Evidence Notes

REMEDIAL LAW II
PROVISIONAL REMEDIES | SPECIAL CIVIL ACTION |

SPECIAL PROCEEDINGS | LAW ON EVIDENCE
EVIDENCE
I. GENERAL PRINCIPLES
a. Concept of evidence
 Evidence is the means;
 Sanctioned by these rules;
 Of ascertaining in a judicial proceeding
 The truth respecting a matter of fact
b. Scope of the rules of evidence: The rules of evidence shall be the same in all
courts and in all trials and hearings
EX:
 Naturalization proceedings;
 Insolvency proceedings;
 Cadastral;
 Land registration cases;
 Other cases as may be provided by law.
c. Evidence in civil cases vs. evidence in criminal cases
NOTE: rules of evidence do not apply to administrative or quasi – judicial

proceedings.
Administrative bodies are not bound by the technical niceties of the rules
obtaining in the court of law.
d. Proof vs. evidence
Proof Evidence
Effect of evidence Means of proof
Is the degree and quantity of evidence Means of tending to show guilt but all
that produces conviction combined might or might not be deemed
proof thereof.
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e. Factum probans vs. factum probandum
FACTUM PROBANDUM FACTUM PROBANS

Ultimate facts Evidentiary facts
The fact or proposition to be The fact by which the factum
established probandum is to be established
Hypothethical Existent
f. Admissibility of evidence
 Requisites of admissibility of evidence
o Relevancy: evidence in relevant if it may establish directly or
indirectly the existence or non- existence of the facts in issue.
o Competency: if it is not excluded by the rules on evidence, the
law and the constitution.
 Relevance of evidence and collateral matters
o Relevancy: is the initial true test of admissibility

i. Sole test of relevancy: whether or not the factual
information tendered for communication to the fact finer
would be helpful in the determination of the factual matter
that is in dispute between the parties.
ii. Components of relevance
 Materiality: looks to the relation between the
proposition for which the evidence is offered and
the issues of the case.
 Probative value: tendency of evidence to establish
the proposition that it is offered to prove.
o Collateral matters: are matters other than the facts in issue and
which are offered as a basis for interference as to the existence or
non- existence of the facts in issue.
i. Classification of collateral matters
 Antecedent circumstances
1. Moral character, habit and customs;
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2. Plan, design, conspiracy
 Concomitant circumstances
1. Opportunity – if the accused was the only
one who had the opportunity to do the act
charged, such circumstance may be taken
against him.
2. Incompability
3. Alibi – one of the weakest defense of the
accused. A defendant must not only show
that he was present at some other place
about the time of the alleged crime, but also
that he was at such other place.
 Subsequent circumstances
1. Flight – flight of the accused is competent
evidence against him as having a tendency
to establish his guilty.
2. Non- flight
 Multiple admissibility: evidence will be received if it satisfies all the

requirements prescribed by law.
 Conditional admissibility: a fact offered in evidence may appear to be

immaterial unless it is connected with other facts to be subsequently
proved. In such a case, evidence of the fact may receive on condition that
the facts be afterwards proved.
 Curative admissibility: improper evidence omitted on one side without

objection, does not give the other side the right to introduce in reply the
same kind of evidence if objected to.
However, when a plain and unfair prejudice would otherwise inure to the
opponent, the court may permit him to use a curative counter evidence.
 Direct and circumstantial evidence
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o Direct: when it proves the act in dispute without the aid of any
interference or presumption
o Circumstantial: when the proof of fact of facts from which, taken
either singly or collectively, the existence of the particular fact in
dispute may be inferred as a necessary or probable consequence.
 Positive and negative evidence

o Positive: when it affirms that a fact did or did not occur.
o Negative: when the witness states that he did not see or know the
occurrence of a fact.
 Competent and credible evidence

o Competent
o Credible
g. Burden of proof and burden of evidence
Burden of proof Burden of evidence

Duty of a party to present evidence on the Duty of a party to go forward with the
facts in issue necessary to establish the claim evidence to overthrow any prima facie
or defense by the amount of evidence required presumption against him
by law
Does not shift throughout the trial Shift from party to party depending upon the
exigencies of the case
Generally determined by the pleadings Generally determined by the developments at
the trial/ law
The burden of proof lies with the party who asserts his or her right. In a
counterclaim, the burden of proving the existence of the claim lies with the
defendant by the quantum of evidence required by law.
h. Presumptions
 Conclusive presumption: are rules determining the quantity of evidence
requisite for the support of any particular averment which is not permitted
to be overcome by any proof that the fact is otherwise, if the basis facts are
established.
 Disputable presumption: species of evidence that may be accepted and

acted on when there is no other evidence to uphold the contention for
which it stands, one which may be overcome by other evidence.
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i. Liberal construction of the rules of evidence
j. Quantum of evidence [weight and sufficiency of evidence]
 Proof beyond reasonable doubt: does not mean such a degree of proof,
excluding possibility of error, produces absolute certainty.
Moral certainty only is required of that degree of proof which produces

conviction in an unprejudiced mind.
 Preponderance of evidence: in civil cases, the party having a burden of

proof must establish his case by a preponderance of evidence.
It means, evidence which is of greater weight or more convincing, than

that which is offered in proposition thereto.
 Substantial evidence: amount of relevant evidence which a reasonable

mind might accept as adequate to justify a conclusion..
 Clear and convincing evidence: that degree of proof which will produce
in the mind of the trier of facts a firm belief or conviction as to the
allegations sought to be established.
NOTE: clear and convincing evidence is required to overcome a

presumption.
II. JUDICIAL NOTICE AND JUDICIAL ADMISSION
a. Concept of judicial notice: cognizance of certain facts which judges may

properly take and act without proof because they are already known to him, it is
based upon convenience and expediency.
b. What need not be proved | mandatory

