed by their
parents, Anastacia and Fabian, in favor of
spouses Sepe, and warranted to defend their
rights and peaceful possession of the subject lot.
Anastacia executed a notarized Notice of
Withdrawal of Adverse Claim, wherein she
alleged that she was made to sign an Adverse
Claim by Dominga and Donata; she did not
understand its contents; and she remembered
that she had already sold the same land to
Spouses Sepe.
Respondents, represented by Maria, filed a case
(Civil Case No. 6703) for nullification of the sale
and the TCT issued to petitioner. The counsel of
the petitioner filed a demurrer to evidence. The
RTC issued an Order granting the demurrer to
evidence and dismissing the case. However, the
CA reversed the RTC ruling. Is the CA correct?
672
A: NO. 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
stated therein; and 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. Being a public document, the evidence to
be presented to contradict the facts stated in the
DOS, which include the payment of the
consideration, must be more than merely
preponderant. Given the foregoing, the Court is not
persuaded by the CA's postulation that the oral
refutation by respondents Feliciana and Maria of
the consideration stated in the DOS has reached the
threshold of the required quantum of proof of clear
and convincing evidence. Their mere oral
declaration that no consideration was paid to their
mother Anastacia is simply not enough given the
presence of the following notarized and public
documents in petitioner's favor. Given the failure of
respondents to adduce clear and convincing
evidence to support their cause and overcome the
presumptions granted by law in favor of the public
documents above-enumerated, the RTC did not err
in granting petitioner's demurrer to evidence.
(Generoso Sepe v. Heirs of Anastacia* Kilang, G.R. No.
199766, 10 Apr. 2019, J. Caguioa)
Q: Lolita and Jasminia were close friends. They
bought the subject lot in Bacoor, Cavite, and a
few years later, they constructed a residential
house on the subject lot. Although Lolita has no
receipts, she shared in the cost of the
construction of the house from her income in the
catering business and selling of various
products. Jasminia executed a Deed of Absolute
Sale (DAS) in favor of Lolita. Jasminia died.
Jasminia died. Lolita mortgaged the subject
property two months after to Elizabeth. Spouses
Palugod, Jasminia's parents, filed a complaint
for the Declaration of Nullity of the DAS and the
REM over the subject property arguing that
Jasminia was living with Lolita, a lesbian., who
took advantage of Jasminia, and caused the
latter to sign a DAS in her favour without
consideration. The RTC and the CA ruled that the
DAS is void for being simulated because Lolita
cannot present receipts to prove her payment of
the consideration. Are the RTC and the CA
correct?
 Evidence

A: NO. The Deed of Absolute Sale (DAS) is itself the

proof that the sale of the property is supported by G. PRESENTATION OF EVIDENCE
sufficient consideration. This is anchored on the (RULE 132)
disputable presumption of consideration inherent
in every contract under Article 1354 of the Civil
Code, which has been reiterated under Section 3,
1. EXAMINATION OF WITNESSES
Rule 131 of the Rules of Court. While petitioner
Lolita could not present receipts to show her
GR: The examination of witnesses presented in a
payments to the late Jasminia, her sworn testimony
trial or hearing shall be done in open court, and
which in certain portions were corroborated by
under oath or affirmation. Unless the witness is
pertinent documents, remains more credible than
incapacitated to speak, or the question calls for a
that of respondent Natividad. Indeed, the lack of
different mode of answer, the answers of the
receipts may be explained by the "close friendship"
witness shall be given orally. (Sec. 1, Rule 132, ROC,
between petitioner Lolita and Jasminia. (Mendoza v.
as amended)
Spouses Palugod, G.R. No. 220517, 20 June 2018, J.
Caguioa)
RATIO: Open court examination allows the court
the opportunity to observe the demeanor of the
Presumptions in Civil Actions and Proceedings
witness and allows the adverse party to cross-
examine the witness. (Riano, 2019)
In all civil actions and proceedings not otherwise
provided for by law or these Rules, a presumption
XPNs: The testimony of the witness may not be
imposes on the party against whom it is directed the
given in open court in the following cases:
burden of going forward with evidence to rebut or
meet the presumption.
1. In civil cases, by depositions pursuant to and
under the limitations of Rules 23 and 24
Inconsistent Presumptions
(Regalado, 2008);

If the presumptions are inconsistent, the

2. In criminal cases, by depositions or conditional
presumption that is founded upon weightier
examinations, pursuant to Secs. 12-15, Rule
considerations of policy shall apply. If
119, and Sec. 1, Rule 123, or by the records of
considerations of policy are of equal weight, neither
the preliminary investigation, under the
presumption applies. (Sec. 5, Rule 131, ROC, as
circumstances of Sec. 1(f) of Rule 115
amended)
(Regalado, 2008);

Presumption Against an Accused in Criminal

3.
Case
If a presumed fact that establishes 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
4.
fact follows from the basic fact follows from the
basic fact beyond reasonable doubt. (Sec. 6, Rule
131, ROC, as amended)
In criminal cases covered by the Rule on
Summary Procedure, the affidavits of the
parties shall constitute the direct testimonies of
the witnesses who executed the same (Riano,
2019);
In civil cases covered by the Rules on Summary
Procedure, the parties are merely required to
submit the affidavits of their witnesses and
other pieces of evidence on the factual issues,
together with their position papers, setting
forth the law and the facts relied upon (Riano,
2019);

673 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 Remedial Law

5. Under the Judicial Affidavit Rule, the judicial
affidavit shall take the place of direct
testimonies of witnesses (Sec. 2, Judicial
Affidavit Rule);
6. Matters regarding the admissibility and
evidentiary weight of electronic documents
may be proved by affidavits subject to cross by
the adverse party (Sec. 1, Rule 9, Rules on
Electronic Evidence);
7. If the witness is incapacitated to speak; and
8. The question calls for a different mode of
answer.
Waiver of the Right to have the Witness Sworn
The right may be waived. If a party admits proof to
be taken in a case without an oath, after the
testimony has been acted upon by the court, and
made the basis of a judgment, such party can no
longer object to the admissibility of the testimony.
He will be deemed to have waived the objection.
(People v. Bisda, G.R. No. 140895, 17 July 2003)
Matters to be Recorded During Trial
The entire proceedings of a trial or hearing,
including:

Oath vs. Affirmation 1. Questions propounded to a witness and his

answers thereto; and
OATH AFFIRMATION 2. The statements made by the judge or any of the
It is an outward pledge An affirmation is a parties, counsel, or witnesses with reference to
made under an substitute for an oath the case. (Sec. 2, Rule 132, ROC, as amended)
immediate sense of and is solemn and
responsibility to God or formal declaration NOTE: These shall be recorded by means of
a solemn appeal to the that the witness will shorthand or stenotype or by other means of
Supreme Being in tell the truth. recording found suitable by the court. (Ibid.)
attestation of the truth
of some statement. Exclusion and Separation of Witnesses

NOTE: The object of the The court, motu proprio or upon motion, shall order
rule is to affect the witnesses excluded so that they cannot hear the
conscience of the testimony of other witnesses. This rule does not
witness to compel him authorize the exclusion of:
to speak the truth, and
to lay him open to 1. A party who is a natural person;
punishment for perjury 2. A duly designated representative of a juridical
if he testifies falsely. entity which is not a party to the case;
3. A person whose presence is essential to the
NOTE: The option to take either an oath or presentation of the party’s cause; or
affirmation is given to the witness and not to the 4. A person authorized by a statute to be present.
court. (Riano, 2019)
The court may also cause witnesses to be kept
In order that one may be competent as a witness, it separate and to be prevented from conversing with
is not necessary that he has a definite knowledge of one another, directly through intermediaries, until
the difference between his duty to tell the truth after all shall have been examined. (Sec. 15, Rule 132, ROC,
being sworn and before, or that he is able to state it, as amended)
but it is necessary that he be conscious that there is
a difference. (People v. Bisda, G.R. No. 140895, 17 July XPNs:
2003) 1. An accused in a criminal case as it is his
constitutional right to be present at all stages of
the proceedings;

674
 Evidence

2. Parties to the litigation will generally not be
excluded, their presence usually being
necessary to a proper management of the case;
3. Party in interest though not a party to the
record and an agent of such party, if the
presence of such agent is necessary;
4. Officers and complaining witnesses are
customarily excepted from the rule unless the
circumstances warrant otherwise; and
otherwise provided by law (right against self-
incrimination);
NOTE: This refers to immunity statutes
wherein the witness is granted immunity from
criminal prosecution for offenses admitted in
his testimony, e.g., under Sec. 8, R.A. 1379, the
law providing for the forfeiture of unlawfully
acquired property; and under P.D. 749, in
prosecutions for bribery and graft. (Regalado,
2008)

5. Expert witnesses are not excluded until 5. Not to give an answer, which will tend to
production of evidence bearing upon the degrade his or her Reputation, unless it be to
question or subject as to which they have been the very fact at issue or to a fact from which the
called or unless liable to be influenced by the fact in issue would be presumed. But a witness
testimony of the other witnesses. (Herrera, must answer to the fact of his or her previous
1999) final conviction for an offense. (Sec. 3, Rule 132,
ROC, as amended)
Recantation of a Witness
Classifications of Immunity Statutes
Courts must not automatically exclude the original
statement based solely on the recantation. It should TRANSACTIONAL
USE IMMUNITY
determine which statement should be given IMMUNITY
credence through a comparison of the original and Prohibits the use of the Grants immunity to the
the new statements, applying the general rules of witness' compelled witness from
evidence. (PLDT v. Bolso, G.R. No. 159701, 17 Aug. testimony and its fruits prosecution for an
2007) in any manner in offense to which his
connection with the compelled testimony
Rights of a witness (P-D-E-A-R) criminal prosecution of relates.
the witness.
1. To be Protected from irrelevant, improper, or It is immunity from
insulting questions, and from harsh or insulting It is immunity from use prosecution by reason
demeanor; of any statement given or on the basis of the
by the witness. testimony.
NOTE: The trial court’s duty is to protect every By the grant of use- Transactional
witness against oppressive behavior of an and-derivative-use immunity is broader in
examiner and this is especially true where the immunity, a witness is the scope of its
witness is of advanced age. (Lee v. CA, G.R. No. only assured that his or protection. By its grant,
177861, 13 July 2010) her particular a witness can no longer
testimony and be prosecuted for any
2. Not to be Detained longer than the interests of evidence derived from offense whatsoever
justice require; it will not be used arising out of the act or
against him or her in transaction to which
3. Not to be Examined except only as to matters subsequent the testimony relates.
pertinent to the issue; prosecution.

