MEMORIZE- EVIDENCE

PART I. PRELIMINARIES
1. Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth
respecting a matter of fact. (Rule 128, Sec.1)
(Competency rules-courts-legal truth-factum probans)

Other sources:
1. Constitution- Bill of Rights
2. Civil Code- Statute of Frauds (Civil Code- Art. 1403- All contracts must be in writing.)
3. R.A. 7438- Rights of persons under custodial investigation (All evidence acquired in
violation of this law is inadmissible.)
4. Rules on Electronic Document as evidence
5. Rule on DNA Evidence
6. Anti-Wire Tapping Act
7. Revised Penal Code- Art.14, par.2- Treason
8. R.A. 10625 (Sec.26)
9. Child Witness Rule
10. Other evidentiary rules- ROC 25(Interrogatories), 26(Admissions), 119 (17) (Discharge
of accused to be a state witness)

2. Admissibility=Competency+Relevancy
EXP: Even if not a fact in issue but it tends in any reasonable degree to establish probability and
improbability of the fact in issue. (Rational Probative Value)

3. Judicial notice, when mandatory: (Rule 129, Sec.1)

• existence and territorial extent of states
• their political history
• forms of government and symbols of nationality
• the law of nations,
• the admiralty and maritime courts of the world and their seals
• the political constitution and history of the Philippines
• the official acts of the legislative, executive and judicial departments of the Philippines
• the laws of nature
• the measure of time
• and the geographical divisions

4. Judicial notice, when discretionary (Rule 129, Sec.2)

• Matters of public knowledge
• capable of unquestionable demonstration
• ought to be known to judges because of their judicial functions
• market valuation
- Anything outside the 2 preceding sections, hearing is already required. (Rule 129, Sec.3)
5. Judicial admissions (Rule 129, Sec.4)
- No proof needed:
• Pleadings during pre-trial or trial
- Contradictory evidence may only be presented when:
1. Admission made through palpable mistake; or
2. Imputed admission was not in fact, made.

PART II. PRESENTATION OF EVIDENCE

Rules of admissibility
- Extrajudicial admissions since evidence need to be presented.
- Every admissibility rule is subject to waiver.

A. OBJECT EVIDENCE
OBJECT EVIDENCE (Rule 130, Sec.1)— Objects as evidence are those addressed to the senses of the
court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed
by the court.
Through: Ocular inspection if object cannot be brought in court.

Types:
1. Unique Object- identifiable with markings
2. Object made unique- marked
3. Non-unique object- e.g. hair, blood, money, and drugs: take into consideration the Chain of
Custody Rule on drugs as evidence
With warrant- where the warrant is served (crime scene)
Warrantless seizure- nearest police station or office of the apprehending officer

ADMISSIBILITY RULES:

1. “Fruit of the poisonous tree”- Evidence obtained in violation of the rules or any related laws is
inadmissible.
2. Identification

B. DOCUMENTARY EVIDENCE
DOCUMENTARY EVIDENCE (Rule 130, Sec.2) — Documents as evidence consist of writings or any
material containing letters. words, numbers, figures, symbols or other modes of written
expressions offered as proof of their contents.

Classifications:
1. Solid-surface based evidence
2. Paper-based Evidence
3. Electronic Evidence
ORGINAL DOCUMENT RULE (Rule 130, Sec.3)

G.R. No evidence is admissible other than the original document itself.

Exceptions:
o Original is lost or destroyed;
o Original is under the custody of the adverse party;
o Original consists of numerous accounts;
o Original is a public record in custody of a public officer; and
o Original is not closely-related to the controlling issue.

When duplicate is not admissible: (Rule 130, Sec. 4)

Duplicate, is not considered as original, but is of equal footing to the latter except:
1. A genuine question is raised as to the authenticity of the original; or
2. It is unjust or unequitable to admit the duplicate in lieu of the original.

