RULE 131 – BURDEN OF PROOF; BURDEN OF EVIDENCE AND PRESUMPTIONS

Section 1. BURDEN OF PROOF IS WHY WE PRESENT EVIDENCE

Burden of proof does not shift, BURDEN OF EVIDENCE SHIFTS

AMOUNT OF EVIDENCE = QUANTUM OF PROOF

Criminal case – beyond reasonable doubt

An accused is entitled to acquittal unless proof beyond reasonable doubt exists. It is the prosecution that has the burden
of proof, not the accused.

CONSTITUTIONAL PRESUMPTION – In all criminal prosecutions, the accused shall be presumed innocent until proven
guilty.

Civil Case – Preponderance of evidence

Whoever makes an affirmative allegation has the burden of proof. A mere allegation is not an evidence, he who alleges
has the burden of proving his allegation with requisite quantum of evidence which is preponderance of evidence.
(RAMOS v OBISPO)

Administrative case – substantial evidence

Burden of proof rests on the party that AFFIRMS, not the one who denies a fact. (METROBANK v CPR Promotions)

In EMINENT DOMAINCASES – the LGU that seeks to expropriate private property has the burden of proving the
existence of compliance with the elements for the valid exercise of the right of eminent domain (JILCF INC v CITY OF
PASIG)

In a case for COLLECTION – the plaintiff has the burden of proof that the defendant has a debt. If defendant claims that
he has already paid, then there is an AFFIRMATIVE defense, a defense of confession and avoidance. Now, he has the
burden to prove the extinguishment of the alleged obligation. (MAYON HOTEL & RESTAURANT v ADANA)

ANTITHESIS OF BURDEN OF PROOF is BENEFIT OF ASSUMPTION

Burden of proof – you have to prove the ELEMENTS OF CAUSE OF ACTION in the amount of quantum of evidence set by
law

If the evidence is lacking, the defendant does not have to produce evidence since the latter has the BENEFIT OF
ASSUMPTION.

PRIMA FACIE CASE – a cause of action or defense that is sufficiently established by a party’s evidence to justify a verdict
in his or her favor, provided such evidence is not rebutted by the other party. It means that the party’s evidence would
already sustain a judgement if no evidence is presented by the other party.

In sum:

• It means that the party with the initial burden of proof has discharged it
• It means that the burden of evidence has not shifted to the opposing party who must present evidence to meet
the prima facie evidence against him
• IF he presents no evidence, he loses the case. The court can render judgement based on the prima facie case.
TEST TO DETERMINE WHERE BURDEN OF PROOF LIES – Which party to an action or suit will fail if he offers no evidence
competent to show the facts averred.

EFFECT OF ABSENCE OR INSUFFICIENCY OF EVIDENCE

In CRIMINAL CASES – accused will be acquitted because of PRESUMPTION OF INNOCENCE, meaning the prosecution
failed to destroy the accused’s benefit of assumption.

In CIVIL CASES –

CIVIL CASES
If defendant does not file an answer
If the DEFENDANT files an answer and sets up PURELY
NEGATIVE DEFENSE and no evidence is presented (on the
part of plaintiff?)
If defendant files an answer and sets up affirmative
defenses and no evidence was presented
Plaintiff wins as he takes judgement by default
Defendant wins because the plaintiff failed to discharge
his burden
Plaintiff wins because the defendant failed to discharge.
As the defendant admitted existence of the obligation, it
is the defendant’s burden to prove his affirmative
defense

THE BURDEN OF PROOF IS FIXED BT PLEADINGS – It depends on the submissions of the parties during the case.

Buden of proof Is fixed, but the burden of evidence shifts.

COMPONENT ONERA IN ONUS PROBANDI

1. Burden of going forward - the duty to produce evidence

2. Burden of persuasion – convincing trier of facts that the burdened party is entitled to prevail

Burden of proof is not the same with burden of evidence.

Burden of evidence is the duty resting upon a party by means of evidence, to create or meet a prima facie case or in
other words of the Rule, as amended, it is the duty of a party to present evidence sufficient to establish or rebut a FACT
in issue to establish a prima facie case.

The burden of going forward with the evidence may shift from one side to the other as the exigencies of the trial require
and shift with alternating frequency.

Burden of evidence is a component of burden of proof.

Burden of Proof Burden of Evidence

DEFINITION It is the duty of a party to present
evidence on the facts in issue
necessary to establish his claim of
defense by the amount of evidence
required by law
SHIFTING OF BURDEN Does not shift; He who asserts the
affirmative of the issue has the
burden of proof
EFFECT OF PRESUMPTION The one who has the burden of proof
is relived for the time being from
introducing evidence in support of his
averment because the presumptions
stands in the place of evidence
It is the duty of the party to present
evidence sufficient to establish or
rebut a fact in issue to establish a
PRIMA FACIE CASE
Shifts alternately between parties
It creates a prima facie case and
thereby sustains the said burden of
evidence on the point which it
covers, shifting it to the other party,
it relieves those favored thereby of
 the burden of proving the fact
presumed

If PROSECUTION FAILS TO DISCAHRGE ITS BURDEN DURING THE PRESENTATION OF EVIDENCE-IN-CHIEF – the accused is
entitled to acquittal under the presumption that the accused is innocent. The accused must file a DEMURRER TO
EVIDENCE -
Demurrer to evidence may be used when the court has insufficient evidence

The court may moto proprio use this, after giving the prosecution the opportunity to be heard, or UPON DEMURRER TO
EVIDENCE filed by accused with or without leave of court.

“PROSECUTION REST ITS CASE” – meaning the prosecution will no longer present any evidence.

What is next? FORMAL OFFER OF EVIDENCE.

A demurrer to evidence is similar to a motion to dismiss in civil cases.

REVIEW:

4 grounds to grant a motion to dismiss:

1. Lack of jurisdiction over the subject matter

2. Litis Pendencia
3. Res Judiciata
4. Prescription (barred by the statute of limitations)

PRACTICAL TIP: In civil cases, you can appeal. In CRIMINAL CASES, you cannot since it would be double jeopardy.

PRINCIPLE OF NEGATIVE AVERMENTS

GR: Negative allegations NEED NOT BE PROVED whether in CIVIL OR CRIMINAL CASES – HE AFFIRMS A FACT MUST
PROVE IT, HE WHO DENIES THE FACT DOES NOT HAVE TO

XPN: Where such negative allegations or essential parts of the cause or action or defense in a civil case, or are essential
ingredients of the offense in a criminal case or the defenses thereto, negative allegations should be proved

DOCTRINE OF EQUIPOISE

The more stronger/heavier/weighty a party presents the heavier his side would be, the other party must counteract
with a better weight of evidence

If both sides have equal weighty evidence they are called the EQUIPONDERANCE OF EVIDENCE – evenly balanced scale.
The decision would be adverse to the party charged with the burden of proof.

BASIS of the abovementioned doctrine – DUE PROCESS, no one shall be deprived of life, liberty or property WITHOUT
DUE PROCESS OF LAW

RIVERA v CA – Where the evidence on an ISSUE OF FACT IS IN EQUIPOISE OR THERE IS DOUBT ON WHICH SIDE THE
EVIDENCE PREPONDERATES the party who has the burden of proof fails upon that issue.

PRESUMPTIONS – an inference as to the existence or non-existence of a fact with courts are permitted to draw from the
proof of other facts. A presumption is an assumption of fact resulting from a rule of law which requires such facts to be
assumed from another fact or group of facts found or other wise established in the action (BLACKS’s Law

When presumption is applicable, there is a fact proved or presumed.

PRESUMPTION IS NOT AN EVIDENCE IN ITSELF but an assumption resulting from the evidence
GR: In Negligence or tors, the defendant does not have to prove anything, he has the benefit of assumption.
XPN: RES IPSA LOQUITOR – the presence of facts and circumstances surrounding the injury clearly indicates NEGLIGENCE
on the part of the defendant. This applies whenever it is so IMPROBABLE that such accident would have happened
without the fault of the defendant.

TYPES OF PRESUMPTION

1. PRESUMPTION ON JURIS OR LAW – an assumption which LAW requires to be made from a set of facts. Reduced
to fixed rules and form part of the system of jurisprudence.
2. PRESUMPTION HOMINIS OIR OF FACT – deduction which reason draws from facts proved w/o an express
direction from the law to that effect. Totally discretionary on the court

PRESUMPTIONS OF LAW UNDER THE RULES OF COURT

a. Conclusive presumption – Juris et de jure – even if you have proof you cannot present it. This is irrebuttable.

b. Disputable presumptions – Juris Tantum – The law permits it to be contradicted. When evidence that rebutes the
presumption is admitted the force of the presumption disappears.