4. Not to give an Answer which will tend to subject

him or her to a penalty for an offense unless

675 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 Remedial Law
Obligation of a Witness in Open Court
GR: A witness must answer questions, although his
or her answer may tend to establish a claim against
him or her. (Sec. 3, Rule 132, ROC, as amended)
Refusal to answer as a witness constitutes direct
contempt. (Sec. 1, Rule 71, ROC, as amended)
XPNs: A witness may validly refuse to answer on the
basis of the following:
1. Right against self-incrimination – If his
answer will tend to subject him to punishment
for an offense; or
NOTE: The constitutional assurance of the right
against self-incrimination is a prohibition
against the use of physical or moral compulsion
to extort communications from the accused. It
is simply a prohibition against legal process to
extract from the accused’s own lips, against his
will, admission of his guilt. (Ong v.
Sandiganbayan & Office of the Ombudsman, G.R.
No. 126858, 16 Sept. 2005) Hence, a purely
mechanical act required to be done or produced
from the accused is not covered by the right
against self-incrimination. (Beltran vs Samson,
G.R. No. 32025, 23 Sept. 1929)
The privilege against self-incrimination must be
invoked at the proper time, and the proper time
to invoke it is when a question calling for an
incriminating answer is propounded. Also, a
person who has been summoned to testify
cannot decline to appear, nor can he decline to
be sworn as a witness and no claim of privilege
can be made until a question calling for an
incriminating answer is asked. (Gonzales vs.
Secretary of Labor, G.R. No. L-6409, 05 Feb.
1954).
2. Right against self-degradation – If his answer
will have a direct tendency to degrade his
character.
XPNs to the XPN: A witness may not invoke the
right against self-degradation if:
676
1. Such question is directed to the very fact at
issue or to a fact from which the fact at issue
would be presumed; or
2. If it refers to his previous final conviction for an
offense. (Regalado, 2008)
NOTE: A witness invited by the Senate who refused
to testify and arrested for contempt, cannot invoke
the right against self-incrimination in a petition for
certiorari and prohibition. The said right may be
invoked only when the incriminating question is
being asked, since he has no way of knowing in
advance the nature or effect of the questions to be
asked of him. That this right may possibly be
violated or abused is no ground for denying the
Senate Committees their power of inquiry. (In Re:
Sabio, G.R. Nos. 174340, 174318 & 174177, 17 Oct.
2006)
Prohibition on Narrative Form Testimony
A witness’ testimony should be elicited by way of
questions and answers. (Secs. 1 and 2, Rule 132, ROC,
as amended) Thus, if the witness does a narration
instead of answering the question, the answer may
be stricken out upon objection. (Sec. 39, Rule 132,
ROC, as amended) The reason is that if a witness
testifies in narrative form, the adverse party is
deprived of the opportunity to object to the
testimony beforehand. (Riguera, 2020)
XPN; The court may allow a child witness to testify
in a narrative form. (Sec. 19, Rule on Examination of
Child Witness)
Refusal of a Witness to take the Witness Stand
GR: A witness may not refuse to take the witness
stand.
XPNs:
1. An accused in a criminal case; or
2. A party who is not an accused in a criminal case
is allowed not to take the witness stand – in
administrative cases/proceedings that partook
of the nature of a criminal proceeding or
analogous to a criminal proceeding. As long as
the suit is criminal in nature, the party thereto
can altogether decline to take the witness stand.
It is not the character of the suit involved but
 Evidence
the nature of the proceedings that controls.
(Rosete, et. al. v. Lim, et. al., G.R. No. 136051, 08
June 2006)
Right against Self-incrimination NOT available
under the Witness Protection Program
Any witness admitted into the program of the
Witness Protection, Security and Benefit Act cannot
refuse to testify or give evidence or produce books,
documents, records or writings necessary for the
prosecution of the offense or offenses for which he
has been admitted into the Program on the ground
of the constitutional right against self-incrimination
but he shall enjoy immunity from criminal
prosecution and cannot be subjected to any penalty
or forfeiture for any transaction, matter or thing
concerning his compelled testimony or books,
documents, records and writings produced. (Sec. 14,
R.A. No. 6981)
Persons Eligible to the Witness Protection,
Security and Benefit Program
Any person who has witnessed or has knowledge or
information on the commission of a crime and has
testified or is testifying or about to testify before any
judicial or quasi-judicial body, or before any
investigating authority may be admitted provided
that:
a. The offense in which his testimony will be used
is a grave felony as defined under the Revised
Penal Code, or its equivalent under special laws;
b. His testimony can be substantially
corroborated in its material points;
c. He or any member of his family within the
second civil degree of consanguinity or affinity
is subjected to threats to life or bodily injury or
there is a likelihood that he will be killed, forced,
intimidated, harassed or corrupted to prevent
him from testifying, or to testify falsely, or
evasively, because or on account of his
testimony; and
d. He is not a law enforcement officer, even if he
would be testifying against the other law
enforcement officers. In such a case, only the
immediate members of his family may avail
677
themselves of the protection provided for
under the Act. (Sec. 3, R.A. No. 6981)
Q: As counsel of an accused charged with
homicide, you are convinced that he can be
utilized as a state witness. What procedure will
you take? (2006 BAR)
A: As counsel of an accused charged with homicide,
I would ask the prosecutor to recommend that the
accused be made a state witness. It is the prosecutor
who must recommend and move for the acceptance
of the accused as a state witness. The accused may
also apply under the Witness Protection Program.
State Witness may be Liable for Contempt or
Criminal Prosecution
If he fails or refuses to testify or to continue to testify
without just cause when lawfully obliged to do so or
if he testifies falsely or evasively, he shall be liable
to prosecution for perjury. If a State witness fails or
refuses to testify, or testifies falsely or evasively, or
violates any condition accompanying such
immunity without just cause, as determined in a
hearing by the proper court, his immunity shall be
removed and he shall be subject to contempt or
criminal prosecution. Moreover, the enjoyment of
all rights and benefits under R.A. 6981 shall be
deemed terminated. The witness may, however,
purge himself of the contumacious acts by testifying
at any appropriate stage of the proceedings. (Sec. 13,
R.A. No. 6981)
Order and Purpose of each stage of the
examination of an Individual Witness
1. Direct examination – To elicit facts about the
client’s cause of action or defense. (Riano, 2019)
2. Cross examination
a. To bring out facts favorable to counsel’s
client not established by the direct
testimony; and
b. To enable counsel to impeach or to impair
the credibility of the witness. (Ibid.)
3. Re-direct examination
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
a. To afford opportunity to the witness to
explain or supplement his answers given
during the cross-examination; and
b. To rehabilitate a witness whose credibility
has been damaged. (Ibid.)
4. Re-cross examination
a. To overcome the proponent’s attempt to
rehabilitate the witness; and
b. To rebut damaging evidence brought out
during redirect examination.
Order of Examination
The order in which an individiual witness may be
examined iis as follows;
1. Direct examination by the proponent.;
2. Cross-examination by the opponent.;
3. Re-direct examination by the propnent.; and
4. Re-cross examination b the opponent. (Sec. 4,
Rule 132, ROC, as amended)
Direct Examination
The examination-in-chief of a witness by the party
presenting him or her on the facts relevant to the
issue. (Sec. 5, Rule 132, ROC, as amended)
In light of the Judicial Affidavit Rule, most direct
examinations are now in the form of a judicial
affidavit. (Riguera, 2020)
Q: Tony states on direct examination that he
once knew the facts being asked but he cannot
recall them now. When handed a written record
of the facts, he testifies that the facts are
correctly stated, but that he has never seen the
writing before. Is the writing admissible as past
recollection recorded? Explain. (1996 BAR)
A: NO. For the written record to be admissible as
past recollection recorded, it must have been
written or recorded by Tony or under his direction
at the time when the fact occurred, or immediately
thereafter, or at any other time when the fact was
fresh in his memory and he knew that the same was
correctly written or recorded. (Sec. 16, Rule 132,
ROC, as amended) But in this case, Tony has never
seen the writing before.
678
Cross Examination
Upon the termination of the direct examination, the
witness may be cross-examined by the adverse
party on any relevant matter, with sufficient
fullness and freedom to test his or her accuracy and
truthfulness and freedom from interest or bias, or
the reverse, and to elicit all important facts bearing
upon the issue. (Sec 6, Rule 132, ROC, as amended)
Scope of a Cross Examination
1. American rule - restricts cross-examination to
facts and circumstances which are connected
with the matters that have been stated in the
direct examination of the witness.
2. English rule – where a witness is called to
testify to a particular fact, he becomes a witness
for all purposes and may be fully cross-
examined upon all matters material to the issue,
the examination not being confined to the
matters inquired about in the direct
examination.
NOTE: Both rules are followed under Philippine
jurisdiction. In general, the English Rule is being
followed, which allows the cross-examination
to elicit all important facts bearing upon the
issue (Sec. 6, Rule 132, ROC, as amended) but this
does not mean that a party, by doing so, is
making the witness his own in accordance with
Sec. 5 of Rule 132. Conversely, the American
Rule is being followed as to the accused or a
hostile witness, who may only be cross-
examined on matters covered by direct
examination. (Herrera, 1999)
Doctrine of Incomplete Testimony
GR: When cross-examination cannot be done or
completed due to causes attributable to the party
who offered the witness, the incomplete testimony
is rendered incompetent and should be stricken
from the record. (Bachrach Motor Co., Inc. v. CIR, G.R.
No. L-26136, 30 Oct. 1978)
XPN: Where the prosecution witness was
extensively cross-examined on the material points
and thereafter failed to appear and cannot be
 Evidence
produced despite a warrant of his arrest, the
striking out is not warranted. (People v. Gorospe, G.R.
No. 51513, 15 May 1984)
Effect of Death or Absence of a Witness after the
Direct Examination by the Proponent
1. If the witness was not cross-examined because
of causes attributable to the cross-examining
party and the witness had always made himself
available for cross-examination, the direct
testimony of the witness shall remain on record
and cannot be stricken off because the cross-
examiner is deemed to have waived his right to
cross-examine. (Dela Paz v. IAC, G.R. No. 71537,
17 Sept. 1987)
2. If the witness was partially cross-examined but
died before the completion of his cross-
examination, his testimony on direct may be
stricken out but only with respect to the
testimony not covered by the cross-
examination. (People v. Señeris, G.R. No. L-48883,
06 Aug. 1980)
3. The absence of a witness is not sufficient to
warrant the striking out of his testimony for
failure to appear for further cross-examination
where the witness has already been sufficiently
cross-examined, and the matter on which cross-
examination is sought is not in controversy.
(Ibid.)
GR: The party who offered the testimony of a
witness is bound by such testimony.
XPNs:
1. In the case of a hostile witness;
2. Where the witness is the adverse party or the
representative of a juridical person which is the
adverse party; and
3. When the witness is not voluntarily offered but
is required by law to be presented by the
proponent, as in the case of subscribing
witnesses to a will. (Regalado, 2008)
Re-Direct Examination
After the cross-examination of the witness has been
concluded, he or she may be re-examined by the
679
party calling him or her, to explain or supplement
his or he answers given during the cross-
examination. (Sec. 7, Rule 132, ROC, as amended)
Q: On re-direct examination, may questions on
matters not dealt with during the cross-
examination be allowed?
A: YES. Questions on matters not dealt with during
the cross-examination, may be allowed by the court
in its discretion.
Re-Cross Examination
Upon the conclusion of the re-direct examination,
the adverse party may re-cross examine the witness
on matters stated in his or her re-direct
examination, and also on such other matters as may
be allowed by the court in its discretion. (Sec. 8, Rule
132, ROC, as amended)
Recalling the Witness
GR: After the examination of a witness by both sides
has been concluded, the witness cannot be recalled
without leave of court. Recalling a witness is a
matter of judicial discretion and it shall be guided by
the interests of justice. (Sec. 9, Rule 132, ROC, as
amended)
XPNs:
1. The examination has not been concluded; or
2. If the recall of the witness was expressly
reserved by a party with the approval of the
court. In these two cases the recall of a witness
is a matter of right. (Regalado, 2008)
NOTE: Something more than the bare assertion of
the need to propound additional questions is
essential before the court's discretion may
rightfully be exercised to grant or deny recall. There
must be a satisfactory showing of some concrete,
substantial ground for the recall. For instance, that
particularly identified material points were not
covered in the cross-examination, or that
particularly described vital documents were not
presented to the witness whose recall is prayed for,
or that the cross-examination was conducted in so
inept a manner as to result in a virtual absence
thereof. Absent such particulars, to repeat, there
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
would be no foundation for a trial court to authorize
the recall of any witness. (People v. Rivera, G.R. No.
98376, 16 Aug. 1991)
LEADING AND MISLEADING QUESTIONS
Leading question
It is one which suggests to the witness the answer
which the examining party desires. A leading
question is generally not allowed. (Sec. 10, Rule 132,
ROC, as amended)
The test whether a question is leading or not is the
suggestiveness of the conduct.
When a leading question is allowed (C-U-P-D-A-
J)
A leading question is allowed:
1. On Cross-examination;
2. Of an Unwilling witness or hostile witness;
3. On Preliminary matters;
4. 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;
NOTE: A witness may be considered as
unwilling or hostile only if so declared by the
court upon adequate showing of his or her
adverse interest, unjustified reluctance to
testify or his or her having misled the party into
calling him or her to the witness stand. (Sec. 13,
Rule 132, ROC, as amended)
5. Of a witness who is an Adverse party or an
officer, director, or managing agent of a public
or private corporation or of a partnership or
association which is an adverse party; (Sec. 10,
Rule 132, ROC, as amended);
6. A child of tender years may be asked leading
questions; (Sec. 10(c), Rule on Examination of a
Child Witness, A.M. No. 004-07-SC)
7. In all stages of examination of a child if the same
will further the interests of justice. (Sec. 20, Rule
680
on Examination of a Child Witness, A.M. No. 004-
07-SC)
Misleading Question
A misleading question is one which assumes as true
a fact not yet testified to by the witness, or contrary
to that which he or she has previously stated. It is
NOT allowed. (Sec. 10, Rule 132, ROC, as amended)
Impeachment of witness
It is a technique employed usually as part of cross-
examination to discredit a witness by attacking his
credibility. (Riano, 2019)
Ways of Impeaching an Adverse Party’s Witness
1. By contradictory evidence;
2. By evidence that his or her general reputation
for truth, honesty or integrity is bad; or
3. By evidence that he or she has made at other
times statements inconsistent with his or her
present testimony. (Sec. 11, Rule 132, ROC, as
amended)
NOTE: An adverse party’s witness may not be
impeached by evidence of particular wrongful
acts, except that it may be shown by the
examination of the witness, or record of the
judgment, that he or she has been convicted of
an offense. (Ibid.)
The other modes of impeaching a witness are:
1. By involving him during cross-examination in
contradiction;
2. By showing the impossibility or improbability
of his testimony;
3. By proving action or conduct of the witness
inconsistent with his testimony; and
4. By showing bias, interest or hostile feeling
against the adverse party. (Herrera, 1999)
Impeachment by Evidence of Conviction of
Crime
GR: For the purpose of impeaching a witness,
evidence that he or she has been convicted by final
judgment of a crime shall be admitted if:
 Evidence
1. The crime was punishable by a penalty in excess
of one (1) year; or
2. The crime involved moral turpitude, regardless
of the penalty.
XPN: Evidence of a conviction is not admissible if
the conviction has been the subject of an amnesty or
annulment of the conviction. (Sec. 12, Rule 132, ROC,
as amended)
Impeachment of a Witness by Evidence of
Particular Wrongful Acts
GR: A witness may NOT be impeached by evidence
of particular wrongful acts.
XPN: If it may be shown by the examination of the
witness, or the record of the judgment, that he or
she has been convicted of an offense. (Sec. 11, Rule
132, ROC, as amended)
Impeachment by a Party of his of his or her Own
Witness
GR: The party presenting the witness is not allowed
to impeach the credibility of such witness.
XPN: The witness is an:
1. Unwilling or hostile;
NOTE: A witness may be considered as
unwilling or hostile only if so declared by the
court upon showing adequate showing of his or
adverse interest, unjustified reluctance to
testify, or his or her having misled the party into
calling him or her to the witness stand.
2. Adverse party; or
3. Officer, director, or managing agent of a public
or private corporation or of a partnership or
association which is an adverse party. (Sec. 13,
Rule 132, ROC, as amended)
NOTE: In these instances, such witnesses may be
impeached by the party presenting him or her in all
respects as if he had been called by the adverse
party, except by evidence of his or her bad
character. (Ibid.)
681
Impeachment of the Adverse Party as a Witness
That the witness is the adverse party does not
necessarily mean that the calling party will not be
bound by the former’s testimony. The fact remains
that it was at his instance that his adversary was put
on the witness stand. He is not bound only in the
sense that he may contradict him by introducing
other evidence to prove a statement of facts
contrary to what the witness testifies. (Gaw v. Chua,
G.R. No. 160855, 16 Apr. 2008)
Unlike an ordinary witness, the calling party may
impeach an adverse witness in all respects as if he
had been called by the adverse party, except by
evidence of his bad character. Under a rule
permitting the impeachment of an adverse witness,
although the calling party does not vouch for the
witness’ veracity, he is nonetheless bound by his
testimony if it is not contradicted or remains
unrebutted. (Ibid.)
How the Witness is Impeached by Evidence of
Inconsistent Statements (Laying the Predicate)
It is the duty of a party trying to impugn the
testimony of a witness by means of prior or
subsequent inconsistent statements, whether oral
or in writing, to give the witness a chance to
reconcile his conflicting declarations, such that it is
only when no reasonable explanation is given by
him that he should be deemed impeached. (People v.
Sambahon, G.R. No. 182789, 03 Aug. 2010)
Laying the Predicate in Impeaching a Witness by
Evidence of Prior Inconsistent Statements
1. The prior inconsistent statements must be
related to him or her, with the circumstances of
the times and places and the persons present;
2. The witness must be asked whether he or she
made such statements, and if so, be allowed to
explain them; and
3. If the statements be in writing it must be shown
to the witness before any question is put to him
or her concerning them. (Sec. 14, Rule 132, ROC,
as amended) (1996 BAR)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law

NOTE: Contradicting testimony given subsequently PRIOR

CONTRADICTORY
does not necessarily discredit the previous INCONSISTENT
EVIDENCE
testimony if the contradiction is satisfactorily STATEMENTS
explained. There is no rule which states that a Refer to statements,
Refers to other
previous testimony is presumed to be false merely oral or documentary,
testimony of the same
because a witness now says that the same is not made by the witness
witness, or other
true. A testimony solemnly given in court should not sought to be
evidence presented by
be lightly set aside. Before this can be done both the impeached on
him in the same case,
previous testimony and the subsequent ne should occasions other than
but not the testimony
be carefully scrutinized – in other words, all the the trial in which he is
of another witness.
expedients devised by man to determine the testifying.
credibility of witnesses should be utilized to
determine which of the two contradicting Evidence of the Good Character of a Witness
testimonies represents the truth. (OCA v. Morante,
A.M. No. P-02-1555, 16 Apr. 2004) GR: Evidence of the good character of a witness is
not admissible for the purpose of proving action in
As between statements made during the conformity therewith on a particular occasion. (Sec.
preliminary investigation of the case and the 54, Rule 130, ROC, as amended)
testimony of a witness in open court, the latter
deserves more credence. Preliminary investigations XPNs:
are commonly fairly summary or truncated in 1. In Criminal cases:
nature, being designed simply for the
determination, not of guilt beyond reasonable a. The character of the offended party may be
doubt, but of probable cause prior to the filing of an proved if it tends to establish in any
information in court. (People v. Buduhan, G.R. No. reasonable degree the probability or
178196, 06 Aug. 2008) improbability of the offense charged.

Inapplicability of the Rule
If the prior inconsistent statement appears in a
deposition of the adverse party, and not a mere
witness, that adverse party who testifies may be
impeached without laying the predicate, as such
prior statements are in the nature of admissions of
said adverse party. (Regalado, 2008)
b. The accused may prove his or her good
moral character, pertinent to the moral trait
involved in the offense charged. However,
the prosecution may not prove his or her
bad moral character unless on rebuttal.
(Sec. 54, Rule 130, ROC, as amended)
2. In Civil cases:

The reasons for laying the predicate are:
1. To avoid unfair surprise to the adversary;
2. To save time, as an admission by the witness
may make the extrinsic proof necessary; and
3. To give the witness, in fairness to him, a chance
to explain the discrepancy. (Herrera, 1999)
Evidence of the moral character of a party in a
civil case is admissible only when pertinent to
the issue of character involved in the case. (Sec.
54, Rule 130, ROC, as amended)
3. In Criminal and Civil cases
Evidence of the good moral character of a
witness is not admissible until such character
has been impeached. (Sec. 54, Rule 130, ROC, as
amended)

682
 Evidence

NOTE: in all cases in which evidence of character or immediately correctly stated

a trait of character of a person is admissible, proof thereafter; or the transaction
may be made by testimony as to reputation or by when made.
testimony in the form of an opinion. b. At any other
time when
In cases in which character or a trait of character of the fact was
a person is an essential element of a charge, claim or fresh in his
defense, proof may also be made of specific memory and
instances of that person’s conduct. (Sec. 54, Rule 130, he knew that
ROC, as amended) the same was
correctly
When the Witness may Refer to Memorandum recorded.
Entitled to greater Entitled to lesser
A witness may be allowed to refresh his or her weight. weight.
memory respecting a fact by anything written or Evidence is the writing
Evidence is the
recorded by himself or herself, or under his or her or record (the
testimony.
direction, at the time when the fact occurred, or memorandum).
immediately thereafter, or at any other time when Rule of evidence
the fact was fresh in his or her memory and he or affected is competency Rule of evidence
she knew that the same was correctly written or of witness, affected is the best
recorded. (Sec. 16, Rule 132, ROC, as amended) examination of witness evidence rule.
(laying the predicate).
NOTE: The writing or record must be produced and The witness simply
may be inspected by the adverse party, who may, if testifies that he knows
he or she chooses, cross-examine the witness upon that the memorandum Witness must swear
it and may read it in evidence. (Ibid.) is correctly written by that the writing
him or under his correctly states the
NOTE: A witness may also testify from such a direction. There is no transaction. (Regalado,
writing or record, though he or she retains no need to swear that the 2008)
recollection of the particular facts, if he or she is able writing correctly states
to swear that the writing or recording correctly the transaction.
stated the transaction when made. Such evidence
must be received with caution. (Ibid.) Right of the adverse party when a writing is
shown to a witness
PRESENT PAST RECOLLECTION
RECOLLECTION RECORDED Whenever a writing or record is shown to a witness,
REVIVED it must be produced and may be inspected by the
Applies if the witness Applies where the adverse party, who may, if he or she chooses, cross-
remembers the facts witness does not recall examine the witness upon it and may read it in
regarding his entries. the facts involved. evidence. (Sec. 18, Rule 132, ROC, as amended)
Requisites: Requisites:
1. Memorandum has 1. Witness retains no
been written by recollection of the
him or under his particular facts;
direction; and and

2. Written by him: 2. But he is able to

a. When the fact swear that the
occurred or record or writing

683 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 Remedial Law
RULE ON EXAMINATION OF CHILD WITNESS
(A.M. No. 004-07-SC)
The rule shall govern the examination of child
witnesses in all criminal and non-criminal
proceedings of children who are: (V-A-W)
1. Victims;
2. Accused; and
3. Witnesses to a crime.
Child witness
1. Any person who at the time of giving testimony
is below the age of 18 years old; or
2. A person over 18 years of age, if he/she is
found by the court as unable to fully take care
of himself or protect himself from abuse,
neglect, cruelty, exploitation or discrimination
because of physical or mental disability or
condition. (Sec. 4(a), A.M. No. 004-07-SC)
Presumption of Competency
GR: Every child is presumed qualified to be a
witness. The burden of proof to rebut such
presumption lies in the party challenging his
competence.
XPN: When the court finds that substantial doubt
exists regarding the ability of the child to perceive,
remember, communicate, distinguish from
falsehood, or appreciate the duty to tell the truth in
court, the judge shall conduct a competency
examination of a child. (Sec. 6, A.M. No. 004-07-SC)
Examination of a Child Witness
The examination of a child witness presented in a
hearing or any proceeding shall be done in open
court. Unless the witness is incapacitated to speak,
or the question calls for a different mode of answer,
the answers of the witness shall be given orally. (Sec.
8, A.M. No. 004-07-SC)
Videotaped Deposition
The prosecutor, counsel, or guardian ad litem may
apply for an order that a deposition be taken of the
684
testimony of the child and that it be recorded and
preserved on videotape. If the court finds that the
child will not be able to testify in open court at trial,
it shall issue an order that the deposition of the child
be taken and preserved by videotape. (Sec. 27, A.M.
No. 004-07-SC)
Live-link TV Testimony
The court may order by an application may be made
by the prosecutor, counsel or guardian ad litem for
the testimony of the child to be taken in a room
outside the courtroom and be televised to the
courtroom by live-link television, if there is a
likelihood that the child would suffer trauma from
testifying in the presence of the accused, his counsel
or the prosecutor as the case may be. (Sec. 25, A.M.
No. 004-07-SC; Riano, 2019)
Upon an application made by the prosecutor,
counsel or guardian ad litem, the court may order
for the testimony of the child to be taken in a room
outside the courtroom and be televised to the
courtroom by live-link television, if there is a
likelihood that the child would suffer trauma from
testifying in the presence of the accused, his counsel
or the prosecutor as the case may be. (Sec. 25, A.M.
No. 004-07-SC)
The kind of trauma contemplated is trauma that
would impair the completeness or truthfulness of
the testimony of the child.
Hearsay Exception in Child Abuse Cases
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 in any criminal or non-criminal
proceeding. In ruling on the admissibility of such
hearsay statement, the court shall consider the time,
content and circumstances thereof which provide
sufficient indicia of reliability. It shall consider the
following factors:
a. Whether there is a motive to lie;
b. The general character of the declarant child;
c. Whether more than one person heard the
statement;
d. Whether the statement was spontaneous;
 Evidence
e. The timing of the statement and the
relationship between the declarant child and
witness;
f. Cross-examination could not show the lack of
knowledge of the declarant child;
g. The possibility of faulty recollection of the
declarant child is remote; and
h. 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, A.M. No.
004-07-SC)
Sexual Abuse Shield Rule
GR: The following evidence is not admissible in any
criminal proceeding involving alleged child sexual
abuse:
a. Evidence offered to prove that the alleged
victim engaged in other sexual behavior; and
b. Evidence offered to prove the sexual
predisposition of the alleged victim.
XPN: Evidence of specific instances of sexual
behavior by the alleged victim to prove that a
person other than the accused was the source of
semen, injury, or other physical evidence shall be
admissible. (Sec. 30, A.M. No. 004-07-SC)
Protective Order
Any videotape or audiotape of a child that is part of
the court record shall be under a protective order
that provides as follows:
1. Tapes may be viewed only by parties, their
counsel, their expert witness, and the guardian
ad litem.
2. No tape, or any portion thereof, shall be
divulged by any member of the court staff, the
prosecuting attorney, the defense counsel, the
guardian ad litem, agents of investigating law
enforcement agencies, and other persons as
determined by the court to any other person,
except as necessary for the trial.
3. No person shall be granted access to the tape,
its transcription or any part thereof unless he
685
signs a written affirmation that he has received
and read a copy of the protective order; that he
submits to the jurisdiction of the court with
respect to the protective order; and that in case
of violation thereof, he will be subject to the
contempt power of the court.
4. Each of the tape cassettes and transcripts
thereof made available to the parties, their
counsel, and respective agents shall bear the
following cautionary notice:
"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 thirty (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, A.M. No. 004-07-SC)
Q: AA, a twelve-year-old girl, while walking
alone met BB, a teenage boy who befriended her.
Later, BB brought AA to a nearby shanty where
he raped her. The Information for rape filed
against BB states: “On or about October 30,
2015, in the City of S.P. and within the
jurisdiction of this Honorable Court, the
accused, a minor, 15 years old with lewd design
and by means of force, violence, and
intimidation, did then and there, willfully,
unlawfully and feloniously had sexual
intercourse with AA, a minor, 12 years old,
against the latter’s will and consent.”
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law

