Remedial Law (Evidence) 2020_21

Resources:

1) Evidence (The Bar Lecture Series) Dean Willard B. Riano 2016 ed.

inclusive of 2019 Amendments (AM No 19-08-15 SC)

Analyn Licyayo Taguiling ***My Personal Outline*** 1

 Remedial Law (Evidence) 2020_21

To be considered evidence, the same must be sanctioned or allowed by the Rules of Court.

Principle of uniformity: the rules on evidence shall be the same in all courts and in all trials and hearings.

The rules on evidence apply only to judicial proceedings.

Evidence is no longer required to prove an assertion:

1. When the pleading in a civil case do not tender an issue of fact. The case is then ripe for
determination through a judgment on the pleadings.
2. When there is an agreement of the parties.
3. On matters of judicial notice and on matters judicially admitted
4. When the law presumes the truth of a fact.

Ephemeral communications are admissible in evidence.

Ephemeral electronic communication refers to telephone conversations, text messages, chatroom,

sessions, streaming audio, streaming video, and other forms of communication the evidence of which is
not recorded or retained.

Evidence in Evidence in
Civil Cases Criminal Cases

The party having the burden of proof must prove The guilt of the accused has to be proven beyond
his claim by a preponderance of evidence. reasonable doubt.

An offer of compromise is not an admission of any An offer of compromise by the accused may be
liability and is not admissible in evidence against received in evidence as an implied admission of
the offeror. guilt.

Except those involving quasi-offenses (criminal

negligence) or those allowed by law to be
compromised.

Analyn Licyayo Taguiling ***My Personal Outline*** 2

 Remedial Law (Evidence) 2020_21

The concept of presumption of innocence does not The accused enjoys the constitutional presumption
apply, only presumption of good faith. of innocence.

The concept of confession does not apply to civil A confession is a declaration of an accused
cases which use the more appropriate term, acknowledging his guilt of the offense charged.
admission.
Evidence of the moral character of a party is The prosecution is not allowed to prove the bad
admissible as long as it is pertinent to the issue of moral character of the accused even if it is
character involved in the case. pertinent to the moral trait involved. It can only do
so in rebuttal.

The rule on disqualification by reason of death or insanity applies only to civil cases or special
proceedings, not to criminal cases because the rule involves a claim or demand against the estate of the
deceased or the person of the unsound mind.

The privileged communication rule on patient-physician relationship has reference only to a civil case,
not to a criminal case.

The rule on admission by a conspirator applies only to a criminal case, not to a civil case.

The rule on extrajudicial confession applies to the accused in a criminal case, not to the defendant in a
civil case.

Factum probandum

The fact or proposition to be established.

The fact to be proved, it is the fact which is in issue in a case and to which the evidence is
directed.
It may be affected by the judicial admissions of a party.
Factum probandum in a civil case refers to the elements of a cause of action alleged in the
complaint as denied specifically by the defendant.
If defendant admits – there is no more factum probandum.

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.

The rules on evidence must be liberally construed.

There is no vested right in the rules on evidence because said rules are subject to change by the SC
pursuant to its powers to promulgate rules concerning pleading, practice, and procedure.

Exception:
However, the change in the rules on evidence is subject to constitutional limitation on the
enactment of ex post facto laws. An ex post facto law includes that which alters the rules on
evidence and receives less or different testimony than that required at the time of the commission
of the offense in order to convict the accused.

The rules on evidence may be waived for failure to object.

Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals or good
customs or prejudicial to a third person with a right recognized by law.

Analyn Licyayo Taguiling ***My Personal Outline*** 3

 Remedial Law (Evidence) 2020_21

Admissibility of Evidence

1. The evidence is relevant, and

2. The evidence is not excluded by the Constitution, the law, or these Rules. (competent)

To be admissible, the evidence must be both relevant and competent.

Evidence, to be relevant must have such a relation to the fact in issue as to induce belief in its existence
or non-existence.

Collateral matters

It connotes an absence of a direct connection between the evidence and the matter in dispute.