Section 2. CONCLUSIVE PRESUMPTIONS – an inference which the law makes so peremptory that it will not allow it to be
overturned by contrary proof however so strong. (ESTOPPEL)

a. Whenever a party has, by HIS OR HER OWN DECLARATION, ACTR OR OMISSION, intentionally and deliberately
led another to believe a particular thing true, and to act upon such belief, HE OR SHE CANNOT in any litigation
arising out of such declaration, act, or omission be permitted to FALSIFY it. (PERSON MAKING REPRESENTATION
CANNOT CLAIM BENEFIT FROM THE HE HIMSELF COMMITTED)
a. You cannot take back what you have already declared, estopped in other words.
b. The tenant is not permitted to deny the title of his or her landlord at the time of commencement of the relation
of landlord and tenant between them.
a. This presumption does not apply in a case where the landlord-tenant relationship has not been
sufficiently established or where the very existence of the relationship is the very issue of the case
b. If there was a change in the nature of the title of the landlord during the substinence of the lease,
presumption does not apply
i. Such as when the landlord’s title has expired, or been conveyed to another, or been defeated a
title paramount, subsequent to the commencement of the lessee-lessor relationship

OSTENTIBLE COPORATIONS – persons representing themselves as a corporation shall be corporation by estoppel and
shall be liable as GENERAL PARTNERS.

Under 9 YEARS OF AGE – conclusively presumed to act without discernment and is on that account exempt from
CRIMINAL LIABILITY, in the same vein, they are presumed to be incapable of contributory negligence.

In RAPE CASE, statutory rape – proof of FORCE, INTIMIDATION, or CONSENT is unnecessary as they are not elements of
statutory rape. The absence of free consent is conclusively presumed when the victim is below the age of 12.

This means any adult engaging in sexual contact with anyone 16 or under would be committing statutory rape
unless the age difference between them was three years or less and sex was proven to be consensual, and
neither abusive nor exploitative – AGE IS RAISED FROM 12 to 16 years old.,XPN: Age difference between
them was THREE YEARS OR LESS and sex was proven to be CONSENSUAL, and neither abusive or
exploitative. Exception does not apply if the victim is under 13 years old. (RA 116481)
OCENPO through their predecessors in interest of an agricultural land of the public domain, under a BONA FIDE CLAIM
of acquisition or ownership for at least THIRTY YEARS immediately preceding the filing of the application for
confirmation of title except WAR OR FORCE MAJURE, shall be deemed conclusively presumed to have performed all
conditions essential to a government grant.
DOCTRINE OF EQUITABLE ESTOPPEL – When the other party is aware that the there was a deviation in the terms,
despite such knowledge, the bank was silent on the violation of the loan agreement, the one not acting on its rights is
estopped from such omission.

DOCTRINE OF PROMISSORY ESTOPPEL – An estoppel due to a promise may rise even though such promise was without
consideration. Refusal to enforce it would be unjust since it would result to injustice.

- Doctrine of Promissory estoppel is an exception to the GR that a promise of future conduct does not constitute
an estoppel.

ELEMENTS:

1. Promise reasonably expected to induce action or forbearance

2. Such promise did in fact induce such action or forbearance
3. The party suffered detriment as a result

DISPUTABLE PRESUMPTIONS – these presumptions are satisfactory when uncontradicted but which nay be contradicted
and overcome by other pieces of evidence. They are susceptible to contradiction or rebuttal

SECTION 3. DISPUTABLE PRESUMPTIONS:

1. A person is innocent of crime or wrong

a. PRESUMPTION OF INNOCENCE
2. That an unlawful act was done with an unlawful intent
a. MENS REA is presumed, no need to be proved
3. That a person intends the ordinary consequences of his voluntary act
a. The natural and probable consequences in the language of civil code
4. That a person takes ordinary care of his concerns
a. Bonum pater familias – diligence of the good father of a family
b. Default standard of care
5. Evidence willfully suppressed is adverse if produced
a. Adverse presumption of suppression of evidence – a person with nothing to hide will have nothing to
suppress
i. REQUISITES:
1. Must be material
2. Party had the opportunity to produce it
3. Evidence is available only to the said party
a. EXCLUSION
i. Evidence is at the disposal of both parties
ii. Supression was not wilfull
iii. Evidence is merely corroborative or cumulative
iv. Suppression is an exercise of privilege
b. Non-presentation of witness is sometimes tantamount to suppression of evidence especially if the
person presented had no personal knowledge of the facts which could estsablish the elements of the
crime charged
c. Suppression of evidence is weaker the constitutional presumption of innocence of an accused
d. REMEDY: COMPEL PRODUCTION OF WITNESS
6. That money paid by one to another was due to the latter
a. There is no presumption of solution indebiti or payment by mistake
7. That a thing delivered by one to another belonged to the latter
a. There is no presumption of erroneous delivery
8. That an obligation delivered up to the debtor has been paid
 a. Obligation must mean promissory note or a bill of exchange such as a check where the maker has the
possession of the check, then there is presumption that the obligation has been paid
9. That prior rents or installments had been paid when a receipt for a later one is produced
10. That person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer
of the whole act; otherwise, that things which a person possess, or exercises acts of ownership, are owned by
him
11. That a person in possession of an order on himself for the payment of the money, or the delivery of anything has
paid the money or delivered the thing accordingly
a. TWO PRESUMPTIONS
i. Adverse presumption from the possession of stolen goods
1. GUIDELINES
a. COMMISSION – theft or robbery must be established
b. POSSESSION – possession of the stolen object
c. SUCCESSION – the commission of the crime must be recent and the possession
must immediately SUCCEED the commission
2. The longer the time, the presumption weakens because there might exchanges of hands
3. Presumption of innocence disappears, presumption of guilt takes its place
ii. Presumption of ownership from fact of possession and acts of ownership
12. That a person acting in public office was regularly appointed or elected to it
a. Inconvenience would arise if there was strict proof of appointment or election to office in all cases
where it might be merely collaterally in issue
13. That official duty has been regularly performed
a. PRESUMPTION OF REGULARITY OF OFFICIAL ACTS/
b. Applies to all cases and proceedings whether civil, criminal or administrative, and even senate inquiry
c. XPN: May not be invoked by the respondent public officer or employee under the WRIT OF AMPARO
d. In buy bust cases, presumption of regularity cannot win if the chain of custody is not satisfactorily
justified or explained, the presumption of innocence will prevail if the prosecution’s evidence is weak.
14. That a court, or judge acting as such, whether in the PH, or elsewhere, was acting in the lawful exercise of
jurisdiction
a. LAWFUL EXERCISE OF JURISDICTION IS PRESUMED IN ALL CASES be it superior or inferior courts whether
in PH or elsewhere.
b. Presumption of regularity of judicial acts
15. That all matters within an issue raised in a case were laid before the court and passed upon by it, and in like
manner that all matters within an issue raised in a dispute submitted for arbitration were laid before the
arbitrators and passed upon by them
a. PRESUMPTION OF REGULARITY OF JUDICIAL ACTS
16. That private transactions have been fair and regular
a. Presumption of regularity of private transactions
b. Good faith is presumed, and it is the burden of the party claiming otherwise to produce clear and
convincing evidence to the contrary
17. That the ordinary court of business has been followed
18. That there was a sufficient consideration for a contract
19. That a negotiable instrument was given or indorsed for a sufficient consideration
20. Than an endorsement of negotiable instrument was made before the instrument was overdue and at the place
where instrument is dated
21. That a writing is truly dated
22. That a letter duly directed and mailed was received in the regular course of the mail\
a. Presumption fo regularity of mail
i. That the letter was properly addressed with postage prepaid
 ii. That it was mailed
23. That after an absence of 7 years, it being unknown whether or not absentee still lives, he is considered DEAD for
all purposes, except for those of succession
a. The absentee shall not be considered dead for the purpose of his succession until after an absence of 10
years (XPN)
b. If he disappeared after the age of seventy, 5 years is enough to open succession
c. The following shall be considered dead for all purposes including succession ifL
i. A person on board a vessel lost during a sea voyage, or a missing aircraft – 4 years is enough
ii. A member of the AFP who has taken part in armed hostilities – 4 years
iii. A person in danger of death under other circumstances and whose existence has been unknown
– 4 years
d. If a married person has been absent for 4 consecutive years, a new marriage may be made if there is a
well-founded belief that the absent spouse is already dead.
i. If there is DANGER OF DEATH – 2 years shall be sufficient to contract marriage
1. A summary proceeding provided in Family Code must ba made for DECLARATION OF
PRESUMPTIVE OF ABSENTEE without prejudice to the reappearance of the absent
spouse
24. That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact
25. That things have happened according to the ordinary course of nature and ordinary nature habits of life
a. ORDINARY NATURE HABITS OF LIFE – Judicial Notice of LAWS OF NATURE
26. That persons acting as copartners have entered into copartnership
27. That a man and woman deporting themselves as husband wand wife have entered into a lawful contract of
marriage
28. that property acquired by a man and a woman capacitated to marry each other who live exclusively with each
other as husband and wife without benefit of marriage or under void marriage have been obtained by their JOIN
EFFORTS, work, or industry.
29. That in cases of cohabitation by a man and a woman not capacitated to marry each other who have acquired
property through their actual joint contribution of money, property, or industry – meaning joint and equal
30. That if the marriage is terminated and the mother contracted another marriage within 360D after such
termination of the former marriage, these rules shall govern in the absence of proof to the contrary:
(PRESUMPTION OF PATERNITY)
a. A child born 180D after marrying of the second marriage is considered be born during the first marriage
PROVIDED IT BE BORN within 300D after the termination of the first marraige
b. A child born after 180D following the celebration of the second marriage is considered to have been
born during the second marriage????
31. A thing once proved to exist continues as long is usual with things of the nature
a. PRESUMPTION OF CONTINUITY OF EXISTENCE
32. That the law has been obeyed
33. That a printed or published book purported to be printed or published by public authority was so printed or
published
34. That a printed or published book, purported to contain reports of cases adjudged in tribunals of the country
where the book is published contains correct reports of such cases
35. That a trustee or other person who duty is to convey the 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
36. That except for purposes of succession when to 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 the age of the sexes according to the ff rules:
(PRESUMPTION OF SURVIVORSHIPS)
 a. If both were under the age of fifteen years, the older I deemed to have survived
b. If both were above the age of sixty, the younger is deemed to have survived
c. If one is under fifteen and the other above sixty, the younger is deemed to have survived
d. If both be over fifteen and under sixty (15-60), the sex be different, the male survives, if sex be the
same, the older survives
i. BIRKENHEAD DRILL – policy prevailing in maritime navigation whereby the lives of women and
children were to be saved first in a life-threatening situation, like abandonings hip, when
survival resources such as lifeboats are limited.
e. If one be under 15 or over 60, and the other between those ages (15-60), the 15-60 is deemed to have
survived.
37. IF there is doubt, as between two or more person whoa re 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.
a. PRESUMPTION OF DEATH FOLLOWING COMMON CALAMITY