 Existence and territorial extent of states
 Their political history
 Forms of government
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 Symbols of nationality
 The law of nations
 The admiralty and maritime courts of the world
 And their seals
 The political constitution
 History of the php
 The official acts of the legislative, executive and judicial departments
 The laws of nature
 The measure of time
 Geographical divisions
c. Matters of judicial notice | discretionary

 Matters which are of public knowledge;
 Capable of unquestionable demonstration;
 Ought to be known to judges because of their judicial functions.
d. Judicial admissions
 Effect of judicial admissions: an admission, verbal or written made by
the party in the course of the proceedings in the same case, does not
require proof.
 How judicial admissions may be contradicted
o Made through palpable mistake;

o No such admission was made
e. Judicial notice of foreign laws, law of nations and municipal ordinance

 laws of the land/ foreign law: it must be alleged and proved except by
statute accepted by the government is subject to judicial notice.
 municipal ordinance
III. OBJECT [REAL] EVIDENCE
a. Definition
 Are those addressed to the senses of the court;
 When an object is relevant to the fact in issue
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 It may be exhibited to, examined or viewed by the court.
b. Nature of object evidence: object evidence is not visual alone. It covers the
entire range of human senses, hearing, taste, smell, touch.
c. Requisites of admissibility
 The evidence must be relevant;

 The evidence must be authenticated;
 The authentication must be made by a competent witness;
 The object must be formally offered in evidence.
d. Categories of object evidence

 Unique objects: objects that have readily identifiable marks
o Eg: caliber .45 by virtue of its serial number
 Objects made unique: objects with no unique characteristic but are made
readily identifiable.
o Eg: a typical kitchen knife with identifying marks placed on it by
witness.
 Non – unique objects: objects with no identifying marks and cannot be

marked
o Eg: narcotic substances
e. Demonstrative evidence: Tangible evidence that merely illustrates a matter of

importance in the litigation.
f. View of an object or scene: courts have recognized that there are times when a
party cannot bring an object to the court. In such a situation, the court may take a
view of an object.
The court may take an ocular inspection.
An inspection should be made in the presence of the parties or at least with

previous notice to them.
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IV. DOCUMENTARY EVIDENCE
a. Meaning of documentary evidence: consist of writing or any materials

containing:
 Letters;
 Words;
 Numbers;
 Figures;
 Symbols;
 Or other modes of written expressions
Offered as proof of their contents.
If offered for some other purpose, the writings or materials would not be deemed
documentary evidence but merely object evidence.
b. Requisites for admissibility

 the document must be relevant;
 the evidence must be authenticated;
 the document must be authenticated by a competent witness;
 the document must be formally offered in evidence.
c. Best evidence rule

 When applicable: No evidence shall be admissible other than the original
document itself. EX:
When the original has been lost or May prove its contents by a copy or
destroyed or cannot be produced in court by a recital of its contents in some
without bad faith on the part of the authentic document or testimony of
offeror witnesses.
When the original is in custody or under Secondary evidence may be
the control of the party against whom the presented
evidence is offered and the latter failed
to produce it after reasonable notice
When the original consist of numerous
accounts or other documents which
cannot be examined in court without
great loss of time and the fact sought to
be established from them is only the
general result of the whole
When the original is a public record in May be proved by a certified copy
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the custody of a public officer or is issued by the public officer in

recorded in a public officer custody thereof
 Meaning of original
o Is one the contents of which are the subject of inquiry;
o When a document is in two or more copies executed at or about the
same time with identical contents;
o When an entry is repeated in the regular course of business, one
being copied from another at or near the time of the transaction.
 How to apply best evidence rule

o Determine the matter inquired into
i. If the inquiry involves a document and its contents are the
subject of that same inquiry, the BER applies.
o Now what is to be done if, for one reason or another, the original
cannot be presented in evidence
i. Finding an adequate legal excuse
ii. Presenting a secondary evidence
 Requisites for introduction of secondary evidence
o Loss, destruction, unavailability

i. The offeror must prove the execution and existence of the
original document;
ii. The offeror must show the cause of its unavailability;
iii. The offeror must show that the unavailability was not due
to his bad faith
o Custody or control of the adverse party

i. That the original exist
ii. That said document is under the custody or control of the
adverse party;
iii. That the proponent of secondary evidence has given the
adverse party reasonable notice to produce the original
document;
iv. That the adverse party failed to produce despite the original
notice.
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d. Parol evidence rule
 Application of the parol evidence rule: any evidence aliunde which is

intended to contradict an enforceable agreement embodied in a document.
Parol evidence only applies to finalized agreements.
EX: collateral oral agreements [a contract made prior with another

agreement]
Requisites:
o Not part of the integrated agreement;
o Not consistent with the written agreement;
o Not connected with the principal transaction
EX to EX: does not apply to collateral oral agreement which refers to

separate and distinct subjects.
 When parol evidence can be introduced:
 Distinction between the best evidence rule and the parol evidence rule
Best evidence rule Parol evidence rule

Establishes a preference for the original Merely presupposes the availability of
document original
Produces the admission of secondary Precludes the admission of other
evidence in the absence of original documents to prove the terms of a
document document.
e. Authentication and proof of documents

