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2021 UST Evidence Reviewer
criminology (Lyceum Northern Luzon)
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Evidence
EVIDENCE
GENERAL PRINCIPLES
CONCEPT OF EVIDENCE
SCOPE OF THE RULES ON EVIDENCE
Principle of Uniformity
The rules of evidence shall be the same in all courts
and in all trials and hearings, except as otherwise
provided by law or the Rules of Court.
Applicability of the Rules on Evidence
The rules of evidence, being part of the Rules of
Court, apply only to judicial proceedings. (Sec. 1,
Rule 128)
The Rules of Court shall not apply to:
5.
6.
an implied admission
of guilt.
Neither is evidence of
conduct
nor
statements made in
compromise
negotiations
admissible.
XPNs:
1. Those involving
offenses (criminal
negligence); and
2. Criminal
cases
allowed by law to
be compromised.
(Sec. 28, Rule 130)
XPN:
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. (Sec.
28, Rule 130, 2019
Amendments to the
Revised
Rules
on
Evidence)
The
concept
of
presumption
of
innocence does not
apply and generally
there
is
no
presumption for or
against a party except
in cases provided for
by law.
The
concept
of
confession does not
apply.
Evidence is the means, sanctioned by the Rules of
Court, of ascertaining in a judicial proceeding the
truth respecting a matter of fact. (Sec. 1, Rule 128)
1.
2.
3.
4.
admissible in evidence
against the offeror.
Naturalization proceedings;
Insolvency proceedings;
Cadastral proceedings;
Other cases not provided in the Rules of
Court;
Land registration proceedings; and
Election cases (Sec. 4, Rule 1)
However, the rules may apply to the
abovementioned proceedings and cases by analogy
or in a suppletory character and whenever
practicable and convenient. (Sec. 4, Rule 1)
Confession
is
declaration
of
accused
acknowledging
guilt.
a
an
his
PROOF vs. EVIDENCE
PROOF
It
is
merely
the
probative
effect
of
evidence and is the
conviction
or
persuasion of the mind
resulting
from
consideration of the
evidence.
EVIDENCE IN CIVIL CASES
vs. EVIDENCE IN CRIMINAL CASES
EVIDENCE IN CIVIL
CASE
The party having the
burden of proof must
prove his claim by a
preponderance
of
evidence. (Sec. 1, Rule
133)
GR: An offer of
compromise is not an
implied admission of
any liability, and is not
The accused enjoys the
constitutional
presumption
of
innocence.
EVIDENCE IN
CRIMINAL CASE
The guilt of the
accused,
must
be
proved beyond beyond
reasonable doubt. (Sec.
2, Rule 133)
Effect or
evidence.
GR: An offer of
compromise by the
accused
may
be
received in evidence as
result
of
EVIDENCE
It is the mode or
manner of proving
competent
facts
in
judicial
proceedings.
(Bustos v. Lucero, 81
Phil. 640)
Without evidence, there
is no proof.
Medium of proof.
FACTUM PROBANDUM vs. FACTUM PROBANS
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FACTUM PROBANDUM
The fact or proposition
to be established.
The fact to be proved,
the fact which is in issue
and to which the
evidence is directed.
Ultimate Facts.
Hypothetical.
3.
FACTUM PROBANS
The facts or material
evidencing the fact or
proposition
to
be
established.
The
probative
or
evidentiary fact tending
to prove the fact in
issue.
Intermediate
or
evidentiary facts.
Existent.
4.
B. Statutory exclusionary rules
1.
Illustration: If P claims to have been injured by the
negligence of D, while D denies having been
negligent, the negligence is the fact to be
established. It is the factum probandum. The
evidence offered by P constitutes the material to
prove the liability of D. The totality of the evidence
to prove the liability is the factum probans. (Riano,
2016)
2.
ADMISSIBILITY OF EVIDENCE
REQUISITES FOR ADMISSIBILITY OF EVIDENCE
1.
The evidence is relevant to the issue; and
NOTE: It is relevant if it has such a relation
to the fact in issue as to induce belief in its
existence or non-existence. (Sec. 4, Rule
128)
2.
3.
The evidence is competent.
NOTE: The evidence is competent when it
is not excluded by the Constitution, the law
or these Rules (Sec. 3, Rule 128, 2019
Amendments on the Revised Rules on
Evidence). Competency is determined by
the prevailing exclusionary rules of
evidence.
D. Court issuances, such as:
1.
The rules of exclusion are rules of exception to the
general admissibility of all that is rational and
probative.
2.
3.
A. Constitutional exclusionary rules
2.
Rules on Electronic Evidence, e.g.
compliance
with
authentication
requirements for electronic evidence;
Rule on Examination of Child Witness,
e.g. sexual abuse shield rule; and
Judicial Affidavit Rule.
Admissibility vs. Weight
Unreasonable searches and seizures
(Sec. 2, Art. III, 1987 Constitution)
Privacy
of
communication
and
correspondence (Sec. 3, Art. III, 1987
Constitution)
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
Lack of documentary stamp tax in
documents, instruments, or papers
required by law to be stamped makes
such documents inadmissible as
evidence in court until the requisite
stamp/s shall have been affixed
thereto and cancelled. (Sec. 201, NIRC)
Any communication obtained by a
person, not being authorized by all the
parties to any private communication,
by tapping any wire/cable or using
any other device/arrangement to
secretly
overhear/intercept/record
such information by using any device,
shall not be admissible in evidence in
any
judicial/quasijudicial/legislative/administrative
hearing or investigation. (Secs. 1 and 4,
R.A. No. 4200 or Anti-Wire Tapping
Act)
Any
confession,
admission
or
statement obtained as a result of
torture shall be inadmissible in
evidence in any proceedings, except if
the same is used as evidence against a
person or persons accused of
committing torture. (Section 8, RA
9745 or Anti Torture Act of 2009)
C. Under the Rules of Court, Rule 130 is the
applicable rule in determining the
admissibility of evidence.
EXCLUSIONARY RULES
1.
Right to counsel, prohibition on torture,
force, violence, threat, intimidation or
other means which vitiate the free will;
prohibition on secret detention places,
solitary, incommunicado (Sec. 12, Art.
III, 1987 Constitution)
Right against self-incrimination (Sec.
17, Art. III, 1987 Constitution)
ADMISSIBILITY
Refers
to
the
questions whether or
WEIGHT
(PROBATIVE VALUE)
Refers to the question
of whether or not the
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Evidence
not the evidence is to
be considered at all.
Depends
on
relevance
and
competence.
Illustration: Motive of a person or his reputation
is a matter that may be considered collateral to the
subject of controversy.
evidence proves an
issue.
Pertains to tendency
to
convince
or
persuade.
XPN: It is allowed when it tends in any reasonable
degree to establish the probability or improbability
of fact in issue. (Sec. 4, Rule 128)
Doctrine of the Fruit of the Poisonous Tree
MULTIPLE ADMISSIBILITY (2005 BAR)
Illegally obtained evidence shall be insadmissible
in evidence for any purpose in any proceeding
because they are the “fruit of the poisonous tree.”
Where the evidence is relevant and competent for
two or more purposes, such evidence should be
admitted for any or all purposes for which it is
offered provided it satisfies all the requirements of
law for its admissibility (Regalado, 2008).
E.g. Evidence obtained without a valid search
warrant subject to exceptions; issuance of general
warrants that encourage law enforcers to go on
fishing expeditions. (Section 3 [2], Article III of the
1987 Constitution) (2010 BAR)
Illustration: Depending upon circumstances, the
declaration of a dying person may be admissible
for two or more purposes. It may be offered as a
dying declaration under Sec. 38, Rule 130, as
amended, and as part of res gestae under Sec. 44,
Rule 130, as amended. The statement by a bus
driver immediately after the collision that he dozed
off in the wheel while driving may be admissible as
an admission under Sec. 27, Rule 130, as amended
and/or as part of res gestae pursuant to Sec. 44,
Rule 130, as amended.
Illegally seized evidence is obtained as a direct
result of the illegal act, whereas the "fruit of the
poisonous tree" is the indirect result of the same
illegal act. The "fruit of the poisonous tree" is at
least once removed from the illegally seized
evidence, but it is equally inadmissible. The rule is
based on the principle that evidence illegally
obtained by the State should not be used to gain
other evidence because the originally illegally
obtained evidence taints all evidence subsequently
obtained. (People v. Bintaib, G.R. No. 218805, April 2,
2018)
CONDITIONAL ADMISSIBILITY (2011 BAR)
NOTE: This section could also be the answer to the
question on the “two kinds of objection” that is the
objection that the evidence is not relevant to the
issue and secondly that is excluded by the rules.
(Sec. 3, Rule 128)
Where the evidence at the time of its offer appears
to be immaterial or irrelevant unless it is
connected with the other facts to be subsequently
proved, such evidence may be received on
condition that the other facts will be proved
thereafter, otherwise the evidence already given
will be stricken out. (Regalado, 2008)
RELEVANCE OF EVIDENCE
AND COLLATERAL MATTERS
CURATIVE ADMISSIBILITY
It allows a party to introduce otherwise
inadmissible evidence to answer the opposing
party’s previous introduction of inadmissible
evidence. (Riano, 2016)
Relevancy of Evidence
Evidence must have such a relation to the fact in
issue as to induce belief in its existence or nonexistence. (Sec. 4, Rule 128)
Illustration: In an action for damages arising from
car accident, the plaintiff, despite objection by the
defendant, was allowed to introduce evidence to
show that, on several occasions, the defendant, in
the past, had injured pedestrians because of
negligence. (Riano, 2016)
The court will admit only evidence which is
relevant to the issue. (Sec. 3, Rule 128, 2019
Amendments to the Revised Rules on Evidence)
Collateral matters
Thus, a party who first introduces either irrelevant
or incompetent evidence into the trial cannot
complain of the subsequent admission of similar
evidence from the adverse party relating to the
subject matter. (Commonwealth v. Alexander, K., 5
S.W. rd104, 105 [1999], citing Dunaway v.
Commonwealth, 239 Ky. 166, 39 S.W. 2d242, 243
Collateral matters refer to matters other than the
fact in issue.
GR: Evidence on collateral matters is not allowed.
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The difference involves a relationship of the fact
inferred to the facts that constitute the offense.
Their difference does not relate to the probative
value of the evidence. Direct evidence proves a
challenged fact without drawing any inference.
Circumstantial evidence, on the other hand,
indirectly proves a fact in issue, such that the factfinder must draw an inference or reason from
circumstantial evidence. (Planteras v. People, G.R.
No. 238889, October 3, 2018)
[1931]; Smith v. Commonwealth, Ky., 904 S.W. 2d
220, 222 [1995]) Conversely, the doctrine should
not be invoked where evidence was properly
admitted.
Multiple,
Conditional,
Admissibility
and
Curative
In gist, if relevant and competent, evidence may be
(1) conditional, which connotes tentative or
temporary evidence; (2) multiple, where it is
legally permissible for different aspects; or (3)
curative, when it is intended to receive
inadmissible evidence from a party to neutralize a
previously accepted inadmissible evidence from
the other party. (Peralta & Peralta, 2020)
Q: X and Y were charged with Robbery with
Homicide. The prosecution established that on
the day of the incident, J and L were having a
conversation in their house when two (2)
persons asked them where the house of the
victim was located. They pointed to the house
who was their neighbor. Later, J and L heard
someone shouting and moaning inside the
house of the victim. J went out of the house and
saw somebody waving a flashlight inside the
victim's house, as if looking for something. This
prompted him to call L and V. A few minutes
later, a man wearing a black t-shirt and
carrying a backpack, followed by another man
wearing a green shirt and carrying a pair of
shoes, came out of the house of the victim. J and
L immediately ran after them unto the
basketball court, and saw that the two were
already on board a black Yamaha motorcycle.
Luckily, V arrived with the barangay tanod and
immediately accosted the two men. J, L, and V
recognized the two as the same persons who
asked them earlier about the location of
Laurora's house. The man wearing black shirt
was identified as the accused-appellant, while
the one wearing green shirt was identified as Y.
Recovered from their possession were personal
properties belonging to the victim. When
Accused-appellant was further frisked, a screw
driver was found in his possession. V then
asked the victim's laundrywoman to check on
the victim. When she returned, she told them
that the victim was killed. The laundrywoman
also identified that the green shirt worn by Y
belongs to the victim. Is the RTC correct in
convicting the accused based on circumstantial
evidence?
DIRECT AND CIRCUMSTANTIAL EVIDENCE
Direct Evidence
That which proves a fact without the need to make
an inference from another fact. (Riano, 2016)
Circumstantial Evidence or Indirect Evidence
That which proves a fact in issue indirectly through
an inference which the fact finder draws from the
evidence established. (People v. Matito, G.R. No.
144405, February 24, 2004)
It may happen that no prosecution witness has
actually seen the commission of the crime.
However, jurisprudence tells us that direct
evidence of the crime is not the only matrix from
which a trial court may draw its conclusion and
finding of guilt. The rules on evidence allow a trial
court to rely on circumstantial evidence to support
its conclusion of guilt.
Illustration:
The
prosecution
presented
corroborating evidence which constitute an
unbroken chain leading to the inevitable
conclusion that accused is guilty of killing the
victim. For instance, the presence of gunpowder
nitrates on accused after a paraffin test; the firearm
used in the killing which could either be a .38
caliber or 9 mm pistol details with the testimony of
a witness that he saw accused carrying a .38 caliber
short firearm which was later found to have been
recently fired; and the absence of gunpowder
nitrates on the hands of the victim after a paraffin
test which belies accused’s claim that he was shot
by the victim or that the latter exchanged fire with
a police office. (People v. Alawig, G.R. No. 187731,
September 13, 2013)
Difference between Direct
Circumstancial Evidence
Evidence
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
A: YES. The lack or absence of direct evidence does
not necessarily mean that the guilt of the accused
cannot be proved by evidence other than direct
evidence. Direct evidence is not the sole means of
establishing guilt beyond reasonable doubt,
because circumstantial evidence, if sufficient, can
supplant the absence of direct evidence. The crime
charged may also be proved by circumstantial
evidence, sometimes referred to as indirect or
presumptive evidence. Here in this case, the RTC,
and
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as affirmed by the CA, the circumstantial evidence
proven by the prosecution sufficiently established
that appellant committed the offense charged.
(People v. Papillero, GR NO. 229087, June 17, 2020)
Cumulative
evidence
evidence
and
witness. (People v. Mendoza, G.R. No. 146693-94,
July 31, 2003)
The defense of denial is viewed with disfavor for
being inherently weak. To be worthy of
consideration at all, denials should be
substantiated by clear and convincing evidence.
(Riano, 2016)
corroborative
Cumulative evidence refers to evidence of the
same kind and character as that already given and
that tends to prove the same proposition. (Wyne v.
Newman, 75 Va., 811, 817)
Competent Evidence
Corroborative evidence is one that is
supplementary to that already given tending to
strengthen or confirm it. It is additional evidence of
a different character to the same point. (Edwards v.
Edwards, Tenn. App., 501 S.W. 2d 283. 289)
One that is not excluded by law in a particular case.
Competence, in relation to evidence in general,
refers to eligibility of an evidence to be received as
such. The test of competence is the Constitution,
the laws or the rules.
An extrajudicial confession made by an accused
shall not be sufficient ground for conviction, unless
corroborated by evidence of corpus delicti. (Sec 3,
Rule 133)
Credibility
COMPETENT AND CREDIBLE EVIDENCE
The worthiness of belief, that quality which
renders a witness worthy of belief. (Black’s Law
Dictionary, 5th Ed., p.330)
NOTE: Corroborative testimony is not always
required. Witnesses are to be weighed, not
numbered.
NOTE: Admissible evidence is not necessarily
credible evidence. Admissibility does not
guarantee credibility. (Riano, 2016)
POSITIVE AND NEGATIVE EVIDENCE
Findings and conclusions of the trial court on the
credibility of witnesses are entitled to great respect
because they have the advantage of observing the
demeanor of witnesses as they testify. (Riano,
2016)
Positive Evidence
Exists when the witness affirms in the stand that a
certain state of facts does exist or that a certain
event happened.
When affirmed by the appellate court, it is
accorded full weight and credit as well as great
respect, if not conclusive effect, except when facts
and circumstances of weight and influence were
overlooked or the significance of which was
misappreciated or misinterpreted.
Negative Evidence
Exists when the witness states that an event did
not occur or that the state of facts alleged to exist
does not actually exist. (Riano, 2016)
Greater probative value is given to evidence that is
positive in nature than that which is accorded to
evidence that is negative in character. (Republic v.
Bautista, G.R. No. 169801, September 11, 2007)
BURDEN OF PROOF AND BURDEN OF EVIDENCE
BURDEN OF PROOF
It is the duty of a party
to present evidence on
the facts necessary to
establish his or her
claim or defense by the
amount of evidence
required by law. (Sec. 1,
Rule
131,
2019
Amendments to the
Revised
Rules
on
Evidence)
NOTE: When a witness declares of his personal
knowledge that a fact did not take place that is
actually positive testimony since it is an
affirmation of the truth of a negative fact.
(Regalado, 2008)
Denial as negative evidence
Denial is considered by the Court to be a very weak
form of defense and can never overcome an
affirmative or positive testimony particularly when
the latter comes from the mouth of a credible
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BURDEN OF EVIDENCE
It is the duty of a party
to present evidence
sufficient to establish or
rebut a fact in issue to
establish prima facie
case. (Sec. 1, Rule 131,
2019 Amendments to the
Revised
Rules
on
Evidence)
Burden of evidence is
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REMEDIAL LAW
Burden of proof or
“onus
probandi”
traditionally refers to
the obligation of a party
to the litigation to
persuade the court that
he is entitled to relief.
that logical necessity
which rests upon a
party at any particular
time during the trial to
create a prima facie case
in his favor or to
overthrow one created
against him.
A situation where the evidence of the parties is
evenly balanced, or there is doubt on which side
the evidence preponderates (or weighs more
heavily). (Rivera v. Court of Appeals, G.R. No.
115625, January 23, 1998)
Duty of a party to
present evidence to
establish his claim or
evidence by the amount
of evidence required by
law,
which
is
preponderance
of
evidence in civil cases.
(Supreme
Transliner,
Inc. v. CA, G.R. No.
125356, November 21,
2001)
Never shifts. (Sec. 1,
Rule
131,
2019
Amendments to the
Revised
Rules
on
Evidence)
Duty of the party to go
forward
with
the
evidence to overthrow
the prima facie evidence
against him. (Bautista v.
Sarmiento, G.R. No. L45137, September, 23,
1985)
In criminal cases, when the scale of justice is in
equipoise, the scale of justice shall be towards the
accused. It leads to acquittal.
It remains throughout
the entire case exactly
where the pleadings
originally placed it or
with the party upon
whim it is imposed.
(Republic v. Mupas, G.R.
No. 181892, September
8, 2015)
Generally determined
by the pleadings filed by
the party.
Itis based on the principle that no one shall be
deprived of his life, liberty or property without due
process of law. (Sec. 1, Art III, 1987 Constitution)
In civil cases, when the evidence of the parties is in
equipoise, the party who has the burden of proof
loses.
Q: In a collection case, who has the burden of proof?
A: The party who alleges a fact has the burden of
proving it. In the course of trial in a civil case, once
plaintiff makes out a prima facie case in his favor,
the duty or the burden of evidence shifts to
defendant to controvert plaintiff’s prima facie case,
otherwise, a verdict must be returned in favor of
plaintiff. Hence, the plaintiff must establish the
failure to pay on the part of the defendant, the
latter, on the other hand, has to prove their defense
that the obligation was extinguished.
May shift from one
party to the other in the
course
of
the
proceedings, depending
on the exigencies of the
case. (Sec. 1, Rule 131,
2019 Amendments to the
Revised
Rules
on
Evidence)
In this case, BPI, as plaintiff, had to prove that
spouses De Leon failed to pay their obligations
under the promissory note. The spouses, on the
other hand, had to prove their defense that the
obligation was extinguished by the loss of the
mortgaged vehicle, which was insured. The mere
loss of the mortgaged vehicle does not
automatically relieve the spouses De Leon of their
obligation. As provided in the Promissory Note
with Chattel Mortgage, the mortgagor must notify
and submit proof of loss to the mortgagee. (De Leon
v. BPI, G.R. No. 184565, November 20, 2013)
Generally determined
by the developments of
the trial, or by the
provisions
of
substantive law or
procedural rules which
may relieve the party
from
presenting
evidence of the facts
alleged.
PRESUMPTIONS
Test for determining where the burden of proof
lies
Presumptions are inferences of the existence or
non-existence of a fact which courts are permitted
to draw from the proof of other facts. (In the matter
of the Intestate Estates of Delgado and Rustia, G.R.
No. 175733, January 27, 2006)
Ask which party to an action or suit will fail if he
offers no evidence competent to show the facts
averred as the basis for the relief he seeks to
obtain.
NOTE: A presumption shifts the burden of going
forward with the evidence. It imposes on the party
against whom it is directed the burden of going
forward with evidence to meet or rebut the
Equipoise rule or equiponderance doctrine
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
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Evidence
presumption. (Bautista, 2004, citing Mueller and
Kirkpatrick, §3.4.)
1.
2.
In a sense, a presumption is an inference which is
mandatory unless rebutted.
Conclusive presumptions (presumptions
juris et de jure); and
Disputable presumptions (presumptions
juris tantum). (Rule 131; Regalado, 2008)
CONCLUSIVE PRESUMPTION
Presumption vs. Inference
PRESUMPTION
It is mandated by law
and establishes a legal
relation between or
among the facts.
INFERENCE
It is a factual conclusion
that can rationally be
drawn from other facts.
(Riano, 2016)
It is a deduction
directed by law.
It is a
deduction.
1996)
A presumption which is irrebuttable and any
evidence tending to rebut the presumption is not
admissible. This presumption is in reality a rule of
substantive law. (Riano, 2016)
Classes of conclusive presumptions
permissive
(Francisco,
1.
Estoppel in pais (Equitable Estoppel) –
Whenever a party has, by his or her own
declaration, act or omission, intentionally
and deliberately led another to believe a
particular thing to be true, and to act upon
such belief, he cannot, in any litigation
arising out of such declaration, act or
omission, be permitted to falsify it (Sec.
2[a], Rule 131, 2019 Amendments to the
Revised Rules on Evidence);
2.
Estoppel by deed – A party to a property
deed is precluded from asserting, as
against another party to the deed, any
right or title in derogation of the deed, or
from denying the truth of any material fact
asserted in the deed
Effect of presumption
A party in whose favor the legal presumption exists
may rely on and invoke such legal presumption to
establish a fact in issue. One need not introduce
evidence to prove the fact for a presumption is
prima facie proof of the fact presumed. (Diesel
Construction, Inc v. UPSI Property Holdings, Inc., G.R.
No. 154937, March 24, 2008)
Presumption of law vs. Presumption of fact
PRESUMPTION OF LAW
(PRAESUMPTIONES
JURIS)
It is a deduction which
the law expressly directs
to be made from
particular facts.
A certain inference must
be made whenever the
facts
appear
which
furnish the basis of the
inference.
Reduced to fixed rules
and forms a part of the
system of jurisprudence
Need not be pleaded or
proved if the facts on
which they are based are
duly
averred
and
established
PRESUMPTION OF
FACT
(PRAESUMPTIONES
HOMINIS)
It is a deduction which
reason draws from the
facts proved without
an express direction
from law to that effect.
Discretion is vested in
the tribunal as to
drawing the inference.
E.g. The tenant is not permitted to deny
the title of his or her landlord at the time
of the commencement of the relation of
landlord and tenant between them (Sec.
2[b], Rule 131, 2019 Amendments to the
Revised Rules on Evidence).
NOTE: Estoppel may attach even though the
landlord does not have title at the commencement
of the relations. It may inure in favor of the
successor. (Golden Horizon Realty Corporation vs. St
Chuan, G.R. No. 145416, September 21, 2001, citing
Geminiano vs. CA, July 24, 1996)
Derived wholly and
directly
from
the
circumstances of the
particular case by
means of the common
experience of mankind
Has to be pleaded and
proved
The rule on estoppel against tenants is subject to a
qualification. It does not apply if:
1.
2.
3.
The landlord’s title has expired;
It has been conveyed to another; or
It has been defeated by a title paramount,
subsequent to the commencement of
lessor-lessee relationship.
In other words, if there was a change in the nature
of the title of the landlord during the subsistence of
the lease, then the presumption does not apply.
Otherwise, if the nature of the landlord’s title
Kinds of presumptions of law
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remains as it was during the commencement of the
relation of landlord and tenant, then estoppel lies
against the tenant. (Santos v. NSO, G.R. No. 171129,
April 6, 2011)
read or if the contract is in a language not
understood by him, and mistake or fraud is
alleged, the person enforcing the contract
must show that the terms thereof have
been fully explained to the former. (Art.
1332, NCC)
Distinguish estoppel from waiver
A waiver is a voluntary and intentional
abandonment or relinquishment of a known right.
It must be supported by an agreement founded
upon a valid consideration.
5.
Evidence willfully suppressed would be
adverse if produced;
Requisites:
An equitable estoppel may arise however, in the
absence of any intention on the part of the person
estopped to relinquish or change any existing right,
and it need not be supported by any consideration,
agreement, or legal obligation. (Francisco, 1996)
a.
b.
c.
The presumption will NOT be applicable
when:
DISPUTABLE PRESUMPTION
This refers to a presumption which is satisfactory if
uncontradicted, but may be contradicted and
overcome by other evidence. (Sec. 3, Rule 131)
a.
b.
Disputable presumptions under Section 3, Rule
131
c.
1.
The evidence is material;
The party had the reasonable
opportunity to produce it; and
The evidence is available only to
the said party.
A person is innocent of a crime or wrong;
d.
NOTE: It applies to both civil and criminal
cases. Presumption of innocence of the
accused accompanies him until the
rendition of judgment and disappears after
conviction, such that upon appeal, the
appellate court will then presume the guilt
of the accused. The prosecution’s case
must rise and fall on its own merits and
cannot draw strength from the weakness
of the defense. (People v. Mingming, G.R.
No. 174195, Dec. 10, 2008)
Suppression of evidence is not
willful;
Evidence suppressed or withheld
is merely corroborative or
cumulative;
Evidence is at the disposal of both
parties; and
Suppression is by virtue of an
exercise of privilege.
NOTE: Failure of the prosecution to
present a certain witness and to proffer a
plausible explanation does not amount to
willful suppression of evidence since the
prosecutor has the discretion/prerogative
to determine the witnesses he is going to
present. (People v. Jalbuena, G.R. No.
171163, July 4, 2007)
6.
2.
3.
4.
Money paid by one to another was due to
the latter;
7. Thing delivered by one to another
belonged to the latter;
8. Obligation delivered up to the debtor has
been paid;
9. Prior rents or installments had been paid
when a receipt for the later ones is
produced;
10. A person found in possession of a thing
taken in the doing of a recent wrongful act
is the taker and doer of the whole act;
otherwise, that things which a person
possesses or exercises acts of ownership
over, are owned by him or her;
Unlawful act is done with an unlawful
intent;
Person intends the ordinary consequences
of his or her voluntary act;
Person takes ordinary care of his
concerns;
GR: All people are sane and normal and
moved by substantially the same motives.
When of age and sane, they must take care
of themselves. Courts operate not because
one person has been defeated or overcome
by another but because that person has
been defeated or overcome illegally. There
must be a violation of the law. (Vales v.
Villa, G.R. No. 10028, December 16, 1916)
NOTE: In order to raise the presumption,
the following must be proved:
XPN: When one of the parties is unable to
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
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Evidence
a.
b.
c.
d.
That a crime was committed;
That it was committed recently;
That the stolen property was found in
the possession of the defendant; and
That the defendant is unable to
explain his possession satisfactorily.
(U.S. v. Espia 16, G.R. No. L-5813,
August 27, 1910)
14. A court or judge acting as such, whether in
the Philippines or elsewhere, was acting in
the lawful exercise of jurisdiction;
NOTE: Lawful exercise of jurisdiction is
presumed unless the record itself shows
that jurisdiction has not been acquired or
the record itself shows the absence of
jurisdiction.
11. A person in possession of an order on
himself or herself for the payment of the
money, or the delivery of anything, has
paid the money or delivered the thing
accordingly;
12. Person acting in public office was regularly
appointed or elected to it;
15. All the matters within an issue raised in a
case were laid before the court and passed
upon by it;
16. All matters within an issue raised in a
dispute submitted for arbitration were laid
before arbitrators and passed upon by
them;
17. Private transactions have been fair and
regular;
18. Ordinary course of business has been
followed;
19. There was a sufficient consideration for a
contract;
20. Negotiable instrument was given or
indorsed for a sufficient consideration;
21. An indorsement of negotiable instrument
was made before the instrument was
overdue and at the place where the
instrument is dated;
Ratio: It would cause great inconvenience
if in the first instance strict proof were
required of appointment or election to
office in all cases where it might be
collaterally in issue.
However, the presumption of a regular
appointment does not apply to a public
officer seeking to recover salary attached
to the office, or the benefits of a pension
system.
13. Official duty has been regularly performed;
NOTE: Except where an endorsement
bears date after the maturity of the
instrument, every negotiation is deemed
prima facie to have been effected before
the instrument was overdue. (Sec. 45, Act.
No. 2031)
NOTE: All things are presumed to have
been done regularly and with due
formality until the contrary is proved. This
presumption extends to persons who have
been appointed pursuant to a local or
special statute to act in quasi-public or
quasi-official
capacities
and
to
professionals like lawyers and surgeons.
22. A writing is truly dated;
23. Letter duly directed and mailed was
received in the regular course of the mail;
GR: Presumption applies to both civil as
well as criminal cases.
NOTE: For this presumption to arise, it
must be proved that the letter was
properly addressed with postage pre-paid
and that it was actually mailed.
XPNs:
a.
b.
c.
Petition for writ of amparo –
presumption may not be invoked by
the respondent public officer or
employee (Rule on the Writ of Amparo,
A.M. No. 17-9-12-SC);
The presumption does not apply
during
in-custody
investigation
(People v. Camat, G.R. No. 112262, April
2, 1996); or
When the official conduct in question
is irregular on its face. (People v.
Obmiranis, GR. No. 181492, December
16, 2008)
Bare denial of receipt of a mail cannot
prevail over the ccertification of the
postmaster, whose official duty is to send
notices of registered mail. (Duarte v.
Duran, G.R. No. 173038)
24. Presumption of Death;
a.
Absence of 7 years – It being
unknown whether, the absentee still
lives, he or she shall be presumed
dead for all purposes, except for those
of succession;
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b.
c.
Absence of 10 years – The absentee
shall be considered dead for the
purpose of opening his succession
only after an absence of 10 years; and
if he or she disappeared after the age
of 75, absence of only 5 years is
sufficient;
The following shall be considered
dead for all purposes including the
division of estate among the heirs:
i.
ii.
iii.
iv.
and who live exclusively with each other
as husband and wife without the benefit of
marriage or under void marriage, has been
obtained by their joint efforts, work or
industry;
30. In cases of cohabitation by a man and a
woman who are not capacitated to marry
each other and who have acquired
properly through their actual joint
contribution of money, property or
industry, such contributions and their
corresponding shares including joint
deposits of money and evidences of credit
are equal;
31. If the marriage is terminated and the
mother contracted another marriage
within 300 days after such termination of
the former marriage, these rules shall
govern in the absence of proof to the
contrary;
Person on board a vessel lost
during a sea voyage, or an
aircraft which is missing, who
has not been heard of for 4 years
since the loss of the vessel or
aircraft;
Member of the armed forces who
has taken part in armed
hostilities, and has been missing
for 4 years;
Person who has been in danger
of
death
under
other
circumstances
and
whose
existence has not been known for
4 years;
If a married person has been
absent for 4 consecutive years,
the spouse present may contract
a subsequent marriage if he or
she has well-founded belief that
the absent spouse is already
dead; 2 years in case of
disappearance where there is
danger of death under the
circumstances
hereinabove
provided. Before marrying again,
the spouse present must institute
a summary proceeding as
provided in the Family Code and
in the rules for declaration of
presumptive death of the
absentee, without prejudice to
the effect of re-appearance of the
absent spouse.
a.
b.
32. A thing once proved to exist continues as
long as is usual with things of that nature;
33. The law has been obeyed;
34. A printed or published book, purporting to
be printed or published by public
authority, was so printed or published;
35. A printed or published book, purporting to
contain reports of cases adjudged in
tribunals of the country where the book is
published, contains correct reports of such
cases;
36. A trustee or other person whose duty it
was to convey real property to a particular
person has actually conveyed it to him
when such presumption is necessary to
perfect the title of such person or his
successor in interest;
37. Except for purposes of succession, when 2
persons perish in the same calamity, and it
is not shown who died first, and there are
no particular circumstances from which it
can be inferred, the survivorship is
determined from the probabilities
25. Acquiescence resulted from a belief that
the thing acquiesced in was conformable
to the law or fact;
26. Things have happened according to the
ordinary course of nature and ordinary
habits of life;
27. Persons acting as co-partners have
entered into a contract of co-partnership;
28. A man and woman deporting themselves
as husband and wife have entered into a
lawful contract of marriage;
29. Property acquired by a man and a woman
who are capacitated to marry each other
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
A child born before 180 days after
the solemnization of the subsequent
marriage is considered to have been
conceived during the former
marriage, provided it be born within
300 days after the termination of
former marriage;
A child born after 180 days
following the celebration of the
subsequent marriage is considered
to have been conceived during such
marriage, even though it be born
within the 300 days after the
termination of the former marriage.
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Evidence
resulting from the strength and age of the
sexes, according to the following rules:
a.
b.
c.
d.
e.
CONSTRUCTION
OF THE RULES OF EVIDENCE
If both were under the age of 15
years, the older is deemed to have
been survived;
If both were above the age of sixty,
the younger is deemed to have
survived;
If one is under 15 and the other above
60, the former is deemed to have
survived;
If both be over 15 and under 60, and
the sex be different, the male is
deemed to have survived; if the sex be
the same, the older;
If one be under 15 or over 60, and the
other between those ages, the latter is
deemed to have survived.
The rules of evidence must be liberally construed.
(Sec. 6, Rule 1)
The Rules of Procedure are mere tools intended to
facilitate rather than to frustrate the attainment of
justice. A strict and rigid application of the rules
must always be avoided if it would subvert their
primary objective of enhancing substantial justice.
(Alcantara v. PCIB, G.R. No. 151349, October 20,
2010)
However, to justify relaxation of the rules, a
satisfactory explanation and a subsequent
fulfillment of the requirements have always been
required. (Barcenas v. Tomas, G.R. No. 150321,
March 31, 2005)
38. If there is a doubt, as between two or more
persons who are called to succeed each
other, as to which of them died first,
whoever alleges the death of one prior to
the other, shall prove the same; in the
absence of proof, they shall be considered
to have died at the same time. (Sec. 3, Rule
131)
QUANTUM OF EVIDENCE
(WEIGHT AND SUFFICIENCY OF EVIDENCE)
Weight of evidence
Presumptions in civil actions and proceedings
It is the probative value given by the court to
particular evidence admitted to prove a fact in
issue.
In all civil actions and proceedings not otherwise
provided for by law or these Rules, a presumption
imposes on the party against whom it is directed
the burden of going forward with evidence to rebut
or meet the presumption.
Degree of evidence required to disprove the
prima facie case established by the party
having the burden of proof
Inconsistent Presumptions
A prima facie case need not be countered by a
preponderance of evidence nor by evidence of
greater weight. Defendant's evidence which
equalizes the weight of plaintiff's evidence or puts
the case in equipoise is sufficient. As a result,
plaintiff will have to go forward with the proof.
Should it happen that at the trial the weight of
evidence is equally balanced or at equilibrium and
presumptions operate against plaintiff who has
burden of proof, he or she cannot prevail. (People v.
Santiago, G.R. Nos. 137542-43, January 20, 2004)
If the presumptions are inconsistent, the
presumption that is founded upon weightier
considerations of policy shall apply. If
considerations of policy are of equal weight,
neither presumption applies. (Sec. 5, Rule 131, 2019
Amendments to the Revised Rules on Evidence)
Presumption against an accused in criminal
case
If a presumed fact that establishes guilt, is an
element of the offense charged, or negates a
defense, the existence of the basic fact must be
proved beyond reasonable doubt and the
presumed fact follows from the basic fact follows
from the basic fact beyond reasonable doubt. (Sec.
6, Rule 131, 2019 Amendments to the Revised Rules
on Evidence)
Guidelines in the assessment of credibility of a
witness
1.
A witness who testified in clear, positive
and convincing manner and remained
consistent in cross-examination is a
credible witness (People v. Comanda, G.R.
No. 175880, July 6, 2007); and
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2.
Findings of fact and assessment of
credibility of a witness are matters best
left to the trial court that had the front-line
opportunity to personally evaluate the
demeanor, conduct, and behavior of the
witness while testifying. (Sps. Paragas v.
Heirs of Balacano, G.R. No. 168220, August
31, 2005)
It may suffice to convict his co-accused if it is given
in a straightforward manner and is full of details
which by their nature could not have been the
result of deliberate afterthought, otherwise, it
needs corroboration, the presence or lack of which
may ultimately decide the case of the prosecution
and the fate of the accused. (People v. Sunga, G.R.
No. 126029, March 27, 2003)
Hierarchy of quantum of evidence
Sufficiency of evidence
In determining the sufficiency of evidence, what
matters is not the number of witnesses but the
credibility and the nature and quality of their
testimonies. The testimony of a lone witness is
sufficient to support a conviction if found positive
and credible. (Ceniza-Manantan v. People, G.R. No.
156248, August 28, 2007)
Partial credibility of a witness
The testimony of a witness may be believed in part
and disbelieved in another part, depending on the
probabilities and improbabilities of the case.
(People v. Tan, G.R. No. 176526, August 8, 2007)
NOTE: If the testimony of the witness on a material
issue is willfully false and given with an intention
to deceive, the court may disregard all the witness’
testimony under the Falsus in uno, falsus in omnibus
rule. (Riano, 2016) This is not a mandatory rule of
evidence but is applied by the courts in its
discretion. The court may accept and reject
portions of the witness’ testimony depending on
the inherent credibility thereof. (Regalado, 2008)
NOTE: Evidence, to be worthy of credit, must not
only proceed from a credible source but must also
be credible in itself. It must be natural, reasonable
and probable as to make it easy to believe. (People
v. Peruelo, G.R. No. 50631, June 29, 1981)
Falsus in uno, falsus in omnibus (in relation to
credibility of witness)
Literally, falsus in uno, falsus in omnibus means
“false in one thing, false in everything.”
Trial court’s findings as to the credibility of
witnesses, not disturbed on appeal
If the testimony of a witness on a material issue is
willfully false and given with an intention to
deceive, the jury may disregard all the witness’
testimonies. (Hargrave v. Stockloss, 127 N.J.L. 262,
21 A.2d 820, 823)
The trial court’s findings of fact will not be
disturbed on appeal, unless there is a clear showing
that it plainly overlooked matters of substance
which, if considered, might affect the results of the
review. The credibility of witnesses is best
determined by the trial judge, who has the direct
opportunity to observe and evaluate their
demeanor on the witness stand. (People v.
Pacuancuan, G.R. No. 144589, June 16, 2003)
The principle of falsus in uno, falsus in omnibus is
not strictly applied in this jurisdiction. It deals only
with the weight of the evidence and is not a
positive rule of law. Modern trend in jurisprudence
favors more flexibility when the testimony of a
witness may be partly believed and partly
disbelieved depending on the corroborative
evidence presented at the trial. (People v. Negrosa,
G.R. Nos. 142856-57, August 25, 2003)
Uncorroborated testimony of an accused who
turned into a State witness sufficient to convict
his co-accused
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
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Evidence
When the maxim falsus in uno, falsus in
omnibus applies
1.
2.
A: YES. The identity of the perpetrator of a crime
and a finding of guilt may rest solely on the
strength of circumstantial evidence. The
commission of a crime, the identity of the
perpetrator, and the finding of guilt may all be
established by circumstantial evidence. The
circumstances must be considered as a whole and
should create an unbroken chain leading to the
conclusion that the accused authored the crime.
The proven circumstances must be "consistent
with each other, consistent with the hypothesis
that the accused is guilty, and at the same time
inconsistent with the hypothesis that he is
innocent, and with every other rational hypothesis
except that of guilt." In this case, no one saw
petitioner actually set fire to the nipa hut.
Nevertheless, the prosecution has established
multiple circumstances, which, after being
considered in their entirety, support the conclusion
that petitioner is guilty beyond reasonable doubt of
simple arson. (Marlon Bacerra vs. People of the
Philippines, G.R. No. 204544, July 3, 2017, as penned
by J. Leonen)
That the false testimony is as to one or
more material points; and
That there should be conscious and
deliberate intention to falsify a material
point. (People v. Pacapac, G.R. No. 90623,
September 7, 1995)
Extrajudicial confession
ground for conviction
is
NOT
sufficient
An extrajudicial confession made by an accused,
shall not be sufficient ground for conviction, unless
corroborated by evidence of corpus delicti. (Sec. 3,
Rule 133)
When circumstantial evidence is sufficient for
conviction (2017 BAR)
1.
2.
3.
There are more than one circumstances;
The facts from which the inferences are
derived are proven; and
The combination of all the circumstances
is such as to produce a conviction beyond
reasonable doubt. (Sec. 4, Rule 133)
Weight to be given opinion of expert witness,
how determined
The court has wide latitude of discretion in
determining the weight to be given to such opinion,
and for that purpose may consider the following:
NOTE: Inferences cannot be based on other
inferences. (Sec. 4, Rule 133, 2019 Amendments to
the Revised Rules on Evidence)
a.
The corollary rule is that the circumstances proven
must constitute an unbroken chain which leads to
one fair and reasonable conclusion pointing to the
accused, to the exclusion of all others, as the guilty
person. (Trinidad v. People, G.R. No. 192241, June
13, 2012)
b.
c.
d.
Q: A criminal complaint for simple arson was
filed against Bacerra and he was convicted.
Bacerra then appealed. He argued that none of
the prosecution’s witnesses had positively
identified him as the person who burned the
nipa hut. CA affirmed the Decision of the RTC in
toto. Bacerra moved for reconsideration but it
was denied. Thus, Bacerra filed a Petition for
Review on Certiorari arguing that the CA erred
in upholding his conviction based on
circumstantial evidence, which, being merely
based on conjecture, falls short of proving his
guilt beyond reasonable doubt. No direct
evidence was presented to prove that he
actually set fire to Alfredo’s nipa hut. Moreover,
there were two (2) incidents that occurred,
which should be taken and analyzed separately.
Is Bacerra guilty of simple arson?
Whether the opinion is based on sufficient
facts or data;
Whether it is the product of reliable
principles and methods;
Whether the witness has applied the
principles and methods to the reliability of
the facts of the case; and
Such other factors as the court may deem
helpful to make such determination. (Sec.
5, Rule 133, 2019 Amendments to the
Revised Rules on Evidence)
Alibi
It is a defense where an accused claims that he was
somewhere else at the time of the commission of
the offense. It is one of the weakest defenses an
accused may avail because of the facility with
which it can be fabricated, just like a mere denial.
(People v. Esperanza, G.R. Nos. 139217-24, June 27,
2003) When this is the defense of the accused, it
must be established by positive, clear and
satisfactory evidence.
NOTE: A categorical and positive identification of
an accused, without any showing of ill-motive on
the part of the eyewitness testifying on the matter,
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a condition sine qua non to prove the
identity of an offender. If, on the basis of
the evidence on hand, police officers are
certain of the identity of the offender, they
need not require any police line-up
anymore. (Tapdasan, Jr. v. People, G.R. No.
141344, November 21, 2002)
prevails over an alibi. (People v. Gingos and
Margote, G.R. No. 176632, September 11, 2007)
For the defense of alibi to prosper, the accused
must show that:
1.
2.
He or she was somewhere else; and
It was physically impossible for him to be
at the scene of the crime at the time of its
commission. (People v. Gerones, et al., G.R.
No. L-6595, October 29, 1954)
Admissibility of out-of-court identification
It is admissible and reliable when it satisfies the
“totality of circumstances” test. Under the “totality
of circumstances” test, the following factors are
considered:
Alibi may serve as basis for acquittal if it can really
be shown by clear and convincing evidence that it
was indeed physically impossible for the accused
to be at the scene of the crime at the time of
commission. (People v. Cacayan, G.R. No. 180499,
July 9, 2008)
1.
2.
3.
For the defense of alibi to prosper, the
requirements of time and place must be strictly
met. (Ibanez v. People, G.R. No. 190798, January 27.
2016)
5.
Out-of-court identification
6.
4.
It is a means of identifying a suspect of a crime and
is done thru:
Witness’ opportunity to view the criminal
at the time of the crime;
Witness’ degree of attention at that time;
Accuracy of any prior description given by
the witness;
Level of certainty demonstrated by the
witness at the identification;
Length of time between the crime and the
identification; and
Suggestiveness of the identification
procedure. (People v. Claudio Teehankee,
Jr., G.R. Nos. 111206-08, October 6, 1995)
Frame-up
1.
Show-ups: where the suspect alone is
brought face-to-face with the witness for
identification;
Allegations of frame-up by police officers are
common and standard defenses in most dangerous
drugs cases. For this claim to prosper, the defense
must adduce clear and convincing evidence to
overcome presumption that government officials
have performed their duties in a regular and
proper manner. Thus, in the absence of proof of
motive to falsely impute such a serious crime
against the accused, the presumption of regularity
in the performance of official duty shall prevail.
(People v. Almodiel, G.R. No. 200951, September 5,
2012).
NOTE: Eyewitness identification is often
decisive of the conviction or acquittal of an
accused. Identification of an accused
through mug shots is one of the
established procedures in pinning down
criminals. However, to avoid charges of
impermissible suggestion, there should be
nothing in the photograph that would
focus attention on a single person. (People
v. Villena, G.R. No. 140066, October 14,
2002)
2.
3.
Corpus delicti
Mug shots: where photographs are shown
to the witness to identify the suspect; or
Line-ups: where a witness identifies the
suspect from a group of persons lined up
for the purpose. (People v. Claudio
Teehankee, Jr., G.R. Nos. 111206-08, October
6, 1995)
It is the actual commission by someone of the
particular crime charged. It refers to the fact of the
commission of the crime, not to the physical body
of the deceased or to the ashes of a burned
building. The corpus delicti may be proven by the
credible testimony of a sole witness, not
necessarily by physical evidence. (Rimorin v.
People, G.R. No. 146481, April 30, 2003)
NOTE: A police line-up is merely a part of
the investigation process by police
investigators to ascertain the identity of
offenders or confirm their identification by
a witness to the crime. Police officers are
not obliged to assemble a police line-up as
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
Elements of corpus delicti
1.
Proof of the occurrence of a certain event;
and
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Evidence
2.
A person’s criminal responsibility for the
act. (People v. Corpuz, G.R. No. 148919,
December 17, 2002)
defendant, that the accident arose from or was
caused by the defendant's want of care. (Ramos v.
CA, G.R. No. 124354, December 29, 1999)
NOTE: The identity of the accused is not a
necessary element of the corpus delicti.
Application of the doctrine does not dispense
with the requirement of proof of negligence
Plea of guilty in open court sufficient without
proof of corpus delicti
It is considered merely as evidentiary or in the
nature of procedural rule. It is simply in the
process of such proof, permitting the plaintiff to
present enough of the attending circumstances to
invoke the doctrine, creating an inference or
presumption of negligence and thereby place on
the defendant the burden of going forward with the
proof to the contrary. (Ramos, et al. v. CA, G.R. No.
124354, December 29, 1999)
A plea of guilty at the arraignment in open court,
which is a confession of guilt by the defendant, is
sufficient to support a conviction without necessity
of proof aliunde of corpus delicti. In contrast, an
extrajudicial confession made by defendant does
not warrant a conviction unless corroborated by
independent evidence of corpus delicti. (Francisco,
1996)
PROOF BEYOND REASONABLE DOUBT
Proof beyond reasonable doubt does not mean
such a degree of proof as, excluding possibility of
error, produces absolute certainty. Moral certainty
only is required, or that degree of proof which
produces conviction in an unprejudiced mind. (Sec.
2, Rule 133, 2019 Amendments to the Revised Rules
on Evidence)
Q: Jose Mariposa was charged with violation of
Sec. 4, Art. 2 of the Dangerous Drugs Act of
1972. He was apprehended thru a buy-bust
operation. During trial the prosecution failed to
produce the marijuana sticks that Mariposa
sold during the entrapment operation. Is there
a need to produce the marijuana sticks to
convict the accused?
Moral certainty
A: YES. The elements necessary for a charge of
illegal sale of marijuana are: (1) the identity of the
buyer and the seller, the object, and consideration;
and (2) the delivery of the thing sold and the
payment therefore. It is indispensable that the
identity of the marijuana which constitutes the
corpus delicti must be established before the court.
During the trial, the sticks of marijuana were never
presented as evidence to prove that appellant
indeed sold the same during the entrapment
operation. It is indispensable in every prosecution
for illegal sale of marijuana, a prohibited drug, is
the submission of proof that the sale for the illicit
drug took place between the poseur-buyer and the
seller thereof, and the presentation further of the
marijuana, the corpus delicti, as evidence in court.
(People v. Rigodon, G.R. No. 111888, November 8,
1994)
That degree of certainty which will justify the trial
judge in grounding on it his verdict. It is a certainty
that convinces and directs the understanding and
satisfies the reason and judgment of those who are
bound to act conscientiously upon it.
Identity of the accused must be proved beyond
reasonable doubt
When the identity of the accused is not established
beyond reasonable doubt, acquittal necessarily
follows. Conviction for a crime rests on the
strength of the prosecution’s evidence, never on
the weakness of that of the defense. (People v. Jalon,
G.R. No. 93729, November 13, 1992)
NOTE: In every criminal prosecution,
prosecution must prove two things:
the
Res ipsa loquitur
1.
2.
It literally means the “thing speaks for itself”. This
doctrine provides that the fact of the occurrence of
an injury, taken with the surrounding
circumstances. Where the thing which caused the
injury complained of is shown to be under the
management of the defendant or his servants and
the accident is such as in ordinary course of things
does not happen if those who have its management
or control use proper care, it affords reasonable
evidence, in the absence of participation by the
The commission of the crime; and
The identification of the accused as the
perpetrator of the crime. What is needed is
positive identification made with moral
certainty as to the person of the offender.
(People v. Maguing, G.R. No. 144090, June
26, 2003)
Q: Prosecution witnesses positively identified
Johnny as the assailant of Chris. Hence, he was
convicted of Homicide. However, he contends
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that the State failed to present sufficient
evidence against him in court. He sufficed that
should the knife he held during a fight against
his longtime enemies, brothers Chris and
Michael, had been presented, it would show the
difference that Chris’ knife, although smaller
than Johnny’s, had more blood stains but which
size fits best on the mortal wound inflicted on
himself. It would thereby be ascertained that
Chris accidentally stabbed himself upon losing
his balance during such aggressive fight. Is
Johnny’s contention meritorious?
3.
4.
NOTE: To persuade by the preponderance of
evidence is not to take the evidence quantitatively
but qualitatively. (Riano, 2016)
A: NO. The non-identification and nonpresentation of the weapon actually used in the
killing did not diminish the merit of the conviction
on the ground that other competent evidence and
the testimonies of witnesses had directly and
positively identified and incriminated Johnny as
the assailant of Chris. The presentation of the
weapon is not a prerequisite for conviction.
Positive identification of the accused is sufficient
for the judgment of conviction despite the nonpresentation of the weapon used in the
commission of the offense. (Medina v. People, G.R.
No. 161308, January 15, 2014)
Related jurisprudence
In civil cases, only a preponderance of evidence or
"greater weight of the evidence" is required. While
the charge invoices are not actionable documents
per se, they provide details on the alleged
transactions. These documents need not be
attached to or stated in the complaint as these are
evidentiary in nature. In fact, the cause of action is
not based on these documents but on the contract
of sale between the parties. Here, the delivery of
the supplies and materials was duly proved by the
charge invoices and purchase orders indicating
that Asian Construction indeed ordered supplies
and materials from Highett and that these were
delivered. (Asian Construction and Development
Corporation v. Mendoza, G.R. No. 176949, June 27,
2012)
PREPONDERANCE OF EVIDENCE
Preponderance of evidence means that the
evidence adduced by one side is, as a whole,
superior to or has greater weight than that of the
other. It means evidence which is more convincing
to the court as worthy of belief than that which is
offered in opposition thereto. (Ava v. De Guzman,
A.C. No. 7649, December 14, 2011)
SUBSTANTIAL EVIDENCE
It is the weight, credit, and value of the aggregate
evidence on either side and is usually considered to
be synonymous with the term “greater weight of
the evidence” or “greater weight of the credible
evidence.” It means probability of the truth,
evidence which is more convincing to the court as
worthy of belief than that which is offered in
opposition thereto. (Philippine Commercial
International Bank v. Balmaceda, G.R. No. 158143,
September 21, 2011)
Substantial evidence applies to cases filed before
the administrative or quasi-judicial bodies and
which requires that in order to establish a fact, the
evidence should constitute that amount of relevant
evidence which a reasonable mind might accept as
adequate to justify a conclusion. (Sec. 6, Rule 133).
Substantial evidence is more than mere scintilia.
The requirement is satisfied where there is
reasonable ground to believe that the petitioner is
guilty of the act or omission complained of, even if
the evidence might not be overwhelming. (Office of
the Deputy Ombudsman for Luzon v. Dionisio, G.R.
No. 220700, July 10, 2017; CSC v. Andal, A.M. No. SB12-19-P, November 18, 2014)
NOTE: A judgment cannot be entered in the
plaintiff’s favor if his or her evidence still does not
suffice to sustain his cause of action.
Matters that the court may consider in
determining whether there is preponderance of
evidence
1.
2.
NOTE: In a petition for a writ of amparo, the
parties shall establish their claims by substantial
evidence. (Sec 17, The Rule on the Writ of Amparo)
All the facts and circumstances of the case;
The witnesses' manner of testifying, their
intelligence, their means and opportunity
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
of knowing the facts to which they are
testifying, the nature of the facts to which
they
testify,
the
probability
or
improbability of their testimony;
The witnesses’ interest or want of interest,
and their personal credibility so far as the
same may legitimately appear upon the
trial; and
The number of witnesses, though the
preponderance is not necessarily with the
greater number. (Sec. 1, Rule 133)
Preponderance of Evidence vs. Substantial
Evidence (2003 BAR)
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PREPONDERANCE OF
EVIDENCE
The evidence as a
whole adduced by one
side is superior to that
of the other.
Applicable in civil cases
9.
When proving that the police officers did
not properly perform their duty or that
they were inspired by an improper motive
(People v. Concepcion, G.R. No. 178876, June
27, 2008); or
10. When a person seeks confirmation of an
imperfect or incomplete title to a piece of
land on the basis of possession by himself
and his predecessors-in-interest, he must
prove with clear and convincing evidence
compliance with the requirements of the
applicable law (Republic v. Imperial Credit
Corp., G.R. No. 173088, June 25, 2008; Riano,
2009); and
11. In granting or denying bail in extradition
proceedings. (Government of Hongkong
Special Administrative Region v. Olalia, G.R.
No. 153675, April 19, 2007)
SUBSTANTIAL
EVIDENCE
That
amount
of
relevant
evidence
which a reasonable
might mind accept as
adequate to justify a
conclusion
Applicable
in
administrative cases or
quasi-judicial bodies
CLEAR AND CONVINCING EVIDENCE
It is that degree of evidence that produces in the
mind of the trier of fact a firm belief or conviction
as to allegations sought to be established. It is
intermediate, being more than preponderance, but
not to the extent of such certainty as is required
beyond reasonable doubt as in criminal cases.
(Black’s Law Dictionary, 2004)
NOTE: The list is NOT exclusive.
Instances when clear and convincing evidence
is required
1.
2.
3.
4.
5.
6.
7.
8.
JUDICIAL NOTICE AND JUDICIAL ADMISSIONS
When proving forgery (Citibank, N.A. v.
Sabeniano, G.R. No. 156132, February 6,
2007);
When proving ownership over a land in
annulment or reconveyance of title
(Manotok Realty, Inc. v. CLT Realty
Development Corp., G.R. No. 123346,
December 14, 2007);
When invoking self-defense, the onus is on
the accused-appellant to establish by clear
and convincing evidence his justification
for the killing (People v. Tomolin, G.R. No.
126650, July 28, 1999);
When proving the allegation of frame-up
and extortion by police officers in most
dangerous drug cases (People v. Boco, G.R.
No. 129676, June 23, 1999);
When proving physical impossibility for
the accused to be at the crime scene when
using alibi as a defense (People v. Cacayan,
G.R. No. 180499, July 9, 2008);
When using denial as a defense like in
prosecution for violation of the Dangerous
Drugs Act (People v. Mustapa, G.R. No.
141244, February 19, 2001);
To overcome the presumption of due
execution of notarized instruments (Viaje
v. Pamintel, G.R. No. 147792, January 23,
2006);
When proving bad faith to warrant an
award of moral damages (Resolution of the
SC in Cual v. Leonis Navigation, G.R. No.
167775, October 10, 2005);
WHAT NEED NOT BE PROVED
Facts that need not be proved
1.
2.
3.
4.
5.
6.
7.
8.
Those of which the courts may take
judicial notice (Rule 129);
Those that are judicially admitted (Rule
129);
Those that are conclusively presumed
(Rule 131);
Those that are disputably presumed but
uncontradicted (Rule 131);
Immaterial allegations;
Facts admitted or not denied provided
they have been sufficiently alleged (Sec. 1,
Rule 8);
Res ipsa loquitur; and
Admissions by adverse party (Rule 26)
MATTERS OF JUDICIAL NOTICE
Judicial notice
It is the cognizance of certain facts which judges
may properly take and act upon without proof
because they are supposed to be known to them. It
is based on considerations of expediency and
convenience. It displaces evidence, being
equivalent to proof. (Regalado, 2008)
Function of judicial notice
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It dispenses the presentation of evidence and
fulfills the purpose for which the evidence is
designed to fulfill. Its function is to abbreviate
litigation by admission of matters that needs no
evidence because judicial notice is a substitute for
formal proof of a matter by evidence. (Riano, 2016)
Before judgment or on appeal, the court, motu
proprio or upon motion, may take judicial notice of
any matter and shall hear the parties thereon if
such matter is decisive of a material issue in the
case. (Sec. 3, Rule 129, 2019 Revised Rules on
Evidence)
Kinds of judicial notice
When judicial notice is discretionary (PDF)
(2005 BAR)
1.
2.
Mandatory – insofar as those matters
enumerated under Sec. 1, Rule 129;
Discretionary – on matters which are
of public knowledge, or are capable of
unquestionable demonstration, or
ought to be known to judges because of
their functions (Sec. 2, Rule 129, 2019
Amendments to the Revised Rules on
Evidence)
1.
Matters which are of public knowledge;
NOTE: Public knowledge are those matters
coming to the knowledge of men generally
in the course of ordinary experiences of
life, or they may be matters which are
generally accepted by mankind as true and
are capable of ready and unquestioned
demonstration.
MANDATORY
2.
When the matter is subject to a mandatory judicial
notice, no motion or hearing is necessary for the
court may take judicial notice of a fact.
NOTE: Matters which are capable of
unquestionable demonstration are facts,
theories and conclusions which have come
to be established and accepted by the
specialists in the areas of natural science,
natural
phenomena,
chronology,
technology, geography, statistical facts and
other fields of professional and scientific
knowledge. (Francisco, 1996)
When judicial notice is mandatory (EPOL-APOLMG)
1.
2.
3.
4.
5.
6.
7.
8.
9.
Existence and territorial extent of states;
Political history, forms of government and
symbols of nationality;
Law of nations;
Admiralty and maritime courts of the
world and their seals;
Political constitution and history of the
Philippines;
Official acts of legislative, executive and
judicial departments of the National
Government of the Philippines;
Laws of nature;
Measure of time; and
Geographical divisions (Sec. 1, Rule 129,
2019 Amendments to the Revised Rules on
Evidence)
3.
Ought to be known to judges because of
their judicial functions. (Sec. 2, Rule 129)
NOTE: Judicial notice is not judicial
knowledge. The mere personal knowledge
of the judge is not the judicial knowledge
of the court, and he is not authorized to
make his individual knowledge of a fact,
not generally or professionally known, the
basis of his action. Judicial cognizance is
taken only of those matters which are
"commonly" known. (State Prosecutors v.
Muro, A.M. No. RTJ-92-876, September 19,
1994)
NOTE: The list here is EXCLUSIVE. Only the things
listed here are the subject of mandatory judicial
notice.
NOTE: No hearing is required in the enumeration
under Sec. 2, Rule 129.
DISCRETIONARY
Requisites for the application of the principle of
discretionary judicial notice
When judicial notice of a fact may be taken
During the pre-trial and the trial, the court, motu
proprio or upon motion, shall hear the parties on
the propriety of taking judicial notice of any
matter.
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
Capable of unquestionable demonstration;
or
1.
2.
The matter must be one of common and
general knowledge;
It must be well and authoritatively settled
and not doubtful or uncertain; and
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3.
It must be one which is not subject to a
reasonable dispute in that it is either:
a.
b.
to take judicial notice of
any matter and allow
the parties to be heard
thereon. (Sec. 3, Rule
129)
Generally known within the territorial
jurisdiction of the trial court; or
Capable of accurate and ready
determination by resorting to sources
whose accuracy cannot reasonably be
questionable. (Expertravel & Tours,
Inc. v. CA, G.R. No. 152392, May 26,
2005)
NOTE: Hearing is necessary in the foregoing
instances to afford the parties reasonable
opportunity to present information relevant to the
propriety of taking such judicial notice or the tenor
of the matter to be judicially noticed.
NOTE: The principal guide in determining what
facts may be assumed to be judicially known is that
of notoriety.
Instances when the Court takes judicial notice
1.
Test of notoriety
Whether the fact involved is so notoriously known
as to make it proper to assume its existence
without proof.
When judicial notice of a fact may be taken,
with necessity of hearing
2.
During the pre-trial and the trial, the court, motu
proprio or upon motion, shall hear the parties on
the propriety of taking judicial notice of any matter.
3.
Before judgment or on appeal, the court, motu
proprio or upon motion, may take judicial notice of
any matter and shall hear the parties thereon if
such matter is decisive of a material issue in the
case. (Sec. 3, Rule 129, 2019 Amendments to the
Revised Rules on Evidence)
4.
Mandatory Judicial Notice vs. Discretionary
Judicial Notice
MANDATORY
JUDICIAL NOTICE
Court is compelled to
take judicial notice.
Takes place at court’s
initiative.
No motion or hearing.
5.
DISCRETIONARY
JUDICIAL NOTICE
Court is not compelled
to take judicial notice.
May be at court’s own
initiative or on request
of a party.
Needs hearing.
6.
Hearing in cases of discretionary judicial
notice
DURING PRE-TRIAL
AND TRIAL
The court on its own
initiative, or on request
of
a
party,
may
announce its intention
any matter and allow
the parties to be heard
thereon if such matter is
decisive of a material
issue in the case. (Sec. 3,
Rule 129)
AFTER TRIAL BUT
BEFORE JUDGMENT
OR ON APPEAL
The proper court, on its
own initiative or on
request of a party, may
take judicial notice of
7.
The existence and location within the
territory over which they exercise
jurisdiction of great rivers and lakes, and
their relation to provincial boundaries, of
navigability of streams, constituting
highway commerce and notorious facts
concerning the same. (Banatao v. Tuliao,
G.R. No. 12264, September 23, 1918)
The financial problem is a factor that beset
the sugar industry; that there is crisis in
the sugar industry. (Hilado v. Leogardo, Jr.,
G.R. No. L-65863, June 11, 1986)
The general increase in rentals of real
estate
especially
of
business
establishments. (Commander Realty, Inc. v.
CA, G.R. No. L-77227, November 29, 1988)
The reality that, especially in local
elections, political rivals or operators
benefited from the usually belated
decisions by COMELEC on petitions to
cancel or deny due course to CoCs of
potential nuisance candidates. (Casimira S.
Dela Cruz v. Commission on Elections, G.R.
No. 192221, November 13, 2012)
How rapists are not deterred by the
presence of people nearby, such as the
members of their own family inside the
same room, with the likelihood of being
discovered, since lust respects no time,
locale or circumstance. (People of the
Philippines v. Neil B. Colorado, G.R. No.
200792, November 14, 2012)
The government is and has for many years
been financially strapped, to the point that
even the most essential services have
suffered serious curtailment. (La BugalB’Laan Tribal Assoc. v. Ramos, G.R. No.
127882, December 1, 2004)
The Oakwood standoff was widely known
and was extensively covered by the media
made it a proper subject if judicial notice.
(Magdalo Para sa Pagbabago v. COMELEC,
G.R. No. 190793, June 19, 2012)
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8.
9.
Senate Report on the Maysilo Estate being
an official act of the legislative department
of the National Government of the
Philippines. (CLT Realty Development
Corporation v. Hi-Grade Feeds Corporation,
Republic of the Philippnes, Registry of Deeds
of Metro Manila, District III, Caloocan City,
and the Court f Appeals, G.R. No. 160684,
September 2, 2015)
Moral damages and death indemnity
require neither pleading nor evidence
simply because death through crime
always occasions moral sufferings on the
part of the victim’s heirs. (Barut v. People
of the Philippines, G.R. No. 167454,
September 24, 2014)
5.
6.
NOTE: Judicial knowledge is different
from judicial notice. Judicial knowledge is
knowledge of the judge. Judicial notice
must be knowledge of everyone or almost
everyone such that there is no doubt, it is
certain, and that it is well-settled. (Sps.
Latip v. Chua, G.R. No. 177809, October 16,
2009)
Matters NOT proper subject of judicial notice
1.
GR: Courts are not mandated to take
judicial notice of the practice of banks in
conducting background checks on
borrowers and sureties.
7.
XPN: They nevertheless may do so under
the rule on discretionary judicial notice.
(Solidbank Corporation v. Mindanao
Ferroalloy Corp., G.R. No. 153535, July 28,
2005)
2.
8.
Judicial notice of foreign laws (2005 BAR)
GR: Courts cannot take judicial notice of foreign
laws. They must be alleged and proved.
XPN: When said laws are within the actual
knowledge of the court and such laws are:
1.
2.
XPN: They may, however, take judicial
notice of a decision or the facts prevailing
in another case sitting in the same court if:
(a) the parties present them in evidence,
absent any opposition from the other
party; or (b) the court, in its discretion,
resolves to do so. (Land Bank v. Yatco
Agricultural, G.R. No.172551, January 15,
2014)
4.
Well and generally known; or
Actually ruled upon in other cases before
it; and none of the parties claim otherwise.
(PCIB v. Escolin, G.R. Nos. L-27860 L278896, March 29, 1974)
Doctrine of Processual Presumption
In international law, the party who wants to have a
foreign law applied to a dispute or case has the
burden of proving the foreign law. Where a foreign
law is not pleaded or even if pleaded, is not proved,
the presumption is that the foreign law is same as
ours. (ATCI Overseas Corporation v. Echin, G.R. No.
178551, October 11, 2010)
Proprietary
acts
of
GOCCs,
e.g.
management contract entered into by the
GOCC (Asian Terminals v. Malayan
Insurance, G.R. No. 171406, April 4, 2011).
The assessed value of realty.
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
Criminal activities such as robbery and
kidnappings are becoming daily fares in
the society. (New Sun Valley Homeowner’s
Association v. Sangguniang Barangay,
Barangay Sun Valley, Parañaque City, G.R.
No. 156686, September 16, 2020)
Actual Damages. (Barut v. People of the
Philippines, G.R. No. 167454, September
24, 2014)
JUDICIAL NOTICE OF FOREIGN LAWS,
LAW OF NATIONS AND MUNICIPAL ORDINANCE
That a registered letter when posted is
immediately stamped with the date of its
receipt, indicating therein the number of
the registry, both on the covering envelope
itself and on the receipt delivered to the
person who delivered the letter to the
office.
GR: Courts are not authorized to take
judicial notice of the contents of the
records of other cases even when said
cases have been tried or are pending in the
same court or before the same judge.
3.
Administrative regulation or of a statute
that is not yet effective.
No judicial notice is taken of whiplash
injury since it is not capable of
unquestionable demonstration and the
courts lack the proper medical
knowledge to assume this fact. (Dela
Llana v. Biong, G.R. No. 182356, December
4, 2013)
When foreign law is part of a published
treatise, periodical or pamphlet
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When the foreign law is part of a published
treatise, periodical or pamphlet and the writer is
recognized in his profession or calling as expert in
the subject, the court, may take judicial notice of
the treatise containing the foreign law. (Sec. 48,
Rule 130, 2019 Amendments to the Revised Rules on
Evidence)
1.
2.
When a foreign law refers to the law of nations
The Philippines adopts the generally accepted
principles of international law as part of the law of
the land. (Sec. 2, Art. II, 1987 Constitution of the
Philippines)
3.
Being part of the law of the land, they are therefore,
technically in the nature of local laws and hence,
are subject to mandatory judicial notice under Sec.
1 of Rule 129. (Riano, 2016)
4.
5.
Rules regarding judicial notice of municipal or
city ordinances
1.
2.
MTCs are required to take judicial notice
of the ordinances of the municipality or
city wherein they sit.
RTCs must take judicial notice of
ordinances in force in the municipalities
within their jurisdiction only:
a.
b.
3.
6.
When in the absence of any objection, with
the knowledge of the opposing party, the
contents of said other cases are clearly
referred to by title and number in a
pending action and adopted or read into
the record of the latter;
When the original record of the other case
or any part of it is actually withdrawn
from the archives at the court’s discretion
upon the request, or with the consent, of
the parties, and admitted as part of the
record of the pending case (Jumamil v.
Cafe, G.R. No. 144570, September 21, 2005);
When the action is closely interrelated to
another case pending between the same
parties;
Where the interest of the public in
ascertaining the truth are of paramount
importance;
In cases seeking to determine what is
reasonable exercise of discretion or
whether the previous ruling is applicable
in a case under consideration; or
Where there is finality of a judgment in
another case that was previously pending
determination and therefore, res judicata.
(Herrera, 1999)
Q: Anna and Badong were accused of killing
Cathy. However, only Anna was arrested since
Badong went into hiding. After trial, Anna was
acquitted of the charge in a decision rendered
by Judge Santos. Subsequently, Badong was
arrested and brought to trial. After trial,
Badong was found guilty of homicide in a
decision rendered by Judge Yantok, the judge
who replaced Judge Santos after the latter
retired. On appeal, Badong argues that Judge
Yantok should have taken judicial notice of the
acquittal of Anna rendered by Judge Santos. Is
Badong correct?
When expressly authorized to do
so by statute; or
In case on appeal before them and
wherein the inferior court took
judicial notice of an ordinance
involved in the same case.
Appellate courts may also take judicial
notice of ordinances not only because the
lower courts took judicial notice thereof
but because these are facts capable of
unquestionable demonstration. (Riano,
2016)
A: NO. The appreciation of one judge of the
testimony of a certain witness is not binding on
another judge who heard the testimony of the
same witness on the same matter. Each magistrate
who hears the testimony of a witness is called upon
to make his own appreciation of the evidence.
(People v. Langit, G.R. Nos. 134757-58, August 4,
2000)
Rules on judicial notice of records of another
case previously tried
GR: Courts are not authorized to take judicial
notice of the contents of the records of other cases,
even when such cases have been tried or are
pending in the same court, and notwithstanding
the fact that both cases may have been heard or are
actually pending before the same judge. (Calamba
Steel Center, Inc. v. CIR, G.R. No. 151857, April 28,
2005)
JUDICIAL ADMISSIONS
These are admissions, oral or written, made by a
party in the course of the proceedings in the same
case, which do not require proof. (Sec. 4, Rule 129,
2019 Amendments to the Revised Rules on Evidence)
XPNs:
Requisites of judicial admission
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1.
2.
3.
It must be made by a party to the case or
his counsel;
It must be made in the course of the
proceedings in the same case; and
It can be oral or written. (Sec. 4, Rule 129,
2019 Amendments to the Revised Rules on
Evidence)
Judicial admissions may be made in:
1.
2.
Judicial admissions vs. Extrajudicial admissions
JUDICIAL ADMISSIONS
Those made in the
course of the proceeding
in the same case.
Do not require proof
and
may
be
contradicted only by
showing that it was
made through palpable
mistake or that the
imputed admission was
not, in fact, made. (Sec.
4, Rule 129, 2019
Amendments to the
Revised
Rules
on
Evidence)
Judicial admissions need
not be offered in
evidence since it is not
evidence. It is superior
to evidence and shall be
considered by the court
as established.
Conclusive upon the
admitter.
Admissible even if selfserving.
Subject
to
crossexamination.
3.
EXTRAJUDICIAL
ADMISSIONS
Those made out of court
or
in
a
judicial
proceeding other than
the
one
under
consideration.
Regarded as evidence
and must be offered as
such, otherwise the
court will not consider it
in deciding the case.
Two ways in which admissions are made in
pleadings
1.
2.
2.
Actual Admission – When a party
categorically admits a material allegation
made by the adverse party.
Implied Admission – When the admission
is inferred from the failure to specifically
deny the material allegations in the other
party’s pleadings.
EFFECT OF JUDICIAL ADMISSIONS
1.
2.
Requires formal offer
for it to be considered.
They do not require proof; and
They cannot be contradicted because they
are conclusive upon the party making it.
(Solivio v. CA, G.R. No. 83484, February 12,
1990)
Admissions made in pleadings which were NOT
filed with the court
Admissions made
admissions:
therein
are
not
judicial
Rebuttable.
1.
Not admissible if selfserving.
Not subject to crossexamination.
2.
Different forms of judicial admission:
1.
The pleadings filed by the parties;
The course of the trial either by verbal or
written manifestations or stipulations,
including
depositions,
written
interrogatories
and
requests
for
admissions; or
Other stages of the judicial proceedings, as
in pre-trial. (Binarao v. Plus Builders, Inc.,
G.R. No. 154430, June 16, 2006)
Oral – Verbal waiver of proof made in
open court, a withdrawal of contention, or
disclosure made before the court, or
admission made by witness in his
testimony or deposition;
Writing – Pleading, bill of particulars,
stipulation of facts, request for admission,
or a judicial admission contained in an
affidavit used in the case (Programme Inc.
v. Province of Bataan, G.R. No. 144635, June
26, 2006)
Averments in pleadings which are not deemed
admissions
1.
2.
3.
Immaterial allegations (Sec. 11, Rule 8);
Conclusions, non-ultimate facts in the
pleadings (Sec 1, Rule 8); and
Amount of unliquidated damages (Sec. 11,
Rule 8)
Effect of an invalid and ineffective denial of
actionable documents attached to the
complaint
How judicial admissions are made
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
If signed by the party litigant himself or
herself – Considered as extrajudicial
admission.
If signed by the counsel – Not admissible
because a counsel only binds his or her
client with respect to admissions in open
court and in pleadings actually filed with
the court. (Riano, 2016)
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Evidence
When an action or defense is founded upon an
actionable document, the genuineness and due
execution of the same instrument shall be deemed
admitted unless it is specifically denied under oath.
(Sec. 8, Rule 8)
1.
2.
Failure to deny the genuineness and due execution
of said document amounts to a judicial admission.
(PNB vs. Refrigeration Industries, Inc., GR No.
156178, January 20, 2006)
Upon showing that the admission was
made through palpable mistake; or
When it is shown that the imputed
admission was not, in fact, made. (Sec. 4,
Rule 129)
NOTE: This argument may be invoked when
the statement of a party is taken out of context
or that his statement was made not in the
sense it is made to appear by the other party.
(Riano, 2016)
NOTE: But the failure to deny the genuineness and
due execution of an actionable document does not
preclude a party from arguing against the
document by evidence of fraud, mistake,
compromise, payment, statute of limitations,
estoppel and want of consideration. He or she is
however, precluded from arguing that the
document is a forgery because the genuineness of
document is impliedly admitted. (Acabal v. Acabal,
G.R. 148376, March 31, 2005; PNB v. Refrigeration
Industries, Inc, supra)
Remedy of party who made a judicial admission
1.
2.
In case of written admission – File a motion
to withdraw such pleading, or any other
written instrument containing such
admission; and
In case of oral admission – The counsel may
move for the exclusion of such admission.
PRE-TRIAL ADMISSIONS
Admissions made in amended pleadings
Admissions in the pre-trial of civil cases
Admissions in a pleading which had been
withdrawn or superseded by an amended pleading,
although filed in the same case, are considered as
extrajudicial admissions.
A pre-trial is mandatory. One of the purposes of
pre-trial in civil cases is for the court to consider
the possibility of obtaining stipulations or
admissions of facts. Admissions therefore, in the
pre-trial, as well as those made during depositions,
interrogatories or requests for admissions, are all
deemed judicial admissions because they are made
in the course of the proceedings of the case. (Riano,
2016)
Pleadings that have been amended disappear from
the record, lose their status as pleadings and cease
to be judicial admissions, and to be utilized as
extrajudicial admission, they must, in order to have
such effect, be formally offered in evidence. (Ching
v. Court of Appeals, G.R. No. 110844, April 27, 2000)
Admissions in the pre-trial of criminal cases
Admission made by the accused in the pre-trial of a
criminal case is not necessarily admissible against
him or her. To be admissible, the conditions set
forth by Sec. 2 of Rule 118 must be complied with.
Rule regarding self-serving evidence
The self-serving rule is not applicable to judicial
admissions. If the declaration is made in open
court, it is admissible because the witness may be
cross-examined on that matter.
All the agreements or admissions made or entered
during the pre-trial conference shall be:
Effect of a guilty plea made by the accused
during his arraignment later withdrawn
1.
2.
A plea of guilty entered by the accused may be later
withdrawn at any time before the judgment of
conviction becomes final. Such plea is not
admissible in evidence against the accused and is
not even considered as an extrajudicial admission.
Reduced in writing; and
Signed by the accused and counsel.
Otherwise, they cannot be used against the
accused. (Sec. 2, Rule 118)
OBJECT (REAL) EVIDENCE
HOW JUDICIAL ADMISSIONS
MAY BE CONTRADICTED
NATURE OF OBJECT EVIDENCE (2005 BAR)
Grounds for contradicting judicial admissions
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REMEDIAL LAW
A test which can establish the presence or absence
of nitrates or nitrites on the hand but the test alone
cannot determine whether the source of the
nitrates or nitrites was discharge of a firearm.
Object as evidence are those addressed to the
senses of the court. When an object is relevant to
the fact in issue, it may be exhibited to, examined
or viewed by the court. (Sec. 1, Rule 130, 2019
Amendments to the Revised Rules on Evidence)
NOTE: The paraffin test is merely corroborative
evidence, neither proving nor disproving that a
person did indeed fire a gun. The positive or
negative results of the test can be influenced by
certain factors such as the wearing of gloves by the
subject, perspiration of the hands, wind direction,
etc. (People v. Buduhan, G.R. No. 178196, August 6,
2008) A person who tests positive may have
handed one or more substances with the same
positive reaction for nitrates such as explosives,
fireworks, fertilizers, pharmaceuticals, tobacco and
leguminous plants. (People v. Cajumocan, G.R.
155023, May 28, 2004)
It is not limited to the view of an object. It covers
the entire range of human senses: hearing, taste,
smell, and touch. (Riano, 2016)
Physical evidence is a mute but eloquent
manifestation of truth and it ranks high in our
hierarchy of trustworthy evidence- where physical
evidence runs counter to testimonial evidence, the
physical evidence should prevail. (Bank of the
Philippine Islands v. Reyes, G.R. No. 149840-41,
March 31, 2006)
In criminal cases such as murder/homicide or rape,
in which the accused stand to lose their liberty if
found guilty, the Supreme Court has, on many
occasions, relied principally upon physical
evidence in ascertaining the truth. Where the
physical evidence on record runs counter to the
testimonies of witnesses, the primacy of the
physical evidence must be upheld. (PO1 Ocampo v.
People of the Philippines, G.R. No. 194129, June 15,
2015)
Polygraph test (Lie Detector Tests)
It is an electromechanical instrument that
simultaneously measures and records certain
physiological changes in the human body that are
believed to be involuntarily caused by an
examinee’s conscious attempt to deceive the
questioner. (West’s Legal Thesaurus Dictionary,
1986)
A polygraph test operates on the principle that
stress causes physiological changes in the body
which can be measured to indicate whether the
subject examination is telling the truth. (Riano,
2016)
NOTE: Documents are object (real) evidence if the
purpose is to prove their existence or condition, or
the nature of the handwriting thereon, or to
determine the age of the paper used, or the
blemishes or alterations thereon, as where
falsification is alleged. (Regalado, 2008)
Q: Ron was charged with murder for shooting
Carlo. After trial, Ron was found guilty as
charged. On appeal, Ron argued that the trial
court should have acquitted him as his guilt
was not proved beyond reasonable doubt. He
argues that the paraffin test conducted on him
2 days after he was arrested yielded a negative
result. Hence, he could not have shot Carlo. Is
Ron correct?
Examples of object evidence
1.
2.
3.
4.
5.
6.
Any article or object which may be known
or perceived using the senses;
Examination of the anatomy of a person or
of any substance taken therefrom;
Conduct of tests, demonstrations or
experiments;
Examination of representative portrayals
of the object in question (e.g. maps,
diagrams);
Documents, if the purpose is to prove their
existence or condition, or the nature of the
handwriting thereon or to determine the
age of the paper used, or the blemishes or
alterations (Regalado, 2008); and
A person’s appearance, where relevant.
(People v. Rullepa, G.R. No. 131516, March
5, 2003)
A: NO. While the paraffin test was negative, such
fact alone did not ipso facto prove that Ron is
innocent. A negative paraffin result is not
conclusive proof that a person has not fired a gun.
It is possible to fire a gun and yet be negative for
nitrates, as when the culprit is wearing gloves or he
washes his hands afterwards. Here, since Ron
submitted himself for paraffin testing only two
days after the shooting, it was likely he had already
washed his hands thoroughly, thus removing all
traces of nitrates therefrom. (People v. Brecinio, G.R.
No. 138534, March 17, 2004)
Paraffin test
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
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Evidence
REQUISITES FOR ADMISSIBILITY
1.
2.
showing the accused mauling the victim with
several of the latter’s companions. The person
who took the photograph was not presented as
a witness. Be that as it may, the prosecution
presented the companions of the victim who
testified that they were the ones in the
photographs. The defense objected to the
admissibility of the photographs because the
person who took the photographs was not
presented as witness. Is the contention of the
defense tenable?
It must be relevant and competent;
It must be authenticated;
NOTE: To authenticate the object, it must
be shown that the object is the very thing
that is either the subject matter of the
lawsuit or the very one involved to prove
an issue in the case.
3.
4.
The authentication must be made by a
competent witness who should identify
the object to be the actual thing involved;
and
The object must be formally offered in
evidence. (Riano, 2016)
A: NO. Photographs, when presented in evidence,
must be identified by the photographer as to its
production and testified as to the circumstances
under which they were produced. The value of this
kind of evidence lies in its being a correct
representation or reproduction of the original, and
its admissibility is determined by its accuracy in
portraying the scene at the time of the crime.
Purposes of authentication of object evidence
1.
2.
Prevent the introduction of an object
different from the one testified about; and
Ensure that there have been no significant
changes in the object’s condition.
The photographer, however, is not the only witness
who can identify the pictures he has taken. The
correctness of the photograph as a faithful
representation of the object portrayed can be
proved prima facie, either by the testimony of the
person who made it or by other competent
witnesses who can testify to its exactness and
accuracy, after which the court can admit it subject
to impeachment as to its accuracy. Here, the
photographs are admissible as evidence in as much
as the correctness thereof was testified to by the
companions of the victim. (Sison v. People, G.R. Nos.
108280-83, November 16, 1995)
Circumstances when the court may refuse the
introduction of object or real evidence and rely
on testimonial evidence alone
1.
Its exhibition is contrary to public morals
or decency;
NOTE: But if the exhibition of such object
is necessary in the interest of justice, it
may still be exhibited, and the court may
exclude the public from such view. Such
exhibition may not be refused if the
indecent or immoral objects constitute the
very basis of the criminal or civil action.
(Moran, 1980)
2.
3.
4.
Q: Thor was charged with and convicted of the
special complex crime of robbery with
homicide by the trial court. On his appeal, he
asseverates that the admission as evidence of
victim's wallet together with its contents,
violates his right against self-incrimination.
Likewise, Thor sought for their exclusion
because during the custodial investigation,
wherein he pointed to the investigating
policemen the place where he hid the victim's
wallet, he was not informed of his
constitutional rights (Miranda rights). Decide
the case.
To require its being viewed in court or in
ocular inspection would result in delays,
inconvenience, or unnecessary expenses
which are out of proportion to the
evidentiary value of such object;
Such object evidence would be confusing
or misleading, as when the purpose is to
prove the former condition of the object
and there is no preliminary showing that
there has been no substantial change in
said condition; or
The testimonial or documentary evidence
already presented clearly portrays the
object in question as to render a view
thereof unnecessary. (Regalado, 2008)
A: The right against self-incrimination does not
apply to the instant case where the evidence
sought to be excluded is not an incriminating
statement but an object evidence. Infractions on
the so-called “Miranda rights” render inadmissible
only the extrajudicial confession or admission
made during custodial investigation. The
admissibility of other evidence is not affected even
if obtained or taken in the course of custodial
investigation. Concededly, Thor was not informed
Q: In a criminal case for murder, the
prosecution offered as evidence, photographs
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REMEDIAL LAW
of his rights during the custodial investigation.
Neither did he execute a written waiver of these
rights in accordance with the constitutional
prescriptions. Nevertheless, these constitutional
shortcuts do not affect the admissibility of the
victim's wallet and its contents. (People v. Malimit,
G.R. No. 109775, November 14, 1996)
court. (People v. Gayoso, G.R. No. 206590,
March 27, 2017)
Procedure to be followed in the custody and
handling of seized dangerous drugs (Sec. 21,
Art. II of R.A. 9165, as amended by R.A. 10640)
Apprehending team shall, immediately after
seizure and confiscation, make a physical
inventory and photograph of the same in the
presence of:
CATEGORIES OF OBJECT EVIDENCE
Categories of object evidence for purposes of
authentication
1.
2.
3.
1. Accused or the person/s from which such
items were confiscated and/or seized;
2.His/her representative or counsel; WITH
3. A representative of the National
Prosecution Service (NPS) OR the media;
AND
4. Any elected public official who shall
berequired to sign the copies of the inventory
and be given a copy. (Sec. 21[1], RA 9165, as
amended by RA 10640; People v. Santos, G.R.
No.243627, 27 November 2019)
Unique objects – Those that have readily
identifiable marks (e.g. a caliber 40 gun
with serial number XXX888);
Objects made unique – Those that are
made readily identifiable (e.g. a bolo knife
with identifying marks on it); and
Non-unique objects – Those which have
no identifying marks and cannot be
marked (e.g. drops of blood). (Riano, 2016)
NOTE: In case of non-unique objects, the
proponent of the evidence must establish a chain of
custody.
The objects seized must be submitted to PDEA
for qualitative and quantitative examination
within 24 hours from the confiscation/seizure.
CHAIN OF CUSTODY IN RELATION TO SECTION
21 OF THE COMPREHENSIVE DANGEROUS
DRUGS ACT OF 2002
Purpose
The forensic laboratory examiner is required to
issue within 24 hours after receipt of the drugs a
certification of the forensic laboratory
examination results which shall be done under
oath.
To guaranty the integrity of the physical evidence
and to prevent the introduction of evidence which
is not authentic. Where the exhibit is positively
identified, the chain of custody of physical evidence
is irrelevant.
Since it is called a chain, there must be links to the
chain. The links are the people who actually
handled or had custody of the object. Each link
must show how he received the object, how he
handled it to prevent substitution and how it was
transferred to another. Each must testify to make
the foundation complete.
After filing of the criminal case, the court shall,
within 72 hours, conduct an ocular inspection
and the PDEA shall within 24 hours proceed
with the destruction of the same.
Links in the chain of custody
1.
2.
3.
4.
Dangerous Drugs Board shall then issue a sworn
certification as to the fact of destruction or
burning to be submitted to the court. Also to be
submitted are the representative samples (only
minimum quantity) of the substances in the
custody of PDEA.
Seizure and marking, if practicable, of the
illegal drug recovered from the accused;
Turnover of the illegal drug by the
apprehending officer to the investigating
officer;
Turnover by the investigating officer to the
forensic
chemist
for
laboratory
examination; and
Turnover and submission of the marked
illegal drug by the forensic chemist to to
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
NOTE: The alleged offender or his/her
representative or counsel shall be allowed to
personally observe all the above proceedings. His
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Evidence
presence shall NOT constitute an admission of
guilt.
(People of the Philippines v. Banding, G.R. No.
2333470, August 14, 2019, as penned by J. Leonen)
Strict compliance with Section 21
In the case of People of the Philippines v. Ramos, the
Supreme Court ruled that the witnesses' absence at
the time of seizure is not a justifiable ground for
not immediately marking the items, since they
should have, at the onset, been present or near the
place of seizure. Since the law requires the
apprehending team to conduct the inventory in
front of the required witnesses and immediately
after seizure, this necessarily means that, in buybust operations, the required witnesses must be
present at the time of seizure. (G.R. No. 225335,
August 28, 2019, as penned by J. Leonen)
Q: Banding was arrested at Mercury Drug Store
Lagro branch in Quezon City for illegal sale of
dangerous drugs (Section 5, RA 9165). The
dangerous drugs sachets containing white
crystalline substance were marked by PO2
Inway with AB-20-09-10. To avoid the on-going
commotion in the area, the team proceeded to
Camp Karingal which is 17 kilometers car ride
away from the place of arrest.
There, physical inventory and photographing
required under Sec. 21 of RA 9165 was
conducted in the presence of Banding, the buybust team, and a media representative. After
the inventory, PO3 Corona prepared the
inventory receipt for “a sachet containing
marijuana fruiting tops.” This was submitted to
the QCPD Crime Laboratory. Banding was later
on charged with violation of Section 5 of RA
9165. Banding argues that he cannot be
convicted due to lapses in the chain of custody
of the drugs seized. Can Banding be held
criminally liable under Section 5 of RA 9165?
The phrase "immediately after seizure and
confiscation" means that the physical inventory and
photographing of the drugs were intended by the
law to be made immediately after, or at the place of
apprehension. It is only when the same is not
practicable that the law allows the inventory and
photographing to be done as soon as the buy-bust
team reaches the nearest police station or the
nearest office of the apprehending team/officer.
Well-entrenched in jurisprudence is the rule that
the conviction of the accused, must rest, not on the
weakness of the defense, but on the strength of the
prosecution. Since, there is no showing that a roper
inventory and taking of pictures was done byy the
apprehending officers, the Court is left with
absolutely no guarantee of the integrity of the
sachets other than the self-serving assurances of
the police officers. (People of the Philippines v. Que,
G.R. No. 212994, January 31, 2018, as penned byJ.
Leonen)
A: Banding cannot be convicted under Section 5 of
RA 9165 due to the lapses in the chain of custody
procedure required under Section 21 of the same
law. Section 21 requires strict compliance. The
accuracy it requires goes into the covertness of
buy-bust operation and the very nature of narcotic
substance.
From the language of Section 21, the mandate to
conduct inventory and take photographs
"immediately after seizure and confiscation"
necessarily means that these shall be
accomplished at the place of arrest. When this is
impracticable, the Implementing Rules and
Regulations of Republic Act No. 9165 allows for
two (2) other options: at the nearest police station
or at the nearest office of the apprehending
officer/team, whichever is practicable, in case of
warrantless seizures. To sanction non-compliance,
the prosecution must prove that the inventory was
conducted in either practicable place.
Citing People v. Que, what is critical in drug cases is
not the bare conduct of the inventory, marking, and
photographing. Instead, it is the certainty that the
items allegedly taken from the accused retain their
integrity, even as they make their way from the
accused to an officer effecting the seizure, to an
investigating officer to a forrensic chemist, and
ultimately, to courts where they are introduced as
evidence. Sec. 21(1)’s requirements are designed to
make the first and second link foolproof.
Conducting the inventory and photographing
immediately after seizure, exactly where the
seizure was done, or at a location as practicably
close to it, minimizes, if not eliminates, room for
adulteration or planting of evidence. (People of the
Philippines v. Banding, supra.)
The physical inventory and photographing of the
drugs seized was not done in the place of arrest,
but was done in Camp Karingal, which was
impractical since it was 17 kilometers car ride
away from the place of arrest. The clerical errors
and discrepancies in the inventory receipt and the
chemistry report cannot be dismissed since they
cast doubt as to the origin of the drug seized.
Integrity and evidentiary value of the seized
items
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The prosecution is not required to elicit testimony
from every custodian or from every person who
had an opportunity to come in contact with the
evidence sought to be admitted. As long as one of
the chains testifies and his testimony negates the
possibility of tampering and that the integrity of
the evidence is preserved, his testimony alone is
adequate to prove the chain of custody.
amount of dangerous drugs are alleged to have
been seized from the accused.
In this case, only 0.0496 grams and 0.0487 grams
or a total of 0.0983 grams of shabu were allegedly
taken from accused-appellant. Such a miniscule
amount of drugs is highly susceptible to tampering
and contamination. A careful review of the factual
findings of the lower courts shows that the
prosecution failed to discharge its burden of
preserving the identity and integrity of the
dangerous drugs allegedly seized from accusedappellant. The prosecution failed to establish who
held the seized items from the moment they were
taken from accused-appellant until they were
brought to the police station. The designated
poseur-buyer, PO2 Montales, did not mention who
took custody of the seized items for safekeeping.
(People v. Saunar, G.R. No. 207396, August 9, 2017,
as penned by J. Leonen)
Failure to strictly comply with rules of procedure,
however, does not ipso facto invalidate or render
void the seizure and custody over the items. Minor
deviations from the chain of custody rule are
justified when the prosecution is able to show that:
1.
2.
There is justifiable ground for noncompliance; and
The integrity and evidentiary value of
the seized items are properly preserved
(People v. Dumagay, G.R. No. 216753,
February 7, 2018).
Marking after seizure is the starting point in the
custodial link, thus it is vital that the seized
contrabands are immediately marked because
succeeding handlers of the specimen will use the
markings as reference. (People v. Salim, G.R. No.
208093, February 20, 2017)
Q: A buy-bust operation was conducted
wherein PO2 Montales was designated as the
poseur-buyer. The buy-bust team proceeded to
Saunar's residence. PO2 Montales introduced
herself as a buyer of shabu and handed Saunar
the marked money. After a brief conversation,
Saunar went inside the house. She returned
moments later "with two (2) transparent
plastic sachets containing white crystalline
substance." PO2 Montales examined the plastic
sachets and gave the pre-arranged signal by
removing her sunglasses. This indicated the
consummation of the transaction to the other
members of the buy-bust team. PO2 Montales
brought the seized items to the crime
laboratory for scientific examination. The
contents of the two (2) plastic sachets weighed
0.0496 grams and 0.0487 grams. They tested
positive for shabu. Is Saunar liable even if only
a miniscule amount is alleged to have been
seized from him?
Q: A buy-bust operation was conducted by the
police where PO1 Aure, as the poseur-buyer,
was accompanied by the informant. The team
proceeded to the whereabouts of Holgado. PO1
Aure handed Holgado two marked Php 100
bills. Holgado called Misarez. Misarez stepped
out of the restroom and handed a plastic sachet
containing a white crystalline substance to PO1
Aure. PO1 Aure examined the sachet’s contents
and took out his cellphone signalling that the
sale of drugs had been consummated. The
police operatives then approached PO1 Aure
and apprehended Holgado and Misarez. PO3
Abuyme prepared an inventory of the seized
items. PO1 Aure supposedly marked the plastic
sachet handed to him by Misarez at the site of
the buy-bust operation.
A: NO. The prosecution must prove beyond
reasonable doubt that the transaction actually took
place by establishing the following elements: "(1)
the identity of the buyer and the seller, the object
and the consideration; and (2) the delivery of the
thing sold and the payment." Aside from this, the
corpus delicti must be presented as evidence in
court. In cases involving dangerous drugs, "the
corpus delicti is the dangerous drug itself."
Although strict compliance with the chain of
custody rule may be excused provided that the
integrity and evidentiary value of the seized items
are preserved, a more exacting standard is
required of law enforcers when only a miniscule
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
Following their arrest, Holgado and Misarez
were charged with violating Secs. 5 (Sale of
dangerous drugs), 11 (Possession of dangerous
drugs), and 12 (Possession of drug
paraphernalia) of RA No. 9165.
RTC found Holgado and Misarez guilty of illegal
sale of dangerous drugs and acquitted them of
the charges pertaining to Sec. 11 as the drugs
supposedly seized were not introduced in
evidence. Holgado, was also acquitted of the
charges relating to Sec. 12 of as the
paraphernalia to which PO2 Castulo testified to
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2.
in court were different from those indicated in
the inventory supposedly made. CA affirmed
the conviction. Is the presumption of regularity
in the performance of duties applicable in this
case?
A: The presumption of regularity in the
performance of duties cannot be applied in this
case. Given the flagrant procedural lapses the
police committed in handling the seized shabu and
the obvious evidentiary gaps in the chain of its
custody, a presumption of regularity in the
performance of duties cannot be made in this case.
The presumption applies when nothing in the
record suggests that the law enforcers deviated
from the standard conduct of official duty required
by law; where the official act is irregular on its face,
the presumption cannot arise. (People of the
Philippines v. Holgado, G.R. No. 207992, August 11,
2014, as penned by J. Leonen)
3.
Rule on DNA Evidence (A.M. No. 06-11-5-SC)
It shall apply whenever DNA evidence is offered,
used, or proposed to be offered or used as evidence
in all criminal and civil actions as well as special
proceedings. (Sec. 1, AM No. 06-11-5-SC)
DNA EVIDENCE
Meaning of DNA
DNA is the fundamental building block of a
person’s entire genetic make-up. A person’s DNA
profile can determine his identity. The DNA profile
is unique for each person, except for identical
twins. Everyone is born with a distinct and genetic
blueprint called DNA.
Application for DNA Testing Order
DNA testing order may be done motu proprio or on
application of any person having legal interest in
the matter in litigation.
DNA testing order shall issue after due hearing and
notice to the parties upon showing that:
When a crime is committed, material is collected
from the scene of the crime or from the victim's
body for the suspect's DNA. This is the evidence
sample. The evidence sample is then matched with
the reference sample taken from the suspect and
the victim.
1.
2.
A biological sample exists that is relevant
to the case;
The biological sample:
(i) was not previously subjected to the
type of DNA testing now requested; or
(ii) was previously subjected to DNA
testing, but the results may require
confirmation for good reasons;
DNA analysis
A procedure in which DNA extracted fro a
biological sample obtained from an individual is
examined. (Herrera v. Alba, G.R. No. 148220, June
15, 2000)
3.
The purpose of DNA testing is to ascertain whether
an association exists between the evidence sample
and the reference sample. The samples collected
are subjected to various chemical processes to
establish their profile. The test may yield three
possible results:
1.
It is not possible to be sure, based on the
results of the test, whether the samples
have similar DNA types (inconclusive).
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;
or
The samples are similar, and could have
originated from the same source
(inclusion). In such a case, the samples are
found to be similar, the analyst proceeds
to determine the statistical significance of
the Similarity. (People v. Vallejo, G.R. No.
144656, May 9, 2002)
4.
5.
The samples are different and therefore
must have originated from different
sources (exclusion). This conclusion is
absolute and requires no further analysis
or discussion;
The DNA testing uses a scientifically valid
technique;
The DNA testing has the scientific
potential to produce new information that
is relevant to the proper resolution of the
case; and
The existence of other factors, if any,
which the court may consider as
potentially affecting the accuracy of
integrity of the DNA testing.
NOTE: This Rule shall not preclude a DNA testing,
without need of a prior court order, at the behest of
any party, including law enforcement agencies,
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before a suit or proceeding is commenced. (Sec. 4,
A.M. No. 06-11-5-SC)
Post-Conviction DNA Testing
d.
Post-conviction DNA testing may be available,
without need of prior court order, to the
prosecution or any person convicted by final and
executory judgment provided that:
1.
2.
3.
DNA is admissible evidence of paternity
A biological sample exists;
Such sample is relevant to the case; and
The testing would probably result in the
reversal or modification of the judgment of
conviction. (Sec. 5, A.M. No. 06-11-5-SC)
(2012 BAR)
DNA analysis that excludes the putative father
from paternity should be conclusive proof of nonpaternity. If the minimum value of the Probability
of Paternity is less than 99.9%, the results of the
DNA analysis should be considered as
corroborative evidence. If the value of minimum
value of the Probability of Paternity is 99.9% or
higher, then there is refutable presumption of
paternity. (Herrera v. Alba, G.R. No. 148220, June
15, 2005)
Assessment of probative value of DNA evidence
and admissibility
The courts must consider the following standards,
known as the Vallejo Standards, in assessing the
probative value of DNA evidence: (2009, 2010
BAR)
a.
b.
c.
d.
e.
f.
DEMONSTRATIVE EVIDENCE
Real evidence vs. Demonstrative evidence
How the samples were collected;
How they were handled;
The possibility of contamination of the
samples;
The procedure followed in analyzing the
samples;
Whether the proper standards and
procedures were followed in conducting
the tests; and
The qualification of the analyst who
conducted the tests. (People v. Vallejo, G.R.
No. 144656, May 9, 2002)
REAL EVIDENCE
Tangible object that
played some actual
role in the matter that
gave rise to the
litigation
Intends to prove that
the object is used in the
underlying event
Rules on evaluation of reliablility of DNA
testing methodology
b.
c.
The chain of custody, including how the
biological samples were collected, how
they were handled, and the possibility of
contamination of the samples;
The DNA testing methodology, including
the procedure followed in analyzing the
samples,
the
advantages
and
disadvantages of the procedure, and
compliance with the scientifically valid
standards in conducting the tests;
The forensic DNA laboratory, including
accreditation by any reputable standardssetting institution and the qualification of
the analyst who conducted the tests. If the
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
DEMONSTRATIVE
EVIDENCE
Tangible evidence that
merely illustrates a
matter of importance
in the litigation
Intends to show that
the
demonstrative
object fairly represents
or illustrates a real
evidence
Illustration: Where a
drawing is presented to
illustrate the relative
positions
of
the
protagonists
and
witnesses to the killing,
the foundation for
demonstrative
evidence will normally
consist of the testimony
of an eyewitness or
investigator stating that
the drawing was indeed
fairly represents the
position
of
those
present in the event.
(Francisco, 1996)
In assessing the probative value of the DNA
evidence presented, the court shall consider the
following:
a.
laboratory is not accredited, the relevant
experience of the laboratory in forensic
casework and credibility shall be properly
established; and
The reliability of the testing result, as
hereinafter provided. (Sec. 7 [a], Rule on
DNA Evidence)
VIEW OF AN OBJECT OR SCENE
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If a tape recording is played to show that particular
words were uttered, it will constitute a
documentary evidence. However, if it is played to
simply show that words were uttered in a
particular accent, then it is an object evidence.
(Francisco, 1996)
When an object is relevant to the fact in issue, it
may be exhibited to, examined or viewed by the
court. (Sec 1, Rule 130)
Where the object in question cannot be produced
in court because it is immovable or inconvenient to
remove, it is proper for the tribunal to go to the
object in its place and there observe it (Francisco,
1996).
Q: May a private document be offered and
admitted in evidence both as documentary
evidence and object evidence? (2005 BAR)
An ocular inspection conducted by the judge
without the presence of the parties or due notice is
not valid, as an ocular inspection is part of the trial
(Regalado, 2008, citing Adan vs. Abucejo-Luzano, et
al., A.M. No. MTJ-00-1298, August 3, 2000).
A: YES. A private document may be offered and
admitted in evidence both as documentary
evidence and as object evidence depending on the
purpose for which the document is offered. If
offered to prove its existence, conditions or for any
purpose other than the contents of a document, the
same is considered as an object evidence. When the
private document is offered as proof of its contents,
the same is considered as documentary evidence.
The document may be offered for both purposes
under the principle of multiple admissibility.
(Riano, 2016)
DOCUMENTARY EVIDENCE
MEANING OF DOCUMENTARY EVIDENCE
Documents as evidence consist of writings,
recording, photographs or any material containing
letters, words, sounds, numbers, figures, symbols,
or their equivalent, or other modes of written
expressions, offered as proof of their contents.
Photographs include still pictures, drawings, stored
images, x-ray films, motion picture or videos. (Sec.
2, Rule 130, 2019 Amendments to the Revised Rules
on Evidence)
REQUISITES FOR ADMISSIBILITY
The requisites for admissibility of documentary
evidence are: (RAMO)
1.
2.
NOTE: Being writing or materials containing
modes of written expressions do no ipso facto
make such materials documentary evidence. For
such writings or materials to be deemed
documentary evidence, the same must be offered
as proof of their contents. (Riano, 2019)
3.
4.
Categories of documentary evidence
1.
2.
3.
4.
5.
Writings;
Recordings;
Photographs;
Any other material containing letters,
words, sounds, numbers, figures, symbols
or their equivalent;
Other modes of written expression offered
as a proof of their contents.
The document should be relevant;
The documents should be authenticated
and proved in the manner provided in the
Rules of Court. Such authentication must
be done by a competent witness;
The documents should be identified and
marked; and
They should be formally offered to the
court and shown to the opposing party so
that the latter may have the opportunity to
object thereto. (Ramcar, Inc. v. Hi-Power
Marketing, G.R. No. 157075, July 17, 2006)
Q: When Linda died, her common-law husband,
Lito and their alleged daughter, Nes, executed
an extrajudicial partition of Linda’s estate.
Thereafter, the siblings of Linda filed an action
for partition of Linda’s estate and annulment of
titles and damages with the RTC. The RTC
dismissed the complaint and ruled that Nes was
the illegitimate daughter of the decedent and
Lito based solely on her birth certificate, which
on closer examination, reveals that Nes was
listed as “adopted” by both Linda and Lito. Is
the trial court correct?
NOTE: Photographs include still pictures,
drawings, stored images, x-ray films, motion
pictures or videos.
(Sec. 2, Rule 130, 2019
Amendments to the Revised Rules on Evidence)
A: NO. A record of birth is merely a prima facie
evidence of the facts contained therein. It is not
conclusive evidence of the truthfulness of the
statements made therein by the interested parties.
Tape-recording as documentary evidence
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Nes should have adduced evidence of her adoption,
in view of the contents of her birth certificate. The
mere registration of a child in his or her birth
certificate as the child of the supposed parents is
not a valid adoption, does not confer upon the child
the status of an adopted child and the legal rights
of such child, and even amounts to simulation of
the child's birth or falsification of his or her birth
certificate, which is a public document. (Rivera v.
Heirs of Villanueva, G.R. No. 141501, July 21, 2006)
3.
4.
5.
Theory of indivisibility (Rule on Completeness)
When part of an act, declaration, conversation,
writing or record is given in evidence by one party,
the whole of the same subject may be inquired into
by the other; and when a detached act, declaration,
conversation, writing, or record is given in
evidence, any other act, declaration, conversation,
writing or record necessary to its understanding
may also be given in evidence. (Sec. 17, Rule 132)
NOTE: Where the issue is only as to whether such a
document was actually executed, or exists, or on
the circumstances relevant to or surrounding its
execution or delivery (external facts), the best
evidence rule (now, original document rule), does
not apply, and testimonial evidence is admissible.
(Moran, 1980)
The Best Evidence Rule (now original document
rule), applied to documentary evidence, operates
as a rule of exclusion, that is, secondary evidence
cannot be inceptively introduced as the original
writing itself must be produced in court, except in
the instances mentioned in Sec. 3. (Regalado, 2008)
ORIGINAL DOCUMENT RULE
(PREVIOUSLY KNOWN AS THE BEST EVIDENCE
RULE)
The erstwhile “Best Evidence Rule” is now known
as the “Original Document Rule” in order to avoid
confusion.
Q: What is the reason underlying the adoption
of the best evidence rule (now the original
document rule)? (1998 BAR)
The “Best Evidence Rule” is a misnomer because it
misleadingly suggests that the doctrine applies to
all types of evidence. The Best Evidence Rule only
applies to documents or writings; there is no
requirement that parties introduce the best
evidence bearing on other matters they seek to
prove in court. Thus, the more accurate or apt label
for the doctrine is the “Original Document
Rule.”(Rules Committee Notes, as cited in Peralta &
Peralta, 2020)
A: There is a need to present to the court the exact
words of a writing where a slight variation of
words may mean a great difference in rights. It is
also for the prevention of fraud or mistake in the
proof of the contents of a writing.
Q: Police officers arrested Mr. Druggie in a buybust operation and confiscated from him 10
sachets of shabu and several marked genuine
peso bills worth P5,000.00 used as the buy-bust
money during the buy-bust operation. At the
trial of Mr. Druggie for violation of R.A. No.
9165, the Prosecution offered in evidence,
among others, photocopies of the confiscated
marked genuine peso bills. The photocopies
were offered to prove that Mr. Druggie had
engaged at the time of his arrest in the illegal
selling of dangerous drugs. Invoking the Best
Evidence Rule Atty. Maya Bang, the defense
counsel, objected to the admissibility of the
photocopies of the confiscated marked genuine
peso bills. Should the trial judge sustain the
objection of the defense counsel? Briefly
explain your answer. (2017 BAR)
MEANING OF THE RULE
GR: It provides that when the subject of the inquiry
is the contents of the document, writing, recording,
photograph or other record, no evidence shall be
admissible other than the original document itself.
XPNs: (LoCus-JuN-PuC)
1.
2.
When the original is lost, or destroyed, or
cannot be produced in court, without bad
faith on the part of the offeror;
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;
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
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;
When the original is a public record in the
custody of a public officer or is recorded in
a public office; and
When the original is not closely-related to
a controlling issue. (Sec. 3, Rule 130, 2019
Amendments to the Revised Rules on
Evidence)
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Evidence
NOTE: An original of a photograph includes
the negative or any print therefrom.
A: NO. The best evidence rule (now the original
document rule) applies only to documentary
evidence, not to object or testimonial
evidence. The presentation at the trial of the "buybust money" is not indispensable to the conviction
of the accused especially if the sale of dangerous
drugs had been adequately proved by the
testimony of the police officers. So long as the drug
actually sold by the accused had been submitted as
an exhibit, the failure to produce the marked
money itself would not constitute a fatal omission.
NOTE: If data is stored in a computer or
similar device, any printout or other output
readable by sight or other means, shown to
reflect the data accurately, is an “original.” This
is considered as the “Functional Equivalent” of
the original under the Rules on Electronic
Evidence
A “duplicate” is a counterpart produced by the
same impression as the original, or from the same
matrix, or by means of photography, including
enlargements and miniatures, or by mechanical or
electronic
re-recording,
or
by
chemical
reproduction, or by other equivalent techniques
which accurately reproduce the original.
WHEN APPLICABLE
1.
2.
3.
The original document of the writing is the
writing itself;
The contents of which is the subject of the
inquiry; and
The original document must be produced if the
purpose is to prove its contents. (Tan, 2019)
GR: A duplicate is admissible to the same extent as
an original.
NOTE: When the truth of the document is in issue
and not the contents thereof, the original document
rule is not applicable. In such case, it is the hearsay
rule that will apply. (Riano, 2016) Where the issue
is the execution or existence of the document or
the circumstances surrounding its execution, the
original document rule does not apply and
testimonial evidence is admissible. (Arceo, Jr. v.
People, G.R. No. 142641, July 17, 2006)
XPN:
1.
2.
A genuine question is raised as to the
authenticity of the original; or
In the circumstances, it is unjust or
inequitable to admit the duplicate in lieu of
the original. (Sec. 4, Rule 130, 2019
Amendments to the Revised Rules on
Evidence)
Subject of inquiry
NOTE: Writings with identical contents made
by printing, mimeographing, lithography and
other similar methods executed at the same
time are considered as original document.
Thus, each newspaper sold in the stand is an
original. (Riano, 2016)
When the original document rule comes into
operation, it is presumed that the subject of the
inquiry is the contents of the document, thus the
party offering the document must present the
original thereof and not any other secondary
evidence.
Production of the original may be dispensed with
if, in the trial court’s discretion, the opponent (1)
does not dispute the contents of such document
and (2) no other useful purpose will be served by
the production. Secondary evidence of the contents
of the writing would be received in evidence if no
objection was made to its reception. (Estrada v.
Desierto, G.R. No. 146710-15, March 2, 2001)
Collateral Facts Rule
A document or writing which is merely “collateral”
to the issue involved in the case on trial need not
be proved. Where the purpose of presenting a
document is not to prove its contents, but merely
to give coherence to, or to make intelligible the
testimony of a witness regarding a fact
contemporaneous to the writing, the original of the
document need not be presented.
SECONDARY EVIDENCE; SUMMARIES
Secondary evidence
MEANING OF ORIGINAL DOCUMENT AND
DUPLICATE
Evidence other than the original instrument or
document itself. It is the class of evidence that is
relevant to the fact in issue, it being first shown
that the primary evidence of the fact is not
obtainable. It performs the same functions as that
of primary evidence. (EDSA Shangri-La Hotel and
An “original” of a document is either:
1.
2.
the document itself; or
any counterpart intended to have the same
effect by a person executive or issuing it.
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Intentional destruction of the originals by a party
who acted in good faith does not preclude the
introduction of secondary evidence of the contents
thereof. (Regalado, 2008)
Resort, Inc. v. BF Corporation, G.R. Nos. 145842 &
145873, June 27, 2008; Francisco, 1992)
NOTE: A party must first present to the court proof
of loss or other satisfactory explanation for the
non-production of the original instrument. When
more than one original copy exists, it must appear
that all of them have been lost, destroyed or cannot
be produced in court before secondary evidence
can be given. (Country Bankers Insurance Corp. v.
Lagman, G.R. No. 165487, July 13, 2011)
Proof of loss or destruction
It may be proved by:
1. Any person who knew of such fact;
2. Anyone who, in the judgment of the court,
had made sufficient examination in the
places where the document or papers of
similar character are usually kept by the
person in whose custody the document
was and has been unable to find it; or
3. Any person who has made any other
investigation which is sufficient to satisfy
the court that the document is indeed lost.
The non-production of the original document,
unless it falls under any of the exceptions in Sec. 3,
Rule 130, gives rise to the presumption of
suppression of evidence. (De Vera, et al. v. Aguilar,
et al. G.R. No. 83377, February 9, 1993)
Requisites before the contents of the original
document may be proved by secondary
evidence (laying the basis/laying the predicate)
(2000 BAR)
NOTE: A reasonable probability of its loss is
sufficient, and this may be shown by a bona fide
and diligent search, fruitlessly made, in places
where it is likely to be found. (Paylago v. Jarabe,
G.R. No. L-20046, March 27, 1968)
The offeror must prove the following:
1.
2.
3.
The execution or existence of the original
document;
The cause of its unavailability; and
The unavailability of the original is not due
to bad faith on his or her part. (Sec. 5, Rule
130, 2019 Amendments to the Revised Rules
on Evidence)
All duplicates or counterparts of a lost or destroyed
document must be accounted for before using
copies thereof since all duplicates are parts of the
writing to be proved. (De Vera, et al. v. Aguilar, et
al., G.R. No. 83377, February 9, 1993)
Due execution of the document
While a marriage certificate is considered the
primary evidence of a marital union, it is not
regarded as the sole and exclusive evidence of
marriage. Jurisprudence teaches that the fact of
marriage may be proven by relevant evidence
other than the marriage certificate. Hence, even a
person’s birth certificate may be recognized as
competent evidence of marriage between parents.
(Vda. De Avenido v. Avenido, G.R. No. 173540,
January 22, 2014)
It may be proved by any of the following means:
Order of presentation of secondary evidence
NOTE: Accordingly, the correct order of proof is as
follows: existence, execution, loss, and contents.
This order may be changed if necessary, at the
sound discretion of the court. (Citibank, N.A.
MasterCard v. Teodoro, G.R. No. 150905, September
23, 2003)
1.
2.
3.
By anyone who saw the document
executed or written;
By evidence of the genuineness of the
signature or handwriting of the maker; or
By other evidence showing its due
execution and authenticity. (Sec. 20, Rule
132, 2019 Amendments to the Revised Rules
on Evidence)
Upon proof of its execution and loss of the original
document, its contents may be proved by the
following, in the order stated:
1.
2.
3.
NOTE: Any other private document need only be
identified as that which it is claimed to be.
By a copy of the original;
By recital of the contents of the document
in some authentic document; or
By the testimony of witnesses (Sec. 5, Rule
130, 2019 Amendments to the Revised Rules
on Evidence)
Definite Evidentiary Rule
Intentional destruction of original document
Where the law specifically provides for the class
and quantum of secondary evidence to establish
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
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Evidence
the contents of a document, or bars secondary
evidence of a lost document, such requirement is
controlling,
The notice may be in the form of a motion
for the production of the original, or made
in an open court in the presence of the
adverse party, or via a subpoena duces
tecum, provided that the party in custody
of the original has sufficient time to
produce the same. When such party has
the original of the writing and does not
voluntarily offer to produce it, secondary
evidence may be admitted. (Magdayao v.
People G.R. No. 162308, November 7, 1994)
E.g. evidence of a lost notarial will should consist of
a testimony of at least two credible witnesses who
can clearly and distinctly establish its contents.
(Sec. 6, Rule 76; Regalado, 2008)
Waiver of the presentation or offer of the
original
The presentation or offer of the original may be
waived upon failure to object by the party against
whom the secondary evidence is offered when the
same was presented, as the secondary evidence
becomes primary evidence. But even if admitted as
primary evidence, admissibility of evidence should
not be confused with its probative value. (Heirs of
Teodoro De la Cruz v. CA, G.R. No. 117384, October
21, 1998)
4.
NOTE: A justified refusal or failure of the
adverse party to produce the original
document will not give rise to the
presumption of suppression of evidence,
or create an unfavorable inference against
him. It only authorizes the presentation of
secondary evidence. (Regalado, 2008)
When original document is in adverse party’s
custody or control
If the document is in the custody or under the
control of adverse party, he or she must have
reasonable notice to produce it. If after such notice
and after satisfactory proof of its existence, he fails
to produce the document, secondary evidence may
be presented as in the case of its loss. (Sec. 6, Rule
130, 2019 Amendments to the Revised Rules on
Evidence)
The mere fact that the original of the writing is in
the custody or control of the party against whom it
is offered does not warrant the admission of
secondary evidence. The offeror must prove that
he has done all in his power to secure the best
evidence by giving notice to the said party to
produce the document. (Magdayao v. People G.R.
No. 162308, November 7, 1994; EDSA Shangri-La
Hotel and Resort, Inc. v. BF Corporation, G.R. Nos.
145842 & 145873, June 27, 2008)
Requisites for admissibility of secondary
evidence when the original document is in the
custody or control of the adverse party
1.
2.
3.
That the adverse party failed to produce
the original document despite the
reasonable notice. (Sec. 6, Rule 130, 2019
Amendments to the Revised Rules on
Evidence)
Q: Paula filed a complaint against Lynette for
the recovery of a sum of money based on a
promissory note executed by the latter. During
the hearing, Paula testified that the original
note was with Lynette and the latter would not
surrender to Paula the original note which
Lynette kept in a place about one day's trip
from where she received the notice to produce
the note and despite such notice to produce the
same within 6 hours from receipt of such
notice, Lynette failed to do so. Paula presented
a copy of the note which was executed at the
same time as the original and with identical
contents. Over the objection of Lynette, can
Paula present a copy of the promissory note
and have it admitted as valid evidence in her
favor? Why? (2001 BAR)
That the original exists;
That said document is under the custody
or control of the adverse party;
That the proponent of secondary evidence
has given the adverse party reasonable
notice to produce the original document;
and
NOTE: No particular form of notice is
required, to be given to the adverse party,
as long as it fairly appraises the other
party as to what papers are desired. Even
an oral demand in open court for such
production at a reasonable time thereafter
will suffice. Such notice must, however, be
given to the adverse party, or his attorney,
even if the document is in the actual
possession of a third person. (Regalado,
2008)
A: YES. Although the failure of Lynette to produce
the original of the note is excusable since she was
not given reasonable notice, a requirement under
the Rules before secondary evidence may be
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REMEDIAL LAW
presented, the copy in possession of Paula is not a
secondary evidence but a duplicate original
because it was executed at the same time as the
original and with identical contents. Hence, being
an original, the rule on secondary evidence need
not be complied with. (Sec. 6, Rule 130, 2019
Amendments to the Revised Rules on Evidence)
are also admissible if presented in court. In
concrete terms, the source mmust be
shown to be original, and not secondary.
(Ibid.)
3.
When the original consists of numerous
accounts
The fact sought to be established from
them is only the general result of the
whole. (Sec. 7, Rule 130, 2019 Amendments
to the Revised Rules on Evidence)
NOTE: Voluminous records must be made
accessible to the adverse party so that the
correctness of the summary of the voluminous
records may be tested on cross-examination.
(Compaña Maritima v. Allied Free Workers Union, et
al., G.R. No. L-28999, May 24, 1977)
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. (Sec. 7,
Rule 130, 2019 Amendments to the Revised Rules on
Evidence)
When original document is a public record
(2000 BAR)
When the original of document is in the custody of
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. (Sec. 8, Rule
130, 2019 Amendments to the Revised Rules on
Evidence)
NOTE: A witness may be allowed to offer a
summary of a number of documents, or summary
of the contents may be admitted if documents are
so voluminous and intricate as to make an
examination of all of them impracticable. They may
also be presented in the form of charts or
calculations. (Riano, 2019)
Proof of the contents if the original document is
a public record
Requisites for the admissibility of secondary
evidence when the original consists of
numerous accounts
The contents may be proved by:
1.
1.
2.
A certified copy issued by the public officer
in custody thereof (Sec. 8, 2019
Amendments to the Revised Rules on
Evidence); and
2. Official publication. (Herrera, 1999)
The original must consist of numerous
accounts or other documents;
They cannot be examined in court without
great loss of time or inconvenient
(Riguera, 2020 citing Republic v. Mupas,
G.R. No. 181892, September 8, 2015);
NOTE: Public records are generally not to be
removed from the places where they are recorded
and kept. Hence, proof of the contents of a
document which forms part of a public record may
be done by secondary evidence.
NOTE: The court may admit a summary of
voluminous original documents, in lieu of
the original documents, if the party has
shown that the underlying writings are
numerous
and
that
an
in-court
examination of these documents would be
inconvenient. The rule does away with
item-by-item court identification and
authentication of voluminous exhibits
which would only be burdensome and
tedious for the parties and the court.
When a document produced is not offered in
evidence
If the party who calls for the production of a
document does not offer the same in evidence, no
unfavorable inference may be drawn from such
failure. This is because a party who calls for the
production of a document is not required to offer it.
(Sec. 9, Rule 130, 2019 Amendments to the Revised
Rules on Evidence)
However, as a condition precedent to the
admission of a summary of numerous
documents, the proponent must lay a
proper foundation for the admission of the
original documents on which the summary
is based. The proponent must prove that
the source documents being summarized
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
Production of documents under Sec. 9, Rule 130
v. Rule 27 (Modes of Discovery)
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SEC. 9, RULE 130
Procured
by
mere
notice to the adverse
party, which is a
condition precedent for
the
subsequent
introduction
of
secondary evidence by
the proponent.
RULE 27
The
production
of
document is in the
nature of a mode of
discovery and can be
sought only by proper
motion in the trial court
and is permitted only
upon good cause shown.
Presupposes that the
document
to
be
produced is intended as
evidence
for
the
proponent
who
is
presumed
to
have
knowledge
of
its
contents.
Contemplates
a
situation wherein the
document is either
assumed to be favorable
to
the
party
in
possession thereof or
that the party seeking
its production is not
sufficiently informed of
the contents of the
same.
Information generated, sent, received, or stored by
electronic, optical or similar means. (Sec. 1[f], Rule
2, A.M. No. 01-07-01-SC)
Electronic documents as functional equivalent
of paper-based documents
Whenever a rule of evidence refers to the term of
writing,
document,
record,
instrument,
memorandum or any other form of writing, such
term shall be deemed to include an electronic
document. (Sec. 1, Rule 3, A.M. No. 01-07-01-SC)
Admissibility
1.
2.
It must comply with the rules on
admissibility prescribed by the Rules of
Court and related laws; and
If must be authenticated in the manner
prescribed by these Rules.
Privileged communication
RULES ON ELECTRONIC EVIDENCE
(A.M. No. 01-7-01 SC)
Effectivity Date: August 1, 2001
The confidential character of a privileged
communication is not denied solely on the ground
that it is in the form of an electronic document.
ELECTRONIC DOCUMENT (2012 BAR) AND
ELECTRONIC DATA MESSAGE
Electronic
Document
Data
Message
vs.
Electronic
Electronic document
1.
2.
ELECTRONIC DATA
MESSAGE
Information
generated,
sent,
received or stored by
electronic, optical or
similar means.
Information or the representation of
information, data, figures, symbols or
other modes of written expression,
described or however represented, by
which a right is established, or an
obligation extinguished, or by which a fact
may be proved and affirmed, which is
received, recorded, transmitted, stored
processed,
retrieved
or
produced
electronically; and
It includes digitally signed documents and
any print-out or output, readable by sight
or other means, which accurately reflects
the electronic data message or electronic
document. (Sec. 1[h], Rule 2, A.M. No. 0107-01-SC)
For the document to be deemed electronic, it is
important that it be received, recorded,
transmitted, stored, processed, retrieved, or
produced electronically. The Rule does not
absolutely require that that the electronic
document be initially generated or produced
electronically. (Riano, 2016)
ELECTRONIC
DOCUMENT
Information or the
representation
of
information,
data,
figures, symbols or
other modes of written
expression, described
or
however
represented, by which
a right is established
or
an
obligation
extinguished, or by
which a fact may be
proved and affirmed,
which is received,
recorded, transmitted,
stored,
processed,
retrieved or produced
electronically.
It includes digitally
signed documents.
While "data message" has reference to information
electronically sent, stored or transmitted, it does not
necessarily mean that it will give rise to a right or
extinguish an obligation, unlike an electronic
document. Evident from the law, however, is the
legislative intent to give the two terms the same
Electronic data message
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REMEDIAL LAW
construction. (MCC Industrial Sales Corporation v.
Ssangyong Corporation, G.R. No. 170633, October 17,
2007)
1.
2.
Related Jurisprudence
The terms "electronic data message" and
"electronic document," as defined under the
Electronic Commerce Act of 2000, do not include
a facsimile transmission. Accordingly, a facsimile
transmission cannot be considered as electronic
evidence. It is not the functional equivalent of an
original under the Best Evidence Rule and is not
admissible as electronic evidence. (Torres v.
PAGCOR, G.R. No. 193531, December 14, 2011)
A genuine question is raised as to the
authenticity of the original; or
In the circumstances, it would be unjust or
inequitable to admit a copy in lieu of the
original. (Sec. 2, Rule 4, A.M. No.01-07-01SC)
In Maliksi v. COMELEC, G.R. No. 203302, April 11,
2013, the Supreme Court ruled that the picture
images of the ballots are electronic documents that
are regarded as the equivalents of the original
official ballots themselves. Citing Vinzons-Chato v.
House of Representatives Electoral Tribunal, the
Court held that "the picture images of the ballots,
as scanned and recorded by the PCOS, are likewise
‘official ballots’ that faithfully capture in electronic
form the votes cast by the voter, as defined by
Section 2(3) of R.A. No. 9369. As such, the printouts
thereof are the functional equivalent of the paper
ballots filled out by the voters and, thus, may be
used for purposes of revision of votes in an
electoral protest."
What differentiates an electronic document from a
paper-based document is the manner by which the
information is processed. By no stretch of the
imagination can a person’s signature affixed
manually
be
considered
as
information
electronically received, recorded, transmitted,
stored, processed, retrieved or produced. Hence,
the argument that since the paper printouts were
produced through an electronic process, then these
photocopies are electronic documents as defined in
the Rules on Electronic Evidence is obviously an
erroneous, if not preposterous, interpretation of
the law. (NPC v. Codilla, G.R. No. 170491, April 4,
2007)
That the two documents—the official ballot and its
picture
image—are
considered
"original
documents" simply means that both of them are
given equal probative weight. In short, when either
is presented as evidence, one is not considered as
weightier than the other.
PROBATIVE VALUE OF ELECTRONIC
DOCUMENTS OR EVDENTIARY WEIGHT;
METHOD OF PROOF
Original of an electronic document
An electronic document shall be regarded as the
equivalent of an original document under the Best
Evidence Rule if it is a printout or output readable
by sight or other means, shown to reflect the data
accurately. (Sec. 1, Rule 4, A.M. No.01-07-01-SC)
Burden of proving authenticity
The person offering the document has the burden
to prove its authenticity. (Sec. 1, Rule 5, A.M. No.0107-01-SC)
Copies as equivalents of the originals
Evidentiary weight of electronic documents;
Factors for assessing evidentiary weight
GR: Copies or duplicates shall be regarded as the
equivalent of the original when:
1.
1.
2.
A document is in two or more copies
executed at or about the same time with
identical contents; or
It is a counterpart produced by the same
impression as the original, or from the
same matrix, or by mechanical or
electronic re-recording, or by chemical
reproduction, or by other equivalent
techniques
which
are
accurately
reproduces the original. (Sec. 2, Rule 4, A.M.
No.01-07-01-SC)
2.
3.
XPNs:
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
The reliability of the manner or method in
which it was generated, stored or
communicated, including but not limited
to input and output procedures, controls,
tests and checks for accuracy and
reliability of the electronic data message
or document, in the light of all the
circumstances as well as any relevant
agreement;
The reliability of the manner in which its
originator was identified;
The integrity of the information and
communication system in which it is
recorded or stored, including but not
limited to the hardware and computer
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Evidence
4.
5.
6.
programs or software used as well as
programming errors;
The familiarity of the witness or the
person who made the entry with the
communication and information system;
The nature and quality of the information
which went into the communication and
information system upon which the
electronic data message or electronic
document was based; or
Other factors which the court may
consider as affecting the accuracy or
integrity of the electronic document or
electronic data message. (Sec. 1, Rule 7,
A.M. No.01-07-01-SC)
Manner of
documents
1.
2.
3.
authentication
of
electronic
By evidence that it had been digitally
signed by the person purported to have
signed the same;
By evidence that other appropriate
security procedures or devices as may be
authorized by the Supreme Court or by
law for authentication of electronic
documents were applied to the document;
or
By other evidence showing its integrity
and reliability to the satisfaction of the
judge. (Sec. 2, Rule 5, A.M. No.01-07-01-SC)
NOTE: The above-mentioned requirements will
only apply when the document is a private
document and the same is offered as an authentic
document. (Riano, 2016)
Affidavit of evidence
All matters relating to the admissibility and
evidentiary weight of an electronic document may
be established by an affidavit stating facts of direct
personal knowledge of the affiant or based on
authentic records. The affidavit must affirmatively
show the competence of the affiant to testify on the
matters contained therein. (Sec. 1, Rule 9, A.M.
No.01-07-01-SC)
Manner of
signatures
1.
2.
3.
NOTE: Cross-examination of the deponent is
allowed as a matter of right by the adverse party.
(Sec. 2, Rule 9, A.M. No.01-07-01-SC)
ELECTONIC DOCCUMENTS AND THE HEARSAY
RULE
authentication
of
electronic
By evidence that a method or process was
utilized to establish a digital signature and
verify the same;
By any other means provided by law; or
By any other means satisfactory to the
judge as establishing the genuineness of
the electronic signature. (Sec. 2, Rule 6,
A.M. No.01-07-01-SC)
AUDIO, PHOTOGRAPHIC, VIDEO AND
EPHEMERAL EVIDENCE
Inapplicability of the hearsay rule
A memorandum, report, record or data compilation
of acts, events, conditions, opinions, or diagnoses,
made by electronic, optical or other similar means
at or near the time of or from transmission or
supply of information by a person with knowledge
thereof, and kept in the regular course or conduct
of a business activity, and such was the regular
practice to make the memorandum, report, record,
or data compilation by electronic, optical or similar
means, all of which are shown by the testimony of
the custodian or other qualified witnesses, is
excepted from the rule on hearsay evidence. (Sec. 1,
Rule 8, A.M. No.01-07-01-SC)
Audio, video, and similar evidence
Audio, photographic and video evidence of events,
acts or transactions shall be admissible provided it
shall be shown, presented or displayed to the court
and shall be identified, explained or authenticated
by the person who made the recording or by some
other person competent to testify on its accuracy.
(Sec. 1, Rule 11, A.M. No.01-07-01-SC)
Ephemeral electronic communication
Telephone conversations, text messages, chatroom
sessions, streaming audio, streaming video, and
other electronic forms of communication the
evidence of which is not recorded or retained. (Sec.
1[k], Rule 2, A.M. No.01-07-01-SC)
NOTE; The presumption provided for in Sec. 1,
Rule 8 may be overcome by evidence of the
untrustworthiness of the source of information or
the method or circumstances of the preparation,
transmission or storage. (Sec. 2, Rule 8, A.M. No.0107-01-SC)
Under Section 2, Rule 11 of the Rules on Electronic
Evidence, ephemeral electronic communications
shall be proven by the testimony of a person who
was a party to the same or who has personal
knowledge thereof. In this case, complainant who
AUTHENTICATION OF ELECTRONIC
DOCUMENTS AND ELECTRONIC SIGNATURES
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REMEDIAL LAW
was the recipient of said messages and therefore
had personal knowledge thereof testified on their
contents and import. Respondent herself admitted
that the cellphone number reflected in
complainant’s cellphone from which the messages
originated was hers. Moreover, any doubt
respondent may have had as to the admissibility of
the text messages had been laid to rest when she
and her counsel signed and attested to the veracity
of the text messages between her and complainant.
It is also well to remember that in administrative
cases, technical rules of procedure and evidence
are not strictly applied. There is no doubt as to the
probative value of the text messages as evidence in
determining the guilt or lack thereof of respondent.
(Nuez v. Cruz-Apao, A.M. No. CA-05-18-P, April 12,
2005; Vidallon-Magtolis v. Salud, A.M. No. CA-05-20P, Septembeer 9, 2005)
When the parties have reduced their agreement in
writing it is presumed that they made such writing
as the repository of all terms of the agreement, and
whatever is not found in the said writing must be
considered as waived and abandoned. (Tan, 2010)
Condition
precedent
and
a
condition
subsequent established by parol evidence
Condition precedent may be established by parol
evidence because there is no varying of the terms
of the written contract by extrinsic agreement
because there is no contract in existence. There is
nothing in which to apply the excluding rule.
Conditions subsequent may not be established by
parol evidence since a written contract already
exists.
By analogy, a deleted Facebook post may be
admitted
as
an
ephemeral
electronic
communication subject to the exclusionary rule of
whether it was illegally obtained or not.
NOTE: The present rule now requires that the
admissibility of subsequent agreements be
conditioned upon its being put in issue. (Sec. 10,
Rule 130, 2019 Amendments to the Revised Rules on
Evidence)
PAROL EVIDENCE RULE
APPLICATION OF THE PAROL EVIDENCE RULE
MEANING OF THE RULE
Requisites for the application of the rule
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-ininterest, no evidence of such terms other than the
contents of the written agreement. (Sec. 10, Rule
130, 2019 Amendments to the Revised Rules on
Evidence)
1.
2.
3.
4.
NOTE: Among the evidentiary rules, it is the parol
evidence rule that has direct application to the law
on contracts. The rule applies only to contracts
which the parties have decided to set forth in
writing. Hence, parol evidence does not apply to
oral contracts. (Riano, 2016)
Parties should be privies to the contract
The parol evidence rule does not apply, and may
not be properly invoked, by either party to the
litigation against the other, where at least one
party to the suit is not a party or privy of a party to
the written instrument in question and does not
base a claim or assert a right originating in the
instrument of the relation established thereby.
Thus, if one of the parties to the case is a complete
stranger to the contract involved therein, he is not
bound by this rule and can introduce extrinsic
evidence against the efficacy of the writing.
(Lechugas v. CA, et al., G.R. Nos. L-39972 & L-40300,
August 6, 1986)
Parol evidence
It is any evidence aliunde (extrinsic evidence)
which is intended or tends to vary or contradict a
complete and enforceable agreement embodied in
a document (Regalado, 2008). It may refer to
testimonial, real or documentary evidence.
NOTE: Parol evidence is evidence outside of the
agreement of the parties while the parol evidence
rule prevents the presentation of such parol
evidence.
Application of the rule to wills
The parol evidence rule applies to agreements, i.e.,
contractual obligations. However, the term
“agreement” includes wills. Therefore, there can be
no evidence of the terms of the will other than the
Rationale for the adoption of the parol evidence
rule (2009 BAR)
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
There must be a valid contract;
The terms of the agreement must be
reduced to writing. The term “agreement”
includes wills;
The dispute is between the parties or their
successors-in-interest; and
There is dispute as to the terms of the
agreement.
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Evidence
contents of the will itself. (Riano, 2016)
meaning
uncertain.
NOTE: While parol evidence applies to wills, an
express trust concerning an immovable or any
interest therein may not be proved by parol
evidence. (Art. 1443, Civil Code of the Philippines)
Curable
evidence
aliunde.
by
WHEN PAROL EVIDENCE CAN BE INTRODUCED
Exceptions to Parol Evidence Rule
A party may present evidence to modify, explain or
add to the terms of the written agreement if he or
she puts in issue in a verified pleading the
following: (FIVE)
1. Failure of the written agreement to
express the true intent of the parties
thereto (2001 BAR);
2. Intrinsic
ambiguity,
mistake
or
imperfection in the written agreement;
3. Validity of the written agreement; or
4. Existence of other terms agreed to by the
parties or their successors in interest after
the execution of the written agreement.
(Sec. 10, Rule 130, 2019 Amendments to the
Revised Rules on Evidence)
Where
the
document
refers to a
particular
person
or
thing
but
there are two
or
more
persons
having
the
same name or
two or more
things
to
which
the
description in
the
writing
may apply.
Mistake
The mistake contemplated is one which is a
mistake of fact mutual to both parties. (Bernardo,
2008, citing Gurango vs. IAC, G.R. No. 75290,
November 4, 1992)
Even when a document appears on its face to be a
sale, the owner of the property may prove that the
contract is really a loan with mortgage by raising as
an issue the fact that the document does not
express the true intent of the parties. In this case,
parol evidence then becomes competent and
admissible to prove that the instrument was in
truth and in fact given merely as a security for the
repayment of a loan. (Madrigal v. CA, G.R. No.
142944. April 15, 2005)
EXTRINSIC
OR PATENT
Ambiguity is
apparent on
the face of the
writing
and
requires that
something be
added to make
the meaning
certain.
Curable
evidence
aliunde.
by
Use of terms
such as “dollars”
“tons”
and
“ounces.”
Failure of the written agreement to express
true intent of the parties
Parol evidence may be admitted to show the true
consideration of the contract, or the want or
illegality thereof, or the incapacity of the parties, or
the fact that the contract was fictitious or
absolutely simulated, or that there was fraud in
inducement (Regalado, 2008). Despite the meeting
of the minds, the true agreement of the parties is
not reflected in the instrument. (Riano, 2016)
Kinds of ambiguities
INTRINSIC
OR LATENT
On its face, the
writing
appears clear
and
unambiguous
but there are
collateral
matters which
make
the
Cannot
be
cured
by
evidence
aliunde
because it is
only intrinsic
ambiguity not
extrinsic
ambiguity
which serves
as
an
exception to
the
parol
evidence rule.
Where
the
contract
refers to an
unidentified
grantee
or
does
not
particularly
identify
the
subject matter
thereof such
that, in either
case the text
does
not
disclose who
are or what is
referred to.
NOTE: In an action for reformation of instrument
under Art. 1359 of the Civil Code of the Philippines,
the plaintiff may introduce parol evidence to show
the real intention of the parties. An action for
reformation presupposes that a meeting of the
minds exists between the parties, i.e., there is a
contract between them although the instrument
that evidences the contract does not reflect the
true agreement of the parties by reason of, for
instance, fraud or mistake. (Riano, 2016)
INTERMEDIATE
Ambiguity
consists in the
use of equivocal
words
susceptible
of
two or more
interpretation.
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Q: Paula filed a complaint against Lynette for
the recovery of a sum of money based on a
promissory note executed by the latter. Paula
alleged in her complaint that although the
promissory note says that it is payable within
120 days, the truth is that the note is payable
immediately after 90 days but that if Paula is
willing, she may, upon request of Lynette give
the latter up to 120 days to pay the note. During
the hearing, Paula testified that the truth is that
the agreement between her and Lynette is for
the latter to pay immediately after 90 days
time. Also, since the original note was with
Lynette and the latter would not surrender to
Paula the original note which Lynette kept in a
place about one day's trip from where she
received the notice to produce the note and in
spite of such notice to produce the same within
6 hours from receipt of such notice, Lynette
failed to do so. Paula presented a copy of the
note which was executed at the same time as
the original and with identical contents. Over
the objection of Lynette, will Paula be allowed
to testify as to the true agreement or contents
of the promissory note? Why? (2001 BAR)
Can be invoked by any
party to an action
whether
he
has
participated
in
the
writing involved
Can be invoked only
when the controversy is
between the parties to
the written agreement,
their privies, or any
party affected thereby
like a cestui que trust
Waiver of the parol evidence rule
Failure to invoke the benefits of the rule
constitutes as waiver of the rule. Inadmissible
evidence may be rendered admissible by failure to
object. (Riano, 2016)
Probative value
Even if the parol evidence is admitted, it does not
mean that the court would give probative value to
the parol evidence. Admissibility is not the
equivalent of probative value or credibility. (Riano,
2016)
Considering the agreement’s mistake, imperfection
or supposed failure to express the parties’ true
intent was successfully put in issue in the
complaint, this case falls under the exceptions
provided by Sec 9, Rule 130. Accordingly, the
testimonial and documentary parol evidence
sought to be introduced, which attest to these
supposed flaws and what they aver to have been
the parties’ true intent, may be admitted and
considered. However, this admission and
availability for consideration is no guarantee of
how exactly the parol evidence adduced shall be
appreciated by the court. They do not guarantee
the probative value, if any, that shall be attached to
them. (Paras v. Kimwa Construction and
Development Corp., G.R. No. 171601, April 8, 2015)
A: YES. As an exception to the parol evidence rule,
a party may present evidence to modify, explain or
add to the terms of the written agreement if he
puts in issue in his pleading the failure of the
written agreement to express the true intent and
agreement of the parties thereto. Here, Paula has
alleged in her complaint that the promissory note
does not express the true intent and agreement of
the parties. The parol evidence rule may be
admitted to show the true consideration of the
contract. (Sec. 10, Rule 130, 2019 Amendments to
the Revised Rules on Evidence)
DISTINCTIONS BETWEEN
THE ORIGINAL DOCUMENT RULE AND
THE PAROL EVIDENCE RULE
AUTHENTICATION AND PROOF OF DOCUMENTS
MEANING OF AUTHENTICATION
ORIGINAL DOCUMENT
RULE
The original document is
not available or there is
a dispute as to whether
said writing is original
Prohibits
the
introduction
of
secondary evidence in
lieu of the original
document regardless of
whether it varies the
contents of the original
Applies to all kinds of
writings
PAROL EVIDENCE
RULE
Presupposes that the
original document is
available in court
It is the process of proving the due execution and
genuineness of a document.
NOTE: Not only objects but also documents
introduced in evidence need to be authenticated. It
is a preliminary step in showing the admissibility
of an evidence. (Riano, 2016)
Prohibits the varying of
the terms of a written
agreement
When authentication is NOT required
1.
2.
Applies only to written
agreements (contracts)
and wills
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
The writing is an ancient document (Sec.
21, Rule 132);
The writing is a public document or record
(Sec. 19, Rule 132);
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NOTE: A private document required by law to
be recorded, while it is transformed into a
public document by the “public record”
thereof, is not included in this enumeration.
Such recording does not make the private
writing itself a public document so as to make
it admissible without authentication, e,g. birth
certificate recorded in the NSO is a public
record, but it is still a private document.
(Peralta & Peralta, 2020, citing Herrera)
3.
4.
5.
6.
7.
3. Documents that are
considered public
documents under
treaties
and
conventions which
are
in
force
between
the
Philippines and the
country of source;
and
4. Public records, kept
in the Philippines, of
private documents
required by law to
be entered therein.
(Sec. 19, Rule 132,
2019 Amendments
to the Revised Rules
on Evidence)
As to authenticity and admissibility as evidence
Admissible as evidence Before any private
without need of further document offered as
proof of its genuineness authentic is received in
and due execution
evidence,
its
due
execution
and
authenticity must first
be proved.
The writing is a notarial document
acknowledged, proved or certified (Sec. 30,
Rule 132);
The genuineness and authenticity of an
actionable document have not been
specifically denied under oath by an
adverse party (Sec 8, Rule 8, 2019
Amendments to the Revised Rules on
Evidence);
When such genuineness and due execution
are immaterial to the issue;
The genuineness and authenticity of the
document have been admitted (Sec 4, Rule
129, 2019 Amendments to the Revised Rules
on Evidence); and
The document is not being offered as
genuine. (Sec. 20, Rule 132, 2019
Amendments to the Revised Rules on
Evidence)
As to persons bound
Evidence even against Binds only the parties
third persons, of the fact who executed them or
which gave rise to its their privies, insofar as
due execution and to due execution and date
the date of the latter
of the document are
concerned
As to validity of certain transactions
Certain
transactions
must be contained in a
public
document;
otherwise they will not
be given any validity.
CLASSES OF DOCUMENTS
For purposes of their presentation in evidence,
documents are either public or private. (Sec. 19,
Rule 132, 2019 Amendments to the Revised Rules on
Evidence)
Public document vs. Private document
PUBLIC DOCUMENT
PRIVATE DOCUMENT
What comprises it
1. The written official All other writings are
acts, or records of private. (Sec. 19, Rule
the official acts of 132, 2019 Amendments
the
sovereign to the Revised Rules on
authority,
official Evidence)
bodies
and
tribunals,
and
public
officers,
whether of the
Philippines, or of a
foreign country;
2. Documents
acknowledged
before a notary
public except last
wills
and
testaments;
NOTE: Church registries of births, marriages and
deaths are no longer public writings nor are they
kept by duly authorized public officials. They are
private writings and their authenticity must
therefore be proved, as are all other private
writings in accordance with the rules. (Llemos v.
Llemos, G.R. No. 150162, January 26, 2007)
WHEN A PRIVATE WRITING REQUIRES
AUTHENTICATION; PROOF OF A PRIVATE
WRITING
How to prove the due execution
authenticity of a private document
and
Before any private document offered as authentic
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NOTE: Ancient documents are considered
from proper custody if they come from a
place from which they might reasonably
be expected to be found. Custody is proper
if it is proved to have had a legitimate
origin or if the circumstances of the
particular case are such as to render such
an origin probable. If a document is found
where it would not properly and natural
be, its absence from the proper place must
be satisfactorly accounted for.
is received in evidence, its due execution and
authenticity must be proved by any of the
following means:
1.
2.
3.
By anyone who saw the document
executed or written;
By evidence of the genuineness of the
signature or handwriting of the maker; or
By other evidence showing its due
execution and authenticity,
Any other private document need only be
identified as that which it is claimed to be. (Sec. 20,
Rule 132, 2019 Amendments to the Revised Rules on
Evidence)
The requirement of proper custody was
met when the ancient document in
question was presented in court by the
proper custodian thereof who is an heir or
the person who woul naturally keep it.
(Cerado-Siga v. Cerado, Jr., G.R. No. 185374,
March 11, 2015)
Related jurisprudence
In addition to the modes of authenticating a private
document under Sec. 20, Rule 132 of the 2019
Amendments to the Revised Rules on Evidence,
American jurisprudence also recognizes the
doctrine of self-authentication – where the facts
in writing could only have been known by the
writer; and the rule of authentication by the
adverse party – where the reply of the adverse
party refers to and affirms the sending to him and
his receipt of the letter in question, a copy of which
the proponent is offering as evidence. (Regalado,
2008)
3.
That it is unblemished by any alteration or
circumstances of suspicion. (Sec. 21, Rule
132, 2019 Amendments to the Revised Rules
on Evidence)
NOTE: This rule applies only if there are no other
witnesses to determine authenticity.
GENUINENESS OF HANDWRITING
Handwriting may be proved by:
WHEN EVIDENCE OF AUTHENTICITY OF A
PRIVATE WRITING IS NOT REQUIRED
1.
1.
2.
2.
3.
4.
When the private document is more than
thirty
(30)
years
old
(ancient
document/authentic document rule)
(Sec. 21, Rule 132, 2019 Amendments to the
Revised Rules on Evidence);
When the genuineness and authenticity of
an actionable document have not been
specifically denied under oath by the
adverse party;
When the genuineness and authenticity of
the document have been admitted; and
When the document is not offered as
authentic as implied. (Patula v. People, G.R.
No. 164457, April 11, 2012)
3.
4.
NOTE: The law makes no preference, much less
distinction among and between the different
means stated above in proving the handwriting of a
person. Courts are not bound to give probative
value or evidentiary value to the opinions of
handwriting experts, as resort to handwriting
experts is not mandatory. (Heirs of Salud v. Rural
Bank of Salinas, G.R. No. 202756, April 6, 2016)
Requisites of ancient document/authentic
document rule (2011 BAR)
1.
2.
That the private document be more than
30 years old;
That it be produced from a custody in
which it would naturally be found if
genuine; and
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
A witness who actually saw the person
writing the instrument;
A person who is familiar or has acquired
knowledge of the handwriting of such
person, his opinion as to the handwriting
being an exception to the opinion rule;
A comparison by the court of the
questioned handwriting from the admitted
genuine specimens thereof; or
An expert witness. (Secs. 20 & 22, Rule 132;
Sec. 52, Rule 130, 2019 Amendments to the
Revised Rules on Evidence)
Comparison as a mode of authentication
Use of comparison technique to establish
authenticity actually involves two (2) levels of
authentication, i.e., authentication of the specimen
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and authentication of the offered exhibit. In order
to establish the requisite connective relevance, the
item or document in question must be compared
with an item the authenticity of which has been
demonstrated. Authenticity of the specimen, then,
is a logical prerequisite to the procedure. (Peralta
& Peralta, 2020)
NOTE: Public or official records of entries made in
excess of official duty are not admissible in
evidence. As to matters which the officer is not
bound to record, his certificate, being extrajudicial,
is merely the statement of a private person.
The testimony of a handwriting expert is not
indispensable to the examination or the
comparison of handwritings in cases of forgery.
The judge must conduct an examination of the
questioned signature in order to arrive at a
reasonable conclusion as to its authenticity. The
opinions of handwriting experts are not binding
upon courts, especially when the question involved
is mere handwriting similarity or dissimilarity,
which can be determined by a visual comparison of
specimens of the questioned signatures with those
of the currently existing ones. (Pontaoe v. Pontaoe,
G.R. Nos. 159585 & 165318, April 22, 2008)
The CENRO and Regional Technical Director, FMSDENR, certifications do not fall within the class of
public documents contemplated in the first
sentence of Section 23 of Rule 132. The
certifications do not reflect entries in public
records made in the performance of a duty by a
public officer, such as entries made by the Civil
Registrar in the books of registries, or by a ship
captain in the ships logbook. The certifications are
conclusions unsupported by adequate proof, and
thus have no probative value. Certainly, the
certifications cannot be considered prima facie
evidence of the facts stated therein. (Republic v.
T.A.N. Properties Inc., G.R. No. 154953, June 26,
2008)
Related jurisprudence
It is also hornbook doctrine that the opinions of
handwriting experts, even those from the NBI and
the PC, are not binding upon courts. This principle
holds true especially when the question involved is
mere handwriting similarity or dissimilarity, which
can be determined by a visual comparison of
specimens of the questioned signatures with those
of the currently existing ones. (Multi-International
Business Data System, Inc. v. Martinez, G.R. No.
175378, November 11, 2015)
Q: G&S Transportation submits that the USAID
Certification being a private document cannot
be admitted as evidence since it is inadmissible
and was not properly authenticated nor
identified in court by the signatory thereof. The
opposing party contends that the USAID
Certification is a public document and was
properly admitted in evidence, because Jose
Marcial’s widow, witness Ruby Bueno Ochoa,
was able to competently testify as to the
authenticity and due execution of the said
Certification and that the signatory Jonas Cruz
personally issued and handed the same to her.
The court ruled that the USAID Certification is a
public document. Is the court’s ruling correct?
Handwriting experts are usually helpful in the
examination of forged documents because of the
technical procedure involved in analyzing them.
But resort to these experts is not mandatory or
indispensable to the examination or the
comparison of handwriting. A finding of forgery
does not depend entirely on the testimonies of
handwriting experts, because the judge must
conduct an independent examination of the
questioned signature in order to arrive at a
reasonable conclusion as to its authenticity. (Ibid.)
Public documents as evidence
A: YES. The USAID Certification is a public
document, hence, does not require authentication.
Sec. 19 (a), Rule 132 of the Rules of Court provides
that public documents are the written official acts,
or records of the official acts of the sovereign
authority, official bodies and tribunals, and public
officers, whether of the Philippines, or of a foreign
country.
When a public officer in the performance of his or
her duty makes an entry in the public record, the
document of such entry is deemed prima facie
evidence of the facts stated in the entry. (Sec. 24,
Rule 132, 2019 Amendments to the Revised Rules on
Evidence) Its probative value may either be
substantiated or nullified by other competent
evidence.
Here, USAID is an official government agency of a
foreign country, the United States. The authenticity
and due execution of said Certification are already
presumed. The USAID Certification could very well
be used as basis for the award for loss of income to
the heirs. (Heirs of Jose Marcial Ochoa v. G & S
Transport Corporation, G.R. No. 170071, July 16,
2012)
PUBLIC DOCUMENTS AS EVIDENCE
PROOF OF OFFICIAL RECORD
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Official records are written official acts, or records
of the official acts of the sovereign authority,
official bodies and tribunals, and public officers,
e.g. a written foreign law. Official records may be
evidenced by:
1.
If it is within the Philippines:
a.
b.
2.
equivalent being prima facie evidence of the due
execution and genuineness of the document
involved. The certificate shall not be required when
or convention between a foreign country and the
Philippines has abolished the requirement or has
exempted the document itself from this formality.
NOTE: Upon failure to comply with the abovementioned requirements, courts will apply the
doctrine of processual presumption.
An official publication thereof; or
By a copy attested by the officer
having the legal custody of the record,
or by his deputy. (Sec. 24, Rule 132,
2019 Amendments to the Revised Rules
on Evidence)
Q: Ellen Harper and her son, Jonathan Harper
filed a case for damages against Shangri-La
Hotel and Resort, Inc. for the death of Christian
Harper. To prove heirship of the plaintiffsappellees, they presented several documents
(Birth Certificates, Marriage Certificate, and
Certificate from the Oslo Probate Court) which
were all kept in Norway. The documents had
been authenticated by the Royal Norwegian
Ministry of Foreign Affairs and bore the official
seal of the Ministry and signature of one Tanja
Sorlie. The documents were also accompanied
by an Authentication by the Consul, Embassy of
the Republic of the Philippines in Stockholm,
Sweden to the effect that, Tanja Sorlie was duly
authorized to legalize official documents for the
Ministry. Shangri-La Hotel however, questioned
their filiation with the deceased assailing that
the documents presented were incompetent for
failing to comply with the requirement of
authentication. Is the contention correct?
If the office in which the record is kept is in
a foreign country,
a.
b.
An official publication thereof; or
By a copy attested by the officer
having the legal custody of the record,
or by his deputy AND a certificate that
such officer has the custody. (Apostille
Certificate or its equivalent) (Sec. 24,
Rule 132, 2019 Amendments to the
Revised Rules on Evidence)
NOTE: If the office in which the record
is kept is in a foreign country, which is
a contracting party to a treaty or
convention to which the Philippines is
also a party, or considered a public
document under such treaty or
convention pursuant to paragraph (c)
of Section 19, the certificate or its
equivalent shall be in the form
prescribed by such treaty or
convention subject to reciprocity
granted
to
public
documents
originating from the Philippines.
A: NO. Although the documents were not attested
by the officer having the legal custody of the record
or by his deputy in the manner required in Section
25 of Rule 132, and said documents did not comply
with the requirement under Section 24 of Rule 132
to the effect that if the record was not kept in the
Philippines a certificate of the person having
custody must accompany the copy of the document
that was duly attested stating that such person had
custody of the documents, the deviation was not
enough reason to reject the utility of the
documents for the purposes they were intended to
serve.
For documents originating from a
foreign country which is not a
contracting party to a treaty or
convention, the certificate may be
made by a secretary of the embassy or
legation, consul general, consul, viceconsul, or consular agent or by any
officer in the foreign service of the
Philippines stationed in the foreign
country in which the record is kept,
and authenticated by the seal of his or
her office. (Sec. 24, Rule 132, 2019
Amendments to the Revised Rules on
Evidence)
That rules of procedure may be mandatory in form
and application does not forbid a showing of
substantial
compliance
under
justifiable
circumstances, because substantial compliance
does not equate to a disregard of basic rules. For
sure, substantial compliance and strict adherence
are not always incompatible and do not always
clash in discord. (Makati Shangri-La Hotel and
Resort, Inc. v. Harper, G.R. No. 189998, August 29,
2012)
A document that is accompanied by a certificate or
its equivalent may be presented in evidence
without further proof, the certificate or its
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
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written statement must contain the following
matters:
Special power of attorney executed abroad
(2011 BAR)
A special power of attorney (SPA) executed before
a city judge-public notary in a foreign country,
without the certification or authentication required
under Section 25, Rule 132 of the Rules of Court, is
not admissible in evidence in Philippine courts.
The failure to have the SPA authenticated is not a
mere technicality but a question of jurisdiction.
(Riano, 2016 citing Lopez v. CA, G.R. No. 77008,
December 29, 1987)
1.
2.
There has been a diligent search of the
record; and
That despite the diligent search, no record
of entry of a specified tenor is found to
exist in the records of his office.
NOTE: The written statement must be
accompanied by a certificate that such officer has
the custody of official records. (Sec. 28, Rule 132,
2019 Amendments to the Revised Rules on Evidence)
(2003 BAR)
Irremovability of public records
GR: Any public record must not be removed from
the office in which it is kept.
The certification to be issued by the Local Cvil
Registrar must ctegorically state that the document
does not exist in his or her office or the particular
entry could not be found in the register despite
diligent search. (Sevilla v. Cardenas, G.R. No.
167684, July 31, 2006)
XPN: Upon order of a court where the inspection of
the record is essential to the just determination of
a pending case. (Sec. 26, Rule 132, 2019
Amendments to the Revised Rules on Evidence)
HOW A JUDICIAL RECORD IS IMPEACHED
REASON: They have a common repository, from
where they ought not to be removed. Besides, these
records by being daily removed would be in great
danger of being lost.
Impeachment of a judicial record (2009 BAR)
Any judicial record may be impeached by: (WCF)
1.
Want of jurisdiction in the court or judicial
officer;
2. Collusion between the parties (e.g. legal
separation, annulment cases); or
3. Fraud in the party offering the record, in
respect to the proceedings. (Sec. 29, Rule
132, 2019 Amendments to the Revised Rules
on Evidence)
ATTESTATION OF A COPY
The attestation must state, in substance:
1.
2.
That the copy is a correct copy of the
original, or a specific part thereof, as the
case may be; and
It must be under the official seal of the
attesting officer, if there be any, or if he be
the clerk of a court having a seal, under the
seal of such court. (Sec. 25, Rule 132, 2019
Amendments to the Revised Rules on
Evidence)
NOTE: Fraud refers to extrinsic fraud, which is a
ground for annulment of judgment.
Q: Lino was charged with illegal possession of
firearm. During trial, the prosecution
presented in evidence a certification of the PNP
Firearms and Explosives Office attesting that
the accused had no license to carry any firearm.
The certifying officer, however, was not
presented as a witness. Is the certification of
the PNP Firearm and Explosives Office without
the certifying officer testifying on it admissible
in evidence against Lino? (2003 BAR)
PUBLIC RECORD OF A PRIVATE DOCUMENT
Proof of public record of a private document
1.
2.
By the original record; or
By a copy thereof, attested by the legal
custodian of the record, with an
appropriate certificate that such officer
has the custody. (Sec. 27, Rule 132, 2019
Amendments to the Revised Rules on
Evidence)
A: YES. Section 28, Rule 130 provides that “a
written statement signed by an officer having the
custody of an official record or by his deputy that
after diligent search, no record or entry of a
specified tenor is found to exist in the records of
his office, accompanied by a certificate as above
provided, is admissible as evidence that the
PROOF OF LACK OF RECORD
Proof of lack of record of a document consists of
written statement signed by an officer having
custody of an official record or by his deputy. The
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records of his office contain no such record or
entry.”
what they referred as salary above the minimum
required by law. The employer’s mere reliance on
the foregoing affidavit is misplaced because the
requirement of established jurisprudence is for the
employer to prove payment, and not merely deny
the employee’s accusation of nonpayment on the
basis of the latter’s own declaration (Etom Jr. v.
Aroma Lodging House, G.R. No. 192955. November 9,
2015).
The records of the PNP Firearm and Explosives
Office are a public record. Hence, notwithstanding
that the certifying officer was not presented as a
witness for the prosecution, the certification he
made is admissible in evidence against Lino. (Sec.
28, Rule 130; Mallari v. Court of Appeals, G.R. No.
110569, December 9, 1996; Valeroso v. People, G.R.
No. 164815, February 22, 2008)
ALTERATIONS IN A DOCUMENT
A party producing a document as genuine which
has been altered and appears to have been altered
after its execution must account for the alteration.
He or she may show that the alteration: (ACID)
PROOF OF NOTARIAL DOCUMENTS
Notarial documents
Documents acknowledged before a notary public is
considered a public document and enjoy the
presumption of regularity. A notarized document is
entitled to full faith and credit upon its face.
1.
2.
The document may be presented in evidence
without further proof, the certificate of
acknowledgment being prima facie evidence of the
execution of the instrument or document involved.
(Sec. 30, Rule 132, 2019 Amendments to the Revised
Rules on Evidence)
3.
4.
NOTE: Failure to do at least one of the above will
make the document inadmissible in evidence. (Sec.
31, Rule 132)
Evidentiary weight of a notarial document
A notarial document celebrated with all the legal
requisites under a notarial certificate is evidence of
a high character, and to overcome its recitals, it is
incumbent upon the party challenging it to prove
his claim with clear and convincing evidence.
DOCUMENTARY EVIDENCE
IN AN UNOFFICIAL LANGUAGE
Documents written in an unofficial language shall
not be admitted as evidence unless accompanied
with a translation into English or Filipino. (Sec. 33,
Rule 132, 2019 Amendments to the Revised Rules on
Evidence)
Q: Etom, Jr. filed a case for illegal dismissal and
money claims against his employer Aroma
Lodging House. The Labor Arbiter and NLRC
found him to have been legally dismissed but
ordered the employer to pay punitive damages,
salary differential, holiday pay and 13th month
pay. CA reversed the ruling stating that for
having executed an earlier notarized affidavit
stating that he received wages above the
required minimum salary, Etom, Jr. could not
subsequently claim that he was underpaid by
his employer. Is the presumption of regularity
of notarized documents disputable?
The requirement that documents written in an
unofficial language must be accompanied with a
translation in English or Filipino as a prerequisite
for its admission in evidence must be insisted upon
by the parties at the trial to enable the court, where
a translation has been impugned as incorrect, to
decide the issue. Where such document, not so
accompanied with a translation in English or
Filipino, is offered in evidence and not objected to,
either by the parties or the court, it must be
presumed that the language in which the document
is written is understood by all, and the document is
admissible in evidence. (Heirs of Doronio v. Heirs of
Doronio, G.R. No. 169454, December 27, 2007)
A: YES. While a notarized document is presumed to
be regular, such presumption is not absolute and
may be overcome by clear and convincing evidence
to the contrary. The fact that a document is
notarized is not a guarantee of the validity of its
contents. Here, Etom, Jr. is an unlettered employee
who may not have understood the full import of his
statements in the affidavit. Notably, he, along with
a co-worker did not state the specific amount of
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
Was made by another, without his
concurrence;
Was made with the consent of the parties
affected by it;
Was otherwise properly or innocently
made; or
Did not change the meaning or language of
the instrument.
INTERPRETATION OF DOCUMENTS
How interpreted
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The language of a writing is to be interpreted
according to the legal meaning it bears in the place
of its execution, unless the parties intended
otherwise. (Sec. 11, Rule 130, 2019 Amendments to
the Revised Rules on Evidence)
When there
particulars
are
several
provisions
Rule 130, 2019 Amendments to the Revised
Rules on Evidence)
Conflict between written and printed
When an instrument consists partly of written
words and partly of a printed form, and the two are
inconsistent, the written controls the printed form.
(Sec. 16, Rule 130, 2019 Amendments to the Revised
Rules on Evidence)
or
In the construction of an instrument, where there
are several provisions or particulars, such a
construction is, if possible, to be adopted as will
give effect to all. (Sec. 12, Rule 130, 2019
Amendments to the Revised Rules on Evidence)
Conflict between
provision
general
and
When the character of writing is difficult to
decipher
When the characters in which an instrument is
written are difficult to be deciphered, or the
language is not understood by the court, it can be
proved by evidence of:
particular
When a general and a particular provision are
inconsistent, the following rules shall be followed:
1.
2.
1.
The particular provision is paramount to
the general;
A particular intent will control a general
one that is inconsistent with it. (Sec. 13,
Rule 130, 2019 Amendments to the Revised
Rules on Evidence)
2.
Persons skilled in deciphering the
characters; or
Those who understand the language, is
admissible to declare the characters or the
meaning of the language. (Sec. 17, Rule 130,
2019 Amendments to the Revised Rules on
Evidence)
Q: What is the rule in case the terms of an
agreement admit of two (2) interpretations?
Interpretation according to circumstances
A: When the terms of an agreement have been
intended in a different sense by the different
parties to it, it shall be construed as follows, to wit:
The proper construction of an instrument
according to the circumstances shall be as follows:
1.
The circumstances under which it was
made, including the situation of the subject
thereof and of the parties to it, may be
shown;
2. Such circumstances must be shown so that
the judge may be placed in the position of
those who language he or she is to
interpret. (Sec. 14, Rule 130, 2019
Amendments to the Revised Rules on
Evidence)
1. That sense is to prevail against either party
in which he supposed the other understood it;
and
2. When different constructions of a provision
are otherwise equally proper, that is to be
taken which is the most favorable to the party
in whose favor the provision was made. (Sec.
17, Rule 130, 2019 Amendments to the Revised
Rules on Evidence; Tan, 2014)
Presumption on terms of writing
TESTIMONIAL EVIDENCE
The terms of a writing shall be interpreted as
follows:
1.
2.
3.
Testimonial or oral evidence is an evidence elicited
from the mouth of a witness. It is sometimes called
viva voce evidence which literally means “living
voice” or by word of mouth. In this kind of
evidence, a human being (witness) is called to the
stand, is asked questions, and answers the question
asked of him. (Riano, 2016)
It shall be presumed to have been used in
their primary and general acceptation;
Evidence is admissible to show that they
have a local, technical, or otherwise
peculiar signification; and
Evidence is admissible to show that it was
so used and understood in the particular
instance, in which case the agreement
must be construed accordingly. (Sec. 15,
QUALIFICATION OF A WITNESS
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substantiated with clear and convincing evidence;
otherwise, same cannot prevail over the positive
and credible testimonies of the prosecution
witnesses. (Aurelio v. People, G.R. No. 174980,
August 31, 2011)
Who may be a witness
A person may be a witness if he or she:
1.
2.
3.
4.
Can perceive;
Can make known his perceptions to others
(Sec. 21, Rule 130, 2019 Amendments to the
Revised Rules on Evidence);
Must take either an oath or an affirmation;
and
Must
not
possess
any
of
the
disqualifications imposed by law or the
rules. (Riano, 2016)
Presumption of competency of a witness
GR: A person who takes the witness stand, is
presumed to be qualified to testify. A party who
desires to question the competence of a witness
must do so by making an objection as soon as the
facts tending to show incompetency are apparent.
(Jones on Evidence, Vol. 3, Sec. 796)
Factors that do not afftect the competency of a
witness
1.
2.
3.
4.
A prospective witness must show that he has the
following abilities:
Religious belief;
Political belief;
Interest in the outcome of the case; or
Conviction of a crime, unless otherwise
provided by law. (Sec. 21, Rule 130, 2019
Revised Rules on Evidence)
1.
2.
3.
4.
Related jurisprudence
There is no provision of the Rules disqualifying
parties declared in default from taking the witness
stand for non-disqualified parties. (Cavili v.
Florendo, G.R. No. 73039, October 9, 1987)
XPNs: There is prima facie
incompetency in the following:
It is axiomatic that truth is established not by the
number of witnesses but by the quality of their
testimonies. The testimony of a single witness, if
positive and credible, is sufficient to support a
conviction even in a charge of murder.
1.
2.
The number of witnesses does not determine the
outcome of the case. A positive identification will
prevail over the defense of alibi, the latter being
considered as a weaker defense since it can be
easily fabricated. (People v. Gani, G.R. No. 195523,
June 5, 2013)
evidence
of
The fact that a person has been recently
found of unsound mind by a court of
competent jurisdiction; or
That one is an inmate of an asylum. (Torres
v. Lopez, 48 Phil. 772)
Time when the witness must possess the
qualifications
The qualifications and disqualifications of
witnesses are determined as of the time said
witnesses are produced for examination in court or
at the taking of their depositions. (Regalado, 2008)
Drug abuse will not render a person incompetent
to testify. Drug abuse becomes relevant only if the
witness was under the influence of drugs at the
time he is testifying. (Riano, 2016) (2011 BAR)
Burden of proof
The burden is upon the party objecting to the
competency of a witness to establish the ground of
incompetency.
The relationship of a witness with a party does not
ipso facto render him a biased witness in a criminal
case and likewise in a civil case. (Northwest Airlines
v. Chiong, G.R. No. 155550, January 31, 2008)
COMPETENCY vs. CREDIBILITY OF A WITNESS
COMPETENCY
OF WITNESS
Refers to the basic
qualifications
of
a
witness.
Inconsistencies in the testimonies of prosecution
witnesses that do not relate to the elements of the
offense are too inconsequential to warrant a
reversal of the trial court’s judgment of conviction.
Also, the defenses of denial and frame-up must be
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
To observe – The testimonial quality of
perception;
To remember – The testimonial quality of
memory;
To relate – The testimonial quality of
narration; and
To recognize a duty to tell the truth – The
testimonial quality of sincerity. (Herrera,
1999)
CREDIBILITY
OF WITNESS
Refers
to
the
believability
of
a
witness.
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It is a matter of law or a
matter of rule.
It also includes the
absence of any of the
disqualifications
imposed
upon
a
witness.
in the best position to observe their demeanor and
bodily movements. The findings of the trial court
with respect to the credibility of witnesses and
their testimonies are entitled to great respect, and
even finality. (Llanto v. Alzona, G.R. No. 150730,
January 31, 2005)
Refers to the weight and
trustworthiness
or
reliability
of
the
testimony.
XPNs:
1.
GR: Discrepancies between the statements of the
affiant in his affidavit and those made by him or
her on the witness stand do not necessarily
discredit him or her because it is a matter of
judicial experience that an affidavit, being taken ex
parte, is almost always incomplete and often
inaccurate.
2.
XPN: The credibility of witnesses will be impaired
if:
1.
2.
The lower court has reached conclusions
that are clearly unsupported by evidence;
or
It has overlooked some facts or
circumstances of weight and influence
which, if considered, would affect the
result of the case. (People v. Dalag, G.R. No.
129895, April 30, 2003)
NOTE: It is a jurisprudentially conceded rule that it
is against human nature for a young girl to
fabricate a story that would expose herself as well
as her family to a lifetime of shame, especially
when her charge could mean the death or lifetime
imprisonment of her own father. "AAA" was
without doubt telling the truth when she declared
that her father raped her on three separate
occasions. The attempt to discredit the testimony
of "AAA" by the accused deserves no merit. When
credibility is in issue, the Court generally defers to
the findings of the trial court considering that it
was in a better position to decide the question,
having heard the witnesses themselves and
observed their deportment during trial. Here, there
is nothing from the records that would impel this
Court to deviate from the findings and conclusions
of the trial court as affirmed by the CA. (People v.
Ending G.R. No. 183827, November 12, 2012)
The omission in the affidavit refers to a
very important detail of the incident that
one relating the incident as an eyewitness
would not be expected to fail to mention;
or
When the narration in the sworn
statement substantially contradicts the
testimony in court.
The point of inquiry is whether the
omission is important or substantial.
(People v. Calegan, G.R. No. 93846, June 30,
1994)
Credibility of a witness
A testimony must not only come from a credible
witness, but must be credible in itself, tested by
human
experience,
observation,
common
knowledge and accepted conduct that has evolved
through the years. (People v. Mirandilla Jr., G.R. No.
186417, July 27, 2011)
DISQUALIFICATIONS OF WITNESSES
1.
NOTE: Mental unsoundness of the witness which
occurred at the time of taking his testimony, affects
only his credibility. Nevertheless, as long as the
witness can convey ideas by words or signs and
give sufficiently intelligent answers to questions
propounded, she is a competent witness even if she
is feeble-minded or is a mental retardate or is a
schizophrenic. (People v. De Jesus, G.R. No. L-39087,
Apr. 27, 1984; People v. Gerones, G.R. No. 91116, Jan.
24, 1991; People v. Baid, G.R. No. 129667, July 31,
2000)
2.
Disqualification by reason of marriage or
the Marital Disqualification Rule (Sec. 23,
Rule 130, 2019 Amendments to the Revised
Rules on Evidence);
Disqualification by reason of privileged
communication:
a.
b.
c.
d.
e.
Findings on the credibility of a witness
Marital privilege;
Attorney-client privilege;
Doctor-patient privilege;
Minister-penitent privilege; or
Public
officer
as
regards
communications made in official
confidence. (Sec. 24, Rule 130, 2019
Amendments to the Revised Rules on
Evidence)
NOTE: The qualifications and disqualifications of
witnesses are determined as of the time they are
GR: The determination of credibility of witnesses is
properly within the domain of the trial court as it is
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produced for examination in court or at the taking
of the depositions. Blood relationship does not
disqualify a witness. (Bernardo, 2008, citing Angelo
v. CA, G.R. No. 83392, June 26, 1992)
1.
2.
3.
Absolute
disqualification
disqualification
ABSOLUTE
DISQUALIFICATION
The proposed witness is
prohibited to take the
witness stand.
(Herrera, 1999)
Disqualification
by
reason of marriage.
(Sec. 23, Rule 130)
vs.
Relative
RELATIVE
DISQUALIFICATION
The proposed witness is
prohibited to testify
only on certain matters
specified under Secs. 23
and 24 (now only Sec.
24), Rule 130 due to
interest or relationship,
or to privileges of other
parties. (Ibid.)
Disqualification
by
reason of privileged
communication.
(Sec.
24, Rule 130)
4.
Requisites for the applicability of spousal
immunity
1.
2.
3.
Conviction of a crime as a ground for
disqualification
4.
GR: Conviction of a crime is not a ground for
disqualification as a witness. (Sec. 21, Rule 130,
2019 Amendments to the Revised Rules on Evidence)
1.
2.
3.
2.
3.
That the spouse for or against whom the
testimony of the other is offered is a party
to the case;
That the spouses are legally married (valid
until annulled);
That the testimony is offered during the
existence of the marriage; and
That the case is not by one against the
other. (Herrera, 1999)
Exceptions to spousal immunity
XPNs: Otherwise provided by law, such as the
following:
1.
There is identity of interests between
husband and wife;
There is a consequent danger of perjury if
one were to testify for or against the other;
The policy of the law is to guard the
security and confidences of private life,
even at the risk of an occasional failure of
justice, and to prevent domestic disunion
and unhappiness; and
Where there is want of domestic
tranquility, there is danger of punishing
one spouse through the hostile testimony
of the other. (Alvarez v. Ramirez, G.R. No.
143439, October 14, 2005)
Those who have been convicted of
falsification of a document, perjury or false
testimony are prohibited from being
witnesses to a will (Art. 821, NCC);
Those who have been convicted of an
offense involving moral turpitude cannot
be discharged to become a State witness
(Sec. 17, Rule 119; Sec. 10, R.A. 6981); and
Those who fall under the disqualification
provided under Secs. 23 and 24, Rule 130.
4.
5.
Consent is given by the party-spouse;
In a civil case filed by one against the
other;
In a criminal case for a crime committed by
one against the other or the latter’s direct
descendants or ascendants (Sec. 23, Rule
130);
Where the testimony was made after the
dissolution of the marriage (Riano, 2016);
or
Where the spouse-party fails to raise the
disqualification, it is deemed a waiver.
Waiver of spousal immunity
Objections to the competency of a husband or wife
to testify in a criminal prosecution against the
other may be waived as in the case of the other
witnesses generally. Thus, the accused waives his
or her privilege by calling the other spouse as a
witness for him or her. It is also true that objection
to the spouse's competency must be made when he
or she is first offered as witness, and that the
incompetency may be waived by the failure of the
accused to make timely objection to the admission
of the spouse's testimony, although knowing of
such incompetency, and the testimony admitted.
(People v. Francisco, 78 Phil. 694, citing 3 Wharton's
DISQUALIFICATION BY REASON OF MARRIAGE
(MARITAL DISQUALIFICATION/SPOUSAL
IMMUNITY RULE)
During their marriage, the husband or the wife
cannot testify against the other without the
consent of the affected 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 or ascendants. (Sec. 23,
Rule 130, 2019 Amendments to the Revised Rules on
Evidence)
Rationale for the Disqualification
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
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Evidence
Criminal Evidence, 11th Ed., Section 1205, pp. 20602061)
the objection of her husband on the ground of
marital privilege? (2006, 2013 BAR)
Extent of prohibition
A: YES. The marital disqualification rule is aimed at
protecting the harmony and confidences of marital
relations. Hence, where the marital and domestic
relations are so strained that there is no more
harmony to be preserved nor peace and tranquility
which
may
be
disturbed,
the
marital
disqualification no longer applies.
The prohibition extends not only to a testimony
adverse to the spouse but also to a testimony in
favor of the spouse. It also extends to both criminal
and civil cases (Riano, 2016), and not only consists
of utterances but also the production of documents.
(Riano, 2016, citing State v. Bramlet, 114 S. C. 389,
103 S.E. 755)
The act of Bob in setting fire to the house of his
sister-in-law, knowing fully well that his wife was
there, is an act totally alien to the harmony and
confidences of marital relation which the
disqualification primarily seeks to protect. The
criminal act complained of had the effect of directly
and vitally impairing the conjugal relation. (Alvarez
v. Ramirez, G.R. No. 143439, October 14, 2005)
Who can claim spousal immunity
The privilege to object may be claimed only by the
spouse-party and not the other spouse who is
offered as a witness. (Herrera, 1999, citing Ortiz vs.
Arambulo, 8 Phil. 98)
Testimony where spouse is accused with others
Q: Alex and Bianca are legally married. Alex is
charged in court with the crime of serious
physical injuries committed against Carding,
son of Bianca and step-son of Alex. Bianca
witnessed the infliction of the injuries on
Carding by Alex. The public prosecutor called
Bianca to the witness stand and offered her
testimony as an eyewitness. Counsel for Alex
objected on the ground of the marital
disqualification rule under the Rules of Court.
The spouse could testify in a murder case against
the other co-accused who were jointly tried with
the accused-spouse. This testimony cannot,
however, be used against accused-spouse directly
or through the guise of taking judicial notice of the
proceedings in the murder case without violating
the marital disqualification rule, if the testimony is
properly objected. (People v. Quidato, Jr., G.R. No.
117401, October 1, 1998)
1.
2.
Marrying the witness
An accused can effectively “seal the lips” of a
witness by marrying the witness. As long as a valid
marriage is in existence at the time of the trial, the
witness-spouse cannot be compelled to testify –
even where the crime charged is against the
witness’ person, and even though the marriage was
entered into for the express purpose of
suppressing the testimony. (Herrera, 1999, citing
[I] A.L.R. 2d 649)
Is the objection valid?
Will your answer be the same if Bianca’s
testimony is offered in a civil case for
recovery of personal property filed by
Carding against Alex? (2000, 2004 BAR)
A:
1. NO. While neither the husband nor the wife
may testify against each other without the
consent of the affected spouse, one exception is
if the testimony of the spouse is in a criminal
case for a crime committed by one against the
other or the latter’s direct descendants or
ascendants. (Sec. 23, Rule 130) Here, Carding is
the direct descendant of Bianca, the wife of
Alex. Hence, the testimony of Bianca falls
under the exception to the marital
disqualification rule.
Testimony by the estranged spouse
Q: Ivy was estranged from her husband Bob for
more than a year due to Bob’s suspicion that
she was having an affair with Jeff, their
neighbor. Ivy was temporarily living with her
sister in Pasig City. For unknown reasons, the
house of Ivy’s sister was burned, killing the
latter. Ivy survived. Ivy saw her husband in the
vicinity during the incident. Later, Bob was
charged with arson in an Information filed with
the RTC, Pasig City. During the trial, the
prosecutor called Ivy to the witness stand and
offered her testimony to prove that her
husband committed arson. Can Ivy testify over
2.
NO. The marital disqualification rule applies
this time. One of the exceptions to the marital
disqualification rule is when the testimony is
given in a civil case by one spouse against the
other. Here, the case involves a case by Carding
for the recovery of personal property against
Bianca’s spouse Alex.
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1.
DISQUALIFICATION BY REASON OF
PRIVILEGED COMMUNICATIONS
2.
Scope of disqualification
privileged communication
by
reason
of
3.
The disqualification by reason of privileged
communication applies to both civil and criminal
cases except doctor-patient privilege, which is
applicable only in civil cases. Unless waived, the
disqualification under Sec. 24, Rule 130 remains
even after the various relationships therein have
ceased to exist.
4.
Cases when marital privilege is NOT applicable
1.
2.
Who may assert the privilege
The holder of the privilege, authorized persons and
persons to whom privileged communication were
made may assert the privilege. (Herrera, 1999)
3.
Rule on third parties
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.
(Sec. 24, Rule 130, 2019 Amendments to the Revised
Rules on Evidence)
In a civil case by one against the other;
In a criminal case for a crime committed
by one against the other or the latter’s
direct descendants or ascendants (Sec.
24[a], Rule 130); or
Information acquired by a spouse before
the
marriage
even
if
received
confidentially will not fall squarely within
the privilege. (Riano, 2016)
Marital Disqualification vs. Marital Privilege
DISQUALIFICATION
BY REASON OF
MARRIAGE
(SEC. 23)
DISQUALIFICATION
BY REASON OF
MARITAL
PRIVILEGE
(SEC. 24[A])
When can be invoked
Can be invoked only if Can
be
claimed
one of the spouses is a whether the other
party to the action.
spouse is a party to the
action.
Coverage
Includes
facts, Only to confidential
occurrences
or information received
information even prior during the marriage.
to the marriage.
Duration
Applies only if the Can be claimed even
marriage is existing at after the marriage has
the time the testimony been dissolved.
is offered.
Limitations
Constitutes a total Applies
only
to
prohibition
against confidential
any testimony for or communications
against the spouse of between the spouses.
the witness.
(Regalado, 2008)
Can no longer be The spouse affected by
invoked once the the disclosure of the
marriage is dissolved. information
or
testimony may object
even
after
the
dissolution
of
the
HUSBAND AND WIFE
(SEC. 24[A], RULE 130)
Marital/Spousal privilege
The husband or the wife, during or after the
marriage, cannot be examined without the consent
of the other as to any communication received in
confidence by one from the other during the
marriage 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 or ascendants. (Sec. 24[a], Rule 130)
Purpose of marital privilege
The society has a deeply rooted interest in the
preservation of peace in families and in the
maintenance of the sacred institution of marriage,
and its strongest safeguard is to preserve with
zealous care any violation of those hallowed
confidences inherent in, and inseparable from, the
marital status. (Herrera, 1999, citing Mercer v.
State, 40 Fla. 216, 24 50154)
Requisites for the application of marital
privilege
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
There must be a valid marriage between
the husband and wife;
There is a communication received in
confidence by one from the other;
The confidential communication was
received during the marriage (Riano,
2016); and
The spouse against whom such evidence is
being offered has not given his or her
consent to such testimony. (Regalado,
2008)
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even after the dissolution of marriage
provided that the communication was
made confidentially to B during their
marriage.
marriage. (Riano, 2016)
NOTE: It is not affected
by the death of the
other spouse.
In both cases, it is essential that the marriage be
valid in order to claim such privilege.
Q: James, an alien, was criminally charged of
promoting and facilitating child prostitution
and other sexual abuses under R.A. 7610. The
principal witness against him was his Filipina
wife, Conching. Earlier, she had complained
that James’ hotel was being used as a center for
sex tourism and child trafficking. The defense
counsel for James objected to the testimony of
Conching at the trial of the child prostitution
case and the introduction of the affidavits she
executed against her husband as a violation of
spousal confidentiality and marital privilege
rule. It turned out that Patring, the minor
daughter of Conching by her first husband who
was a Filipino, was molested by James earlier.
Thus, Conching had filed for legal separation
from James since last year. May the court admit
the testimony and affidavits of the wife,
Conching, against her husband, James, in the
criminal case involving child prostitution?
Reason. (2004 BAR)
Other items of communication overheard or in
presence of third parties
GR: Third persons who, without the knowledge of
the spouses, overhear the communication are not
disqualified to testify.
XPN: When there is collusion and voluntary
disclosure to a third party, that third party
becomes an agent and cannot testify. (Francisco,
1993)
Q: In June 1998, A told B that he killed C. After a
year, A married B. Upon the offer of testimony
of B for the alleged killing of C.
a. Can A validly make an objection?
b. Suppose the testimony was offered at
the time the marriage between A and B
was already terminated, can A still
validly object, this time on the ground
of marital privilege rule under Sec. 24,
Rule 130?
c. Suppose the information received by B
was communicated to A during their
marriage, can A validly object to the
testimony of B if it was offered after the
dissolution of their marriage on the
ground of marital disqualification rule
under Sec. 23 Rule 130?
A: YES. If the testimony and affidavit of the wife are
evidence used in the case against her husband for
child prostitution involving her daughter, the
evidence are admissible. The marital privileged
communication rule under Sec. 24 of Rule 130, as
well as the marital disqualification rule under Sec.
23 of the same rule, do not apply to and cannot be
invoked in a criminal case committed by a spouse
against the direct descendants of the other.
A crime committed by the husband against the
daughter of his wife is considered a crime
committed against the wife and directly attacks or
vitally impairs the marital relations. (Riano, 2016,
citing Ordoño v. Daquigan, G.R. No. L-39012, January
31, 1975)
A:
a.
b.
c.
YES. Irrespective of the fact that B was
informed of the killing before her
marriage to A, still, the testimony was
offered during their marriage, which
brings it into the ambit of the marital
disqualification rule under Sec. 23, Rule
130.
NO. The testimony even if confidential
was not communicated to B during the
time of marriage, but before the
marriage.
NO. He can only object based on the
marital disqualification rule if the
testimony was offered during their
marriage and not to testimony offered
after the dissolution of the marriage. The
proper objection must be based on
marital privilege rule under Sec. 24, Rule
130 because such defense is applicable
Q: John filed a petition for declaration of nullity
of his marriage to Anne on the ground of
psychological incapacity under Article 36 of the
Family Code. He obtained a copy of the
confidential psychiatric evaluation report on
his wife from the secretary of the psychiatrist.
Can he testify on the said report without
offending
the
rule
on
privileged
communication? (2016 BAR)
A: YES. Under the rule on privileged
communication, the husband or the wife, during or
after the marriage, cannot be examined without the
consent of the other as to any communication
received in confidence by one from the other
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during the marriage except in a civil case filed by
one against the other, or in a criminal case for a
crime committed by one agaisnst the other or the
latter’s direct descendants or ascendants. (Sec.
24[a], Rule 130)In this case, Anne cannot prevent
John from testifying against her since the petition
for declaration of nullity is a civil case filed by one
spouse against the other; hence, the rule on
privileged communication between the spouses
does not apply. John could testify on the
confidential psychiatric evaluation report of his
wife that he obtained from the secretary of the
psychiatrist, without offending the rule on
privileged communication.
advice be “with a view
employment. (Riano, 2016)
Confidential communication
It refers to information transmitted by voluntary
act of disclosure between attorney and client in
confidence and by means which, so far as the client
is aware, discloses the information to no third
person other than one reasonably necessary for the
transmission of the information or the
accomplishment of the purpose for which it was
given. (Mercado v. Vitriolo, A.C. No. 5108, May 26,
2005)
Requisites for the privilege
2.
3.
professional
Further, the scope of this privilege is extended not
only to the Attorney but also to those persons
reasonably believed by the client to be licensed to
engage in the practice of law. (Section 24[b], Rule
130, 2019 Amendments to the Revised Rules on
Evidence)
ATTORNEY AND CLIENT
[SEC. 24(B), RULE 130]
1.
to”
There must be a communication made by
the client to the attorney, or and advice
given by the attorney to his client;
The communication or advice must be
given in confidence; and
The communication or advice must be
given either in the course of the
professional employment or with a view of
professional employment. (Riano, 2016)
Waiver of Attorney-Client Privilege
The privilege belongs to the client and if he waives
the privilege, no one else, including the attorney,
can invoke it. (Riano, 2016, citing In Re: Young’s
Estate, 33 Utah 382, 94 P 731, 732)
Doctrine of Absolute Privilege
NOTE: The Rules safeguarding privileged
communications between attorney and client shall
apply to similar communications made to or
received by the law student, acting for the legal
clinic (Sec. 3, Rule 138-A). The privilege does not
extend to communications where the client’s
purpose is the furtherance of a future intended
crime or fraud, or for the purpose of committing a
crime or a tort, or those made in furtherance of an
illicit activity (Riano, 2016).
A communication is absolutely privilege when it
is not actionable, even if the author has acted in
bad faith. This class includes allegations or
statements made by parties or their counsel in
pleadings or motions or during the hearing of
judicial and administrative proceedings, as well as
answers given by the witness in reply to questions
propounded to them in the course of said
proceedings, prvided that said allegations or
statements are relevant to the issues, and the
answers are responsive to the questions
propounded to said witnesses. (Belen v. People, G.R.
No. 211120, February 13, 2017)
Purpose of Attorney-Client Privilege
To encourage full disclosure by client to her
attorney of all pertinent matters, so as to further
the administration of justice. (Herrera, 1999)
The absolute privilege remains regardless of the
defamatory tenor and the presence of malice, if the
sae are relevant, pertinent or material to the cause
in and or subject of the inquiry. (Ibid.)
Test in applying the attorney-client privilege
The test is whether the communications are made
to an attorney with a view of obtaining from him
professional assistance or advice regardless of
whether there is a pending or merely impending
litigation or any litigation. (Herrera, 1999)
Cases when the privilege is applicable
1.
NOTE: The present rules do not require a perfected
attorney-client relationship for the privilege to
exist. It is enough that the communication or
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
2.
Privilege
is
not
confined
to
communications regarding actual pending
cases. It may also refer to anticipated
litigations;
Communication may be oral or written but
it is deemed to extend to other forms of
conduct, like physical demonstration;
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3.
4.
seeks advice to aid him in carrying out an
illegal fraudulent scheme. This would be
tantamount to participating in a
conspiracy. (Explanatory Notes, 2019
Amendments to the Revised Rules on
Evidence, citing McCormick on Evidence, 3rd
ed., p. 229 [1984])
The statement of the client need not be
made to the attorney in person. Those
made to the attorney’s secretary, clerk or
stenographer for purpose of the
professional relationship, or those
knowledge acquired by such employees in
such capacity; and
In an action filed for payment of attorney’s
fees or for damages against the negligence
of the attorney.
2.
Communications not covered by the privilege
If the communication is:
1.
2.
3.
NOTE: While the attorney-client privilege
survives the death of the client, there is no
privilege in a will contest or other case
between parties who both claim through
that very client. This is because his
communications may be essential to an
accurate resolution of competing claims of
succession, and the testator would
presumably favor disclosure in order to
dispose of his estate accordingly.
(Explanatory Notes, 2019 Amendments to
the Revised Rules on Evidence, citing
Mueller & Kirkpatrick, Modern Evidence,
Sec. 5.24 [1995])
Intended to be made public;
Intended to be communicated to others;
Intended for an unlawful purpose;
NOTE: The privilege does not extend to
communications where the client’s
purpose is the furtherance of a future
intended crime or fraud, or for the purpose
of committing a crime or a tort,or those
made in furtherance of an illicit activity
(Riano, 2016).
4.
5.
Received from third persons not acting in
behalf or as agents of the client; or
Made in the presence of third parties who
are strangers to the attorney-client
relationship. (Regalado, 2008)
3.
Cases when the privilege is NOT applicable
1.
Claimants through some deceased client. As
to 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;
Furtherance of crime or fraud/”Future
crime-fraud exception”. 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;
Breach of duty by lawyer or client/Selfdefense exception. As to 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;
NOTE: If the lawyer and client become
involved in a dispute between themselves
concerning the services provided by the
lawyer, the privilege does not apply to
their dispute. Thus, where a client alleges
breach of duty on the part of the lawyer,
i.e.
professional
malpractice,
incompetence, or ethical violations – or
where the lawyer sues a client for his fee,
either the lawyer or client may testify as to
communications
between
them.
(Explanatory Notes, 2019 Amendments to
the Revised Rules on Evidence, citing
Mueller & Kirkpatrick, Modern Evidence,
Sec. 5.23 [1995])
NOTE: The rationale for this exception is
that clients are not entitled to use lawyers
to help them in pursuing unlawful or
fraudulent objectives. If the prvivilege
were to cloak such activity, the result
would be loss o public confidence and
corruption of profession. (Explanatory
Notes, 2019 Amendments to the Revised
Rules on Evidence, citing Mueller &
Kirkpatrick, Modern Evidence, Sec. 5.22
[1995])
In theory, the client has impliedly waived
the privilege by making allegations of
breach of duty against the lawyer. (Ibid.)
The policy o the privilege is that of
promoting the administration of justice
and it would be a perversion of the
privilege to extend it to the client who
4.
Document attested by the lawyer. As to a
communication relevant to an issue
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5.
concerning an attested document to which
the lawyer is an attesting witness;
second August 16, 2008; and that both visits
concerned the swindling of Edgardo.
Joint clients. As to a communication
relevant to a matter of common interest
between two or more clients if the
communication was made by any of them
to a lawyer retained or consulted in
common, when offered in action between
any of the clients, unless they have
expressly agreed otherwise. (Sec. 24[b],
Rule 130, 2019 Amendments to the Revised
Rules on Evidence)
During the trial, the RTC issued a subpoena ad
testificandum to Edgardo’s lawyer for him to
testify the conversations during their first and
second meetings. May the subpoena be quashed
on the ground of privileged communication?
Explain fully. (2008 BAR)
A: NO. The subpoena may not be simply quashed
on the allegation that the testimony to be elicited
constitutes privileged communication. It may be
noted that the accused committed the crime
swindling on August 15, 2008, whereas he first
visited his lawyer on August 14, 2008 or before he
committed the swindling.
NOTE: The rationale for the exception is
that joint clients do not intend their
communications to be confidential from
each
other,
and
typically
their
communications are made in each other’s
presence. Agreeing to joint representation
means that each joint client accepts the
risk that another joint client may later use
what he or she has said to the lawyer.
(Explanatory Notes, 2019 Amendments to
the Revised Rules on Evidence, citing
Mueller & Kirkpatrick, Modern Evidence,
Sec. 5.14 [1995])
Clearly, the conversations the accused had with his
lawyer before he committed the swindling cannot
be protected by the privilege between attorney and
client because the crime had not been committed
yet and it is no part of a lawyer’s professional duty
to assist or aid in the commission of a crime; hence
not in the course of professional employment.
The second visit by accused Edgardo to his lawyer
on the next day (August 16, 2008) after the
swindling was committed may also suffer from the
same infirmity as the conversations had during
their first meeting inasmuch as there could not be a
complaint made immediately after the estafa was
committed. The privilege covering a lawyer-client
relation under Sec. 24(b), Rule 130, may not be
invoked, as it is not a ground for quashal of a
subpoena ad testificandum under Sec. 4, Rule 21 of
the Rules of Court.
Applicability of the rule regarding the identity
of the client
GR: A lawyer may NOT invoke the privilege and
refuse to divulge the name or identity of his client.
XPNs:
1.
2.
3.
Where a strong possibility exists that
revealing the client’s name would
implicate the client in the very activity for
which he sought the lawyer’s advice;
Where disclosure would open the client to
civil liability; or
Last Link Doctrine – Where the
government’s lawyers have no case
against an attorney’s client unless, by
revealing the client’s name, the said name
would furnish the only link that would
form the chain of testimony necessary to
convict an individual for a crime. (Regala v.
Sandiganbayan, G.R. No. 105938, September
20, 1996)
Q: A tugboat owned by SPS sank in Manila Bay
while helping to tow another vessel, drowning
five (5) of the crew in the resulting shipwreck.
At the maritime board inquiry, the four (4)
survivors testified. SPS engaged Atty. Ely to
defend against potential claims and to sue the
company owning the other vessel for damages
to the tug. Ely obtained signed statements from
the survivors. He also interviewed other
persons,
in
some
instances
making
memoranda. The heirs of the five (5) victims
filed an action for damages against SPS.
Plaintiff’s counsel sent written interrogatories
to Ely, asking whether statements of witnesses
were obtained; if written, copies were to be
furnished; if oral, the exact provisions were to
be set forth in detail. Ely refused to comply,
arguing that the documents and information
asked are privileged communication. Is the
contention tenable? Explain. (2008 BAR)
Q: On August 15, 2008, Edgardo committed
estafa against Petronilo in the amount of 3
million pesos. Petronilo brought his complaint
to the National Bureau of Investigation, which
found that Edgardo had visited his lawyer
twice, the first time on August 14, 2008 and the
UNIVERSITY OF SANTO TOMAS
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Evidence
A: NO. The documents and information sought to
be disclosed are not privileged. They are
evidentiary matters which will eventually be
disclosed during the trials.
NOTE: For one to be considered a
“psychotheraphist,” a medical doctor need only be
“licensed” to practice mmedicine and need not be a
psychiatrist, whereas a psychologist must be
“licensed” by the government. (Explanatory Notes,
2019 Amendments to the Revised Rules on Evidence)
Under Sec. 24(b) of Rule 130, the privileged matters
are:
Purpose of the privilege
a.
b.
The communication made by the client to
the attorney; or
The advice given by the attorney, in the
course of, or with the view to professional
employment.
The privilege is intended to facilitate and make
safe, full and confidential disclosure by patient to
doctor of all facts, circumstances, and symptoms,
unrestricted by apprehension of their subsequent
and enforced disclosure and publication on the
witness stand, to the end that the physician may
form a correct opinion, and be enabled safely and
efficaciously to treat his patient. (Herrera, 1999)
The information sought is neither a communication
by the client to the attorney nor an advice by the
attorney to his client (Riano, 2016).
This rule is intended to encourage the patient to
open up to the physician, relate to him the history
of his ailment, and give him access to his body,
enabling the physician to make a correct diagnosis
of that ailment and provide the appropriate cure.
Any fear that a physician could be compelled in the
future to come to court and narrate all that had
transpired between him and the patient might
prompt the latter to clam up, thus putting his own
health at great risk. (Chan v. Chan, G.R. No. 179786,
July 24, 2013)
PHYSICIAN AND PATIENT
[SEC. 24(C), RULE 130]
Requisites for the applicability of the privilege
1.
The privilege is claimed in a civil case;
NOTE: This privilege cannot be claimed in
a criminal case presumably because the
interest of the public in criminal
prosecution should be deemed more
important than the secrecy of the
communication. (Riano, 2016)
2.
3.
NOTE: This privilege does not apply to autopsy.
There is no patient or treatment involved in
autopsies, the autopsy having been conducted on a
dead person. (Riguera, 2020)
The person against whom the privilege is
claimed is a physician, psychotherapist or
a person reasonably believed by the
patient to be authorized to practice
medicine or psychology; and
It
refers
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.
This privilege is not limited to testimonial evidence
because to compel physician to disclose records or
such documents would be in effect to compel him
to testify against the patient. (Ibid.)
Attending physician may testify as an expert
provided that his opinion is strictly based on
hypothetical facts, excluding and disregarding any
personal knowledge of the information on the
patient acquired to the physican-patient
relationship. (Ibid.)
NOTE: 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.
Information which CANNOT be disclosed
1.
Psychotherapist
a.
b.
A person licensed to practice medicine
engaged in the diagnosis or treatment of a
mental or emotional condition; or
A person licensed as a psychologist by the
government while similarly engaged. (Sec
24 (c), Rule 130, 2019 Amendments to the
Revised Rules on Evidence)
2.
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; and
Any information acquired by persons,
including members of the patient’s family,
who have participated in the diagnosis or
treatment of the patient under the
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direction
of
the
physician
or
psychotherapist. (Sec. 24[c], Rule 130, 2019
Amendments to the Revised Rules on
Evidence)
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. (Sec. 24[d], Rule 130, 2019
Amendments to the Revised Rules on Evidence)
Waiver of Privilege by the patient; Express or
Implied
1.
2.
3.
4.
Purpose of the priest-penitent privilege
By a contract, as in medical or life
insurance;
Disclosure by the patient of the
information;
When the patient answers questions on
matters which are supposedly privileged
on cross-examination (Riano, 2016); or
By operation of law. (Sec. 4, Rule 28)
Allow and encourage individuals to fulfill their
religious, emotional or other needs by protecting
confidential disclosures to religious practitioners.
(Peralta, Jr., 2005, citing Evidence, Oregon State Bar
Committee on Continuing Legal Education)
Requisites for the applicability of the priestpenitent privilege
1.
Cases when the privilege is NOT applicable
1.
2.
3.
4.
5.
6.
The communication was not given in
confidence;
The communication is irrelevant to the
professional employment;
The communication was made for an
unlawful purpose;
The information was intended to be made
public; or
There was a waiver of the privilege either
by provisions of contract or law (Regalado,
2008); and
Dentists, pharmacists or nurses are
disqualified.
2.
NOTE: The privilege also extends not only to a
confession made by the penitent but also to any
advice given by the minister or priest.
XPN: If the third person is acting as an
agent of the doctor in a professional
capacity.
Extent of the priest-penitent privilege
The communication must be made pursuant to
confession of sins. Where the penitent discussed
business arrangements with the priest, the
privilege does not apply. (Riano, 2016)
NOTE: It is essential that at the time the
communication was made, the professional
relationship is existing when the doctor was
attending to the patient for curative, preventive or
palliative treatment. The treatment may have been
given at the behest of another, the patient being in
extremis. (Regalado, 2008)
A third person who overheard the confession is not
disqualified. (Herrera, 1999)
Who holds the privilege
The person making the confession holds the
privilege. The priest or minister hearing the
confession in his professional capacity is
prohibited from making a disclosure of the
confession without the consent.
The rule does not require that the relationship
between the physician and the patient be a result
of a contractual relationship. It could be the result
of a quasi-contractual relationship as when the
patient is seriously ill and the physician treats him
even if he is not in a condition to give his consent.
(Riano, 2016)
Q: For over a year, Nenita had been estranged
from her husband Walter because of the latter’s
suspicion that she was having an affair with
Vladimir, a barangay kagawad who lived in
nearby Mandaluyong. Nenita lived in the
meantime with her sister in Makati. One day,
the house of Nenita’s sister inexplicably burned
almost to the ground. Nenita and her sister
PRIEST AND PENITENT
[SEC. 24(D), RULE]
A minister, priest or person reasonably believed to
be so cannot, without the consent of the affected
person, be examined as to any confession made to
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
The communication, confession, or advice
must have been made to the priest in his
or her professional character in the course
of discipline enjoined by the church to
which the minister or priest belongs. (Sec.
24[d], Rule 130, 2019 Amendments to the
Revised Rules on Evidence); and
Communications
made
must
be
confidential and must be penitential in
character, e.g., under the seal of the
confessional. (Regalado, 2008)
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Psychiatrist. Moreover, the privileged
communication applies only in civil cases
and not in a criminal case for arson.
Besides, the subject of the testimony of Dr.
Carlos was not in connection with the
advice or treatment given by him to
Walter, or any information he acquired in
attending to Walter in a professional
capacity. The testimony of Dr. Carlos is
limited only to what he perceived at the
vicinity of the fire and at about the time of
the fire.
were caught inside the house but Nenita
survived as she fled in time, while her sister
was caught insidewhen the house collapsed. As
she was running away from the burning house,
Nenita was surprised to see her husband also
running away from the scene. Dr. Carlos,
Walter’s psychiatrist who lived near the burned
house and whom Walter medically consulted
after the fire, also saw Walter in the vicinity
some minutes before the fire. Coincidentally,
Fr. Platino, the parish priest who regularly
hears Walter’s confession and who heard it
after the fire, also encountered him not too far
away from the burned house. Walter was
charged with arson and at his trial, the
prosecution
moved
to
introduce
the
testimonies of Nenita, the doctor and the priest
confessor, who all saw Walter at the vicinity of
the fire at about the time of the fire. (2006,
2013 BAR)
c.
a.
May the testimony of Nenita be allowed
over the objection of Walter?
b. May the testimony of Dr. Carlos,
Walter’s psychiatrist, be allowed over
Walter’s objection?
c. May the testimony of Fr. Platino, the
priest confessor, be allowed over
Walter’s objection?
YES. The priest can testify over the
objection of Walter. The disqualification
requires that the same were made
pursuant to a religious duty enjoined in
the course of discipline of the sect or
denomination to which they belong and
must be confidential and penitential in
character, e.g., under the seal of
confession. (Sec. 24[d], Rule 130)Here, the
testimony of Fr. Platino was not previously
subject of a confession of Walter or an
advice given by him to Walter in his
professional character. The testimony was
merely limited to what Fr. Platino
perceived “at the vicinity of the fire and at
about the time of the fire.”
A:
a.
PUBLIC OFFICERS
[SEC. 24 (E), RULE 130]
NO. Nenita may not be allowed to testify
against Walter. Under the Marital
Disqualification Rule, neither the husband
nor the wife, during their marriage, may
testify for or against the other without the
consent of the affected 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 or ascendants. (Sec. 23, Rule
130, 2019 Amendments to the Revised Rules
on Evidence)
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.
Rationale
General grounds of public policy.
The right of the people to information on matters
of public concern shall be recognized. Access to
official records, and to documents and papers
pertaining to official acts, transactions, or
decisions, as well as to government research data
used as basis for policy development, shall be
afforded the citizen, subject to such limitations as
maybe provided by law. (Sec. 7, Article III, 1987
Constitution)
The foregoing exceptions cannot apply
since it only extends to a criminal case of
one spouse against the other or the latter’s
direct ascendants or descendants. Clearly,
Nenita is not the offended party and her
sister is not her direct ascendant or
descendant for her to fall within the
exception.
b.
YES.
The
testimony
of
Walter’s
psychiatrist may be allowed. The
privileged communication contemplated
under Sec. 24(c) Rule involves only
persons authorized to practice medicine,
surgery or obstetrics. It does not include a
Requisites for its application
1.
The holder of the privilege is the
government, acting through a public
officer;
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2.
3.
4.
The communication was given to the
public officer in official confidence;
The communication was given during or
after his or her tenure; and
The public interest would suffer by the
disclosure of the communication. (Herrera,
1999)
prosecution of the accused before the prosecution
of the accused were exempted from the right to
information. (Chavez v. Public Estates Authority.
G.R. No. 133250, July 9, 2002; Riano 2016)
It is a privilege which protects the confidentiality of
conversations that take place in the President’s
performance of his official duties. The privilege may
be invoked not only by the President, but also by his
close advisors under the “operational proximity
test.” (Neri v. Senate Committee on Accountability of
Public Officers and Investigations, G.R. No. 180643,
March 25, 2008)
Cases when the privilege is inapplicable and
disclosure will be compelled
1.
2.
3.
4.
The disclosure is useful to vindicate the
innocence of an accused person;
To lessen risk of false testimony;
The disclosure is essential to the proper
disposition of the case; or
The benefit to be gained by a correct
disposition of the litigation was greater
than any injury which could inure to the
relation by a disclosure of information.
(Francisco, 1996)
Requisites of Presidential Communications
Privilege
1.
The power of the President and other high-ranking
executive officers to withhold information from the
public, the courts, and the Congress.
The protected communication must relate
to a “quintessential and non-delegable
presidential power;”
The commmuication must be authored or
“solicited and received” by a close advisor
of the president or the president himself.
The judicial test is that an advisor must be
in operational proximity with the
president;
The presidential communication privilege
remains a qualified privilege that may be
overcome by a showing of adequate need,
such that the information sought “likely
contains important evidence” and by the
unavailability
of
the
information
elsewhere by an appropriate investigating
authority. (Neri v. Senate Committee on
Accountability of Public Officers and
Investigations, G.R. No. 180643, March 25,
2008)
This privilege, based on the constitutional doctrine
of separation of powers, exempts the executive
from disclosure requirements applicable to the
ordinary citizen or organization where such
exemption is necessary to the discharge of highly
important executive responsibilities involved in
maintaining governmental operations, and extends
not only to military and diplomatic secrets but also
to documents integral to an appropriate exercise of
the executive’ domestic decisional and policy
making functions, that is, those documents
reflecting the frank expression necessary in intragovernmental
advisory
and
deliberative
communications. (Senate v. Ermita, G.R. No. 169777,
April 20, 2006)
Q: The Senate sought to question Mr. Romulo
Neri, a member of President Arroyo’s cabinet,
on whether President Arroyo followed up the
National Broadband Network project financed
by Chinese loans, whether she directed him to
prioritize it, and whether she directed him to
approve it. Mr. Neri invoked executive privilege
stating that his conversations with the
president dealt with delicate and sensitive
national security and diplomatic matters
relating to the impact of scandal on high
government officials and the possible loss of
confidence by foreign investors and lenders.
May Mr. Neri’s invocation of executive privilege
be upheld?
There are types of information which the
government may withhold from the public like
secrets involving military, diplomatic, and national
security matters, and information on investigations
of crimes by law enforcement agencies before the
A: YES. The Supreme Court upheld Mr. Neir’s
invocation of executive privilege (more specifically
the presidential communications privilege) stating
that the disclosure might impair our diplomatic as
well as economic relations with China. (Neri v.
2.
NOTE: To invoke this rule, it must first be establish
that public interest would suffer by the disclosure.
In the case of closed bank, any disclosure of tapes
and transcripts would not pose danger or peril to
the economy. (Riguera, 2020)
3.
The disclosure or non-disclosure is not dependent
on the will of the officer but on the determination
by a competent court. (Riano, 2016)
Executive privilege
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2021 GOLDEN NOTES
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2.
Senate Committee on Accountability of Public
Officers and Investigations, G.R. No. 180643, March
25, 2008)
NOTE: The filial privilege rule applies only
to “direct” ascendants and descendants, a
family tie connected by a common
ancestry – a stepdaughter has no common
ancestry by her stepmother. (Lee v. Court
of Appeals, G.R. No. 177891, July 13, 2010)
Deliberative Process Privilege
The privilege protects from disclosure advisory
opinions, recommendations, and deliberations
comprising part of a process by which
governmental decisions and polices are
formulated. (Riguera, 2020, citing Departent f
Foreign Affairs v. BCA International Corp., G.R. No.
210858, June 29, 2016)
NOTE: An adopted child is covered by the
rule.
Written advice from variety of individuals is an
important element of the government’s decisionmaking process and the interchange of advice
could be stifled iff courts forced the government to
disclose those recommendations; thus the privilege
is intended to prevent the “chilling” of deliberative
communications. (Ibid.)
Criminal Cases
GR: No descendant shall be compelled, in a
criminal case, to testify against his parents and
grandparents.
XPNs: The descendant may be compelled to give
his testimony in the following instances:
The deliberative process privilege applies if its
purpose is served, that is, to protect the frank
exchange of ideas and opinions critical to the
government’s decision-making process where
disclosure would discourage such discussion in the
future. (Ibid.)
1.
2.
PARENTAL AND FILIAL PRIVILEGE RULE
(SEC. 25, RULE 130)
When such testimony is indispensable in a
crime committed against said descendant;
or
In a crime committed by one parent
against the other. (Art. 215 of the Family
Code)
Q: A was convicted of raping his own daughter.
His son, an 8-year-old boy, testified against him.
Can he object to the testimony on the ground of
filial privilege and invoke the incompetence of
the child?
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.
A: NO. The competency of his son is not affected by
the filial privilege rule. The Rule is not strictly
speaking a disqualification but refers to a privilege
not to testify, which can be invoked and waived
like other privileges. The son was not compelled to
testify against his father but chose to waive that
filial privilege when he voluntarily testified against
the accused. (People v. Invencion, G.R. No. 131636,
March 5, 2003)
NOTE: It is a privilege which consist of exempting
the witness, having attended the court where his
testimony is desired, from disclosing a certain part
of his knowledge. (Fit for a Queen Agency, Inc. v.
Ramirez, SP-06510, November 15, 1977)
Two types of privileges under Sec. 25, Rule 130
1.
Filial privilege rule – a child may not be
compelled to testify against his parents, or
other direct descendants.
Parental privilege rule - a parent cannot
be compelled to testify against his child or
other direct descendants.
Q: A, married to B, killed the latter. One of the
witnesses was C, the mother of B, who was
being compelled to testify against A. Can A
object on the ground of parental privilege?
NOTE: A person, however, may testify
against his parents or children voluntarily
but if he refuses to do so, the rule protects
him from any compulsion. Said rule
applies to both criminal and civil cases
since the rule makes no distinction. (Sec.
25, Rule 130, 2019 Amendments to the
Revised Rules on Evidence; Riano, 2016)
A: NO. C is not a direct ascendant of A but that of B,
being the mother of the latter. Thus, the privilege
does not belong to A.
NOTE: The Child Witness Rule provides that every
child is presumed qualified to be a witness. (Sec. 6,
A.M. NO. 004-07-SC or the Rule on Examination of a
Child Witness, November 21, 2000)
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Trade secrets should receive greater protection
from discovery, because they derive economic
value from being generally unknown and not
readily ascertainable by the public. (Air Philippines
Corporation v. Pennswell, Inc., G.R. No. 1723835,
December 13, 2007)
Q: C is the child of the spouses H and W. H sued
his wife W for judicial declaration of nullity of
marriage under Article 36 of the Family Code.
In the trial, the following testified over the
objection of W: C, H and D, a doctor of medicine
who used to treat W. Rule on W's objections
which are the following:
1.
2.
3.
Exception to the application of the privilege
The privilege is not absolute; the court may compel
disclosure where it is indispensable for doing
justice. (Ibid.)
H cannot testify against her because of
the rule on marital privilege;
C cannot testify against her because of
the doctrine on parental privilege; and
D cannot testify against her because of
the
doctrine
of
privileged
communication between patient and
physician. (1998 BAR)
Other privileged matters (GEV-STB-CAP)
1.
A:
1.
2.
3.
The rule of marital privilege cannot be
invoked in the annulment case under
Article 36 of the Family Code because it is
a civil case filed by one against the other.
(Sec. 23, Rule 130)
W cannot invoke the privilege which
belongs to the child. C may testify if he
wants to although he may not be
compelled to do so. (Sec. 25, Rule 130)
D, as a doctor who used to treat W, is
disqualified to testify against W over her
objection as to any advice or treatment
given by him or any information which he
may have acquired in his professional
capacity. (Sec. 24[c], Rule 130)
2.
3.
4.
5.
6.
TRADE SECRETS
[SEC. 26, RULE 130]
7.
A secret formula or process not patented, but
known only to certain individuals using it in
compounding some article of trade having a
commercial value.
Trade secrets are privilege
matters whose disclosure is proscribed and
penalized under the Securities and Exchange
Commission and the Revised Penal Code.
8.
Trade secret
NOTE: Human Security Act provides that the
name and identity of the informant of on a
suspect in the crime of terrorism shall be
considered confidential and shall not be
unnecessarily revealed until after the
proceedings against the suspect shall have
been terminated.
A person cannot be compelled to testify about any
trade secret, unless the non-disclosure will conceal
fraud or otherwise work injustice. When disclosure
is directed, the court shall take such protective
measure as the interest of the owner of the trade
secret and of the parties and the furtherance of
justice may require. (Sec. 26, Rule 130, 2019
Amendments to the Revised Rules on Evidence)
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
The guardian ad litem shall not testify in
any
proceeding
concerning
any
information, statement, or opinion
received from the child in the course of
serving as guardian ad litem, unless the
court finds it necessary to promote the
best interests of the child (Sec. 5[e], Rule on
Examination of a Child Witnes);
Editorial Privilege – Editors may not be
compelled to disclose the source of
published news (R.A. 53, as amended by
R.A. 1477);
Voters may not be compelled to disclose
for whom they voted;
Information contained in tax census
returns (Ibid.);
Bank deposits, except in certain cases
provided for by law (Sec. 2, R.A. 1405);
Information and statements made at
conciliation proceedings (Art. 233, Labor
Code);
Institutions covered by the law and its
officers and employees who communicate
a suspicious transaction to the Anti-Money
Laundering Council (Sec. 6 of R.A. 9194
amending Sec. 9 of R.A. 9160); and
Informer’s Privilege - The prosecutor
may not be compelled to present an
informer to protect his identity and when
his
testimony
would
be
merely
corroborative and cumulative. (Herrera,
1999)
9.
Media Practitioner’s Privilege
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Evidence
GR: Without prejudice to his liability under the
civil and criminal law, any publisher, owner,
duly registered or accredited
journalist,
writer, reporter, contributor, opinion writer,
editor, columnist manager, media practitioner
involved in the writing, editing, production,
and dissemination of news for mass circulation
of any print, broadcast, wire service
organization, or electronic mass media cannot
be compelled to reveal the source of any news
item, report or information appearing or being
reported or disseminated through said media
which was related in confidence to the
abovementioned media practitioners.
3.
4.
XPN: Revelation can be compelled if the court
or the Congress of any of its committee finds
that such revelation is demanded by the
security of the State.
5.
NOTE: On the ground of public policy, the rules
providing for production and inspection of books
and papers do not authorize the production or
inspection of privileged matter; that is, books and
papers which, because of their confidential and
privileged character, could not be received in
evidence. Such a condition is in addition to the
requisite that the items be specifically described,
and must constitute or contain evidence material
to any matter involved in the action and which are
in the party’s possession, custody or control. (Air
Philippines Corporation v. Pennswell Inc., G.R. No.
172835, December 13, 2007)
6.
7.
8.
Secs. 12-15, Rule 119, and Sec. 1, Rule 123,
or by the records of the preliminary
investigation, under the circumstances of
Sec. 1(f) of Rule 115 (Regalado, 2008);
In criminal cases covered by the Rule on
Summary Procedure, the affidavits of the
parties shall constitute the direct
testimonies of the witnesses who executed
the same (Riano, 2016, citing Sec. 15, Rule
on Summary Procedure);
In civil cases covered by the Rules on
Summary Procedure, the parties are
merely required to submit the affidavits of
their witnesses and other pieces of
evidence on the factual issues, together
with their position papers, setting forth
the law and the facts relied upon (Riano,
2016, citing Sec. 9, Rule on Summary
Procedure);
Under the Judicial Affidavit Rule, the
judicial affidavit shall take the place of
direct testimonies of witnesses (Sec. 2,
Judicial Affidavit Rule);
Matters regarding the admissibility and
evidentiary
weight
of
electronic
documents may be proved by affidavits
subject to cross by the adverse party (Sec.
1, Rule 9, Rules on Electronic Evidence);
If the witness is incapacitated to speak;
and
The question calls for a different mode of
answer.
Oath vs. Affirmation
EXAMINATION OF A WITNESS
OATH
It is an outward pledge
made
under
an
immediate sense of
responsibility to God or
a solemn appeal to the
Supreme
Being
in
attestation of the truth
of some statement.
GR: The examination of witnesses presented in a
trial or hearing shall be done in open court, and
under oath or affirmation. Unless the witness is
incapacitated to speak, or the question calls for a
different mode of answer, the answers of the
witness shall be given orally. (Sec. 1, Rule 132, 2019
Amendments to the Revised Rules on Evidence)
RATIO: Open court examination allows the court
the opportunity to observe the demeanor of the
witness and allows the adverse party to crossexamine the witness. (Riano, 2016)
NOTE: The object of the
rule is to affect the
conscience
of
the
witness to compel him
to speak the truth, and
to lay him open to
punishment for perjury
if he testifies falsely.
XPNs:
The testimony of the witness may not be given in
open court in the following cases:
1.
2.
AFFIRMATION
An affirmation is a
substitute for an oath
and is solemn and
formal declaration that
the witness will tell the
truth.
In civil cases, by depositions pursuant to
and under the limitations of Rules 23 and
24 (Regalado, 2008);
In criminal cases, by depositions or
conditional examinations, pursuant to
NOTE: The option to take either an oath or
affirmation is given to the witness and not to the
court. (Riano, 2016)
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1.
In order that one may be competent as a witness, it
is not necessary that he has a definite knowledge of
the difference between his duty to tell the truth
after being sworn and before, or that he is able to
state it, but it is necessary that he be conscious that
there is a difference. (People v. Bisda, G.R. No.
140895, July 17, 2003)
2.
3.
Waiver of the right to have the witness sworn
4.
The right may be waived. If a party admits proof to
be taken in a case without an oath, after the
testimony has been acted upon by the court, and
made the basis of a judgment, such party can no
longer object to the admissibility of the testimony.
He will be deemed to have waived the objection.
(People v. Bisda, G.R. No. 140895, July 17, 2003)
5.
Matters to be recorded during trial
The entire proceedings of a trial or hearing,
including:
1.
2.
An accused in a criminal case as it is his
constitutional right to be present at all
stages of the proceedings;
Parties to the litigation will generally not
be excluded, their presence usually being
necessary to a proper management of the
case;
Party in interest though not a party to the
record and an agent of such party, if the
presence of such agent is necessary;
Officers and complaining witnesses are
customarily excepted from the rule unless
the circumstances warrant otherwise; and
Expert witnesses are not excluded until
production of evidence bearing upon the
question or subject as to which they have
been called or unless liable to be
influenced by the testimony of the other
witnesses. (Herrera, 1999)
Recantation of a witness
Courts must not automatically exclude the original
statement based solely on the recantation. It
should determine which statement should be given
credence through a comparison of the original and
the new statements, applying the general rules of
evidence. (PLDT v. Bolso, G.R. No. 159701, August
17, 2007)
Questions propounded to a witness and
his answers thereto; and
The statements made by the judge or any
of the parties, counsel, or witnesses with
reference to the case. (Sec. 2, Rule 132)
NOTE: These shall be recorded by means of
shorthand or stenotype or by other means of
recording found suitable by the court. (Ibid.)
RIGHTS AND OBLIGATIONS OF A WITNESS
Rights of a witness (PDEA-R)
Exclusion and separation of witnesses
1.
The court, motu proprio or upon motion, shall
order witnesses excluded so that they cannot hear
the testimony of other witnesses. This rule does
not authorize the exclusion of:
a.
b.
c.
d.
NOTE: The trial court’s duty is to protect
every witness against oppressive behavior
of an examiner and this is especially true
where the witness is of advanced age. (Lee
v. CA, G.R. No. 177861, July, 13, 2010)
A party who is a natural person;
A duly designated representative of a
juridical entity which is not a party to the
case;
A person whose presence is essential to
the presentation of the party’s cause; or
A person authorized by a statute to be
present.
2.
3.
4.
The court may also cause witnesses to be kept
separate and to be prevented from conversing with
one another, directly through intermediaries, until
all shall have been examined. (Sec. 15, Rule 132,
2019 Amendments to the Revised Rules on Evidence)
Not to be detained longer than the
interests of justice require;
Not to be examined except only as to
matters pertinent to the issue;
Not to give an answer which will tend to
subject him or her to a penalty for an
offense unless otherwise provided by law
(right against self-incrimination);
NOTE: This refers to immunity statutes
wherein the witness is granted immunity
from criminal prosecution for offenses
admitted in his testimony, e.g. under Sec.
8, R.A. 1379, the law providing for the
forfeiture of unlawfully acquired property;
XPNs:
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
To be protected from irrelevant, improper,
or insulting questions, and from harsh or
insulting demeanor;
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Evidence
and under P.D. 749, in prosecutions for
bribery and graft. (Regalado, 2008)
5.
moral
compulsion
to
extort
communications from the accused. It is
simply a prohibition against legal process
to extract from the accused’s own lips,
against his will, admission of his guilt. (Ong
v. Sandiganbayan & Office of the
Ombudsman, G.R. No. 126858, September
16, 2005) Hence, a purely mechanical act
required to be done or produced from the
accused is not covered by the right against
self-incrimination. (Beltran vs Samson, G.R.
No. 32025, September 23, 1929)
Not to give an answer, which will tend to
degrade his or her reputation, unless it be
to the very fact at issue or to a fact from
which the fact in issue would be presumed.
But a witness must answer to the fact of
his or her previous final conviction for an
offense. (Sec. 3, Rule 132, 2019
Amendments to the Revised Rules on
Evidence)
The privilege against self-incrimination
must be invoked at the proper time, and
the proper time to invoke it is when a
question calling for an incriminating
answer is propounded. Also, a person who
has been summoned to testify cannot
decline to appear, nor can he decline to be
sworn as a witness and no claim of
privilege can be made until a question
calling for an incriminating answer is
asked. (Gonzales vs. Secretary of Labor, G.R.
No. L-6409, February 5, 1954).
Classifications of Immunity Statutes
USE IMMUNITY
Prohibits the use of the
witness'
compelled
testimony and its fruits
in any manner in
connection with the
criminal prosecution of
the witness.
It is immunity from use
of any statement given
by the witness.
By the grant of use-andderivative-use
immunity, a witness is
only assured that his or
her particular testimony
and evidence derived
from it will not be used
against him or her in
subsequent
prosecution.
TRANSACTIONAL
IMMUNITY
Grants immunity to the
witness
from
prosecution
for
an
offense to which his
compelled
testimony
relates.
It is immunity from
prosecution by reason
or on the basis of the
testimony.
Transactional immunity
is broader in the scope
of its protection. By its
grant, a witness can no
longer be prosecuted
for
any
offense
whatsoever arising out
of the act or transaction
to which the testimony
relates.
2.
Right against self-degradation – If his
answer will have a direct tendency to
degrade his character.
XPNs to the XPN: A witness may not
invoke the right against self-degradation
if:
1. Such question is directed to the very
fact at issue or to a fact from which the
fact at issue would be presumed; or
2. If it refers to his previous final
conviction for an offense. (Regalado,
2008)
Obligation of a witness in open court
NOTE: A witness invited by the Senate who refused
to testify and arrested for contempt, cannot invoke
the right against self-incrimination in a petition for
certiorari and prohibition. The said right may be
invoked only when the incriminating question is
being asked, since he has no way of knowing in
advance the nature or effect of the questions to be
asked of him. That this right may possibly be
violated or abused is no ground for denying the
Senate Committees their power of inquiry. (In Re:
Sabio, G.R. Nos. 174340, 174318 & 174177, October
17, 2006)
GR: A witness must answer questions, although his
or her answer may tend to establish a claim against
him or her. (Sec. 3, Rule 132, 2019 Amendments to
the Revised Rules on Evidence) Refusal to answer as
a witness constitutes drect contempt. (Sec. 1, Rule
71, 2019 Amendents to the Revised Rules on Civil
Procedure)
XPNs: A witness may validly refuse to answer on
the basis of the following:
1.
Right against self-incrimination – If his
answer will tend to subject him to
punishment for an offense; or
Prohibition on narrative form testimony
A witness’’s testimony should be elicted by way of
questions and answers (Secs. 1 and 2, Rule 132).
Thus, if the witness does a narration instead of
answering the question, the answer may be
NOTE: The constitutional assurance of the
right against self-incrimination is a
prohibition against the use of physical or
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REMEDIAL LAW
stricken out upon objection (Sec. 39, Rule 132). The
reason is that if a witness testifies in narrative
form, the adverse party is deprived of the
opportunity to object to thee testimony
beforehand. (Riguera, 2020)
1.
2.
3.
XPN; The court may allow a child witness to testify
in a narrative form. (Sec. 19, Rule on Examination of
Child Witness)
Refusal of a witness to take the witness stand
GR: A witness may not refuse to take the witness
stand.
4.
XPNs:
1.
2.
An accused in a criminal case; or
A party who is not an accused in a criminal
case is allowed not to take the witness
stand
–
in
administrative
cases/proceedings that partook of the
nature of a criminal proceeding or
analogous to a criminal proceeding. As
long as the suit is criminal in nature, the
party thereto can altogether decline to
take the witness stand. It is not the
character of the suit involved but the
nature of the proceedings that controls.
(Rosete, et. al. v. Lim, et. al., G.R. No. 136051,
June 8, 2006)
The offense in which his testimony will be
used is a grave felony as defined under the
Revised Penal Code, or its equivalent
under special laws;
His testimony can be substantially
corroborated in its material points;
He or any member of his family within the
second civil degree of consanguinity or
affinity is subjected to threats to life or
bodily injury or there is a likelihood that
he will be killed, forced, intimidated,
harassed or corrupted to prevent him from
testifying, or to testify falsely, or evasively,
because or on account of his testimony;
and
He is not a law enforcement officer, even if
he would be testifying against the other
law enforcement officers. In such a case,
only the immediate members of his family
may avail themselves of the protection
provided for under the Act. (Sec. 3, R.A.
6981)
Q: As counsel of an accused charged with
homicide, you are convinced that he can be
utilized as a state witness. What procedure will
you take? (2006 BAR)
A: As counsel of an accused charged with homicide,
I would ask the prosecutor to recommend that the
accused be made a state witness. It is the
prosecutor who must recommend and move for
the acceptance of the accused as a state witness.
The accused may also apply under the Witness
Protection Program.
Right against self-incrimination not available
under the Witness Protection Program
Any witness admitted into the program of the
Witness Protection, Security and Benefit Act cannot
refuse to testify or give evidence or produce books,
documents, records or writings necessary for the
prosecution of the offense or offenses for which he
has been admitted into the Program on the ground
of the constitutional right against selfincrimination but he shall enjoy immunity from
criminal prosecution and cannot be subjected to
any penalty or forfeiture for any transaction,
matter or thing concerning his compelled
testimony or books, documents, records and
writings produced. (Sec. 14, R.A. 6981)
State witness may be liable for contempt or
criminal prosecution
If he fails or refuses to testify or to continue to
testify without just cause when lawfully obliged to
do so or if he testifies falsely or evasively, he shall
be liable to prosecution for perjury. If a State
witness fails or refuses to testify, or testifies falsely
or evasively, or violates any condition
accompanying such immunity without just cause,
as determined in a hearing by the proper court, his
immunity shall be removed and he shall be subject
to contempt or criminal prosecution. Moreover, the
enjoyment of all rights and benefits under R.A.
6981 shall be deemed terminated. The witness
may, however, purge himself of the contumacious
acts by testifying at any appropriate stage of the
proceedings. (Sec. 13, R.A. 6981)
Persons eligible to the Witness Protection,
Security and Benefit Program
Any person who has witnessed or has knowledge
or information on the commission of a crime and
has testified or is testifying or about to testify
before any judicial or quasi-judicial body, or before
any investigating authority may be admitted
provided that:
ORDER IN THE EXAMINATION
OF AN INDIVIDUAL WITNESS
Purposes of each stage of the examination
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
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Evidence
1.
Direct examination – To elicit facts about
the client’s cause of action or defense.
(Riano, 2016)
2.
Cross examination
a. To bring out facts favorable to
counsel’s client not established by the
direct testimony; and
b. To enable counsel to impeach or to
impair the credibility of the witness.
(Ibid.)
3.
immediately thereafter, or at any other time when
the fact was fresh in his memory and he knew that
the same was correctly written or recorded. (Sec.
16, Rule 132, 2019 Amendments to the Revised Rules
on Evidence) But in this case, Tony has never seen
the writing before.
CROSS EXAMINATION
Upon the termination of the direct examination, the
witness may be cross-examined by the adverse
party on any relevant matter, with sufficient
fullness and freedom to his or her accuracy and
truthfulness and freedom from interest or bias, or
the reverse, and to elicit all important facts bearing
upon the issue. (Sec 6, Rule 132, 2019 Amendments
to the Revised Rules on Evidence)
Re-direct examination
a. To afford opportunity to the witness
to explain or supplement his answers
given during the cross-examination;
and
b. To rehabilitate a witness whose
credibility has been damaged. (Ibid.)
4.
Scope of a cross-examination
Re-cross examination
a. To overcome the proponent’s attempt
to rehabilitate the witness; and
b. To rebut damaging evidence brought
out during redirect examination.
1.
2.
Order of Examination
The order in which an individiual witness may be
examined iis as follows;
1.
2.
3.
4.
Direct examination by the proponent.
Cross-examination by the opponent.
Re-direct examination by the propnent.
Re-cross examination b the opponent.
American rule – restricts crossexamination to facts and circumstances
which are connected with the matters that
have been stated in the direct examination
of the witness.
English rule – where a witness is called to
testify to a particular fact, he becomes a
witness for all purposes and may be fully
cross-examined upon all matters material
to the issue, the examination not being
confined to the matters inquired about in
the direct examination.
NOTE: Both rules are followed under
Philippine jurisdiction. In general, the
English Rule is being followed, which
allows the cross-examination to elicit all
important facts bearing upon the issue
(Sec. 6, Rule 132), but this does not mean
that a party by doing so is making the
witness his own in accordance with Sec. 5
of Rule 132. Coversely, the American Rule
is being followed as to the accused or a
hostile witness, who may only be crossexamined on matters covered by direct
examination. (Herrera, 1999)
DIRECT EXAMINATION
The examination-in-chief of a witness by the party
presenting him or her on the facts relevant to the
issue. (Sec 5, Rule 132, 2019 Amendments to the
Revised Rules on Evidence)
In light of the Judicial Affidavit Rule, most direct
examinations are now in the form of a judicial
affidavit. (Riguera, 2020)
Q: Tony states on direct examination that he
once knew the facts being asked but he cannot
recall them now. When handed a written record
of the facts, he testifies that the facts are
correctly stated, but that he has never seen the
writing before. Is the writing admissible as past
recollection recorded? Explain. (1996 BAR)
Doctrine of Incomplete Testimony
GR: When cross-examination cannot be done or
completed due to causes attributable to the party
who offered the witness, the incomplete testimony
is rendered incompetent and should be stricken
from the record. (Bachrach Motor Co., Inc. v. CIR,
G.R. No. L-26136, October 30, 1978; Ortigas, Jr. v.
Lufthansa German Airlines, G.R. No. L-28773, June
30, 1975)
A: NO, because for the written record to be
admissible as past recollection recorded, it must
have been written or recorded by Tony or under
his direction at the time when the fact occurred, or
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XPN: Where the prosecution witness was
extensively cross-examined on the material points
and thereafter failed to appear and cannot be
produced despite a warrant of his arrest, the
striking out is not warranted. (People v. Gorospe,
G.R. No. 51513, May 15, 1984)
cross-examination. (Sec 7, Rule 132, 2019
Amendments to the Revised Rules on Evidence)
Effect of death or absence of a witness after the
direct examination by the proponent
A: YES. Questions on matters not dealt with during
the cross-examination, ay be allowed by the court
in its discretion.
1.
2.
3.
Q: On re-direct examination, may questions on
matters not dealt with during the crossexamination be allowed?
If the witness was not cross-examined
because of causes attributable to the crossexamining party and the witness had
always made himself available for crossexamination, the direct testimony of the
witness shall remain on record and cannot
be stricken off because the cross-examiner
is deemed to have waived his right to
cross-examine. (Dela Paz v. IAC, G.R. No.
71537, September 17, 1987)
If the witness was partially crossexamined but died before the completion
of his cross-examination, his testimony on
direct may be stricken out but only with
respect to the testimony not covered by
the cross-examination. (People v. Señeris,
G.R. No. L-48883, August 6, 1980)
The absence of a witness is not sufficient
to warrant the striking out of his
testimony for failure to appear for further
cross-examination where the witness has
already been sufficiently cross-examined,
and the matter on which crossexamination is sought is not in
controversy. (Ibid.)
RE-CROSS EXAMINATION
Upon the conclusion o the re-direct examination,
the adverse party ay re-cross examine the witness
on matters stated in his or her re-direct
examination, and also on such other matters as
may be allowed by the court in its discretion. (Sec 8,
Rule 132, 2019 Amendments to the Revised Rules on
Evidence)
RECALLING THE WITNESS
GR: After the examination of a witness by both
sides has been concluded, the witness cannot be
recalled without leave of court. Recalling a witness
is a matter of judicial discretion and it shall be
guided by the interests of justice. (Sec. 9, Rule 132,
2019 Amendments to the Revised Rules on Evidence)
XPNs:
1.
2.
GR: The party who offered the testimony of a
witness is bound by such testimony.
The examination has not been concluded;
or
If the recall of the witness was expressly
reserved by a party with the approval of
the court. In these two cases the recall of a
witness is a matter of right. (Regalado,
2008)
XPNs:
1.
2.
3.
NOTE: Something more than the bare assertion of
the need to propound additional questions is
essential before the court's discretion may
rightfully be exercised to grant or deny recall.
There must be a satisfactory showing of some
concrete, substantial ground for instance, that
particularly identified material points were not
covered in the cross-examination, or that
particularly described vital documents were not
presented to the witness whose recall is prayed for,
or that the cross-examination was conducted in so
inept a manner as to result in a virtual absence
thereof. Absent such particulars, to repeat, there
would be no foundation for a trial court to
authorize the recall of any witness. (People v.
Rivera, G.R. No. 98376, August 16, 1991)
In the case of a hostile witness;
Where the witness is the adverse party or
the representative of a juridical person
which is the adverse party; and
When the witness is not voluntarily
offered but is required by law to be
presented by the proponent, as in the case
of subscribing witnesses to a will.
(Regalado, 2008, citing Fernandez v.
Tantoco, 49 Phil. 380, and Sec. 11, Rule 76)
RE-DIRECT EXAMINATION
After the cross-examination of the witness has
been concluded, e or she may be re-examined by
the party calling him or her, to explain or
supplement his or he answers given during the
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
LEADING AND MISLEADING QUESTIONS
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It is a technique employed usually as part of crossexamination to discredit a witness by attacking his
credibility. (Riano, 2016)
Leading question
It is one which suggests to the witness the answer
which the examining party desires. A leading
question is generally not allowed. (Sec. 10, Rule 132,
2019 Amendments to the Revised Rules on Evidence)
IMPEACHMENT OF THE ADVERSE PARTY’S
WITNESS
The test whether a question is leading or not is the
suggestiveness of the conduct.
Ways of impeaching an adverse party’s witness
1.
2.
When a leading question is allowed (CUPDAJ)
A leading question is allowed:
3.
1.
2.
3.
4.
On cross-examination;
Of an unwilling witness or hostile witness;
On preliminary matters;
When there is difficulty in getting direct
and intelligible answers from a witness
who is ignorant, or a child of tender years,
or is of feeble mind, or a deaf-mute;
NOTE: An adverse party’s witness may not be
impeached by evidence of particular wrongful
acts, except that it may be shown by the
examination of the witness, or record of the
judgment, that he or she has been convicted of
an offense. (Ibid.)
NOTE: A witness may be considered as
unwilling or hostile only if so declared by
the court upon adequate showing of his or
her adverse interest, unjustified reluctance
to testify or his or her having misled the
party into calling him or her to the witness
stand. (Sec. 13, Rule 132, 2019 Amendments
to the Revised Rules on Evidence)
The other modes of impeaching a witness are:
1.
2.
5.
6.
7.
By contradictory evidence;
By evidence that his or her general
reputation for truth, honesty or integrity is
bad; or
By evidence that he or she has made at
other times statements inconsistemt with
his or her present testimony. (Sec. 11, Rule
132, 2019 Amendments to the Revised Rules
on Evidence)
Of a witness who is an adverse party or an
officer, director, or managing agent of a
public or private corporation or of a
partnership or association which is an
adverse party (Sec. 10, Rule 132, 2019
Amendments to the Revised Rules on
Evidence);
A child of tender years may be asked
leading questions (People v. Ilogon, G.R. No.
206294, June 29, 2016; People v. Perez, G.R.
No. 182924, December 24, 2008; Sec. 10[c],
Rule on Examination of a Child Witness,
A.M. No.004-07-SC)
In all stages of examination of a child if the
same will further the interests of justice.
(Sec. 20, Rule on Examination of a Child
Witness, A.M. No.004-07-SC)
3.
4.
By
involving
him
during
crossexamination in contradiction;
By showing the impossibility or
improbability of his testimony;
By proving action or conduct of the
witness inconsistent with his testimony;
and
By showing bias, interest or hostile feeling
against the adverse party. (Herrera, 1999)
IMPEACHMENT BY EVIDENCE OF CONVICTION
OF CRIME
GR: For the purpose of impeaching a witness,
evidence that he or she has been convicted by final
judgment of a crime shall be admitted if:
1.
2.
The crime was punishable by a penalty in
excess of one (1) year; or
The crime involved moral turpitude,
regardless of the penalty.
Misleading question
XON: Evidence of a conviction is not admissible if
the conviction has been the subject of an amnesty
or annulment of the conviction. (Sec. 13, Rule 132,
2019 Amendments to the Revised Rules on Evidence)
A misleading question is one which assumes as
true a fact not yet testified to by the witness, or
contrary to that which he or she has previously
stated. It is NOT allowed. (Sec. 10, Rule 132, 2019
Amendments to the Revised Rules on Evidence)
Impeachment of a witness by evidence of
particular wrongful acts
IMPEACHMENT OF WITNESS
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GR: A witness may NOT be impeached by evidence
of particular wrongful acts.
if it is not contradicted or remains unrebutted.
(Gaw v. Chua, G.R. No. 160855, April 16, 2008)
XPN: If it may be shown by the examination of the
witness, or the record of the judgment, that he or
she has been convicted of an offense. (Sec. 11, Rule
132, 2019 Amendments to the Revised Rules on
Evidence)
HOW THE WITNESS IS IMPEACHED BY
EVIDENCE OF INCONSISTENT STATEMENTS
(LAYING THE PREDICATE)
Laying the predicate
It is the duty of a party trying to impugn the
testimony of a witness by means of prior or
subsequent inconsistent statements, whether oral
or in writing, to give the witness a chance to
reconcile his conflicting declarations, such that it is
only when no reasonable explanation is given by
him that he should be deemed impeached. (People
v. Sambahon, G.R. No. 182789, August 3, 2010)
IMPEACHMENT BY A PARTY OF HIS OR HER
OWN WITNESS
GR: The party presenting the witness is not
allowed to impeach the credibility of such witness.
XPN: The witness is an:
1.
Unwilling or hostile;
Laying the predicate in impeaching a witness
by evidence of prior inconsistent statements
NOTE: A witness may be considered as
unwilling or hostile only if so declared by
the court upon showing adequate showing
of his or adverse interest, unjustified
reluctance to testify, or his or her having
misled the party into calling him or her to
the witness stand.
2.
3.
1.
2.
Adverse party; or
Officer, director, or managing agent of a
public or private corporation or of a
partnership or association which is an
adverse party. (Sec. 13, Rule 132, 2019
Amendments to the Revised Rules on
Evidence)
3.
NOTE: Contradicting testimony given subsequently
does not necessarily contradict the prevous
testimony if the contradiction is satisfactorily
explained. There is no rule which states that a
previous testimony is presumed to be false merely
because a witness now says that the same is not
true. A testimony solemnly given in court should
not be lightly set aside. Before this can be dne both
the previous testimony and the subsequent ne
should be carefullu scrutinized – in other words, all
the expedients devised by man to determine the
credibility of witnesses should be utilized to
determine which of the two contradicting
testimonies represents the truth. (OCA v. Morante,
A.M. No. P-02-1555, April 16, 2004)
NOTE: In these instances, such witnesses may be
impeached by the party presenting him or her in all
respects as if he had been called by the adverse
party, except by evidence of his or her bad
character. (Ibid.)
Impeachment of the adverse party as a witness
That the witness is the adverse party does not
necessarily mean that the calling party will not be
bound by the former’s testimony. The fact remains
that it was at his instance that his adversary was
put on the witness stand. He is not bound only in
the sense that he may contradict him by
introducing other evidence to prove a statement of
facts contrary to what the witness testifies. Unlike
an ordinary witness, the calling party may impeach
an adverse witness in all respects as if he had been
called by the adverse party, except by evidence of
his bad character. Under a rule permitting the
impeachment of an adverse witness, although the
calling party does not vouch for the witness’
veracity, he is nonetheless bound by his testimony
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
The prior inconsistent statements must be
related to him or her, with the
circumstances of the times and places and
the persons present;
The witness must be asked whether he or
she made such statements, and if so, be
allowed to explain them; and
If the statements be in writing it must be
shown to the witness before any question
is put to him or her concerning them. (Sec.
14, Rule 132, 2019 Amendments to the
Revised Rules on Evidence) (1996 BAR)
As between statements made during the
preliminary investigation of the case and the
testimony of a witness in open court, the latter
deserves
more
credence.
Preliminary
investigations are commonly fairly summary or
truncated in nature, being designed simply for the
determination, not of guilt beyond reasonable
doubt, but of probable cause prior to the filing of an
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information in court. (People v. Buduhan, G.R. No.
1178196, August 6, 2008)
1.
Inapplicability of the rule
If the prior inconsistent statement appears in a
deposition of the adverse party, and not a mere
witness, that adverse party who testifies may be
impeached without laying the predicate, as such
prior statements are in the nature of admissions of
said adverse party. (Regalado, 2008)
iii.
1.
2.
3.
In cases in whch 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. (Sec. 54, Rule
130)
PRIOR INCONSISTENT
STATEMENTS
Refer to statements,
oral or documentary,
made by the witness
sought to be impeached
on occasions other than
the trial in which he is
testifying.
REFERRAL OF WITNESS TO MEMORANDUM
When the witness may refer to memorandum
A witness may be allowed to refresh his or her
memory respecting a fact by anything written or
recorded by himself or herself, or under his or her
direction, at the time when the fact occurred, or
immediately thereafter, or at any other time when
the fact was fresh in his or her memory and he or
she knew that the same was correctly written or
recorded. (Sec. 16, Rule 132, 2019 Amendments to
the Revised Rules on Evidence)
EVIDENCE OF THE GOOD CHARACTER OF A
WITNESS
GR: Evidence of the good character of a witness is
not admissible for the purpose of proving action
in conformity therewith on a particular occassion.
(Sec. 54, Rule 130, 2019 Amendments to the Revised
Rules on Evidence)
NOTE: The writing or record must be produced
and may be inspected by the adverse party, who
may, if he or she chooses, cross-examine the
witness upon it and may read it in evidence. (Ibid.)
XPNs:
i.
In Criminal cases:
1.
2.
ii.
Evidence of the good moral
character of a witness is not
admissible until such character has
been impeached. (Sec. 54, Rule 130)
NOTE: 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.
To avoid unfair surprise to the adversary;
To save time, as an admission by the
witness may make the extrinsic proof
necessary; and
To give the witness, in fairness to him, a
chance to explain the discrepancy.
(Herrera, 1999)
CONTRADICTORY
EVIDENCE
Refers
to
other
testimony of the same
witness,
or
other
evidence presented by
him in the same case,
but not the testimony of
another witness.
In Criminal and Civil cases
1.
The reasons for laying the predicate are:
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. (Sec.
54, Rule 130)
NOTE: A witness may also testify from such a
writing or record, though he or she retains
norecollection of the particular facts, if he or she is
able to swear that the writing or recording
correctly stated the transaction when made. Such
evidence must be received with caution. (Ibid.)
The character of the offended party
may be proved if it tends to establish
in any reasonable degree the
probability or improbability of the
offense charged.
The accused may prove his or her
good moral character, pertinent to the
moral trait involved in the off ense
charged. However, the prosecution
may not prove his or her bad moral
character unless on rebuttal. (Sec. 54,
Rule 130)
PRESENT
RECOLLECTION
REVIVED
Applies if the witness
remembers the facts
regarding his entries.
In Civil cases:
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PAST RECOLLECTION
RECORDED
Applies
where
the
witness does not recall
the facts involved.
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Requisites:
1. Memorandum has
been written by him
or
under
his
direction; and
2. Written by him:
a. When the fact
occurred
or
immediately
thereafter; or
b. At any other
time when the
fact was fresh
in his memory
and he knew
that the same
was correctly
recorded.
Entitled
to
greater
weight.
Evidence
is
the
testimony.
Rule
of
evidence
affected is competency
of witness, examination
of witness (laying the
predicate).
The witness simply
testifies that he knows
that the memorandum
is correctly written by
him or under his
direction. There is no
need to swear that the
writing correctly states
the transaction.
Child witness
Requisites:
1. Witness retains no
recollection of the
particular facts; and
2. But he is able to
swear that the
record or writing
correctly stated the
transaction when
made.
1.
2.
Presumption of competency
GR: Every child is presumed qualified to be a
witness. The burden of proof to rebut such
presumption lies in the party challenging his
competence.
Entitled
to
lesser
weight.
Evidence is the writing
or
record
(the
memorandum).
Rule
of
evidence
affected is the best
evidence rule.
XPN: When the court finds that substantial doubt
exists regarding the ability of the child to perceive,
remember, communicate, distinguish from
falsehood, or appreciate the duty to tell the truth in
court, the judge shall conduct a competency
examination of a child. (Sec. 6, A.M. No. 004-07-SC)
Examination of a child witness
Witness must swear
that
the
writing
correctly states the
transaction. (Regalado,
2008)
The examination of a child witness presented in a
hearing or any proceeding shall be done in open
court. Unless the witness is incapacitated to speak,
or the question calls for a different mode of
answer, the answers of the witness shall be given
orally. (Sec. 8, A.M. No. 004-07-SC)
Videotaped deposition
The prosecutor, counsel, or guardian ad litem may
apply for an order that a deposition be taken of the
testimony of the child and that it be recorded and
preserved on videotape. If the court finds that the
child will not be able to testify in open court at
trial, it shall issue an order that the deposition of
the child be taken and preserved by videotape.
(Sec. 27, A.M. No. 004-07-SC)
Right of the adverse party when a writing is
shown to a witness
Whenever a writing or record is shown to a
witness, it must be produced and may be inspected
by the adverse party, who may, if he or she
chooses, cross-examine the witness upon it and
may read it in evidence. (Sec. 18, Rule 132)
Live-link TV testimony
RULE ON EXAMINATION OF CHILD WITNESS
(A.M. No. 004-07-SC)
Effectivity Date: December 15, 2000
The court may order by an application may be
made by the prosecutor, counsel or guardian ad
litem for the testimony of the child to be taken in a
room outside the courtroom and be televised to the
courtroom by live-link television, if there is a
likelihood that the child would suffer trauma from
testifying in the presence of the accused, his
counsel or the prosecutor as the case may be. (Sec.
25, A.M. No. 004-07-SC; Riano, 2016)
The rule shall govern the examination of a child
witness in all criminal and non-criminal
proceedings of a child who is: (VAW)
1.
2.
3.
Any person who at the time of giving
testimony is below the age of 18 years old;
or
A person over 18 years of age, if he/she is
found by the court as unable to fully take
care of himself or protect himself from
abuse, neglect, cruelty, exploitation or
discrimination because of physical or
mental disability or condition. (Sec. 4[a],
A.M. No. 004-07-SC)
Victims;
Accused; and
Witnesses to a crime.
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
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Evidence
The kind of trauma contemplated is trauma that
would impair the completeness or truthfulness of
the testimony of the child.
1.
2.
Hearsay exception in child abuse cases
A statement made by a child describing any act or
attempted act of child abuse, not otherwise
admissible under the hearsay rule, may be
admitted in evidence in any criminal or noncriminal proceeding. In ruling on the admissibility
of such hearsay statement, the court shall consider
the time, content and circumstances thereof which
provide sufficient indicia of reliability. It shall
consider the following factors:
a.
b.
c.
d.
e.
f.
g.
h.
3.
Whether there is a motive to lie;
The general character of the declarant
child;
Whether more than one person heard the
statement;
Whether the statement was spontaneous;
The timing of the statement and the
relationship between the declarant child
and witness;
Cross-examination could not show the lack
of knowledge of the declarant child;
The possibility of faulty recollection of the
declarant child is remote; and
The circumstances surrounding the
statement are such that there is no reason
to
suppose
the
declarant
child
misrepresented the involvement of the
accused. (Sec. 28, A.M. No. 004-07-SC)
4.
"This object or document and the
contents thereof are subject to a
protective order issued by the court in
(case title), (case number). They shall not
be examined, inspected, read, viewed, or
copied by any person, or disclosed to any
person, except as provided in the
protective order. No additional copies of
the tape or any of its portion shall be
made, given, sold, or shown to any person
without prior court order. Any person
violating such protective order is subject
to the contempt power of the court and
other penalties prescribed by law."
Sexual abuse shield rule
GR: The following evidence is not admissible in any
criminal proceeding involving alleged child sexual
abuse:
5.
a.
Evidence offered to prove that the alleged
victim engaged in other sexual behavior;
and
Evidence offered to prove the sexual
predisposition of the alleged victim.
6.
XPN: Evidence of specific instances of sexual
behavior by the alleged victim to prove that a
person other than the accused was the source of
semen, injury, or other physical evidence shall be
admissible. (Sec. 30, A.M. No. 004-07-SC)
7.
b.
Tapes may be viewed only by parties,
their counsel, their expert witness, and
the guardian ad litem.
No tape, or any portion thereof, shall be
divulged by any member of the court staff,
the prosecuting attorney, the defense
counsel, the guardian ad litem, agents of
investigating law enforcement agencies,
and other persons as determined by the
court to any other person, except as
necessary for the trial.
No person shall be granted access to the
tape, its transcription or any part thereof
unless he signs a written affirmation that
he has received and read a copy of the
protective order; that he submits to the
jurisdiction of the court with respect to
the protective order; and that in case of
violation thereof, he will be subject to the
contempt power of the court.
Each of the tape cassettes and transcripts
thereof made available to the parties,
their counsel, and respective agents shall
bear the following cautionary notice:
Protective order
No tape shall be given, loaned, sold, or
shown to any person except as ordered by
the court.
Within thirty (30) days from receipt, all
copies of the tape and any transcripts
thereof shall be returned to the clerk of
court for safekeeping unless the period is
extended by the court on motion of a
party.
This protective order shall remain in full
force and effect until further order of the
court. (Sec. 31, A.M. No. 004-07-SC)
Q: AA, a twelve-year-old girl, while walking
alone met BB, a teenage boy who befriended
her. Later, BB brought AA to a nearby shanty
where he raped her. The Information for rape
filed against BB states: “On or about October 30,
2015, in the City of S.P. and within the
Any videotape or audiotape of a child that is part of
the court record shall be under a protective order
that provides as follows:
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jurisdiction of this Honorable Court, the
accused, a minor, 15 years old with lewd design
and by means of force, violence, and
intimidation, did then and there, willfully,
unlawfully and feloniously had sexual
intercourse with AA, a minor, 12 years old,
against the latter’s will and consent.” At the
trial, the prosecutor called to the witness stand
AA as his first witness and manifested that he
be allowed to ask leading questions in
conducting his direct examination pursuant to
the Rule on the Examination of a Child Witness.
BB’s counsel objected on the ground that the
prosecutor has not conducted a competency
examination on the witness, a requirement
before the rule cited can be applied in the case.
Is BB’s counsel correct? (2015 BAR)
than
the
consideration.
Adoptive
2.
3.
4.
5.
ADMISSIONS AND CONFESSIONS
Admission
Any statement of fact made by a party against his
interest or unfavorable to the conclusion for which
he contends or is inconsistent with the facts alleged
by him.
JUDICIAL ADMISSIONS
Those made in the
course
of
the
proceeding in the same
case.
Do not require proof
and
may
be
contradicted only by
showing that it was
made through palpable
mistake or that the
imputed admission was
not, in fact, made. (Sec.
4, Rule 129)
Judicial
admissions
need not be offered in
When made out of court or
even in a proceeding other
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
Expressly agrees to or
concurs in an oral
statement
made
by
another;
Hears a statement and
later
on
essentially
repeats it;
Utters an acceptance or
builds upon the assertion
of another;
Replies by way of rebuttal
to some specific points
raised by another but
ignores further points
which he or she has heard
the other make; or
Reads and signs a written
statement
made
by
another.
(Republic
v.
Kendrick
Development
Corp., G.R. No. 149576,
August 8, 2006)
Judicial admission vs. Extrajudicial admission
CLASSIFICATIONS OF ADMISSIONS
Express
It is a positive statement or act.
Those made in definite, certain
and unequivocal language.
Implied
It is one which may be inferred
from the declarations or acts of
a person. Therefore, an
admission may be implied
from conduct, statement of
silence of a party.
Judicial
When made in the course of a
judicial proceeding.
Extrajudicial
under
It is a party’s reaction to a
statement or action by another
person when it is reasonable to
treat the party’s reaction as an
admission of something stated
or implied by the other person.
A third person’s statement
becomes the admission of the
party embracing or espousing
it. Adoptive admission may
occur when a party:
1.
A: NO. BB’s counsel is not correct. Every child is
presumed qualified to be a witness. (Sec. 6, Rule on
Examination of a Child Witness) To rebut the
presumption of competence enjoyed by a child, the
burden of proof lies on the party challenging his
competence. Here, AA, a 12-year old child witness
who is presumed to be competent, may be asked
leading questions by the prosecutor in conducting
his direct examination pursuant to the RECW and
the Revised Rules on Criminal Procedure. (People v.
Santos, G.R. No. 171452, October 17, 2008) In order
to obviate the counsel’s argument on the
competency of AA as prosecution witness, the
judge motu proprio conducted his voir dire
examination of AA.
one
EXTRAJUDICIAL
ADMISSIONS
Those made out of court
or
in
a
judicial
proceeding other than
the
one
under
consideration.
Regarded as evidence
and must be offered as
such, otherwise the
court will not consider
it in deciding the case.
Require formal offer for
it to be considered.
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evidence since it is not
evidence. It is superior
to evidence and shall be
considered by the court
as established.
Conclusive upon the
person admitting.
Subject
to
crossexamination.
1.
2.
3.
Rebuttable.
Not subject to crossexamination.
Self-serving declaration
It is one which has been made extra-judicially by
the party to favor his interest. It is not admissible
in evidence because they are inherently
untrustworthy, and would open the door to fraud
and fabrication of testimony. (Lichauco v. Atlantic
Gulf and Pacific Co. of Manila, 84 Phil. 330; People v.
Demiar, 108 Phil. 651)
Requisites for admissions to be admissible
1.
2.
3.
4.
They must involve matters of fact and not
of law;
They must be categorical and definite;
They must be knowingly and voluntarily
made; and
They must be adverse to the admitter’s
interests, otherwise it would be selfserving and inadmissible. (Regalado, 2008)
NOTE: Self-serving evidence are inadmissible
because the adverse party is not given the
opportunity for cross-examination, and their
admission would encourage fabrication of
testimony. (Hernandez v. CA, G.R. No. 104874,
December 14, 1993)
Admissions vs. Confessions
ADMISSION
A statement of fact
which does not involve
an acknowledgment of
guilt or liability.
May be made by third
persons and in certain
cases, are admissible
against a party.
Applies to both criminal
and civil cases.
May be express or tacit.
The act, declaration or omission must have
been made by a party or by one by whom
he is legally bound;
The admission must be as to a relevant
fact; and
The admission may only be given in
evidence against him. (Herrera, 1999)
CONFESSION
A statement of fact
which
involves
an
acknowledgment
of
guilt or liability.
Can be made only by the
party himself and, in
some instances, are
admissible against his
co-accused.
Applies only to criminal
cases.
Must
be
express.
(Regalado, 2008)
Statements in affidavits are not sufficient to prove
the existence of agricultural tenancy. It is selfserving. It will not suffice to prove consent of the
owner. Independent evidence is necessary.
(Rodriguez v. Salvador, G.R. No. 171972, June 8,
2011)
An admission against interest is the best evidence
which affords the greatest certainty of the facts in
dispute since no man would declare anything
against himself unless such declaration is true.
Thus, an admission against interest binds the
person who makes the same, and absent any
showing that this was made thru palpable mistake,
no amount of rationalization can offset it. (Stanley
Fine Furnitures, Elena and Carlos Wang v. Gallano,
G.R. No. 190486, November 26, 2014, as penned by
J. Leonen)
NOTE: An admission, in general sense, includes
confessions, the former being a broader term
because, accordingly, a confession is also an
“admission… by the accused of the fact charged
against him or of some fact essential to the charge.”
(4 Wigmore, Sec. 1050) A confession is a specific
type of admission which refers only to an
acknowledgement of guilt. (Riano, 2016)
Q: After working as a laborer for 43 years, A
resigned from Rufina Patis Factory. Thereafter,
he availed of his pension from the SSS and
executed an affidavit stating that he was never
re-employed. However, when he filed a claim
for retirement benefits from his employer
before the NLRC, he alleged that he continued
working for Rufina Patis Factory for 4 more
years. Can Rufina Patis Factory use A’s affidavit
executed before the SSS as an admission against
his interest?
ADMISSION BY A PARTY
The act, declaration or omission of a party as to a
relevant fact may be given in evidence against him
or her. (Sec. 27, Rule 130, 2019 Amendments to the
Revised Rules on Evidence)
Requisites for the admissibility of an admission
A: YES. The document is the best evidence which
affords greater certainty of the facts in dispute.
While the affidavit may have facilitated the release
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of the retirement benefits from SSS, hence,
beneficial to him at that time, it may still be
considered as admission against interest since the
disserving quality of the admission is judged as of
the time it is used or offered in evidence and not
when such admission was made. Thus, it matters
not that the admission was self-serving at the time
it was made, so long as it is against A’s present
claim. (Rufina Patis Factory v. Alusitain, G.R. No.
146202, July 14, 2004)
testimony and not subject of the res inter alios acta
rule since such testimony is subject to cross
examination.
Q: Mau sued Kenstar Travel Corporation for
breach of contract on the ground that when she
went on a European tour, there was no
European tour manager, the Filipino guide was
a first timer, and the hotels where they were
billeted were not first class. Kenstar contended
that the tour was satisfactory because out of 18
participants, only Mau actually complained. Can
the fact that the other participants in the tour
filed no case against Kenstar be used as
evidence to show that B has no cause of action?
RES INTER ALIOS ACTA RULE
Res inter alios acta alteri nocere non debet
This principle literally means “things done
between strangers ought not to injure those who
are not parties to them.” (Black’s Law Dictionary,
5th Ed.; Dynamic Signmaker Outdoor Advertising
Services, Inc. v. Potongan, G.R. No. 156589, June 27,
2005)
A: NO. Sec. 28, Rule 130 of the Rules of Court
provides that the rights of a party cannot be
prejudiced by an act, declaration or omission of
another. The failure of the other participants to file
and action should not prejudice Mau. (Geraldez v.
Court of Appeals, G.R. No. 108253, February 23,
1994)
Reason for the rule on res inter alios acta
On principle of good faith and mutual convenience,
a man’s own acts are binding upon himself and are
evidence against him. So are his conduct and
declarations. It would not only be rightly
inconvenient but also manifestly unjust, that a man
should be bound by the acts of mere unauthorized
strangers; and if a party ought not to be bound by
the acts of strangers, neither ought their acts or
conduct be used as evidence against him. (People v.
Guittap, G.R. No. 144621, May 9, 2003)
ADMISSION BY A THIRD PARTY
The rights of a party cannot be prejudiced by an
act, declaration, or omission of another. (Sec. 28,
Rule 130, 2019 Amendments to the Revised Rules on
Evidence)
GR: The act, declaration or omission made out of
court of a party as to a relevant fact may be given in
evidence against him but may not be given in
evidence against another person.
Two branches of res inter alios acta rule
1.
2.
XPN: The act or omission of one party made out of
court may be used as evidence against another
when its admission is made by:
Admission by third party. The rights of a
party cannot be prejudiced by an act,
declaration, or omission of another (Sec.
29, Rule 130, 2019 Amendments to the
Revised Rules on Evidence) (2003 BAR);
and
Similar Acts Rule. Evidence that one did
or did not do a certain thing at one time is
not admissible to prove that he did or did
not do the same or similar thing at another
time. (Sec. 35, Rule 130, 2019 Amendments
to the Revised Rules on Evidence)
1.
2.
3.
4.
5.
6.
7.
NOTE: The rule has reference to extrajudicial
declarations. Hence, statements made in open
court by a witness implicating persons aside from
him are admissible as declarations from one who
has personal knowledge of the facts testified to.
(Riano, 2016)
Q: Francisco was charged with violating PD No.
1612 or the Anti Fencing Decree. Among the
evidence submitted against him was the
testimony of Jovita in a previous criminal case
The testimony of the accused against his coaccused in open court is considered as admissible
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
A partner, during the existence of the
partnership (Sec. 30, Rule 130, 2019
Amendments to the Revised Rules on
Evidence);
An agent authorized by the party to make
a statement concerning the subject or
within the scope of his or her authority,
during the existence of the agency (Ibid.);
A joint owner;
A joint debtor;
A person jointly interested with the party;
A conspirator; or
A privy or successor in interest (Suarez
and De la Banda, 2006)
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wherein the accused therein, Pacita, was
convicted of theft and where she stated that
Francisco bought stolen jewelries from her. Can
the admission in the previous case be used
against Francisco?
The same rule applies to an act or declaration of a
joint owner, joint debtor or other person jointly
interested with the party (Sec. 29, Rule 130).
A: NO. Francisco was not a party to the previous
criminal case where Pacita was the accused. The
acts or declarations of a person are not admissible
against a third party. Only parties to a case are
bound by a judgment of the trial court. (Francisco v.
People, G.R. No. 146584, July 12, 2004) Without
presenting Jovita to testify on her admission during
the previous criminal case, even if made in a
previous judicial proceeding, it remains an
extrajudicial admission without any effect, insofar
as the present action against Francisco is
concerned.
GR: Admissions made after a partnership has been
dissolved do not fall within the exception because
such are made when the partnership ceased to
exist.
Dissolved Partnership
XPN: Where the admissions are made in
connection with the winding up of the partnership
affairs, said admissions are still admissible as the
partner is acting as an agent of his co-partner in
said winding up. (Regalado, 2008)
Q: The Republic of the Philippines filed a
forfeiture case against the heirs of the late
former President Marcos. In one of her
manifestations before the Sandiganbayan,
Imelda Marcos admitted that she owned 90% of
the Swiss bank deposits and only 10% belongs
to the estate of the late President Marcos. The
other heirs also made separate admissions in
their pleadings. What is the value of these
admissions?
ADMISSION BY A 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. (Sec. 30,
Rule 130, 2019 Amendments to the Revised Rules on
Evidence)
A: The individual and separate admissions of each
respondent bind all of them pursuant to Sec. 29
(now Sec. 30), Rule 130 of the Rules of Court. The
declaration of a party is admissible against a party
whenever a “privity of estate” exists between the
declarant and the party. It generally denotes a
succession of rights. Without doubt, privity exists
among the respondents in this case. Where several
co-parties exist, who are jointly interested in the
subject matter of the controversy, the admission of
one is competent against all. (Republic v.
Sandiganbayan, G.R. No. 152154, July 15, 2003)
Requisites for an admission of a partner to bind
his co-partners or for an agent to bind his
principal
1.
2.
3.
The act or declaration of a partner or agent
of the party must be within the scope of
his authority;
The admission was made during the
existence of the partnership or agency;
and
The existence of the partnership or agency
is proven by independent evidence other
than such act or declaration. The Articles
of Incorporation or a Special Power of
Attorney may be presented for such
purpose. (Suarez and De la Banda, 2000)
ADMISSION BY A CONSPIRATOR
The act or declaration of a conspirator in
furtherance of the conspiracy and during its
existence may be given in evidence aginst the coconspirator after the conspiracy is shown by
evidence other than such act or declaration. (Sec.
31, Rule 130, 2019 Revised Rules on Evidence)
Conspiracy
NOTE: Any declaration made before the
partnership or agency existed, or those made after,
are not admissible against the other partners or
principal but remains admissible as against the
partner or agent making the declaration. (Riano,
2019)
A conspiracy exists when two or more persons
come to an agreement concerning the commission
of a felony and decide to commit it. (Herrera, 1999)
NOTE: Once conspiracy is proven, the act of one is
the act of all. The statement therefore of one may
be admitted against the other co-conspirators as an
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participation in the offense. (Regalado,
2008)
exception to the rule of res inter alios acta. (Riano,
2016)
When extrajudicial
judicial admission
Requisites of an admission by a conspirator
1.
2.
3.
The declaration or act be made or done
during the existence of the conspiracy;
The declaration or act must be in
furtherance of the purpose and object of
the conspiracy; and
The conspiracy must be shown by
evidence other than the declaration or act
(evidence aliunde). (Sec. 31, Rule 130, 2019
Amendments to the Revised Rules on
Evidence)
admission
becomes
a
While it is true that statements made by a
conspirator against a co-conspirator are admissible
only when made during the existence of the
conspiracy, if the declarant repeats the statement
in court, his extrajudicial confession becomes a
judicial admission, making the testimony
admissible as to both conspirators. (People v.
Baharan, G.R. No. 188314, January 10, 2011)
ADMISSION BY PRIVIES
NOTE: This rule applies only to extrajudicial acts
or admission and not to testimony at trial where
the party adversely affected has the opportunity to
cross-examine the witness. (People v. Baharan, G.R.
No. L-188314, January 10, 2011)
Where one derives title to property from another,
the latter’s act, declaration, or omission of the
latter, while holding the title, in relation to the
property, is evidence against the former if done
while the latter was holding the title. (Sec. 32, Rule
130, 2019 Amendments to the Revised Rules on
Evidence)
Q: A was convicted of robbery with homicide.
Among the evidence used to convict her was the
extrajudicial confession of her co-accused, an
alleged co-conspirator, which confession was
made with the assistance of counsel. Can such
admission be used against A?
Privies
Persons who are partakers or have an interest in
any action or thing, or any relation to another.
(Black’s Law Dictionary, 5th Ed.)
A: NO. In order for such admission to be admissible
in evidence, there must be independent evidence
aside from the extrajudicial confession to prove
conspiracy. There being no independent evidence
to prove conspiracy, A’s culpability was not
sufficiently established. (People v. Guittap, G.R. No.
144621, May 9, 2003)
GR: Extrajudicial admissions made by a
conspirator after the conspiracy had terminated
and even before trial are not admissible against the
co-conspirator.
The declarations of a person are admissible against
a party whenever a "privity of estate" exists
between the declarant and the party, the term
"privity of estate" generally denoting a succession
in rights. Consequently, an admission of one in
privity with a party to the record is
competent. Without doubt, privity exists among
the respondents in this case. And where several coparties to the record are jointly interested in the
subject matter of the controversy, the admission of
one is competent against all. (Republic v.
Sandiganbayan, Ferdinand E. Marcos, and Imelda
Romualdez Marcos, G.R. No. 152154, July 15, 2003)
XPNs:
Requisites of an admission by privies
Extrajudicial admissions
conspiracy had terminated
1.
2.
3.
4.
made
after
the
If made in the presence of the coconspirator who expressly or impliedly
agreed therein;
Where the facts in said admission are
confirmed in the individual extrajudicial
confessions made by the co-conspirator
after their apprehension;
As a circumstance to determine the
credibility of the witness; or
As circumstantial evidence to show the
probability of the co-conspirator’s
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
1.
2.
3.
There must be an act, declaration, or
omission by a predecessor-in-interest;
The act, declaration, or omission of the
predecessor must have occurred while he
was holding (not after) the title to the
property; and
The act, declaration, or omission must be
in relation to the property. (Sec. 32, Rule
130, 2019 Amendments to the Revised Rules
on Evidence; Riano 2016)
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Evidence
of them. (People v. Garcia, Jr., G.R. No. 138470, April
1, 2003)
Q: Del Monte Development Corporation filed a
case to be adjudged owner of a piece of land
against Ababa claiming that it acquired a lot
from Lucero in 1964. As a defense, Ababa
presented a document executed by Lucero in
1968 to settle the controversy. Can the
document bind Del Monte as successor in
interest of Lucero?
Q: Pogi was brought to the police station fr
investigation on the alleged rape of Ganda.
While in the police station, Ganda pointed to
Pogi and said, “He’s the one who raped me.”
Pogi remained silent. May Pogi’s silence be
offered in evidence as an implied admission of
guilt?
A: NO. The admission of a former owner of a
property must have been made while he was the
owner thereof in order that such admission may be
binding upon the present owner. Hence, Lucero’s
act of executing the 1968 document have no
binding effect on Del Monte, the ownership of the
land having passed to it in 1964. (Gevero v. IAC, G.R.
No. 77029, August 30, 1990)
A: NO. The rule on admission by silence does nt
apply since Pogi had a right to remain silent while
under custodial investigation. (Riguera, 2020)
Principle of adoptive admission
It is a party’s reaction to a statement or action by
another person when it is reasonable to treat the
party’s reaction as an admission of something
stated or implied by the other person. The basis for
admissibility of admissions made vicariously is that
arising from the ratification or adoption by the
party of the statements which the other person had
made. (Estrada v. Desierto, G.R. Nos. 146710-15,
April 3, 2001)
ADMISSION BY SILENCE
There is admission by silence when a party does or
says nothing when he hears or observes an act or
declaration made in his presence when such 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. Such may be given in
evidence against him or her. (Sec. 33, Rule 130,
2019 Amendments to the Revised Rules on Evidence)
Illustration: The alleged admissions made by
President Estrada when his options had dwindled
when, according to the Angara Diary, the Armed
Forces withdrew its support from him as President
and Commander-in-Chief. Thus, Angara had to
allegedly ask Senate President Pimentel to advise
Estrada to consider the option of “dignified exit or
resignation.” Estrada did not object to the
suggested option but simply said he could never
leave the country. According to the court, his
silence on this and other related suggestions can be
taken as adoptive admissions by him. (Ibid.)
Requisites of an admission by silence
1.
2.
3.
4.
5.
The party heard and understood the
statement;
He or she was at a liberty to make a denial;
The statement was about a matter
affecting his or her rights or in which he or
she was interested and which naturally
calls for a response;
The facts were within his or her
knowledge; and
The fact admitted from his or her silence is
material to the issue. (People v. Paragsa,
G.R. No. L-44060, July 20, 1978; Sec. 33, Rule
130; Riano 2016)
CONFESSIONS
The declaration of an accused acknowledging his
guilt of the offense charged, or of any offense
necessarily included therein, may be given in
evidence against him or her. (Sec. 34, Rule 130,
2019 Amendments to the Revised Rules on Evidence)
NOTE: The silence of a person under investigation
for the commission of an offense should not be
construed as an admission by silence because a
person has the right to remain silent and to be
informed of that right. (Sec. 12, Art. III, 1987
Constitution; Riano, 2016)
Requisites for the admissibility of a confession
1.
However, if it is not the police investigators who
confronted the accused but the owner of a
carnapped vehicle, the silence of one after being
implicated by the other accused serves as an
admission by silence as he did not refute the
statements of his co-accused despite having heard
2.
3.
It must involve an express and categorical
acknowledgement of guilt (U.S. v. Corrales,
28 Phil. 362);
Facts admitted must be constitutive of a
criminal offense (U.S. v. Flores, 26 Phil.
262);
It must have been given voluntarily
(People v. Nishishima, 57 Phil. 26);
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4.
5.
It must have been intelligently made
(Bilaan v. Cusi, G.R. No. L-18179, June 29,
1962), the accused realizing the
importance or legal significance of his act
(U.S. v. Agatea, 40 Phil. 596);
There must have been no violation of Sec.
12, Art. III, 1987 Constitution (Regalado,
2008); and
Admissibility of extrajudicial confessions
GR: An extrajudicial confession is not admissible
against the confessor’s co-accused. Said confession
is hearsay evidence and violative of the res inter
alios acta rule.
XPN: It may be admitted in evidence against his coaccused in the following cases:
NOTE: A confession to a person, who is not
a police officer, is admissible in evidence.
The declaration acknowledging his guilt of
the offense charged, or of any offense
necessarily included therein, may be given
in evidence against the declarant. Such
admissions are not covered by Secs. 12 (1)
and (3), Article III, 1987 Constitution,
because they were not extracted while he
or she was under custodial investigation.
(People v. Davao, et al., G.R. No. 174660,
May 30, 2011)
6.
1.
2.
3.
4.
5.
It must be in writing and signed by such
person in the presence of his counsel or in
the latter’s absence, upon a valid waiver
and in the presence of any of the parents,
elder brothers and sisters, his spouse, the
municipal mayor, the municipal judge,
district school supervisor or priest or
minister of the gospel as chosen by him or
her. (Sec. 2[d], R.A. 7438)
6.
7.
Q: The mutilated cadaver of a woman was
discovered near a creek. Due to witnesses
attesting that he was the last person seen with
the woman when she was still alive, Carlito was
arrested within 5 hours after the discovery of
the cadaver and brought to the police station.
The crime laboratory determined that the
woman had been raped. While in police
custody, Carlito broke down in the presence of
an assisting counsel and orally confessed to the
investigator that he had raped and killed the
woman, detailing the acts he had performed up
to his dumping of the body near the creek. He
was genuinely remorseful. During the trial, the
State presented the investigator to testify the
oral confession of Carlito. Is the oral confession
admissible as evidence of guilt? (2008 Bar)
CLASSIFICATION OF CONFESSIONS
Judicial
One made by the accused before
an open court in which the case is
confession
pending and in the course of legal
proceedings therein and, by itself,
can sustain conviction and is
admissible against one’s coaccused. It is governed by Secs. 1,
3 & 4 of Rule 116.
Extrajudicial One made in any other place or
occasion other than the court
confession
where the case is pending and
cannot sustain a conviction
unless corroborated by evidence
of corpus delicti. It is generally
binding only upon the confessant
and is not admissible against his
co-accused. It is governed by Sec.
33 of Rule 130. (Regalado, 2008)
A: NO. The oral confession is not admissible as
evidence of guilt. The confession is in the nature of
an extrajudicial confession before an investigator
while under custodial investigation. Hence, the
statutory provisions under R.A. 7438 (Sec. 2[d])
will have to be complied with.
NOTE: If the accused admits
having committed the act in
question
but
alleges
a
justification therefor, such as
absence of criminal intent, the
same is merely an admission.
(Ibid.)
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
In case of implied acquiescence of the coaccused to the extrajudicial confession;
In case of interlocking confessions;
Where the accused admitted the facts
stated by the confessant after being
apprised of such confession;
If they are charged as co-conspirators of
the crime which was confessed by one of
the accused and said confession is used
only as corroborating evidence;
Where the confession is used as
circumstantial evidence to show the
probability of participation by the coconspirator;
When the confessant testified for his codefendant; and
Where the co-conspirator’s extrajudicial
confession is corroborated by other
evidence on record. (Regalado, 2008)
Under said law, any extrajudicial confession made
by a person arrested, detained, or under custodial
investigation shall be in writing and signed by such
person in the presence of his counsel. An oral
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confession does not comply with the mandatory
provisions of the law. Under R.A. 7438, the
confession is inadmissible in evidence in any
proceeding. (Sec. 2[d], R.A. 7438; Riano, 2016)
3.
4.
5.
6.
7.
8.
9.
10.
Requirements for an admission of guilt of an
accused during a custodial investigation to be
admitted in evidence
1.
2.
3.
4.
5.
The admission must be voluntary (Sec.
12(1), 1987 Constitution);
The admission must be in writing (R.A.
7438);
The admission must be made with the
assistance of competent, independent
counsel (Sec. 12, 1987 Constitution);
The admission must be express (People v.
Prinsipe, G.R. No. 135862, May 2, 2002); and
In case the accused waives his rights to
silence and to counsel, such waiver must
be in writing, executed with the assistance
of competent, independent counsel. (R.A.
7438)
Purpose of the rule
Evidence of similar acts or occurrences compels
the defendant to meet allegations that are not
mentioned in the complaint, confuses him in his
defense, raises a variety of relevant issues, and
diverts the attention of the court from the issues
immediately before it. Hence, the evidentiary rule
guards the practical inconvenience of trying
collateral issues and protracting the trial, and
prevents surprise or other mischief prejudicial to
litigants. (Cruz v. CA, G.R. No. 126713, July 27, 1998)
Q: The defendants argued that Xavierville
Estate Inc. (XEI) had allowed them to pay the
balance of the purchase of a subdivision lot in
120 monthly installments. The defendants
introduced three contracts to sell in which XEI
granted two lot buyers a 120-month term of
payment and a third one a 180-month term.
May these three contracts tto sell prove a habit
or custom on the part of XEI to grant 120month terms of payments to it buyers?
Doctrine of Interlocking Confessions
It
states
that
extrajudicial
confessions
independently made without collusion which are
identical with each other in their essential details
and corroborated by other evidence against the
persons implicated, are admissible to show the
probability of the latter’s actual participation in the
commission of the crime. (People v. Mulit, G.R. No.
181043, October 8, 2008)
A: NO. Under Sec. 35, Rule 130, evidence that one
did or did not do a certain thing at one time is not
admissible to prove that he did or did not do the
same or a similar thing at another time; but it may
be received to prove usage, habit or custom.
Q: May an extrajudicial confession made by an
accused be sufficient ground for conviction
A: NO, unless it is corroborated by evidence of
corpus delicti. (Riguera, 2020)
Courts must contend with the caveat that before
they admit evidence of usage, habit or pattern or
conduct, the offering party must establish the
degree of specificity and frequency of uniform
response that ensures more than a mere tendency
to act in a given manner but rather conduct that is
semi-automatic in nature. In determining whether
the examples are numerous enough and
sufficiently regular, the key criteria are adequacy of
sampling and uniformity of response.
SIMILAR ACTS AS EVIDENCE
GR: 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, Rule 130, 2019 Amendments
to the Revised Rules on Evidence) This is also
referred to as the “Propensity Rule.” (2002 Bar)
NOTE: This provision constitutes as the second
branch of the res inter alios acta rule as previously
mentioned.
Here the defendants did not introduce an evidence
that XEI and all the lot buyers in the subdivision
had executed contracts of sale containing uniform
terms and conditions. Moreover even in the 3
contracts adduced by the defendants, there was no
uniformity as two referred to 120-month terms
while the third mentioned a 180-month term.
(Boston Bank v. Manalo, G.R. No. 158149, February
9, 2006).
XPNs: Evidence of similar or previous acts may be
received to prove the following: (SKIPS-SCHUL)
1.
2.
Identity;
Plan;
System;
Scheme;
Custom;
Habit;
Usage; and
The like (Ibid.)
Specific intent;
Knowledge;
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ADMISSIBILITY OF OFFERS OF COMPROMISE
CIVIL CASE
GR: It is NOT an
admission of any
liability and is NOT
admissible against
the offeror.
Neither is evidence
of
conduct
nor
statements made in
compromise
negotiations
admissible.
XPN:
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.
(Sec. 28, Rule 130,
2019 Amendments to
the Revised Rules on
Evidence)
Q: What is the underlying reason for the
adoption of the rule against the admission of an
offer of compromise in civil cases? (1997 Bar)
CRIMINAL CASE
GR: It may be received in
evidence as an implied
admission of guilt.
A: It is for the reason that parties are encouraged
to enter into compromises. Courts should endeavor
to persuade the litigants in a civil case to agree
upon some fair compromise. (Art. 2029, NCC)
During pre-trial, courts should direct the parties to
consider the possibility of an amicable settlement.
(Sec. 2[a], Rule 18, 2019 Amendments to the Revised
Rules on Evidence)
XPNs:
1. In
quasi-offenses
where there is no
criminal
intent
(negligence), such as
reckless imprudence;
2. In criminal cases
allowed by law to be
compromised
such
as:
a. Sec. 7(c), National
Internal Revenue
Code – The CIR
has the power to
compromise
minor
criminal
violations as may
be determined by
the Secretary of
Finance;
b. Sec. 408, Local
Government Code
– Allowed in
minor
offenses
whose penalties
do not exceed one
year;
c. Art. 266-C, Revised
Penal Code – In
cases of marital
rape,
where
subsequent
forgiveness by the
wife extinguishes
the
criminal
action or penalty.
(Suarez and De la
Banda, 2006)
Q: Berting was accused of having raped Lisa.
Rule on the admissibility of an offer of Berting
to marry Lisa. (1998 Bar)
A: Berting’s offer to marry Lisa is admissible in
evidence as an implied admission of guilt because
rape cases are not allowed to be compromised.
(Sec. 28, Rule 130, 2019 Amendments to the Revised
Rules on Evidence)
Q: Lloydie, while driving his car, ran over Bea.
Lloydie visited Bea at the hospital and offered
to pay for her hospitalization expenses. After
the filing of the criminal case against Lloydie
for serious physical injuries through reckless
imprudence, Lloydie’s insurance carrier offered
to pay for the injuries and damages suffered by
Bea. The offer was rejected because Bea
considered the amount offered as inadequate.
1. Is the offer by Lloydie to pay the
hospitalization
expenses
of
Bea
admissible in evidence?
2. Is the offer by Lloydie’s insurance
carrier to pay for the injuries and
damages of Bea admissible in evidence?
(1997 Bar)
A:
1.
2.
NOTE: No compromise is valid in the following
cases:
1.
2.
3.
4.
5.
6.
7.
8.
Civil status of persons;
Validity of a marriage or legal separation;
Any ground for legal separation;
Future support;
Jurisdiction of courts;
Future legitime;
Habeas corpus; and
Election cases (Herrera, 1999)
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
NO. It is not admissible in evidence to
prove his guilt in both the civil and
criminal cases. (Sec. 28, Rule 130, 2019
Amendments to the Revised Rules on
Evidence)
NO. It is irrelevant. The obligation of the
insurance company is based on the
contract of insurance and is not admissible
in evidence against the accused because it
was not offered by the accused but by the
insurance company which is not his agent.
Admissibility of plea or offer (2008 Bar)
OFFER OR PLEA
Plea of guilty later
withdrawn by the
ADMISSIBILITY
Not
admissible
in
evidence against the
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Evidence
accused.
Offer by the accused to
plead guilty to a lesser
offense but unaccepted
by prosecution
Offer to pay or payment
of medical, hospital or
other
expenses
occasioned by injury
(Good Samaritan Rule)
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
Q: In a police lineup, victim from behind a oneway mirror points to the acused as the one who
assaulted him. The victim dies before trial.
During the trial, the police officer conducting
the lineup is asked who the victim pointed to as
the culprit. May the defense object and if so, on
what grounds?
accused who made the
plea
Not
admissible
in
evidence against the
accused who made the
offer
Not
admissible
in
evidence as proof of
civil or criminal liability
for the injury. (Suarez
and De la Banda,
Evidence: A Lawyer’s
Companion, 2006 ed.)
Not admissible against
the accused who made
the statement (Sec. 28,
Rule
130,
2019
Amendments to the
Revised
Rules
on
Evidence)
A: YES, the defense may object on the ground of
hearsay. An out-of-court statement includes not
only oral or written assertions but also non-verbal
conduct intended as an assertion. The victim’s act
of pointing out a person in the lineup is a
nonverbal assertion. It is as if the victim was
saying, “He’s the one who assaulted me.” The
proponent may try to t the identification under the
excited-utterance exception. (Riguera, 2020)
When a statement is NOT considered as
hearsay
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:
Good Samaritan Rule
An offer to pay or the payment of medical, hospital
and other expenses occasioned by an injury is not
admissible in evidence as proof of civil and
criminal liability for the injury.
a.
RATIO: Humanitarian acts or charitable responses
should be encouraged and rewarded instead of
being discouraged or penalized. (Regalado, 2008)
b.
Unaccepted offer
An offer in writing to pay a particular sum of
money or to deliver a written instrument or
specific personal property is, if rejected without
valid cause, equivalent to the actual production and
tender of the money, instrument, or property. (Sec.
36, Rule 130, 2019 Amendments to the Revised Rules
on Evidence)
c.
HEARSAY RULE
Prior inconsistent statement under
oath - 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;
Prior consistent statement - 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
Prior statement of identification - One of
identification of a person made after
perceiving him or her. (Par. 2, Sec. 37, Rule
130, 2019 Amendments to the Revised Rules
on Evidence)
Elements of hearsay evidence
MEANING OF HEARSAY
1.
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. (Sec. 37, Rule 130, 2019 Amendments to the
Revised Rules on Evidence)
2.
NOTE: Newspaper clippings are hearsay and of no
evidentiary value at all whether objected to or not,
unless offered for a purpose other than proving the
truth of the matter asserted. (Feria v. CA, G.R. No.
122954, February 15, 2000)
The hearsay statement may be:
1.
2.
There must be an out-of-court statement;
and
The statement made out-of-court, is
repeated and offered by the witness in
court to prove the truth of the matters
asserted by the statement. (Riano, 2016)
An oral or written assertion; or
A non-verbal conduct of a person if it is
intended by him or her as an assertion.
(ibid)
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REMEDIAL LAW
Medical certificates cannot be admitted in the
absence of the testimony of the physician who
examined the complaint for alleged torture
wounds.
A witness can testify only to those facts which he or
she knows of his or her personal knowledge; that
is, which are derived from his or her own
perception. (Sec. 22, Rule 130, 2019 Amendments to
the Revised Rules on Evidence)
Affidavits are inadmissible unless the affiants
themselves are placed in the witness stand to
testify therefrom.
If it can be shown from the surrounding
circumstances that a hearsay declarant lacked
firsthand knowledge of the subject of his
declaration, evidence of that declaration will
ordinarily be excluded even if it would otherwise
come within some exception to the hearsay rule.
(Rules Committee Notes, citing Lempert & Saltzbur)
Statements made through an interpreter
GR: Statements made through an interpreter are
considered hearsay if a witness is offered to testify
to the statements of another person, spoken in a
language not understood by him, but translated for
him by an interpreter, such witness is not qualified,
because he does not speak from personal
knowledge. All that he can know as to the
testimony is from the interpretation thereof which
is in fact given by another person.
HEARSAY RULE
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.
The witness purports to
give an account of what
another has told him
and this is offered to
evidence the truth of
the other’s report.
XPNs: In cases where the interpreter had been
selected:
1.
2.
By common consent of the parties
endeavoring to converse; or
By a party against whom the statements of
the interpreter where offered in evidence
(Principal-Agent Rule).
REASON FOR EXCLUSION
OF HEARSAY EVIDENCE
a.
b.
c.
The lack of opportunity in the part of the
oarty against which it is offered to crossexamine the declarant, that is, the person
who made the statement.
The statement or declaration under oath.
The court does not have the opportunity to
observe the demeanor of the declarant.
(Riguera, 2020, citing Estrada v. Desierto,
G.R. Nos. 146710-15, April 3, 2001)
Subject
to
certain
exceptions exceptions.
The witness purports to
give the facts directly
upon his own credit
(though it may appear
later that he was
speaking only on the
faith of report from
others.
(Rules
Committee Notes, citing
McCormick)
Has
no
formal
exceptions.
(Rules
Committee Notes, citing
Lempert & Saltzbur)
Q: Romeo is sued for damages for injuries
suffered by the plaintiff in a vehicular accident.
Julieta, a witness in court, testifies that Romeo
told her that he heard Antonio, a witness to the
accident, gives an excited account of the
accident immediately after its occurrence. Is
Julieta’s testimony admissible against Romeo
over proper and timely objection? Why? (2002
Bar)
In criminal cases, its admission would be a
violation of the constitutional provision that the
accused shall enjoy the right of being confronted
with the witnesses testifying against him and to
cross-examine them. Moreover, the court is
without opportunity to test the credibility of
hearsay statements by observing the demeanor of
the person who made them. (People v. Pruna, G.R.
No. 138471, October 10, 2002)
A: NO, because the testimony is hearsay. In her
testimony, Julieta purports to give an account of
what Romeo had told her. In effect, she is testifying
to nothing more than her statement, and not the
truth of the facts asserted therein.
EVIDENCE NOT BASED ON PERSONAL
KNOWLEDGE vs. HEARSAY EVIDENCE
EXCEPTIONS TO THE HEARSAY RULE
(1999 BAR)
Evidence not based on personal knowledge
(Lack of first-hand knowledge rule)
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
LACK OF FIRST-HAND
KNOWLEDGE RULE
Consists of testimony
that is not based on
personal knowledge of
the person testifying.
1.
Dying declaration (Sec. 38, Rule 130);
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Evidence
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Statement of decedent or person of
unsound mind (Sec. 39, Rule 130)
Declaration against interest (Sec. 40, Rule
130);
Act or declaration about pedigree (Sec. 41,
Rule 130);
Family reputation or tradition regarding
pedigree (Sec. 42, Rule 130);
Common reputation (Sec. 43, Rule 130);
Part of res gestae (Sec. 44, Rule 130);
Records of regularly conducted business
activity (Sec. 45, Rule 130);
Entries in official records (Sec. 46, Rule
130);
Commercial lists and the like (Sec. 47, Rule
130);
Learned treatises. (Sec. 48, Rule 130);
Testimony or deposition at a former
proceeding (Sec. 49, Rule 130); and
Residual exception (Sec. 50, Rule 130, 2019
Amendments to the Revised Rules on
Evidence)
Requisites for the admissibility of a dying
declaration
1.
2.
3.
4.
The declaration concerns the cause and
the surrounding circumstances of the
declarant’s death;
It is made when death appears to be
imminent and the declarant is under
consciousness of an impending death;
The declarant would have been competent
to testify had he or she survived; and
The dying declaration is offered in a case
in which the subject inquiry involves the
declarant’s death. (People of the Philippines
v. Gatarin, G.R. No. 198022, April 7, 2014)
NOTE: In order to ake a dying declaration
admissible, a fixed belief in inevitable and imminent
death must be entered by the declarant. It is the
belief in impending death and not the rapid
succession of death in point of fact that renders a
dying declaration admissible. (People of the
Philippines v. Quiasayas, G.R. No. 198022, April 7,
2014)
NOTE: The exceptions are hearsay but they are
deemed admissible by reason of necessity and
trustworthiness (Riano, 2016).
Test to determine the application of the rule on
dying declaration
Reason for admissibility
Whether the declarant has abandoned all hopes of
survival and looked on death as certainly
impending. (Ibid.)
They are admissible by reason of relevancy,
necessity and trustworthiness. (Estrada v. Desierto,
supra)
Time interval
DYING DECLARATION
(Sec. 38, Rule 130)
GR: The intervening time from the making of a
dying declaration up to the time of death is
immaterial in its admissibility, as long as it was
made under the consciousness of impending death.
The declaration of a dying person, made under the
consciousness of an impending death, may be
received in any case wherein his death is the
subject of inquiry, as evidence of the cause and
surrounding circumstances of such death. (Sec. 38,
Rule 130, 2019 Amendments to the Revised Rules on
Evidence) (1991, 1992, 1993, 1996, 1998, 1999,
2007, 2010, 2017 BAR)
XPNs:
1.
2.
These are ante mortem statements made by a
person after the mortal wound has been inflicted
under the belief that the death is certain, stating
the fact concerning the cause of and the
circumstances surrounding the attack. (Herrera,
1999)
If there is retraction made by the declarant
before he died; or
His declaration is ambiguous as to
whether he believed that his death was
imminent when he made such declaration.
(Regalado, 2008)
It is of no moment that the victim died seven days
from the stabbing incident and after receiving
adequate care and treatment, because the apparent
proximate cause of his death was a consequence of
the stabbing. (People of the Philippines v. Rarugal,
G.R. No. 188603, January 16, 2013)
NOTE: Where the elements of both a dying
declaration and a statement as part of the res
gestae are present, the statement may be admitted
as a dying declaration and at the same time as part
of res gestae. (People v. Gado, G.R. No. 129556,
November 11, 1998)
Factors in determining whether the declarant is
conscious of his impending death
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REMEDIAL LAW
1.
2.
3.
The words or statements of the declarant
on the same occasion;
His conduct at the time the declaration
was made; and
The serious nature of his wounds as would
necessarily engender a belief on his part
that he would not survive therefrom.
(Regalado, 2008)
statement was repeated to Borre’s wife,
Resurreccion, who followed him at the hospital.
For his part, Palanas interposed the defense of
denial and alibi. He claimed that on the day
before the incident, he was in Parañaque City
attending to the needs of his sick father. On the
next day, he went to Tondo, Manila for a
baptism and stayed there from morning until
9:00 p.m., after which he returned to his father
in Parañaque City. He maintained that he was
not aware of the death of Borre until he was
informed by a neighbor that Resurreccion was
accusing him of killing her husband.
NOTE: The dying declaration of the deceased is not
admissible as an ante-mortem declaration when
the deceased was in doubt as to whether he would
die or not. It may, however, be admitted as part of
res gestae when it is made immediate after a
startling occurrence. (People of the Philippines v.
Laquinon, G.R. No. L-45470, February 28, 1985)
Can Borre’s statements on his way to the
hospital be considered a dying declaration and
part of the res gestae?
Q: Sam was charged with robbery and
homicide. Kitchie, the victim, suffered several
stab wounds. It appears that 11 hours after the
crime, while Kitchie was being brought to the
hospital in a jeep, with his brother and a
policeman as companions, Kitchie was asked
certain questions which she answered, pointing
to Sam as her assailant. Her answers were put
down in writing, but since she was in a critical
condition, her brother and the policeman
signed the statement. Is the statement
admissible as a dying declaration? Explain.
(1999 BAR)
A: YES. Borre’s statements constitute a dying
declaration as they pertained to the cause and
circumstances of his death. Moreover, taking into
consideration the number and severity of his
wounds, it may be reasonably presumed that he
uttered the same under a fixed belief that his own
death was already imminent.
In the same vein, Borre’s statements may likewise
be deemed to form part of the res gestae as they
refer to a startling occurrence, i.e., him being shot.
While on his way to the hospital, Borre had no time
to contrive the identification of his assailants, thus,
his utterance was made in spontaneity and only in
reaction to the startling occurrence. (People v.
Palanas, G.R. No. 214453, June 17, 2015)
A: YES. The statement is admissible as a dying
declaration if the victim subsequently died and her
answers were made under the consciousness of an
impending death. The fact that she did not sign the
statement pointing to the accused as her assailant
because she was in a critical condition does not
affect its admissibility as a dying declaration.
(People v. Viovicente, G.R. No. 118707, February 2,
1998)
Assailing a dying declaration
The declaration may be attacked in the same
manner as one would do a testimony in open court.
The declarant himself may be impeached through
the normal methods provided for under the rules.
A dying declaration, as an exception to the hearsay
rule, is not meant to confer competency on an
otherwise incompetent witness.
NOTE: A dying declaration may be oral or written.
If oral, the witness who heard it may testify thereto
without the necessity of reproducing the word of
the decedent, if he is able to give the substance
thereof. An unsigned dying declaration may be
used as a memorandum by the witness who took it
down. (People v. Boller, G.R. Nos. 144222-24, April 3,
2002)
STATEMENT OF DECEDENT OR A PERSON OF
UNSOUND MIND
(Sec. 39, Rule 130)
Requisites:
Q: Zapanta, while watching television, heard 4
successive gunshots. When Zapanta looked
through the open door, he saw 2 men armed
with .38 caliber revolvers standing a meter
away from Borre. He saw Palanas deliver the
fourth shot but he could not identify the other
shooter. On the way to the hospital, Borre told
Zapanta that it was "Abe", "Aspog" or "Abe
Palanas", his neighbor, who shot him. This
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
1.
2.
There is an action against an executor or
administrator or other representative of a
deceased person, or against a person of
unsound mind;
The action is upon a claim or demand
against the estate of such deceased person
or against such person of unsound mind;
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3.
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.;
4. There was a statement made by the
deceased or the person of unsound mind;
5. Such statement was made upon the
personal knowledge of the deceased or
the person of unsound mind at a time
when:
These are ante litem motam statements made by a
person who is neither a party nor in privity with a
party to the suit. Such are considered secondary
evidence and admissible only when the declarant is
already dead or unavailable to testify as a witness
and may be admitted against himself or
successors-in-interest and against third persons.
Reason for the admissibility of declaration
against interest
1.
a. the matter had been recently
perceived by him or her; and
b. while his or her recollection
was clear.
2.
If all the requisites are met the statement of the
decedent or the person of unsound mind may be
received in evidence as an exception to the hearsay
rule.
Necessity - as such declaration, act, or
omission is frequently the only mode of
proof available; and
Trustworthiness - presumed that men
will neither falsify nor commit mistakes
when such falsehood or mistake would be
prejudicial to their own pecuniary interest,
and because of the fact that any fraudulent
motive for making the statement may be
shown.
Requisites of declaration against interest
NOTE: Such statement, however, is INADMISSIBLE
if made under circumstances indicating its lack of
trustworthiness.
1.
The declarant is dead or unable to testify;
NOTE: The inability to testify must be
serious.
NOTE: The rule proscribes the admission of
testimonia evidence upon a claim which arose
before the death of the accused. It does not aply to
documentar evidence. (Sanson v. CA, G.R. No.
127745, April 22, 2003)
3.
DECLARATION AGAINST INTEREST
(Sec. 40, Rule 130)
4.
2.
The declaration made by a person deceased or
unable to tesify against the interest of the
declarant, if the fact asserted in the declaration was
at the time it 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 t exculpate the accused is not admissible
unless corroborating circumstances clearly
indicate the trustworthiness of the statement. (Sec.
40, Rule 130, 2019 Amendments to the Revised Rules
on Evidence)
The declaration relates to a fact against the
interest of the declarant;
At the time he made said declaration, he
was aware that the same was contrary to
his interest; and
The declarant had no motive to falsify and
believed such declaration to be true.
Q: Alejandro Cuenca was charged with the
crime of kidnapping Hector Ocampo. One of the
testimonies presented by the prosecution was
that of Maribelle Magdayao, who testified that
Hector confided to her that he and Alejandro’s
wife Rubi were having an affair. Undoubtedly,
his wife’s infidelity was ample reason for
Alejandro
to
contemplate
revenge.
Consequently, the trial court convicted
Alejandro based on the testimonies of the
witnesses. Was the testimony of Maribelle
admissible as evidence?
A: YES. Hector’s revelation to Maribelle regarding
his illicit relationship with Alejandro’s wife is
admissible in evidence, pursuant to Section 38,
Rule 130. With the deletion of the phrase
“pecuniary or moral interest” from the present
provision, it is safe to assume that “declaration
against interest” has been expanded to include all
kinds of interest, that is, pecuniary, proprietary,
moral or even penal. Hector having been missing
NOTE: A statement against interest tending to
expose the declarant to criminal liability and
offered to exculpate the accused (which is
presumably different from the declarant) is not
admissible unless corroborating circumstances
clearly indicate trustworthiness of the statement.
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REMEDIAL LAW
since his abduction, cannot be called upon to
testify. His confession to Maribelle, definitely a
declaration against his own interest, since his affair
with Rubi was a crime, is admissible in evidence
because no sane person will be presumed to tell a
falsehood to his own detriment. (People v. Bernal,
G.R. No. 113685, June 19, 1997)
Pedigree
It includes:
1.
2.
3.
4.
5.
6.
Declaration against interest vs. Admission
against interest
DECLARATION
AGAINST INTEREST
Made by a non-party.
Must be against the
declarant’s interest.
Secondary evidence is
admissible only when
the declarant is already
dead or unavailable to
testify as a witness.
Hearsay, but admissible
as an exception to the
hearsay rule.
Must have been made
ante litem motam, i.e.
before the controversy
The declarant must be
dead or unable to
testify.
Admissible against the
declarant and third
persons.
7.
8.
ADMISSION AGAINST
INTEREST
Made by a party to a
litigation or by one in
privity
with
or
identified
in
legal
interest with such party.
Need not be against the
admitter’s interest.
NOTE: The relationship between the declarant and
the person subject of the inquiry must be
legitimate unless the issue is the legitimacy itself.
There is no provision as to the extent of degree of
relationship.
Primary evidence is
admissible whether the
declarant is available as
a witness.
Not
hearsay,
admissible.
Rationale for admissibility
1.
thus
2.
May be made at any
time, before or during
the trial.
No requirement that the
admitter is dead or
unable to testify.
Admissible only against
the admitter.
Necessity- since the facts about pedigree
are usually those which occurred many
years before the trial and known only to a
few persons; and
Trustworthiness- since these are matters
which members of a family are presumed
to be interested in ascertaining the truth.
Requisites for the admissibility of acts or
declarations about pedigree
1.
2.
3.
ACT OR DECLARATION ABOUT PEDIGREE
(Sec. 41, Rule 130)
The act or declaration of a person deceased or
unable to tesitify, 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
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. (Sec. 4, Rule 130, 2019
Amendments to the Revised Rules on Evidence)
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
Relationship;
Family genealogy;
Birth;
Marriage;
Death;
The dates when and the places where the
facts occurred;
Names of the relatives; and
Facts of family history intimately
connected with pedigree. (Ibid.)
4.
5.
The declarant is dead or unable to testify;
The pedigree should be in issue;
The declarant must be a relative of the
person whose pedigree is in question,
either by birth or marriage or adoption
(Sec. 4, Rule 130) or in the absence thereof,
by person whose family he or she was so
intimately associated as to be likely to
have accurate information concerning his
or her pedigree;
The declaration must be made ante litem
motam or before the controversy
occurred; and
The relationship between the declarant
and the person whose pedigree is in
question must be shown by evidence other
than such act or declaration. (Tecson v.
COMELEC, G.R. No. 161434, March 3, 2004)
NOTE: Such declarations are natural expressions of
persons who must know the truth. Although
hearsay, it is best that the nature of the case admits
and because greater evil might arise from the
rejection of such proof than from its admission.
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FAMILY REPUTATION OR TRADITION
REGARDING PEDIGREE
(Sec. 42, Rule 130)
Act or declaration about pedigree (Sec. 41, Rule
130) vs. Family reputation regarding pedigree
Sec. 42, Rule 130)
The declarant is the witness himself and a member
of the family. The witness is the one to whom the
fact relates, it is not necessary for him to establish
by independent evidence his relationship to the
family.
ACT OR DECLARATION
ABOUT PEDIGREE
Witness need not be a
member of the family.
Relation
of
the
declarant
and
the
person subject of the
inquiry
must
be
established
by
independent evidence.
The reputation or tradition existing in a family
previous to the controversy in respect to the
pedigree of any one of its members, may be
received in evidence if the witness testifying
thereon be also a member of the family, either by
consanguinity, affinity or adoption. Entries in
family bibles or other family books or charts,
engraving on rings, family portraits and the like,
may be received as evidence of pedigree. (Sec 42,
Rule 130, 2019 Amendments to the Revised Rules on
Evidence)
Testimony is about
what the declarant has
said concerning the
pedigree of the family.
FAMILY REPUTATION
OR TRADITION
REGARDING
PEDIGREE
Witness is a member of
the family.
The witness is the one
to whom the fact
relates,
it
is
not
necessary for him to
establish
by
independent evidence
his relationship to the
family. (Francisco, 1992)
Testimony is about
family reputation or
tradition
covering
matters of pedigree.
Reason for admissibility
COMMON REPUTATION
(Sec. 43, Rule 130)
These are admissible by reason of necessity since
tradition is often the sole method by which proof of
matters of pedigree can be obtained.
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. (Sec 43, Rule
130, 2019 Amendments to the Revised Rules on
Evidence)
Requisites for the admissibility of family
reputation or tradition regarding pedigree
1.
2.
3.
4.
There is controversy in respect to the
pedigree of any member of the family;
The reputation or tradition of the pedigree
of the person concerned existed previous
to the controversy;
The statement is about the reputation or
tradition of the family in respect to the
pedigree of any member of the family; and
The witness testifying to the reputation or
tradition regarding pedigree of the person
concerned must be a member of the family
of said person either by consanguinity,
affinity or adoption.
It is the definite opinion of the community in which
the fact to be proved is known or exists. It means
the general or substantially undivided reputation,
as distinguished from a partial or qualified one,
although it need not be unanimous. (Regalado,
2008)
NOTE: As a general rule, the reputation of a person
should be that existing in the place of his residence;
it may also be that existing in the place where he is
best known. (Ibid.) Character is what a man is, and
reputation is what he is supposed to be in what
people say he is. (Lim v. CA, G.R. No. 91114,
September 25, 1992)
How to establish family reputation or tradition
with respect to one’s pedigree
1.
2.
Through testimony in open court of a
witness who must be a member of the
family either by consanguinity, affinity, or
adoption; or
Through entries in:
a.
b.
c.
d.
Reasons for admissibility
Family bible;
Family books or charts;
Engravings on rings; or
Family portraits and the like.
1.
Necessity arising from the inherent
difficulty of obtaining any other evidence
than that in the nature of common
reputation; and
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2.
Trustworthiness of the evidence arising
from:
a. The supposition that the public is
conversant with the subject to be
proved because of their general
interest therein; and
b. The fact that the falsity or error of
such evidence could be exposed or
corrected by other testimony since the
public are interested in the same.
(Francisco, 1992)
considerable number of persons forming part of
the community.
PART OF THE RES GESTAE
(Sec. 44, Rule 130)
Res Gestae (2005, 2007, 2014 BAR)
It is a Latin phrase which literally means “things
done.”
Statements made by a person while a startling
occurrence is taking place or immediately prior or
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.
Matters that may be established by common
reputation
1.
2.
3.
Matters of public and general interest
more than 30 years old;
Matters respecting marriage or moral
character and related facts; and
Individual moral character.
NOTE: Marriage, if not proven through an act or
declaration about pedigree may be proven through
common reputation. (Trinidad v. CA, G.R. 118904,
April 20, 1998)
As an exception to the hearsay rule, it refers to
those exclamations and statements by either the
participants, victims, or spectators to a crime
immediately before, during or immediately after
the commission of the crime, when the
circumstances are such that the statements were
made as spontaneous reactions or utterances
inspired by the excitement of the occasion, and
there was no opportunity for the declarant to
deliberate and fabricate a false statement. (Capila v.
People, G.R. No. 146161, July 17, 2006)
Q: In an attempt to discredit and impeach a
prosecution witness in a homicide case, the
defense counsel called to the stand a person
who had been the boyhood friend and nextdoor neighbor of the the said witness for 30
years. One question that the defense counsel
asked of the impeaching witness was: "Can you
tell this Honorable Court about the general
reputation of the prosecution witness in your
community for aggressiveness and violent
tendencies?" As the trial prosecutor, would you
interpose your objection to the question of the
defense counsel? Explain your answer.
Res gestae refers to the circumstances, facts, and
declarations that grow out of the main fact and
serve to illustrate its character and ar so
spontaneous and contemporaneous with the main
act as to exclude the idea o deliberation and
fabrication. (People of the Philippines v. Quiasayas,
G.R. No. 198022, April 7, 2014)
A: YES. Under the Rules, an adverse party’s witness
may be properly impeached by reputation
evidence provided that it is to the effect that the
witness’ general reputation for honesty, truth, or
integrity was bad. The reputation must only be on
character for truthfulness or untruthfulness.
(Cordial v. People, G.R. No. L-75880, September 25,
1992)
Test of Admissibility
The test is whether the act, declaration,
exclamation is so intimately interwoven or
connected with the principal fact or even that it
characterizes as to be regarded as a part of the
transaction itself, and also whether it clearly
negates any premeditation or purpose to
manufacture testimony. (Ibid.)
Difference between matters of public interest
and matters of general interest
Reason for admissibility
Matters of public interest involve those which are
common to all citizen of the state or to the entire
people.
The reason for the rule is human experience. It has
been shown that under certain external
circumstances of physical or mental shock, the
state of nervous excitement which occurs in a
spectator may produce a spontaneous and sincere
Matters of general interest involve those which
are common only to a single community or to a
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
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Evidence
response to the actual sensations and perceptions
produced by the external shock.
1.
2.
The spontaneity of the declaration is such that the
declaration itself may be regarded as the event
speaking through the declarant rather than the
declarant speaking for himself.
3.
4.
The principal act to be characterized must
be equivocal;
The equivocal act must be material to the
issue;
The statement must accompany the
equivocal act; and
The statement gives a legal significance to
the equivocal act.
Requisites for the admissibility of res gestae
1.
2.
3.
NOTE: The reason for the admissibility of verbal
acts is that the motive, character and object of an
act are frequently indicated by what was said by
the person engaged in the act.
That the principal act, the res gestae, be a
startling occurrence;
The statements were made before the
declarant had te time to contrive or devise
a alsehood; and
That the statements must concern the
occurrence in questions and its immediate
attending circumstances. (People of the
Philippines v. Estibal, G.R. No. 208749,
November 26, 2014)
Part of res gestae vs. Dying Declaration
PART OF RES GESTAE
It is the event itself
which speaks.
Factors to determine spontaneity of declaration
1.
2.
3.
4.
5.
May be made by the
killer after or during the
killing or that of a third
person.
May
precede,
or
accompany or follow
the principal act.
The time that has lapsed between the
occurrence of the act or transaction and
the making of the statement;
The place where the statement is made;
The condition of the declarant when the
utterance is given;
The presence or absence of intervening
events between the occurrence and the
statement relative; and
The nature and the circumstances of the
statement itself. (Francisco, 1992)
Justification
spontaneity
statement.
Q: Edgardo Lupac was convicted of the crime of
rape. One of the evidence adduced was AAA’s
spontaneous, unhesitating and immediate
denunciation of the rape to her Tita Terry and
her mother (hindot and inano ako ni Kuya Ega
being the term she used). Is the statement
made by AAA part of the res gestae under
Section 42, Rule 130 of the Rules of Court?
is
of
the
the
DYING DECLARATION
A sense of impending
death takes the place of
an oath and the law
regards the declarant as
testifying.
Can be made by the
victim only.
Confined to matters
occurring after the
homicidal act.
Justification
is
the
trustworthiness, being
given by the person
who was aware of his
impending death.
Q: Gilberto Villarico, Sr., Gilberto Villarico, Jr.,
Jerry Ramentos, and Ricky Villarico were
convicted of the crime of murder for the killing
of Haide Cagatan. One of the pieces of evidence
adduced was a statement of Haide to his
mother saying that Berting shot him in the
immediate aftermath of the shooting where he
was the victim. Is the statement made by Haide
admissible?
A: YES. AAA’s denunciation was part of the res
gestae. AAA went to Tita Terry’s house
immediately after fleeing from Lupac and
spontaneously, unhesitatingly and immediately
declared to Tita Terry that Lupac had sexually
abused her. Such manner of denunciation of him as
her rapist was confirmed by Tita Terry’s testimony
about AAA’s panic-stricken demeanor that
rendered it difficult to quickly comprehend what
the victim was then saying. Of course, AAA’s use of
the words “hindot and inano ako ni Kuya Ega” said
enough about her being raped. (People v. Lupac,
G.R. No. 182230, September 19, 2012)
A: YES. Haide’s statement was part of the res gestae
and was admissible. The requisites concurred
herein. Firstly, the principal act of shooting Haide
was a startling occurrence. Secondly, his statement
to his mother about being shot by the group of
Berting was made before Haide had time to
contrive or to devise considering that it was
uttered immediately after the shooting. And,
thirdly, the statement directly concerned the
startling occurrence itself and its attending
circumstance: that is, the identities of the
assailants. (People v. Villarico, et. al., G.R. No.
158362, April 4, 2011)
Verbal Acts
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In the case, the statements made by PO2 Asintado
constitutes part of res gestae since the same were
made without any opportunity to fabricate and
while a startling occurrence was actually taking
place. In addition, the statement of PO2 Asintado
may fall within the purview of the doctrine of
independent relevant statement, where only the
fact that such statements were made is relevant,
and the truth and falsity thereof is immaterial.
(People v. Malibiran, G.R. No. 178301, April 24,
2009) On the other hand, Kulasa’s statements are
also admissible as part of res gestae since the same
were made under the influence of a startling event
and without any opportunity to concoct or devise a
falsehood.
Q: While passing by a dark uninhabited part of
their barangay, PO2 Asintado observed
shadows and heard screams from a distance.
PO2 Asintado hid himself behind the bushes
and saw a man beating a woman whom he
recognized as his neighbour, Kulasa. When
Kulasa was already in agony the man stabbed
her and she fell on the ground. The man
hurriedly left thereafter. PO2 Asintado
immediately went to Kulasa’s rescue. Kulasa
who was then in a state of hysteria, kept
mentioning to PO2 Asintado “Si Rene, gusto
akong patayin! Sinaksak niya ako!” When PO2
Asintado was about to carry her, Kulasa refused
and said “Kaya ko. Mababaw lang to. Habulin
mo si Rene.” The following day, Rene learned of
Kulasa’s death and, bothered by his conscience,
surrendered to the authorities with his counsel.
As his surrender was broadcasted all over
media, Rene opted to release his statement to
the press which goes:
RECORDS OF REGULARLY CONDUCTED
BUSINESS ACTIVITY
(Sec. 45, Rule 130)
A memorandum, report, record or data compilation
of acts, events conditions, opinions or diagnoses
made by writing, typing, electronic, optical or other
similar means at or near the time of or from
transmission or supply of information by a person
with knowledge thereof, and kept in the regular
course or conduct of a business activity, and such
was the regular pracrice to make the
memorandum, report, record, or data compilation
by electronic, optical or similar means, all of which
are shown by the testimony of the custodian or
other qualified witnesses is excepted from the rule
in hearsay evidence. (Sec. 45, Rule 130, 2019
Amendments to the Revised Rules on Evidence)
“I believe that I am entitled to the
presumption of innocence until my guilt
is proven beyond reasonable doubt.
Although I admit that I performed acts
that may take one’s life away, I hope
and pray that justice will be served in
the right way. God bless us all.
(Sgd.)
Rene”
The trial court convicted Rene of homicide on
the basis of PO2 Asintado’s testimony, Kulasa’s
statements, and Rene’s statement to the press.
On appeal, Rene raises the following error:
NOTE: Reliability is furnished by the fact that
regularly kept records typically have a high degree
of accuracy. The law does not fix any precise
moment when the entries should be made. It is
sufficient if the entry was made within a
reasonable period of time so that it may appear to
have taken place while the memory of the facts was
unimpaired.
The trial court erred in giving weight to PO2
Asintado’s testimony, as the latter did not have
personal knowledge of the facts in issue, and
violated Rene’s right to due process when it
considered Kulasa’s statements despite lack of
opportunity
for
her
cross-examination.
Resolve. (2014 Bar)
Availability or unavailability of the entrant
A: The trial court did not err in giving weight to
PO2 Asintado’s testimony. While a witness can only
testify as to those facts which he has personal
knowledge, the Rules provide that a statement
made under the influence of a startling event
witnessed by the person who made the declaration
before he had time to think and make up a story, or
to concoct or contrive a falsehood, or to fabricate
an account, and without any undue influence in
obtaining it, aside from referring to the event in
question or its immediate attending circumstances,
is an exception being part of res gestae. (Belbis, Jr.,
v. People, G.R. No. 181052, November 14, 2012)
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
A significant change or innovation under Sec. 45 is
that the availability or unavailability of the entrant
is no longer material. Under the old rule on
business entries, it was required that the entrant
be dead or unavailable to tesify. (Riguera, 2020)
Requisites for the admission of a business
record as an exception to the hearsay rule
1.
There is a memorandum, report or data
compilation of acts, events, conditions,
opinions, made by writing, typing,
electronic, optical or other similar means;
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2.
3.
4.
5.
6.
The memorandum etc. is made at or near
the tme of the act, event, etc.;
The memorandum etc, is made by, or from
transmission or supply of information by,
a person with knowledge of the act, event,
etc.;
The memorandum, etc. is kept in the
regular course or conduct of a business
activity;
It was the regular practice of the business
activity to make the memorandum, report,
record or data compilation by writing,
typing, electronic, optical or similar
means;
All of the foregoing conditions are shown
by the testimony of the custodian or other
qualidfied witnesses. (Riguera, 2020)
1.
2.
3.
Entries in official record vs. Entries in the
course of business
Q: Are business records prima facie evidence of
the facts stated therein?
A: No longer under the 2019 Amendments to the
Revised Rules on Evidence. (Riguera, 2020)
ENTRIES IN OFFICIAL RECORDS
(Sec. 46, Rule 130)
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. (Sec. 46, Rule
130, 2019 Amendments to the Revised Rules on
Evidence)
Need
not
authenticated.
Needs authentication.
be
COMMERCIAL LISTS AND THE LIKE
(Sec. 47, Rule 130)
Register;
Cash book; or
An official return or certificate (Regalado,
2008)
Evidence of statements of matters of interest to
persons engaged in an occupation contained in a
list, register, periodical, or other published
compilation is admissible as tending to prove the
truth of any relevant matter so stated if that
compilation is published for use by persons
engaged in that occupation and is generally used
and relied upon by them therein. (Sec. 47, Rule 130,
2019 Amendments to the Revised Rules on Evidence)
Reason for admissibility
2.
ENTRIES IN THE
COURSE OF BUSINESS
It is sufficient that the
entrant
made
the
entries pursuant to a
duty
be
it
legal,
contractual, moral or
religious.
Entrant must be dead or
unable to testify.
A: NO, as they are not conclusive evidence of the
truth of the contents but merely of the fact that
they were recorded. (People v. Cabrera, Jr., G.R. No.
138266, April 30, 2003)
The original document that is legally recognized
and thus ensuring the quality of a fact when it is
established. It may be a:
1.
ENTRIES IN
OFFICIAL RECORD
The entrant, if a private
individual, must have
acted pursuant to a
specific
legal
duty
specially enjoined by
law.
Entrant need not be
dead or unable to
testify.
Q: Should entries in the police blotter be given
probative value?
Official record
1.
2.
3.
Entrant had personal knowledge of the
facts stated by him or such facts were
acquired by him from reports made by
persons under a legal duty to submit the
same.
Entries were made by a public officer in
the performance of his duties or by a
person in the performance of a duty
especially enjoined by law; and
Entries must have been made in official
records. (Ibid.)
Necessity – due to the impossibility of
requiring the official’s attendance as a
witness to testify to the innumerable
transactions occurring in the course of his
duty; and
Trustworthiness – there is a presumption
of regularity in the performance of official
duty.
Reason for admissibility of commercial lists
1.
Requisites for the admissibility of entries in
official records (KPOP)
Necessity - because of the usual
inaccessibility of the persons responsible
for the compilation of matters contained in
such lists, it would cause the court
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2.
inconvenience if it would issue summons
to these numerous individuals; and
Trustworthiness - persons responsible for
such lists have no motive to deceive and
they further realize that unless the list,
register or periodical or other published
compilation are prepared with care and
accuracy, their work will have no
commercial or probative value.
3.
4.
LEARNED TREATISES
(Sec. 48, Rule 130)
A published treatise, periodical or pamphlet on a
subject of history, law, science, or art is admissible
as tending to prove the truth of a matter stated
therein if the court takes judicial notice, or a
witness expert in the subject testifies, that the
writer of the statement in the treatise, periodical or
pamphlet is recognized in his or her profession or
calling as expert in the subject. (Sec. 48, Rule 130,
2019 Amendments to the Revised Rules on Evidence)
Requisites for the admissibility of commercial
lists and the like
1.
2.
3.
4.
Statements of matters of interest to
persons engaged in an occupation;
Statements must be contained in a list,
register, periodical, or other published
compilation;
Compilation is published for use by
persons engaged in that occupation; and
Such is generally relied upon by them.
Reason for admissibility
The learned writers have no motive to
misrepresent due to the awareness that his work
will be carefully scrutinized by the learned
members of the profession and that he shall be
subject to criticisms and be ultimately rejected as
an authority on the subject matter if his
conclusions are found to be invalid.
Q: In a compulsory arbitration case between
Mercalco and its union, may the Secretary of
Labor take into account a newspaper report
citing an All Asia Capital finance analyst’s
estimate o Meralco’s 1996 net operating
income at P5.6 billion and upon which the
union relied upon in order to support its
position on the wage issue?
Requisites for the admissibility of learned
treatises
A: NO. Under Sec. 47, Rule 130, statement of
matters contained in a periodical may be admitted
only “if that compilation is published for use by
persons engaged in that occupation and is
generally used and relied upon by them therein.”
The cited report is a mere newspaper account and
not even a commercial list. At most, it is but an
analysis or opinion which carries no persuasive
weight as no sufficient figures to support it were
presented. Neither did anybody testify to its
accuracy. It cannot be said that businessmen
generally rely on news items such as this in their
occupation. Besides, no evidence was presented
that the publication was regularly prepared by a
person in touch with the market and that it is
generally regarded as trustworthy or reliable.
Absent extrinsic proof of the accuracy, these
reports are not admissible. (Riguera, 2020, citing
Manila Electric Co. v. Quisumbing, G.R. No. 127598,
February 22, 2000)
1.
2.
2.
The testimony or deposition of a witness deceased
or out of the Philipiines 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, involcing
the same parties and subject matter, may be given
in evidence against the adverse party whi had the
opportunity to cross examine him or her. (Sec. 49,
Rule 130, 2019 Amendments to the Revised Rules on
Evidence)
Trade journals reporting current prices
and other market data;
Mortality tables compiled for life
insurance;
Requisites for the rule on former testimony to
apply
1.
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
When the court can take judicial notice of
them; or
When an expert witness testifies that the
author of such is recognized as expert in
that profession. (Sec. 48, Rule 130, 2019
Amendments to the Revised Rules on
Evidence)
TESTIMONY OR DEPOSITION AT A FORMER
PROCEEDING
(Sec. 49, Rule 130)
Examples of commercial lists
1.
Abstracts of title compiled by reputable
title examining institutions or individuals;
or
Business directories, animal pedigree
registers, and the like. (Francisco, 1992)
The witness is dead or unable to testify;
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2.
3.
His testimony or deposition was given in a
former case or proceeding, judicial or
administrative, between the same parties
or those representing the same interests;
The former case involved the same subject
as that in the present case, although on
different causes of action;
Grounds which make a witness unable to testify
in a subsequent case
1.
2.
3.
NOTE: Section 47 (now Sec. 49), Rule 130
requires that the issues involved in both
cases must, at least, be substantially the
same; otherwise, there is no basis in
saying that the former statement was - or
would have been - sufficiently tested by
cross-examination or by an opportunity to
do so. The requirement of similarity
though does not mean that all the issues in
the two proceedings should be the
same. Although some issues may not be
the same in the two actions, the
admissibility of a former testimony on an
issue which is similar in both actions
cannot be questioned.
4.
5.
Proof of former testimony
1.
2.
RESIDUAL EXCEPTION
(Sec. 50, Rule 130)
A statement not specifically covered by any of the
exceptions, having circumstantial guarantees of
trustworthiness, is admissible provided the
conditions under Sec. 50, Rule 130 are present.
Requisites for admissibility
1.
5.
If reduced to writing, such writing is the
primary evidence thereof and should be
used; or
The stenographic notes or a copy thereof.
NOTE: The judge’s notes are not evidence of what
the witness said, and, as a rule, they can be used
only to refresh the memory of a witness.
These considerations, among others, make
Section 47, Rule 130 a distinct rule on
evidence and therefore should not be
confused with the general provisions on
deposition under Rule 23 of the Rules of
Court. In other words, even if the
petitioner complies with Rule 23 of the
Rules of Court on the use of depositions,
the observance of Section 47, Rule 130 of
the Rules of Court cannot simply be
avoided or disregarded. (Republic v.
Sandiganbayan, G.R. No. 152375, December
13, 2011)
4.
Death;
Insanity or mental incapacity or the
former witness’ loss of memory through
old age or disease;
Physical disability by reason of sickness or
advanced age;
The fact that the witness has been kept
away by contrivance of the opposite party;
or
The fact that after diligent search the
former witness cannot be found.
(Francisco, 1992)
The issue testified to by the witness in the
former trial is the same issue involved in
the present case; and
The adverse party had an opportunity to
cross-examine the witness in the former
case. (Ambray v. Tsuorous, G.R. No. 209264,
July 5, 2016)
2.
3.
Reason for admissibility
4.
The reasons for the admissibility of testimony
taken at a former trial or proceeding are the
necessity for the testimony and its trustworthiness.
However, before the former testimony can be
introduced in evidence, the proponent must first
lay the proper predicate therefor, i.e., the party
must establish the basis for the admission of
testimony in the realm of admissible evidence.
(Ibid.)
The
statement,
having
equivalent
circumstantial
guarantees
of
trustworthiness, must not be covered by
any of the foregoing exceptions;
The statement is offered as evidence of a
material fact;
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
The general purposes of these rules and
the interests of justice will be best served
by admission of the statement of evidence.
(Sec. 50, Rule 130, 2019 Amendments to the
Revised Rules on Evidence)
NOTE: 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
tral of the main case, to provide the adverse party
with a fair opportunity to meet it, the proponent’s
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intention to offer the statement and the particulars
of it, including the name and address of the
declarant. (Ibid.)
A: YES. The testimony of Annie is admissible in
evidence as an independently relevant statement.
It is offered in evidence only to prove the tenor
thereof, not to prove the truth of the facts asserted
therein. Independently relevant statements include
statements which are on the very facts in issue or
those which are circumstantial evidence thereof.
The hearsay rule does not apply. (People v. Gaddi,
G.R. No. 74065, February 27, 1989)
INDEPENDENTLY RELEVANT STATEMENTS
These are statements which are relevant
independently of whether they are true or not.
They are neither hearsay nor an exception to the
hearsay rule as the purpose thereof is not to prove
the truth of the declaration or document. (Estrada
v. Desierto, supra) It merely proves the fact that a
statement was made and not the truth of the fact
asserted in the statement. (1999, 2005, 2009,
2010 BAR)
Q: A foreign dog trained to sniff dangerous
drugs from packages, was hired by FDP
Corporation, a door to door forwarder
company, to sniff packages in their depot at the
international airport. In one of the routinary
inspections of packages waiting to be sent to
the USA, the dog sat beside one of the packages,
a signal that the package contained dangerous
drugs. Thereafter, the guards opened the
package and found 2 kilograms of cocaine.
During the trial, the prosecution, through the
trainer who was present during the incident
and an expert in this kind of field, testified that
the dog was highly trained to sniff packages to
determine if the contents were dangerous
drugs and the sniffing technique of their highly
trained dogs was accepted worldwide and had
been successful in dangerous drugs operations.
The prosecution moved to admit this evidence
to justify the opening of the package. The
accused objected on the grounds that: (i) the
guards had no personal knowledge of the
contents of the package before it was opened;
(ii) the testimony of the trainer of the dog is
hearsay; and (iii) the accused could not crossexamine the dog. Decide. (2014 Bar)
An out-of-court statement which is relevant not for
the truth off a matter asserted therein, but for
something else, e.g., state of mind, intent, belief, the
mere fact of utterance, or legal effect. It is a
statement relevant ffor something else ther than its
truth. Not being hearsay, an independently
relevant evidence is admissible. (Riguera, 2020)
Classification
statements
1.
2.
of
independently
relevant
Those statements which are the very facts
in issue; and
Those statements which are circumstantial
evidence of the fact in issue. It includes the
following:
a.
b.
c.
d.
e.
Statements of a person showing his
state of mind, that is, his mental
condition, knowledge, belief, intention,
ill-will and other emotions;
Statements of a person which show his
physical condition, as illness and the
like;
Statements of a person from which an
inference may be made as to the state
of mind of another, i.e., the knowledge,
belief, motive, good or bad faith, etc. of
the latter
Statements which may identify the
date, place and person in question;
and
Statements showing the lack of
credibility of a witness.
A: The objections of the accused should be
overruled. An evidence is admissible when it is
relevant to the issue and is not excluded by the law
or the rules. (Section 3, Rule 128, 2020 Revised Rules
on Evidence) Under Section 22, Rules 130 of the
Rules of Court, a witness can testify only to those
which he knows of his personal knowledge and
derived from his own perception.
The contention that the guards had no personal
knowledge of the contents of the package before it
was opened is without merit. The guards can
testify as to the facts surrounding the opening of
the package since they have personal knowledge of
the circumstances thereof, being physically present
at thetime of its discovery.
Q: Annie overheard Billy call Rocky a thief. In
an action for defamation filed by Rocky against
Billy, is the testimony of Annie offered to prove
the fact of utterance i.e., that Billy called Rocky
a thief, admissible in evidence? Explain. (1999
Bar)
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
On the other hand, the testimony of the trainer of
the dog is not hearsay on the basis of the following
grounds:
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Evidence
a.
He has personal knowledge of the facts in
issue, having witnessed the same;
Hearsay merely contemplates an out-ofcourt declaration of a person which is
being offered to prove the truthfulness and
veracity of the facts asserted therein;
He is an expert witness; hence, his
testimony may constitute an exception to
the hearsay rule;
The accused has the opportunity to crossexamine him; and
Testimony of a witness as to statements
made by nonhuman declarants does not
violate the rule against hearsay.
which an inference may be made as to the state of
mind of another.
The law permits the so-called “non-human
evidence” on the ground that machines and
animals, unlike humans, lack a conscious
motivation to tell falsehoods, and because the
workings of machines can be explained by human
witnesses who are then subject to crossexamination by opposing counsel. (City of Webster
Groves v. Quick. 323 S.W. 2d 386 [Mo. 1959]; Buck v.
State, 138 P. 2d 115 [Okla. 1943]; Herrera, 1999).
A person’s thought belief, or inference, especially a
witness’s view about facts in dispute, as opposed to
personal knowledge of the facts themselves.
(Black’s Law Dictionary, 2004)
b.
c.
d.
e.
The Angara Diary contains statements of Estrada
which reflect his state of mind and are
circumstantial evidence of his intent to resign. It
also contains statements which one can reasonably
infer Estrada’s intent to resign. Such statements
are independently relevant and are excluded from
the hearsay. (Riguera, 2020)
OPINION RULE
Opinion
GR: The opinion of a witness is not admissible.
(Sec. 51, Rule 130, 2019 Amendments to the Revised
Rules on Evidence) A witness testifies only with
respect to facts personally observed by him and it
is for the court to draw conclusions from the facts
testified to. (2011 Bar)
Conversely, the accused may not argue that he
cannot cross examine the dog as the Constitutional
right to confrontation refers only to witnesses. As
alluded, the human witnesses who have explained
the workings of the non-humanevidence is the one
that should be cross-examined. There is no doubt
that the evidence of the prosecution is admissible
for being relevant and competent.
XPNs:
1.
2.
Opinion of expert witness; and
Opinion of ordinary witnesses.
NOTE: Opinion testimony involving questions of
law or the ultimate fact in issue is not admissible.
Q: In Estrada v. Desierto, supra., at issue was
whether President Estrada resigned from his
position. Submitted to prove Estrada’s intent to
resign was the Angara Diary in which Executive
Secretary Edgardo Angara recorded Estrada’s
statements in which he said, “Pagod na pagod
na ako. Ayoko na, masyado nang masakit. Pagd
na ako sa red tape, bureaucracy, intriga. I just
want to clear my name, then I will go.” Angara
himself did not testify in court. Estrada’s
lawyers argued that these statements were
hearsay. Were they?
Evidence not based on personal knowledge vs.
Opinion evidence (2002, 2004 BAR)
EVIDENCE NOT BASED
ON PERSONAL
KNOWLEDGE
Consists of testimony
that is not based on
personal knowledge of
the person testifying.
A: NO. The statements are independently relevant,
that is, relevant independently of whether they are
true or not. Independently relevant statements are
of two classes: (1) those statements which are the
very facts in issue, and (2) those statements which
are circumstancial evidence of the acts in issue.
OPINION EVIDENCE
Expert evidence based
on
the
personal
knowledge,
skill,
experience or training
of the person testifying
and evidence of an
ordinary witness on
limited matters.
OPINION OF EXPERT WITNESS
The opinion of a witness on a matter requiring
special knowledge, skill, experience or training
which he shown to possess may be received in
evidence. (Sec. 52, Rule 130, 2019 Amendments to
the Revised Rules on Evidence)
The second includes statements of a person
showing his state of mind (i.e., his mental
condition, knowledge, belief, intention, ill will, and
other emotions) and statements of a person from
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NOTE: The competence of an expert witness is a
matter for the trial court to decide upon in thhe
exercise of its discretion. The test of qualification is
necessarily a relative one, depending upon the
subject matter of the investigation, and the fitness
of the expert witness. In our jurisdiction, the
criterion remains to be the expert witness’ special
knowledge, experience, and practical training that
qualify him or her to explain highly technical
medical matters to the court. (Casumpang v.
Cortejo, G.R. No. 171127, 171217, 171228, March 11,
2015)
NOTE: The use of the word “may”, signifies that the
use of opinion of expert witness is permissive and
not mandatory on the part of the courts. It only
assists the court in the determination of the issue
before it, and is for the court to adopt or not to
adopt depending on its appreciation of the
attendant facts and the applicable law. (Tabao v.
People, G.R. No. 187246, July 20, 2011)
Expert Witness
He is one who belongs to the profession or calling
to which the subject matter of the inquiry relates
and who possesses special knowledge on questions
on which he proposes special knowledge to
express an opinion. (Regalado, 2008)
Weight to be given opinion of expert witness
In any case where the opinion of an expert witness
is received in evidence, the court has a wide
latitude of discretion in determining the weight to
be given to such opinion, and for that purpose may
consider the following:
Before one may be allowed to testify as an expert
witness, his qualification must first be established
by the party presenting him. (People vs. Fundano,
G.R. No. 124737, June 26, 1998)
1.
NOTE: Expert testimony is not admissible as to a
matter not in issue.
2.
3.
NOTE: Expert witness is not necessary when the
doctrine of res ipsa loquitur is applicable. (Rosit v.
Davao Doctor’s Hopital, G.R. No. 210445, December
5, 2015)
4.
Degree of skill or knowledge
There is no definite standard in determining the
degree of skill or knowledge that a witness must
possess in order to testify as an expert as long as
the following are present:
1.
2.
3.
Discretion of the court in giving weight to the
testimony
Although courts are not ordinarily bound by expert
testimonies, they may place whatever weight they
may choose upon such testimonies in accordance
with the facts of the case. The relative weight and
sufficiency of expert testimony is peculiarly within
the province of the trial court to decide,
considering the ability and character of the
witness, his actions upon the witness stand, the
weight and process of the reasoning by which he
has supported his opinion, his possible bias in
favor of the side for whom he testifies, the fact that
he is a paid witness, the relative opportunities for
study and observation of the matters about which
he testifies, and any other matters which deserve
to illuminate his statements.
Training and education;
Particularity, first-hand familiarity with
the facts of the case; and
Presentation of authorities or standards
upon which his opinion is based. (People v.
Abriol, G.R. No. 123137, October 17, 2001)
NOTE: An expert witness may base his opinion
either on the first-hand knowledge of the facts or
on the basis of hypothetical questions where the
facts are presented to him hypothetically and on
the assumption that they are true, formulates his
opinion on such hypothesis.
The probative force of the testimony of an expert
does not lie in a mere statement of his theory or
opinion, but rather in the aid that he can render to
the courts in showing the facts which serve as a
basis for his criterion and the reasons upon which
the logic of his conclusion is founded. (Dizon v.
Tuazon, G.R. No. 172167, July 9, 2008)
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
Whether the opinion is based upon
sufficient facts or data;
Whether it is the product of reliable
principles and methods;
Whether the witness has applied the
principles and methods reliably to the
facts of the case; and
Such other factors as the court may deem
helpful to make such determination. (Sec.
5, Rule 133, 2019 Amendments to the
Revised Rules on Evidence)
The opinion of the expert may not be arbitrarily
rejected; it is to be considered by the court in view
of all the facts and circumstances in the case and
when common knowledge utterly fails, the expert
opinion may be given controlling effect. The
problem of the credibility of the expert witness and
the evaluation of his testimony is left to the
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discretion of the trial court whose ruling thereupon
is not reviewable in the absence of abuse of
discretion. (Tabao v. People, supra.)
OPINION OF ORDINARY WITNESS
That which is given by a witness who is of ordinary
capacity and who has by opportunity acquired a
particular knowledge which is outside the limits of
common observation and which may be of value in
elucidating a matter under consideration.
NOTE: The testimony of a qualified medical doctor
cannot be excluded simply because he is not a
specialist. The matter of training and specialization
of the witness goes to the weight rather than
admissibility. (Casumpang v. Cortejo, supra.)
The opinion of a witness for which proper basis is
given, may be received in evidence regarding:
Test in determining the need to resort to expert
evidence
1.
Whether the opinion called for will aid the court in
resolving an issue.
2.
3.
Handwriting expert
The opinion of handwriting experts are not
necessarily binding upon the court, the expert’s
function being to place before the court data upon
which the court can form its own opinion. This
principle holds true especially when the question
involved is mere handwriting similarity or
dissimilarity, which can be determined by a visual
comparison of specimens of the questioned
signatures with those of the currently existing
ones. A finding of forgery does not depend entirely
on the testimonies of handwriting experts, because
the judge must conduct an independent
examination of the questioned signature in order
to arrive at a reasonable conclusion as to its
authenticity. (Gepulle-Garpo v. Spouses Garabato,
G.R. No. 200013, January 14, 2015.)
The identity of a person about whom
he or she has adequate knowledge;
A handwriting with which he or she
has sufficient familiarity;
The mental sanity of a person with
whom he or she is sufficiently
acquainted (People v. Castillo, G.R. No.
1865333, August 9, 2010);
NOTE: Where the sanity of a person is
at issue, expert opinion is not
necessary, the observation of the trial
judge
coupled
with
evidence
establishing the person’s state of
mental sanity will suffice. (Hernandez
v. San Juan-Santos, G.R. No. 166470 &
169217, August 7, 2009)
4.
The witness’ impressions of the
emotion, behavior, condition or
appearance of a person. (Sec. 53, Rule
130, 2019 Amendments to the Revised
Rules on Evidence) (2005 Bar)
CHARACTER EVIDENCE
Q: In a case where the issue involves forgery,
two expert witnesses were presented by the
plaintiff, the NBI official and a handwriting
expert from the PNP. The NBI official testified
that the signatures in the deed of sale and the
other sample signatures are the same.
However, the PNP handwriting expert declared
that the person who signed are not the same
person. The lower court gave credit and based
the ruling on the testimony of the PNP
handwriting expert on the fact that the said
witness has better credentials than the NBI
witness. Is the ruling valid, because of the fact
that the court based the ruling on the
credentials?
Character
The aggregate of the moral qualities which belong
to and distinguish an individual person; the general
result of one’s distinguishing attributes. (Black’s
Law Dictionary, 2004)
Admissibility of Character Evidence
GR: Evidence of a person’s character or a trait of
character is INADMISSIBLE for the purpose of
proving action in conformity therewith on a
particular occasion, except as provided in the rules.
NOTE: The reason for this is that the evidence of a
person’s character does not prove that such person
acted in conformity with such character or trait in
a particular occasion.
A: NO. While credentials of an expert witness play
a factor in the evidentiary and persuasive weight of
his testimony, the same cannot be the sole factor in
determining its value. The judge must conduct his
own independent examination of the signatures
under scrutiny. (Tamani, et al. v. Salvador and
Bravo, G.R. No. 171497, April 4, 2011)
XPNs:
CRIMINAL CASES
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AS TO THE
ACCUSED
1.
2.
AS TO THE
PROSECUTION
The
character
of
the
offended
party may
be proved
if it tends
to
establish
in
any
reasonable
degree the
probability
or
improbabil
ity of the
offense
charged.
The
accused
may prove
his or her
good moral
character
pertinent
to
the
moral trait
involved in
the offense
charged.
They may not
prove the bad
moral
character
of
the
accused
which
is
pertinent
to
the moral trait
involved in the
offense
charged, unless
in
rebuttal
when
the
accused opens
the issue by
introducing
evidence of his
good
moral
character.
Is Dovie's testimony admissible as to the
character of Dave? (2018 BAR)
AS TO THE
OFFENDED
PARTY
His good or
bad
moral
character may
be proved as
long as it tends
to establish in
any reasonable
degree
the
probability or
improbability
of the offense
charged.
(2002, 2010
Bar)
A: NO. Dovie’s testimony on Dave’s previous
conviction for homicide as evidence of his bad
character does not refer to a moral trait involved in
the offense charged which is sexual assault.
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. (Sec. 54[b], Rule
130, 2019 Amendments to the Revised Rules on
Evidence)
Proof of bad character
1.
2.
NOTE: It is permitted only when pertinent to the
issue of character involved in the case like in a civil
action for damages emanating from the offense of
libel, slander, or seduction. (Peralta, 2020)
Personal opinion as to the moral character of the
accused and the specific conduct of the part
exhibiting character is excluded as evidence.
However, reputation in the community is
admissible.
Q: Don was prosecuted for homicide for
allegedly beating up Vilma to death with an
iron pipe. May the prosecution introduce
evidence that Vilma had a good reputation for
peacefulness and non-violence? Why? (2002
Bar)
NOTE: In criminal cases, character evidence is
inadmissible under the following situations:
1.
2.
Cross-examination; or
Independent evidence of bad character.
In rebuttal, proof of the bad character of
the victim is not admissible if the crime
was committed through treachery and
premeditation; and
In rape cases, the evidence of
complainant’s past sexual conduct, or
reputation or opinion thereof shall not be
admitted unless and only to the extent that
the court finds that such evidence is
material and relevant to the case. (Sec. 6,
R.A. 8505)
A: NO. The prosecution may introduce evidence of
the good or even bad moral character of the victim
if it tends to establish in any reasonable degree the
probability or improbability of the offense charged.
In this case, the evidence is not relevant.
CRIMINAL AND CIVIL CASES
Evidence of the good character of a witness is not
admissible until such character has been
impeached.
Q: Dave is on trial for sexual assault of Delly, a
law student who sidelines as a call center agent.
Dave offers the testimony of Danny, who says
that Dave is known in the community as a
decent and discerning person. The prosecution
presents a rebuttal witness, Dovie, who testifies
that, if Dave was reputed to be a good person,
that reputation was a misperception because
Dave had been previously convicted of
homicide.
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
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.
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Evidence
In cases in which character or a trait of a 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. (Sec.
54[c], Rule 130, 2019 Amendments to the Revised
Rules on Evidence)
Notable changes by the JAR
1.
JUDICIAL AFFIDAVIT RULE
A.M. No. 12-8-8-SC
Effectivity Date: January 1, 2013
,
2.
SCOPE AND WHERE APPLICABLE
This Rule shall apply to all actions, proceedings,
and incidents requiring the reception of evidence
before:
1.
The MeTC, MTC in Cities, MTC, and the
MCTC, and the Shari‘a Circuit courts;
NOTE: It shall not apply to small claims
cases under A.M. No. 08-8-7-SC;
2.
3.
4.
5.
The RTC and the Shari‘a District Courts;
The Sandiganbayan, CTA, CA and the
Shari‘a Appellate Courts;
The investigating officers and bodies
authorized by the Supreme Court to
receive evidence, including the IBP; and
The special courts and quasi-judicial
bodies, whose rules of procedure are
subject to disapproval of the Supreme
Court, insofar as their existing rules of
procedure contravene the provisions of
this Rule. (Sec. 1, JAR)
3.
Testimonies are now allowed to be taken
and kept in the dialect of the place
provided they are subsequently translated
into English or Filipino. These will be
quoted in pleadings in their original
version with the English or Filipino
translation in parenthesis provided by the
party, subject to counter translation by
opposing side.
In civil actions, the judicial affidavit rule
requires the parties to lay their cards on
the table before pre-trial by submitting the
judicial affidavits and documents of the
parties and their witnesses and serving
copies on the adverse party at least 5 days
before the pre-trial. No further stipulations
of facts are needed at the pre-trial since, by
comparing the judicial affidavits of the
opposing sides, the court will already see
what matters they agree and on what
matters they dispute.
The court will already take active part in
examining the witnesses. The judge will no
longer be limited to asking clarificatory
questions; he can also ask questions that
will determine the credibility of the
witness, ascertain the truth of his
testimony and elicit the answers that the
judge needs for resolving issues. (Associate
Justice Roberto Abad, supra)
SUBMISSION IN LIEU OF DIRECT TESTIMONY
Requirements of the JAR which the parties are
bound to follow
NOTE: In civil cases (with the exception of small
claims), the application of the JAR is mandatory
regardless of the amount of money claimed.
The parties shall file with the court and serve on
the adverse party, personally or by licensed courier
service, not later than 5 days before pre-trial or
preliminary conference or the scheduled hearing
with respect to motions and incidents, the
following:
Effect of the Judicial Affidavit Rule (JAR) in the
Philippine judicial system
It signals a dramatic shift from a dominantly
adversarial system to a mix adversarial and
inquisitorial system. (Associate Justice Roberto
Abad, UST Law Review Chief Justice Andres Narvasa
Honorary Lecture, February 15, 2013)
1.
2.
Purpose of JAR
To decongest the courts of cases and to reduce
delays in the disposition of cases.
Significance of the use of a judicial affidavit
The judicial affidavit shall take the place of direct
testimonies of witnesses.
The judicial affidavits of their witnesses,
which shall take the place of such
witnesses' direct testimonies; and
The parties' documentary or object
evidence, if any, which shall be attached to
the judicial affidavits and marked as
Exhibits A, B, C, and so on in the case of the
complainant or the plaintiff, and as
Exhibits 1, 2, 3, and so on in the case of the
respondent or the defendant. (Sec. 2, JAR)
NOTE: Every pleading stating a party’s claims or
defenses shall state, among others the summary of
the witnesses’ intended testimonies, provided that
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their authenticity in accordance with
the Rules of Court;
the judicial affidavits of said witnesses shall be
attached to the pleading and form an integral part
thereof. Only witnesses whose judicial affidavits
are attached to the pleading shall be presented by
the parties during trial. Except if a party presents
meritorious reasons as basis for the admission of
additional witnesses, no other witnesses or
affidavit shall be heard or admitted by the court.
(Sec. 6, Rule 7, 2019 Proposed Amendments to the
1997 Rules on Civil Procedure)
5.
6.
7.
Attachment of the original document as
documentary evidence
The signature of the witness over his
printed name;
A jurat with the signature of the notary
public who administers the oath or an
officer who is authorized by law to
administer the same. (Sec. 3, JAR); and
A sworn attestation by the lawyer who
conducted or supervised the examination
of the witness attesting to the following:
a.
A party or a witness may keep the original
document or object evidence in his possession
after the same has been identified, marked as
exhibit, and authenticated, but he must warrant in
his judicial affidavit that the copy or reproduction
attached to such affidavit is a faithful copy or
reproduction of that original. In addition, the party
or witness shall bring the original document or
object evidence for comparison during the
preliminary conference with the attached copy,
reproduction, or pictures, failing which the latter
shall not be admitted. (Ibid.)
b.
NOTE: A false attestation shall subject the lawyer
to disciplinary action, including disbarment. (Sec.
4[b], JAR)
Effect of non-compliance with the content and
attestation requirements
CONTENTS AND PROCEDURE
The judicial affidavit shall not be admitted by the
court in evidence. (Sec. 10[c], JAR)
Contents of a Judicial Affidavit (2016 Bar)
A judicial affidavit shall be prepared in a language
known to the witness and, if not in English or
Filipino, accompanied by a translation in English or
Filipino, and shall contain the following:
1.
2.
3.
4.
He faithfully recorded or caused to be
recorded the questions he asked and
the corresponding answers that the
witness gave; and
Neither he nor any other person
present or assisting him coached the
witness regarding the latter's answers.
(Sec. 4, JAR)
NOTE: The above provision, however, does not
absolutely bar the submission of a complaint
replacement judicial affidavit as long as the
replacement shall be submitted before the hearing
or trial and provided further that the following
requisites are met:
The name, age, residence or business
address, and occupation of the witness;
The name and address of the lawyer who
conducts or supervises the examination of
the witness and the place where the
examination is being held;
A statement that the witness is answering
the questions asked of him, fully conscious
that he does so under oath, and that he
may face criminal liability for false
testimony or perjury;
Questions asked of the witness and his
corresponding answers, consecutively
numbered, that:
1.
2.
3.
4.
The submission shall be allowed only
once;
The delay is for a valid cause;
The delay would not unduly prejudice the
opposing party; and
The public or private counsel responsible
for the preparation and submission of the
affidavit pays a fine of not less than
₱1,000.00 nor more than ₱5,000.00, at the
discretion of the court.
Subpoena
a.
b.
c.
Show the circumstances under which
the witness acquired the facts upon
which he testifies;
Elicit from him those facts which are
relevant to the issues that the case
presents; and
Identify the attached documentary
and object evidence and establish
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
The requesting party may avail himself of the
issuance of a subpoenaad testificandum or duces
tecum under Rule 21 of the Rules of Court if the (a)
government official or employee, or the (b)
requested witness, who is neither the witness of
the adverse party nor a hostile witness:
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Evidence
1.
2.
Unjustifiably declines to execute a judicial
affidavit; or
Refuses without just cause to make the
relevant books, documents, or other things
under his control available for copying,
authentication, and eventual production in
court. (Sec. 5, JAR)
4.
NOTE: In every case, the court shall take
active part in examining the witness to
determine his credibility as well as the
truth of his testimony and to elicit the
answers that it needs for resolving the
issues.
NOTE: Regardless of whether the requested
witness, who is the adverse party’s witness,
unjustifiably declines to execute a judicial affidavit
or refuses without just cause to present the
documents, Section 5 cannot be made to apply to
him for the reason that he is included in a group of
individuals expressly exempt from the provision’s
application. (Ng Meng Tamv. China Banking
Corporation, G.R. No. 214054, August 5, 2015)
5.
Submission by the prosecution of the judicial
affidavit
6.
The prosecution shall submit the judicial affidavits
of its witnesses not later than five days before the
pre-trial, serving copies of the same upon the
accused. The complainant or public prosecutor
shall attach to the affidavits such documentary or
object evidence as he may have, marking them as
Exhibits A, B, C, and so on. No further judicial
affidavit, documentary, or object evidence shall be
admitted at the trial.
Trial
APPLICATION TO CRIMINAL ACTIONS
After submitting to the court and serving the
adverse party a copy of the judicial affidavits, trial
shall commence as follows:
The judicial affidavit rule shall apply to all criminal
actions:
1.
2.
The party presenting the judicial affidavit
of his witness in place of direct testimony
shall state the purpose of such testimony
at the start of the presentation of the
witness (Sec. 6, JAR);
The adverse party may move to disqualify
the witness or to strike out his affidavit or
any of the answers found in it on ground of
inadmissibility;
2.
3.
Where the maximum of the imposable
penalty does not exceed six years;
Where the accused agrees to the use of
judicial affidavits, irrespective of the
penalty involved; or
With respect to the civil aspect of the
actions, whatever the penalties involved
are. (Sec. 9, JAR)
Q: Can a party filing a criminal action
cognizable by the Regional Trial Court be
mandated to follow the JAR?
NOTE: The court shall promptly rule on
the motion and, if granted, shall cause the
marking of any excluded answer by
placing it in brackets under the initials of
an authorized court personnel, without
prejudice to the tender of excluded
evidence under Sec. 40, Rule 132.
3.
Upon the termination of the testimony of
his last witness, a party shall immediately
make an oral offer of documentary
evidence, piece by piece, in their
chronological order, stating the purpose or
purposes for which he offers the particular
exhibit (Sec. 8, JAR);
After each piece of exhibit is offered, the
adverse party shall state the legal ground
for his objection, if any, to its admission,
and the court shall immediately make its
ruling respecting that exhibit.
NOTE: Since the documentary or object
exhibits form part of the judicial affidavits
that describe and authenticate them, it is
sufficient that such exhibits are simply
cited by their markings during the offers,
the objections, and the rulings, dispensing
with the description of each exhibit.
OFFER AND OBJECTION
1.
affidavit and on the exhibits attached to
the same (Sec. 7, JAR);
The party who presents the witness may
examine him on re-direct;
A: NO. The jurisdiction of the RTC in criminal cases
includes offenses where the imposable penalty
exceeds 6 years, thus, as a rule the JAR has no
application except when the accused agrees to its
use.
The adverse party shall have the right to
cross-examine the witness on his judicial
Q: Is it mandatory on the part of the accused to
submit a judicial affidavit?
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A: NO. Since the accused is already aware of the
evidence of the prosecution, he has the option to
submit or not to submit his judicial affidavits. If the
accused desires to be heard, he may submit his
judicial affidavit as well as those of his witnesses
within ten days from receipt of the affidavits of the
prosecution with service upon the public and
private prosecutor. (Sec. 9 [c], JAR)
Appearance of the witness at the scheduled
hearing
The submission of the judicial affidavit of the
witness does not exempt such witness from
appearing at the scheduled hearing. His
appearance is necessary as the adverse party has
the right to cross-examine him on his judicial
affidavit and the attached exhibits.
Q: The JAR took effect last January 1, 2013, but
with some modification as to its applicability to
criminal cases. What are these modifications?
NOTE: The court shall not consider the affidavit of
any witness who does not appear in the scheduled
hearing of the case as required. As for the counsel,
his failure to appear without a valid cause despite
notice shall be deemed to have waived his client’s
right to confront by cross-examination, the
witnesses present.
A: The JAR was modified only with respect to
actions filed by public prosecutors, subject to the
following conditions:
1.
2.
3.
For the purpose of complying with the
Judicial Affidavit Rule, public prosecutors
in the first and second level courts shall
use the sworn statements that the
complainant and his or her witnesses
submit during the initiation of the criminal
action before the office of the public
prosecutor or directly before the trial
court;
EFFECT ON OTHER RULES
As to Rules of Court and Rules of Procedure
governing investigating officers and bodies
authorized by the Supreme Court to receive
evidence
They are repealed or modified insofar as they are
inconsistent with the provisions of the Judicial
Affidavit Rule. (Sec. 11, JAR)
Upon presenting the witness, the attending
public prosecutor shall require the witness
to affirm what the sworn statement
contains and may only ask the witness
additional direct examination questions
that have not been amply covered by the
sworn statement;
As to Rules of procedure governing quasijudicial bodies which are inconsistent with it
They are thereby disapproved. (Ibid.)
Q: Pedro was charged with theft for stealing
Juan's cellphone worth P20, 000.00. Prosecutor
Marilag at the pre-trial submitted the judicial
affidavit of Juan attaching the receipt for the
purchase of the cellphone to prove civil
liability. She also submitted the judicial
affidavit of Mario, an eyewitness who narrated
therein how Pedro stole Juan's cellphone. At the
trial, Pedro's lawyer objected to the
prosecution's use of judicial affidavits of her
witnesses considering the imposable penalty
on the offense with which his client was
charged. (2015)
This modified compliance does not apply
to criminal cases where the complainant is
represented by a duly empowered private
prosecutor. The private prosecutor shall
be charged in the applicable cases the duty
to prepare the required judicial affidavits
of the complainant and his or her
witnesses and cause the service of the
copies of the same upon the accused.
EFFECT OF NON-COMPLIANCE
GR: A party who fails to submit the required
judicial affidavits and exhibits on time shall be
deemed to have waived their submission. (Sec.
10, JAR)
a. Is Pedro's lawyer correct in objecting to the
judicial affidavit of Mario?
A: YES, Pedro’s lawyer is correct in objecting to the
judicial affidavit of Mario. The Judicial Affidavit
Rules shall apply only to criminal actions where
the maximum of the imposable penalty does not
exceed six years. [Sec. 9(a)(1), A.M. No. 12-8-9-SC]
Here, the maximum imposable penalty for the
crime of theft of a cellphone worth ₱20,000 is
XPN: The court may, however, allow only once
the late submission of the same provided, the
delay is for a valid reason, would not unduly
prejudice the opposing party, and the defaulting
party pays a fine of not less than ₱1,000.00 nor
more than ₱5,000.00, at the discretion of the
court. (Ibid.)
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
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prison mayor in its minimum to medium periods, or
six years and one day to eight years and one day.
OFFER AND OBJECTION
b. Is Pedro's lawyer correct in objecting to the
judicial affidavit of Juan?
GR: The court shall consider only the evidence
which has been formally offered. The purpose for
which the evidence is offered must be specified.
(Sec. 34, Rule 132, 2019 Amendments to the Revised
Rules on Evidence) (2007 BAR)
A: NO. Pedro’s lawyer is not correct in objecting to
the judicial affidavit of Juan because the Judicial
Affidavit Rules apply with respect to the civil
aspect of the actions, regardless of the penalties
involved. (Sec. 9, A.M. No. 12-8-8-SC) Here the
judicial affidavit of Juan was offered to prove the
civil liability of Pedro.
XPNs:
1.
c. At the conclusion of the prosecution's
presentation of evidence, Prosecutor Marilag
orally offered the receipt attached to Juan's
judicial affidavit, which the court admitted over
the objection of Pedro's lawyer.
Marked exhibits not formally offered may
be admitted provided it complies with the
following requisites:
a.
b.
After Pedro's presentation of his evidence, the
court rendered judgment finding him guilty as
charged and holding him civilly liable for
₱20,000.00. Pedro's lawyer seasonably filed a
motion for reconsideration of the decision
asserting that the court erred in awarding the
civil liability on the basis of Juan's judicial
affidavit,
documentary
evidence
which
Prosecutor Marilag failed to orally offer. Is the
motion for reconsideration meritorious? (2015
Bar)
2.
3.
4.
A: NO. The motion for reconsideration is not
meritorious. The judicial affidavit is not required to
be orally offered as separate documentary
evidence, because it is filed in lieu of the direct
testimony of the witness. It is offered, at the time
the witness is called to testify, and any objection to
it should have been made at the time the witness
was presented. (Secs. 6 and 8, A.M. No. 12-8-8-SC)
Since the receipt attached to the judicial affidavit
was orally offered, there was enough basis for the
court to award civil liability.
5.
6.
Recent jurisprudence on JAR
Regardless of whether the requested witness, who
is the adverse party’s witness, unjustifiably
declines to execute a judicial affidavit or refuses
without just cause to present the documents,
Section 5 cannot be made to apply to him for the
reason that he is included in a group of individuals
expressly exempt from the provision’s application.
(Ng Meng Tamv. China Banking Corporation, G.R.
No. 214054, August 5, 2015)
7.
Must be duly identified by testimony
duly recorded; and
Must have been incorporated in the
records of the case (Ramos v. Dizon,
G.R. No. 137247, August 6, 2006);
Under the Rule on Summary Procedure,
where no full-blown trial is held in the
interest of speedy administration of
justice;
In summary judgments under Rule 35
where the judge based his decisions on the
pleadings,
depositions,
admissions,
affidavits and documents filed with the
court;
Documents whose contents are taken
judicial notice of by the court;
Documents whose contents are judicially
admitted;
Object evidence which could not be
formally offered because they have
disappeared or have become lost after
they have been marked, identified and
testified on and described in the record
and became the subject of crossexamination of the witness who testified
on them during the trial (Tabuena v. CA,
G.R. No. 85423, May 6, 1991; People v.
Napat-a, G.R. No. 84951, November 14,
1989); or
Documents and affidavits used in deciding
quasi-judicial or administrative cases.
(Bantolino v. Coca-Cola Bottlers Inc., G.R.
No. 153660, June 10, 2003)
OFFER OF EVIDENCE
Purposes of offer of evidence
1.
To notify the party of possible objection,
and for the offeror to make necessary
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2.
3.
correction at the trial level to meet the
objection;
To allow the trial judge to rule properly;
and
To lay basis for appeal so that the
appellate court can decide intelligently.
(Regalado, 2008)
Q: Gizel filed a complaint for recovery of
possession and damages against Fara. In the
course of the trial, Gizel marked his evidence
but his counsel failed to file a formal offer of
evidence. Fara then presented in evidence tax
declarations in the name of his father to
establish that his father is a co-owner of the
property. The court ruled in favor of Fara,
saying that Gizel failed to prove sole ownership
of the property in the face of Fara’s evidence.
Was the court correct? Explain briefly. (2007
BAR)
NOTE: A formal offer is necessary, since judges are
required to base their findings of fact and their
judgment solely and strictly upon the evidence
offered by the parties at the trial. (Aludos v. Suerte,
G.R. No. 165285, June 18, 2012)
A: YES. The court shall consider no evidence which
has not been formally offered. The trial court
rendered judgment considering only the evidence
offered by Fara. The offer is necessary because it is
the duty of the judge to rest his findings of fact and
his judgment only and strictly upon the evidence
offered by the parties at the trial. (People v.
Pecardal, G.R. No. 71381, November 24, 1986)
To allow parties to attach any documents to their
pleadings and then expect the court to consider it
as evidence, even without formal offer and
admission, may draw unwarranted consequences.
Opposing parties will be deprived of their chance
to examine the document and to object to its
admissibility. On the other hand, the appellate
court will have difficulty reviewing the documents
not previously scrutinized by the court below.
(Candido v. Court of Appeals, G.R. No. 107493,
February 1, 1996)
Q: Aiza and Matet were charged with murder.
Upon application of the prosecution, Matet was
discharged from the Information to be utilized
as a State witness. The prosecutor presented
Matet as witness but forgot to state the purpose
of his testimony much less offer it in evidence.
Matet testified that she and Aiza conspired to
kill the victim but it was Aiza who actually shot
the victim.
NOTE: An offer of evidence is important because
the court shall consider no evidence which has not
been formally offered. (Riguera, 2020)
Reasons for stating purposes of offer of
evidence
1.
2.
The testimony of Matet was the only material
evidence establishing the guilt of Aiza. Matet
was thoroughly cross-examined by the defense
counsel. After the prosecution rested its case,
the defense filed a motion for demurrer to
evidence based on the following grounds:
For the court to determine whether that
piece
of
evidence
should
be
admitted/considdered or not; and
For the adverse party to interpose the
proper objection.
NOTE: It is basic in the law of evidence that the
court shall consider evidence solely for the
purpose for which it was offered. (Ragudo v.
Fabella Estate Tenants Assoc. Inc., G.R. No. 146823,
August 9, 2005)
1. The testimony of Matet should be
excluded because its purpose was not
initially stated and it was not formally
offered in evidence; and
2. Matet's testimony is not admissible
against Aiza pursuant to the rule on
"res inter alios acta." (2003 Bar)
Identification of a Documentary Evidence vs.
Formal Offer as an Exhibit
IDENTIFICATION OF
A DOCUMENTARY
EVIDENCE
Done in the course of
the
trial
and
accompanied by the
marking
of
the
evidence as an exhibit.
Rule on the motion for demurrer to evidence on
the above grounds.
FORMAL OFFER AS
AN EXHIBIT
A:
Done only when the
party rests its case.
(Dizon v. Court of Tax
Appeals,
G.R.
No.
140944, April 30, 2008)
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
1.
The demurrer to evidence should be
denied because the defense counsel did
not object to her testimony despite the fact
that the prosecutor forgot to state its
purpose and offer it in evidence. Moreover,
the defense counsel thoroughly crossexamined Matet and thus waived the
objection.
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2.
The res inter alios acta rule does not apply
because Matet testified in open court and
was subjected to cross-examination.
Stages in the presentation of documentary
evidence
WHEN TO MAKE AN OFFER
TESTIMONIAL
EVIDENCE
The
offer
of
the
testimony of a witness
in evidence must be
made at the time the
witness is called to
testify. (Sec. 35, Rule
132) (2009 BAR)
DOCUMENTARY AND
OBJECT EVIDENCE
The
offer
of
documentary and object
evidence shall be made
after the presentation
of a party’s testimonial
evidence. (Sec. 35, Rule
132)
Every time a new
witness is called to
testify, there must be an
offer of evidence.
The evidence is only
offered once, after all
the
testimonial
evidence are offered
and prior to the resting
of the case for a party.
NOTE: The presentation
of a documentary or
object evidence for
marking
and
identification
during
trial is not the offer
contemplated in the
rules. (Riano, 2016)
NOTE: All evidence must be made orally. (Sec. 35,
Rule 132, 2019 Amendments to the Revised Rules on
Evidence)
OBJECTION
Ways of impeaching the evidence of the
proponent
1.
2.
By objection to offer of evidence(Sec. 36,
Rule 132); or
By motion to strike out answer. (Sec. 39,
Rule 132)
Purposes of objections
1.
2.
To keep out inadmissible evidence that
would cause harm to a client’s cause;
To protect the record, i.e. to present the
issue of inadmissibility of the offered
evidence in a way that if the trial court
rules erroneously, the error can be relied
upon as a ground for a future appeal;
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3.
4.
5.
6.
To protect a witness from being
embarrassed on the stand or from being
harassed by the adverse counsel;
To expose the adversary’s unfair tactics
like his consistently asking obviously
leading questions;
To give the trial court an opportunity to
correct its own errors and at the same
time warn the court that a ruling adverse
to the objector may supply a reason to
invoke a higher court’s appellate
jurisdiction; and
To avoid a waiver of the inadmissibility of
an otherwise inadmissible evidence.
(Riano, 2016)
2.
3.
4.
the damages suffered by the victim in a
homicide case);
Incompetent – The evidence is excluded
by law or rules (Sec. 3, Rule 128) (e.g.
evidence obtained in violation of the
Constitutional
prohibition
against
unreasonable searches and seizures);
Specific objections– e.g. parol evidence
and best evidence rule;
General objections– e.g. continuing
objections (Sec. 37, Rule 132)
a. objection to a question propounded in
the course of the oral examination of
the witness; and
b. objection to an offer of evidence in
writing;
Time when objection should be made
5.
Objection to evidence offered orally must be made
immediately after the offer is made.
1.
2.
Objection to the testimony of a witness
for lack of a formal offer – as soon as the
witness begins to testify.
Objection to a question propounded in
the course of the oral examination of a
witness - as soon as the grounds shall
become reasonably apparent. (Sec. 36, Rule
132, 2019 Amendments to the Revised Rules
on Evidence)
6.
NOTE: As a rule, failure to specify the grounds for
the objection is in effect a waiver of the objection,
except where the evidence could not have been
legally admitted for any purpose whatsoever.
(People v. Singh, 45 Phil. 676)
Formal– One directed against the alleged
defect in the formulation of the question
(e.g. ambiguous questions, leading and
misleading
questions,
repetitious
questions,
multiple
questions,
argumentative questions) (Riano, 2016);
and
Substantive– One made and directed
against the very nature of evidence (e.g.
parol, not the best evidence hearsay,
privileged
communication,
not
authenticated, opinion, res inter alios acta).
(Ibid.)
NOTE: Objections to admissibility of evidence
cannot be raised for the first time on appeal. When
a party desires the court to reject the evidence
offered he must so state in the form of objection.
Without objection, he cannot raise the question for
the first time on appeal. (People v. Salak, G.R. No.
181249, March 14, 2011)
The objection must be specific enough to
adequately inform the court the rule of evidence or
of substantive law that authorizes the exclusion of
evidence. (Riano, 2016)
REPETITION OF AN OBJECTION
Rules on continuing objections
Contemporaneous Objection Rule
It requires that a specific and timely objection be
made to the admission of evidence. Objections to
the admission of evidence must be made
seasonably, at the time it is introduced or offered,
otherwise they are deemed waived, and will not be
entertained for the first time on appeal. (People v.
Bañares, G.R. No. 68298, November 25, 1986)
GR: When it becomes reasonably apparent in the
course of the examination that the questions asked
are of the same class as those to which objection
has been made (whether sustained or overruled), it
shall not be necessary to repeat the objection, it
being sufficient for the adverse party to record his
continuing objection to such class of questions.
(Sec. 37, Rule 132)
Kinds of objections
XPNs:
1.
Irrelevant– The evidence being presented
is not relevant to the issue (e.g. when the
prosecution offers as evidence the alleged
offer of an insurance company to pay for
1.
2.
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
Where the question has not been
answered, it is necessary to repeat the
objection when the evidence is again
offered or the question is again asked;
Incompetency is shown later;
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3.
4.
5.
6.
Where objection refers to preliminary
question, objection must be repeated
when the same question is again asked
during the introduction of actual evidence;
Objection to evidence was sustained but
reoffered at a later stage of the trial;
Evidence is admitted on condition that its
competency or relevancy be shown by
further evidence and the condition is not
fulfilled, the objection formerly interposed
must be repeated or a motion to strike out
the evidence must be made; and
Where the court reserves the ruling on
objection, the objecting party must request
a ruling or repeat the objection.
NOTE: Objections may be waived because the
right to object is merely a privilege which the
party may waive. (People v. Martin, G.R. No.
172069, January 30, 2008) However, such
waiver only extends to the admissibility of the
evidence. It does not involve an admission that
the evidence possesses the weight attributed
to it by the offering party. (Riano, 2016)
2. Motion to strike out or expunge:
a.
b.
RULING
c.
The ruling on the objection must be given
immediately after the objection is made, unless the
court desires to take a reasonable time to inform
itself on the question presented; but the ruling
shall always be made during the trial and at such
time as will give the party against whom it is made
an opportunity to meet the situation presented by
the ruling. (Sec. 38, Rule 132)
d.
e.
f.
However, if the objection is based on two or more
grounds, a ruling sustaining the objection on one or
some of the must specify the ground or grounds
relied upon. (Ibid.)
g.
NOTE: The rulings of the trial court during the
course of the trial are interlocutory in nature and
may not be the subject of separate appeals or
review on certiorari but are assigned as errors and
reviewed on appeal properly taken from the
decision rendered by the trial court. (Gatdula v.
People, G.R. No. 140688, January 26, 2001)
h.
i.
When the witness answers prematurely
before there is reasonable opportunity for
the adverse party to object, and such
objection is found to be meritorious;
When a question is not objectionable but
the answer is not responsive;
When a witness testifies without a
question being posed or testifies beyond
limits set by the court;
When the witness does a narration instead
of answering the question;
When the answers are incompetent,
irrelevant, or improper (Sec. 39, Rule 132,
2019 Amendments to the Revised Rules on
Evidence);
When the witness becomes unavailable for
cross-examination through no fault of the
cross-examining party;
When the testimony was allowed
conditionally and the condition for its
admissibility was not fulfilled (Riano,
2016);
When a witness has volunteered
statements in such a way that the party
has not been able to object thereto; or
Uncompleted testimonies where there is
no opportunity for the other party to
cross-examination. (Ibid.)
NOTE: A direct testimony given and allowed
without a prior formal offer may not be expunged
from the record. When such testimony is allowed
without any objection from the adverse party, the
latter is estopped from questioning the noncompliance with the requirement.
Q: Counsel Oliva objected to a question posed
by opposing Counsel Diesta on the grounds that
it was hearsay and it assumed a fact not yet
established. The judge banged his gavel and
ruled by saying “Objection Sustained”. Can
Counsel Diesta ask for a reconsideration of the
ruling? (2012 BAR)
TENDER OF EXCLUDED EVIDENCE (2017 Bar)
A: YES, Counsel Diesta may ask the Judge to specify
the ground/s relied upon for sustaining the
objection and thereafter move its reconsideration
thereof. (Sec. 38, Rule 132)
When an attorney is not allowed by the court to
present testimony which he thinks is competent,
material and necessary to prove his case, he must
make an offer of proof. This is the method properly
preserving the record to the end that the question
may be saved for purposes of review. (Caraig,
2004)
STRIKING OUT OF AN ANSWER
Modes of excluding inadmissible evidence
1.
Objection – when the evidence is offered;
NOTE: This rule is in preparation in the filing of an
appeal. Moreover, the rule is that the offeror must
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preserve such excluded evidence on his record and
stating the purpose of such preservation, e.g.
knowing that it is relevant and must be admitted.
40, Rule 132)
How offer of evidence is made
1.
Purposes of tender of excluded evidence
1.
2.
To allow the court to know the nature of
the testimony or the documentary
evidence and convince the trial judge to
permit the evidence or testimony; and
To create and preserve a record for appeal,
should the judge be not persuaded to
reverse his earlier ruling. (Riano, 2016)
2.
3.
Even assuming that the trial court erroneously
rejected the introduction as evidence of the CA
Decision, petitioner is not left without legal
recourse. Petitioner could have availed of the
remedy provided in Section 40, Rule 132 where he
could have included the same in his offer of
exhibits. If an exhibit sought to be presented in
evidence is rejected, the party producing it should
ask the courts permission to have the exhibit
attached to the record. (Catacutan v. People, G.R.
No. 175991, August 31, 2011)
When offer of proof is NOT required
1.
2.
Offer of Proof vs. Offer of Evidence
OFFER OF PROOF /
TENDER OF
EXCLUDED EVIDENCE
The process by which a
proponent
of
an
excluded
evidence
tenders the same.
Only resorted to if
admission is refused by
the court for purposes
of review on appeal.
3.
OFFER OF EVIDENCE
Refers to testimonial,
documentary or object
evidence
that
are
presented or offered in
court by a party so that
the court can consider
his evidence when it
comes
to
the
preparation
of
the
decision.
ENGLISH EXCHEQUER
RULE
It provides that a trial
court's error as to the
admission of evidence
was presumed to have
caused prejudice and
therefore,
almost
automatically required
new trial.
As to documentary or object evidence: It
may have the same attached to or made
part of the record. (Sec. 40, Rule 132)
(1991, 1996 Bar)
NOTE: The party should ask that evidence
ruled out at the trial be attached to the
record of case in order that same may be
considered on appeal. (Bañez v. CA, G.R. No.
L-30351, September 11, 1974)
2.
HARMLESS ERROR
RULE
The appellate court will
disregard
an
error
committed by the trial
court in the admission
of evidence unless in its
opinion,
some
substantial wrong or
miscarriage of justice
has been occasioned.
NOTE: We follow the harmless error rule, for in
dealing with evidence improperly admitted in the
trial, courts examine its damaging quality and its
impact to the substantive rights of the litigant. If
the impact is slight and insignificant, appellate
courts disregard the error as it will not overcome
the weight of the properly admitted evidence
against the prejudiced part. (People v. Teehankee
Jr., G.R. Nos. 111206-08, October 6, 1995)
As to oral evidence: It may state for the
record the name and other personal
circumstances of the witness and the
substance of the proposed testimony. (Sec.
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
When the question to which an objection
has been sustained clearly reveals on its
face the substance, purpose and relevancy
of the excluded evidence;
When the substance, purpose and
relevancy of the excluded evidence were
made known to the court either in the
court proceedings and such parts appear
on record; and
Where evidence is inadmissible when
offered and excluded, but thereafter
becomes admissible, it must be re-offered,
unless the court indicates that a second
offer would be useless. (Herrera, 1999)
English Exchequer Rule vs. Harmless Error Rule
How tender of excluded evidence is made
1.
Before the court has ruled on the
objection, in which case its function is to
persuade the court to overrule the
objection or deny the privilege invoked;
After the court has sustained the objection,
in which case its function is to preserve for
the appeal the evidence excluded by the
privilege invoked; or
Where the offer of proof includes the
introduction of documents, or any of the
physical evidence, the same should be
marked for identification so that they may
become part of the record. (Herrera, 1999)
630
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