(The Bar Lectures Series)

WILLARD B. RIANO
Bar Reviewer and Frofessorial Lecturer in
Ciuil Procedure, Evidence, Criminal Procedure,
Contracts & Special Contracts arid Commercial Laws
Former Exec titiue Director, Recoletos Law Center
Member, Committee in Remedial Can›,
U.P. Law Center
Member, Committee in Commercial Law,
U.P. Law Center
Former Lan› Executive Dean, Sian S!ebastian College
Recoletos -Manila
Former Profesz•orial Lecturer and
Member of the Corn s of Professors,
Philippine Judicial Academ y
Co rrentl y Dean, Uniuersit y o[the East College o[Law

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 Philippine Copyright 2013, 2016

by

WILLARDB . RIANO
PREFACE

ISBN 978-971-23-8270-3 Like the previous edition, this work was conceptualized
as a basic reference material for the bar reviewee and the new
No porüon of thIS bOOk may be copied or lawyer. This work, like the author’s earlier work on the subject,
reproduced in books, pamphlets, outlines or notes, also represents an attempt to provide a fresh look at the basic
wÎtether pzîated, mimeographed, principles of evidence. In so doing, this work departs from the
typewritten, copied
in different electronic devices orin any other form, traditional presentation on the subject, a presentation often
for
distributi on or sale, without the written permission described as too rigid and formalistic bordering on an almost
ofthe author except brief passages in books, abstract methodology.
articles,
reviens, legal papers, and judicial or
other official While the format of the present work is substantially
proceedings with proper citation.
Anycopy of this bO0k Without the different from the author’s earlier work, it is written with the
ivy number and the Signature same goal of making evidentiary concepts more understand-
correspond- of the
page either proceeds from an able so the reader may realize that the rules of evidence are
author on this
illegitima te source or is in possession of one who neither mysterious nor profound, such rules having been
has no authority to dispose primarily derived from sheer logic and common reason.
of the same.
The language of this work is often simple and at times
ALL RIGHTS RESERVED conversational and departs from the usual large doses of
BY THE AUTHOR “legalese” common in legal treatises. Concepts had been re-
arranged to give rhyme and rhythm to the rules and to ap-
No. ù0 proximate how the most significant and commonly used
evidentiary concepts are presented both in the bar examina-
tions and in litigation.
• As mentioned, this work is written primarily for the
student of law who, in a bar examination situation, would
be confronted with the need to formulate answers in the
shortest time possible. To enable the reader to get a “feel” of
05-RL-00066-0
9 78 9712 3 8 2 7O the rules, this work made liberal use of both bar examination
$ concepts, practical illustrations and judicial interpretations of
Printed
evidentiary principles. This work, however, could likewise be
by a resource material for lawyers who wish to view the rules of
evidence from a non-traditional vantage point in the hope that
Typ0grgp§y Lithography
they may realize, from their experiences, that the principles of
evidence as used 84
in. norentino
the field, have edges that have been
St., Quezon City
Tel. No. 857-77•77 While this work makes no pretensions to
dulled and obscured by less endearing habits in the comprehensive- ness, care has been taken to treat
courtroom. the subject in a manner that is neither too
abridged nor too expanded so the reader would get a fair
share of the fundamentals needed to squarely face the
demands of the bar examinations and the rigors of trial on
the subject.
This new material remains anchored on the practical
principle that a bar candidate does not have to know
everything on each bar subject. Knowing everything has
never been a mandatory requirement for passing the bar. It
DEDICATION
will never be. Also, the breadth and scope of bar examination
topics yield to the conclusion that a profound knowledge of
every nook and cranny of each legal principle is next to To Niña.....my baby
impossible. Hence, emphasis has been accorded to those
topics normally involved in the bar examinations for the past and
thirty or so years. Those topics had been presented, in this her baby........Christopher
work, in accordance with the usual fact patterns in the bar
and in a manner consistent with the normal thought processes
needed to give a reasonable answer to a bar question.
This work would not have been possible without the
assistance of a lot of friends too many to mention. They know
who they are and the writer deeply owes them a tremendous
gratitude for the completion of this humble work. They too
know how the writer believes in that adage that “gratitude
when profound has a special way of being silent...”