PRESUMPTION OF SIMULTANEOUS DEATH or PRESUMPTION OF CONCURRENCE OF DEATH

The rule provides that in the absence of proof, both persons are deemed to have died at the same time.

If they cannot prove the other died ahead of the other, it is presumed they died at the same time.

Section 4. THERE IS NO PRESUMPTION OF LEGITIMACY OR ILLEGITIMACY – whoever alleges the legitimacy or otherwise
shall prove the allegation.

Section 5. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS – If presumptions are inconsistent, the presumption
that is founded upon weightier consideration of policy shall apply. If considerations of policy are of equal weight, neither
presumption applies.

If there are two presumption, they cannot be applied together because it would be inconsistent. Apply the weightier
one.

If considerations of policy are of EQUAL WEIGHT, neither presumption apply. Cancelling effect.

Section 6. PRESUMPTION AGAINST AN ACCUSED IN CRIMINAL CASES

RULE 132

PRESENTATION OF EVIDENCE

Basics on examination of witnesses and JAR

A. EXAMINATION OF WITNESSES

Section 1. Examination must be done:

1. in open court,
2. under oath or affirmation

GR: The answers of the witness shall be given ORALLY.

XPN: Unless the witness is incapacitated to speak, or the question calls for a different mode of answer.

STAGES

Section 4. ORDER IN EXAMINATION OF AN INDIVIDUAL WITNESS

1. Direct examination by the proponent; or the party in whose behalf the testimony is presented
2. Cross-examination by the opponent
3. Re-direct examination by the proponent
4. Re-cross-examination by the opponent

How to waive direct examination by the proponent?

When the direct examination is waived or not made because of the fault of the proponent, take note that cross-
examination is never triggered. If there is no direct examination completed, it cannot trigger the stage of examination
completed.

In cross examination, if it is waived because the party simply refused to conduct the cross-examination, because either it
has no procedural advantage or if the act of cross-examining actually puts him at a procedural disadvantage. Meaning,
you may refuse to conduct cross-examination since it might just reinforce the witness credible testimony.

So again, Cross-examination cant be deferred not required for a party.

If cross-examination, is not required or completed, Re-direct examination is also not required.

PURPOSE OF OPEN COURT? OR IN CURIA –

1. To safeguard the accused’s constitutional right of confrontation

2. To enable the court to observe the demeanor of the witness so that it may accord due credibility or evidentiary
weight upon the witness’ testimony
3. To secure for the adverse party the opportunity of cross-examination

WHEN CAN EXAMINATION BE MADE WHOLLY EX CURIA (OUT OF COURT)

1. Section 8 of the Rule on Examination of a Child Witness

a. By live link television
b. By videotaped deposition
c. By videotaped or audiotaped in-depth investigation or disclose interview which be resorted to if the
child witness is dead or unavailable
2. Perpetuation of Testimony by deposition
a. The deponent as a rule be presented for oral examination in open court at the trial or hearing.
Otherwise, such deposition is hearsay.
b. They may not be called to witness stand under certain conditions and for certain limited purposes
 i. For example, a prospective party may perpetuate the testimony by taking the deposition of a
witness who might be already dead by the time the case is heard
c. Preserving the testimony of the witness whom you fear might not be available to testify anymore in the
future
3. Testimonies in civil cases governed by summary rules
a. The testimonies of the witness under Sec 9 of the Summary Procedure are wholly in the form of
affidavits which are prepared ex parte
b. While these affidavits are submitted to the court, the are given ex curia or out of court

Absent any compelling or valid reason, the witness (deponent) must personally testify in open court. The court shall
always see to it that the safeguards for the protection of the parties and deponents are firmly maintained.

Admissibility does not mean non-objectionability

While depositions are admissible, they are allowed under Rule 23, Section 4, the fact of admissibility does not mean
NON-OBJECTIONABILITY

Objections may be made as to the:

1. Competency of a witness
2. Relevancy or Materiality of testimony

They are not waived by failure to make them before or during the taking of the deposition unless the ground for
objection is one which might have been obviated or removed if presented at the time.

The deposition officer’s duty is to take note of the objections of the adverse party not rule on objections made by the
adverse party.

ADMISSIBILITY DOES NOT MEAN BELIEVABILITY – as regards the weight of evidence, the admissibility of the deposition
does not preclude the determination of its probative value at the appropriate time.

GR: ORAL ANSWERS

XPN:

1. Incapacitated to speak,
2. if the question calls for a different mode of answer such as gesture or answer, such alternative non-oral answer
is allowed
3. In cases covered by summary procedure, the testimonies of witnesses are made in writing in the form of
affidavits
a. In civil cases, no oral examination, just a battle of affidavits
b. In criminal cases, submitted affidavits shall constitute the witness’ direct testimonies and thus not made
orally in curia
4. The use of Judicial Affidavits in place of direct testimonies. This is made ex curia, not made orally in curia.
5. Under the Revised Guidelines for Continuous Trial of Criminal Cases, DIRECT TESTIMONIES consist of fully
subscribed written statements given to law enforcement officers, affidavits, or counter-affidavits in the
preliminary investigation, or in their absence, judicial affidavits. Oral testimonies are required only in cases
where the culpability or innocence of the accused is based on testimonies of eye witness.,

SECTION 2 – TRANSCRIPTION OF STENOGRAPHIC NOTES

If the judge becomes impartial or acts whimsically and capriciously you can remedy it by filing certiorari under Rule 65 or
grave abuse of discretion amounting to lack or excess of jurisdiction. – the judge’s statements can be seen in the TSN.
In Rule 41, APPEALS by record on appeal, when the appeal if perfected the clerk of appellate court will direct
Stenographers of the lower court or the court a quo to make five copies of the TSN which will be included to the record
on appeal.

PRESUMPTION OF REGULARITY OF TSN – TSN have a prima facie presumption that it is correct.

REMEDY IF TSN IS ERRONEOUSLY TRANSCRIBED?

In FULLERO v PP – If the TSN contains erroneous entries, the remedy is for the interested party to file a motion to
correct. A TSN being an official entry in the courts records is admissible in evidence and there is no necessity to produce
the concerned stenographer as a witness.

Errors in grammar or spelling are generally disregarded.

The second paragraph of Rule 132 is an exception tot eh hearsay rule since TSN are entries in official records. No need
for the stenographer to testify.

SECTION 3. RIGHTS AND OBLIGATIONS OF A WITNESS – a witness must answer questions although his or her answer
may tend to establish a claim against him or her. However, it is the right of the witness:

1. To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor
(BADGERING)
2. Not to be detained longer than the interests of justice require
a. A witness has to be fully examined in one day only (ONE-DAY EXAMINATION OF WITNES RULE in AM No.
03-0-09)
b. A safeguard against repetitive questions which aim to confuse the witness.
3. Not to be examined only as to matters pertinent to issue (relevancy?) – RIGHT AGAINST IRRELEVANT QUESTIONS
a. Evidence must be relevant for it to be admissible
4. Not to give an answer which will tend to subject him or her to a penalty for an offense unless otherwise
provided by law
a. RIGHT AGAINST SELF INRCIMINATION
b. XPN:
i. Law providing forfeiture of unlawfully acquired property
ii. Prosecutions of bribery and graft
1. The witness here the bribe-giver will be incriminated since the latter is in conspiracy
with the bribe-taker unless he is a STATE WITNESS then the briber is immune and
discharged
iii. State-witness, discharge of an accused to be a state-witness
c. In people v YATAR – the right to self-incrimination is only applicable to testimonial compulsion, acts are
purely physical or mechanical are not an incrimination especially when the evidence sought to be
excluded is an object evidence.
d. If the testimony is compelled then FRUIT OF THE POISONOUS TREE IS APPKLIED
e. Exclusionary rule that we are not supposed to testify against ourselves
5. Not to give an answer which will tend to degrade his or her reputation unless it be to the very fact at issue or a
fact from which the fact in issue would be presumed. But a witness must answer to the fact of his or previous
final conviction for an offense.
a. RIGHT AGAINST SELF-DEGRADATION
i. XPN: HE MUST ANSWER IF:
1. The question is to the very fact in issue
2. To a fact from which the fact in issue would be presumed
3. To the fact of his or her previous conviction for an offense
a. These are public records
ORDER IN THE EXAMINATION OF AN INDIVIDUAL WITNESS (Sec. 4)