 Meaning of authentication: process of proving the due execution and
genuineness of the document.
NOTE: Authentication is needed only in private documents offered as

evidence.
Public documents enjoys the presumption of regularity.
 Self – authenticating documents:

o Official records under seal;
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o Notarized documents;
o Certified copies of public records.
 Public documents: The written official acts or records of the official acts
of the sovereign authority, official bodies and tribunals and public officers
whether of the php or of foreign country.
o Proof of official record

i. By an official publication thereof; or
ii. By a copy attested by the officer having the legal custody
of the record or by his deputy and
iii. If the record is not kept in the php, with a certificate that
such officer has the custody
o Proof of official record kept in a foreign country: The certificate
may be made by:
i. Secretary of the embassy or legation;
ii. Consul – general;
iii. Consul;
iv. Vice – consul;
v. Consular agent;
vi. By an officer in the foreign service of the php stationed in
the FC in which the record is kept and authenticated by the
seal of his office.
Public document no. [2] documents acknowledged before a notary public

except last will and testaments.
o Proof of notarial documents: may be presented in evidence

without further proof, the certificate of acknowledgement being
prima facie evidence of the execution of the instrument or
document involved.
Public document no. [3] Public records kept in the php, of private
documents required by law to be entered therein.
o Public record of a public document: documents consisting of

entries in public records made in the performance of a duly by a
public officer are prima facie of the facts stated therein.
 Private documents – all other writings.
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o When a private writing requires authentication; proof of

private writing: GR: before any private document offered as
authentic is received in evidence, its due execution and authenticity
must be proved either:
i. By anyone who saw the document executed or written;
ii. By evidence of the genuineness of the signature and
handwriting of the maker.
NOTE: any other private document need only be identified as

that which is claimed to be.
Thus, if not being offered in evidence as genuine, it need not be

authenticated.
o When evidence of authenticity of a private writing is not

required:
i. Ancient document
 The private document is more than 30 years;
 It is produced from the custody in which it would
naturally be found if genuine;
 It is unblemished by any alterations or
circumstances of suspicion.
ii. When the genuineness and authenticity of an actionable
document have not been specifically denied under oath by
the adverse party;
iii. W hen the genuineness and authenticity of the document
have been admitted;
iv. When the document is not being offered as genuine.
 How to prove genuineness of a hand writing
o By any witness
i. Who believes it to be the handwriting of such person,
because:
 He has seen the person write;
 Has seen writing purporting to be his upon which
the witness has acted or been charged.
ii. And thus acquired knowledge of the handwriting of such
person
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o By a comparison made by the witness of the court

i. With writings admitted or treated as genuine by the party
against whom the evidence is offered or proved to be
genuine to the satisfaction of the judge.
 Attestation of a copy [must state]

o That the copy is correct copy of the original or specific part thereof
as the case may be
o The attestation must be under the official seal of the attesting
officer if there be any,
o Or if he be the clerk of court having a seal, under the seal of such
court.
 Public record of a private document: an authorized public record of a

private document may be proved by the:
o Original record;
o Or by a copy thereof attested by the legal custodian of the record,
with an appropriate certificate that such officer has the custody.
 Proof of lack of record
o a written statement signed by an officer having the custody of an

official record or by his deputy
i. that after diligent search, no record or entry of a specified
tenor is found to exist.
o accompanied by a certificate as above provided
 How judicial record is impeached

o Want of jurisdiction in the court or judicial officer;
o Collusion between the parties;
o Fraud in the party offering the record.
 How to explain alterations in a document

o He may show that the alteration was made by another without his
concurrence or;
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o Was made with the consent of the parties affected by it.

o Was otherwise properly or innocently made or;
o That the alteration did not change the meaning or language of the
instrument.
 Documentary evidence in an unofficial language: GR: shall not be

admitted
o Unless: accompanied with a translation into English or filipino.
V. TESTIMONIAL EVIDENCE
a. Qualification of a witness
 Can perceive;
o The witness must have a personal knowledge of the facts
surrounding the subject matter of his testimony
 In perceiving, can make known his perception to others;
o Ability to remember what has been perceived;
o The ability to communicate the remembered perception.
 he must take either an oath or affirmation;
 he must not possess any of the disqualifications.
The following factors shall not be a ground for disqualification [unless

otherwise provided by law]:
o religious or political belief;
o interest in the outcome of the case;
o conviction of a crime
b. Competency vs. credibility of a witness

 Competency of the witness refers to a witness who can perceived, and
perceiving, can make known his perception to others.
 Credibility of the witness refers to a witness whose testimony is
believable.
c. Disqualifications of witnesses
 Disqualification by reason of mental capacity or immaturity
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o Mental incapacity: those whose mental condition. At the time of

their production of examination, is such that they are incapable of
intelligently making known their perception to others.
o Immaturity: children whose mental maturity is such as to render

them incapable of perceiving the facts respecting which they are
examined and of relating them truthfully.
 Disqualification by reason of marriage
o GR: during their marriage, neither the husband nor the wife may
testify for or against the other without the consent of the affected
spouse.
o EX:
i. In a civil case by one against the other;

ii. In a criminal case for a crime committed by one against the
other or the latter’s direct descendants.
 DEAD MAN STATUTE: Disqualification by reason of death or

insanity of the adverse party: The rule applies only to a civil case or a
special proceeding over the estate of a deceased or insane person.
o Elements:
i. The defendants in this case is the executor or administrator
or a representatives of the deceased or the person of
unsound mind;
ii. The suit is upon the claim by the plaintiff against the estate
of said deceased or person of unsound mind;
iii. The witness is the plaintiff or an assignor of that party; or a
person in whose behalf of the case is prosecuted;
iv. The subject of the testimony is to any matter of fact
occurring before the death of such deceased person or such
person became unsound mind.
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o This protection may be waived by:

i. Failure to object the testimony;
ii. Cross- examining the witnesses of the prohibited
testimony;
iii. Offering evidence to rebut the testimony.
 Disqualification by reason of privileged communications
o Husband and wife: The husband or the wife, during or after the
marriage as to any communication received in confidence by
one from the other during the marriage
i. EX:
 In a civil case by one against the other;
 In a criminal case by one against the other or the
latter’s direct descendants or ascendants.
o Attorney and client

o Physician and patient
o Priest and penitent
o Public officers
o Paternity and filial privilege rule [applies to both civil and
criminal cases]
i. Parental: a parent cannot be compelled to testify against
his child or other direct ascendants.
ii. Filial: a child may not be compelled to testify against his
parents or other direct ascendants.
o Other privileged communications not found in the rules of

court
i. Editors may not be compelled to disclose the source of
published news;
ii. Voters may not be compelled to disclose for whom they
voted;
iii. Trade secrets;
iv. Information contained in tax census returns;
v. Bank deposits;
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vi. Article 233 labor cases – conciliation proceedings;

vii. AMLA
 Marital disqualification vs. marital privileged communication
Marital disqualification Marital privileged communication