At the trial, the prosecutor called to the witness
stand AA as his first witness and manifested that
he be allowed to ask leading questions in
conducting his direct examination pursuant to
the Rule on the Examination of a Child Witness.
BB’s counsel objected on the ground that the
prosecutor has not conducted a competency
examination on the witness, a requirement
before the rule cited can be applied in the case.
Is BB’s counsel correct? (2015 BAR)
A: NO. BB’s counsel is not correct. Every child is
presumed qualified to be a witness. (Sec. 6, A.M. No.
004-07-SC) To rebut the presumption of
competence enjoyed by a child, the burden of proof
lies on the party challenging his competence. Here,
AA, a 12-year old child witness who is presumed to
be competent, may be asked leading questions by
the prosecutor in conducting his direct examination
pursuant to the RECW and the Revised Rules on
Criminal Procedure. (People v. Santos, G.R. No.
171452, 17 Oct. 2008) In order to obviate the
counsel’s argument on the competency of AA as
prosecution witness, the judge motu proprio
conducted his voir dire examination of AA.
2. AUTHENTICATION AND PROOF OF
DOCUMENTS
is not included in this enumeration. Such
recording does not make the private writing
itself a public document so as to make it
admissible without authentication, e.g., birth
certificate recorded in the NSO is a public
record, but it is still a private document.
(Peralta & Peralta, 2020)
3. The writing is a notarial document
acknowledged, proved or certified (Sec. 30, Rule
132, ROC, as amended);
4. The genuineness and authenticity of an
actionable document have not been specifically
denied under oath by an adverse party (Sec 8,
Rule 8, ROC, as amended);
5. When such genuineness and due execution are
immaterial to the issue;
6. The genuineness and authenticity of the
document have been admitted (Sec 4, Rule 129,
ROC, as amended); and
7. The document is not being offered as genuine.
(Sec. 20, Rule 132, ROC, as amended)
Classes of Documents

Meaning of Authentication For purposes of their presentation in evidence,

documents are either public or private. (Sec. 19, Rule
It is the process of proving the due execution and 132, ROC, as amended)
genuineness of a document.
Public document vs. Private document
NOTE: Not only objects but also documents
introduced in evidence need to be authenticated. It PUBLIC DOCUMENT PRIVATE DOCUMENT
is a preliminary step in showing the admissibility of What comprises it
an evidence. (Riano, 2019) 1. The written official
acts, or records of
When Authentication is NOT Required the official acts of
the sovereign
1. The writing is an ancient document (Sec. 21, authority, official
All other writings are
Rule 132, ROC, as amended); bodies and
private. (Sec. 19, Rule
tribunals, and
132, ROC, as amended)
2. The writing is a public document or record (Sec. public officers,
19, Rule 132, ROC, as amended); whether of the
Philippines, or of a
NOTE: A private document required by law to foreign country;
be recorded, while it is transformed into a
public document by the “public record” thereof,

686
 Evidence

2. Documents NOTE: Church registries of births, marriages and

acknowledged deaths are no longer public writings nor are they
before a notary kept by duly authorized public officials. They are
public except last private writings and their authenticity must
wills and therefore be proved, as are all other private writings
testaments; in accordance with the rules. (Llemos v. Llemos, G.R.
No. 150162, 26 Jan. 2007)
3. Documents that
are considered How to Prove the Due Execution and
public documents Authenticity of a Private Document
under treaties and
conventions which Before any private document offered as authentic is
are in force received in evidence, its due execution and
between the authenticity must be proved by any of the following
Philippines and the means:
country of source;
and 1. By anyone who saw the document executed or
written;
4. Public records, 2. By evidence of the genuineness of the signature
kept in the or handwriting of the maker; or
Philippines, of 3. By other evidence showing its due execution
private documents and authenticity,
required by law to
be entered therein. Any other private document need only be identified
(Sec. 19, Rule 132, as that which it is claimed to be. (Sec. 20, Rule 132,
ROC, as amended) ROC, as amended)
As to authenticity and admissibility as
evidence Related jurisprudence
Admissible as evidence Before any private
without need of further document offered as In addition to the modes of authenticating a private
proof of its authentic is received in document under Sec. 20, Rule 132 of the ROC, as
genuineness and due evidence, its due amended, American jurisprudence also recognizes
execution execution and the doctrine of self-authentication – where the
authenticity must first facts in writing could only have been known by the
be proved. writer; and the rule of authentication by the adverse
As to persons bound party – where the reply of the adverse party refers
Evidence even against Binds only the parties to and affirms the sending to him and his receipt of
third persons, of the who executed them or the letter in question, a copy of which the proponent
fact which gave rise to their privies, insofar as is offering as evidence. (Regalado, 2008)
its due execution and due execution and date
to the date of the latter of the document are When Evidence of Authenticity of a Private
concerned Writing is NOT Required
As to validity of certain transactions
Certain transactions 1. When the private document is more than thirty
must be contained in a (30) years old (ancient document/authentic
public document; document rule) (Sec. 21, Rule 132, ROC, as
otherwise, they will amended);
not be given any
validity.

687 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 Remedial Law
2. When the genuineness and authenticity of an
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; and
4. When the document is not offered as authentic
as implied. (Patula v. People, G.R. No. 164457, 11
Apr. 2012)
Requisites of Ancient Document/Authentic
Document Rule (2011 BAR)
1. That the private document be more than 30
years old;
2. That it be produced from a custody in which it
would naturally be found if genuine; and
NOTE: Ancient documents are considered from
proper custody if they come from a place from
which they might reasonably be expected to be
found. Custody is proper if it is proved to have
had a legitimate origin or if the circumstances
of the particular case are such as to render such
an origin probable. If a document is found
where it would not properly and natural be, its
absence from the proper place must be
satisfactorily accounted for.
The requirement of proper custody was met
when the ancient document in question was
presented in court by the proper custodian
thereof who is an heir or the person who would
naturally keep it. (Cerado-Siga v. Cerado, Jr., G.R.
No. 185374, 11 Mar. 2015)
3. That it is unblemished by any alteration or
circumstances of suspicion. (Sec. 21, Rule 132,
ROC, as amended)
NOTE: This rule applies only if there are no other
witnesses to determine authenticity.
688
Genuineness of Handwriting
Handwriting may be proved by:
1. A witness who actually saw the person writing
the instrument;
2. A person who is familiar or has acquired
knowledge of the handwriting of such person,
his opinion as to the handwriting being an
exception to the opinion rule;
3. A comparison by the court of the questioned
handwriting from the admitted genuine
specimens thereof; or
4. An expert witness. (Secs. 20 & 22, Rule 132; Sec.
52, Rule 130, ROC, as amended)
NOTE: The law makes no preference, much less
distinction among and between the different means
stated above in proving the handwriting of a person.
Courts are not bound to give probative value or
evidentiary value to the opinions of handwriting
experts, as resort to handwriting experts is not
mandatory. (Heirs of Salud v. Rural Bank of Salinas,
G.R. No. 202756, 06 Apr. 2016)
Comparison as a Mode of Authentication
Use of comparison technique to establish
authenticity actually involves two (2) levels of
authentication, i.e., authentication of the specimen
and authentication of the offered exhibit. In order to
establish the requisite connective relevance, the
item or document in question must be compared
with an item the authenticity of which has been
demonstrated. Authenticity of the specimen, then, is
a logical prerequisite to the procedure. (Peralta &
Peralta, 2020)
The testimony of a handwriting expert is not
indispensable to the examination or the comparison
of handwritings in cases of forgery. The judge must
conduct an examination of the questioned signature
in order to arrive at a reasonable conclusion as to its
authenticity. The opinions of handwriting experts
are not binding upon courts, especially when the
question involved is mere handwriting similarity or
dissimilarity, which can be determined by a visual
comparison of specimens of the questioned
signatures with those of the currently existing ones.
 Evidence
(Pontaoe v. Pontaoe, G.R. Nos. 159585 & 165318, 22
Apr. 2008)
It is also hornbook doctrine that the opinions of
handwriting experts, even those from the NBI and
the PC, are not binding upon courts. This principle
holds true especially when the question involved is
mere handwriting similarity or dissimilarity, which
can be determined by a visual comparison of
specimens of the questioned signatures with those
of the currently existing ones. (Multi-International
Business Data System, Inc. v. Martinez, G.R. No.
175378, 11 Nov. 2015)
Handwriting experts are usually helpful in the
examination of forged documents because of the
technical procedure involved in analyzing them. But
resort to these experts is not mandatory or
indispensable to the examination or the comparison
of handwriting. A finding of forgery does not depend
entirely on the testimonies of handwriting experts,
because the judge must conduct an independent
examination of the questioned signature in order to
arrive at a reasonable conclusion as to its
authenticity. (Ibid.)
Public Documents as Evidence
When a public officer in the performance of his or
her duty makes an entry in the public record, the
document of such entry is deemed prima facie
evidence of the facts stated in the entry. (Sec. 24, Rule
132, ROC, as amended) Its probative value may
either be substantiated or nullified by other
competent evidence.
NOTE: Public or official records of entries made in
excess of official duty are not admissible in
evidence. As to matters which the officer is not
bound to record, his certificate, being extrajudicial,
is merely the statement of a private person.
Related Jurisprudence
The CENRO and Regional Technical Director, FMS-
DENR, certifications do not fall within the class of
public documents contemplated in the first
sentence of Section 23 of Rule 132. The
certifications do not reflect entries in public records
made in the performance of a duty by a public
689
officer, such as entries made by the Civil Registrar in
the books of registries, or by a ship captain in the
ship’s logbook. The certifications are conclusions
unsupported by adequate proof, and thus have no
probative value. Certainly, the certifications cannot
be considered prima facie evidence of the facts
stated therein. (Republic v. T.A.N. Properties Inc., G.R.
No. 154953, 26 June 2008)
Q: G&S Transportation submits that the USAID
Certification being a private document cannot
be admitted as evidence since it is inadmissible
and was not properly authenticated nor
identified in court by the signatory thereof. The
opposing party contends that the USAID
Certification is a public document and was
properly admitted in evidence, because Jose
Marcial’s widow, witness Ruby Bueno Ochoa,
was able to competently testify as to the
authenticity and due execution of the said
Certification and that the signatory Jonas Cruz
personally issued and handed the same to her.
The court ruled that the USAID Certification is a
public document. Is the court’s ruling correct?
A: YES. The USAID Certification is a public
document, hence, does not require authentication.
Sec. 19 (a), Rule 132 of the Rules of Court provides
that public documents are the 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.
Here, USAID is an official government agency of a
foreign country, the United States. The authenticity
and due execution of said Certification are already
presumed. The USAID Certification could very well
be used as basis for the award for loss of income to
the heirs. (Heirs of Jose Marcial Ochoa v. G & S
Transport Corporation, G.R. No. 170071, 16 July
2012)
Q: Sharwin purchased a townhouse from Riel. A
notarized Deed of Absolute Sale was executed by
Riel in favor of Sharwin. The same was also
notarized and the purchase price was paid in
full. However, it was later found that all of the
documents that were in Sharwin's possession
were falsified. A case was then filed by Sharwin
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
against Riel which was dismissed by the RTC for
lack of merit. On appeal, the CA held that since a
notarized document enjoys the presumption of
regularity, and only clear, strong, and
convincing evidence can rebut such
presumption, the evidence presented by Riel
was not enough to refute the notarized Deed of
Absolute Sale. The Motion for Reconsideration
filed by Riel was also denied by the CA. Thus, a
petition was filed before the SC questioning the
CA's decision.
Is the CA correct in upholding the sale on the
basis of the presumption of regularity of the
supposedly notarized Deed of Absolute Sale?
A: NO. In Suntay v. Court of Appeals, the Court held
though the notarization of the deed of sale in
question vests in its favor the presumption of
regularity, it is not the intention nor the function of
the notary public to validate and make binding an
instrument never, in the first place, intended to have
any binding legal effect upon the parties thereto.
The intention of the parties still and always is the
primary consideration in determining the true
nature of a contract.
Notarization per se is not a guarantee of the validity
of the contents of a document. The presumption of
regularity of notarized documents cannot be made
to apply and may be overthrown by highly
questionable circumstances, as may be pointed out
by the trial court. (Dizon v. Matti, Jr. G.R. No. 215614,
27 Mar. 2019, J. Caguioa)
Proof of Official Record
Official records are written official acts, or records
of the official acts of the sovereign authority, official
bodies and tribunals, and public officers, e.g., a
written foreign law. Official records may be
evidenced by:
1. If it is within the Philippines:
a. An official publication thereof; or
b. By a copy attested by the officer having the
legal custody of the record, or by his
deputy. (Sec. 24, Rule 132, ROC, as amended)
690
2. If the office in which the record is kept is in a
foreign country,
a. An official publication thereof; or
b. By a copy attested by the officer having the
legal custody of the record, or by his deputy
AND a certificate that such officer has the
custody. (Apostille Certificate or its
equivalent) (Sec. 24, Rule 132, ROC, as
amended)
NOTE: If the office in which the record is
kept is in a foreign country, which is a
contracting party to a treaty or convention
to which the Philippines is also a party, or
considered a public document under such
treaty or convention pursuant to paragraph
(c) of Section 19, the certificate or its
equivalent shall be in the form prescribed
by such treaty or convention subject to
reciprocity granted to public documents
originating from the Philippines.
For documents originating from a foreign
country which is not a contracting party to
a treaty or convention, the certificate may
be made by a secretary of the embassy or
legation, consul general, consul, vice-
consul, or consular agent or by any officer
in the foreign service of the Philippines
stationed in the foreign country in which
the record is kept, and authenticated by the
seal of his or her office. (Sec. 24, Rule 132,
ROC, as amended)
A document that is accompanied by a
certificate or its equivalent may be
presented in evidence without further
proof, the certificate or its equivalent being
prima facie evidence of the due execution
and genuineness of the document involved.
The certificate shall not be required when
or convention between a foreign country
and the Philippines has abolished the
requirement or has exempted the
document itself from this formality.
NOTE: Upon failure to comply with the above-
mentioned requirements, courts will apply the
doctrine of processual presumption.
 Evidence
Q: Ellen Harper and her son, Jonathan Harper
filed a case for damages against Shangri-La
Hotel and Resort, Inc. for the death of Christian
Harper. To prove heirship of the plaintiffs-
appellees, they presented several documents
(Birth Certificates, Marriage Certificate, and
Certificate from the Oslo Probate Court) which
were all kept in Norway. The documents had
been authenticated by the Royal Norwegian
Ministry of Foreign Affairs and bore the official
seal of the Ministry and signature of one Tanja
Sorlie. The documents were also accompanied
by an Authentication by the Consul, Embassy of
the Republic of the Philippines in Stockholm,
Sweden to the effect that, Tanja Sorlie was duly
authorized to legalize official documents for the
Ministry. Shangri-La Hotel however, questioned
their filiation with the deceased assailing that
the documents presented were incompetent for
failing to comply with the requirement of
authentication. Is the contention correct?
A: NO. Although the documents were not attested
by the officer having the legal custody of the record
or by his deputy in the manner required in Section
25 of Rule 132, and said documents did not comply
with the requirement under Section 24 of Rule 132
to the effect that if the record was not kept in the
Philippines a certificate of the person having
custody must accompany the copy of the document
that was duly attested stating that such person had
custody of the documents, the deviation was not
enough reason to reject the utility of the documents
for the purposes they were intended to serve.
That rules of procedure may be mandatory in form
and application does not forbid a showing of
substantial compliance under justifiable
circumstances, because substantial compliance
does not equate to a disregard of basic rules. For
sure, substantial compliance and strict adherence
are not always incompatible and do not always clash
in discord. (Makati Shangri-La Hotel and Resort, Inc.
v. Harper, G.R. No. 189998, 29 Aug. 2012)
Special power of attorney executed abroad
(2011 BAR)
A special power of attorney (SPA) executed before a
city judge-public notary in a foreign country,
691
without the certification or authentication required
under Section 25, Rule 132 of the Rules of Court, is
not admissible in evidence in Philippine courts. The
failure to have the SPA authenticated is a question
of jurisdiction. (Riano, 2019 citing Lopez v. CA, G.R.
No. 77008, 29 Dec. 1987)
Irremovability of Public Records
GR: Any public record must not be removed from
the office in which it is kept.
XPN: Upon order of a court where the inspection of
the record is essential to the just determination of a
pending case. (Sec. 26, Rule 132, ROC, as amended)
REASON: They have a common repository, from
where they ought not to be removed. Besides, these
records by being daily removed would be in great
danger of being lost.
RATIONALE: They have a common repository, from
where they ought not to be removed. Besides, these
records, by being daily removed, would be in great
danger of being lost.
Attestation of a Copy
The attestation must state, in substance:
1. That the copy is a correct copy of the original, or
a specific part thereof, as the case may be; and
2. It must be under the official seal of the attesting
officer, if there be any, or if he be the clerk of a
court having a seal, under the seal of such court.
(Sec. 25, Rule 132, ROC, as amended)
Proof of Public Record of a Private Document
1. By the original record; or
2. By a copy thereof, attested by the legal
custodian of the record, with an appropriate
certificate that such officer has the custody.
(Sec. 27, Rule 132, ROC, as amended)
Proof of Lack of Record
Proof of lack of record of a document consists of
written statement signed by an officer having
custody of an official record or by his deputy. The
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
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written statement must contain the following
matters:
1. There has been a diligent search of the record;
and
2. That despite the diligent search, no record of
entry of a specified tenor is found to exist in the
records of his office.
NOTE: The written statement must be accompanied
by a certificate that such officer has the custody of
official records. (Sec. 28, Rule 132, ROC, as amended)
The certification to be issued by the Local Civil
Registrar must categorically state that the
document does not exist in his or her office or the
particular entry could not be found in the register
despite diligent search. (Sevilla v. Cardenas, G.R. No.
167684, 31 July 2006)
Impeachment of a Judicial Record (2009 BAR)
Any judicial record may be impeached by: (W-C-F)
1. Want of jurisdiction in the court or judicial
officer;
2. Collusion between the parties (e.g., legal
separation, annulment cases); or
3. Fraud in the party offering the record, in
respect to the proceedings. (Sec. 29, Rule 132,
ROC, as amended)
NOTE: Fraud refers to extrinsic fraud, which is a
ground for annulment of judgment.
Q: Lino was charged with illegal possession of
firearm. During trial, the prosecution presented
in evidence a certification of the PNP Firearms
and Explosives Office attesting that the accused
had no license to carry any firearm. The
certifying officer, however, was not presented as
a witness. Is the certification of the PNP Firearm
and Explosives Office without the certifying
officer testifying on it admissible in evidence
against Lino? (2003 BAR)
A: YES. Section 28, Rule 130 provides that “a written
statement signed by an officer having the custody of
an official record or by his deputy that after diligent
search, no record or entry of a specified tenor is
692
found to exist in the records of his office,
accompanied by a certificate as above provided, is
admissible as evidence that the records of his office
contain no such record or entry.”
The records of the PNP Firearm and Explosives
Office are a public record. Hence, notwithstanding
that the certifying officer was not presented as a
witness for the prosecution, the certification he
made is admissible in evidence against Lino. (Sec.
28, Rule 130; Mallari v. Court of Appeals, G.R. No.
110569, 09 Dec. 1996)
Proof of Notarial Documents
Documents acknowledged before a notary public is
considered a public document and enjoy the
presumption of regularity. A notarized document is
entitled to full faith and credit upon its face.
The document 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, ROC, as amended)
Evidentiary Weight of a Notarial Document
A notarial document celebrated with all the legal
requisites under a notarial certificate is evidence of
a high character, and to overcome its recitals, it is
incumbent upon the party challenging it to prove his
claim with clear and convincing evidence.
Q: Etom, Jr. filed a case for illegal dismissal and
money claims against his employer Aroma
Lodging House. The Labor Arbiter and NLRC
found him to have been legally dismissed but
ordered the employer to pay punitive damages,
salary differential, holiday pay and 13th month
pay. CA reversed the ruling stating that for
having executed an earlier notarized affidavit
stating that he received wages above the
required minimum salary, Etom, Jr. could not
subsequently claim that he was underpaid by his
employer. Is the presumption of regularity of
notarized documents disputable?
A: YES. While a notarized document is presumed to
be regular, such presumption is not absolute and
 Evidence
may be overcome by clear and convincing evidence
to the contrary. The fact that a document is
notarized is not a guarantee of the validity of its
contents. Here, Etom, Jr. is an unlettered employee
who may not have understood the full import of his
statements in the affidavit. Notably, he, along with a
co-worker did not state the specific amount of what
they referred as salary above the minimum required
by law. The employer’s mere reliance on the
foregoing affidavit is misplaced because the
requirement of established jurisprudence is for the
employer to prove payment, and not merely deny
the employee’s accusation of nonpayment on the
basis of the latter’s own declaration. (Etom Jr. v.
Aroma Lodging House, G.R. No. 192955. 09 Nov.
2015)
Alterations in a Document
A party producing a document as genuine which has
been altered and appears to have been altered after
its execution must account for the alteration. He or
she may show that the alteration: (A-C-I-D)
1. Was made by Another, without his
concurrence;
2. Was made with the Consent of the parties
affected by it;
3. Was otherwise properly or innocently made;
or
4. Did not change the meaning or language of the
instrument.
NOTE: Failure to do at least one of the above will
make the document inadmissible in evidence. (Sec.
31, Rule 132, ROC, as amended)
Documentary Evidence in an Unofficial
Language
Documents written in an unofficial language shall
not be admitted as evidence unless accompanied
with a translation into English or Filipino. (Sec. 33,
Rule 132, ROC, as amended)
The requirement that documents written in an
unofficial language must be accompanied with a
translation in English or Filipino as a prerequisite
for its admission in evidence must be insisted upon
by the parties at the trial to enable the court, where
693
a translation has been impugned as incorrect, to
decide the issue. 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, 27 Dec. 2007)
3. OFFER AND OBJECTION
GR: The court shall consider only the evidence which
has been formally offered. The purpose for which the
evidence is offered must be specified. (Sec. 34, Rule
132, ROC, as amended) (2007 BAR)
XPNs:
1. Marked exhibits not formally offered may be
admitted provided it complies with the
following requisites:
a. Must be duly identified by testimony duly
recorded; and
b. Must have been incorporated in the records
of the case; (Ramos v. Dizon, G.R. No.
137247, 06 Aug. 2006)
2. Under the Rule on Summary Procedure, where
no full-blown trial is held in the interest of
speedy administration of justice;
3. In summary judgments under Rule 35 where
the judge based his decisions on the pleadings,
depositions, admissions, affidavits and
documents filed with the court;
4. Documents whose contents are taken judicial
notice of by the court;
5. Documents whose contents are judicially
admitted;
6. Object evidence which could not be formally
offered because they have disappeared or have
become lost after they have been marked,
identified and testified on and described in the
record and became the subject of cross-
examination of the witness who testified on
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
them during the trial; (Tabuena v. CA, G.R. No.
85423, 06 May 1991) or
7. Documents and affidavits used in deciding
quasi-judicial or administrative cases.
(Bantolino v. Coca-Cola Bottlers Inc., G.R. No.
153660, 10 June 2003)
Purposes of Offer of Evidence
1. To notify the party of possible objection, and for
the offeror to make necessary correction at the
trial level to meet the objection;
2. To allow the trial judge to rule properly; and
3. To lay basis for appeal so that the appellate
court can decide intelligently. (Regalado, 2008)
NOTE: A formal offer is necessary, since judges are
required to base their findings of fact and their
judgment solely and strictly upon the evidence
offered by the parties at the trial. (Aludos v. Suerte,
G.R. No. 165285, 18 June 2012)
To allow parties to attach any documents to their
pleadings and then expect the court to consider it as
evidence, even without formal offer and admission,
may draw unwarranted consequences. Opposing
parties will be deprived of their chance to examine
the document and to object to its admissibility. On
the other hand, the appellate court will have
difficulty reviewing the documents not previously
scrutinized by the court below. (Candido v. Court of
Appeals, G.R. No. 107493, 01 Feb. 1996)
NOTE: An offer of evidence is important because the
court shall consider no evidence which has not been
formally offered. (Riguera, 2020)
Reasons for Stating Purposes of Offer of
Evidence
1. For the court to determine whether that piece
of evidence should be admitted/considered or
not; and
2. For the adverse party to interpose the proper
objection.
NOTE: It is basic in the law of evidence that the
court shall consider evidence solely for the purpose
694
for which it was offered. (Ragudo v. Fabella Estate
Tenants Assoc. Inc., G.R. No. 146823, 09 Aug. 2005)
Identification of a Documentary Evidence vs.
Formal Offer as an Exhibit
IDENTIFICATION OF A
FORMAL OFFER AS
DOCUMENTARY
AN EXHIBIT
EVIDENCE
Done only when the
Done in the course of the
party rests its case.
trial and accompanied
(Dizon v. Court of Tax
by the marking of the
Appeals, G.R. No.
evidence as an exhibit.
140944, 30 Apr. 2008)
Q: Gizel filed a complaint for recovery of
possession and damages against Fara. In the
course of the trial, Gizel marked his evidence but
his counsel failed to file a formal offer of
evidence. Fara then presented in evidence tax
declarations in the name of his father to
establish that his father is a co-owner of the
property. The court ruled in favor of Fara, saying
that Gizel failed to prove sole ownership of the
property in the face of Fara’s evidence. Was the
court correct? Explain briefly. (2007 BAR)
A: YES. The court shall consider no evidence which
has not been formally offered. The trial court
rendered judgment considering only the evidence
offered by Fara. The offer is necessary because it is
the duty of the judge to rest his findings of fact and
his judgment only and strictly upon the evidence
offered by the parties at the trial. (People v. Pecardal,
G.R. No. 71381, 24 Nov. 1986)
Q: Aiza and Matet were charged with murder.
Upon application of the prosecution, Matet was
discharged from the Information to be utilized
as a State witness. The prosecutor presented
Matet as witness but forgot to state the purpose
of his testimony much less offer it in evidence.
Matet testified that she and Aiza conspired to
kill the victim but it was Aiza who actually shot
the victim.
The testimony of Matet was the only material
evidence establishing the guilt of Aiza. Matet
was thoroughly cross-examined by the defense
 Evidence