1. Direct Examination - examination-in-chief (Section 8) of a witness by a party presenting him on the facts relevant
to the issue
a. First interrogation or examination of a witness on the merits by the party on whose behalf he is called
b. MODIFIED BY THE JUDICIAL AFFIDAVIT RULE (AM no. 12-8-8-SC)
i. Affidavits shall take place of DIRECT TESTIMONIES OF WITNESSES, thus the examination-in-chief
is no longer made orally in court
ii. While the Q&A is required, it is no longer done orally in an open court, it is now conducted EX
PARTE in the form of Judicial Affidavit
iii. The JA constitutes the direct examination of a witness, with the questions asked of him and his
answers thereto duly and faithfully recorded in writing, in the form and under the attestation
required by the RULE
iv. The witness Is still called to the stand and undergo the succeeding stages of examination
v. THE JA must be in the language known to the witness, if not in ENGLISH or FILIPINO,
accompanied by a translation of either.
vi. CONTENTS (Sec. 3)
1. Name, age, residence, biz address, occupation
2. Name and address of the counsel who conducts the examination of witness where the
examination is held (lawyer’s office)
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 cases for false
testimony or perjury
4. Questions asked of the witness and answers are consecutively numbered
5. Signature of the witness over his printed name
6. A jurat with signature of the notary public who administers the oath or an officer who is
authorized to administer the same
vii. CHARACTERISTICS
1. It is a statement of facts presented in a Q&A FORM
a. Leading questions are not allowed
b. One fact question only
2. It is made under oath or affirmation
a. Judicial purpose only
3. Serves one judicial purpose only. It is used as a substitute for a witness’ testimony on
direct examination
4. It may contain and identify a witness’ non-testimonial evidence
5. It is prepared ex-parte as cross examination takes place only after the JA has been made
2. Cross Examination – examination by the adverse party as to any matters stated in direct examination
3. Redirect Examination – Re-examination by the party calling him to explain or supplement his answers given
during the cross-examination. (May be allowed by the court’s discretion)
4. Re-cross Examination – re-examination by the adverse on matters stated in redirect examination
 Ordinary Affidavit
Form Statement of ordinary facts
Ex-parte Always
Language Not prepared by affiant but by
another who uses his own language
and makes statements that may
either be omitted or misunderstood
by writer
USES Practically anything under the sun
Admissibility Affidavit is mere hearsay when its
affiant or maker did not make the
witness stand (DANTIS v MAGINAY)
HOW TESIMONY IS MADE Affiant must testify and must be
cross examined in order the the
contents of his affidavit be admitted
to court (re-testify)
Waiver of CROSS EXAM Cross examination is waived by any
means allowed by law, provided
there is direct examination on the
contents
RATIONALE TO ALLOW COURT TO He has to testify in open court, and
EXAMINE DEMEANOR EVIDENCE the court can observe the witness’
manner of testifying from direct to
cross
PURPOSE OF JAR? To save time.
Section 6 of JAR – OFFER OF OBJECTIONS TO TESTIMONY IN JUDICIAL AFFIDAVIT
Applicability of this rule may refer to:
1. The Courts where the rule is applicable
a. ALL COURTS IN PHILIPPINE JUDICIARY ARE REQUIRED TO FOLLOW the JAR
2. Types of cases covered
a. Shall apply to all actions, proceedings and incidents requiring reception of evidence
b. Does not apply to SMALL CLAIMS CASES under AM 08-8-7-SC
i. You only file a form, no complaints needed
3. Stage of the proceedings where JA is required
a. EVIDENCE-in-chief – you are the plaintiff and you present witnesses what is you evidence in chief?
b. INCIDENTS and MOTIONS which require the presentation of evidence
4. JAR is given retroactive effect
Judicial Affidavit
Narration of facts under oath in a
Q&A form
Ex-parte, subject to cross-
examination
Employs affiant’s own language, it
requires that statement contains
affiant’s words
Note: Lawyers are not supposed to
coach
One use only (judicial prupose), to
take the place of a witness’ direct
testimony
The court will not consider the
change, only when the witness fails
to appear in the hearing or does not
conform to to content requirements
under the attestation requirements
The affiant does not have to re-testify
as his JA constitutes his direct
testimony
Cross examination is waived if the
counsel does not appear and without
valid cause despite due notice
Demeanor evidence can only be
observed starting from the cross
examination of the witness
You cannot observe demeanor while
JA is being prepared
REQUIREMENT FOR SERVICE AND FILING

The JAR distinguishes JA submitted for incidents and motions, and JA submitted as part of evidence-in-chief of a party

JAs in support of incidents and motions must be filed and served 5 days prior to the scheduled hearing of incidents and
motions

For Jas submitted as evidence-in-chief – the party shall file and serve the JA 5 days before the pre-trial

In CIVIL CASES, It is required that is shall received at least 3 days from date of pre-trial.

EFFECT IF JAS IS LATE OR NOT SUBMITTED ON TIME? Deemed to have waived their submission.

Can a PARTY submit SUPPLEMENTAL JAs contrary to section 2 (5-day period) and 10 (sanctions) of the JAR? YES. The JAR
do not totally proscribe the submission of addition evidence even if the trial had already started. There is no blanket
prohibition of submission of additional evidence.

CONDITIONS:

A. The court may allow the late submission only once

B. Party presenting the evidence PROFFERS valid reason for the dealy
C. Opposing party will not be prejudiced thereby

IN CRIMINAL CASES – submission of JAs is not simultaneous. It is the prosecutor who submits first which is 5 days before
pre-trial. The accused has 10 days after the receipt of the JA of the prosecution.

HOW IS SERVICE AND FILING MADE?

1. Personal service
2. Licensed courier service

Filing and service by registered mail is still allowed by JAR but it is the party’s lookout if the other party receives the JA
within the prescribed period.

ATTESTATION REQUIREMENT

Section 4. SWORN ATTESTATION OF THE LAWYER

Effects of non-compliance

1. Failure to file JA
a. Deemed to have waived submission
b. XPN
i. It must be with leave of court
ii. Delay must be a valid reason
iii. It would not unduly prejudice opposing party
iv. Defaulting party pays a fine not less than 1000 but not more than 5000php (Judicial Discretion)
v. Availed only once
2. Failure to comply the prescribed requirements
a. Replace affidavits may be availed once before the hearing or trial provided that delay is valid reason
b. The contents requirement as well as the attestation clause were not followed
3. Absence during the scheduled trial date
a. If without valid cause despite due notice, it is deemed that the counsel has waived his client’s right to
confront by cross-examination of the witnesses that were present
b. If the witness is absent, the court will not consider the judicial affidavit.
i. At this instance, cross examination is waived.
JUDICIAL AFFIDAVIT RULE JURISPRUDENCE

If evidence is not testimonial, no need for JA under the Rules for Environment Cases specifically a petition for continuing
mandamus.

In a petition for certiorari are you required to attach Judicial affidavits? No. SC is not a trier of facts. It does not receive
evidence.

In NG MENG TAM v CHINABANK – When you present the adverse party as a witness or when you present a hostile
witness, JUDICIAL AFFIDAVITY is not required. So no need for subpoena. They are exempt from the requirement of
judicial affidavit.

If you want a documentary evidenced to be produced by the witness, you can ask for a subpoena duces tecum which
includes a subpoena ad testificandum.

Under Sec. 12 = Party may not impeach his own witness, the party producing a witness is not allowed to impeach his
credibility.

An unwilling or hostile witness so declared, or witness who is an adverse party may be impeached by the party
presenting him in all respects as if he had been called by the adverse party.

He may also be impeached and cross-examined by the adverse party, but such cross examination must obly be on the
subject matter of his examination-in-chief.

Further, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in
open court, or to give a deposition pending appeal.

Meaning, YOU CANNOT EMPLOY YOUR OPPONENT AS AN ADVERSE PART WITNESS UNLESS THERE IS PRIOR SERVICE OF
WRITTEN INTERROGATORIES. This is to prevent fishing expeditions.

RECENT RULES AND AMENDMENTS AFFECTING THE JAR – remember all courts are covered by JAR

1. Under the Guideline for Continuous Trial of Criminal Cases (9-1-17) seems to depart from the preferential use of
JA as substitutes for testimony.
- In criminal cases before first level courts (MTC) witness testimonies shall consist of:
o Duly subscribed written statements given to law enforcement officers
o Affidavits or counter-affidavits submitted during preliminary investigation
o If (a) and (b) are not available, we resort to Judicial Affidavits

Note: beginning in cross examination, it is now oral and in curia or open court.

