1/12/2022
Book: Insights on Evidence by Chief Justice Diosdado Peralta
First Meeting: Show evidence of presence.
 May 1, 2021 – Rule on Evidence has been amended.
 EVIDENCE – none countable noun. Examples of countable nouns are books and pencils. Noncountable nouns are like advice, rice and evidence. Plural of evidence shall be used with quantifying
words like pieces of evidence and parcel of lands.
How do you define evidence?
 Evidence is the means, sanctioned by the rules, of ascertaining the truth in a judicial proceeding.
 The truth respecting a matter of fact. There must be a fact and issue. Question of fact not an question
of law. Pure question of law need only to argue, it does not need evidence because the issue is a
question of law.
 You don’t number evidence, you weigh evidence. The party who prevails in a case is not usually the
one who present the most number of evidence like for example calling many students to testify. Thou
art weighed in the balances but art thou one thing. (Tinimbang ka ngunit kulang.)
 In a civil case, the case can be submitted for judgment on a basis of stipulation of facts provided that
agreement as to the facts is in writing.
 Sometimes you don’t need evidence when the parties agreed on the facts in writing. Also, when the
matter is taken in judicial notice. Measures of time can be taken judicial notice of, you don’t need
evidence. You don’t have to prove that10 o clock in the morning is daylight.
 Judicial admission vs. extrajudicial admission: Judicial admission does not require evidence because
the admitter is bound by his admission and he cannot contradict his admission.
Scope of the Rules on Evidence
1. The rules on evidence prescribe the manner of presenting evidence.
2. The rules on evidence fix the qualifications of witnesses and the modes of examining them. For
example a spouse cannot testify against his another spouse without consent of the affected spouse.
3. The rules on evidence determine probative matters, the admissibility or inadmissibility of evidence.
The rules of exclusion is the rule of admissibility, it determines what is allowed and what is not
allowed.
Kinds of Evidence
 Positive and negative evidence
 Direct and circumstantial evidence
 As to nature: Object, Documentary and Testimonial Evidence (most important classification)
 When it is positive evidence? Suppose a witness testify that he is present at the shooting happens,
and says. I saw the accuse shot the victim. Further, if the witness says he is present, but says the
accuse did not shot the victim, still positive. But if the witness says that he did not see or did not
know that the accused shot the victim, it is negative evidence.
 Evidence is positive when the witness affirms that a fact did or did not occur.
 Evidence is negative when the witness states that he did not see or did not know the occurrence of a
fact.
1/13/2022
Relevance vs. Competency
 Hearsay is incompetent evidence.
 Recording a private conversation secretly without the other person’s knowledge. – Not admissible as
evidence (anti-wiretapping act)
Kinds of Admissibility
1. Multiple Admissibility
Evidence that can be admitted multiple times.
Example: Asking the victim who stabbed him, and tells you what entirely happened before
he died. – Dying declaration statement is an exemption in admissibility of evidence. When
the victim tells you the confession, he must be in the impediment of death.
 If it does not qualify as dying declaration – it may be considered as part of the res jes teae (a
spontaneous statement).
Conditional Admissibility
 When at the time the evidence is being offered, its relevancy to the issues involved in the
case cannot yet be determined.
 If the relevance of a piece of evidence is not yet apparent at the time but will be shown only
when connected to other evidence.
Curative Admissibility
 A party may be allowed to produce an otherwise admissible evidence to offer an equally
inadmissible evidence to explain a way or to remove the unfair prejudice caused by the
admission of the earlier evidence.
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There is no vested right in rules of evidence because it is subject to change by the Supreme Court.
 Exemptions: Rules of evidence provided for in the Constitution that cannot be change by the
Supreme Court. Ex. Right against self-incrimination.
Can you waive the rules of evidence? May the rules of evidence be waived?
 Yes. One way of waiving is failure to object.
 Exemption: When rules of evidence are established by law, then the waiver is void. Example:
Waiver of disclosure of State secrets then it is void.
Requisites of Admissibility
1. Relevancy – relation to the fact in issue
2. Competency – incompetent is excluded
RULE 128
GENERAL PROVISIONS
Section 1. Evidence defined. – Evidence is the means, sanctioned by these Rules, of ascertaining in a judicial
proceeding the truth respecting a matter of fact. (1)
Section 2. Scope. – The rules of evidence shall be the same in all courts and in all trials and hearings, except as
otherwise provided by law or these Rules. (2)
Section 3. Admissibility of evidence. – Evidence is admissible when it is relevant to the issue and not excluded by
the Constitution, the law or these Rules. (3a)
Section 4. Relevancy; collateral matters. – Evidence must have such a relation to the fact in issue as to induce
belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except when it tends
in any reasonable degree to establish the probability or improbability of the fact in issue. (4)
Factum Probandum – factual issue
(You must know how to frame the issue.)
The evidentiary facts that you need to prove or establish the ultimate facts is factum probans. The factum
probans is the evidentiary facts to establish the factum probandum. (Go by the sounds.)
Distinguish factum probandum vs. factum probans.
 Ultimate fact; evidentiary fact
 Sought to be establish; material the you need as evidence to prove the propositions
 Hypothetical; existent (not hypothetical)
Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to
establish the probability or improbability of the fact in issue.
 Collaterals matters – facts other than the facts on issue.
 Ex. Motive is a collateral matter in a criminal case.
1/14/2022
In every case or civil case, there must be a fact in issue. If the issue is simply legal, you don’t present evidence.
But you present evidence on a factual issue.
If the collateral matter is relevant,
Kinds of Collateral Matters
1. Prospectant Collateral Matters
 If it precedes the fact in issue but pointing towards it, it is prospectant collateral matter.
 Examples: Motive, Moral character
 If the prosecution cannot prove the bad moral character of the accused, you can object.
2. Concomitant Collateral Matters
 It accompanies the fact ion issue but pointing to it.
 Examples: Alibi, Opportunity
3. Retrospectant Collateral Matters
 It succeeds the fact in issue but it points back to it.
 Example: Flight
Not all collateral matters are prohibited. Because if it is relevant, that it establish the probability and
improbability of the fact in issue, it is allowed.
Rule 132
PRESENTATION OF EVIDENCE
Section 40. Tender of excluded evidence. – If documents or things offered in evidence are excluded by the court,
the offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror
may state for the record the name and other personal circumstances of the witness and the substance of the
proposed testimony. (40)
Competency
 If it is not excluded by the law or by the rules, law includes the Constitution.
 Inadmissible:
 Evidence is inadmissible under the wiretapping law or RA 4200. Sigawan (shouting at each
other) is not a private conversation. Use of Dictaphone, dictograph, detectaphone, tape
recorder, walkie talkie is prohibited.
 Any communication or spoken words without authority or consent from the parties. It is
unlawful to overhear, intercede private communication without consent of all parties from
private communication.
 RA 9995 or Anti-Photo and Video Voyeurism Act – evidence is not admissible. Taking photo
or video during sexual act or other relevant acts without the consent of the persons involve
in which these persons have reasonable expectation of privacy. Take, copy, sell or publish a
photo or video coverage of a sexual act of private persons without their consent is also a
prohibited act.
Other Instances of Evidence that is Inadmissible of Competency
1/15/2022
Evidence cannot be admitted if is incompetent.
Search is pursuant to avoid search warrant, and the search warrant is void, then any evidence acquired
during the search is inadmissible except in cases of valid warrantless arrest. Inadmissible because
incompetent.
History Break:
Who built the atomic bomb?
J. Robert Oppenheimer (1904-1967) was an American theoretical physicist. During the Manhattan Project,
Oppenheimer was director of the Los Alamos Laboratory and responsible for the research and design of an
atomic bomb. He is often known as the “father of the atomic bomb."
 July 16, 1945 – first atomic bomb
 July 16, 1969 – Neil Armstrong rode and set foot on the surface of the moon, “sea of tranquility”
 July 16, 1949 – Dean’s birthday HAHAHA (haba ng segwey)
People vs. Edel Aminudin, 1980’s
 The search was illegal; because the arrest was illegal. Not a valid warrantless arrest because there is
no indication and no evidence that he is committing a crime.
 Evidence was inadmissible because incompetent.
 The marijuana was the fruit of a poisonous tree.
“Falsus in uno, falsus in omnibus” is a Latin term which means “false in one, false in all”.
 NOT an absolute rule of law and this does apply all the time.
 It must be shown that the witness testify falsely, willfully and intentionally.
Matters that do not need evidence/matters that need not be proved/require evidence
1. Judicial Notice
a. Mandatory judicial notice – no need to present evidence
b. Discretionary judicial notice
May our courts take judicial notice of own laws? Yes. Our courts must know our laws.
May a court take judicial notice of a municipal or city ordinance? No. It can take judicial notice only if
the municipality or city in which it sits, but not of any other city or municipality.
May our courts take judicial notice of foreign law? No. A foreign law must be pleaded as a fact and
proven as a fact. Processual Presumption or presumed identity approach.
1/19/2022
A suspect even when he is in police custody, if he allows himself to be interviewed by private individual like a
TV reporter and makes a confession, then his confession is admissible in evidence because he is not a police
officer. What if he makes a confession to a Brgy. Captain or Mayor? Yes, because they are not a law enforcers.
Matters that do not need evidence/matters that need not be proved/require evidence
1. Judicial Notice
a. Mandatory judicial notice – no need to present/introduce evidence
Ex. Measures of time, constitution and history of Philippines, capitals, nationality of estates,
laws of nature
b. Discretionary judicial notice – the court may allow the parties to be heard thereon
Ex. Prices of real estate
i.
Matters which are of public knowledge
ii.
Capable of unquestionable demonstrations
iii.