counsel. After the prosecution rested its case, documentary or object

the defense filed a motion for demurrer to evidence for marking
evidence based on the following grounds: and identification
during trial is not the
a. The testimony of Matet should be excluded offer contemplated in
because its purpose was not initially stated the rules. (Riano, 2019)
and it was not formally offered in evidence;
and NOTE: All evidence must be made orally. (Sec. 35,
b. Matet's testimony is not admissible against Rule 132, ROC, as amended)
Aiza pursuant to the rule on "res inter alios
acta." (2003 Bar) Stages in the Presentation of Documentary
Evidence
Rule on the motion for demurrer to evidence on
the above grounds.

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

2. The res inter alios acta rule does not apply

because Matet testified in open court and was
subjected to cross-examination.

When to Make an Offer

TESTIMONIAL DOCUMENTARY AND

EVIDENCE OBJECT EVIDENCE
The offer of the The offer of
testimony of a witness documentary and
in evidence must be object evidence shall
made at the time the be made after the
witness is called to presentation of a
testify. (Sec. 35, Rule party’s testimonial
132, ROC, as amended) evidence. (Sec. 35, Rule
(2009 BAR) 132, ROC, as amended)
The evidence is only
offered once, after all
Every time a new the testimonial Ways of Impeaching the Evidence of the
witness is called to evidence are offered
Proponent
testify, there must be and prior to the resting
an offer of evidence. of the case for a party.
1. By objection to offer of evidence (Sec. 36, Rule
132, ROC, as amended); or
NOTE: The 2. By motion to strike out answer. (Sec. 39, Rule
presentation of a
132, ROC, as amended)

695 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 Remedial Law
Purposes of Objections
1. To keep out inadmissible evidence that would
cause harm to a client’s cause;
2. To protect the record, i.e., to present the issue of
inadmissibility of the offered evidence in a way
that if the trial court rules erroneously, the
error can be relied upon as a ground for a future
appeal;
3. To protect a witness from being embarrassed
on the stand or from being harassed by the
adverse counsel;
4. To expose the adversary’s unfair tactics like his
consistently asking obviously leading
questions;
5. To give the 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 the inadmissibility of
otherwise inadmissible evidence. (Riano, 2019)
Time when Objection Should be Made
Objection to evidence offered orally must be made
immediately after the offer is made.
1. Objection to the testimony of a witness for
lack of a formal offer – as soon as the witness
begins to testify.
2. Objection to a question propounded in the
course of the oral examination of a witness -
as soon as the grounds shall become reasonably
apparent. (Sec. 36, Rule 132, ROC, as amended)
NOTE: As a rule, failure to specify the grounds for
the objection is in effect a waiver of the objection,
except where the evidence could not have been
legally admitted for any purpose whatsoever.
(People v. Singh, 45 Phil. 676)
The objection must be specific enough to adequately
inform the court the rule of evidence or of
696
substantive law that authorizes the exclusion of
evidence. (Riano, 2019)
Contemporaneous Objection Rule
It requires that a specific and timely objection be
made to the admission of evidence. Objections to the
admission of evidence must be made seasonably, at
the time it is introduced or offered, otherwise they
are deemed waived, and will not be entertained for
the first time on appeal. (People v. Bañares, G.R. No.
68298, 25 Nov. 1986)
Kinds of objections
1. Irrelevant– The evidence being presented is
not relevant to the issue (e.g., when the
prosecution offers as evidence the alleged offer
of an insurance company to pay for the damages
suffered by the victim in a homicide case);
2. Incompetent – The evidence is excluded by law
or rules (Sec. 3, Rule 128, ROC, as amended) (e.g.,
evidence obtained in violation of the
Constitutional prohibition against
unreasonable searches and seizures);
3. Specific objections– e.g., parol evidence and
best evidence rule;
4. General objections– e.g., continuing objections
(Sec. 37, Rule 132, ROC, as amended)
a. objection to a question propounded in the
course of the oral examination of the
witness; and
b. objection to an offer of evidence in writing;
5. Formal– One directed against the alleged defect
in the formulation of the question (e.g.,
ambiguous questions, leading and misleading
questions, repetitious questions, multiple
questions, argumentative questions) (Riano,
2019); and
6. Substantive– One made and directed against
the very nature of evidence (e.g., parol, not the
best evidence hearsay, privileged
communication, not authenticated, opinion, res
inter alios acta). (Ibid.)
 Evidence
NOTE: Objections to admissibility of evidence
cannot be raised for the first time on appeal. When
a party desires the court to reject the evidence
offered, he must so state in the form of objection.
Without objection, he cannot raise the question for
the first time on appeal. (People v. Salak, G.R. No.
181249, 14 Mar. 2011)
Rules on Continuing Objections
GR: When it becomes reasonably apparent in the
course of the examination that the questions asked
are of the same class as those to which objection has
been made (whether sustained or overruled), it
shall not be necessary to repeat the objection, it
being sufficient for the adverse party to record his
continuing objection to such class of questions. (Sec.
37, Rule 132, ROC, as amended)
XPNs:
1. Where the question has not been answered, it is
necessary to repeat the objection when the
evidence is again offered or the question is
again asked;
2. Incompetency is shown later;
3. Where objection refers to preliminary question,
objection must be repeated when the same
question is again asked during the introduction
of actual evidence;
4. Objection to evidence was sustained but
reoffered at a later stage of the trial;
5. Evidence is admitted on condition that its
competency or relevancy be shown by further
evidence and the condition is not fulfilled, the
objection formerly interposed must be
repeated or a motion to strike out the evidence
must be made; and
6. Where the court reserves the ruling on
objection, the objecting party must request a
ruling or repeat the objection.
Ruling
The ruling on the objection must be given
immediately after the objection is made, unless the
697
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, ROC, as amended)
However, if the objection is based on two or more
grounds, a ruling sustaining the objection on one or
some of the must specify the ground or grounds
relied upon. (Ibid.)
NOTE: The rulings of the trial court during the
course of the trial are interlocutory in nature and
may not be the subject of separate appeals or review
on certiorari but are assigned as errors and
reviewed on appeal properly taken from the
decision rendered by the trial court. (Gatdula v.
People, G.R. No. 140688, 26 Jan. 2001)
Q: Counsel Oliva objected to a question posed by
opposing Counsel Diesta on the grounds that it
was hearsay and it assumed a fact not yet
established. The judge banged his gavel and
ruled by saying “Objection Sustained”. Can
Counsel Diesta ask for a reconsideration of the
ruling? (2012 BAR)
A: YES, Counsel Diesta may ask the Judge to specify
the ground/s relied upon for sustaining the
objection and thereafter move its reconsideration
thereof. (Sec. 38, Rule 132, ROC, as amended)
Modes of excluding inadmissible evidence
1. Objection – when the evidence is offered;
NOTE: Objections may be waived because the
right to object is merely a privilege which the
party may waive. (People v. Martin, G.R. No.
172069, 30 Jan. 2008) However, such waiver
only extends to the admissibility of the
evidence. It does not involve an admission that
the evidence possesses the weight attributed to
it by the offering party. (Riano, 2019)
2. Motion to strike out or expunge:
a. When the witness answers prematurely
before there is reasonable opportunity for
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law

the adverse party to object, and such
objection is found to be meritorious;
b. When a question is not objectionable but
the answer is not responsive;
NOTE: This rule is in preparation in the filing of an
appeal. Moreover, the rule is that the offeror must
preserve such excluded evidence on his record and
stating the purpose of such preservation, e.g.,
knowing that it is relevant and must be admitted.

c. When a witness testifies without a question Purposes of Tender of Excluded Evidence

being posed or testifies beyond limits set by
the court; a. To allow the court to know the nature of the
testimony or the documentary evidence and
d. When the witness does a narration instead convince the trial judge to permit the evidence
of answering the question; or testimony; and

e. When the answers are incompetent, b. To create and preserve a record for appeal,
irrelevant, or improper (Sec. 39, Rule 132, should the judge be not persuaded to reverse
ROC, as amended); his earlier ruling. (Riano, 2019)

f. When the witness becomes unavailable for Even assuming that the trial court erroneously
cross-examination through no fault of the rejected the introduction as evidence of the CA
cross-examining party; Decision, petitioner is not left without legal
recourse. Petitioner could have availed of the
g. When the testimony was allowed remedy provided in Section 40, Rule 132 where he
conditionally and the condition for its could have included the same in his offer of
admissibility was not fulfilled (Riano, exhibits. If an exhibit sought to be presented in
2019); evidence is rejected, the party producing it should
ask the courts permission to have the exhibit
h. When a witness has volunteered attached to the record. (Catacutan v. People, G.R. No.
statements in such a way that the party has 175991, 31 Aug. 2011)
not been able to object thereto; or
Offer of Proof vs. Offer of Evidence
i. Uncompleted testimonies where there is no
opportunity for the other party to cross- OFFER OF PROOF /
examination. (Ibid.) TENDER OF OFFER OF EVIDENCE
EXCLUDED EVIDENCE
NOTE: A direct testimony given and allowed Refers to testimonial,
without a prior formal offer may not be expunged The process by which a documentary or object
from the record. When such testimony is allowed proponent of an evidence that are
without any objection from the adverse party, the excluded evidence presented or offered in
latter is estopped from questioning the non- tenders the same. court by a party so that
compliance with the requirement. Only resorted to if the court can consider
admission is refused by his evidence when it
Tender of Excluded Evidence (2017 BAR) the court for purposes comes to the
of review on appeal. preparation of the
When an attorney is not allowed by the court to decision.
present testimony which he thinks is competent,
material and necessary to prove his case, he must How tender of excluded evidence is made
make an offer of proof. This is the method properly
preserving the record to the end that the question 1. As to documentary or object evidence: It may
may be saved for purposes of review. (Caraig, 2004) have the same attached to or made part of the

698
 Evidence

record. (Sec. 40, Rule 132, ROC, as amended) English Exchequer Rule vs. Harmless Error Rule
(1991, 1996 Bar)
ENGLISH HARMLESS ERROR
NOTE: The party should ask that evidence ruled EXCHEQUER RULE RULE
out at the trial be attached to the record of case It provides that a trial The appellate court
in order that same may be considered on court's error as to the will disregard an error
appeal. (Bañez v. CA, G.R. No. L-30351, 11 Sept. admission of evidence committed by the trial
1974) was presumed to have court in the admission
caused prejudice and of evidence unless in
2. As to oral evidence: It may state for the record therefore, almost its opinion, some
the name and other personal circumstances of automatically required substantial wrong or
the witness and the substance of the proposed new trial. miscarriage of justice
testimony. (Sec. 40, Rule 132, ROC, as amended) has been occasioned.