2. In criminal cases before the RTC, Sandiganbayan, CTA, the form of testimony depends on the type of case being
prosecuted in such courts where the:
a. Demeanor of the witness is not essential in determining the credibility of the said witnesses, such as
expert witness who will testify on the authenticity, due execution, and contents of public documents or
report
b. In criminal cases that are transactional in character such as falsification, malversation, or estafa, or other
crimes where the culpability or innocence of the accused can be established through documents, the
testimonies of the witnesses shall be:
i. Same with the CONTINUOUS TRIAL OF CRIMINAL CASES

Note: JA are not required in criminal cases.

3. In all other cases where the culpability or innocence of the accused is based on the testimonies of eyewitnesses,
the testimonies of these witnesses shall be in ORAL FORM (not Judicial affidavits)
MODIFICATION FOR CIVIL CASES –

Under the New Rules on CivPro – JAs are required to be attached to the pleadings; now you are required to attach the
affidavits in the pleadings together with OBJECT and Documentary evidence

In FAIRLAND KNITCRAFT v PO – Failure to attach annexes is not fatal if the complaint alleges a sufficient cause of action
and the evidence need not be attached to the complaint is deemed abrogated insofar as ordinary civil actions are
concerned. HOWEVER, Under the JAR – it is now required for evidence to be attached.

SUMMARY

If the testimony is already required and available at the time of pleading, the JA should be attached to the pleading
pursuant to Rule 7, sec. 6/

If the need for such testimony arises only after the filing of the pleading (during trial), the JA should be filed not later
than five days prior to the hearing or incident or motion where such testimony will be presented.

CROSS EXAMINATION

The provision on cross-examination. The cross-examination has undergone a face lift.

Cross examination may be done 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 reverse, and to elicit all important facts
bearing upon the issue.

PURPOSE OF CROSS-EXAMINATION

1. Impeach the credibility of the testimony

2. Impeach the credibility of the witness
3. To elicit admissions
4. To clarify certain matters

SCOPE OF CROSS EXAMINATION

1. In our jurisdiction, we are looking at theories in COMMON LAW, in ENGLAND and under the FEDERAL RULES OF
EVIDENCE
2. GR: English rule
3. XPN: American Rule – with respect to cross examination of an ACCUSED OR A HOSTILE WITNESS – cannot
compel him to testify that would self-incriminate the latter
4. TAKE NOTE: In cross examination – you can ask on “ANY RELEVANT MATTERS”

DOCTRINE OF INCOMPLETE TESTIMONY – 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.

XPN to the Doctrine of Incomplete Testimony: Where the prosecution witness was extensively cross-examined on the
material points and thereafter failed to appear and cannot be produced despite a warrant of arrest. (Pp v Gorospe) –
there is deemed substantial compliance already with the cross examination. The testimony will remain.

In hearsay evidence, the testimony is hearsay if it is made by an out-of-court declarant. A testimony not cross-examined
is hearsay, it is inadmissible.

REMEDY in case of Incomplete Testimony: The part can file a motion to strike.

CROSS EXAMINATION CAN BE WAIVED.

Expressly: when the counsel would say “we do not intend to cross-examine the witness, your honor” or “no cross, your honor”
Impliedly: by conduct amounting to renunciation of the right of cross-examination. Like absence of the counsel in the JAR example.

When a party had the opportunity to cross-examine a witness but failed to avail himself he forfeits the right to cross examine the direct
examination (JAR). There is an implied waiver to cross examine an opposing witness but failed to take advantage of it for reasons
attributable to himself alone. (De La Paz v IAC)

SUMMARY

What happens if there is failure to cross-examine due to fortuitous causes such as death or incapacity of witness.

If the cross examination was deferred at the instance of the proponent or witness himself – it must be stricken out since the failure to
cross -examine was due to a cause not attributable to the opponent.

If the cross examination was deferred at the instance of the court the testimony must be stricken out because it was due to a cause not
attributable to the opponent.

However if the deferment was due to a cause attributable to the opponent then the testimony would stand and may be used by the
court in its consideration of the controversy and is not susceptible to a motion to strike..

COMPLETE PICTURE IN RELATION TO CROSS EXAMIANTION

1. Admissions –self-serving admissions, RIAA Rule, XPN to RIAA rule do noy apply if the party who made out of court admissions
are cross-examined. It is now not an extrajudicial admission but it is now made in court.
2. Hearsay a statement is not hearsay if the declarant testifies at the trial or hearing and is subjected to cross examination
concerning his statements.
3. Privileged Communications – objections grounded on nature of the latter are waived by the act of cross-examining the witness
on privileged maters.
4. Statute of Frauds – Act of cross examination on prohibited matters amounts to waiver of objections grounded on the Statute
of Frauds
5. Testimony or deposition at the former proceeding – XPN to hearsay rule – testimony of deceased witness or otherwise unable
to testify, given in a former case or proceeding invoilving 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.
6. Character evidence – Inquiry is allowed on cross-examination if it is relevant
7. Leading question – one which suggests to the witness the answer which the examining party desires. It is generally not
allowed. However, it is allowed on cross-examination by way of exception.
8. Hostile or adverse witness – They may be impeached and cross-examined but such only be on the subject matter of his or her
examination-in-chief

REDIRECT EXAMINATION – after cross examination the witness may be re-examined by the party to explain or supplement his answers.
Questions not dealt with before this stage may be allowed by the court in its discretion.
In re-direct you are now allowed to ask leading questions. What is applicable in DIRECT is also applicable in re-direct.

THIS STAGE MAY BE WAIVED, when redirect is waived, the next stage is no loner required.

RE- CROSS EXAMINATION – The adverse party may re-cross-examine the witness on matter in re-direct examination, and
also on such others as may be allowed by the court IN ITS DISCRETION.

You can object if matters not discussed in direct examination is being asked, however the court in its discretion may
overrule the objection.

RECALLING A WITNESS – THE WITNESS CANNOT BE RECALLED WITHOUT LEAVE OF THE COURT AFTER THE
EXAMINATION OF THE WITNESS – The court can grant or withhold leave as the interests of justice may require.

LEAVE OF COURT is required asking the court to do something that is generally not allowed.

Recalling a witness is generally not allowed because a witness cannot be detained longer than the interest of justice
require. The court must be given time to determine first WON the recall is necessary or merely vexatious.
WHEN IS IT ALLOWED TO RECALL A WITNESS?

In PP v RIVERA – There must be a satisfactory showing of some concrete, substantial ground for the recall.

1. Particularly identified material points were not covered during cross examination or
2. that particularly described vital documents were not presented to the witness whose recall is prayed for, or
3. that cross examination was conducted so inept a manner as to result in virtual absence thereof

SECTION 10. LEADING AND MISLEADING QUESTIONS

It is not allowed except –

a. On cross examination
b. On Preliminary matters
c. When there is difficulty in getting direct and intelligible answers from a witness who is IGNORANT,
i. a child of tender years,
ii. is of feeble minded, or
iii. a deaf-mute
d. Of an unwilling or hostile witness
e. Of a witness who is:
i. an adverse party or
ii. An officer, director or managing agent of a public or private corporation (partnership or
associaition) who are an adverse party

A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary to that which
he or she has previously stated. – NOT ALLOWED

MISLEADING QUESTIONS

1. FACT NOT YET TESTIFIED

2. A FACT CONTRARY TO WHICH THE WITNESS HAS PREVIOUS STATED

LEADING QUESTIONS – suggests to the witness the answer which the examining party desires – this cannot be reformed
by reformation, there are no cure.

SECTION 11. IMPEACH OF WITNESS – This happens when the witness has testified then the adverse party will belittle or
poke holes to the testimony or make it less reliable and believable by the court.

METHODS OF IMPEACHMENT –

1. By contradictory evidence
2. By evidence that his or her general reputation for truth, honesty or integrity is bad (character evidence)
3. Prior inconsistent statements
4. Evidence of conviction of an offense
5. Others:
a. Showing improbability or unreasonableness of testimony
b. Showing bias, prejudice, and hostility
c. Prior inconsistent acts or conduct
d. Showing social connections, occupation, and manner of living
e. Showing interest

IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME – EXCEPTION TO THE GENERAL RULE THAT A WITNESS HAS THE
RIGHT AGAINST SELF-DEGRADATION – conviction is not covered despite that it would degrade the witness

a. Crime was punishable by a penalty in excess of 1 year, or

b. Crime involved moral turpitude regardless of penalty
 a. HOWEVER, conviction is not admissible if the conviction was covered by amnesty or annulment of the
conviction

SECTION 13 – A PARTY MAY NOT IMPEACH HIS OR HER OWN WITNESS

GR: If you are the party calling the witness, then you are the PROPONENT. Then proponent cannot impeach their
witness.

XPN: If the witness iS UNWILLING OR HOSTILE, or an ADVERSE PARTY WITNESS.

Asking leading questions during the direct examination if the witness is an adverse party witness

UNWILLING or HOSTILE WITNESS – a witness called by the party who shows that the witness has an unjustified
reluctance to testify, or might have mislead the party into calling the witness to the witness stand.

The court must make a declaration before you can impeach your own witness who has become a hostile or unwilling.

WHEN WILL COURT DECLARE?

1. Upon adequate showing of adverse interest

2. Unjustified reluctance to testify
3. Having misled the party into calling him to the witness stand

ADVERSE PARTY WITNESS – is the opponent himself is offered and examined by the proponent as his own witness. –
expected to testify against you or client – NO NEED TO BE DECLARED AS SUCH it is expected

An adverse party witness requires PRIOR WRITTEN INTERROGATORIES before he is called to the witness stand.

A witness is presumed TRUSTWORTHY – no need to bolster

HOW TO IMPEACH WITNESS WHO MADE PRIOR INCONSISTENT STATEMENTS?

Section 14.

1. Confrontation – the witness is confronted with such statements with circumstances of the PLACE, TIME, and
PERSONS in which they are with
2. Confirmation – asking whether the witness really made prior inconsistent statements; if so ALLOW THEM TO
EXPLAIN
3. EXHIBITION – if the statement was in writing it must be shown to the witness before any question is asked

WHEN IN APPPLICABLE? -if it is offered as an admission not merely to impeach.

VOIR DIRE – competency examination not just child witness but ordinary witnesses too

QUALIFYING THE WITNESS – convincing court by asking prelim questions about the expertise of an expert witness

LAYING THE BASIS OR FOUNDATION – proving execution, existence, loss and contents before presenting secondary
evidence of a document.

LAYING THE PREDICATE – procedure before pointing out PRIOR INCONSISTENT STATEMENTS in order to impeach the
witness.

RULE ON EXCLUSION

Section 15. The court, moto pro prio or upon motion, shall order the witnesses EXCLUDED so that they cannot hear the
testimony of other witnesses.

There are no rules in proscribing witnesses to read the JAR of other witnesses.
In civil cases – except in SMALL CLAIMS or SUMMARY PROCEEDINGS – JA of a party’s witness is attached to the pelading
stating claims or defense.

WITNESSES WHO CANNOT BE EXCLUDED

1. A party who is a natural person – plaintiff or defendant (they are afforded right to confrontation)
2. A duly designated representative of a juridical entity which is a party to the case
3. A person whose presence is essential to the party’s cause
a. An agent who handled the transaction or an expert neded to advise the counsin
4. A person authorized by statute to be present
a. A rehabilitation receiver
b. An interpreter
c. Guardian ad litem
d. Support person

THE COURT MAY ALSO CAUSE WITNESSES TO BE KEPT SEPARATE AND TO BE PREVENTED FROM CONVERSING WITH ONE
ANOTHER until all shall have been examined – WITNESS SEQUESTRATION

WITNESS SEQUESTRATION has been recognized as a means to discourage and expose fabrication, inaccuracy and
collusion

DISTINGUISH RECORDED RECOLLECTION v REFRESHING RECOLLECTION

DISTINGUISH PAST RECOLLECTION RECORDED (kodigo) v PRESENT MEMORY REFERESHED (or revived)

PAST RECOLLECTION RECORDED – witness can testify to the accuracy of a RECORDING or DOCUMENTATION of their own
OUT-OF-COURT statement based on their recollection of the circumstances which the statement was recorded or
documented - it is sufficient that the witness is able tot estify having made the recording and to having written an
accurate statemetna t the time

PRESENT MEMORY REFERESHED (or revived) – a document is being presented to refresh memory of a witness – the
evidence to be offered is not the document but the testimony of the witness

SECTION 17. WHEN PART OF TRANSACTION (writing or record given in evidence ) the remained admissible.

Any remainder may be given in evidence.

RIGHT TO INSPECT WRITIGN SHOWN TO A WITNESS (section 18, rule 132)

Authentication – is the positive identification of the witness that the document presented is genuine and had been
DULY EXECUTED or that it is neither SPURIOUS nor COUNTERFEIT nor EXECUTED by mistake or under duress

A witness can testify as to the chain of custody through which the evidence passed from the time of the discovery up
until the trial.

Sec. 19 – CLASSES OF DOCUMENTS

They are either public or private:

The following are public documents:

a. Written official acts, or records of sovereign authority, official bodies and tribunals, and public officers whether
of the PH or of a foreign country
b. Documents acknowledge before a notary public EXCEPT WILL and TESTAMENTS
c. Documents are considered PUBLIC DOCUMENTS under treaties and convents which are in force between PH and
country of source
d. PUBLIC RECORDS kept in the PH, of private documents required by law to be entered therein

ALL OTHER WRITINGS ARE PRIVATE – memorizeeee

Under the HAGUE CONVENTION OF 1961

Section 23. Public Documents as evidence – they are prima facie evidence of the facts therein stated.

PRESUMPTION OF REGULARITY – self-authenticating documents, all the witness has to do is to identify it.

RP v GALENO –Only prima facie evidence of due execution, not the contents

Sec. 24 PROOF OF OFFICIAL RECORD –

The official record may be evidenced by:

1. An official publication thereof;

2. A copy attested by the OFFICER having legal custody of the record, or by his deputy, and ACCOMPANIED with a
certificate that such officer has the custody if the record is not kept in the Philippines

A document accompanied by a CERTIFICATE, or its equivalent may be presented in evidence without proof – it being a
prima facie evidence of the due execution and genuineness of the document involved

In RP v GALENO - CERTIFICATIONS are not records of public documents. They do not reflect entries in public records
made in the performance of a duty of a public officer. AS such, they are mere evidence of DUE EXECUTION and DATE OF
ISSUANCE but are not prima facie evidence of the facts stated therein.

Without testimony of their public officers who issued the documentary evidence to confirm the veracity of its contents,
among other, it has no probative value.

It may not be authenticated but it must still be identified by a WITNESS and formally offered in evidence.

Section 30 NOTARIAL ACTS are self authenticating. A witness can still testify but there’s no need for authentication.

Notarizing a prvate document converts the latter into a public document and renders it admissible in court without
further proof its authenticity. (VILLAFRIA v PLAZO)
A notarized document carries the evidentiary weight conferred upon it with respect to its due execution, and documents
acknowledged before a notary public have in their favor the presumption of regularity. However, this presumption is not
absolute and may be rebutted by clear and convincing evidence to the contrary.

However, not all notarized documents are exempted from the rule on authentication. Thus, an affidavit does not
automatically become a public document just because it contains a notarial jurat.

A public record of a private document – if a private document is submitted to a government agency, such private
document is kept by a custodian. Such record becomes public record meaning it need not be authenticated, it may be
proved by an original record, or A COPY ATTESTED by the legal custodian of the record with APPROPRIATE CERTIFICATE
that the custodian has it in its custody.

Apostille – an official certificate from a government of one country that makes a document from that country acceptable
in another

An apostille is a form of authentication issued to documents for use in countries that participate in the Hague
Convention of 1961.

Red Ribbon or Certificate of Due Execution is only used with countries that are not part of the Hague convention

Requirements of Apostille:

1. It shall be placed on the document itself or on an ALLONGE (like a codicil, additional page)
2. It shall be in the form of the model annexed to Convention
3. It may be drawn up in the official language of the authority which issues it;
4. It shall be issued at the request of the person who has signed the document or of any bearer;

FUNCTION OF NOTARIZATION – notarization converts such document into a public one, and renders it admissible in
court.

LAZARO v Agustin – a notarized docuemtn carries the evidentiary weight conferred upon it with respect to its due
execution, and documents acknowledge before a notary public have in their favor the presumption of regularity.
However, this is not absolute and may be rebutted by CLEAR AND CONVINCING EVIDENCE.

An affidavit does not automatically become a pub docu just because it contains a notarial jurat. The presumptions that
attach to notarized can be……………….

Section 27. PUBLIC RECORDS of PRIVATE DOCUMENTS –

Before any private document offered as an authentic is received in evidence, its due execution must be proved either:

1. By anyone who saw the document executed or written

2. By evidence of the genuineness of the signature or handwriting of the maker – established according to the
manner to in sec. 22
3. By other evidence showing its due execution and authenticity – like opinion of a handwriting expert

WHEN AUTHENTICATION IS DISPENSED WITH

1. When the private document is an ACTIONABLE DOCUMENT not denied under oath
2. When authenticity and due execution of the document are otherwise admitted during pre-trial or in a request
for admission
3. When the writing is a notarial document acknowledged, proved and certified
4. When the writing is a public document or record
5. When a private document is not offered as authentic such as when only its existence, not its contents, is the fact
to be proved
6. When the genuineness and due executiona re immaterial to the issue
 7. Where the private document is an ancient documents – if a private document is more than 30 years old. It is
DEEMED AUTHENTIC

SECTION22. HOW GENUINESS OF HANDWRITING IS PROVED – by making somebody a witness and they can testify that
they have personal knowledge about the handwriting of a person. Even if it is an opinion, it is actually admissible since
you are very familiar with the handwriting. Also, you can employ an expert witness or handwriting expert.

Section 26 – IRREMOVABILITY OF PUBLIC RECORD – you cannot bring the original, only the copy thereof.

Any public record must not be removed from the office it is kept EXCEPT upon order of a court where the inspection of
the record is essential to the just determination of a pending case.

Section 28. PROOF OF LACK RECORD – this is a written statement signed by an officer having the custody of an official
record, where after a diligent search no record or entry is found to exist in the records that are under their custody. THIS
IS ACCOMPANIED BY A CERTIFICATE as mentioned. This is admissible as evidence that such custodian contain no such
record or entry.

A CENOMAR is just a proof of that there was no record of marriage but it does not erase the fact that you were never
married.

Sec. 29 – HOW JUDICIAL RECORD IMPEACHED – it may be impeached by evidence of:

a. Want of jurisdiction in the court or judicial officer

b. Collusion between parties
c. Fraud in the party offering the record in respect to the proceedings

Section 31. – Alteration must be explained that the party producing a document must mention that it was made:

1. by another without his consent, or was made with consent of the affected parties, or
2. was otherwise properly or innocently made or
3. that alteration did not change the language of the instrument.

Failure to do that would render the document inadmissible.

DOCUMENTARY EVIDENCE in an UNOFFICIAL LANGUAGE is not admissible as evidence UNLESS it is translated into
ENGLISH or FILIPINO to avoid interruption in the proceedings. Such translation must be prepare before trial.

SECITION 34. OFFER OF EVIDENCE – THE COURT SHALL CONSIDER NO EVIDENCE which has NOT BEEN FORMALLY
OFFERED. The purpose must be specified.

FORMAL OFFER is necessary.

XPN TO FORMAL OFFER

1. When there is substantial compliance with the rule

a. When the offeror failed to state the words “FORMALLY OFFERING” but managed to state the purpose
for which the evidence is presented.
2. When evidence is identified by testimony duly recorded and incorporated in the records of the case
a. Duly identified by testimony duly recorded
b. The same must have been incorporated in the records of the case
3. When formal offer is superfluous like in a joint trial
4. When lack of formal offer Is waived by failure to raise a timely objection
a. If the objection was not timely, then the objector has waived its right to object
5. When the interest of substantial justice requires as when evidence not formally offered during trial is admitted
by the appellate court
a. EVIDENCE may still be admitted before the CA, unlike in SC where the latter is not a trier of facts.
 6. When the court takes judicial notice of a fact or when a fact is judicially admitted or presumed
a. These require no proof
b. EXTRAJUDICIAL ADMISSION require proof before it may be admitted.

ALL EVIDENCE must be offered ORALLY

EVIDENCE JAR HOW MADE?

TESTIMONY The party presenting ORALLY
shall state the
purpose of such
testimony at the
start of presentation
of the witness
OBJECT AND Upon the Offer is made orally
DOCUMENT termination of the
testimony of his last
witness, a party shall
immediately make an
oral offer of evidence

OBJECTION is a formal protest made by a party to the case against a piece of evidence presented by an averse party. You
are telling the court not to admit certain evidence because it violated the rules.

WHEN TO OBJECT?

UNDER THE JAR – an adverse party may move to DISQUALIFY or to strikeout any answers found in the JA on the ground
of its admissibility.

After each piece is offered, the adverse party shall state the legal groudn for objection, if any, to its admission, court
shall make immediate ruling respecting the exhibit.

SECTIOn 36, rule 132. – Objection to offer of evidence must be made ORALLY after the offer is made.

IT must be made as soon as the witness begings to testify or as soon as the grounds therefor becomes reasonably
apparent.

CONTINUING OBJECTION is allowed.

The ruling of the objection msut be made immediately or promptly.

The ruling can either be SUSTAINED or OVERRULED

STRIKING OUT AN ANSWER, GROUNDS:

1. If a witnes answers a question before the adverse party had the opportunity to voice fully its question
2. Where a question is not objectional, but the answer is not responsive
3. Where a witnes testifies wihtout a question being posed
4. Where a witness testify beyondf the limits set by court
5. Where the witness answers in a narrative form
6. If the answer of the witnesses are INCOMPETENT, IRRELEVANT, or otherwise IMPROPER

Section 40. TENDER of EXCLUDED EVIDENCE – if the documents offered in evidence are excluded by the court, THE
OFFEROR may have the same attached to or made part of the record.

If the evidence excluded is oral, the OFFEROR may state for the record the time and other personal circumstances of the
witness and the substance of the proposed testimon.
This is a way to preserve excluded evidence. With this, you still have a chacne with te appelate court since the latter can
still look at the records and consider the evidence which was excluded.

PROFFER OF EVIDENCE

A party is denied the right to introduce evidence because that evidence would INADMISSIBLE or LACKS SUFFICIENT
AUTHENTICATION. That party may make proffer of evidence.

How?

DOCUMENT AND OBJECT EVIDENCE – the offeror may have the same attached or made part of the record

TESTIMONIAL EVIDENCE – may state for the record NAME, and other personal circum,stances of the witness and
subtance of the proposed testimony.

OFFER
Don’t to inform the court of the pupose of a party’s
evidence so that court can admit it and cosnider it in the
determination of the suit
The shall consider no evidence that has not been formally
offered
PROFFER
Resorted only if the evidence is excluded by the court so
the appellate court can consider it resolving the appeal
The appealte court has basis to reverse a judgement on
appeal if EXCLUDED EVIDENCE is not proferred

ENGLISH EXCEHQUER RULE vs HARMLESS ERROR RULE

1. EER -t provides that a trial court’s error as to the admission of evidence was presumed to have caused prejudice,
and therefore almost automatically required new trial
2. HER - The appellate court will disregard an error in the admission of evidence, unless, in it opinion, some
susbtantial wrong or miscarraige of justice has been occasioned

IN PHILIPPINES WE FOLLOW THE HARMLESS ERROR RULE in dealing with evidence IMPROPERLY ADMITTED IN TRIAL.

If the error is insignificant, appelate courts can disregard the error as it will not overcome the weight of the property
admitted evidence against the prejudiced party.

XPN: the court in its opinion, SOME SUBSTANTIAL WRONG or MISCARRAIGE OF JUSTICE HAS BEEN OCCASIONED
LECTURE GUIDE

In Rule 133 – sec 1-4 – virtually unchanged (p. 659-678)

Section 5 – new provi

WEIGHT – balance of evidence and in whose favor it tilts

Falsus in uno, falsus in omnibus principle deals with weight of evidence and is not a positive rule of law

DOCTRINES AND PRINCIPLES ON THE CREDIBILITY OF WITNESSES

1. A witness who testified in CLEAR, POSITIVE, and CONVINCING MANNER and remained consistent in cross-
examination is a credible witness.
2. The assessment of credibility is best left to the trial court that had the opportunity to asses the demeanor,
conduct and behavior of the witness while testifying
3. The testimony of a witness may be believed in part and disbelieved in another part, depending on the
probabilities or improbabilities of the case
4. If the testimony of the witness on a material issue is willfully false and given with an intention to deceive, false in
one, false in everything.
5. FALSUS IN UNO, FALSUS IN OMNIBUS

SUFFICIENCY OF EVIDENCE

This refers to the adequacy of evidence or such evidence in character, weight or amount as will legally justify the judicial
action demanded or prayed for by the parties.

SUFFICIENCY therefore refers to the question WON the evidence meets the required QUANTUM needed to:

1. Arrive at a decision in CIVIL, CRIMINAL, or admin case

2. Prove matters of defense or mitigation
3. Or overcome a prima facia case or presumption

HIERARCHY OF QUANTUM OF PROOF

1. Proof beyond reasonable doubt at the highest level followed by … - CRIM CASE
a. ACCUSED is entitled to acquittal unless his guilt is shown beyond reasonable doubt.
b. MORAL CERTAINTY, this does not require absolute certainty.
c. This is ultimately a matter of conscience
d. SUMMARY:
i. During preliminary investigation whether information will be filed – PROBABLE CAUSE, or well
founded belief of the fact of commission of a crime
ii. Issuance of warrant of arrest – probable cause
iii. Proving justifying or exempting circumstances – clear and convincing evidence
iv. Conviction of an accused – proof beyond reasonable doubt
e. FACT OF CONSPIRACY requires Proof beyond reasonable doubt
f. In falsifying a notarial evidence – PROOF BEYOND REASONABLE DOUBT as to the quantum of proof
2. CLEAR and convincing evidence
a. Evidence presented by a party during trial is more highly probable to be true than NOT. A greater degree
of believability
b. This is used usually regarding FACTUAL MATTERS such as:
i. Bad faith – it cannot be presumed, CLEAR AND CONVINCING EVIDENCE IS REQUIRED
ii. FRAUD or MISTAKE – presumption of good faith in private dealings- vitiations must be proved
with clear and convincing evidence
iii. Defeating a presumption requires C&C evidence
 iv. Just cause or for illegal dismissal cases – the employer is burdened to prove with clear and
convincing evidence.
1. It is up to the employee to prove he has EE-ER relationship – substantial evidence
v. Voluntary resignation for illegal dismissal case – the employer must prove that the resignation
was voluntary with clear and convincing evidence
1. If you are the employee, only substantial evidence is necessary
2. EQUIPOSE – both parties were able to discharge their proof.
vi. NEGATIVE DEFENSES
1. DEFENSE of DENIAL – Clear and convincing evidence is required
2. ALIBI – when this is adduced clear and convincing evidenced must be proved that it was
physically impossible for him to be there
3. FRAME UP or EXTORTION – supported by clear and convincing evidence
vii. SELF DEFENSE requires clear and convincing evidence since this is a POSITIVE DEFENSE
viii. PERFORMANCE OF OFFICIAL DUTIES OF A PUBLIC EMPLOYEE OR OFFICIAL – presumption of
regulatiry
1. Requires clear and convincing vidence that they were moved by ill will.
2. To DQ a judge because of partiality, bias or prejudice, the movant must prove the same
by clear and convincing evidence.
ix. ACKNOWLEDGEMENT OF EVIDENCE BEFORE A NOTARY PUBLIC
x. TREACHERY – there must be clear and convincing evidence on how the aggression was made,
how it began, and developed
xi. FILING OF INFORMATION does not require CLEAR AND CONVINCING EVIDENCE, mere probable
cause is enough
xii. OTHERS:
1. Determining whether tog rant bail in extradition proceedings
2. Proving forgery
3. Proving ownership over a land in ANNULMENT or RECONVEYANCE of TITLE
4. When person seeks confirmation or incomplete title
3. Preponderance of evidence – Civil Case
a. 9 FACTORS in determining preponderance of evidence
i. All facts and circumstances of the case
ii. Witnesses’ manner of testifying
iii. Their intelligence
iv. Their means and opportunity of knowing the facts which they are testifying
v. The nature of the facts to which they testify
vi. The probability or improbability of their testimony
vii. Their interest or want of interest
viii. Personal credibility so far as the same may legitimately appear upon the trial
ix. Number of witnesses, through preponderance is not necessarily with the greater number
(evidence is not counted but weighed)
b. Greater in number, quantity, importance – it means to outweigh
c. EQUIPONDERANCE of evidence – if the evidence are in equal weight, the party who ahs the initial
burden of proof shall be deemed to fail to discharge the burden of proof. The defendant is entitled to
prevail and win.
d. In TABUADA v TABUADA – there is preponderance of evidence when the trier of facts is led to find that
the existence of the contested fact is more probable than its non existence.
4. Substantial evidence
a. ADMINISTRATIVE CASES or QUASI-JUDICIAL BODIES
 b. This is the amount of relevant evidence which a reasonable mind might accept as adequate and
justifiable conclusion.