Ought to be known to judges by reason of their judicial functions
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May our courts take judicial notice of a pardon granted by the president to a certain
individual? No. Pardon is a private act of the President; it is not the same as amnesty.
Amnesty is a public act of the President.
May our courts take judicial notice of a foreign law? No. Foreign law must be pleaded as a
fact and proven as a fact. What if fails to act? Foreign law is the same as the matter; known as
processual presumption or doctrine of presumed identity approach. Ion the absence of the
matter, foreign law is presumed to be the same with the matter.
A foreign law cannot be taken judicial notice of EXCEPT in the following instances:
i.
When the local court is evidently familiar with the foreign law and it has previously
ruled upon the foreign law in another case;
ii.
When the foreign law refers to the law of nations;
iii.
When the foreign law is accepted by the Philippine government.
2.
Judicial Admissions
a. Extra-judicial admissions – it must be proved, must present evidence
b. Judicial admissions – it does not need evidence/does not require proof
 It may be oral or written, except: any agreement or admission made by the accused
in the pre-trial cannot be used against him unless signed by him, and his counsel
 Rule 118 Sec. 2. Pre-trial agreement. – All agreements or admissions made or
entered during the pre-trial conference shall be reduced in writing and signed by
the accused and counsel, otherwise, they cannot be used against the accused.
 Judicial admission – if made in the pleadings or motions, made during the trial,
made in the stipulation of facts.
 May the parties agree on the facts and submit the case to the court for decision
based on the facts agreed by them? YES. Provided these are in writing so that the
case can be submitted based on the stipulation of facts and the agreement as to the
facts is in writing.
 If it was made through a palpable mistake and the imputed admission was not in
fact made – motion to withdraw admission.
 Remedies to a party who has made judicial admission –
a. Written – motion to withdraw the pleading or any other containing the
admission
b. Oral – counsel of the court moved that the admission be excluded
 Status of a judicial admission in a pleading that is later amended? They shall cease to
be judicial admissions, and now become extra-judicial admissions.
 Suppose at the arraignment, the accused pleaded guilty and then he sign a certificate
of arraignment that he pleaded guilty, then he filed a motion to withdraw the plea of
guilty and the Court granted it. May his plea of guilty be used as his judicial
admission? No. The plea of guilty later withdrawn cannot be offered as evidence
against him.
3.
Presumptions
1/20/2022
Judicial admission
 It must be made by a party to the case, and
 It must be made in the course of the proceeding in the same case.
Kinds of Evidence according to Nature
1. Object Evidence
 Evidence of the highest order/real evidence/actual object address to the senses of the court
 May be exhibited, viewed and examine in court
 It includes other senses like sight, hearing, taste, smell and touch.
Rule of exclusion – of the original document is available then you cannot present a mere
copy; it excludes secondary evidence. Object evidence is not a rule of exclusion.
 Requisites of admissibility of object evidence
a. Relevant
b. Authenticated – comply with the requirement of competency
c. Authentication must be made by a competent witness – testimonial sponsor
 Authentication is laying the foundation of evidence.
d. Object must be formally offered – the purpose of the offer must be specified
Documentary Evidence
Testimonial Evidence
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When may the court object the introduction or presentation of evidence?
Chain of Custody (RA 10640)
1/21/2022
Chain of Custody in Drug Cases
Links must be establish by prosecution in a buy bust operation, the seizure and marking of the illegal drug,
turn-over of the illegal drug seized by the apprehending officer to the investigation officer, turn-over by the
investigating officer to the chemists for laboratory examination, turn-over of the illegal drug to the court.
If the object cannot be brought in court, the court must conduct ocular inspection before the trial starts.
Even a document like a deed of sale or contract of lease may also be presented as object evidence.
When? A document like a deed of sale maybe considered as a object evidence when the purpose of the
document is to prove the existence of the property.
DNA testing (object evidence) – rule on DNA evidence (AM No. 06-11-5-SC, Oct. 2, 2007), applicable in all
criminal, civil cases and special proceedings whenever appropriate.
DNA testing is a valid test for determining paternity, identity of an individual and commission of a crime.
It can be evidence of exclusion since no two individuals have the same, except identical twins.
People vs. Vallejo; rape with homicide case and the victim was a 9-year old. High tribunal laid down
guidelines in testing and evaluating and assessing the probative value of DNA evidence.
1. How the samples were collected?
2. How they were handled?
3. The possibility of contamination of the samples.
4. The procedure followed in analyzing the samples.
5. The qualifications of the analyst in conducting the test.
People vs. Jatar; rape with homicide case involving a 9-year old girl.
Right against self-incrimination: May a person be compelled to provide sample? YES. The right against selfincrimination applies only to testimonial evidence; DNA evidence is object evidence.
The test may yield three possible results:
1. The samples are similar and could have originated from the same source – rule of inclusion.
2. The samples are different hence they must have originated from different sources. – rule of
exclusion.
3. It is not possible to be sure, based on the results of the test, whether the samples have similar DNA
types. This might occur for a variety of reasons including degradation, contamination, or failure of
some aspect of the protocol. Various parts of the analysis might then be repeated with the same or a
different sample, to obtain a more conclusive result – it is inconclusive.
Evaluate DNA results?
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DNA results excludes the putative father shall be conclusive proof of non-paternity.
If the value of probability of paternity is less than 99.99%, the DNA results shall be considered as
corroborative evidence. There is presumption of paternity and the presumption is disputable.
You don’t need a court order to test for DNA. But if there is a pending case, you need a court order.
An order granting or allowing DNA testing, that is not appealable. It is immediately executory. A petition for
certiorari shall not stay implementation of the other, unless a higher court issues an injunctive order.
Post-conviction DNA testing – to be conducted: you don’t need a prior Court order. It is available without a
need of prior court order.
1. A biological sample exists;
2. The sample is relevant to the case; and
3. The testing would probably result in the reversal or modification of the final conviction.
What if it is favorable to accused? Project Innocence by Barry Scheck; The Innocent Man by John Grisham
(sentenced with death penalty)
Remedy if the results are favorable to the convict
 The convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin if
the results of the post-conviction DNA testing are favorable to the convict.
 In case the court, after due hearing finds the petition to be meritorious, it shall reverse or modify the
judgment of conviction and order the release of the convict, unless continued detention is justified
for a lawful cause.
 A similar petition may be filed either in the Court of Appeals or the Supreme Court, or with any
member of said courts, which may conduct a hearing thereon or remand the petition to the court of
origin and issue the appropriate orders. [Sec. 10, Rule on DNA Evidence]
1/22/2022
Post-conviction DNA Testing
Upon the request of the prosecution or the accused:
1. A biological sample exists;
2. The sample is relevant to the case; and
3. The testing would probably result in the reversal or modification of the final conviction.
The accused himself or one acting on his behalf or the prosecution may file a petition for a writ of habeas
corpus in the court of origin if the results of the post-conviction DNA testing are favorable to the convict.
The court will hear the petition. Witnesses will be presented to prove that the allegations in the petition are
true.
The court will issue an order;
1. Granting the petition;
2. Setting aside the decision; and
3. Ordering the released of the accused.
Documentary Evidence
 Section 2. Documentary evidence. – Documents as evidence consist of writings, recordings,
photographs or any material containing letters, words, sounds, numbers, figures, symbols, or their
equivalent, or other modes of written expression offered as proof of their contents. Photographs
include still pictures, drawings, stored images, x-ray films, motion pictures or videos.
 Deed of Sale – offered to prove its existence, then the Deed of Sale is not considered as documentary
evidence because the purpose should be to prove the contents.
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Gun is offered in evidence to prove what is written in the handle of the gun – documentary evidence;
to prove the contents of what is written in the gun.
Photocopies – Yes. Later on, original document rule will be discussed. Best evidence rule = original
document rule.
What do you do if you have documentary evidence?
 Requisites for admissibility of documentary evidence:
1. Document must be marked as an Exhibit;
2. It must be identified at the trial;
3. The purpose must be specify;
4. It must be authenticated: genuineness and due execution; and
5. Must be formally offered in evidence.
 Can deed of sale be offered twice? YES. It can be both documentary and testamentary evidence under
the Principle of Multiple Admissibility.
Two Rules:
1. Original document rule
 “Best evidence rule” – misnomer; it is misleading because it would seem to suggest that it is
the evidence of the highest order hence other forms of evidence may be inferior.
 “Primary evidence rule”
 Section 3. Original document must be produced; exceptions. – When the subject of inquiry is
the contents of a document, writing, recording, photograph or other record, no evidence is
admissible other than the original document itself, except in the following cases:
a) When the original is lost or destroyed, or cannot be produced in court, without bad
faith on the part of the offeror;
b) When the original is in the custody or under the control of the party against whom
the evidence is offered, and the latter fails to produce it after reasonable notice, or
the original cannot be obtained by local judicial processes or procedures;
c) When the original consists of numerous accounts or other documents which cannot
be examined in court without great loss of time and the fact sought to be established
from them is only the general result of the whole;
d) When the original is a public record in the custody of a public officer or is recorded
in a public office; and
e) When the original is not closely-related to a controlling issue.
 Original document rule applies to prove the contents of the document not the truth of what
is stated in the document.
 It is a rule of exclusion; it excludes documents that are not considered original.
 Why need to be original?
a) If you allow presentation of document that is not original, it may allow presentation
of unauthenticated documents hence needed to prevent the commission of fraud.
b) To exclude uncertainties in the contents of the documents.
 The subject of inquiry is the contents of the record, documentary evidence is admissible.
 Suppose July 16 wedding; ask where were you on that day? Why were you there? Who
officiated the wedding? What happened after the wedding? Marriage contract need not be
presented because the purpose of inquiry is the existence of contract. Even if there was a
deed of sale, the subject matter is the contents of the deed of sale.