Does not refer to confidential Has reference to confidential
communications communications received by one spouse
from the other during the marriage
Includes the facts, occurrence or Applies only to confidential information
information even prior to the marriage the received during the marriage.
marital disqualification can no longer be
invoked once the marriage is dissolved. The spouse affected may object even after
the dissolution of the marriage.
One spouse must be a party Applies regardless of whether the spouses
are parties or not
The prohibition is a testimony for or What is prohibited is the examination of a
against the other. spouse as to matters received in
confidence by one from the other during
the marriage.
d. Examination of a witness
 Judicial affidavit rule
o Scope and where applicable
i. Metropolitan trial courts

Municipal Trial courts in cities
But shall not apply to Municipal trial courts
small claim cases! Municipal circuit trial courts
Sharia circuit trial courts
ii. Regional Trial courts

Sharia district courts
iii. Sandiganbayan
Court of Tax appeals
Court of appeals
Sharia appellate courts
iv. Investigating officers

Bodies authorized by SC to receive evidence
IBP
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v. Special courts
quasi- judicial bodies
o Contents and procedure: shall be prepared in the language

known to witness, if not, in English of filipino, accompanied by a
translation in English or filipino and shall contain the following:
i. Name, age, residence or business address and occupation of
the witness;
ii. Name and address of the lawyer who conducts or
supervises the examination of the witness and the place
where the examination is being held;
iii. 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;
iv. Questions asked of the witness and his corresponding
answers, consecutively numbered that:
v. The signature of the witness over his printed name;
vi. 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;
vii. Sworn attestation of the lawyer.
o Procedure: 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:
i. The judicial affidavits of their witnesses, which shall take
the place of such witnesses direct testimonies and;
ii. The parties documentary or object evidence, if any, which
shall be attached to the judicial affidavits and marked the
same.
o Applications to criminal actions

i. Where the maximum of the imposable penalty does not
exceed 6 years;
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ii. Where the accused agrees to the use of judicial affidavits,

irrespective of the penalty involved;
iii. With respect to the civil aspect of the actions, whatever the
penalties involved are.
o Effect of non- compliance
Non – compliance Effect

Failure to submit the required JA and It is deemed a waiver of submission
exhibits on time
For first timer: excuse + penalty
Failure to appear at the scheduled The court shall not consider the
hearing of the case as required affidavit of any witness
Failure of counsel to appear without It is deemed waiver of his client’s
valid cause despite notice right to confront by cross-
examination the witnesses there
present.
JA do not conform the content The court shall not admit as evidence
requirements of section 3 and the
attestation requirement of section 4 For first timer: excuse + delay
 Rights and obligations of a witnesses
o Rights
i. To be protected from irrelevant, improper, insulting
questions and from harsh or insulting demeanor;
ii. Not to be detained longer than the interest of justice
require;
iii. Not to be examined except only as to matter pertinent to the
issue;
iv. Not to give an answer which will tend to degrade his
reputation unless it be to the very fact at issue or to a fact
from which the fact in issue would be presumed
 But a witness must answer to the fact of his
previous final conviction of an offense.
o Obligations: a witness must answer questions although his answer

may tend to establish a claim against him. Refusal of a witness to
answer is punishable by contempt under rule 71.
o Other rights of witnesses
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i. Right of a witness to be free from personal violence: The

action of the judge in seizing the witness by the shoulder
and turning him about [to look to the judge] was
unwarranted and an interference with that freedom from
unlawful personal violence to which every witness is
entitled while giving the testimony in court, which his
attorney had the right to protest and to demand that the
incident be made of record.
ii. Right against self- incrimination of witness: GR: witness

should not be compelled to give an answer which will tend
to subject him to a penalty or offense
 No person shall be compelled to be a witness

against himself
 The rule may be invoked in any court or
proceedings
 The rule covers only testimonial compulsion and
production by him of incriminating documents
and articles
EX: unless otherwise provided by law.
Waiver: The right against self- incrimination is not self-

executing or automatically operational. It must be claimed.
Otherwise, the protection does not come into play.
Moreover, the right must be claimed at the appropriate
time, or else, it may be deemed waived.
Right against self- incrimination of the accused as

distinguished from that of an ordinary witness
Accused Ordinary witness

He cannot be compelled to He may be compelled to testify
testify or produce evidence in by subpoena, having only right
the criminal case in which he is to refuse to answer a particular
the accused or one of the incriminating question at the
accused, he cannot be compelled time it is put to him.
to do so even by subpoena or
other process or order of the
court.
He cannot be required either for

the prosecution, for co- accused
or even for himself.
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If the witness is accused, he may A witness who has been

totally refuse to take the stand. summoned to testify cannot
decline to appear, nor can he
decline to be sworn as a witness
until a question calling for an
incriminating answer is asked.
At the time only can the claim of

privilege maybe interposed.
Limitation if a witness is party in civil action: unless

thereafter allowed by the court for good cause shown and to
prevent a failure of justice, a party not served with written
interrogatories may not be compelled by the adverse party
to give testimony in open court or to give a deposition
pending appeal.
iii. Right against self- degradation: A witness may be cross-