How offer of Evidence is Made NOTE: We follow the harmless error rule, for in
dealing with evidence improperly admitted in the
1. Before the court has ruled on the objection, in trial, courts examine its damaging quality and its
which case its function is to persuade the court impact to the substantive rights of the litigant. If the
to overrule the objection or deny the privilege impact is slight and insignificant, appellate courts
invoked; disregard the error as it will not overcome the
weight of the properly admitted evidence against
2. After the court has sustained the objection, in the prejudiced part. (People v. Teehankee Jr., G.R.
which case its function is to preserve for the Nos. 111206-08, 06 Oct. 1995)
appeal the evidence excluded by the privilege
invoked; or
H. JUDICIAL AFFIDAVIT RULE
3. Where the offer of proof includes the (A.M. No. 12-8-8-SC)
introduction of documents, or any of the
physical evidence, the same should be marked
for identification so that they may become part
Scope and Answer where Applicable
of the record. (Herrera, 1999)
This Rule shall apply to all actions, proceedings, and
incidents requiring the reception of evidence
When Offer of Proof is NOT Required
before:
1. When the question to which an objection has
1. The MeTC, MTC in Cities, MTC, and the MCTC,
been sustained clearly reveals on its face the
and the Shari‘a Circuit courts;
substance, purpose and relevancy of the
excluded evidence;
NOTE: It shall not apply to small claims cases
under A.M. No. 08-8-7-SC;
2. When the substance, purpose and relevancy of
the excluded evidence were made known to the
2. The RTC and the Shari‘a District Courts;
court either in the court proceedings and such
3. The Sandiganbayan, CTA, CA and the Shari‘a
parts appear on record; and
Appellate Courts;
4. The investigating officers and bodies
3. Where evidence is inadmissible when offered
authorized by the Supreme Court to receive
and excluded, but thereafter becomes
evidence, including the IBP; and
admissible, it must be re-offered, unless the
5. The special courts and quasi-judicial bodies,
court indicates that a second offer would be
whose rules of procedure are subject to
useless. (Herrera, 1999)
disapproval of the Supreme Court, insofar as

699 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
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their existing rules of procedure contravene
the provisions of this Rule. (Sec. 1, JAR)
NOTE: In civil cases (with the exception of small
claims), the application of the JAR is mandatory
regardless of the amount of money claimed.
Effect of the Judicial Affidavit Rule (JAR) in the
Philippine Judicial System
It signals a dramatic shift from a dominantly
adversarial system to a mix adversarial and
inquisitorial system. (Associate Justice Roberto
Abad, UST Law Review Chief Justice Andres Narvasa
Honorary Lecture, 15 Feb. 2013)
Purpose of JAR
To decongest the courts of cases and to reduce
delays in the disposition of cases.
Significance of the use of a Judicial Affidavit
The judicial affidavit shall take the place of direct
testimonies of witnesses.
Notable Changes by the JAR
1. Testimonies are now allowed to be taken and
kept in the dialect of the place provided they are
subsequently translated into English or
Filipino. These will be quoted in pleadings in
their original version with the English or
Filipino translation in parenthesis provided by
the party, subject to counter translation by
opposing side.
2. In civil actions, the judicial affidavit rule
requires the parties to lay their cards on the
table before pre-trial by submitting the judicial
affidavits and documents of the parties and
their witnesses and serving copies on the
adverse party at least 5 days before the pre-
trial. No further stipulations of facts are needed
at the pre-trial since, by comparing the judicial
affidavits of the opposing sides, the court will
already see what matters they agree and on
what matters they dispute.
700
3. The court will already take active part in
examining the witnesses. The judge will no
longer be limited to asking clarificatory
questions; he can also ask questions that will
determine the credibility of the witness,
ascertain the truth of his testimony and elicit
the answers that the judge needs for resolving
issues. (Associate Justice Roberto Abad, supra)
Submissions in lieu of Direct Testimony
The following are the requirements of the JAR
which the parties are bound to follow:
The parties shall file with the court and serve on the
adverse party, personally or by licensed courier
service, not later than 5 days before pre-trial or
preliminary conference or the scheduled hearing
with respect to motions and incidents, the
following:
1. The judicial affidavits of their witnesses, which
shall take the place of such witnesses' direct
testimonies; and
2. The parties' documentary or object evidence, if
any, which shall be attached to the judicial
affidavits and marked as Exhibits A, B, C, and so
on in the case of the complainant or the plaintiff,
and as Exhibits 1, 2, 3, and so on in the case of
the respondent or the defendant. (Sec. 2, JAR)
NOTE: Every pleading stating a party’s claims or
defenses shall state, among others the summary of
the witnesses’ intended testimonies, provided that
the judicial affidavits of said witnesses shall be
attached to the pleading and form an integral part
thereof. Only witnesses whose judicial affidavits are
attached to the pleading shall be presented by the
parties during trial. Except if a party presents
meritorious reasons as basis for the admission of
additional witnesses, no other witnesses or affidavit
shall be heard or admitted by the court. (Sec. 6, Rule
7, ROC, as amended)
Attachment of the Original Document as
Documentary Evidence
A party or a witness may keep the original
document or object evidence in his possession after
 Evidence
the same has been identified, marked as exhibit, and
authenticated, but he must 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. (Ibid.)
Contents of a Judicial Affidavit (2016 BAR)
A judicial affidavit shall be prepared in a language
known to the witness and, if not in English or
Filipino, accompanied by a translation in English or
Filipino, and shall contain the following:
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
701
authorized by law to administer the same. (Sec.
3, JAR); and
7. A sworn attestation by the lawyer who
conducted or supervised the examination of the
witness attesting to the following:
a. He faithfully recorded or caused to be
recorded the questions he asked and the
corresponding answers that the witness
gave; and
b. Neither he nor any other person present or
assisting him coached the witness regarding
the latter's answers. (Sec. 4, JAR)
NOTE: A false attestation shall subject the lawyer to
disciplinary action, including disbarment. (Sec. 4(b)
JAR)
Effect of Non-compliance with the Content and
Attestation Requirements
The judicial affidavit shall not be admitted by the
court in evidence. (Sec. 10(c), JAR)
NOTE: The above provision, however, does not
absolutely bar the submission of a complaint
replacement judicial affidavit as long as the
replacement shall be submitted before the hearing
or trial and provided further that the following
requisites are met:
1. The submission shall be allowed only once;
2. The delay is for a valid cause;
3. The delay would not unduly prejudice the
opposing party; and
4. The public or private counsel responsible for
the preparation and submission of the affidavit
pays a fine of not less than ₱1,000.00 nor more
than ₱5,000.00, at the discretion of the court.
Subpoena
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 if the (a)
government official or employee, or the (b)
requested witness, who is neither the witness of the
adverse party nor a hostile witness:
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
1. Unjustifiably declines to execute a judicial
affidavit; or
2. 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. (Sec. 5, JAR)
NOTE: Regardless of whether the requested
witness, who is the adverse party’s witness,
unjustifiably declines to execute a judicial affidavit
or refuses without just cause to present the
documents, Section 5 cannot be made to apply to
him for the reason that he is included in a group of
individuals expressly exempt from the provision’s
application. (Ng Meng Tamv. China Banking
Corporation, G.R. No. 214054, 05 Aug. 2015)
Submission by the Prosecution of the Judicial
Affidavit
The prosecution shall submit the judicial affidavits
of its witnesses not later than five days before the
pre-trial, serving copies of the same upon the
accused. The complainant or public prosecutor shall
attach to the affidavits such documentary or object
evidence as he may have, marking them as Exhibits
A, B, C, and so on. No further judicial affidavit,
documentary, or object evidence shall be admitted
at the trial.
Trial
After submitting to the court and serving the
adverse party a copy of the judicial affidavits, trial
shall commence as follows:
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 (Sec. 6, JAR);
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;
NOTE: 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
702
personnel, without prejudice to the tender of
excluded evidence under Sec. 40, Rule 132.
3. The adverse party shall have the right to cross-
examine the witness on his judicial affidavit and
on the exhibits attached to the same (Sec. 7,
JAR);
4. The party who presents the witness may
examine him on re-direct;
NOTE: 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.
5. Upon the termination of the testimony of his
last witness, a party shall immediately make an
oral offer of documentary evidence, piece by
piece, in their chronological order, stating the
purpose or purposes for which he offers the
particular exhibit (Sec. 8, JAR);
6. After each piece of exhibit is offered, the
adverse party shall state the legal ground for his
objection, if any, to its admission, and the court
shall immediately make its ruling respecting
that exhibit.
NOTE: Since the documentary or object exhibits
form part of the judicial affidavits that describe
and authenticate them, it is sufficient that such
exhibits are simply cited by their markings
during the offers, the objections, and the
rulings, dispensing with the description of each
exhibit.
Application to Criminal Actions
The judicial affidavit rule shall apply to all criminal
actions:
1. Where the maximum of the imposable penalty
does not exceed six years;
2. Where the accused agrees to the use of judicial
affidavits, irrespective of the penalty involved;
or
 Evidence
3. With respect to the civil aspect of the actions,
whatever the penalties involved are. (Sec. 9,
JAR)
Form of Testimony in Criminal Cases
(a) For First Level Courts
In all criminal cases, including those covered by the
Rule on Summary Procedure, the testimonies of
witnesses shall consist of the duly subscribed
written statements given to law enforcement or
peace officers or the affidavits or counter-affidavits
submitted before the investigating prosecutor if
such are not available, testimonies shall be in the
form of judicial affidavits, subject to additional
direct and cross—examination questions.
The trial prosecutor may dispense with the sworn
written statements submitted to the law
enforcement or peace officers and prepare the
judicial affidavits of the affiants or modify or revise
the said sworn statements before presenting it as
evidence.
(b) For Second Level Courts, Sandiganbayan and
Court of Tax Appeals
In criminal cases where the demeanor of the
witness is not essential in determining the
credibility of said witness, such as forensic chemists,
medico-legal officers, investigators, auditors,
accountants, engineers, custodians, expert
witnesses and other similar witnesses, who will
testify on the authenticity, due execution and the
contents of public documents and reports, and in
criminal cases that are transactional in character,
such as falsification, malversation, estafa, or other
crimes where the culpability or innocence of the
accused can be established through documents, the
testimonies of the witnesses shall be the duly
subscribed written statements given to law
enforcement or peace officers or the affidavits or
counter-affidavits submitted before the
investigating prosecutor, and if such are not
available, testimonies shall be in the form of judicial
affidavits, subject to additional direct and cross-
examination questions.
703
In all other cases where the culpability or the
innocence of the accused is based on the testimonies
of the alleged eyewitnesses, the testimonies of these
witnesses shall be in oral form. (Sec. 11, JAR)
Q: Can a party filing a criminal action cognizable
by the Regional Trial Court be mandated to
follow the JAR?
A: NO. The jurisdiction of the RTC in criminal cases
includes offenses where the imposable penalty
exceeds 6 years, thus, as a rule the JAR has no
application except when the accused agrees to its
use.
Q: Is it mandatory on the part of the accused to
submit a judicial affidavit?
A: NO. Since the accused is already aware of the
evidence of the prosecution, he has the option to
submit or not to submit his judicial affidavits. If the
accused desires to be heard, he may submit his
judicial affidavit as well as those of his witnesses
within ten days from receipt of the affidavits of the
prosecution with service upon the public and
private prosecutor. (Sec. 9(c), JAR)
Q: The JAR took effect last January 1, 2013, but
with some modification as to its applicability to
criminal cases. What are these modifications?
A: The JAR was modified only with respect to
actions filed by public prosecutors, subject to the
following conditions:
1. For the purpose of complying with the Judicial
Affidavit Rule, public prosecutors in the first and
second level courts shall use the sworn
statements that the complainant and his or her
witnesses submit during the initiation of the
criminal action before the office of the public
prosecutor or directly before the trial court;
2. Upon presenting the witness, the attending
public prosecutor shall require the witness to
affirm what the sworn statement contains and
may only ask the witness additional direct
examination questions that have not been
amply covered by the sworn statement; and
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
3. This modified compliance does not apply to
criminal cases where the complainant is
represented by a duly empowered private
prosecutor. The private prosecutor shall be
charged in the applicable cases the duty to
prepare the required judicial affidavits of the
complainant and his or her witnesses and cause
the service of the copies of the same upon the
accused.
Effect of Non-Compliance
GR: A party who fails to submit the required
judicial affidavits and exhibits on time shall be
deemed to have waived their submission. (Sec. 10,
JAR)
XPN: The court may, however, allow only once the
late submission of the same provided, the delay is
for a valid reason, would not unduly prejudice the
opposing party, and the defaulting party pays a
fine of not less than ₱1,000.00 nor more than
₱5,000.00, at the discretion of the court. (Ibid.)
Appearance of the Witness at the Scheduled
Hearing
The submission of the judicial affidavit of the
witness does not exempt such witness from
appearing at the scheduled hearing. His appearance
is necessary as the adverse party has the right to
cross-examine him on his judicial affidavit and the
attached exhibits.
NOTE: The court shall not consider the affidavit of
any witness who does not appear in the scheduled
hearing of the case as required. As for the counsel,
his failure to appear without a valid cause despite
notice shall be deemed to have waived his client’s
right to confront by cross-examination, the
witnesses present.
Effect on the Rules of Court and Rules of
Procedure governing investigating officers and
bodies authorized by the Supreme Court to
receive evidence
They are repealed or modified insofar as they are
inconsistent with the provisions of the Judicial
Affidavit Rule. (Sec. 11, JAR)
704
As to Rules of Procedure governing Quasi-
judicial bodies which are Inconsistent with it
They are thereby disapproved. (Ibid.)
Q: Pedro was charged with theft for stealing
Juan's cellphone worth P20, 000.00. Prosecutor
Marilag at the pre-trial submitted the judicial
affidavit of Juan attaching the receipt for the
purchase of the cellphone to prove civil liability.
She also submitted the judicial affidavit of
Mario, an eyewitness who narrated therein how
Pedro stole Juan's cellphone. At the trial, Pedro's
lawyer objected to the prosecution's use of
judicial affidavits of her witnesses considering
the imposable penalty on the offense with which
his client was charged. (2015 BAR)
a. Is Pedro's lawyer correct in objecting to the
judicial affidavit of Mario?
A: YES, Pedro’s lawyer is correct in objecting to the
judicial affidavit of Mario. The Judicial Affidavit
Rules shall apply only to criminal actions where the
maximum of the imposable penalty does not exceed
six years. (Sec. 9(a)(1), A.M. No. 12-8-9-SC) Here, the
maximum imposable penalty for the crime of theft
of a cellphone worth ₱20,000 is prison mayor in its
minimum to medium periods, or six years and one
day to eight years and one day.
b. Is Pedro's lawyer correct in objecting to the
judicial affidavit of Juan?
A: NO. Pedro’s lawyer is not correct in objecting to
the judicial affidavit of Juan because the Judicial
Affidavit Rules apply with respect to the civil aspect
of the actions, regardless of the penalties involved.
(Sec. 9, A.M. No. 12-8-8-SC) Here the judicial affidavit
of Juan was offered to prove the civil liability of
Pedro.
c. At the conclusion of the prosecution's
presentation of evidence, Prosecutor Marilag
orally offered the receipt attached to Juan's
judicial affidavit, which the court admitted over
the objection of Pedro's lawyer.
After Pedro's presentation of his evidence, the
court rendered judgment finding him guilty as
 Evidence
charged and holding him civilly liable for
₱20,000.00. Pedro's lawyer seasonably filed a
motion for reconsideration of the decision
asserting that the court erred in awarding the
civil liability on the basis of Juan's judicial
affidavit, documentary evidence which
Prosecutor Marilag failed to orally offer. Is the
motion for reconsideration meritorious? (2015
Bar) (2015 BAR)
A: NO. The motion for reconsideration is not
meritorious. The judicial affidavit is not required to
be orally offered as separate documentary evidence,
because it is filed in lieu of the direct testimony of
the witness. It is offered, at the time the witness is
called to testify, and any objection to it should have
been made at the time the witness was presented.
(Secs. 6 and 8, A.M. No. 12-8-8-SC) Since the receipt
attached to the judicial affidavit was orally offered,
there was enough basis for the court to award civil
liability.
I. WEIGHT AND SUFFICIENCY OF EVIDENCE
(RULE 133)
Weight of Evidence
It is the probative value given by the court to
particular evidence admitted to prove a fact in issue.
Degree of Evidence Required to Disprove the
Prima Facie Case established by the Party
having the Burden of Proof
A prima facie case need not be countered by a
preponderance of evidence nor by evidence of
greater weight. Defendant's evidence which
equalizes the weight of plaintiff's evidence or puts
the case in equipoise is sufficient. As a result,
plaintiff will have to go forward with the proof.
Should it happen that at the trial the weight of
evidence is equally balanced or at equilibrium and
presumptions operate against plaintiff who has
burden of proof, he or she cannot prevail. (People v.
Santiago, G.R. Nos. 137542-43, 20 Jan. 2004)
705
Guidelines in the Assessment of Credibility of a
Witness
1. A witness who testified in clear, positive and
convincing manner and remained consistent in
cross-examination is a credible witness; (People
v. Comanda, G.R. No. 175880, 06 July 2007) and
2. Findings of fact and assessment of credibility of
a witness are matters best left to the trial court
that had the front-line opportunity to
personally evaluate the demeanor, conduct, and
behavior of the witness while testifying. (Sps.
Paragas v. Heirs of Balacano, G.R. No. 168220, 31
Aug. 2005)
Q: Hesson was charged with Murder for the
death of Fernando. Sario was the lone witness
for the prosecution, and he testified that he saw
Junello hacked Fernando's body on the side
using a bolo. Fernando lost consciousness.
Hesson stabbed Fernando twice in the chest
using a knife. Hesson then sliced open
Fernando's chest and took out the latter's heart
using the same knife. Junello followed and took
out Fernando's liver using a bolo. Hesson and
Junello went at large, but Hesson was arrested
after a year. The RTC and the CA found Hesson
guilty of Murder. The accused argued that the
testimony of Sario, being uncorroborated, does
not sufficiently establish his guilt beyond
reasonable doubt. Is Hesson correct?
A: NO. Sario's testimony, although uncorroborated,
can be relied upon. The testimony of a lone
eyewitness, if found positive and credible by the
trial court, is sufficient to support a conviction
especially when the testimony bears the earmarks
of truth and sincerity and had been delivered
spontaneously, naturally and in a straightforward
manner. Witnesses are to be weighed, not
numbered. Evidence is assessed in terms of quality
and not quantity. Corroborative evidence is deemed
necessary only when there are reasons to warrant
the suspicion that the witness falsified the truth or
that his observation had been inaccurate. (People v.
Callao y Marcelino, G.R. No. 228945, 14 Mar. 2018, J.
Caguioa)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law