 SUBJECT OF INQUIRY MUST BE THE CONTENTS OF WRITINGS, RECORDINGS,
PHOTOGRAPHS OR ANY MATERIAL.
 Date of the marriage stated in the contract – original document rule
 Original documents must be presented – Exceptions:
a) When the original is lost or destroyed, or cannot be produced in court, without bad
faith on the part of the offeror;
b) When the original is in the custody or under the control of the party against whom
the evidence is offered, and the latter fails to produce it after reasonable notice, or
the original cannot be obtained by local judicial processes or procedures;
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c) When the original consists of numerous accounts or other documents which cannot
be examined in court without great loss of time and the fact sought to be established
from them is only the general result of the whole;
d) When the original is a public record in the custody of a public officer or is recorded
in a public office; and
e) When the original is not closely-related to a controlling issue.
If the original document is not available, as long as you laid down the basis of secondary
evidence, the Court may allow.
Kinds of Secondary Evidence:
a) Copy of the document
b) Recital of its contents in some authentic document/writing
c) Testimony of witnesses
In order that secondary evidence may be admissible, there must be proof by satisfactory
evidence of:
a) due execution of the original;
b) loss, destruction, or unavailability of all such originals; and
c) reasonable diligence and good faith in the search for or attempt to produce the
original.
The correct order of proof is existence, execution, loss, and contents.
There must be proof of the existence of the original.
Reasonable notice to produce the original.
The adverse party fails to produce it.
1/26/2022
The following are the exceptions to the original document rule:
Secondary Evidence can be presented when:
1. Section 5. When original document is unavailable. – When the original document has been lost or
destroyed, or cannot be produced in court, the off eror, upon proof of its execution or existence and
the cause of its unavailability without bad faith on his or her part, may prove its contents by a copy,
or by recital of its contents in some authentic document, or by the testimony of witnesses in the
order stated.
2. Section 6. When original document is in adverse party’s custody or control. – If the document is
in the custody or under the control of the adverse party, he or she must have reasonable notice to
produce it. If after such notice and after satisfactory proof of its existence, he or she fails to produce
the document, secondary evidence may be presented as in the case of its loss.
3. Section 7. Summaries. – When the contents of documents, records, photographs, or numerous
accounts are voluminous and cannot be examined in court without great loss of time, and the fact
sought to be established is only the general result of the whole, the contents of such evidence may be
presented in the form of a chart, summary, or calculation. The originals shall be available for
examination or copying, or both, by the adverse party at a reasonable time and place. The court may
order that they be produced in court.
4. Section 8. Evidence admissible when original document is a public record. – When the original
of a document is in the custody of a public officer or is recorded in a public office, its contents may be
proved by a certified copy issued by the public officer in custody thereof.
5. Section 9. Party who calls for document not bound to offer it. – A party who calls for the
production of a document and inspects the same is not obliged to offer it as evidence.
What are the originals?
- The original of a document is the document itself or any counterpart intended to have the same effect
by the person executing it.
- If data is stored in a computer then the print-out or any other output, readable by sight or any other
means, are considered original document.
- A duplicate is a counterpart of original document including enlargement or by chemical
reproduction.
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Problem: The accused is under-going trial for violation of RA 9165, the police officer testified that
when the accused gave him the 1k peso bill in a buy bust operation,
Original documents rule applies only the inquiry is the contents of the document.
Originals in electronic evidence:
- Print-out, output or readable by sight or by any other means provided the data can be seen correctly.
- By transmitting it or recording it electronically, then it is converted into an electronic document.
- Is an ordinary fax transmission an electronic document? NO. It is not an electronic document because
there is an original paper based document. Fax or facsimile are not considered electronic and cannot
be considered as electronic evidence.
- 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. (not meant to be kept for a long time)
- Text messages are admissible in evidence.
- How to prove the text messages? The text messages may be proven by the testimony of the person
who is a party to the same text messages, either a sender or receiver, or a person who has personal
knowledge of the text massages.
2.
Parole evidence rule
 Applies only to contract or agreement, exception is will only.
 This applies when the terms of an agreement have been reduced to writing, it is considered
as containing all the terms agreed upon and there can be, as between the parties and their
successors in interest, no evidence of such terms other than the contents of the written
agreement.
 Parole – means oral; parole evidence – evidence outside the written agreement or
extraneous evidence or evidence aliunde or oral testimonial evidence.
 Parole evidence rule – rule that prohibits evidence aliunde from being presented to modify,
vary, alter or to add to a written agreement. Oral evidence cannot modify, alter or change the
written agreement.
 The requisites for the applicability of the parole evidence rule:
a. There must be a valid contract or agreement (except that the parole evidence rule
applies to a will);
b. The terms of the agreement must be reduced to writing (public or private
document);
*Private document has to be authenticated so that it can be admissible except when
the document is an ancient document or 30 years old. Public document need not be
authenticated.
c. The dispute is as to the terms of the agreement and the dispute is between the
parties and their successors and interests.
 Distinctions between parole evidence rule and original document rule:
a. The PER only applies to contracts and written agreements, only exception is will;
the ODR applies to all documents.
b. The ODR applies even when the parties are not parties to the documents; the PEV
only applies when the parties are involved or their successors in interest in the
document.
1/28/2022
Basic principles involving the parole evidence rule
 This rule applies only to written contracts whether embodied in private or public instrument.
 Will, one writing which although not a contract, is covered by the parole evidence rule.
 This does not apply if the agreements are oral.
 PER applies only to parties and their successors in interest. The suit must be between the parties and
the successors in interest only.
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PER does not apply and cannot be invoke if at least one of the [parties to the suit is not a party or
privy to a party to the written instrument. For example: A, C and are the parties to written
agreement, in case file involving the written agreement, E, one of the defendants is not a party to the
agreement. Thus, PER does not apply since E is not a party to the agreement.
PER can be waived by failure to invoke it as when the adverse party fails to object the introduction of
the parole evidence.
PER does not apply in a suit assailing the validity of the contract because of fraud, illegality,
incapacity of a party. Action of annulment of a contract shall be invoked when there is fraud,
illegality, incapacity of one of the parties; PER does not apply.
If the terms of the agreement have been reduced into writing, it is presumed that all agreements have
been written.
If asked in bar exam, what does introducing of PE mean? It means introducing extrinsic or evidence
aliunde to modify or explain to add in the agreement.
PER does not allow the introduction of parole evidence EXCEPT if any of the following is put in issue
in the pleadings, for a party to be allowed to introduce parole evidence;
a. Intrinsic ambiguity, mistake or imperfection in the written agreement
o Intrinsic ambiguity (latent) - when the ambiguity is not apparent on the face of the
document but lies down on the person of the document.
o The document is clear on its face, but matters outside the agreement create the
ambiguity.
o If the ambiguity is extrinsic, then it will render the contract or agreement or will
void. Otherwise, if the Court will be permitted to make the interpretation, then the
Court will now make the contract.
b. Failure of the written agreement to express the true intent and agreement of the parties
thereto
c. Validity of the written agreement
d. Existence of other terms agreed to by the parties or their successors-in-interest after the
execution of the written agreement.
Distinctions between PER and ODR:
a. Per prohibits the varying of the terms of the written agreement; ODR prohibits the
introduction of secondary evidence in lieu of the original documents.
b. PER applies only to documents which are contractual in nature, except will; ODR applies to
all kinds of writings;
c. PER can be invoked only when the case is between the parties to the written agreement or to
their privies; ODR can invoked by any person whether or not participated in the writing
involved.
d. PER the contents of the writing are not on issue; ODR contents of the writing is the issue.
Kinds of documents:
a. Public documents
i.
Written official acts or record of official acts of sovereign authority, whether the PH
or any foreign country
ii.
Document acknowledge before the notary public except last will and testament
iii.
Public records kept in the Philippines required by law to be entered therein
b. Private documents
i.
Any document which is not any of the above enumerations.
Blank government form - is neither a public or private document because it proves and affirms
nothing. It is nothing, unless you fill it up.
Notarized deed of sale/documents acknowledge before a notary public - it is a public document.
Before a private document must be presented in Court, its due execution, genuineness and
authenticity shall be proved. Public document can be presented and is admissible without proof of its
due execution and authenticity.
Ancient document (private document) need not be proved to be admissible in Court. It is more than
30-year old. It must be unblemished by any alteration or any circumstance of suspicion.
Private document need to prove its due execution and authenticity -
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By anyone who saw the document executed or written
By evidence of genuineness of the signature or hand writing of the parties
1/29/2022
PER does not allow the introduction of parole evidence or evidence aliunde to vary the terms of a written
agreement or to modify them or to add to them.
Exceptions: MEMORIZE
For these exceptions to be available and applicable, they must be put in issue in a verified pleading.
How do you make or verify a pleading? Rules 6, 7 and 8
TESTIMONIAL EVIDENCE
 Evidence submitted to the court through the testimony or deposition of a witness.
 A witness can testify only to those facts which he knows of his own knowledge; through perception.
 Section 21. Witnesses; their qualifications. – All persons who can perceive, and perceiving, can make
known their perception to others, may be witnesses.
Religious or political belief, interest in the outcome of the case, or conviction of a crime, unless
otherwise provided by law, shall not be a ground for disqualification.
 Hearsay is a statement other than one made by the declarant while testifying at a trial or hearing,
offered to prove the truth of the facts asserted therein. A statement is (1) an oral or written assertion
or (2) a non-verbal conduct of a person, if it is intended by him or her as an assertion. Hearsay
evidence is inadmissible except as otherwise provided in these Rules.
A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement, and the statement is (a) inconsistent with the declarant’s
testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other
proceeding, or in a deposition; (b) 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 or
motive; or (c) one of identification of a person made after perceiving him or her.
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Qualifications of Witness: All persons who can perceive, and perceiving, can make known their
perception to others, can testify. The ff. do not disqualify a person from testifying:
a. religious or political belief;
b. interest in the outcome of the case; or
c. conviction of a crime, unless otherwise provided by law, shall not be a ground for
disqualification.
Suppose you were convicted and served sentenced for false testimony or falsification and you have a
string of conviction, are you qualified to testify? Yes, the only problem is if they will believe you.
Credibility is different from admissibility.
To be entitled to credence, the witness must not only be credible, his testimony must also be credible.
Those persons who are convicted with falsification or false testimony or perjury are not allowed to
be witnessed to a will. But can testify in Court.
RA 11594 - it increases the penalty for perjury. Now, from 6 years and one day to 10 years.
What about a child witness? Can a child testify in a case? Yes. As long he can perceive and perceiving.
Who is a child witness? Any person who at the time of the giving of testimony id below 18 years of
age. So if below 18 years of age at the time of the giving of the testimony, by implication, he is also
below 18 years of age at the time he saw the incident.
If over 18 years of age? In child abuse cases.
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Child witness of 4, 5, 7, years old; the court will have to conduct, on a preliminary basis, a
competency examination. To find if they have the ability to tell the truth, observe and remember
what he have observed and to relate what he have observed.
What are the disqualifications?
a. By reason of marriage
o Marital Disqualification Rule (Spousal Immunity in American Law)
o During their marriage, the husband or the wife cannot testify against each other
without the consent of the affected spouse.
o Except: Spouse may testify against the other even without the consent of the latter
a) In a civil case by one against the other; or
b) In a criminal case for a crime committed by one against the other or the
latter’s direct descendants/ascendants.
o What is the reason of the marital disqualification rule? There is identity of interest
between H&W; and the preservation of the marriage.
o The other party must be a party to the case. The spouse against whom the testimony
is to be given is the party to a case.
o Who can invoke the MDR? The spouse party, the spouse who is the party to the case.
The witness spouse cannot invoke it.
o Example: The wife is the accused and the witness and said; my husband is the one
who brought the marijuana in the house. On the other hand, the husband, who is
watching or observing in the court, objects the testimony invoking the MDR.
Objection should be over-ruled since the husband, has no right to invoke the MDR
since he is not a party to the case and he is not testifying against her wife.
o You can marry the witness to silence her.
b. By reason of privilege communication
2/2/2022
Maximo Alvarez vs. Susan Ramirez; H&W have not been living together because their relationship was
strained. H burned the house of the sister of the W. W witnessed the burning. The W was called to testify and
H objected that W cannot testify without his consent. The SC answered it in the affirmative saying; the W can
testify. MDR is to preserve domestic harmony and unity between H&W, however in this case, no harmony to
reserve.
A spouse can marry the witness to silence her.
If the H was charged with an offense along with some other individuals, the W can testify but her testimony
against her husband may not be considered if the H objects.
Disqualification by reason of privilege communication
 Marital Privilege Rule
 The H&W during and after the marriage cannot be examined without the consent of the
other spouse except in a civil case by one against the other or in a criminal case for a crime
committed by one against the other or the latter’s direct descendants/ascendants.
 Any communication received in confidence or confidential communication is privilege
communication.
 Any communication between H&W is presumed to be confidential, although the
circumstances that the communication was given or relayed were really not a privilege
communication like when they are arguing and using megaphone.
 MPR does not apply if made by one party to the other party BEFORE the marriage.
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In a criminal case against her husband and his companions, the wife was called to testify on
that communication, the husband objected. Can the wife testify? NO. The husband can invoke
the MDR, it is an absolute disqualification. Suppose the marriage was annulled, the husbandaccused in this case, can the wife testify? YES. The MDR applies only during marriage. The
MPR applies even after marriage.
Requisites:
a) There was a valid marriage;
b) The communication received in confidence by one from the other during the
marriage;
c) Without the consent of the other.
Husband and wife always quarrel, the husband has devise a way, called his friend and hide
him in the house, then the husband and the wife quarreled. The husband said that her wife
testified to him during marriage that she was a thief. Can the friend who listened to the
conversation testify against the wife? NO. Planting a witness is prohibited; the friend became
an extension of the personality of the husband.
The communication shall remain privilege even in the hands of third person who may have
obtained the information provided the parties to the communication took reasonable
precaution to protect the confidentiality. He cannot testify provided you provide proof that
you took reasonable precaution to protect the confidentiality of the communication.
Distinctions between MDR and MPR:
(1) MDR can be invoked only if the spouse against whom the spouse is a party to the
action; MPR can be invoked whether or not the spouse is a party to the action.
(2) MDR applies only if the marriage existing at the time the testimony of the spouse ios
offered; MPR applies during or after marriage
(3) MDR constitutes a total/absolute prohibition against any testimony against the
spouse of the witness; MPR applies only to confidential information received by
other spouse during the marriage.
Attorney-Client Privilege
An attorney or person reasonably believed by the client to be licensed to engage in the
practice of law cannot, without the consent of the client, be examined as to any
communication made by the client to him or her, or his or her advice given thereon in the
course of, or with a view to, professional employment, nor can an attorney’s secretary,
stenographer, or clerk, or other persons assisting the attorney be examined without the
consent of the client and his or her employer, concerning any fact the knowledge of which
has been acquired in such capacity. (Rule 130, Sec. 23(b))
Except in the following cases:
(1) Furtherance of crime or fraud. If the services or advice of the lawyer were sought or
obtained to enable or aid anyone to commit or plan to commit what the client knew
or reasonably should have known to be a crime or fraud;
(2) Claimants through same deceased client. As to a communication relevant to an issue
between parties who claim through the same deceased client, regardless of whether
the claims are by testate or intestate or by inter vivos transaction;
(3) Breach of duty by lawyer or client. As to a communication relevant to an issue of
breach of duty by the lawyer to his or her client, or by the client to his or her lawyer;
(4) Document attested by the lawyer. As to a communication relevant to an issue
concerning an attested document to which the lawyer is an attesting witness; or
(5) Joint clients. As to a communication relevant to a matter of common interest
between two (2) or more clients if the communication was made by any of them to a
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lawyer retained or consulted in common, when offered in an action between any of
the clients, unless they have expressly agreed otherwise.
Attorney-client privilege does not cease with termination of the case. It still subsists
notwithstanding that the case is over. It does not end with the death of the client. It is eternal
(no beginning, no end). Everlasting (it has beginning, no end).
Ends only when waived by the client, by his consent to the attorney.
What about random consultation? Is that covered by attorney-client privilege?
2/3/2022
Attorney-client privilege
 Can be invoked only by the client; not only when his lawyer is asked to testify if his lawyer is asked to
testify, he can invoke it.
 He can also invoke it, if he is also asked if the disclosure like if he will be asked to mention what his
attorney advised him to do.
 What about if the client himself is consented to his lawyer testifying, may the attorney invoke the
privilege? Can the attorney refuse to testify? NO. If the client himself will consent then the lawyer can
testify.
 Are communications voluntary made to the attorney after he refused to accept the employment? NO.
There is no attorney-client privilege.
 Attorney-client privilege exists, except in the following cases:
a. Furtherance of crime or fraud; such services cannot qualify as professional legal service
b. Claimants through same deceased client regardless whether the claims are testate or
intestate; there is no privilege in a will contest
c. Breach of duty by lawyer or client; he is not really providing legal services
d. Joint clients as to communication relevant as to common interest between two or more
clients; joint clients falling out, the communication no longer privilege.
 Attorney-client privilege does not apply when:
a. Intended to be made public
b. If it is intended to be communicated to other individuals
c. When received from third persons not acting on behalf of the client
d. When made in the presence of third persons, who are strangers to the attorney-client
privilege
 Last Link Doctrine - the identity of the client is not privilege if revealing it would reveal information
regarding the case; the name of the client has an independent significance.
Physician-patient privilege
 Applies only in a civil case
 A physician, psychotherapist or person reasonably believed by the patient to be authorized to
practice medicine or psychotherapy cannot in a civil case, without the consent of the patient, be
examined as to any confidential communication made for the purpose of diagnosis or treatment of
the patient’s physical, mental or emotional condition, including alcohol or drug addiction, between
the patient and his or her physician or psychotherapist. This privilege also applies to persons,
including members of the patient’s family, who have participated in the diagnosis or treatment of the
patient under the direction of the physician or psychotherapist.
 If it is a criminal case, it is not applicable.
 A “psychotherapist” is:
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A person licensed to practice medicine engaged in the diagnosis or treatment of a mental or
emotional condition, or
b. A person licensed as a psychologist by the government while similarly engaged.
This does not include a dentist and vet.
Whether the patient is a party or not to the case, can be invoked ion a civil case.
Priest/Public Officer
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A minister, priest or person reasonably believed to be so cannot, without the consent of the affected
person, be examined as to any communication or confession made to or any advice given by him or
her, in his or her professional character, in the course of discipline enjoined by the church to which
the minister or priest belongs.
Can now apply to non-penitential communications provided it is a confidential communication, then
it was only applied to penitential communication. Now, applies to both penitential and nonpenitential communication.
A public officer cannot be examined during or after his or her tenure as to communications made to
him or her in official confidence, when the court finds that the public interest would suffer by the
disclosure.
The communication shall remain privileged, even in the hands of a third person who may have obtained the
information, provided that the original parties to the communication took reasonable precaution to protect
its confidentiality.
Parental-Filial Privilege
 No person shall be compelled to testify against his or her parents, other direct ascendants, children
or other direct descendants, except when such testimony is indispensable in a crime against that
person or by one parent against the other.
 It does not apply to collateral relatives like brothers, sisters, uncles and aunties.
 Can the son testify if he wants to testify? YES. What cannot be done is to compel him to testify.
 What if the crime is committed against him? Can he be compelled to testify? YES. Such testimony is
indispensable in a crime against that person or by one parent against the other.
 2010 case, Lee vs. CA: The stepdaughter was called to testify against her stepmother. It was held that
this applies only to direct ascendants and descendant because there is a family tie that connects them
by common ancestry. A stepdaughter has no common ancestry with her stepmother. Hence, the
stepdaughter can be called to testify. It does not apply to step relationship.
 Does this apply to in-law relationship? No case yet involving in-law relationship. The same as in Lee
vs. CA, there is no family tie relationship.
 Adopted child can be called to testify against the adoptive parent.
Admissions and Confessions
 Section 27. Admission of a party. – The act, declaration or omission of a party as to a relevant fact
may be given in evidence against him or her.
 To be admissible, it must be contrary to his interest because if it is favorable to his claim, then it is
self-serving.
 Admissions made outside the court
 Admission vs. Confession
 Admission is applied to a civil transaction and to matters of fact in a criminal case not involving
criminal intent.
 There can be an implied admission, but there is no implied confession.
 Distinctions between judicial admissions and extra-judicial admission
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JA an admission made by a party to case in course of the proceeding in the same case; EJA made out
of court and requires presentation of evidence.
JA does not need evidence; EJA requires evidence.
JA is conclusive upon the party making it; EJA is as a rule disputable.
Problem: The accused offered to marry the victim whom he had raped. The victim rejected the offer.
What is the effect of the offer?
1/4/2022
Admissions and Confessions
 Judicial Admission vs. Extra-judicial Admission
 Distinctions between JA and EJA
Adoptive Admission
 Statement of a third person becomes the admission of the party who embraces it or spouses it.
 May occur when;
a. A party expressly agrees or concurs the statement;
b. A party hears a statement and repeats it;
c. A party utters an acceptance or builds upon the other person;
d. A party replies by way of rebuttal but ignores further points, which he heard; and
e. A party reads and signs a written statement made by another person.
 Section 28. Offer of compromise not admissible. – In civil cases, an offer of compromise is not an
admission of any liability, and is not admissible in evidence against the offeror. Neither is evidence of
conduct nor statements made in compromise negotiations admissible, except evidence otherwise
discoverable or offered for another purpose, such as proving bias or prejudice of a witness negativing
a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law
to be compromised, an offer of compromise by the accused may be received in evidence as an implied
admission of guilt.
A plea of guilty later withdrawn or an unaccepted offer of a plea of guilty to a lesser offense is not
admissible in evidence against the accused who made the plea or offer. Neither is any statement
made in the course of plea bargaining with the prosecution, which does not result in a plea of guilty
or which results in a plea of guilty later withdrawn, admissible.
An offer to pay, or the payment of medical, hospital or other expenses occasioned by an injury, is not
admissible in evidence as proof of civil or criminal liability for the injury.
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Offer to settle a case or a dispute.
In a civil case/civil action - an offer of compromise is not an admission of any liability. It is not
admissible in evidence against the person making the offer/offeror.
Court annex mediation, judicial dispute resolution - these are mediations and conducted by a
mediator from the Philippine Mediation Center. Anything that you say in the mediation is
confidential and cannot be used at a trial.
In a criminal case - an offer of compromise by the accused may be received ion evidence
against him as an implied admission of guilt, except, those involving quasi-offenses, criminal
negligence cases like reckless imprudence resulting to homicide or those allowed by law to be
compromised.
Is there an implied admission of guilt in cases allowed by law to be compromised? None.
Is there an implied admission of guilt in quasi-offenses? None.
Ex. X raped Y, two weeks later; X went to Y and offered to settle. Can that be presented in court as an
implied admission of guilt? Yes. The accused offered to marry his victim? Yes.
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X raped Y, 2 weeks later, the mother of X went to Y, she is asking for forgiveness and offer to settle
the case. Is that admissible as an implied admission of guilt? No. The offer must be given by the
accused himself (made by the accused himself), in this case, the mother asked for the offer.
The act, declaration cannot prejudice the rights of another person.
Ex. The accused was arraigned, in open court; the accused said the he is guilty. Then he withdraws it.
What is the effect of plea of guilty that was withdrawn? Plea of guilty withdrawn is NOT admissible in
evidence against the accused who made the offer or made the plea.
Plea of guilty to a lesser offense is not valid unless the offended party consents.
The public prosecutor and the offended party must give their consent; otherwise the plea of guilty
will not be valid.
The criminal act performed by the accused resulted in an injury to the victim, so the victim was
hospitalized. The assailant offered to pay the medical expenses. Is the offered payment admissible in
evidence as proof civil or criminal liability? NO. Criminal/civil case; take note of the defenses.
Res Inter Alios Acta Rule
 Read simultaneously Sec. 29 and Sec. 35.
 Section 29. Admission by third party. – The rights of a party cannot be prejudiced by an act,
declaration, or omission of another, except as hereinafter provided.
 Section 35. Similar acts as evidence. – Evidence that one did or did not do a certain thing at one time
is not admissible to prove that he or she did or did not do the same or similar thing at another time;
but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit,
custom or usage, and the like.
 Sec. 29 applies only to extra-judicial declarations. However, when the declarant repeats his
extrajudicial declaration in open court and his co-accused are given the opportunity to cross-examine
him, the declaration becomes admissible against the co-accused.
 Ex. A crime was committed, one early morning, there was a body found near the river-bank and then
X and Y were apprehended by the police. X gave a statement to a newspaper reporter that he along
with Y killed Z, the victim. Is X’s declaration statement admissible? Yes, admissible against X, but not
admissible against Y because of the rule that the act, declaration or omission of another person
cannot prejudice the rights of another person. In this case, X’s declaration cannot prejudice Y.
 What about at the trial, X testifies. X said that his been lying all his life, it is now his time to tell the
truth and redeem his self. X then said that both of them with Y, killed Z. Then, it is admissible in court
as evidence from a person who has a personal knowledge of the facts being testified to.
2/5/2022
Res Inter Alios Acta Rule
 “Res inter alios acta alteri nocere non debit”— Transactions between parties ought not to operate to
the peril of another.
 Evidence of similar acts - Evidence that one did or did not do a certain thing at one time is not
admissible to prove that he or she did or did not do the same or similar thing at another time. (Sec.
35)
 Rights of the party cannot be prejudice by an act, declaration or omission of another applies only to
declarations made extra0judicially. (Sec. 29)
 Exceptions:
a. Admission by a co-partner or agent;
b. Admissions by co-conspirator; and
c. Admissions by privy.
 Admission by a co-partner or agent - The following must be present:
a. It concerns the subject of the partnership or made within his authority;
b. It must be made during the existence of the partnership or agency; and
c. The existence of the partnership or agency is proven by evidence other than such acts or
declaration. There must be separate evidence to prove the partnership or agency.
 The admission of one partner will become competent evidence against his co-partner when the
requisites are present.
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This applies also to partnership, agency and joint debtors.
Ex. X and Y are joint debtors. Y died. X testifies or makes declarations. Can the declaration of X
binding upon Y? No. Because at the time the admission or declaration was made, the joint interest
was no longer subsisting.
Section 30. Admission by co-partner or agent. – The act or declaration of a partner or agent
authorized by the party to make a statement concerning the subject, or within the scope of his or her
authority, and during the existence of the partnership or agency, may be given in evidence against
such party after the partnership or agency is shown by evidence other than such act or declaration.
The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly
interested with the party.
Admissions by co-conspirator - there must be a conspiracy; there must be two or more persons
come to an agreement for felony and they decide to commit it.
Mere conspiracy is not punishable, but if such conspiracy is shown in the commission of a crime; the
act of one is the act of all.
Section 31. Admission by conspirator. – The act or declaration of a conspirator in furtherance of the
conspiracy and during its existence may be given in evidence against the co-conspirator after the
conspiracy is shown by evidence other than such act of declaration.
There must be evidence showing the existence of the conspiracy other than the act of the conspirator.
There must be evidence aliunde apart from the act or declaration of the conspirator.
Suppose: X calls himself a conspirator involving A and B. X made some declarations in the
furtherance of the conspiracy. However, no evidence aliunde was presented. Is X declaration
admissible in evidence. His declaration is admissible only against himself but not as to others
because there is no evidence aliunde to prove such conspiracy.
Suppose: ABS robbed a bank. 5 days later, A testifies that he is with B and C in conspiracy. The act or
declaration of a conspirator in furtherance of the conspiracy and during its existence. The act or
declaration of a conspirator so that it will affect his coconspirators must be made in the existence of
conspiracy. Admissible against A but not against B and C since the conspiracy was committed long
time ago. A testifies in Court and said B and C was with him during the robbery. Is that a competent
evidence against B and C? Admissible as testimony of a person who has knowledge of the facts.
Admission by privy Section 32. Admission by privies. – Where one derives title to property (real or personal) from
another, the latter’s act, declaration, or omission, in relation to the property, is evidence against the
former [if done] while the latter was holding the title.
Privies - lessor/lessee, assignor/assignee, heir/ascendants, donor/done, grantor/grantee
Problem: X sold his grand piano to Y. After the sale, X told his acquaintances that he already sold his
piano to Y. After the death of X, the piano was part of his estate that was adjudicated to his heirs. Is
X’s declaration admissible as evidence against the heirs of Y?
To be admissible against privies, the one making the declaration at the time he makes the
declaration, he must be holding the title of the property otherwise, it will not bind his successors.
2/9/2022
2nd Branch of Res Inter Alios Acta
Evidence of Similar Acts
 Not admissible to prove that one did or did not do at another time as provided under Sec. 35
 Applicable in both criminal and civil cases.
 Section 35. Similar acts as evidence. – Evidence that one did or did not do a certain thing at one time
is not admissible to prove that he or she did or did not do the same or similar thing at another time;
but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit,
custom or usage, and the like.
 This is discretionary upon the Court.
 Past acts of the accused are not admissible except to prove specific intent but this is discretionary
upon the court.
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Admission by silence Section 33. Admission by silence. – An act or declaration made in the presence and within the hearing
or observation of a party who does or says nothing when the act or declaration is such as naturally to
call for action or comment if not true, and when proper and possible for him or her to do so, may be
given in evidence against him or her.
Something is done or said in your presence, it is of such nature that it would naturally call from you if
it is not true, but if you are in the position to dispute it, but you remained silent, then it is admissible
against you as admissible by silence.
He who is silent appears to consent.
Example: The person is in a position to react but did not say anything about it nor dispute it. It calls
for a reaction, but remained silent.
This applies on both criminal and civil cases. This is not applicable if silence is due to a constitutional
right. Like if you have the right to remain silent.
Admission by silence not applicable when silence is due to constitutional right, right to remain
silence.
It applies to a situation in which a situation where a person is caught in the act.
The right to remain silent starts when the person is placed under custodial investigation.
An act or declaration is made and the person is did not react, then it is an admission by silence.
Kunwari tintutukan ka ng kutsilyo sa likod, kaya in that case, you remained silent. YOU ARE NOT IN
THE POSITION TO RESPOND. It is not an admission by silence.
Previous conviction is by means of a judgment. Like for habitual delinquent, 2nd branch of inter alios
acta is not applicable.
Confession Section 34. Confession. – The declaration of an accused acknowledging his or her guilt of the offense
charged, or of any offense necessarily included therein, may be given in evidence against him or her.
Confession is a direct and unqualified admission of guilt in a criminal case. It is more than an
admission.
Accused admitted that he killed the victim, is that a confession?
“I killed him, but I just defended myself.” - Not acknowledging his guilt.
Any person under investigation for the commission of an offence shall have the right to remain silent
and to have competent counsel preferably of his own self. And if not afforded, he must be provided
one. These rights cannot be waived.
RA 7438 - Investigating officer to provide the suspect with competent counsel and must assist the
accused at all times.
Custodial investigation - any questioning initiated by law enforcement officers.
Suppose the questioning was done by TV reporter, is that covered by custodial investigation? NO. The
questioning is initiated by law enforcement officer after the person has been taken to custody.
Questioning was made a Brgy. Tanod, is this is covered by the constitutional protection on right
against self-incrimination, Miranda rights or custodial investigation? YES.
An inquiry by Barangay based watch group or Brgy. Tanod is covered; provided the person or
suspect under custodial investigation when brought to the Brgy. Hall.
Navalio vs, Sandiganbayan (1994) - a person was being audited; the audit examiner has come to sign
the audit report and sign it voluntarily. It is objected because he signed it without the assistance of
counsel; it is like he is under custodial investigation. HE IS NOT CORRECT. He is not under custodial
investigation and the examiner is not a law enforcement officer.
Requisites for Validity of Confession: voluntary, in writing and express.
Must be assisted by the counsel from the beginning up to the end. He must not be gone for any
minute.
Authentication of document is not the same as offer.
Tender of excluded evidence.
Went to the Mayor’s Office and beg for forgiveness and admitted that he killed someone, it is
admissible in evidence.
Custodial investigation and law enforcement officer.
Evidence should be weighed. The Court shall weigh the evidence.
Extra-judicial admission need to be proved admission. Judicial admission need not be proved.
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Admission at the pre-trial of a criminal case, it must be in writing and signed by the accused and the
counsel.
Any agreement or admission made at the pre-trial cannot be used unless it is in writing and signed by
the accused and his counsel.
Admission made during trial, it is admissible against the accused because it is made during trial.
Rule 118 Sec. 2 Admission at the pre-trial be reduced in writing and signed by the accused and his
counsel otherwise it shall not be used against him.
2/10/2022
Hearsay
 Section 37. Hearsay. – Hearsay is a statement other than one made by the declarant while testifying
at a trial or hearing offered to prove the truth of the facts asserted therein. A statement is (1) an oral
or written assertion or (2) a non-verbal conduct of a person, if it is intended by him or her as an
assertion. Hearsay evidence is inadmissible except as otherwise provided in these Rules.
A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement, and the statement is (a) inconsistent with the declarant’s
testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other
proceeding, or in a deposition; (b) 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 or
motive; or (c) one of identification of a person made after perceiving him or her.
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Hearsay is not admissible in evidence because a witness can testify only to those facts which he
knows of his personal knowledge - which derived from his own perception.
X tells W. W is the witness. X outside the court, X tells W that said the killer is A. He testified in court
saying A was the one who killed B, X told him. Then that should be objectionable. Witness is
incompetent.
Hearsay is not admissible because it is excluded by the rule.
Evidence is incompetent; relevant but incompetent.
What is hearsay? Sec. 37
“A TRIAL WITNESS” to prove the truth of the facts ascertained therein.
A statement is not hearsay if … (Sec. 37, 2nd par.)
Define: Hearsay - statement other than the one made by the witness at the trial; a statement other
than the one made by the declarant while testifying at a trial or hearing, offered to prove the truth of
the facts asserted therein; out of court statement by one person, offered in court by another
person to prove the truth of the statement or matter asserted in the statement.
2 individuals outside the court, X and Y, while outside, Y tells X “alam mo si A ay may kalaguyo, si B”.
And then X goes to court to testify in a concubinage case and repeat the statement of Y made outside
the court. To prove the statement - it is hearsay.
The originator of the statement cannot be cross-examined.
Preliminary investigation - is hearsay evidence allowed in preliminary investigation? Like you file
your affidavit complaint and it is based on hearsay. In one case, YES because preliminary
investigation is not trial and not part of a trial. It is not the time for full display of evidence of the
parties. It is not yet the time to determine the admissibility or non-admissibility in evidence of the
parties.
Hearsay is not confined to words, it may include non-verbal conduct; such as hand signals, gestures,
nodding of the head or head movements, sign language. The non-verbal conducts are considered as
substitute for words.
Elements of hearsay:
a. It is an out-of-court statement whether oral, written or non-verbal conduct;
b. The out-of-court statement is made by a person other than the witness testifying at the trial;
c. The out-of-court statement must be offered to prove the truth of the matter asserted in the
statement.
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People vs. Mayorga - The accused told the witness that he raped the victim, outside the court. The
witness testified that the accused raped the victim. Objected because it is hearsay. The judge
sustained the objection. It may look like it is hearsay, BUT it is not because it can be characterized as
an extra-judicial admission of the accused.
Sec. 37, 2nd par. - A statement is not hearsay if the declarant testifies at the trial or hearing (TRIAL
WITNESS) and is subject to cross-examination concerning the statement, and the statement is (a)
inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of
perjury at a trial, hearing, or other proceeding, or in a deposition; (b) 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 or motive; or (c) one of identification of a person made after
perceiving him or her.
These A, B, and C are prior statements made outside the court and repeated in court; before the
witness is called to testify.
A. Declarant’s prior inconsistent statement - made by the witness himself. Used to impeach the
witness. How to impeach a witness? By prior inconsistent statement. A party cannot impeach his own
witness. But the other party may impeach your witness.
B. Declarant’s consistent statement - made by witness himself. Used to rehabilitate the witness where
such prior consistent statements are consistent with his testimony in court. Credibility of the witness
is attacked; that prior consistent statement may be used to rehabilitate the witness. The purpose is to
boost the credibility of the witness where the credibility of the witness is attacked.
02/11/2022
Statement is not hearsay when:
 C. Declarant’s prior statement of identification of a person - made by the witness before he was called
to testify.
 Ex. Identifying a person in a line-up - this out-of-court identification can be used as not hearsay.
 Kinds of out-of-court statements:
Hearsay - not admissible
Non-hearsay  A child witness - in a child abuse case; statement made by a child in a child abuse case, describing any
act of child abuse or attempted act of child abuse, even if hearsay may be admitted in any criminal or
non-criminal proceeding.
 Ex. C, child, one time mentioned something to W. That her uncle inserted his finger to his private
parts. Can W testify of what C told him? It is hearsay, but the rule provides that it is admissible.
 Non-hearsay out-of-court statement, known as independently relevant statement  Doctrine of Independently Relevant Statement - it may be of two kinds, (a) the statement is the
very fact in issue and (b) the statement is a circumstantial evidence of the fact in issue. Such as the
statement of a person showing his state of mind.
 A carnapper, W is one among who heard the statement. A case was filed against A. W testifying
regarding the statement of A, the statement of A is the very fact in issue. The court will not delve on
the fact in issue. Did A make the statement of the fact in issue?
 Statement is the circumstantial evidence of the fact on issue  Ex. Petition for guardianship. Subject of the petition is X. Although, he had a lot of properties, he
cannot manage his properties anymore because of insanity. One day, X mounted a platform in a white
gown up to his knees and he was raising his hands; and saying the he is the Messiah. W was
presented to testify. W was in Burnham and said he saw X in white gown saying he was the Messiah.
You are not admitting for truth of the fact but X’s state of mind. It is a circumstantial evidence of the
fact in issue.
 Independently relevant statements - sought to be admitted not for the truth of the statement but the
tenor of the statement; as independently relevant statements.
 Exceptions - Hearsay but Admissible: They constitute the statements to the situation, ante mortem
statement or statement in articulo mortis or dying declaration.
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Section 38. Dying declaration. – The declaration of a dying person, made under the consciousness of
an impending death, may be received in any case wherein his or her death is the subject of inquiry, as
evidence of the cause and surrounding circumstances of such death.
Ante mortem statement (Statement made by the dying person before he dies) or statement in
articulo mortis or dying declaration are admissible in evidence provided the requisites are present.
Post mortem statement (statement made the dying person after he dies)
REQUISITES OD ADMISSIBILITY:
a. Declaration of a dying person
b. Declaration was made under the consciousness of an impending death
c. Declaration may be received in any case wherein his/her death is the subject of inquiry, as
evidence of the cause and surrounding circumstances of such death
d. Declarant would have been competent as a witness had he survived; and
e. Declarant should have died
To be admissible as a dying declaration, the declaration must die; if not, it is not admissible because
he himself can testify.
In one case, because of one incident, he could not speak anymore. Is his previous statement before
the incident considered dying declaration? NO.
02/12/2022
Ante mortem statement/dying declaration
 Is dying declaration hearsay? YES. But it is admissible as an exception to the hearsay rule.
 An out of court statement made by one person to another person and it is repeated by the latter in
court to prove the truth of the statement.
 Dying declaration is made outside the court.
 Dying declaration must be made by the declarant under the belief that death is certain.
 This is admissible on the ground of trustworthiness and necessity. Trustworthiness - under the belief
that the dying declarant is not capable anymore of twisting the truth more so when it has something
to do on the circumstances surrounding his death.
 REMEMBER THE REQUISITES: It must be present so that the predicate has been laid.
 Ante morte statement or statement in articulo mortis - admissible whether favorable or not to the
dying declarant when it has the effect of exonerating the accused.
 It is admissible in any form. But it must be complete.
 What did you ask him? I ask him, “What happened? And he answered si Abe.” It is NOT complete. But
if he asked, “Who killed you? And he answered, si Abe.” That is a complete statement.
 When you examine a witness, whether in direct or cross-examination, you do not ask a question in
which you do not know the answer.
 More so, in a cross-examination because you will be surprised. You have to prepare the direct or
cross-examination, you have to know the facts. EXCEPTION: If you know you will loss anyway then
ask any question you want to ask.
 It must be responsive to the question. Like, sino ang sumaksak sa iyo and answered, ang misis ko may
kalaguyo.
 Suppose in his statement, he identified the boyfriend of the wife. There is now a case pending in court
like adultery and you testified regarding what the declarant told you. NOT admissible. It must relate
to the circumstances of the death of the dying person as evidence of such death and the
circumstances surrounding such date.
 MADE UNDER THE CONSCIOUSNESS OF AN IMPENDING DEATH - Do you think you will die? And
answered, sapalagay ko po. That was held to be made under the consciousness of an impending
death. The nature or location of the wound inflicted of the wound may indicate the statement was
made under the consciousness of an impending death.
 The mortality of the wound may be considered if made under the consciousness of an impending
death.
 If declarant did not die, even if comatose or render him in vegetative state, it is not considered a
dying declarant. Is it admissible anyway? Yes. Admissible as part of the res gestae.
 Part of the res gestae one of the exceptions of hearsay. (gestay)
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Section 44. Part of the res gestae. – Statements made by a person while a startling occurrence is
taking place or immediately prior or 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.
Dying declaration vs. part of the res gestae
Example of part of the res gestae - “papatayin na kita”, “ayan na, papatayin na si juan”, “papatayin na
ako”, “kumapit kayo nawalan ng break”
If the declarant does not die however cannot speak anymore, the declaration may be part of the res
gestae but not a dying declaration.
Do you think you can survive? “BAKA” - NOT in the consciousness of an impending death.
Do you think you will die? “NO” And eventually die. - NOT in the consciousness of an impending
death.
So better not ask, just consider the nature, location or fatality of the wound inflicted.
Dying declaration may also be given through sign language. Like pointing someone.
Calls from 911 are not considered dying declaration.
May be admissible as an independent statement just to prove that the call or statement is made and it
was relayed to them. BUT NOT TO PROVE THE TRUTH OF STATEMENT.
Dying declaration must be made after the assault, not before the assault.
02/16/2022
Ante mortem statement/dying declaration
 Know the requisites:
 Pp vs. A; charge involving the death of X. But before X dies, he was asked W. W saw him in one corner
of the road with a gunshot wound. And W asks him if X could identify the one who shoot him but
nonetheless A was charged with murder for the death of A. YES. Because that even a statement that
exonerates the accused or favorable to accused is also admissible as dying declaration.
 X was found W lying on one side of the street with stabbed wound. And W ask him who stabbed him,
and X said Z was the one who stab him because when they robbed a bank and demanded his share, Z
does not want to share it with X. Are the utterances of X admissible? YES. Cause and surrounding
circumstances of declarant’s death.
Part of the res gestae (PRG)
 Section 44. Part of the res gestae. – Statements made by a person while a startling occurrence is
taking place or immediately prior or 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.
 Res gestae = “things done”
 Part 1 = Spontaneous statements
 Part 2 = Verbal acts/verbal part of an act/contemporaneous statement
 There must be startling occurrence or event taking place, while this event is taking place, a person
makes a statement. The statement is made before the declarant has time to contrive or devise a
falsehood and
 REQUISITES TO BE ADMISSBLE AS PART OF THE RES GESTAE
 SPONTANEOUS STATEMENT
a. startling occurrence is the rest gestae
b. and the utterances or statement is the part
 This is admissible because the declarant has no time to make it up or make falsehood statement.
 Outcries of the victim under rape can be considered as the part of the res gestae.
 Rule on res gestae does not apply if the declarant himself/herself testifies.
 Part of the res gestate applies only when the declarant himself does not testify.
 As distinguished from dying declaration:
a. DD the law regards the declarant as the one testifying; PRG declarant speaks himself.
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DD confined to matters occurring after the homicidal assault; PRG may precede, accompany
or follow the event or startling occurrence.
c. DD come from the victim; PRG statement may come from the person assaulted, attacker or
any person.
YES. Multiple admissibility - dying declaration and part of the res gestae can be both admitted as
evidence. As long as all the requisites for both are present hence both can be admitted as evidence.
Real life case, the counsel/party himself offers the evidence. Whether the testimonial evidence ne
part of the res gestae is up to the party/counsel to decide.
Object evidence/documentary evidence - offer come after the party offered all his testamentary
evidence.
VERBAL ACT/VERBAL PART OF AN ACT/CONTEMPORANEOUS STATEMENT
a. There must be an equivocal act; (it is the res gestae)
b. The equivocal act must be material to the issue involve under litigation;
c. Statement must accompany the equivocal act; and
d. Statement gives legal significance to the equivocal act.
“Equivocal” = ambiguous; capable of so many interpretations
X and Y; they were inside the room and W happened to go there to get something and when he
opened the door, X was giving money to Y. That was W saw when happened the door. What does the
payment mean? Can be bribe, payment for product, services or whatsoever. The act of giving was the
equivocal act. But Y said upon receiving the money said, “thanks for the gift”. The statement gives it
legal significance, it’s a donation.
To be admissible as part of the res gestae, the statement must accompany the equivocal act. If made
after or made before, that is not part of the res gestae.
Not admissible as part of the res gestae. BUT it is admissible as extrajudicial admission. Can be
admitted not as part of the res gestae but as an extrajudicial admission of another person.
02/17/2022
Other exception to hearsay rule:
 Section 39. Statement of decedent or person of unsound mind. – In an action against an executor
or administrator or other representative of a deceased person, or against a person of unsound mind,
upon a claim or demand against the estate of such deceased person or against such person of
unsound mind, where a party or assignor of a party or a person in whose behalf a case is prosecuted
testifies on a matter of fact occurring before the death of the deceased person or before the person
became of unsound mind, any statement of the deceased or the person of unsound mind, may be
received in evidence if the statement was made upon the personal knowledge of the deceased or the
person of unsound mind at a time when the matter had been recently perceived by him or her and
while his or her recollection was clear. Such statement, however, is inadmissible if made under
circumstances indicating its lack of trustworthiness.
 Before the amendments, Sec. 39 is referred to as a dead man’s statute/survivorship disqualification
rule.
 He cannot testify as to any matter opf fact that occurred before the death of the deceased person.
 The philosophy behind this dead man’s statute, if the death has sealed the deceased [person, then the
law must also seal the lips of the living person.
 Dead man’s statute is replace by Sec. 39
 REQUISITES:
a. an action against an executor or administrator or any representative of a deceased person
ort any person of unsound mind
b. claim or demand of such unsound mind
c. party or assignor of a party or a person in whose behalf the case is prosecuted on a matter of
fact occurring before the death of the person or before such person become unsound mind
 Any statement made by the deceased person or the person of unsound mind may be received as
evidence.
 Section 40. Declaration against interest. – The declaration made by a person deceased or unable to
testify against the interest of the declarant, if the fact asserted in the declaration was at the time it
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was made so far contrary to the declarant’s own interest that a reasonable person in his or her
position would not have made the declaration unless he or she believed it to be true, may be received
in evidence against himself or herself or his or her successors in interest and against third persons. A
statement tending to expose the declarant to criminal liability and offered to exculpate the accused is
not admissible unless corroborating circumstances clearly indicate the trustworthiness of the
statement.
Ex. Statement of a person before he died that he owed someone else a sum of money that he owned
him a sum of money.
The declarant must be unable to testify. Because if the declarant is available to testify and this
exemption does not apply.
This only applies when the declarant is dead or unavailable.
Favorable to his interest - not admissible; this is known as self-serving hence not admissible.
What are the distinctions between declaration against interest (DAI) and admission of a party:
a. DAI may be admitted if the declarant is dead or unable to testify; an admission of party is
admissible even if the declarant is alive (extra-judicial admission)
b. DAI is made before the controversy arises (ante litem motam)
c. DAI is made against one’s pecuniary interest; an admission is admissible as long as
consistent with admitter’s claim or defects
d. DAI is admissible even against third persons; an admission admissible only against the
admitter
e. DAI is an exception to the hearsay rule; an admission is not an exception to the hearsay rule.
Section 41. Act or declaration about pedigree. – The act or declaration of a person deceased or
unable to testify, in respect to the pedigree of another person related to him or her by birth[,]
adoption, or marriage or, in the absence thereof, with whose family he or she was so intimately
associated as to be likely to have accurate information concerning his or her pedigree, may be
received in evidence where it occurred before the controversy, and the relationship between the two
[(2)] persons is shown by evidence other than such act or declaration. The word “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.
It now includes adoption.
Ex. A person, Jose, before his death he made a declaration and before the controversy, he made a
controversy that Juan is his illegitimate son. Then that is a declaration against a pedigree.
Entries in family bibles or family books, engraving, may be received as evidence of pedigree.
Pedigree is not exclusionary; you may present other evidence and it does not exclude other evidence.
Section 43. Common reputation. – Common reputation existing previous to the controversy, as to
boundaries of or customs affecting lands in the community and reputation as 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.
Proof of common reputation:
a. Facts of public or general interest
b. Marriage
c. Moral character
Is there a difference between reputation and character? Moral character is what a person really is.
Reputation is what a person is thought or known to be. Character is internal; reputation is external.
Character is the substance; reputation is the shadow of that substance.
“A lily will still be white even if you put it in a mud.”
02/18/2022
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Part of the res gestae: The statement made by the person while a startling occurrence is taking
place. “While or immediately prior”” - may have definite time frame.
Subsequent thereto = after startling occurrence; “under the stress of excitement” because even if
some hours have passed if the excitement is still there then it could be part of part of the res gestae
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Section 45. Records of regularly conducted business activity. – 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 on hearsay evidence.
This used to be called “entries in the course of business” or business records.
It does not require that the one who made the statement or record is dead or alive.
The records is admissible is excepted from the rule on hearsay evidence.
The one who made the entry must be in the position to know the facts stated in the entries.
The entrant must enter the records in his capacity or knows or has knowledge what his doing.
Read Sec. 46-48
Section 49. Testimony or deposition at a former proceeding. – 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.
Testimony or deposition at a former proceeding, judicial or administrative.
REQUISITES: They must involve the same parties and subject matter. It is admissible to the other
party provided he has cross examined the other party.
How can you have a copy of the testimony? There is a transcript of the testimony, when you testify
someone is taking down your testimony. So you have to take the transcript and use it against the
adverse party provided the parties are the same and the same subject matter. Provided that they
have the opportunity to cross examined.
Does Sec. 49 apply to affidavits submitted at the preliminary investigation at a criminal case? NO.
Because in a preliminary investigation, there is no cross examination.
There is no cross examination during the preliminary investigation. You cannot cross examine during
preliminary investigation; so there is no opportunity to cross examine.
Section 50. Residual exception. – A statement not specifically covered by any of the foregoing
exceptions, having equivalent circumstantial guarantees of trustworthiness, is admissible if the court
determines that (a) the statement is offered as evidence of a material fact; (b) the statement is more
probative on the point for which it is offered than any other evidence which the proponent can
procure through reasonable efforts; and (c) the general purposes of these Rules and the interests of
justice will be best served by admission of the statement into evidence. However, a statement may
not be admitted under this exception unless the proponent makes known to the adverse party,
sufficiently in advance of the hearing, or by the pre-trial stage in the case of a trial of the main case, to
provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to
offer the statement and the particulars of it, including the name and address of the declarant.
(CATCH-ALL EXCEPTION)
Supported by sufficient guarantee of trustworthiness.
The statement may not be admitted under this exception unless the proponent gives the adverse
party reasonable notice. “FAIR PLAY” so he may prepare.
Admissibility of newspaper report - it’s about the cause of the fire that gotten the fire. Is this new
article admissible as evidence? YES. Admissible under the Residual exception.
Catch-all exception or residual exception was patterned from the US.
Section 46. Entries in official records. – Entries in official records made in the performance of his
or her duty by a public officer of the Philippines, or by a person in the performance of a duty specially
enjoined by law, are prima facie evidence of the facts therein stated.
Caltex vs. Africa: Police blotter regarding a fire, and they were present it as evidence - NOT
admissible because the informant was not named or mentioned. The entrant must have knowledge
regarding the entries.
Mention the name of the declarant and his declarant - to locate him and testify in court, in case.
You cannot compel them to tell you the names of the people that become the sources of the news
article. They are protected.
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Residual exception applies to everything not covered by other exceptions.
Rule 132 Presentation of Evidence: Francis Wellman - The Art of Cross-Examination (Fully book)
02/19/2022
Opinion Rule
 Section 51. General rule. – The opinion of a witness is not admissible, except as indicated in the
following sections.
 Section 52. Opinion of expert witness. – The opinion of a witness on a matter requiring special
knowledge, skill, experience, training or education, which he or she is shown to possess, may be
received in evidence.
 Section 53. Opinion of ordinary witnesses. – The opinion of a witness, for which proper basis is given,
may be received in evidence regarding –
a. The identity of a person about whom he or she has adequate knowledge;
b. A handwriting with which he or she has sufficient familiarity; and
c. The mental sanity of a person with whom he or she is sufficiently acquainted.
d. The witness may also testify on his or her impressions of the emotion, behavior, condition or
appearance of a person.
 Opinion is an act of reasoning or conclusion drawn by a witness from facts known to him or facts
assumed by him.
 Sometimes it is not easy to distinguish a fact and a opinion.
 Opinion evidence - the testimony of a witness that he is of the opinion that a fact pertinent to the case
exists or does not exists and offers f=proof for such existence or non-existence.
 OE simply means what the witness thinks or beliefs.
 OE sometimes not reliable.
 GENERAL RULE: Sec. 51 the opinion of a witness is not admissible.
 EXCEPTIONS: Sec. 52 (opinion of an expert witness) and Sec. 53 (opinion of ordinary witness or lay
man’s witness)
 An expert - is a man of science, a person of skill regarding the subject about which he is called to
testify. He possesses special knowledge about which he is called to testify.
 Ex. Cause of death or time of death
 If there is no direct witness, no one can testify regarding the death of the victim then the court might
need an expert to determine the cause or time of death of the victim.
 You need an expert to explain to the court regarding the nature of the injury which could have caused
the death of the victim.
 The court is not bound by the testimony of the witness. Because there would more than one expert
witness and faced with conflicting witness. The court rely on the more complete and thorough expert
testimony.
 The testimony of a hand writing testimony is sometimes not needed when there if falsification of
documents. Because the judge himself may conduct visual examination of the hand writing of the
accused to determine whether there was falsification.
 Before an expert can testify, the proponent must qualify him first to be an expert witness unless the
adverse party admits the competency of the expert witness.
 MEET WITH YOUR EXPERT BEFORE THE TRIAL to discuss his qualification and the basis of his
opinion and the scope of his expertise. Know this in advance.
 How to qualify an expert witness? License, years of work, expertise.
 The moment you were able to qualify him, ask him abstract or hypothetical questions. Like what
could have caused the death of the victim? Is the wound a defensive wound? The field of examination
can broad depending on the purpose for which the expert has been called to testify.
 You have to prepare the direct examination. You just don’t ask questions without preparing the
direct examination. And when you cross-examine a witness, you do not cross-examine him on his
field of expertise.
 Sec. 53 Ordinary witness or lay witness - you must lay the proper basis.
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Identity of the persons of whom he has knowledge, handwriting which he is familiar and mental
sanity of a person of whom the witness is acquainted; and may also testify on his impression on
emotion, behavior or appearance of a person.
Ex. When he appeared in front of you, how was his feeling? Nervous, excited or angry, or drunk.
Hence, these are admissible and cannot be objected because under Sec. 53 the witness can testify on
his impressions of the emotion, behavior, condition or appearance of a person.
02/23/2022
CHARACTER EVIDENCE (Sec. 54)
 Section 54. Character evidence not generally admissible; exceptions. – Evidence of a person’s
character or a trait of character is not admissible for the purpose of proving action in conformity
therewith on a particular occasion, except:
a. In Criminal Cases:
i.
The character of the off ended party may be proved if it tends to establish in any
reasonable degree the probability or improbability of the offense charged.
ii.
The accused may prove his or her good moral character[,] pertinent to the moral
trait involved in the offense charged. However, the prosecution may not prove his or
her bad moral character unless on rebuttal.
b. In Civil Cases:
Evidence of the moral character of a party in a civil case is admissible only when
pertinent to the issue of character involved in the case.
c. In Criminal and Civil Cases:
Evidence of the good character of a witness is not admissible until such character
has been impeached.
In all cases in which evidence of character or a trait of character of a person is
admissible, proof may be made by testimony as to reputation or by testimony in the form of
an opinion. On cross-examination, inquiry is allowable into relevant specific instances of
conduct.
In cases in which character or a trait of character of a person is an essential element
of a charge, claim or defense, proof may also be made of specific instances of that person’s
conduct. (51a; 14, Rule 132)
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02/23/2022
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