examined as to specific facts which, although collateral to
the issue, tend to discredit the witness by impeaching his
moral character if the court concludes that there is reason to
believe that such examination will further the ends of
justice, but such examination will not be allowed where it
is unjust to the witness or uncalled for by the circumstances
of the case.
o Other rules to witnesses

i. One day examination of witness rule: a witness has to be
fully examined in 1 day only shall be strictly adhered to
subject to the court’s discretion during trial whether or not
to extend the direct and or cross examination for justifiable
reasons.
On the last hearing day allotted for each party, he is

required to make his formal offer of evidence after the
presentation of his last witness and the opposing party is
required to immediately interpose his objection thereto.
ii. Most important witness rule: The trial judge shall

determine the most important witness to be heard and limit
the number thereof.
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iii. Witness protection security and benefit act RA 6981
 Order in the examination of an individual witness

NOTE: The order is optional in the sense the parties are not required to
avail of all the examination provided under the rules.
o [1st] Direct examination: The examination- in – chief of a witness

by the party presenting him on the facts relevant to the issue
EX:
i. Witness is his own counsel
ii. When allowed by the court.
o [2nd] Cross examination: The most reliable and effective way of

testing the credibility and accuracy of testimony.
Doctrine of Incomplete testimony: When cross- examination

cannot be done or completed due to causes attributable to the party
who offered the witness, the incomplete testimony is rendered
incompetent and should be stricken from the record.
EX: where the prosecution witness was extensively cross-

examined on the material points and thereafter failed to appear and
cannot be produced despite a warrant of arrest.
Effect of death or absence of a witness: If a witness dies before

his cross- examination, his testimony on the direct may be stricken
out only respect to the testimony not covered by the cross
examination.
o [3rd] Re- direct examination: The witness may be allowed to re-

affirm or explain his statements, their meaning or import and to
minimize or destroy discrediting tendencies.
o [4th] Re- cross examination: limited to new matters brought out

on the re-direct examination of the witness and also such other
matters as may be allowed by the court.
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REMEDIAL LAW II
o 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.
Reason: a witness cannot be detained longer than the interest of

justice requires.
Exception: recall has been expressly reserved with the approval of

the court.
The discretion to recall a witness is not properly invoked or

exercisable by an applicant’s mere general statement that there is a
need to recall a witness “in the interest of justice” or “in order to
afford a party full opportunity to present his case” or that, as here,
“there seems to be many points and questions that should have
been asked” in the earlier interrogation. To regard expressed
generalities such as these as sufficient ground for recall of
witnesses would make the recall of witness no longer discretionary
but ministerial.
 Leading and misleading questions

o Leading questions: Those which suggest to the witness the
answer which the examining party desires. It is generally not
allowed.
EX:
i. On cross examination
ii. On preliminary matters
iii. When there is difficulty getting direct and intelligible
answers from a witness who is ignorant or a child of tender
years, or is of feeble mind;
iv. Unwilling or hostile witness;
v. Witness is an adverse party or an officer, director or
managing director or managing agent of a public or private
corporation or of a partnership or association which is an
adverse party.
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o Misleading questions: one which assumes as true a fact not yet

testified to by the witness, or contrary to that which he has
previously stated. It is not allowed in any type of examination.
 Improper questions
o Irrelevant/ improper/ objectionable;
o Indefinite or uncertain
o Argumentative – a leading question that also reflects examiner’s
interpretation of the facts.
o Conclusionary – that which calls for an opinion or conclusion that
the witness is not qualified or permitted to make.
o Call for opinion or hearsay evidence
o Call for illegal answer
o Call for self- incriminating testimony;
o Leading
o Misleading – that which cannot be answered without making an
unintended admission.
o Repetitious
o Call for a narration
o Compound – that which requires a single answer to more than one
question.
o Assuming facts not in evidence – assumes that a disputed fact is
true although it has not yet been established in this case.
o Harassing/ embarrassing
 Methods of impeaching of adverse party’s witness

o under section 11 rule 132
i. by contradictory evidence;
ii. by evidence that the general reputation for truth, honesty or
integrity of the witness is bad;
iii. or by prior inconsistent statements.
Contradictory evidence Prior inconsistent statements

It refers to other testimony of the If refers to statements, oral or
same witness, or other evidence documentary made by the
presented by him in the same witness sought to be impeached
case, but not the testimony of on occasions other than the trial
other witnesses. in which he is testifying.
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o other modes
i. by involving him during cross examination in
contradiction;
ii. by showing the impossibility or improbability of his
testimony;
iii. by proving action or conduct of the witness inconsistent
with his testimony;
iv. by showing bias, interest or hostile feeling against the
adverse party
Rehabilitation of witnesses: when the cross- examiner has

attempted to impeach a witness, the party who called the witness
is allowed on re-direct to attempt to rehabilitate [to restore the
witness credibility] it must appear however, that the witness has
been attacked.
 How the witness is impeached by evidence of inconsistent statements