Q: In an Information, Christopher Pacu-An identification was duly corroborated by Alvin's

(petitioner) and co-accused Peter Romer Abao testimony. (Pacu-An v. People of the Philippines, G.R.
were charged with homicide for the death of No. 237542, 16 June 2021)
Zaldy Milad. Petitioner voluntarily surrendered
to the police authorities. Petitioner and Rommel Hierarchy of quantum of evidence
entered a plea of not guilty. The RTC found
petitioner guilty beyond reasonable doubt of the
crime of homicide. The CA affirmed the Decision
of the RTC in convicting petitioner of the crime
of Homicide. Petitioner argues that the CA
gravely erred when it upheld his conviction
despite weak, inconsistent and unreliable
identification by the prosecution's witnesses. He
claims that the inconsistent statements given by
Alicia should not be considered as a mere
inconsistency that can be lightly overlooked. He
points to the inconsistency in Alicia's
Sinumpaang Salaysay taken during the night
Zaldy was stabbed where Alicia stated that a
witness informed her that petitioner was the
one who stabbed Zaldy. However, in her open
court examination, Alicia testified that she
herself saw petitioner stab Zaldy. Is the
petitioner guilty of the crime of homicide?

A: YES. The discrepancy in Alicia's statements in her

Sinumpaang Salaysay and her open court testimony
was explained by Alicia during her cross-
examination. The Supreme Court sustained the
finding of the CA that the discrepancy in Alicia's
statement in her Sinumpaang Salaysay did not
diminish the probative value of her open court
testimony in positively identifying petitioner as the
perpetrator of the crime of Homicide. In Madali v.
People, the Court held that slight inconsistencies in
the declarations of witnesses hardly weaken the
probative value of the witnesses' open court
testimony.
The CA was correct in sustaining the ruling of the
RTC regarding the probative value of Alicia's
testimony in positively identifying petitioner as the
perpetrator of the crime. The Court agrees that the
minor inconsistencies in Alicia's Sinumpaang
Salaysay were not sufficient to damage the essential
integrity of the prosecution's evidence in its
material whole. Alicia's positive identification
prevails over petitioner's defenses of denial and
alibi since the latter can be easily fabricated and is
essentially unreliable. Further, Alicia's positive
NOTE: Evidence, to be worthy of credit, must not
only proceed from a credible source but must also
be credible in itself. It must be natural, reasonable
and probable as to make it easy to believe. (People v.
Peruelo, G.R. No. 50631, 29 June 1981)
Proof beyond Reasonable Doubt
Proof beyond reasonable doubt does not mean such
a degree of proof as, excluding possibility of error,
produces absolute certainty. Moral certainty only is
required, or that degree of proof which produces
conviction in an unprejudiced mind. (Sec. 2, Rule
133, ROC, as amended)
Moral Certainty
That degree of certainty which will justify the trial
judge in grounding on it his verdict. It is a certainty
that convinces and directs the understanding and

706
 Evidence
satisfies the reason and judgment of those who are
bound to act conscientiously upon it.
Identity of the Accused must be Proved Beyond
Reasonable Doubt
When the identity of the accused is not established
beyond reasonable doubt, acquittal necessarily
follows. Conviction for a crime rests on the strength
of the prosecution’s evidence, never on the
weakness of that of the defense. (People v. Jalon, G.R.
No. 93729, 13 Nov. 1992)
NOTE: In every criminal prosecution, the
prosecution must prove two things:
1. The commission of the crime; and
2. The identification of the accused as the
perpetrator of the crime. What is needed is
positive identification made with moral
certainty as to the person of the offender.
(People v. Maguing, G.R. No. 144090, 26 June
2003
Q: Prosecution witnesses positively identified
Johnny as the assailant of Chris. Hence, he was
convicted of Homicide. However, he contends
that the State failed to present sufficient
evidence against him in court. He sufficed that
should the knife he held during a fight against
his longtime enemies, brothers Chris and
Michael, had been presented, it would show the
difference that Chris’ knife, although smaller
than Johnny’s, had more blood stains but which
size fits best on the mortal wound inflicted on
himself. It would thereby be ascertained that
Chris accidentally stabbed himself upon losing
his balance during such aggressive fight. Is
Johnny’s contention meritorious?
A: NO. The non-identification and non-presentation
of the weapon actually used in the killing did not
diminish the merit of the conviction on the ground
that other competent evidence and the testimonies
of witnesses had directly and positively identified
and incriminated Johnny as the assailant of Chris.
The presentation of the weapon is not a prerequisite
for conviction. Positive identification of the accused
is sufficient for the judgment of conviction despite
the non-presentation of the weapon used in the
707
commission of the offense. (Medina v. People, G.R.
No. 161308, 15 Jan. 2014)
Q: Tumbaga was watching a basketball game in
Barangay Matingain, together with his uncle.
When he was about to board his parked
motorcycle, he was shot twice at the back.
Tumbaga was able to survive. Aliling's alibi was
that he was in another Barangay for a miting de
avance. Aliling's defense witness, Bathan, also
testified that he was at the same basketball
court on that night and he saw that Aliling was
about to ride his motorcycle when he was shot.
However, Bathan did not see accused Hilario
Aliling at the place when the shooting happened
and instead saw an unidentified man shot the
private complainant.
The RTC and the CA found Aliling guilty and held
that the positive allegations of the prosecution
witnesses prevailed over the denial and alibi of
the defense witnesses. Ailing argued that the
testimonial evidence of the prosecution cannot
be relied on as they were inconsistent and
incredible, especially against the eyewitness
account of Bathan. Are the RTC and CA correct?
A: NO. Positive testimony is generally given more
weight than the defenses of denial and alibi which
are held to be inherently weak defenses because
they can be easily fabricated. While, indeed, the
defense of denial or alibi can be easily fabricated,
the same can be said of untruthful accusations, in
that they can be as easily concocted.
Thus, if found credible, the defenses of denial and
alibi may be considered complete and legitimate
defenses. The burden of proof does not shift by the
mere invocation of said defenses; the presumption
of innocence remains in favor of the accused. In
alibi, the accused must prove not only that he was at
some other place at the time the crime was
committed, but that it was likewise physically
impossible for him to be at the scene of the crime at
the time thereof. In this case, the Court found that
Ailing's alibi was straightforward, credible, and
corroborated by an impartial witness. Bolstering
the alibi of Ailing is the eyewitness account of
Bathan who positively testified that he witnessed
the shooting incident and saw that the culprit was
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
not Aliling. (Aliling v. People, G.R No. 230991, June 11,
2018, J. Caguioa)
Q: In 2005, Diosdado Sama y Hinupas, Demetrio
Masanglay y Aceveda and Bandy Masanglay y
Aceveda, residents of Barangay Baras, Baco,
Oriental Mindoro, cut with the use of
unregistered power chainsaw, a Dita tree. On
arraignment, all three (3) accused pleaded not
guilty. Thereafter, they filed a Motion to Quash
Information dated July 31, 2007, alleging among
others, that they are members of the Iraya-
Mangyan tribe, and as such, are governed by
Republic Act No. 8371, The Indigenous Peoples
Rights Act of 1997 (IPRA).
By Order dated August 23, 2007, the motion was
denied for being a mere scrap of paper. Trial
followed. On August 24, 2010, the trial court
convicted the accused. The trial court ruled that
a dita tree with an aggregate volume of 500
board feet can be classified as "timber" within
the purview of Section 68, now Section 771 of
P.D. No. 705, as amended. Thus, cutting the dita
tree without a corresponding permit from the
DENR or any competent authority violated the
law. The trial court further held that a violation
of Section 77 of P.D. No. 705 constituted malum
prohibitum, and for this reason, the commission
of the prohibited act is a crime in itself and
criminal intent does not have to be established.
The Court of Appeals affirmed.
Was his guilt proven beyond reasonable doubt?
A: NO. In practice, there is proof beyond a
reasonable doubt where the judge can conclude:
"All the above, as established during trial, lead to no
other conclusion than the commission of the crime
as prescribed in the law." The prosecution was not
able to prove the guilt of petitioners beyond
reasonable doubt. Section 77 of PD 705, as
amended, punishes, among others, "any person who
shall cut, gather, collect, removed timber or other
forest products from any forest land, or timber from
alienable or disposable public land, or from private
land, without any authority shall be punished with
the penalties imposed under Articles 309 and 310 of
the Revised Penal Code...."
708
There is, however, reasonable doubt that the dita
tree was cut and collected without any authority
granted by the State. It is a general principle in law
that in malum prohibitum case, good faith or motive
is not a defense because the law punishes the
prohibited act itself. The penal clause of Section 77
of PD 705, as amended punishes the cutting,
collecting, or removing of timber or other forest
products only when any of these acts is done
without lawful authority from the State. (Sama v.
People, G.R. No. 224469, 05 Jan. 2021)
Preponderance of Evidence
Preponderance of evidence means that the evidence
adduced by one side is, as a whole, superior to or has
greater weight than that of the other. It means
evidence which is more convincing to the court as
worthy of belief than that which is offered in
opposition thereto. (Ava v. De Guzman, A.C. No. 7649,
14 Dec. 2011)
It is the weight, credit, and value of the aggregate
evidence on either side and is usually considered to
be synonymous with the term “greater weight of the
evidence” or “greater weight of the credible
evidence.” It means probability of the truth,
evidence which is more convincing to the court as
worthy of belief than that which is offered in
opposition thereto. (Philippine Commercial
International Bank v. Balmaceda, G.R. No. 158143, 21
Sept. 2011)
NOTE: A judgment cannot be entered in the
plaintiff’s favor if his or her evidence still does not
suffice to sustain his cause of action.
Matters that the court may consider in
determining whether there is preponderance of
evidence
1. All the facts and circumstances of the case;
2. The witnesses' manner of testifying, their
intelligence, their means and opportunity of
knowing the facts to which they are testifying,
the nature of the facts to which they testify, the
probability or improbability of their testimony;
3. The witnesses’ interest or want of interest, and
their personal credibility so far as the same may
legitimately appear upon the trial; and
 Evidence
4. The number of witnesses, though the
preponderance is not necessarily with the
greater number. (Sec. 1, Rule 133, ROC, as
amended)
NOTE: To persuade by the preponderance of
evidence is not to take the evidence quantitatively
but qualitatively. (Riano, 2019)
Related jurisprudence
In civil cases, only a preponderance of evidence or
"greater weight of the evidence" is required. While
the charge invoices are not actionable documents
per se, they provide details on the alleged
transactions. These documents need not be
attached to or stated in the complaint as these are
evidentiary in nature. In fact, the cause of action is
not based on these documents but on the contract of
sale between the parties. Here, the delivery of the
supplies and materials was duly proved by the
charge invoices and purchase orders indicating that
Asian Construction indeed ordered supplies and
materials from Highett and that these were
delivered. (Asian Construction and Development
Corporation v. Mendoza, G.R. No. 176949, 27 June
2012)
Q: Cathay hired Uy as material handling officer
tasked with the sale of special assorted steel
bars known as retazos, authorized to accept
cash payments directly from customers to be
remitted immediately to Cathay's treasury
department. Sometime in March 2008, Cathay
discovered that cash proceeds from the sale of
retazos for the month of February 2008 covered
by several delivery receipts amounting to
P409,280.00 were not remitted to its treasury
department. Uy's signature was on the delivery
receipts. Cathay sent a demand letter for
payment of the amount covered by the
questionable transactions, but Uy failed to pay
or settle with Cathay. Cathay filed a Complaint
against Uy for Sum of Money and Damages.
Cathay presented the delivery receipts, also
known as "scrap miscellaneous sales (SMS),"
covering the five transactions when Uy allegedly
authorized the release of the retazos on a cash
transaction basis, as well as the corresponding
statements of account to prove that during such
709
transactions, Uy did not remit the payments to
Cathay's treasury department. Was Cathay able
to prove by preponderance of evidence its cause
of action against Uy?
A: YES. In civil cases, the party having the burden of
proof must establish its cause of action by a
preponderance of evidence, or that "evidence which
is of greater weight or is more convincing than that
which is in opposition to it." Preponderance of
evidence "does not mean absolute truth; rather, it
means that the testimony of one side is more
believable than that of the other side, and that the
probability of truth is on one side than on the other."
The guidelines in the determination of
preponderance of evidence are provided under
Section 1, Rule 133 of the Rules of Court:
SECTION 1. Preponderance of evidence,
how determined. — In civil cases, the
party having the burden of proof must
establish his [or her] case by a
preponderance of evidence. In
determining where the preponderance or
superior weight of evidence on the issues
involved lies, the court may consider all
the facts and circumstances of the case, the
witnesses' manner of testifying their
intelligence, their means and opportunity
of knowing the facts to which they are
testifying, the nature of the facts to which
they testify, the probability or
improbability of their testimony, their
interest or want of interest, and also their
personal credibility so far as the same
legitimately appear upon the trial. The
court may also consider the number of
witnesses, though the preponderance is
not necessarily with the greater number.
Thus, the determination of preponderance of
evidence depends greatly on the credibility of the
witnesses. Hence, in the evaluation of their
testimonies, the courts must be guided by the well-
settled doctrine that "[w]hen it comes to [the
witnesses'] credibility, the trial court's assessment
deserves great weight, and is even conclusive and
binding, unless the same is tainted with
arbitrariness or oversight of some fact or
circumstance of weight and influence." Here, Cathay
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law

was able to prove that Uy authorized on four
occasions the release of the retazos sold on a cash
transaction basis, for which he had the duty to
accept cash payment, but failed to remit the
payments to Cathay's treasury department. (Cathay
Pacific Steel Corporation v. Charlie Chua Uy, Jr., G.R.
No. 219317, 14 June 2021)
Substantial Evidence
Clear and Convincing Evidence
It is that degree of evidence that produces in the
mind of the trier of fact a firm belief or conviction as
to allegations sought to be established. It is
intermediate, being more than preponderance, but
not to the extent of such certainty as is required
beyond reasonable doubt as in criminal cases.
(Black’s Law Dictionary, 2004)

Substantial evidence applies to cases filed before Instances when Clear and Convincing Evidence
the administrative or quasi-judicial bodies and is Required
which requires that in order to establish a fact, the
evidence should constitute that amount of relevant 1. When proving forgery (Citibank, N.A. v.
evidence which a reasonable mind might accept as Sabeniano, G.R. No. 156132, 06 Feb. 2007);
adequate to justify a conclusion. (Sec. 6, Rule 133,
ROC). Substantial evidence is more than mere 2. When proving ownership over a land in
scintilla. annulment or reconveyance of title (Manotok
Realty, Inc. v. CLT Realty Development Corp., G.R.
The requirement is satisfied where there is No. 123346, 14 Dec. 2007);
reasonable ground to believe that the petitioner is
guilty of the act or omission complained of, even if 3. When invoking self-defense, the onus is on the
the evidence might not be overwhelming. (Office of accused-appellant to establish by clear and
the Deputy Ombudsman for Luzon v. Dionisio, G.R. No. convincing evidence his justification for the
220700, 10 July 2017) killing (People v. Tomolin, G.R. No. 126650, 28
July 1999);
NOTE: In a petition for a writ of amparo, the parties
shall establish their claims by substantial evidence. 4. When proving the allegation of frame-up and
(Sec 17, The Rule on the Writ of Amparo) extortion by police officers in most dangerous
drug cases (People v. Boco, G.R. No. 129676, 23
Preponderance of Evidence vs. Substantial June 1999);
Evidence (2003 BAR)
5. When proving physical impossibility for the
PREPONDERANCE OF SUBSTANTIAL accused to be at the crime scene when using
EVIDENCE EVIDENCE alibi as a defense (People v. Cacayan, G.R. No.
As to Nature or Definition 180499, July 9, 2008); (People v. Cacayan, G.R.
That amount of No. 180499, 09 July 2008);
The evidence as a relevant evidence
whole adduced by one which a reasonable 6. When using denial as a defense like in
side is superior to that might mind accept as prosecution for violation of the Dangerous
of the other. adequate to justify a Drugs Act (People v. Mustapa, G.R. No. 141244,
conclusion 19 Feb. 2001);
As to Applicability
Applicable in 7. To overcome the presumption of due execution
Applicable in civil of notarized instruments (Viaje v. Pamintel, G.R.
administrative cases or
cases No. 147792, 23 Jan. 2006)
quasi-judicial bodies

8. When proving bad faith to warrant an award of

moral damages (Resolution of the SC in Cual v.