Quezon City, Philippines

January 25, 2016

Willard B. Riano
 CONTENTS

Chapter I
Preliminary Considerations

A. Basic Principles
Concept of “evidence”; trutii as purpose........................... 1
Scope and applicability of the rules on evidence ............. 2
When evidence is required; when not required ............... 6
Application of the P‹u1es on Electronic Evidence ............. 8
Some distinctions between evidence in civil cases
and evidence in criminal cases................................. 9
Distinction between proof and evidence................................l0
Factum pro6ari.dam and factum pro6nns................................1
Liberal construction of the rules on evidence............................14
Absence of a vested right in the rules on evidence................14
Waiver of the rules on evidence..................................15
B. Admissibility of Evidence
15
Reuut teofo of h eq sbes o e ienbeli y :::::..:: :.: 16
Relevant evidence (Bar 1981)......................................18
Test for determining the relevancy of evidence.....................19
Collateral matters......................................................20
When collateral matters are allowed ... ... ............ .. .. .. 20
Relevance of evidence on the credibility of a witness...... 21
Competent evidence (Bar 2004)..................................23
Competence of electronic evidence.......................................24
Ad‘ 'f ' ght (probat ve value
be e denceei . 24
9 25
M dp1 nd d bs .biliBy"' BO9 40 1). ,.2005!. ‘’. . ‘ ’ ‘ 26
Curative admissibility......................................................27
Direct and circumstantial evidence (Bar 2011).....................27
Conviction by circumstantial evidence
(Bar 1998; 2011)......................................................28
Cumulative evidence and corroborative evidence ........... 30 credibility (Bar 2004)..........................................34
Positive and negative evidence.............................................32 Admissible evidence and credible evidence......................34
Competency of a witness distinguished from his Inadmissible evidence in relation to arrests,
 searches and seizures (Bar 2000; 2009; 2010) ....... 34 Examples of disputable presumptions
Some jurisprudential tenets on probative value
(Bar 2011; 2012)...................................................... 62
and credibility.....................................................39
C. Quantum of Evidence (Weight and Sufficiency
C. Miscellaneous Doctrines of Evidence)
Falsus in uno, [ales inomnibus...................................................42 Proof beyond reasonable doubt................................... 66
Alibi; denial (Bar 1994)........................................................ 43 Preponderance of evidence (Bar 2003; 2011)....................67
Alibi, not always false......................................................44 Substantial evidence (Bar 2003; 2011).............................68
Frame-up...................................................................46 Quantum of evidence in a petition for a
Delay and initial reluctance in reporting a crime ........... 47 Writ of Amparo .............. 70
Plight or non-flight of the accused............................................. 48 Effect on the criminal case of failure to prove
administrative liability............................................. 70
Chapter II Clear and convincing evidence (Bar 2011)........................71
Burden of Proof, Quantum of Evidence Evidentiary weight of electronic evidence.........................72
and Presumptions
Chapter Ill
A. Burden of Proof arid Burden of Evidence
Judicial Notice and Judicial Admissions
Burden of proof (Bar 2004).................................................. 49
Some jurisprudential pronouncements on Judicial Notice
burden of proof................................................................. 50 Function of judicial notice..........................................74
Test for determining where the burden of proof lies.............52 When judicial notice is mandatory...................................75
Where burden of proof is fixed.................................................. 53 When judicial notice is discretionary (Bar 2012)..................76
Burden of evidence (Bar 2004).............................................53 Judicial notice and knowledge of the judge
Equipoise rule or equiponderance doctrine (Bar 1980; 2011)........................................................
(Bar 1995)................................................................., 54 Stage when judicial notice may be taken.
B. Presumptions ....................................78
Judicial notice of foreign laws; doctrine
Concept of presumptions...........................................................55 of processual presumption (Bar 1997; 2005; 2011)........79
Inference distinguished from a presumption........................56 Judicial notice of the law of nations..........................................79
Kinds of presumptions ...........,.................................................st Judicial notice of municipal ordinances g
Effect of presumptions.........................................................57 (Bar 2005; 2011)........................................................
Meaning of conclusive presumptions (Bar 2012)..................57 Judicial notice of a court’S own acts and records.. . .80
Conclusive presumptions under the Rules of Court No judicial notice of records of other cases;
(Bar 2012)................................................................... 58 exceptions................................................................60
Estoppel ...................................................................... . 59 Judicial notice of proprietary acts of government-
Effect of disputable presumptions............................................. 60 owned and controlled corporations.......................... 81
Disputable presumptions under the Rules of Court........ 60 Judicial notice of post office practices.................................. 81
Judicial notice of banking practices.....................................................................82
Judicial notice of the financial condition
of the government.................................................... 82
Judicial notice of presidential powers..............................82
Judicial notice of other matters........................................... 83
B. Judicial Admissions
 ix
Admissions in pleadings and motions (Bar 2011) ........... 87
Averments in pleadings which are not deemed
admissions...............,.............................................. 89 Evidentiary concepts involved in the presentation
Implied admissions of allegations of usury.......................... 89 of documentary evidence................................................132
Implied admissions of actionable documents.......................89 Requisites for admissibility of documentary evidence.........132
Admissions in the pre-trial of civil cases 90 c. Best Evidence RuIe
Admissions in the pre-trial of criminal cases Meaning of "best evidence" (Bar 1988)............................. 133
(Bar 2008)................................................................... 90 Purpose of the rule (Bar 1994; 1998)................................ 135
Implied admission in the modes of discovery Waiver of the rule.............................................................. 136
(Bar 1984)................................................................... 91 When document is merely collaterally in issue ............... 136
Admissions in amended pleadings (Bar 2011)......................92 How to apply the best evidence rule................................. 136
Nature of admissions in superseded pleadings.....................92 Illustrative applications of the best evidence rule........... 137
AdlolsBions in dismissed pleadings...................................... 93 Excuses for not presenting the original
Sworn statement of a proposed state witness..........................93 document (Bar 19SiI; 1997) ...................................... 140