Evidence on a collateral matter is not allowed because it does not have direct relevance to the
issue of the case.

Exception:
A collateral matter may be admitted if it tends in any reasonable degree to establish the
probability or improbability of the fact in issue.

Electronic evidence is competent evidence and is admissible if it complies with the rules on admissibility
and is authenticated.

Multiple admissibility sometimes, evidence is inadmissible for one purpose but admissible for another.
Evidence may also be admissible against one party but not against another.

Conditional admissibility sometimes, the relevance of a piece of evidence is not apparent at the time
it is offered but the relevance of which will readily be seen when connected
to other pieces of evidence not yet offered.
The proponent of the evidence may ask the court that the evidence be
conditionally admitted in the meantime subject to the condition that he is
going to establish its relevancy and competency at a later time.

Curative admissibility this allows a party to introduce otherwise inadmissible evidence to answer the
opposing party’s previous introduction of inadmissible evidence.

Direct evidence proves a fact without the need to make an inference from another fact.

Circumstantial evidence or indirect evidence is that evidence which indirectly proves a fact in issue
through an inference which the fact finder draws from the evidence established.

Circumstantial evidence is the rule of evidence that applies when no witness saw the commission of a
crime.

Requisites for circumstantial evidence to be sufficient for conviction:

1. There is more than one circumstance

2. The facts from which the inferences are derived are proven, and
3. The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.

Conviction by circumstantial evidence

Even in the absence of direct evidence, conviction can be had if the established circumstances constitute
an unbroken chain, consistent with each other and to the hypotheses that the accused is guilty, to the
exclusion of all other hypothesis that he is not.

Analyn Licyayo Taguiling ***My Personal Outline*** 4

 Remedial Law (Evidence) 2020_21

Cumulative evidence refers to evidence of the same kind and character as that already given which
tends to prove the same proposition.

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.

Evidence is said to be positive when a witness affirms in the stand that a certain state of facts does exist
or that a certain event happened.

It is negative evidence when the witness states that an event did not occur or that the state of facts
alleged to exist does not actually exist.

Credibility of a witness refers to worthiness of belief, that quality which renders a witness worthy of
belief.

After the competence of a witness is allowed, the consideration of his credibility follows.

The defense of alibi is inherently weak and must be rejected when the identity of the accused is
satisfactorily and categorically established by the eyewitnesses to the offense, especially when such
eyewitnesses have no ill-motive to testify falsely.

Alibi may serve as a 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 its
commission.

Burden of proof, Quantum of evidence and Presumptions

Burden of proof or onus probandi refers to the obligation of a party to a litigation to persuade the court
that he is entitled to relief. It is the duty of a party to present evidence not only to establish a claim but
also a defense.

The burden of proof rests with the party who wants to establish a legal right in his favor.
The burden of proof is fixed by the pleadings.

The burden of evidence is the duty of a party to go forward with the evidence to overthrow the prima
facie evidence against him.

Equipoise rule or equiponderance doctrine

It is based on the principle that no one shall be deprived of life, liberty, or property without due
process of law.

Analyn Licyayo Taguiling ***My Personal Outline*** 5

 Remedial Law (Evidence) 2020_21

This doctrine refers to 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. In this case, the
decision should be against the party with the burden of proof.

In a civil case, where the burden of proof is on the plaintiff and the evidence does not suggest
that the scale of justice should weigh in his favor, the court should render a verdict for the
defendant.

In a criminal case, the equipoise rule provides that where the evidence is evenly balanced, the
constitutional presumption of innocence tilts the scales in favor of the accused. Thus, where the
inculpatory facts and circumstances are capable of 2 or more explanations one of which is
consistent with the innocence of the accused and the other consistent with his guilt, then the
evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction.

However, the equipoise rule is not applicable where the evidence presented is not equally
weighty, such as where the evidence of the prosecution is overwhelming.

Presumptions

A presumption is an assumption of fact resulting from a rule of law which requires such fact to be
assumed from another fact established in the action.
It is an inference of the existence or non-existence of a fact which courts are permitted to draw
from proof of other facts. It is an inference which is mandatory, unless rebutted.

Presumptions of law are either

a. conclusive (presumption juris et de jure) or
b. disputable (presumption juris tantum)

Letter (a) is referred to as estoppel in pais or estoppel by conduct.

In letter (b), when evidence is shown that prior installments remain unpaid, the
presumption falls.

As long as the lessor-lessee relationship between the parties exists, the lessee cannot, by
any proof, however strong, overturn the conclusive presumption that the lessor has valid
title to or better right of possession to the subject leased premises than it has.

Conclusive presumptions are inferences which the law makes so peremptory that it will
not allow them to be overturned by any contrary proof however strong.
It is a substantive rule of law directing that proof of certain basic facts conclusively proves
an additional fact which cannot be rebutted.

The conclusive presumptions are based on the doctrine of estoppel. Under this doctrine,
the person making the representation cannot claim benefit from the wrong he himself
committed.
Analyn Licyayo Taguiling ***My Personal Outline*** 6
 Remedial Law (Evidence) 2020_21

Under the doctrine of estoppel, an admission or representation is rendered conclusive

upon the person making it and cannot be denied or disproved as against the person
relying thereon.
This doctrine is based upon the grounds of public policy, fair dealing, good faith and
justice and its purpose is to forbid one to speak against his own act, representations, or
commitments, to the injury of one to whom they were directed and who reasonably relied
thereon.

Analyn Licyayo Taguiling ***My Personal Outline*** 7

 Remedial Law (Evidence) 2020_21

Analyn Licyayo Taguiling ***My Personal Outline*** 8

 Remedial Law (Evidence) 2020_21

Analyn Licyayo Taguiling ***My Personal Outline*** 9

 Remedial Law (Evidence) 2020_21

Analyn Licyayo Taguiling ***My Personal Outline*** 10

 Remedial Law (Evidence) 2020_21

Official duty has been regularly performed.

This presumption of regularity in the performance of official duty is not applicable to a writ
of amparo and during custodial investigation.

Quantum of Evidence (Weight and Sufficiency)

Proof beyond reasonable doubt is the degree of proof that, after investigation of the whole record,
produces moral certainty in an unprejudiced mind of the accused’s culpability.

Preponderance of evidence 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 credible evidence.

Analyn Licyayo Taguiling ***My Personal Outline*** 11

 Remedial Law (Evidence) 2020_21

Preponderance of evidence means probability of the truth.

It is evidence which is more convincing to the court as worthier of belief than that which is offered in
opposition thereto.

Substantial evidence refers to such relevant evidence which a reasonable mind might accept as
adequate to support a conclusion.

Clear and convincing evidence

Evidence is clear and convincing if it produces in the mind of the trier of fact a firm belief or
conviction as to allegations sought to be established.

It is lower than proof beyond reasonable doubt but higher than preponderance of evidence.

Analyn Licyayo Taguiling ***My Personal Outline*** 12

 Remedial Law (Evidence) 2020_21

Judicial notice and judicial admissions

All matters which the court may take cognizance of without evidence are called matters of judicial notice.

Judicial notice may be taken of a fact which judges ought to know because of their judicial functions.

But 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, as the basis of his action.

The court can take judicial notice of a fact during or after trial and before judgment. It may also be taken
on appeal.

Our courts cannot take judicial notice of foreign laws.

Foreign laws must be alleged and proved.

In the absence of proof, the foreign law will be presumed to be the same as the laws of the
jurisdiction hearing the case under the doctrine of processual presumption.
Analyn Licyayo Taguiling ***My Personal Outline*** 13
 Remedial Law (Evidence) 2020_21

However, where the foreign law is within the actual knowledge of the court, such as when the law
is generally well-known, had been ruled upon in previous cases before it and none of the parties
claim otherwise, the court may take judicial notice of the foreign law.

When the foreign law refers to the law of nations, said law is subject to a mandatory judicial
notice.

MTCs should take judicial notice of municipal ordinances in force in the municipality in which they sit.

An RTC should also take judicial notice of municipal ordinances in force in the municipalities within their
jurisdiction but only when so required by law.

The CA may take judicial notice of municipal ordinances which is capable of unquestionable
demonstration.

A court will take judicial notice of its own acts and records in the same case.
Courts are not authorized to take judicial notice of the contents of the records of other cases.

Management contract entered into by GOCCs while performing a proprietary function is not considered
an official act of the executive department.

Elements of a judicial admission:

1. the same must be made by a party to the case.

2. the admission, to be judicial, must be made in the course of the proceedings in the same case
3. it may be oral or written.

The stipulation of facts at the pretrial of a case constitutes judicial admissions.

A party may make judicial admissions in

1. the pleadings
2. during trial, or
3. in other stages of the judicial proceedings.

If the complaint makes an allegation of usury to recover usurious interest, the defendant must not only
specifically deny the same but must, likewise, do so under oath.
Failure to make the proper denial under oath would involve an implied admission of the allegation of
usury.

Analyn Licyayo Taguiling ***My Personal Outline*** 14

 Remedial Law (Evidence) 2020_21

Object and documentary evidence

Object evidence (r30)

Object or real evidence refers to evidence that is addressed to the senses of the court.

It is the real thing itself like the knife used to slash the victim’s throat, etc.. it consists of tangible things.

Where the physical evidence runs counter to the testimonial evidence, the physical evidence should
prevail.

For the object evidence not to be excluded by the Rules, the same must pass the test of authentication.

To authenticate the object, there must be a witness who should identify the object to be the actual thing
involved in the litigation.

An ancient document , a private document that is more than 30 years old produced from a custody in
which it would naturally be found if genuine and is unblemished by any alterations or circumstances of
suspicion, requires a witness to testify on the characteristics of the document even if it no longer requires
authentication.

Every evidence, whether it be a document or an object, needs a witness.

In short, testimonial evidence provides the foundation for all types of evidence.
The witness must have actual and personal knowledge of the exhibit he is presenting for admission
because a witness can only testify to those facts which he knows of his personal knowledge, that is,
which are derived from his own perception.

Requisites for the admissibility of an object or real evidence:

1. the evidence must be relevant

2. the evidence must be authenticated
3. the authentication must be made by a competent witness
4. the object must be formally offered in evidence

An object evidence, when offered, becomes evidence of the highest order and speaks more eloquently
than witnesses put together.

The right against self-incrimination cannot be invoked against object evidence.

The right against self-incrimination guaranteed can only be applied if there is testimonial compulsion
involved.

Autoptic evidence when the object is relevant to the fact in issue, it may be exhibited to, or examined
or viewed by the court.

Categories of object evidence:

Analyn Licyayo Taguiling ***My Personal Outline*** 15

 Remedial Law (Evidence) 2020_21

1. unique objects – objects that have readily identifiable marks, such as serial number

2. objects made unique – objects that are made readily identifiable, such as typical kitchen knife that
has no distinguishing features.

3. non-unique objects – objects with no identifying marks – need to establish chain of custody to
ensure that the integrity and evidentiary value of the seized items are preserved so much so that
unnecessary doubts as to the identity of the evidence are removed, like drugs, drops of blood, etc

Chain of custody in drugs cases:

1. The apprehending team shall, immediately after seizure and confiscation, conduct a physical
inventory of the seized items and photograph the same in the presence of the accused, with an
elected public official and a representative of the National Prosecution Service or the media.

The physical inventory and photograph shall be conducted at the place where the search warrant
is served or at the nearest police station or at the nearest office of the apprehending officer,
whichever is practicable, in case of warrantless seizures.

2. Within 24 hours upon the confiscation or seizure of the drugs, the same shall be submitted to the
PDEA Forensic Laboratory for examination.

3. The forensic laboratory examiner is required to issue within 24 hours after the receipt of the
drugs, a certification of the forensic laboratory examination results which shall be done under
oath.

4. After the filing of the criminal case, the court shall, within 72 hours, conduct an ocular inspection
of the confiscated drugs and through the PDEA shall, within 24 hours, proceed with the
destruction of the same in the presence of the accused, his representative or his counsel, media,
DOJ, civil society groups or any elected public official.

5. The DDB shall then issue a sworn certification as to the fact of destruction or burning of the
substances.

Guidelines to be used by courts in assessing the probative value of DNA evidence:

1. How the samples were collected

2. How they were handled
3. The possibility of contamination of the samples
4. The procedure followed in analyzing the samples
5. Whether the proper standards and procedure were followed in conducting the tests, and
6. The qualification of the analyst who conducted the test.

A person who has already been convicted under a final and executory judgment may still avail of DNA
testing called post-conviction DNA testing. It may be available without need of prior court order.

A post –conviction DNA testing may be available to the prosecution or the person convicted by a final
and executory judgment, provided that the following requirements are met:

1. a biological sample exists

2. such sample is relevant to the case
3. the testing would probably result in the reversal or modification of the judgment of conviction.

Analyn Licyayo Taguiling ***My Personal Outline*** 16

 Remedial Law (Evidence) 2020_21

If the results of the DNA testing are favorable to the convict, he may file a petition for a writ of habeas
corpus with the court of origin, or with the CA or SC. The petition for a writ of habeas corpus may also be
filed by the prosecution.

DNA profiles and all other results or other information obtained from DNA testing are confidential.

For such writings or materials to be deemed documentary evidence, the same must be offered as proof
of their contents. If offered for some other purpose, the writings or materials would not be deemed
documentary evidence but merely object evidence.

An electronic evidence refers to the information itself and to the representation of that information.
Whether it be the information itself or its representation, for the document to be deemed electronic, it is
important that it be received, recorded, transmitted, stored, processed, retrieved, or produced
electronically.

Electronic document refers to information or the representation of information, data, figures, symbols or
other modes or written expressions, 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 and any print-out or output, readable by

sight or other means, which accurately reflects the electronic data message or
electronic document.

Before any private electronic document offered as authentic is received in evidence, its authenticity must
be proved by any of the following means:

1. by evidence that it had been digitally signed by the person purported to have signed the same

2. by evidence that other appropriate security procedures or devices as may be authorized by the
SC or by law for authentication of electronic documents were applied to the document, or

3. by other evidence showing its integrity and reliability to the satisfaction of the judge.

Requisites for admissibility of documentary evidence:

1. the document must be relevant

2. the evidence must be authenticated
3. the document must be authenticated by a competent witness
4. the document must be formally offered in evidence.

Analyn Licyayo Taguiling ***My Personal Outline*** 17

 Remedial Law (Evidence) 2020_21

Documentary Evidence:

1. Original Document Rule

2. Secondary Evidence
3. Parol Evidence Rule
4. Interpretation of Documents

Original document rule

Original document rule or the primary evidence rule.

It only applies when the evidence is documentary.
It does not comprehend object and testimonial evidence.
Analyn Licyayo Taguiling ***My Personal Outline*** 18
 Remedial Law (Evidence) 2020_21

The rule only covers situations in which the subject of inquiry is the contents of the document.

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.

A printout of a facsimile transmission is not an electronic data message or electronic document.

A facsimile is not a genuine and authentic pleading. It is an exact copy preserving all the marks of
an original. Without the original, there is no way of determining on its face whether the facsimile
pleading is genuine and authentic and was originally signed by the party and his counsel. It may
be a sham pleading.

Secondary evidence

Parol evidence rule

Analyn Licyayo Taguiling ***My Personal Outline*** 19

 Remedial Law (Evidence) 2020_21

While the parol evidence rule applies to wills, an express trust concerning an immovable or any interest
therein may not be proved by parol evidence.

When and how to introduce parol evidence:

A party may present evidence when he desires to modify, explain, or add to the terms of the written
agreement by putting in issue in the pleadings any of the following:

1. An intrinsic ambiguity, mistake, or imperfection in the written agreement

2. The failure of the written agreement to express the true intent and agreement of the parties
3. The validity of the written agreement
4. The existence of other terms agreed to by the parties or their successors-in-interest after the
execution of the written agreement.

Introducing parol evidence means offering extrinsic or extraneous evidence that would modify, explain, or
add to the terms of the written agreement, but parol evidence may only be allowed if, any of the matters
mentioned above, is put in issue in the pleadings.

Agreements before the date or even on the same date which modify, alter, or contradict the stipulations
written are not admissible since these constitute parol evidence.

Subsequent agreements are not barred by the parol evidence rule – meaning the existence of another
agreement after the execution of the original written agreement may be introduced without first complying
with the requirement of putting the subsequent agreement in issue.

Analyn Licyayo Taguiling ***My Personal Outline*** 20

 Remedial Law (Evidence) 2020_21

Authentication is the preliminary step in showing the admissibility of an evidence.

Not only objects but also documents introduced in evidence need to be
authenticated.

For documents to be considered as documentary evidence, it must be offered as proof of their contents.

Analyn Licyayo Taguiling ***My Personal Outline*** 21

 Remedial Law (Evidence) 2020_21

Documents acknowledged before a notary public are public documents, except last wills and testaments
which are private documents even if notarized. Included in this are those acknowledged before an officer,
other than a notary public, authorized to administer oaths.

In the case of a public record of a private document required by law to be entered in a public
record, the public document does not refer to the private document itself but the public record of
that private document.

Where the private document is offered in evidence as authentic, there is a need to prove its due
execution and authenticity.

If the document or writing is not offered as authentic, it only needs to be identified as that which it is
claimed to be.

When authentication of private documents is not required:

1. When the document is an ancient one

2. When the genuineness and authenticity of an actionable document have not been specifically
denied under oath by the adverse party
3. When the genuineness and authenticity of the document have been admitted
4. When the document is not being offered as authentic.

Analyn Licyayo Taguiling ***My Personal Outline*** 22

 Remedial Law (Evidence) 2020_21

A private document is considered ancient when it is more than 30 years old, is produced from a custody
in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of
suspicion.

There is no need to prove its genuineness and due execution.

It does not require expert testimony to prove the handwriting of a person.

How to prove genuineness of a handwriting:

It may be proven by any witness who believes it to be the handwriting of a person because:

1. He has seen the person write

2. He has seen writing purporting to be his upon which the witness has acted or been
charged and has thus acquired knowledge of the handwriting of such person, or
3. By a comparison made by the witness or the court, with writings admitted or treated as
genuine by the party against whom the document is offered or proved to be genuine to
the satisfaction of the judge.

A public document is admissible in court without further proof of its due execution and authenticity.
As a public document, the rule on authentication does not apply.

A private document, because it lacks the official or sovereign character of a public document, or the
solemnities prescribed by law, requires authentication in the manner allowed by law or the Rules of Court
before its acceptance as evidence in court.

The notarial seal converts a document from a private to a public document.

Analyn Licyayo Taguiling ***My Personal Outline*** 23

 Remedial Law (Evidence) 2020_21

A notary public in a foreign country is not one of those who can issue the certificate.

Where a foreign law is not pleaded or even if pleaded, is not proven, the presumption is that the foreign
law is the same as Philippine law, in accordance with the doctrine of processual presumption.

Last wills and testaments must undergo an authentication process even if they are notarized because no
will shall pass either real or personal property, unless proved and allowed in the proper court.

Analyn Licyayo Taguiling ***My Personal Outline*** 24

 Remedial Law (Evidence) 2020_21

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
all other private writings.

Testimonial evidence

Analyn Licyayo Taguiling ***My Personal Outline*** 25

 Remedial Law (Evidence) 2020_21

Analyn Licyayo Taguiling ***My Personal Outline*** 26

 Remedial Law (Evidence) 2020_21

Competence of a witness refers to his personal qualifications to testify.

The examination of a witness in a trial or hearing shall be done under oath or affirmation.

Disqualifications of witnesses

4. Survivorship disqualification rule or dead man’s statute

A rule that would seal the lips of the survivor by declaring him incompetent to testify on the
transaction between him and the deceased in order to remove from the plaintiff the
temptation to do falsehood and the possibility of fictitious claims against the deceased.

Elements:

a. The suit is upon a claim by the plaintiff against the estate of said deceased or person
of unsound mind
Analyn Licyayo Taguiling ***My Personal Outline*** 27
 Remedial Law (Evidence) 2020_21

b. The defendant in the case is the executor or administrator or a representative of the

deceased or the person of unsound mind

c. The witness is the plaintiff or an assignor of that party or a person in whose behalf the
case is prosecuted

d. The subject of the testimony is as to any matter of fact occurring before the death of
such deceased person or before such person became of unsound mind.

Application of the rule:

1. Know the parties

The plaintiff is the person who has a claim against the estate of the decedent or
the person of unsound mind. He is the survivor.

The defendant is the representative, executor or administrator, of the deceased or

the person of unsound mind.

Therefore, the persons entitled to invoke the protection of the dead man’s statute
are the executor, administrator, and any other representative of a deceased
person, when they are the defendants in a claim against the estate of the
deceased. The protection may, likewise, be invoked by a person of unsound mind
in a claim filed against him.

2. Nature of the case

The case be upon a claim or demand against the estate of the deceased person or
a person of unsound mind.

3. Persons prohibited to testify and the subject matter of their testimony

These are the parties or assignors of parties to a case or persons in whose behalf
a case is prosecuted.

The survivorship disqualification rules is intended to benefit the estate of the deceased or
the insane person, hence this protection may be waived by:
1. failing to object to the testimony
2. cross-examining the witness on the prohibited testimony, or
3. by offering evidence to rebut the testimony.

2. Marital disqualification rule (Spousal immunity)

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.

The rule requires not only a valid marriage but the existence of that valid marriage at the
moment the witness-spouse gives the testimony.

The rule applies whether or not the witness-spouse is a party to the case but the other
spouse must be a party.

Analyn Licyayo Taguiling ***My Personal Outline*** 28

 Remedial Law (Evidence) 2020_21

The prohibited testimony is one that is given or offered during the existence of the
marriage.
Hence, the rule does not prohibit a testimony for or against the other after the marriage is
dissolved.

3. Marital privileged communications

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.

The law insures absolute freedom of communication between the spouses by making it
privileged.

Marital privileged communication

It has reference to confidential communications received by one spouse from the

other during the marriage.

It applies only to confidential information received during the marriage.

The spouse affected by the disclosure of the information or testimony may object
even after the dissolution of the marriage. The privilege does not cease just
because the marriage has ended.

It applies regardless of whether the spouses are parties or not.

What is prohibited is the examination of a spouse as to matters received in

confidence by one from the other during the marriage.

Marital disqualification rule

It does not refer to confidential communications between the spouses.

Includes facts, occurrences or information even prior to the marriage.

It can no longer be invoked once the marriage is dissolved. It may be asserted

only during the marriage.

It requires that the spouse for or against whom the testimony is offered is a party
to the action.

The prohibition is a testimony for or against the other.

4. Attorney-client privilege

It does not require a perfected attorney-client relationship for the privilege to exist.

A lawyer shall preserve the confidences and secrets of his client even after the attorney-
client relation is terminated.

Analyn Licyayo Taguiling ***My Personal Outline*** 29

 Remedial Law (Evidence) 2020_21

5. Physician-patient privilege

It applies to a civil case whether the patient is a party or not.

Analyn Licyayo Taguiling ***My Personal Outline*** 30

 Remedial Law (Evidence) 2020_21

It does not apply to a criminal case presumably because the interest of the public in criminal prosecution
should be deemed more important than the secrecy of the communication.

The patient is the holder of the privilege.

The privilege survives the death of the patient.
The privilege may be waived by the patient.

Ended page 213 Riano

Analyn Licyayo Taguiling ***My Personal Outline*** 31

 Remedial Law (Evidence) 2020_21

Analyn Licyayo Taguiling ***My Personal Outline*** 32

 Remedial Law (Evidence) 2020_21

Analyn Licyayo Taguiling ***My Personal Outline*** 33