710
 Evidence
Leonis Navigation, G.R. No. 167775, 10 Oct.
2005);
9. When proving that the police officers did not
properly perform their duty or that they were
inspired by an improper motive (People v.
Concepcion, G.R. No. 178876, 27 June 2008); or
10. When a person seeks confirmation of an
imperfect or incomplete title to a piece of land
on the basis of possession by himself and his
predecessors-in-interest, he must prove with
clear and convincing evidence compliance with
the requirements of the applicable law
(Republic v. Imperial Credit Corp., G.R. No.
173088, 25 June 2008; Riano, 2009); and
11. In granting or denying bail in extradition
proceedings. (Government of Hongkong Special
Administrative Region v. Olalia, G.R. No. 153675,
19 Apr. 2007)
NOTE: The list is NOT exclusive.
Q: Loraine filed a complaint before the Civil
Service Commission Regional Office No. VIII
(CSCRO VIII) against several employees of the
Professional Regulation Commission (PRC)
Tacloban Office, including Ayesha, for conflict of
interest, grave abuse of authority, dishonesty
and violation of graft and corrupt practices and
the Anti-Red Tape Act. PREMPC, a cooperative
formed by some of the employees of the PRC,
operates inside the premises of PRC Tacloban
Office. It provides photocopying services and
sells mailing envelopes, mail stamps and
documentary stamps to PRC clients. On several
instances, the above-mentioned employees left
their posts during office hours, took PRC forms
(renewal, application for examination and oath
forms), documentary stamps, and window
envelopes with mailing stamps from PRC office
and sent them to PREMPC to be sold to the
latter's customers. CSCRO VIII issued a Formal
Charge against Ayesha and Cedie finding a prima
facie case for the administrative offense of Grave
Misconduct. CA directed Ayesha to submit
documents/pleadings that were not included in
her petition for review. But due to her failure to
do so, the CA dismissed the petition for review
711
without ruling on its merits. CA ruled that
Ayesha failed to comply with its Resolution
which required hereto submit the lacking
Exhibits "6" and "9" in her petition, within the
period required by law. Was it proper to dismiss
the petition for review based on procedural
grounds?
A: NO. Cases shall be determined on the merits, after
full opportunity to all parties for ventilation of their
causes and defenses, rather than on technicality or
some procedural imperfections. The CSC's decisions
were anchored principally on the sole testimony of
Loraine that Ayesha took PRC forms (renewal,
application and oath forms) from her and sent them
to PREMPC to be sold. There was no evidence
presented to show that Ayesha actually delivered
the forms to PREMPC. Likewise, there was no
evidence to support the allegation that the forms
were sold by Ayesha or PREMPC. In this case, CSC
has relied solely on the evidence presented by
Loraine without taking into account the
countervailing evidence established by Ayesha.
(Sonia Mahinay v CA & Alma Genotiva, G.R. 230355,
18 Mar. 2021)
Trial Court’s Findings as to the Credibility of
Witnesses, Not Disturbed on Appeal
The trial court’s findings of fact will not be disturbed
on appeal, unless there is a clear showing that it
plainly overlooked matters of substance which, if
considered, might affect the results of the review.
The credibility of witnesses is best determined by
the trial judge, who has the direct opportunity to
observe and evaluate their demeanor on the
witness stand. (People v. Pacuancuan, G.R. No.
144589, 16 June 2003)
Uncorroborated Testimony of an Accused who
turned into a State Witness Sufficient to Convict
his Co-accused
It may suffice to convict his co-accused if it is given
in a straightforward manner and is full of details
which by their nature could not have been the result
of deliberate afterthought, otherwise, it needs
corroboration, the presence or lack of which may
ultimately decide the case of the prosecution and
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
the fate of the accused. (People v. Sunga, G.R. No.
126029, 27 Mar. 2003)
Sufficiency of Evidence
In determining the sufficiency of evidence, what
matters is not the number of witnesses but the
credibility and the nature and quality of their
testimonies. The testimony of a lone witness is
sufficient to support a conviction if found positive
and credible. (Ceniza-Manantan v. People, G.R. No.
156248, 28 Aug. 2007)
Partial Credibility of a Witness
The testimony of a witness may be believed in part
and disbelieved in another part, depending on the
probabilities and improbabilities of the case.
(People v. Tan, G.R. No. 176526, 08 Aug. 2007)
NOTE: If the testimony of the witness on a material
issue is willfully false and given with an intention to
deceive, the court may disregard all the witness’
testimony under the Falsus in uno, falsus in omnibus
rule. (Riano, 2019) This is not a mandatory rule of
evidence but is applied by the courts in its
discretion. The court may accept and reject portions
of the witness’ testimony depending on the inherent
credibility thereof. (Regalado, 2008)
Falsus in uno, falsus in omnibus (in relation to
Credibility of Witness)
Literally, falsus in uno, falsus in omnibus means
“false in one thing, false in everything.”
If the testimony of a witness on a material issue is
willfully false and given with an intention to deceive,
the jury may disregard all the witness’ testimonies.
(Hargrave v. Stockloss, 127 N.J.L. 262, 21 A.2d 820,
823)
The principle of falsus in uno, falsus in omnibus is not
strictly applied in this jurisdiction. It deals only with
the weight of the evidence and is not a positive rule
of law. Modern trend in jurisprudence favors more
flexibility when the testimony of a witness may be
partly believed and partly disbelieved depending on
the corroborative evidence presented at the trial.
712
(People v. Negrosa, G.R. Nos. 142856-57, 25 Aug.
2003)
When the Maxim Falsus in uno, falsus in omnibus
applies
1. That the false testimony is as to one or more
material points; and
2. That there should be conscious and deliberate
intention to falsify a material point. (People v.
Pacapac, G.R. No. 90623, 07 Sept. 1995)
Extrajudicial Confession is NOT Sufficient
Ground for Conviction
An extrajudicial confession made by an accused,
shall not be sufficient ground for conviction, unless
corroborated by evidence of corpus delicti. (Sec. 3,
Rule 133, ROC, as amended)
When Circumstantial Evidence is Sufficient for
Conviction (2017 BAR)
1. There are more than one circumstances;
2. The facts from which the inferences are derived
are proven; and
3. The combination of all the circumstances is
such as to produce a conviction beyond
reasonable doubt. (Sec. 4, Rule 133, ROC, as
amended)
NOTE: Inferences cannot be based on other
inferences. (Sec. 4, Rule 133, ROC, as amended)
The corollary rule is that the circumstances proven
must constitute an unbroken chain which leads to
one fair and reasonable conclusion pointing to the
accused, to the exclusion of all others, as the guilty
person. (Trinidad v. People, G.R. No. 192241, 13 June
2012)
Q: A criminal complaint for simple arson was
filed against Allysa and she was convicted.
Allysa then appealed. She argued that none of
the prosecution’s witnesses had positively
identified her as the person who burned the
nipa hut. CA affirmed the Decision of the RTC in
toto. Allysa moved for reconsideration but it was
denied. Thus, Allysa filed a Petition for Review
on Certiorari arguing that the CA erred in
 Evidence
upholding her conviction based on
circumstantial evidence, which, being merely
based on conjecture, falls short of proving her
guilt beyond reasonable doubt. No direct
evidence was presented to prove that she
actually set fire to Marie’s nipa hut. Moreover,
there were two (2) incidents that occurred,
which should be taken and analyzed separately.
Is Allysa guilty of simple arson?
A: YES. The identity of the perpetrator of a crime
and a finding of guilt may rest solely on the strength
of circumstantial evidence. The commission of a
crime, the identity of the perpetrator, and the
finding of guilt may all be established by
circumstantial evidence. The circumstances must be
considered as a whole and should create an
unbroken chain leading to the conclusion that the
accused authored the crime. The proven
circumstances must be "consistent with each other,
consistent with the hypothesis that the accused is
guilty, and at the same time inconsistent with the
hypothesis that he is innocent, and with every other
rational hypothesis except that of guilt." In this case,
no one saw petitioner actually set fire to the nipa
hut. Nevertheless, the prosecution has established
multiple circumstances, which, after being
considered in their entirety, support the conclusion
that petitioner is guilty beyond reasonable doubt of
simple arson. (Marlon Bacerra vs. People of the
Philippines, G.R. No. 204544, 03 July 2017)
Q: BBB testified that: she was a classmate in
Kindergarten, friend and neighbor of the victim,
five-year-old AAA, who was fondly called Angel;
she knows that Angel is now dead; the last time
she saw Angel was when she and Angel played
with mud forming it into objects, underneath
their house in Samar at noontime after class;
thereafter, they went to pick santol; they also
went biking; then they went to pathway going to
Angel's house; Angel went to a place where there
was a gemelina plant with Totoy [the nickname
of Cabornay); she knows Totoy who is from
Barangay Atigawan because he was often seen in
the house of Nay Goring, the grandmother of
Angel; their house and the house of Nay Goring
are just near without any house in between; she
kept on looking at them (Totoy and Angel)
headed to the direction of Brgy. Nabong, until
713
they disappeared from her view; she tried to
pull Angel away from Totoy, but Angel was
heavy; she ran because she was afraid, she might
be made to go with them; she went home, played
some more and ate lunch; and, next time she saw
Angel, Angel was already inside their house,
dead. BBB's testimony is corroborated by
Abonger, her father. Further, the prosecutions
presented other witnesses. RTC convicted
Carbonay of rape with homicide, but CA
convicted him only of attempted rape and
homicide. Despite lack of direct evidence, may
Carbonay be convicted?
A: YES. While it is a long-standing rule that medical
finding is not an element of rape and cannot
establish the one responsible for the same,
jurisprudence dictates that in the absence of a direct
evidence, it is corroborative of strong
circumstantial evidence that the victim was raped.
CA finds that Carbonay is guilty of attempted rape
with homicide, because the doctor did not declare
that there was the slightest penetration of the
victim's vagina and the whitish discharge found by
the doctor on the victim's vaginal canal was not
tested for chemical analysis. The medical
examination on the samples taken from the vagina
is not indispensable to an inference leading to rape.
However, based on the hematoma on the left
inguinal area, as well as on the perineal area of the
victim's vagina, the position of the victim when she
sustained the hematoma and the removed
underwear one (1) meter away from the victim, we
are convinced that, at the very least, there was an
attempt to rape the victim. Dr. Solis testified that the
perpetrator could have been trying his best to rape
the victim.
No other evidence indicates that Carbonay
succeeded in having a carnal knowledge of the
victim. (People of the Philippines v Carbonay, G.R.
250649, 24 Mar. 2021)
Weight to be given Opinion of Expert Witness,
How Determined
The court has wide latitude of discretion in
determining the weight to be given to such opinion,
and for that purpose may consider the following:
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
a. Whether the opinion is based on sufficient facts
or data;
b. Whether it is the product of reliable principles
and methods;
c. Whether the witness has applied the principles
and methods to the reliability of the facts of the
case; and
d. Such other factors as the court may deem
helpful to make such determination. (Sec. 5,
Rule 133, ROC, as amended)
Q: At 3:30 o'clock in the morning of June 21,
1997, Atilano Andong (Andong) was sleeping at
home with his common-law wife Marilou
Gamboa (Gamboa) and their child. Suddenly,
Quijano started banging on their door and
shouting Andong's name. When Andong rose
from the bed, he was surprised to see Quijano
standing 60 centimeters away from him,
beaming a flashlight at him. Then, Quijano
suddenly shot Andong on his right shoulder.
Gamboa pleaded for Quijano to stop.
Andong's neighbors Chona Baguio (Baguio) and
Rosemarie Barrellano (Barrellano) heard a
gunshot. They went outside of their house and
saw Quijano holding a handgun. Thereafter,
they saw Andong blood-stained and with a
wound on his right shoulder.
Andong was rushed to the hospital where he
underwent an operation. He was treated by Dr.
Prudencio Manubag (Dr. Manubag) and was
confined for more than two weeks.
Is Quijano guilty of frustrated murder?
A: NO. Quijano is not guilty of frustrated murder, but
rather of attempted murder. In Serrano v. People,
the Court cautioned that the accused may not be
convicted of frustrated homicide in the absence of
clear evidence establishing that the injury would
have been fatal if not medically attended to. When
nothing in the evidence shows that the wound
would be fatal without medical intervention, the
character of the wound enters the realm of doubt;
under this situation, the doubt created by the lack of
evidence should be resolved in favor of the
petitioner. Thus, the crime committed should be
attempted, not frustrated, homicide. petitioner.
714
Thus, the crime committed should be attempted, not
frustrated, homicide. The victim's attending
physician did not testify on the gravity of the wound
inflicted on the victim.
The evidence fails to prove with moral certainty that
Andong would have died from the gunshot wound
without timely medical intervention. Unfortunately,
the prosecution failed to present Dr. Manubag, the
physician who treated Andong and administered
the alleged life-saving procedure. The Medical
Certificate alone, without the testimony of Dr.
Manubag is inadequate proof of the nature and
extent of Andong's injury. This lacuna may not be
filled with the testimony of the expert witness Dr.
Paradela.
While it is true that the prosecution and the defense
stipulated on the qualification of Dr. Paradela, this
stipulation does not in any way mean that the Court
must accord probative value and weight to his
testimony. The stipulation solely pertained to the
physician's qualification was an expert witness
being a medical doctor." It did not dispense with the
prosecution's burden to prove the elements of the
offense.
Dr. Paradela's statement was so curt and wanting in
essential details that he failed to furnish sufficient
facts and data relevant to the charge. Moreover, the
fact that the RTC and the CA gave probative value to
Dr. Paradela's expert opinion does not in any way
bind this Court to blindly adopt the same finding,
especially in light of facts warranting a different
conclusion. (Quijano v. People, G.R. No. 202151, 10
Feb. 2021)
Alibi
It is a defense where an accused claims that he was
somewhere else at the time of the commission of the
offense. It is one of the weakest defenses an accused
may avail because of the facility with which it can be
fabricated, just like a mere denial. (People v.
Esperanza, G.R. Nos. 139217-24, 27 June 2003) When
this is the defense of the accused, it must be
established by positive, clear and satisfactory
evidence.
 Evidence
NOTE: A categorical and positive identification of an
accused, without any showing of ill-motive on the
part of the eyewitness testifying on the matter,
prevails over an alibi. (People v. Gingos and Margote,
G.R. No. 176632, 11 Sept. 2007)
For the defense of alibi to prosper, the accused must
show that:
1. He or she was somewhere else; and
2. It was physically impossible for him to be at the
scene of the crime at the time of its commission
(People v. Gerones, et al., G.R. No. L-6595, 29 Oct.
1954)
Alibi may serve as basis for acquittal if it can really
be shown by clear and convincing evidence that it
was indeed physically impossible for the accused to
be at the scene of the crime at the time of
commission. (People v. Cacayan, G.R. No. 180499, 09
July 2008)
For the defense of alibi to prosper, the requirements
of time and place must be strictly met. (Ibanez v.
People, G.R. No. 190798, 27 Jan. 2016)
Out-of-Court Identification
It is a means of identifying a suspect of a crime and
is done thru:
1. Show-ups: where the suspect alone is brought
face-to-face with the witness for identification;
NOTE: Eyewitness identification is often
decisive of the conviction or acquittal of an
accused. Identification of an accused through
mug shots is one of the established procedures
in pinning down criminals. However, to avoid
charges of impermissible suggestion, there
should be nothing in the photograph that would
focus attention on a single person. (People v.
Villena, G.R. No. 140066, 14 Oct. 2002)
2. Mug shots: where photographs are shown to
the witness to identify the suspect; or
3. Line-ups: where a witness identifies the
suspect from a group of persons lined up for the
715
purpose. (People v. Claudio Teehankee, Jr., G.R.
Nos. 111206-08, 06 Oct. 1995)
NOTE: A police line-up is merely a part of the
investigation process by police investigators to
ascertain the identity of offenders or confirm
their identification by a witness to the crime.
Police officers are not obliged to assemble a
police line-up as a condition sine qua non to
prove the identity of an offender. If, on the basis
of the evidence on hand, police officers are
certain of the identity of the offender, they need
not require any police line-up anymore.
(Tapdasan, Jr. v. People, G.R. No. 141344, 21 Nov.
2002)
Q: Tumbaga was watching a basketball game in
Barangay Matingain, together with his uncle.
When he was about to board his parked
motorcycle, he was shot twice at the back.
Tumbaga was able to survive. Aliling's alibi was
that he was in another Barangay for a miting de
avance. Aliling's defense witness, Bathan, also
testified that he was at the same basketball
court on that night and he saw that Aliling was
about to ride his motorcycle when he was shot.
However, Bathan did not see accused Hilario
Aliling at the place when the shooting happened
and instead saw an unidentified man shot the
private complainant. The RTC and the CA found
Aliling guilty and held that the positive
allegations of the prosecution witnesses
prevailed over the denial and alibi of the
defense witnesses. Aliling argued that the
testimonial evidence of the prosecution cannot
be relied on as they were inconsistent and
incredible, especially against the eyewitness
account of Bathan. Are the RTC and CA correct?
A: NO. Positive testimony is generally given more
weight than the defenses of denial and alibi which
are held to be inherently weak defenses because
they can be easily fabricated. While, indeed, the
defense of denial or alibi can be easily fabricated,
the same can be said of untruthful accusations, in
that they can be as easily concocted. Thus, if found
credible, the defenses of denial and alibi may be
considered complete and legitimate defenses. The
burden of proof does not shift by the mere
invocation of said defenses; the presumption of
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
innocence remains in favor of the accused. In alibi,
the accused must prove not only that he was at some
other place at the time the crime was committed,
but that it was likewise physically impossible for
him to be at the scene of the crime at the time
thereof.
In this case, the Court found that Aliling's alibi was
straightforward, credible, and corroborated by an
impartial witness. Bolstering the alibi of Aliling is
the eyewitness account of Bathan who positively
testified that he witnessed the shooting incident and
saw that the culprit was not Aliling. (Aliling v. People,
G.R. No. 230991, 11 June 2018, J. Caguioa)
Admissibility of Out-of-Court Identification
It is admissible and reliable when it satisfies the
“totality of circumstances” test. Under the “totality
of circumstances” test, the following factors are
considered:
1. Witness’ opportunity to view the criminal at the
time of the crime;
2. Witness’ degree of attention at that time;
3. Accuracy of any prior description given by the
witness;
4. Level of certainty demonstrated by the witness
at the identification;
5. Length of time between the crime and the
identification; and
6. Suggestiveness of the identification procedure.
(People v. Claudio Teehankee, Jr., G.R. Nos.
111206-08, 06 Oct. 1995)
Frame-up
Allegations of frame-up by police officers are
common and standard defenses in most dangerous
drugs cases. For this claim to prosper, the defense
must adduce clear and convincing evidence to
overcome presumption that government officials
have performed their duties in a regular and proper
manner. Thus, in the absence of proof of motive to
falsely impute such a serious crime against the
accused, the presumption of regularity in the
performance of official duty shall prevail. (People v.
Almodiel, G.R. No. 200951, 05 Sept. 2012)
716
Corpus Delicti
It is the actual commission by someone of the
particular crime charged. It refers to the fact of the
commission of the crime, not to the physical body of
the deceased or to the ashes of a burned building.
The corpus delicti may be proven by the credible
testimony of a sole witness, not necessarily by
physical evidence. (Rimorin v. People, G.R. No.
146481, 30 Apr. 2003)
Elements of Corpus Delicti
1. Proof of the occurrence of a certain event; and
2. A person’s criminal responsibility for the act.
(People v. Corpuz, G.R. No. 148919, 17 Dec. 2002)
NOTE: The identity of the accused is not a necessary
element of the corpus delicti.
Plea of Guilty in Open Court Sufficient without
Proof of Corpus Delicti
A plea of guilty at the arraignment in open court,
which is a confession of guilt by the defendant, is
sufficient to support a conviction without necessity
of proof aliunde of corpus delicti. In contrast, an
extrajudicial confession made by defendant does
not warrant a conviction unless corroborated by
independent evidence of corpus delicti. (Francisco,
1996)
Q: Jose Mariposa was charged with violation of
Sec. 4, Art. 2 of the Dangerous Drugs Act of 1972.
He was apprehended thru a buy-bust operation.
During trial the prosecution failed to produce
the marijuana sticks that Mariposa sold during
the entrapment operation. Is there a need to
produce the marijuana sticks to convict the
accused?
A: YES. The elements necessary for a charge of
illegal sale of marijuana are: (1) the identity of the
buyer and the seller, the object, and consideration;
and (2) the delivery of the thing sold and the
payment therefore. It is indispensable that the
identity of the marijuana which constitutes the
corpus delicti must be established before the court.
During the trial, the sticks of marijuana were never
presented as evidence to prove that appellant
 Evidence
indeed sold the same during the entrapment
operation. It is indispensable in every prosecution
for illegal sale of marijuana, a prohibited drug, is the
submission of proof that the sale for the illicit drug
took place between the poseur-buyer and the seller
thereof, and the presentation further of the
marijuana, the corpus delicti, as evidence in court.
(People v. Rigodon, G.R. No. 111888, 08 Nov. 1994)
Res ipsa loquitur
It literally means the “thing speaks for itself”. This
doctrine provides that the fact of the occurrence of
an injury, taken with the surrounding
circumstances. Where the thing which caused the
injury complained of is shown to be under the
management of the defendant or his servants and
the accident is such as in ordinary course of things
does not happen if those who have its management
or control use proper care, it affords reasonable
evidence, in the absence of participation by the
defendant, that the accident arose from or was
caused by the defendant's want of care. (Ramos v.
CA, G.R. No. 124354, 29 Dec. 1999)
Application of the Doctrine DOES NOT Dispense
with the Requirement of Proof of Negligence
It is considered merely as evidentiary or in the
nature of procedural rule. It is simply in the process
of such proof, permitting the plaintiff to present
enough of the attending circumstances to invoke the
doctrine, creating an inference or presumption of
negligence and thereby place on the defendant the
burden of going forward with the proof to the
contrary. (Ramos, et al. v. CA, G.R. No. 124354, 29 Dec.
1999)
J. RULES ON ELECTRONIC EVIDENCE
(A.M. No. 01-7-01-SC)
Electronic Document (2012 BAR)
i. Information or the representation of
information, data, figures, symbols or other
modes of written expression, described or
however represented, by which a right is
717
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; and
ii. It includes digitally signed documents and any
print-out or output, readable by sight or other
means, which accurately reflects the electronic
data message or electronic document. (Sec. 1(h),
Rule 2, A.M. No. 01-07-01-SC)
For the document to be deemed electronic, it is
important that it be received, recorded, transmitted,
stored, processed, retrieved, or produced
electronically. The Rule does not absolutely require
that that the electronic document be initially
generated or produced electronically. (Riano, 2019)
Electronic Data Message
Information generated, sent, received, or stored by
electronic, optical or similar means. (Sec. 1(f), Rule
2, A.M. No. 01-07-01-SC)
Electronic Documents as Functional Equivalent
of Paper-based Documents
Whenever a rule of evidence refers to the term of
writing, document, record, instrument,
memorandum or any other form of writing, such
term shall be deemed to include an electronic
document. (Sec. 1, Rule 3, A.M. No. 01-07-01-SC)
Admissibility
1. It must comply with the rules on admissibility
prescribed by the Rules of Court and related
laws; and
2. If must be authenticated in the manner
prescribed by these Rules.
Privileged Communication
The confidential character of a privileged
communication is not denied solely on the ground
that it is in the form of an electronic document.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law