Admissions by coungel.............................................................. 93 Requisites for the introduction of secondary evidence
Effect ofjudicial admissions................................................. 93 in case of loss, destruction, or unavailability
How judicial admissions may be contradicted................. 95 of the original....................................................141
Chapter IV Requisites for the introduction of secondary evidence
when the original is in the custody or control
Object and Documentary Evidence of the adverse party...............................................143
Object Evidence (RuIe 130) Requisites for the Introduction of secondary evidence
when the original consists of numerous accounts.........144
Nature of object evidence .................................................. 97
Requisites for the introduction of secondary evidence
Requisites for admissibility of object evidence ....... ... 99
when the original document is a public record...........146
Object evidence and the right against self-
102 Effect of not offering a document in evidence after
incrimination (Bar 2010) ..........................................
102 calling for its production and inspection....................146
Demonstrative evidence ....................................................
View of an object or scene ................................................. 106 Meaning of "original" (Bar 1997; 2001)..............................146
Categories of object evidence ............................................ 107 Originals under the Rules on Electronic
Chain of custody in general .............................................. 108 Evidence (Bar 2003)..........................................149
Chain of custody in drug cases (Sec. 21 of the Original printout of facsimile transmissions
Comprehensive Drugs Act of 2002) (Bar 2011)....... 111 (Bar 2012).........................................................150
Links in the chain of custody............................................ 115 D. Parol Evidence Rule (Rule 130)
Importance of the marking of the evidence ................. 116
Effect of non-compliance with Sec. 21 Contracts and the parol evidence rule ............................. 151
of R.A. 9165, as amended ......................................... 117 Application of the parol evidence rule
DNA evidence .................................................................... 117 (Bar 1978; 1981; 1983; 2012).................................... 152
Rules on DNA evidence.................................................,... 121 Applicatior. of the rule only to parties and their
Paraffin tests ..................................................................... 126 successors-in-interest ............................................... 155
Polygraph tests (Lie detector tests).................................. 127 Application of the rule to wills.......................................... 156
B. Documentary Evidenee (RuIe 130) When and how to introduce parol evidence ..................... 157
Prior, contemporaneous, and subsequent agreements.... 159
Meaning of documentary evidence (document
as evidence) ............................................................... Intrinsic ambiguity in the writing.................................... 160
128 Mistake or imperfection in the writing and failure
Documents under the Rules on Electronic Evidence
to express the true agreement
 (Bar 2009).................................................................. 129 of the parties (Bar 2001)........................................ 162
Waiver of the parol evidence rule ..................................... 164 Oath or affirmation .... .. . ..... ... 182
-}2'j•(j}j t eye y : jje....................................................................................................... •. 164 Ability to perceive.............................................................. 183
Distinctions between the best evidence rule and Ability to make known the perception to others.............. 184
the parol evidence rule ............................----------------- 165 Competency and credibility (Bar 2004)............................ 185
Factors that do not affect the competency
E. Authentication and Proof of Documents of a witness (Bar 201 l) ............................................. 186
(Rule 132)
Meaning of authentication (Bar 2012) ............................. 165 B. Disqualification of Witnesses
n ept f a eat ......................... .»« « ........« « •
166 Disqualification by reason of mental incapacity.................187
Public and private documents ...........................- - ------- 167
Proof of a private document...........................-- --- ---- - Disqualification by reason of immaturity...........................188
168 Child witness; meaning (Bar 2012)...........................189
When authentication of a private document
is required ................................................................. Competency of a child witness; presumption;
168
Authentication of both the original and competency examination...................................189
a photocopy of the original ............................---- -- -- Survivorship disqualification rule or the dead
169
When authentication of private documents man’s statute (Bar 2001)...................................191
is not required...............................-- -- ---- - - ----- - 169 How to apply the rule...............................................193
Ancient documents (Bar 1990) .............................. ---.---- 170 Marital disqualification rule (Spousal immunity)
How to prove genuineness of a handwriting.................... 171 (Bar 2000; 2010)....................................................197
Importance of knowing whether a document is Exceptions to the marital disqualification rule...................199
public or private; proof of notarial documents ........ 171 Testimony where spouse is accused with others................201
Public documents as evidence.....................-. ---------------- 173 Testimony by the estranged spouse (Bar 2006)..................202
Proof of official record; attestation of a copy .................... 174 Marital privileged comm unications
Proof of foreign laws; doctrine of processual (Bar 1995; 2004; 20 0)...................................................204
presumption (presumed-identity)............................ 175 Explanation of distinctions between the marital
Special power of attorney executed abroad disqualification rule and the marital privileged
170 communication rule .................................................. 206
()3ar 2011)............................................... • ----•• ---
176 Attorney-client privilege (Bar 2008)................................. 208
Public record of a private document.................................
Proof of lack of record.................................-. --- ---- -- - 176 Physician-patient privilege (Bar 1998) ............................ 210
Last wills and testaments............................... -- - - 177 Priest/minister-penitent privilege .................................... 213
Explaining alterations in a document.............................. 177 Privileged communications to public officers................... 214
Proof of documents in an unofficial language .................. 178 Executive privilege; Presidential communications xii
Impeachment of judicial record ...........................-.----- --- 178 privilege..................................................................... 214
Registration of contracts .................................--- -- - ----- 178 Privileged communications under the Rules on
Foreign judgments; divorces................................... ....--- 179 Electronic Evidence .................................................. 218
}jjjj•p}j j•e gi Stri e S ..........................................•.• • • • • • • • • • • • • • • • • • • 179 Parental and filial privilege (Bar 1998) ........................... 218