Secondary evidence: When original is unavailable (Rule 130, Sec. 5)

Instances:
1. Present, prove, and explain the loss or destruction;
2. Proof of its execution and existence; or
3. Cause of unavailability without bad faith, may prove it by:
▪ Contents by a copy
▪ Recital
▪ Testimony
Secondary evidence: When original is in adverse party’s custody or control (Rule 130, Sec. 6)
Instances:
1. Notice to the adverse party to produce it;
2. Failure of the adverse party to heed to the notice; and
3. Satisfactory proof of its existence.

When are documents considered as documentary evidence?

- When they are offered as authentic and as proof of their contents, e.g. execution, existence,
and condition. But if not, they are only considered as object evidence. Also, when they are not
specifically denied under oath.

Types of documents: (Rule 132, Sec. 19)

1. Public documents are:

(a) 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, e.g. Certificate of Title
(b) Documents acknowledged before a notary public except last wills and testaments, e.g.
Deed of Sale;
 (c) Documents that are considered public documents under treaties and conventions which
are in force between the Philippines and the country of source, e.g. Hague Service and
Hague Apostil Conventions; and
(d) Public records, kept in the Philippines, of private documents required by law to be entered
therein, e.g. Certificate of Live Birth, Certificate of Marriage, or Death.

All other writings are PRIVATE.

Why is there a need to identify whether a document is a public or private?

- For the purposes of proving its due execution and authenticity. Public documents are SELF-
AUTHENTICATING UNLESS a contradictory evidence proving clearly and sufficiently the
otherwise is presented. On the other hand, the due execution and authenticity of private
documents need to be proven ONLY if (1) offered as proof of their contents and (2) if offered
as authentic. If authenticity is not offered, but the same must be:
1. Identified; and
2. Marked. (In the JA or during pre-trial)- However, not all documents need to be
marked:
• Testimonial evidence by Memorandum (Rule 132, Sec.16) which purposes
are for the witness to:
a. Present recollection revived- testimonial aid and the testimony is the
evidence
b. Past recollection recorded- the memorandum itself is the evidence
• Demonstrative Evidence, e.g. making charts, diagrams to illustrate

PROOF OF PRIVATE DOCUMENTS (RULE 132, SEC. 20)

1. By anyone who saw it;

2. By evidence of the genuineness of the handwriting (familiarity); or
3. By showing its due execution and authenticity through other evidence.

WHEN EVIDENCE BY AUTHENTICITY OF PRIVATE DOCUMENT NOT NECESSARY (RULE 132, SEC. 21)

Requirements: (ANCIENT DOCUMENTS)

1. Not more than 30 years old;

2. Produced from a custody in which it would naturally be found; and
3. Unblemished by any alterations or circumstance of suspicion.

HOW GENUINENESS OF HANDWRITING PROVED (RULE 132, SEC. 22)

G.R. By an expert witness.

Exceptions:

• By an ordinary person’s opinion to circumstances: identification, handwriting, mental sanity, and

impressions on the behavior, appearance, etc.
• Also, by comparison
PUBLIC DOCUMENTS AS EVIDENCE (Rule 132, Sec. 23)

- Extent of the evidentiary value of public documents (in relation to Sec. 19)
• Par. A- Prima facie evidence on the facts stated therein.
• Pars. B&D- No prima facie evidence of the facts stated therein but limited only to the fact and
date of execution.

PROOF OF OFFICIAL RECORD (Rule 132, Sec. 24)

• Official publication thereof; or

• By an attested copy by the public officer having legal custody of the record.

RULE ON IRREMOVABILITY OF PUBLIC DOCUMENTS (Rule 132, Sec.26)

- A public document needs to be kept in a public record for public consumption. Hence,
authenticated copy is enough.