[laying the predicate]
o Requisites
i. Prior statements of witness must be materially inconsistent
with his testimony;
ii. Such inconsistent statement must have a reasonable
tendency to discredit the testimony on a material fact;
iii. To impeach by extrinsic proof of prior inconsistent
statements, such must have as their subject:
 Facts relevant to the issue of the case;
 Facts which are themselves provable by extrinsic
evidence to discredit the witness.
o Laying of a predicate: every witness is presumed to be truthful

and perjury is not to be readily inferred just because apparent
inconsistencies are evinced to his testimony.
Thus, it is the duty of a party trying to impugn the testimony of a

witness by means of prior or, for that matter, subsequent
inconsistent statements whether oral or in writing to give the
witness a chance to reconcile his conflicting declarations such that
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it is only when no reasonable explanation is given by him that he

should be deemed impeached.
A witness is impeached by prior inconsistent statements by

laying the predicate
i. By confronting him with such statements, with the time,
place and circumstances under which they were made;
ii. If the witness admits the making of such contradictory
statements, the accused has the benefit of the admission,
while the witness has the opportunity to explain the
discrepancy, if he can;
iii. If the witness denies, the accused has the right to prove that
the witness did not make such a statement.
NOTE: The rule applies to out- of – court statements.
The rule that the attention of the witness be called to the time,
place and circumstances, does not apply where:
- The statement is made in court;
- The impeaching evidence is in writing. The writing must be
shown to the witness so that he may read it or it may be
read to him. He must be asked if he wrote it or signed it and
if he admits this, his attention must be called to the
inconsistencies.
o Laying the predicate vs. laying the foundation or basis
Laying the predicate Laying the foundation or basis

It refers only to impeachment of a It refers to a situation where
witness through prior inconsistent evidence which is otherwise
statements. incompetent will be introduced in
evidence because it falls under the
exceptions to the rule on exclusion.
[eg. Best evidence rule]
 Impeaching his OWN witness: GR: not allowed

EX:
o Witness required by law [eg. Wills]
o Witness is an adverse party or;
o Witness is an unwilling or hostile witness
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REMEDIAL LAW II
NOTE: The principle applies in civil cases only; not applicable in

criminal cases because of privilege against self- incrimination.
Unwilling or hostile witness or witness who is an adverse party:

He may be impeached by the party presenting him in all respects as
if he had been called by the adverse part, except by evidence of his
bad character.
 Evidence of the good character of a witness: Not admissible except

when such character has been impeached.
NOTE: The party calling a witness, cannot initiate proof of his good
character. Any question to that effect can be objected as “improper
character evidence”. This is because a witness is presumed to be truthful
and of good character, the party presenting him does not have to prove he
is good because he is presumed to be one.
e. Admissions and confessions

 Admissions
o Of a party
i. Act, declaration, omission as to a relevant fact
ii. May be given in evidence against him
o Offer of compromise
i. Civil cases
 Not an admission of any liability
 Not admissible in evidence against the offero
ii. Criminal cases
 GR: may be received in evidence as an implied
admission of guilt
1. EX:
a. quasi offenses [criminal negligence]
b. those allowed by law to be
compromise
 A plea of guilt later withdrawn [guilty to not
guilty] or unaccepted offer of a plea of guilty to
a lesser offense
1. Not admissible against the accused
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REMEDIAL LAW II
iii. Good Samaritan provision: offer to pay or payment of

medical, hospital or other expenses occasioned by an
injury
 Not admissible as proof of civil or criminal liability
for the injury.
 Res inter alios acta rule
o By third parties [section 28]

i. GR: rights of a party cannot be prejudice by an act,
declaration, omission of another
ii. EX: as hereinafter provided
o Similar acts as evidence [section 34]

i. GR: evidence that one did or did not do a certain at one
time is not admissible
ii. EX:
 To prove a specific intent
 Knowledge
 Identity
 Plan
 System
 Scheme
 Habit
 Custom
 Usage
 And the like
 Admission by a co- partner or agent: The act, declaration of a partner or

agent may be given in evidence
Requisite:
o It must be within the scope of authority
o During the existence of the partnership or agency
 Admission by a conspirator: The act or declaration of a conspirator may

be given in evidence
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Requisite:
o Relating to the conspiracy
o During its existence
o After the conspiracy is shown by evidence other than such act
or declaration
Section 30, Rule 130 of the Rules of Court applies only to extrajudicial
acts or admissions and not to testimony at trial where the party adversely
affected has the opportunity to cross-examine the declarant.
 Admission by privies: where one derives title to property from another.

The act, declaration or omission may be given in evidence against the
former.
Requisite:
o While holding the title
o In relation to the property
 Admission by silence [may be given in evidence]

o Act or declaration
i. made in the presence and
ii. within the hearing or observation of a party who
does or says nothing
 when the act of declaration is such as naturally
to call for action or comment if not true
 Confessions
Extra- judicial Judicial

An extrajudicial confession may be given A judicial confession is admissible
in evidence against the confessant but not against the declarant’s co-accused since
against his co- accused as they are the latter are afforded opportunity to
deprived of the opportunity to cross- cross-examine the former
examine him
f. Hearsay rule
 Meaning of hearsay: A witness can testify only to those facts which he:
o Knows of his personal knowledge;
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REMEDIAL LAW II
o That is, derived from his own perception
 Exceptions to the hearsay rule

o Dying declaration
i. Made under the consciousness of an impending death
may be received in any case
ii. If his death is the subject of inquiry, as evidence
of the cause and surrounding circumstances of
such death
o Declaration against interest

i. Made by?
 A person deceased
 Person unable to testify
ii. [may be given in evidence against himself or successors
in interest] If the fact asserted in the declaration was at
the time it was made so far contrary to the declararant’s
own interest, that a reasonable man in his position
would not have made the declaration
 Unless he believed it to be true
o Act or declaration about pedigree

o Made by?
i. A person deceased
ii. Person unable to testify
o [may be given in evidence] Act or declaration in respect to
the pedigree of another person In relation to him by birth or
marriage
o Requisite:
i. Where it occurred before the controversy
ii. Relationship between two persons is shown by
evidence
o The word pedigree
i. Relationship
ii. Family genealogy
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iii. Birth
iv. Marriage
v. Death
vi. The dates when and the places where these facts
occurred
vii. The names of relatives
viii. Family history
o Family reputation or tradition regarding pedigree

i. [may be received in evidence] if the witness testifying
thereon be also a member of the family either by
consanguinity or affinity
ii. Evidence of pedigree
 Entries in family bibles
 Other family books
 Charts
 Engraving on rings
 Family portraits and the like
o Common reputation: May be given in evidence if:

i. Existing previous to the controversy
ii. Respecting facts of public or general interest more than 30
yrs old
iii. Respecting marriage
iv. Moral character
v. Monuments
vi. Inscription of places
o Part of the res gestae: May be given in evidence if statements

made by a person while a:
i. Startling occurrence is taking place
ii. Immediately prior thereto
iii. Immediately subsequent thereto
iv. Statements accompanying an equivocal act material
to the issue and giving its legal significance
o Entries in the course of business – Requisites:
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REMEDIAL LAW II
i. The person who made the entry must be dead or unable to

testify;
ii. The entries were made at or near the time of the
transactions to which they refer;
iii. The entrant was in a position to know the facts stated in the
entries;
iv. The entries were made in his professional capacity or in the
performance of a duty, whether legal, contractual, moral,
religious and;
v. The entries were made in the ordinary or regular course of
business or duty.
o Entries in the official records – Requisites:

i. That it was made by a public officer or by another person
specifically enjoined by law to do so;
ii. That it was made by a public officer in the performance of
his duty or by another person, in the performance of a duty
specially enjoined by law;
iii. The public officer or other person had sufficient knowledge
of the facts stated by him, which he must have acquired
personally or through official information.
o Commercial lists and the like – Requisites:

i. Statements of matters of interest to persons engaged in an
occupation;
ii. The statements must be contained in a list, register,
periodical or other published compilation;
iii. The compilation is published for use by persons engaged in
that occupation and;
iv. Is generally relied upon by them.
o Learned treaties – requisites:

i. The court can take judicial notice of it; or
ii. A witness, expert in the subject, testifies that the writer of
the statement in the treatise, periodical, pamphlet is
recognized in his profession or calling as expert in the
subject.
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REMEDIAL LAW II
o Testimony or deposition at a former trial

i. By whom?
 Witness deceased
 Unable to testify
ii. Testimony given in a former case or proceeding, judicial
or administrative involving the same parties and subject
matter
iii. Evidence against whom?
 Against the adverse party who had the
opportunity to cross- examine him.
g. Opinion rule
 Opinion of expert witness: GR: not admissible
EX:
o Requiring special knowledge
o Experience
o Training which he is shown to possess
 Opinion of ordinary witness

o The identity of a person about whom he has adequate knowledge;
o A handwriting with which he has sufficient familiarity
o The mental sanity of a person with whom he is sufficiently
acquainted
o Impressions of the emotion
o Condition
o Appearance of a person
h. Character evidence – GR: character evidence is not admissible

EX:
 Criminal cases
o Accused may prove his good moral character which is pertinent to
the moral trait involved in the offense charge
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o The prosecution may not prove bad moral character of the accused
unless in rebuttal when the latter opens the issue by introducing
evidence of his good moral character.
o As to the offended party, his good or bad moral character may be
proved as long as it tends to establish the probability or
improbability of the offense charged.
 Civil cases: The moral character of either party thereto cannot be proved
unless it is pertinent to the issue of character involved in the case.
o Defamation cases
o Action for breach of promise to marry;
o Action for malicious prosecution
VI. OFFER AND OBJECTION
a. Offer of evidence
formal offer of evidence
objection: grounds
general: immaterial or irrelevant
sustained overruled
if testimony, the witness is not if testimony, the witness is allowed
allowed to answer. to answer
if document/ object, it will not be if document//object, it will be

admiited admitted.
remedy of offeror: tender of

presentation of evidence offered.
excluded evidence
 Offer of evidence – GR: The court shall consider no evidence which has
not been formally offered, the purpose for which having been identified.
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EX: Evidence not formally offered can be considered by the court as

long as they have been:
o Properly identified by testimony duly recorded and;
o They have themselves been incorporated in the records of the case.
 When formal of evidence is not required

o Lost objects previously marked, identified, described in the record
and testified to by witness who had been subjects of cross-
examination in respect to said objects;
o Summary proceedings;
o Documents, affidavits and depositions used in rendering summary
judgments under rule 35;
o Documents judicially admitted or taken judicial notice of;
o Documents whose contents are admitted by the parties;
o Documents or affidavits used in deciding quasi- judicial or
administrative cases;
o In naturalization, insolvency proceedings, cadastral, land
registration cases, election cases and other cases where the rules on
evidence does not apply.
b. When to make an offer
Testimonial/ oral evidence Documentary and object evidence

At the time the witness is called to testify After the party has presented his testimonial
evidence, before he rests.
Implied offer: every time a question is asked Offered only once
of a witness, there is an implied automatic
offer of the evidence sought to be elicited by
the question.
If there is any objection to the question, the

same must be raised immediately; otherwise
there is waiver.
Thus, oral evidence is always being offered

twice:
[1] before the witness testifies;
[2] every time a question is asked of him.
 Procedure before documentary and object evidence can be considered

by the court
o Marking
o Identification
o Authentication [EX: public document]
o Formal offer;
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REMEDIAL LAW II
o If the evidence is excluded, an offer of proof.
Authentication and identification can be dispenses with if there is a

stipulation on the due execution and genuineness of the private document.
c. Objection
 Classification of objections
o General objection/ broadside objection – it does not specify the
grounds for objection.
o Specific objection – it states why or how the evidence is irrelevant
or incompetent [leading]
o Formal objection – is one directed against the alleged defect in
the formulation of the question
o Substantive objection – objections made and directed against the
very nature of the evidence [parol, hearsay evidence]
 Requirements to exclude inadmissible evidence:

o One has to object the evidence;
o The objection must be timely made;
o The grounds for the objection must be specified.
 Manner of offering and time to make objection
Manner of offering Time to make objection

Evidence offered orally Made immediately thereafter the offer is
made
For questions propounded in the course Made as soon as the grounds therefore
of the oral examination of a witness shall become reasonably apparent.
In case of an offer of evidence in writing. Within 3 days after notice of the offer
unless a different period is allowed by the
court.
Objections made at the start of the testimony of a witness are different.