Chapter V
Testimonial Evidence
 in the Rules of Court.......................................................219
C. Examination of Witnesses
Open court examination; exceptions...............................................................220
Oath or affirmation..................................................................................221
Examination of witnesses and record of
proceedings (Bar 1978)......................................221
Other privileged communications not
found xti

Rights and Obligations of a witness

Unaccepted plea of guilty to a lesser offense...................... 264
(Bar 1998; 2004; 2005).............................................. 222 Offer to pay or the payment of medical,
Examination of a child witness;
live-link television (Bar 2006).................................. hospital or other expenses..................................... 264
223 Subsequent remedial measur es....................................264
Kinds of examinations....................................................... 227 Evidence of similar conduct (Bar 2011)..............................265
Death or absence of a witness........................................... 228 When evidence of similar acts or previous
Recalling a witness............................................................ 229
Leading questions .. ..... .. .. conduct is admissible............................................ 267
229
Leading questions to a child witness................................ P. Judicial Affidavit Rule (A.M. 12-8-8-SC)
230
Misleading questions......................................................... 231 Rationale for the Judicial Affidavit Rule ......................... 268
D. Impeachment of a Witness Effectivity of the Judicial Affidavit Rule.......................... 269
Significance of the use of a judicial affidavit; exhibits .... 269
How to impeach a witness ... 233 Scope of the Judicial Affidavit Rule ........... ..... ......... .... 270
Impeachment by contradictory evidence.......................... 233 Applicability of the Judicial Affidavit Rule
Impeachment by prior inconsistent statements .............. 235 to criminal cases............................................... 270
Impeachment by showing bad reputation........................ 239 Contents of the judicial affidavit........................................ 271
No impeachment by evidence of bad character Effect of non-compliance with the content
but by bad reputation ............................................... 240 requirements of Sec. 3 of the Judicial
Evidence of good character of the witness ....................... 240 Affidavit Rule...................................................................273
No impeachment by evidence of particular Sworn attestation of the lawyer.....................................273
wrongful acts............................................................. 241 Effect of a false attestation by the lawyer........................... 274
Exclusion and separation of witnesses............................. 243 Effect of non-compliance with the attestation
When the witness may refer to a memorandum.............. 243 requirement................................-. ........................... 274
E. Admissions, Confessions and the ftes Znter filing and service of the judicial affidavit and
Alioa Acta Rule (Rule 130) exhibits; modes of service ......................................... 274
Effects of failure to submit the judicial affidavits
Concept of admissions and confessions ............................ 245 anda exhibits on time ............................................. ... 276
A
246 Remedy in case of late submission ................................... 276
ETT Je tio of missions’and‘confeseions””””“”“"”’
246 Offer of testimony in judicial affidavit ............................. 277
Effect of extrajudicial confession of guilt; ””““”"“”“’
Objections to testimony in the judicial affidavit;
corpus delicti .............................................................