HOW JUDICIAL RECORDS ARE IMPEACHED: (Rule 132, Sec. 30)

By evidence of:

1. Want of jurisdiction in the court or judicial officer;

2. Collusion between the parties; or
3. Fraud in the party offering the record.

ADMISSIBILITY RULES:

1. Original Document Rule- inquiry as to contents

2. Parole Evidence
3. Exclusionary rules
• Searches and seizure
• Privacy of correspondence
• Anti-Wire Tapping Act
4. Identification

What is/are the purpose/s of identification?

- To satisfy the requirement of testimonial sponsorship and for purposes of authentication.

BURDEN OF EVIDENCE (Rule 131, Sec. 1) is the duty of a party to present evidence sufficient to establish or
rebut a fact in issue to establish a prima facie case. This may shift during the course of the proceedings.

CONCLUSIVE PRESUMPTIONS (RULE 131, SECTIONS 2) — The following are instances of conclusive
presumptions: (Estoppel by Conduct)
 (a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately
led another to believe a particular thing true, and to act upon such belief, he cannot, in any
litigation arising out of such declaration, act or omission, be permitted to falsify it:
(b) The tenant is not permitted to deny the title of his landlord at the time of the commencement
of the relation of landlord and tenant between them.

C. TESTIMONIAL EVIDENCE

ADMISSIBILITY RULES (Substantive Objections)

The word COMPETENT may mean, as follows:

a. Competency of admissibility rules;

b. Qualifications of a witness; or
c. Competency of the witness to testify.

1. OWUP
Offer of compromise (Rule 130, Sec. 27)
- Must be made by the accused himself
o Criminal- may be received as an implied admission of guilt
o Civil- not an admission of any liability since courts favor settlement of disputes to foster
compromise and promote peace.
Withdrawal of plea of guilt (Sec. 28)
- A plea of guilt later withdrawn is inadmissible.

Unaccepted offer of a plea of guilt to a lesser offense

- Plea bargaining proposal to a lesser offense is not admissible.

- Still available even after the prosecution rests its case.

Offer to Pay medical, hospital or other expenses occasioned by an injury

- Not admissible

2. Qualifications of a witness (Rule 130, Sec. 21)

• Perception
• Communication
• Personal Knowledge

3. Disqualifications of a witness (Rule 130, Sec. 22-24)

• Marital Disqualification
- Knowledge acquired before or during marriage; allowed after marriage (no longer available if
marriage is already severed)
 - Allowed, with consent
• Privilege Communication
a. Husband and wife
- During or after their marriage if the communication is intended to be confidential
b. Attorney and client (including secretaries and other staff); exceptions:
1. Furtherance of a crime or fraud
2. Claimants through deceased clients
3. Breach of duty by a lawyer or client
4. Document attested by the lawyer
5. Joint clients
c. Physician/Psychotherapist and patient (for civil cases only)
Psychotherapist is a person licensed to practice medicine engaged in the diagnosis or treatment
of a mental or emotional condition, or a person licensed as a psychologist by the government
while similarly engaged.
d. Minister, priest or the like and confessant
e. Public officers
• Testimonial Privilege
a. Parental and filial privilege
b. Privilege relating to Trade secrets

4. RES INTER ALIAS ACTA RULE

- Extrajudicial admission by third party (Section 29) is not admissible because it is not competent.
Rationale: An extrajudicial confession is binding only on the confessant and not admissible
against his/her co-accused and is considered a hearsay against them.

Exceptions: (Sec. 29-33) FIRST BRANCH

1. admission by a third party

2. admission by a co-partner or agent
3. admission by conspirator
4. admission by privies
5. admission by silence (adoptive admission)

Commonality: That all the exceptions to res inter alios acta require that the relationship be proven by
evidence independent of the act or declaration sought to be admitted.

5. PREVIOUS CONDUCT RULE (Rule 130, Sec. 36) SECOND BRANCH

- Not admissible but it may be received to prove a specific intent or knowledge, identity, plan,
system, scheme, habit, custom or usage, and the like.

6. HEARSAY RULE (Rule 130, Sec. 37)

 What is HEARSAY- a statement other than one made by the declarant while testifying at a trial or
hearing offer to prove the truth of the fact. It includes oral assertions or non-verbal conduct of a
person if made as assertions.

G.R. Generally inadmissible for lack of truthfulness in the absence of cross-examination to

verify the source of the information; first-hand knowledge is required.
An Independent Relevant Statement has the purpose to not prove the facts asserted therein
but to testify knowledge acquired.

Exceptions: When hearsay may be admissible. (Sections 38-50) All declarants are deceased or are
not available but these declarations can be made admissible because of the badge of truthfulness or
credibility and because of the necessity to find evidence.

Formula: Necessity +Trustworthiness =Admissibility

a) Dying declaration (Ante Mortem Statement or Statement in Articulo Mortis) (Section 38)
1) Statement made aware or conscious of an impending death.
2) Any case wherein the subject of inquiry is the person’s death e.g. murder, homicide, etc.
3) Testimony of the cause and surrounding circumstances of such death.
b) Statement of decedent or person of unsound mind (Section 39) Survivor disqualification Rule
or Dead Man’s Statute (Old rule)
- No other witness to testify. But must have the following requirements:
1. Personal Knowledge; and
2. Recent Perception (Decedent) or Clear Recollection (Unsound mind)
c) Declaration against interest (Section 40)
- No one would admit a fact against himself.
d) Act and declaration about pedigree (Section 41)
Pedigree includes relationship, family genealogy, birth, marriage, death, the dates when and
the places where these facts occurred, and the names of the relatives. It embraces also facts
of family history intimately connected with pedigree.
e) Family reputation or tradition regarding pedigree (Section 42)
- Made before the controversy
Rule 41 v. Rule 42
Rule 41- need not be a member of the family
Rule 42- needs to be a member of the family
f) Common reputation (Section 43)
g) Part of the Res Gestae; why admissible (Section 44)
1) Startling occurrence- exclamation or act of declaration made by the person as actual
witness of the crime which statement describes the circumstances of the crime
(spontaneous)
- Startling occurrence is made immediate, prior, or subsequent to the crime. Deemed truthful
for the lack of ample time to fabricate the facts.
2) Equivocal act- acts or statements material to the issue and giving it a legal significance.
(contemporaneous)
h) Records of regularly conducted business activity (Section 45)
- Business Records Rule
 - No deliberate intention of falsehood; trustworth
i) Entries in official records (Section 46)
j) Commercial lists and the like (Section 47)
k) Learned treatises (Section 48)
l) Testimony or disposition at a former proceeding (Section 49)
▪ Same subject matter
▪ Same parties
m) Residual exceptions (Section 50)
▪ Statement is offered as evidence of a material fact;
▪ Statement is more probative on the point for which it is offered than any other
evidence which the proponent can procure through reasonable efforts;
▪ The general purposes of these rules and the interests of justice will be best served
by admission of the statement into evidence.

Commonality: That the statements are essentially hearsay because the makers or authors of these
statements are not presented in court and are not subjected to the opportunity for cross examination for
the purpose of ascertaining the perception, communication, and personal knowledge of a witness. They
are however are admissible because of two reasons: (1). The guarantee of trustworthiness or that they are
presumed more likely to be true than not and (2). that the court has no option but to accept them due to
circumstances which exempt the authors from being personally presented in court as witnesses.

STATEMENTS NOT CONSIDERED HEARSAYS (Ibid., Par. b)

a. Inconsistent with the declarant’s testimony and was given under oath subject to the penalty of
perjury;
b. Consistent with the declarant’s testimony and is offered to rebut an express or implied charge
against the declarant of recent fabrication or improper influence of motive; or
c. One of identification of a person made after perceiving him or her.

7. OPINION RULE (Rule 130, Sections 51-53)

a. G.R. Opinion of an ordinary witness is not admissible.
b. Exceptions when an ordinary person regarding the following: (IMHI-EBCA)
1. Identity of a person-adequate knowledge;
2. Handwriting-sufficient familiarity;
3. Mental sanity-sufficiently acquainted;
4. Impressions of emotion, behavior, condition, or appearance of a person.
The good character or testimony of a witness may be impeached by presentation of
contradictory evidence. One may object an improper impeachment.

How to impeach a witness: (Rule 132, Sec.11) BY ADVERSE PARTY WITNESS

1) Presentation of contradictory evidence;
2) GBR-H-I-T (General Bad Reputation-Honesty, Integrity, and Truth);
3) Prior inconsistent statement; and
4) Conviction of a crime with a penalty of more than 1 year and crimes involving
moral turpitude irrespective of penalties.
 How to impeach one’s witness: (Rule 132, Sec.13)

A party cannot impeach his/her own witness except:

1) Adverse party witness; and

2) Unwilling or hostile witness.

How to impeach a witness: (Rule 132, Sec.14) BY EVIDENCE OF INCONSISTENT STATEMENTS

Lay the foundation or predicate and the circumstances must be:

1. related to places and the persons present;
2. he or she must be asked whether he or she made such statements; and
3. if so, allowed to explain them.

EXCLUSION AND SEPARATION OF WITNESSES: (Rule 132, Sec.14)

- For several witnesses to avoid connivance, they can be kept separated to prevent from
conversing with one another. (motu proprio)

8. CHARACTER EVIDENCE (Section 58)

- If the defense already presented good character evidence, prosecution may counter the same
by presenting bad character evidence.
- Prosecution cannot initiate presentation of character evidence except on rebuttal.
- Accused witness can present good character.
- Good character of a witness is already presumed until such character has been impeached (i.e.
when a contrary evidence is presented.) Hence, presentation of character evidence is
prohibited.
- Impeachment- for adverse party: if witness becomes hostile or unwilling

i. Party- paragraphs a & b

ii. Nonparty- paragraph c
• Evidence of a person’s character is inadmissible
1. Opinion
2. Reputation
3. Specific Conduct- only during cross-exam except if character is an essential element

9. Parol Evidence (Modified, Explained of Added) (Rule 130, Sec. 10)

- evidence Aliunde means from another or outside source when meaning cannot be derived from
the document or instrument itself
- allege or put in issue in a verified pleading (under oath or notarized)
(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;
(b) The failure of the written agreement to express the true intent and agreement of the parties
thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their successors in interest after the
execution of the written agreement.
 The term “agreement” includes wills.
- Documentary Evidence v. Parole Evidence:
▪ DE- All documents, irrespective of nature
▪ PE- only contractual documents

G.R. Pleadings need not be under oath.

EXP:
1. Third-party complaint
2. If there is an actionable document
3. Rules on Summary Procedure- hearing not required

10. OTHER RELATED LAWS

1. Constitution- Bill of Rights
2. Civil Code- Statute of Frauds (Civil Code- Art. 1403- All contracts must be in writing.)
3. R.A. 7438- Rights of persons under custodial investigation (All evidence acquired in violation of
this law is inadmissible.)
4. Rules on Electronic Document as evidence
5. Rule on DNA Evidence
6. Anti-Wire Tapping Act
7. Revised Penal Code- Art.14, par.2- Treason
8. R.A. 10625 (Sec.26)
9. Child Witness Rule
10. Other evidentiary rules- ROC 25(Interrogatories), 26(Admissions), 119 (17) (Discharge of
accused to be a state witness)

4. OFFER OF EVIDENCE

Rule 132, Sec. 34- To offer is to admit. No evidence is admissible until offered.

WHEN AND HOW TO MAKE AN OFFER (Rule 132, Sec. 35)

- made ORALLY
• Testimonial- When a witness is called to testify.
• Object and documentary- after the presentation of testimonial evidence.

What is the practical advantage of offer being done orally?

- To avoid alterations or modifications, to lessen time and abbreviate the proceedings, and to
account all available exhibits.

WHEN AND HOW TO MAKE PROPER OBJECTIONS (Rule 132, Sec. 36)
 - No objections if not offered, except Disqualifications.
- Done ORALLY immediately after offer is made.
- Grounds for objectives must be SPECIFIED.
- Objections can be made when:
1. Witness is called to testify;
2. Statement of identification and offer; or
3. During examination.

HOW TO MAKE A RULING (Rule 132, Sec. 38)

- The judge is not required to provide reasons for the ruling except if such is based on two or
more grounds.

Kinds:

1. Sustained; or
2. Overruled.

GROUNDS FOR FORMAL OBJECTIONS

1. Rights and obligations of a witness (Rule 132, Sec.3)- A witness must answer questions,
although his answer may tend to establish a claim against him. However, it is the right of a witness:
To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting
demeanor;
1. Not to be detained longer than the interests of justice require;
2. Not to be examined except only as to matters pertinent to the issue;
3. Not to give an answer which will tend to subject him to a penalty for an offense
unless otherwise provided by law; or
4. 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 for an offense.
5. Viatory right (on criminal offenses for failure to pay testimonial fee)
2. Argumentative Question
3. Ambiguous
4. Improper Impeachment
5. Insulting
6. Leading question is a question which suggests to the witness the answer which the examining party
desires, except:
▪ Cross-examination;
▪ Preliminary matters;
▪ Child Witness Rule;
▪ Unwilling or hostile witness; or
▪ Adverse party
 7. 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.
1. Assumption to be true of a fact not yet testified
2. Different facts presented
8. Irrelevant

III. Objections to an Answer

1. Narrative- Ex. Child- after party is deprived to raise a question

2. Not responsive
3. Premature

STRIKING OUT ANSWER (Rule 132, Sec. 39)

- For answers which are incompetent, irrelevant, or otherwise improper

TENDER OF EXCLUDED EVIDENCE (Rule 132, Sec. 40)

- For purposes of appeal:

▪ Object and document
▪ Testimonial- state the:
a. Name
b. Personal circumstances
c. Substance

PART III-IV. WEIGHT AND SUFFICIENCY OF EVIDENCE

BURDEN OF EVIDENCE (Rule 131, Sections 1)

Burden of evidence is the duty of a party to present evidence sufficient to establish or rebut a
fact in issue to establish a prima facie case. This may shift during the course of the proceedings.

DISPUTABLE PRESUMPTIONS (Rule 131, Sections 3)

MOTIP
1. Money paid to another is due to the latter
2. Official duty is regularly performed
3. Thing delivered to another belonged to the latter
4. A person is innocent of crime or wrong
5. Public officer in his/ her public position is duly elected or appointed

- Belief, Credence, Credible, Weight

- Credibility of a witness and credibility of the witness’ testimony
FACTORS AFFECTING THE CREDIBILITY OF A WITNESS:

1. Properly impeached
2. Interest or want of interest
3. Behavior or demeanor during the trial
4. Undue or unexplained delay or reluctance to testify
5. Motive
6. Flight- does not automatically prove guilt
7. Non-flight- does not necessarily indicate innocence

FACTORS AFFECTING THE CREDIBILITY OF A TESTIMONY:

1. Natural, reasonable, and probable- in accord with the common knowledge and
experience of mankind
2. False in one, false in all- only on material points
3. Direct Evidence v. Circumstantial Evidence
4. Positive Evidence v. Negative Evidence- PE prevails over NE
- Positive Evidence is an assertion of facts.

Types of Assertions:
▪ Positive Assertion
▪ Negative Assertion
- Negative Evidence explains that one wasn’t able to notice something.

5. Corroborative Evidence v. Cumulative Evidence

- Corroborative: Different kinds of evidence for the same point, e.g. eye witness and expert
witness
- Cumulative: Same kind of evidence, e.g. eye witness 1 and eye witness 2
6. Prima facie v. Conclusive- Prima facie can still be contradicted through rebuttal.