Here, the party objecting objects to the witness testimony in general. The
party objecting is asking the court to disallow the testimony of the
witness or to not allow the witness to testify at all.
 Waiver: where a party fails to object to evidence when offered, he is

deemed to have waived his objection thereto, and consequently, the
evidence offered may be admitted.
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d. Repetition of an objection | Rule on continuing objection: When it becomes

apparent in the course of the examination of a witness that the questions being
propounded are of the same class as those to which objection has been made,
whether such objection was 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.
e. Ruling
 Effect of ruling on objections
o Sustained: The court declares the question improper and the
witness ought not to answer it.
o Overruled: The court declares the question proper and the witness
must answer it.
f. Striking out of an answer

 Modes of excluding inadmissible evidence
o Objection – when the evidence is offered.
o Motion to strike or expunge
i. When the witness answers prematurely;
ii. Unresponsive answers;
iii. Answers that are incompetent, irrelevant, immaterial,
improper;
iv. Incomplete testimonies;
v. Unfulfilled condition in conditionally admitted testimony;
vi. The ground for objection was not apparent when the
question was asked.
NOTE: there must be an objection before motion to strike
g. Tender of excluded evidence

 Tender of excluded evidence or offer of proof or proffer of evidence:
When an attorney is not allowed by the court to present testimony which
he think is competent, material and necessary to prove his case, he must
make an offer of proof.
 How made
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o As to the documentary/ object evidence – the offeror may have

the same attached to or made part of the record.
o As to oral evidence – the offeror may state for the record the name
and other personal circumstances of the witness and the substance
of the proposed testimony.
 Offer of proof/ TOE vs. offer of evidence
TOE Offer of evidence

Only resorted to if admission is refused It refers to testimonial documentary or
by the court for purposes of review on object evidence that are presented or
appeal. offered in court by a party so that the
court can consider his evidence when it
comes to the preparation of the decision.
 Por lo que puedo valer principle: The SC encourages the admission of

borderline evidence for whatever it is worth or por lo que puedo valer.
It is impossible for a judge, in the early stages of the development of

proof, to know with certainty whether the testimony is relevant or not; and
where there is no indication of bad faith on the part of the attorney
offering the evidence.
 Harmless error rule: In our jurisdiction, we follow the harmless error

rule, for in dealing with evidence improperly admitted in the trial, we
examine its damaging quality and its impact to the substantive rights of the
litigant.
If the impact is slight and insignificant, we disregard the error as it will not
overcome the weight of the properly admitted evidence against the
prejudiced party.
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REMEDIAL LAW II

PROVISIONAL REMEDIES | SPECIAL CIVIL ACTION |

c. Evidence in civil cases vs. evidence in criminal cases

NOTE: rules of evidence do not apply to administrative or quasi – judicial

d. Proof vs. evidence

e. Factum probans vs. factum probandum

FACTUM PROBANDUM FACTUM PROBANS

 Relevance of evidence and collateral matters

o Relevancy: is the initial true test of admissibility

i. Classification of collateral matters

2. Plan, design, conspiracy

 Multiple admissibility: evidence will be received if it satisfies all the

 Conditional admissibility: a fact offered in evidence may appear to be

 Curative admissibility: improper evidence omitted on one side without

 Direct and circumstantial evidence

 Positive and negative evidence

 Competent and credible evidence

g. Burden of proof and burden of evidence

Burden of proof Burden of evidence

 Disputable presumption: species of evidence that may be accepted and

i. Liberal construction of the rules of evidence

j. Quantum of evidence [weight and sufficiency of evidence]

Moral certainty only is required of that degree of proof which produces

 Preponderance of evidence: in civil cases, the party having a burden of

It means, evidence which is of greater weight or more convincing, than

 Substantial evidence: amount of relevant evidence which a reasonable

NOTE: clear and convincing evidence is required to overcome a

II. JUDICIAL NOTICE AND JUDICIAL ADMISSION

a. Concept of judicial notice: cognizance of certain facts which judges may

b. What need not be proved | mandatory

c. Matters of judicial notice | discretionary

 How judicial admissions may be contradicted

o Made through palpable mistake;

e. Judicial notice of foreign laws, law of nations and municipal ordinance

III. OBJECT [REAL] EVIDENCE

 It may be exhibited to, examined or viewed by the court.

 The evidence must be relevant;

d. Categories of object evidence

 Non – unique objects: objects with no identifying marks and cannot be

e. Demonstrative evidence: Tangible evidence that merely illustrates a matter of

The court may take an ocular inspection.

An inspection should be made in the presence of the parties or at least with

IV. DOCUMENTARY EVIDENCE

a. Meaning of documentary evidence: consist of writing or any materials

Offered as proof of their contents.

b. Requisites for admissibility

c. Best evidence rule

the custody of a public officer or is issued by the public officer in

 How to apply best evidence rule

 Requisites for introduction of secondary evidence

o Loss, destruction, unavailability

o Custody or control of the adverse party

d. Parol evidence rule

 Application of the parol evidence rule: any evidence aliunde which is

Parol evidence only applies to finalized agreements.

EX: collateral oral agreements [a contract made prior with another

EX to EX: does not apply to collateral oral agreement which refers to

 When parol evidence can be introduced:

Best evidence rule Parol evidence rule

e. Authentication and proof of documents

NOTE: Authentication is needed only in private documents offered as

Public documents enjoys the presumption of regularity.

 Self – authenticating documents: