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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)
It is the definite opinion of the community in which
the fact to be proved is known or exists. It means the
general or substantially undivided reputation, as
distinguished from a partial or qualified one,
although it need not be unanimous. (Regalado,
2008)
NOTE: As a general rule, the reputation of a person
should be that existing in the place of his residence;
it may also be that existing in the place where he is
best known. (Ibid.) Character is what a man is, and
reputation is what he is supposed to be in what
people say he is. (Lim v. CA, G.R. No. 91114, 25 Sept.
1992)
Reasons for Admissibility
1. Necessity arising from the inherent difficulty of
obtaining any other evidence than that in the
nature of common reputation; and
2. Trustworthiness of the evidence arising from:
a. The supposition that the public is
conversant with the subject to be proved
because of their general interest therein;
and
b. The fact that the falsity or error of such
evidence could be exposed or corrected by
other testimony since the public are
interested in the same. (Francisco, 1992)
Matters that may be Established by Common
Reputation
1. Matters of public and general interest more
than 30 years old;
2. Matters respecting marriage or moral character
and related facts; and
3. Individual moral character.
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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
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subsequent thereto, under the stress of excitement
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
687
that she was raped by her father on April 8, and
3 times hours ago on April 15, 2001. While
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 three
(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)
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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)

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si Rene.” The following day, Rene learned of
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
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may fall within the purview of the doctrine of
independent relevant statement, where only the
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)
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Q: Should entries in the police blotter be given
probative value?
A: NO, as they are not conclusive evidence of the
truth of the contents but merely of the fact that they
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
Meralco and its union, may the Secretary of
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Labor take into account a newspaper report
citing an All Asia Capital finance analyst’s
estimate of 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?
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)
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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
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: Sec. 47 (now Sec. 49), Rule 130 requires
that the issues involved in both cases must, at
693
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
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 Sec.
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 Sec. 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;
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2. Insanity or mental incapacity or the former admission of the statement of evidence. (Sec. 50,
witness’ loss of memory through old age or Rule 130, ROC, as amended)
disease;
NOTE: A statement may not be admitted under this
3. Physical disability by reason of sickness or exception unless the proponent makes known to the
advanced age; adverse party, sufficiently in advance of the hearing,
or by the pre-trial stage in the case of a trial of the
4. The fact that the witness has been kept away by main case, to provide the adverse party with a fair
contrivance of the opposite party; or opportunity to meet it, the proponent’s intention to
offer the statement and the particulars of it,
5. The fact that after diligent search the former including the name and address of the declarant.
witness cannot be found. (Francisco, 1992) (Ibid.)

Proof of Former Testimony Independently Relevant Statements

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.
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)

RESIDUAL EXCEPTION An out-of-court statement which is relevant not for

(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.
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)

Requisites for Admissibility Classification of Independently Relevant

Statements
1. The statement, having equivalent
circumstantial guarantees of trustworthiness, 1. Those statements which are the very facts in
must not be covered by any of the foregoing issue; and
exceptions;
2. Those statements which are circumstantial
2. The statement is offered as evidence of a evidence of the fact in issue. It includes the
material fact; following:

3. The statement is more probative on the point a. Statements of a person showing his state of
for which it is offered than any other evidence mind, that is, his mental condition,
which the proponent can procure through knowledge, belief, intention, ill-will and
reasonable efforts; and other emotions;

4. The general purposes of these rules and the b. Statements of a person which show his
interests of justice will be best served by physical condition, as illness and the like;

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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.
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
695
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. (Sec. 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
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
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depending on its appreciation of the attendant facts
and the applicable law. (Tabao v. People, G.R. No.
187246, 20 July 2011)
Expert Witness
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 v. Fundano, G.R.
No. 124737, 26 June 1998)
NOTE: Expert testimony is not admissible as to a
matter not in issue.
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
697
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
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
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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
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
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the questioned signature in order to arrive at a
reasonable conclusion as to its authenticity.
(Gepulle-Garpo v. Sps. 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)
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; and
(People v. Castillo, G.R. No. 1865333, 09 Aug.
2010)
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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)
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
703
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.
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;
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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
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. (US 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
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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
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)
c. When the official conduct in question is
irregular on its face. (People v. Obmiranis,
GR. No. 181492, 16 Dec. 2008)
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;
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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
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)
24. Presumption of Death;
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;
705
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
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;
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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
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;
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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)
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
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VIII. EVIDENCE
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?
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
707
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 Kilang, G.R. No. 199766, 10
Apr. 2019)
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?
A: NO. The Deed of Absolute Sale (DAS) is itself the
proof that the sale of the property is supported by
sufficient consideration. This is anchored on the
disputable presumption of consideration inherent
in every contract under Article 1354 of the Civil
Code, which has been reiterated under Section 3,
Rule 131 of the Rules of Court. While petitioner
Lolita could not present receipts to show her
payments to the late Jasminia, her sworn testimony
which in certain portions were corroborated by
pertinent documents, remains more credible than
that of respondent Natividad. Indeed, the lack of
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receipts may be explained by the “close friendship”
between Lolita and Jasminia. (Mendoza v. Sps.
Palugod, G.R. No. 220517, 20 June 2018)
Presumptions in Civil Actions and Proceedings
In all civil actions and proceedings not otherwise
provided for by law or these Rules, a presumption
imposes on the party against whom it is directed the
burden of going forward with evidence to rebut or
meet the presumption.
Inconsistent Presumptions
If the presumptions are inconsistent, the
presumption that is founded upon weightier
considerations of policy shall apply. If
considerations of policy are of equal weight, neither
presumption applies. (Sec. 5, Rule 131, ROC, as
amended)
Presumption Against an Accused in Criminal
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
fact follows from the basic fact follows from the
basic fact beyond reasonable doubt. (Sec. 6, Rule
131, ROC, as amended)
H. PRESENTATION OF EVIDENCE
(RULE 132)
1. EXAMINATION OF WITNESSES
GR: The examination of witnesses presented in a
trial or hearing shall be done in open court, and
under oath or affirmation. 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. 1, Rule 132, ROC,
as amended)
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RATIO: Open court examination allows the court
the opportunity to observe the demeanor of the
witness and allows the adverse party to cross-
examine the witness. (Riano, 2019)
XPNs: The testimony of the witness may not be
given in open court in the following cases:
1. In civil cases, by depositions pursuant to and
under the limitations of Rules 23 and 24;
(Regalado, 2008)
2. In criminal cases, by depositions or conditional
examinations, pursuant to Secs. 12-15, Rule 119,
and Sec. 1, Rule 123, or by the records of the
preliminary investigation, under the
circumstances of Sec. 1(f) of Rule 115;
(Regalado, 2008)
3. 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)
4. 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)
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.
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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 v. 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:
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
711
violated or abused is no ground for denying the
Senate Committees their power of inquiry. (In Re:
Petition for Writ of Habeas Corpus of 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
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
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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
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
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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
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.
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VIII. EVIDENCE
Order of Examination
The order in which an individiual witness may be
examined is 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.
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)
713
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
produced despite a warrant of his arrest, the
striking out is not warranted. (People v. Gorospe, G.R.
No. L-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
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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
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?
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2023 GOLDEN NOTES
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
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)
714
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VIII. EVIDENCE
b) 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.
NOTE: The simple fact of questioning a witness, of
pressing him to answer, enormously increases the
risk of errors in his evidence. A leading question
propounded to a witness may, by creating an
inference in his mind, cause him to testify in
accordance with the suggestion conveyed by the
question; his answer may be “rather an echo to the
question” than a genuine recollection of events.
(People v. Limbo, G.R. No. L-24810, 29 Mar. 1926)
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
715
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
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)
c) IMPEACHMENT OF WITNESSES
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;
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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:
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
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
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.)
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.
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. (Gaw v. Chua, G.R. No. 160855, 16 Apr.
2008)
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)
716
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VIII. EVIDENCE
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.
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)
721
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.
(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
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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. (Multi-International Business Data
System, Inc. v. Martinez, G.R. No. 175378, 11 Nov.
2015)
d) PUBLIC DOCUMENTS AS EVIDENCE;
PROOF OF OFFICIAL RECORD
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
Bureau of Investigation, is governed by Rule 132,
Sections 19 and 23 of the Rules of Court. Thus,
deemed prima facie evidence of the facts stated
therein. (Suerte-Felipe v. People, G.R. No. 170974, 03
Mar. 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

The CENRO and Regional Technical Director, FMS-
foreign country, the United States. The authenticity
DENR, certifications do not fall within the class of
and due execution of said Certification are already
public documents contemplated in the first
presumed. The USAID Certification could very well
sentence of Section 23 of Rule 132. The
be used as basis for the award for loss of income to
certifications do not reflect entries in public records
the heirs. (Heirs of Jose Marcial Ochoa v. G & S
made in the performance of a duty by a public
Transport Corporation, G.R. No. 170071, 09 Mar.
officer, such as entries made by the Civil Registrar in
2011)
the books of registries, or by a ship captain in the
ship’s logbook. The certifications are conclusions
Q: Sharwin purchased a townhouse from Riel. A
unsupported by adequate proof, and thus have no
notarized Deed of Absolute Sale was executed by
probative value. Certainly, the certifications cannot
Riel in favor of Sharwin. The same was also
be considered prima facie evidence of the facts
notarized and the purchase price was paid in
stated therein. (Republic v. TAN Properties Inc., G.R.
full. However, it was later found that all of the
No. 154953, 26 June 2008; Republic v. Galeno, G.R. No.
documents that were in Sharwin's possession
215009, 23 Jan. 2017)
were falsified. A case was then filed by Sharwin
A Certificate of Identification of Dead Body, being a against Riel which was dismissed by the RTC for
public record made in the performance of a duty of lack of merit. On appeal, the CA held that since a
officers in the Medico-Legal Office of the National notarized document enjoys the presumption of

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2023 GOLDEN NOTES
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VIII. EVIDENCE
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 (G.R. No. 114950,
19 Dec. 1995), 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)
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)
2. If the office in which the record is kept is in a
foreign country,
723
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.
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Related Jurisprudence
The fact of foreign judgment may be proved
through: (1) an official publication or (2) a
certification or copy attested by the officer who has
custody of the judgment. In this case the petitioners
have proven the existence and authenticity of the
Default Judgment against respondent in accordance
with Sections 24 and 25, Rule 132 of the Rules of
Evidence, the Default Judgment already enjoys
presumptive validity. The burden has therefore
shifted to respondent to prove otherwise. But
instead of presenting preponderant evidence
against the authenticity of the Default Judgment, the
latter simply indulged in conjectures. (Bankruptcy
Estate of Mitich v. Mercantile Insurance Company,
G.R. No. 238041, 238502, 15 Feb. 2022)
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
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
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,
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. L-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:
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VIII. EVIDENCE
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
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
725
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
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)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
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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
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)
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
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
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
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VIII. EVIDENCE
Stages in the Presentation of Documentary error can be relied upon as a ground for a future
Evidence 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)

b) WHEN TO MAKE AN OBJECTION

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

Ways of Impeaching the Evidence of the course of the oral examination of a witness –
Proponent as soon as the grounds shall become reasonably
apparent. (Sec. 36, Rule 132, ROC, as amended)
1. By objection to offer of evidence; or (Sec. 36,
Rule 132, ROC, as amended) NOTE: As a rule, failure to specify the grounds for
2. By motion to strike out answer. (Sec. 39, Rule the objection is in effect a waiver of the objection,
132, ROC, as amended) except where the evidence could not have been
legally admitted for any purpose whatsoever.
Purposes of Objections (People v. Singh, 45 Phil. 676)

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
The objection must be specific enough to adequately
inform the court the rule of evidence or of
substantive law that authorizes the exclusion of
evidence. (Riano, 2019)

729 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL L AW
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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); and
(Riano, 2019)
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.)
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
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.
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Ruling
The ruling on the objection must be given
immediately after the objection is made, unless the
court desires to take a reasonable time to inform
itself on the question presented; but the ruling shall
always be made during the trial and at such time as
will give the party against whom it is made an
opportunity to meet the situation presented by the
ruling. (Sec. 38, Rule 132, 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)
731
2. Motion to strike out or expunge:
a. When the witness answers prematurely
before there is reasonable opportunity for
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;
c. When a witness testifies without a question
being posed or testifies beyond limits set by
the court;
d. When the witness does a narration instead
of answering the question;
e. When the answers are incompetent,
irrelevant, or improper; (Sec. 39, Rule 132,
ROC, as amended)
f. When the witness becomes unavailable for
cross-examination through no fault of the
cross-examining party;
g. When the testimony was allowed
conditionally and the condition for its
admissibility was not fulfilled; (Riano,
2019)
h. When a witness has volunteered
statements in such a way that the party has
not been able to object thereto; or
i. Uncompleted testimonies where there is no
opportunity for the other party to cross-
examination. (Ibid.)
NOTE: A direct testimony given and allowed
without a prior formal offer may not be expunged
from the record. When such testimony is allowed
without any objection from the adverse party, the
latter is estopped from questioning the non-
compliance with the requirement.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
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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.
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:
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
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
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;
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VIII. EVIDENCE
2. The name and address of the lawyer who
conducts or supervises the examination of the
witness and the place where the examination is
being held;
3. A statement that the witness is answering the
questions asked of him, fully conscious that he
does so under oath, and that he may face
criminal liability for false testimony or perjury;
4. Questions asked of the witness and his
corresponding answers, consecutively
numbered, that:
a. Show the circumstances under which the
witness acquired the facts upon which he
testifies;
b. Elicit from him those facts which are
relevant to the issues that the case
presents; and
c. Identify the attached documentary and
object evidence and establish their
authenticity in accordance with the Rules of
Court;
5. The signature of the witness over his printed
name;
6. A jurat with the signature of the notary public
who administers the oath or an officer who is
authorized by law to administer the same. (Sec.
3, 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)
735
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 P1,000.00 nor more
than P5,000.00, 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:
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
UNIVERSITY OF SANTO TOMAS
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REMEDIAL LAW
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.
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.

Trial NOTE: Since the documentary or object exhibits

form part of the judicial affidavits that describe
After submitting to the court and serving the and authenticate them, it is sufficient that such
adverse party a copy of the judicial affidavits, trial exhibits are simply cited by their markings
shall commence as follows: during the offers, the objections, and the
rulings, dispensing with the description of each
1. The party presenting the judicial affidavit of his exhibit.
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
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

UNIVERSITY OF SANTO TOMAS 736

2023 GOLDEN NOTES
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VIII. EVIDENCE
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
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,
737
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.
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
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
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REMEDIAL LAW
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
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.
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)
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
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. 12-8-8-SC) Here, the
maximum imposable penalty for the crime of theft
of a cellphone worth P20,000 is prison mayor in its
minimum to medium periods, or six years and one
day to eight years and one day.
NOTE: The same affidavits shall be allowed if the
demeanor of the witness in the criminal case is not
essential in determining his or her credibility, or if
the offense is transactional in character, such as
falsification, malversation, estafa, or other crimes
where the culpability or innocence of the accused
can be established through documents. In all other
cases where the culpability or the innocence of the
accused is based on the testimonies of eyewitnesses,
the testimonies of these witnesses shall be in oral
form. (Section 11, A.M. No. 15-06-10-SC)
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
738
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VIII. EVIDENCE
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
charged and holding him civilly liable for
P20,000.00. 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.
J. 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.
739
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)
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; and
(People v. Comanda, G.R. No. 175880, 06 July
2007)
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?
UNIVERSITY OF SANTO TOMAS
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REMEDIAL LAW
A: NO. Sario’s testimony, although uncorroborated, People, the Court held that slight inconsistencies in
can be relied upon. The testimony of a lone the declarations of witnesses hardly weaken the
eyewitness, if found positive and credible by the probative value of the witnesses’ open court
trial court, is sufficient to support a conviction testimony.
especially when the testimony bears the earmarks
of truth and sincerity and had been delivered The CA was correct in sustaining the ruling of the
spontaneously, naturally and in a straightforward RTC regarding the probative value of Alicia’s
manner. Witnesses are to be weighed, not testimony in positively identifying petitioner as the
numbered. Evidence is assessed in terms of quality perpetrator of the crime. The Court agrees that the
and not quantity. Corroborative evidence is deemed minor inconsistencies in Alicia’s Sinumpaang
necessary only when there are reasons to warrant Salaysay were not sufficient to damage the essential
the suspicion that the witness falsified the truth or integrity of the prosecution’s evidence in its
that his observation had been inaccurate. (People v. material whole. Alicia’s positive identification
Callao y Marcelino, G.R. No. 228945, 14 Mar. 2018) prevails over petitioner’s defenses of denial and
alibi since the latter can be easily fabricated and is
Q: In an Information, Christopher Pacu-An essentially unreliable. Further, Alicia’s positive
(petitioner) and co-accused Peter Romer Abao identification was duly corroborated by Alvin's
were charged with homicide for the death of testimony. (Pacu-An v. People of the Philippines, G.R.
Zaldy Milad. Petitioner voluntarily surrendered No. 237542, 16 June 2021)
to the police authorities. Petitioner and Rommel
entered a plea of not guilty. The RTC found Hierarchy of Quantum of Evidence
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 NOTE: Evidence, to be worthy of credit, must not
diminish the probative value of her open court only proceed from a credible source but must also
testimony in positively identifying petitioner as the be credible in itself. It must be natural, reasonable
perpetrator of the crime of Homicide. In Madali v.

UNIVERSITY OF SANTO TOMAS 740

2023 GOLDEN NOTES
C2
VIII. EVIDENCE
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
Moral certainty is that degree of proof which
produces conviction in an unprejudiced mind.
(Daayata et. al., v. People of the Philippines, G.R. No.
205745, 8 Mar. 2017)
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
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
741
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
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?
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
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REMEDIAL LAW
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
not Aliling. (Aliling v. People, G.R No. 230991, 11 June
2018)
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
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
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. Sec. 77 of P.D. 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 Arts. 309 and 310 of the
Revised Penal Code.”
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 Sec. 77 of
P.D. 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
742
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VIII. EVIDENCE
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
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
743
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
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 Sec.
1, Rule 133 of the Rules of Court:
SECTION 1. Preponderance of evidence,
how determined. — In civil cases, the
UNIVERSITY OF SANTO TOMAS
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VIII. EVIDENCE
3. When invoking self-defense, the onus is on the
accused-appellant to establish by clear and
convincing evidence his justification for the
killing; (People v. Tomolin, G.R. No. 126650, 28
July 1999)
4. When proving the allegation of frame-up and
extortion by police officers in most dangerous
drug cases; (People v. Boco, G.R. No. 129676, 23
June 1999)
5. When proving physical impossibility for the
accused to be at the crime scene when using
alibi as a defense; (People v. Cacayan, G.R. No.
180499, 09 July 2008)
6. When using denial as a defense like in
prosecution for violation of the Dangerous
Drugs Act; (People v. Mustapa, G.R. No. 141244,
19 Feb. 2001)
7. To overcome the presumption of due execution
of notarized instruments; (Viaje v. Pamintel, G.R.
No. 147792, 23 Jan. 2006)
8. When proving bad faith to warrant an award of
moral damages; (Resolution of the SC in Cual v.
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)
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; and
(Republic v. Imperial Credit Corp., G.R. No.
173088, 25 June 2008; Riano, 2009)
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.
745
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
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.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
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REMEDIAL LAW
(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
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’
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
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.
(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)
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VIII. EVIDENCE
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
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
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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 v. 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
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
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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:
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
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
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.
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
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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.
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)
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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
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)
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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
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)
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2023 GOLDEN NOTES
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)
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)
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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
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
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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)
K. 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
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
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What differentiates an electronic document from a
paper-based document is the manner by which the
information is processed. By no stretch of the
imagination can a person’s signature affixed
manually be considered as information
electronically received, recorded, transmitted,
stored, processed, retrieved or produced. Hence, the
argument that since the paper printouts were
produced through an electronic process, then these
photocopies are electronic documents as defined in
the Rules on Electronic Evidence is obviously an
erroneous, if not preposterous, interpretation of the
law. (NPC v. Codilla, G.R. No. 170491, 04 Apr. 2007)
Original of an Electronic Document
An electronic document shall be regarded as the
equivalent of an original document under the Best
Evidence Rule if it is a printout or output readable
by sight or other means, shown to reflect the data
accurately. (Sec. 1, Rule 4, A.M. No.01-07-01-SC)
Copies as Equivalents of the Originals
GR: Copies or duplicates shall be regarded as the
equivalent of the original when:
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
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official ballots themselves. Citing Vinzons-Chato v.
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)
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2023 GOLDEN NOTES
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)
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Under Section 2, Rule 11 of the Rules on Electronic
Evidence, ephemeral electronic communications
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. (2020-21 BAR)
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.
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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
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
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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
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. 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.
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,
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)

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

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