REMEMBER:

PREPONDERANCE OF EVIDENCE = Greater weight of evidence

PROOF BEYODN REASONABLE DOUBT = MORAL CERTAINTY

SUBSTANTIAL EVIDENCE = REASONABLENESS

PROOF BEYOND REASONABLE DOUBT versus PRESUMPTION OF REGULARITY in a case with chain of custody issues

Presumption of regularity in the performance or chain of custody cannot prevail against presumption of innocene.

Negative defense

SWEETHEART DEFENSE

1. An admission of sexual intercourse with victims but argues that they were lovers. The sex was consensual.
AFFIRMATIVE DEFENSE
2. To be worthy of judicial acceptance, it should be supported by:
a. DOCUMENTARY,
b. TESTIMONIAL, or
c. OTHER EVIDENCE

Absent any proof like love notes, mementos, pictures, tokens, such romantic relationship had really existed. This
defense might be rejected absent any proof. (PP v HAPIN)

In RAPE, the SWEETHEART DEFENSE requires COMPELLING EVIDENCE and must be able to prove that: (2014)

1. Accused and victims were lovers

2. She consented to the alleged sexual assault

LOVE IS NOT A LICENCE FOR LUST – Pp v OLESCO

In PP v DIOQUINO – Requires CONVINCING PROOF (2014)

In PP v NAPUDO – love affair must be supported by CONVINCING PROOF (2008)

In PP v HAPIN – SUBSTANTIAL EVIDENCE (2007)

In PP v GAHI – CONVINCING SUBSTANTIAL EVIDENCE – JUST SETTLE WITH CLEAR AND CONVINCING EVIDENCE

EXTRAJUDICAL CONFESSION –

Section 3. An EJ confession made by an accused shall NOT BE SUFFICIENT GROUND for conviction UNLESS
CORROBORATED BY EVIDENCE OF CORPUS DELICTI

CORPUS DELICTI – refers to the fact of the commission of the crime - it can be proved by the credible testimony of a sole
witness, not necessarily the physical evidence.

EXTRAJUDICIAL CONFESSION + corpus delicti = sufficient to convict

ELEMENTS OF CORPUS DELICTI

1. Proof of the occurrence of a certain event

2. A person’s criminal responsibility for the act

Identity of the accused is not necessary element of the corpus delicti

CONVICTION is till proper even if the victim’s body is not produced.

CORPUS DELICTI in other crimes

- In robbery or theft, the fact of loss

- In arson, fact of burning
- In illegal sale of Dangerous drugs, the fact that illicit transaction took place coupled with presentation of the
corpus delicti or the illicit drug as evidence
- Illegal possession of firearm, existence of unlicensed firearm with intent to possess (animus possidendi) without
any license

CIRCUMSTANTIAL EVIDENCE

As a basis for conviction – circumstantial evidence are still viable, in practice, DIRECT PROOF are eye witnesses of the
crime.

INFERENCES CANNOT BE BASED ON OTHER INFERENCES

You cannot automatically infer and base upon that.

LACK OF DIRECT EVIDENCE DOES NOT IPSO FACTO BAR FINDING OF GUILT. Circumstantial evidence to support the
conclusion of guilt may still be allowed by a trial court for as long as the prosecution established the accused’s
participation in the crime through credible and sufficient circumstantial evidence.

GR: PLURALITY is not required like in rape the sole testimony of the victim is enough

PLURALITY REQUIRED

1. There should be at least 2 circumstantial evidence

2. In treason, there must be at least 2 witnesses
3. A person executing a notarial will must at least have 3 witnesses who shall also sign the will

If there is a phrase: “OTHER SUCH AN ACT OR DECLARATION – it means it requires extrinsic evidence or evidence aliunde

Such as Cite 10 isntances where plurality of evidence is required.

WEIGHT OF EXPERT OPINION (SECTION 5)

- Expert opinion requires special knowledge, skill, expertise, training or education which he or she is shown to
posesss, may be received in evidence
- Expert opinions are always offered as such, not ordinarily conclusive or binding upon the court, purely advisory
- MAY signified it is permissive and not mandatory upon courts
- IT is mandatory in:
o Medical malpractice cases
o DNA evidence
o Psychological incapacity – SC said this is not required anymore if it is PREVALENT, VERY CCLEAR AND
APPARENT
- USES:
o As aid in determining a relevant issue
o As aid in the interpretation of documents
o As a mode of establishing an exception to the hearsay rule – LEARNED TREATISES

APPRECIATION – the court can consider (HOW DO YOU DETERMINE THE WEIGHT OF AN EXPERT OPINION?

- )
o WON the opinion is based upon sufficient facts or data
 o WON it is the product of reliable principles and methods
o WON the witness has applied the principles and methods reliably to the facts of the case
o Such other factors as the court may deem helpful to make such determination

SECTION 7 – POWER OF THE COURT TO STOP FURTHER EVIDENCE

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

WHEN IS IT STOPPED?

When evidence is already so full that more witnesses is cannot be reasonable expected to be additionally persuasive.

RATIONALE: JUDICIAL ECONOMY – waste of courts time to allow to present superfluous, repetitive, and unnecessary
proof of a particular point in issue.

EVIDENCE IS WEIGHED not COUNTED.

JUDICIAL INTEGRITY – Judge should be impartial

SECTION 8. EVIDENCE ON MOTION

When a motion is BASED on facts not yet on record the court may:

1. HEAR the matter on affidavits or depositions presented by respective parties

2. Direct the matter to be hear wholly or partly on oral testimony or depositions

No need to apply if this is based on facts already or already recorded.

MOTIONS BASED ON FACTS ALREADY OF RECORD

1. Motion to dismiss – lack of jurisdiction, res judicata, litis pendentia

2. Demurrer to evidence – in criminal cases –
3. Motion for judgment on the pleadings – ONLY PLEADINGS is considered, no need for additional evidence
4. Motion for SUMMARY JUDGEMENT – all affidavits and depositions may already be there in your attachment to
your motion for summary judgement
a. In motion for judgement on the pleadings – it fails to tender an inssue
b. Summary judgement – no genuine issue to be tried, issue is only a sham
5. Motion for reconsideration – only point out wrong conclusion of facts and law, no need to attach anything
6. Motion for New Trial – a party alleges he was unable to present evidence because of FRAUD, or there is a newly
discovered evidence that he was unable to present during trial which might alter the result of the action
a. Fraud – deprived of your day in court
b. It must be proved in the manner required provided in Rule 132, section 8
c. There are two affidavits in Motion for NEW TRIAL
i. First – affidavit of absolutory cause which details the fraud, among others and how it prevented
the party from presenting evidence, hence deprived of his day in court
ii. Second – affidavit of merits – it shows the court what you meritorious cause of action or
defense is. Evidence has not yet presented, if you were able – it would alter the result
d. Since this is a LITIGUOUS MOTION – option to hear it on affidavits or depositions
e. If granted – we no longer need to present witnesses – affidavits and depositions are enough
f. DISCRETIONARY – court may call a hearing on the motion for new trial
g. In MOTION FOR BAIL IN CRIMINAL CASES – bail is usually denied in capital offenses except when the
EVIDENCE OF GUILT IS NOT STRONG