Electronic Data Message vs. Electronic What differentiates an electronic document from a
Document paper-based document is the manner by which the
information is processed. By no stretch of the
ELECTRONIC DATA ELECTRONIC imagination can a person’s signature affixed
MESSAGE DOCUMENT manually be considered as information
As to Definition electronically received, recorded, transmitted,
Information or the stored, processed, retrieved or produced. Hence, the
representation of argument that since the paper printouts were
information, data, produced through an electronic process, then these
figures, symbols or photocopies are electronic documents as defined in
other modes of written the Rules on Electronic Evidence is obviously an
expression, described erroneous, if not preposterous, interpretation of the
or however law. (NPC v. Codilla, G.R. No. 170491, 04 Apr. 2007)
represented, by which
Information generated, a right is established or Original of an electronic document
sent, received or stored an obligation
by electronic, optical or extinguished, or by An electronic document shall be regarded as the
similar means. which a fact may be equivalent of an original document under the Best
proved and affirmed, Evidence Rule if it is a printout or output readable
which is received, by sight or other means, shown to reflect the data
recorded, transmitted, accurately. (Sec. 1, Rule 4, A.M. No.01-07-01-SC)
stored, processed,
retrieved or produced Copies as Equivalents of the Originals
electronically.
It includes digitally GR: Copies or duplicates shall be regarded as the
signed documents. equivalent of the original when:

While "data message" has reference to information
electronically sent, stored or transmitted, it does not
necessarily mean that it will give rise to a right or
extinguish an obligation, unlike an electronic
document. Evident from the law, however, is the
legislative intent to give the two terms the same
construction. (MCC Industrial Sales Corporation v.
Ssangyong Corporation, G.R. No. 170633, 17 Oct.
2007)
Related Jurisprudence
The terms "electronic data message" and "electronic
document," as defined under the Electronic
Commerce Act of 2000, do not include a facsimile
transmission. Accordingly, a facsimile transmission
cannot be considered as electronic evidence. It is
not the functional equivalent of an original under
the Best Evidence Rule and is not admissible
as electronic evidence. (Torres v. PAGCOR, G.R. No.
193531, 14 Dec. 2011)
1. A document is in two or more copies executed
at or about the same time with identical
contents; or
2. It is a counterpart produced by the same
impression as the original, or from the same
matrix, or by mechanical or electronic re-
recording, or by chemical reproduction, or by
other equivalent techniques which are
accurately reproduces the original. (Sec. 2, Rule
4, A.M. No.01-07-01-SC)
XPNs:
1. A genuine question is raised as to the
authenticity of the original; or
2. In the circumstances, it would be unjust or
inequitable to admit a copy in lieu of the
original. (Sec. 2, Rule 4, A.M. No.01-07-01-SC)
In Maliksi v. COMELEC (G.R. No. 203302, 11 Apr.
2013), the Supreme Court ruled that the picture
images of the ballots are electronic documents that
are regarded as the equivalents of the original
official ballots themselves. Citing Vinzons-Chato v.

718
 Evidence
House of Representatives Electoral Tribunal, the
Court held that "the picture images of the ballots, as
scanned and recorded by the PCOS, are likewise
‘official ballots’ that faithfully capture in electronic
form the votes cast by the voter, as defined by
Section 2(3) of R.A. No. 9369. As such, the printouts
thereof are the functional equivalent of the paper
ballots filled out by the voters and, thus, may be
used for purposes of revision of votes in an electoral
protest."
That the two documents—the official ballot and its
picture image—are considered "original
documents" simply means that both of them are
given equal probative weight. In short, when either
is presented as evidence, one is not considered as
weightier than the other.
Burden of Proving Authenticity
The person offering the document has the burden to
prove its authenticity. (Sec. 1, Rule 5, A.M. No.01-07-
01-SC)
Evidentiary Weight of Electronic Documents;
Factors for 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;
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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. (Sec. 1, Rule 7, A.M. No.01-07-01-SC)
Affidavit of Evidence
All matters relating to the admissibility and
evidentiary weight of an electronic document may
be established by an affidavit stating facts of direct
personal knowledge of the affiant or based on
authentic records. The affidavit must affirmatively
show the competence of the affiant to testify on the
matters contained therein. (Sec. 1, Rule 9, A.M.
No.01-07-01-SC)
NOTE: Cross-examination of the deponent is
allowed as a matter of right by the adverse party.
(Sec. 2, Rule 9, A.M. No.01-07-01-SC)
Inapplicability of the Hearsay Rule
A memorandum, report, record or data compilation
of acts, events, conditions, opinions, or diagnoses,
made by electronic, optical or other similar means
at or near the time of or from transmission or supply
of information by a person with knowledge thereof,
and kept in the regular course or conduct of a
business activity, and such was the regular practice
to make the memorandum, report, record, or data
compilation by electronic, optical or similar means,
all of which are shown by the testimony of the
custodian or other qualified witnesses, is excepted
from the rule on hearsay evidence. (Sec. 1, Rule 8,
A.M. No.01-07-01-SC)
NOTE; The presumption provided for in Sec. 1, Rule
8 may be overcome by evidence of the
untrustworthiness of the source of information or
the method or circumstances of the preparation,
transmission or storage. (Sec. 2, Rule 8, A.M. No.01-
07-01-SC)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law
Manner of Authentication of Electronic
Documents
1. By evidence that it had been digitally signed by
the person purported to have signed the same;
2. By evidence that other appropriate security
procedures or devices as may be authorized by
the Supreme Court or by law for authentication
of electronic documents were applied to the
document; or
3. By other evidence showing its integrity and
reliability to the satisfaction of the judge. (Sec.
2, Rule 5, A.M. No.01-07-01-SC)
NOTE: The above-mentioned requirements will
only apply when the document is a private
document and the same is offered as an authentic
document. (Riano, 2019)
Manner of Authentication of Electronic
Signatures
1. By evidence that a method or process was
utilized to establish a digital signature and
verify the same;
2. By any other means provided by law; or
3. By any other means satisfactory to the judge as
establishing the genuineness of the electronic
signature. (Sec. 2, Rule 6, A.M. No.01-07-01-SC)
Audio, Video, and Similar Evidence
Audio, photographic and video evidence of events,
acts or transactions shall be admissible provided it
shall be shown, presented or displayed to the court
and shall be identified, explained or authenticated
by the person who made the recording or by some
other person competent to testify on its accuracy.
(Sec. 1, Rule 11, A.M. No.01-07-01-SC)
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, A.M. No.01-07-01-SC)
Under Section 2, Rule 11 of the Rules on Electronic
Evidence, ephemeral electronic communications
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shall be proven by the testimony of a person who
was a party to the same or who has personal
knowledge thereof. In this case, complainant who
was the recipient of said messages and therefore
had personal knowledge thereof testified on their
contents and import. Respondent herself admitted
that the cellphone number reflected in
complainant’s cellphone from which the messages
originated was hers.
Moreover, any doubt respondent may have had as
to the admissibility of the text messages had been
laid to rest when she and her counsel signed and
attested to the veracity of the text messages
between her and complainant. There is no doubt as
to the probative value of the text messages as
evidence in determining the guilt or lack thereof of
respondent. (Nuez v. Cruz-Apao, A.M. No. CA-05-18-
P, 12 Apr. 2005)
By analogy, a deleted Facebook post may be
admitted as an ephemeral electronic
communication subject to the exclusionary rule of
whether it was illegally obtained or not.
Q: Is the printout of a photograph from your
mobile phone showing a fly in the soup you
ordered admissible evidence in an action for
damages against the restaurant owner? Explain
briefly. (BAR 20-21)
A: YES. The printout of a photograph from a mobile
phone is admissible in evidence. Under the Rules on
Evidence, if a document or data is stored in a
computer or similar device, any printout therefrom
is an original and thus admissible in evidence. (Sec.
4(a), Rules 130, ROC, as Amended)
Here, the mobile phone is a device which is similar
to a computer. A photograph is considered as a
document under the Rules on Evidence. (Sec. 2, Rule
130, ROC, as amended)
Hence, the printout of the photograph is an original
and thus admissible in evidence.
Q: Moises Oracion, Jr. and Emily L. Oracion
applied for and were granted by petitioner
credit card accommodations with the issuance
of a Bankard PESO Mastercard Platinum.
Thereafter, respondents, on various dates, used
 Evidence
the credit card in purchasing different products
but failed to pay. In its complaint against the
respondents, petitioner attached "duplicate
original" copies of the Statements of Account
from 17 April 2011 to 15 December 2011 and
the Credit History Inquiry. Despite the receipt of
the SOAs, respondents failed and refused to
comply. Consequently, petitioner sent a written
demand letter to respondents but despite
receipt, respondents refused to pay. Hence,
petitioner filed a Complaint for Sum of Money
before the MeTC. The MeTC dismissed the
complaint and noted that the signatures in the
documents attached in the complaint are mere
photocopies and stamp marks. The MeTC
rationalized that under the Best Evidence Rule,
the court shall not receive any evidence that is
merely substitutionary, such as stamp mark.
The RTC held that it is up to petitioner to prove
that the attachments in support of the complaint
are originals and not merely substitutionary in
nature. In its petition for review before the
Supreme Court, petitioner raises for the first
time on appeal the Rules on Electronic Evidence
arguing that since electronic documents, when
directly printed out are considered original
reproductions, they are admissible under the
Best Evidence Rule.
Did the lower courts err in dismissing the
complaint?
A: NO. Procedurally, petitioner cannot adopt a new
theory in its appeal before the Court and abandon
its theory in its appeal before the RTC. Pursuant to
Sec. 15, Rule 44 of the Rules, petitioner may include
in his assignment of errors any question of law or
fact that has been raised in the court below and is
within the issues framed by the parties. Before the
RTC, petitioner did not raise the Rules on Electronic
Evidence to justify that the so-called "duplicate
original copies" of the SOAs and Credit History
Inquiry are electronic documents. Rather, it insisted
that they were duplicate original copies, being
computer-generated reports, and not mere
photocopies or substitutionary evidence, as found
by the MeTC.
As observed by the RTC, the attachments to the said
Manifestation "are merely photocopies of the
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annexes attached to the complaint, but with a mere
addition of stamp marks bearing the same
inscription as the first stamp marks" that were
placed in the annexes to the complaint. Because
petitioner has not raised the electronic document
argument before the RTC, it may no longer be raised
nor ruled upon on appeal. Also, estoppel bars a
party from raising issues, which have not been
raised in the proceedings before the lower courts,
for the first time on appeal. Clearly, petitioner, by its
acts and representations, is now estopped to claim
that the annexes to its complaint are not duplicate
original copies but electronic documents. It is too
late in the day for petitioner to switch theories.
Even assuming that the Court brushes aside the
above-noted procedural obstacle, the Court cannot
just concede that the pieces of documentary
evidence in question are indeed electronic
documents. For the Court to consider an electronic
document as evidence, it must pass the test of
admissibility. According to Sec. 2, Rule 3 of the Rules
on Electronic Evidence, "an electronic document is
admissible in evidence if it complies with the rules
on admissibility prescribed by the Rules of Court
and related laws and is authenticated in the manner
prescribed by these Rules." Rule 5 of the Rules on
Electronic Evidence lays down the authentication
process of electronic documents. Sec. 1 of Rule 5
imposes upon the party seeking to introduce an
electronic document in any legal proceeding the
burden of proving its authenticity in the manner
provided therein. Sec. 2 of Rule 5 sets forth the
required proof of authentication.
Petitioner could not have complied with the Rules
on Electronic Evidence because it failed to
authenticate the supposed electronic documents
through the required affidavit of evidence. As
earlier pointed out, what petitioner had in mind at
the inception was to have the annexes admitted as
duplicate originals as the term is understood in
relation to paper-based documents. Thus, the
annexes or attachments to the complaint of
petitioner are inadmissible as electronic
documents, and they cannot be given any probative
value.
In the absence of such authentication through the
affidavit of the custodian or other qualified person,
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 Remedial Law

the said annexes or attachments cannot be admitted

and appreciated as business records and excepted
from the rule on hearsay evidence. Consequently,
the annexes to the complaint fall within the Rule on
Hearsay Evidence and are to be excluded pursuant
to Section 36, Rule 130 of the Rules of Court. (RCBC
Bankard Services Corp. v. G.R. No. 223274. 19 June
2019, J. Caguioa)

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