id r.teolbosllï'1.xchei”“"””“”“””“"”“”””“””““
249 ruling of the court ...................................... ........ 277
254 Appearance of the witness at the scheduled hearing...... 278
255 Effect of failure of a witness to appear at the
 Distinctions between extrajudicial an judicial””“””“”’ scheduled hearing; failure of counsel to appear.............278
admissions................................................................. 256 When there is a need for the issuance of a subpoena.........279
Exceptions to the res inter ofios acta rule Oral offer and objections to exhibits.............................. 279
(first branch) ............................................................. 257
Admissions by a co-partner or agent................................ 257 Chapter VI
Admissions by a co-conspirator ........................................ 259 Hearsay Evidence, Opinion Evidence
Admission by privées ......................................................... 262 and Character Evidence
Offer of compromise in civil cases .................................... 263
Offer of compromise in criminal Preliminaries
cases (Bar 1989; 2008).............................................. 263 Hearsay evidence (Bar 2004; 2007; 2011)......................281
Plea of guilty later withdrawn.......................................... 264 Hearsay may be oral or written.................................281
Basis for excluding hearsay evidence............................... D. Character Evidence
28J.
When evidence is hearsay.................................................
282 Inadmissibility of character evidence........................................334
Specific elements of hearsay evidence..............................
284 Evidence of bad moral character of the accused
Anecdotal illustration........................................................
Examples of non-hearsay evidence................................... 285 (far 2010)......................................................334
289 Evidence of good moral character of the accused
Out-of-court statements offered to prove mental (Bar 2010; 201l)........................................................ 336
state of the deelarant................................................ 290 Evidence of character of the offended party .................... 337
Out-of-court statement offered to prove its effect Sexual abuse shield rule in child sexual abuse cases...... 338
on the listener/hearer ............................................... 291 Character evidence in civil cases...................................... 338
Out-of-court statement offered to prove that the Evidence of good character of a witness........................... 338
statement was made (Bar 2012) .............................. 293
Independently relevant statements Chapter VII
(Baz 2003; 2009; 2011).............................................. 294
Offer of Evidence and Trial Objections (Rule 132)
B. Exceptions to the Hearsay Rule
Importance of offer of evidence (Bar 2003; 2012)..................... 341
Dying declaration (Bar 2007; 2010).................................. 299
Marking of a document; not a formal offer............................... 342
Elements of a dying declaration (Bar 1985; 1991) .......... 307
When formal offer of evidence is not required.......................... 343
Assailing a dying declaration ........................................... 308
When evidence is offered by petitioner
Parts of the res gestae (Bar 2007)..................................... 310
but not by respondent ...................................................,... 344
Res gestae under the Rules of Co urt 312
\Vhen evidence is to be offered .......................... ....................... 344
................................. 312 How an offer of evidence is made .............................................. 346
A. Spontaneous statements .......................................... 314 0)12) ’’‘‘‘..................... 346
Basis of admissibility ........................................................ 315 Ob e a ‘and ’c is objebte ts RaB 9 347
Objections to admissibility................................................
B. Verbal acts (Bar 2011).............................................. n eJobjections (Bar 1997): :: : .:: ::.:::: 349
318 Objec o ubsbe 349
Entries in the course of business (Business Striking out pan answer or testimony ...............: ..:::. ::...........:: 351
Records Rule) ............................................................ 321 Waiver of objections; belated objections (Bar 2004)................. 353
Declarations against interest ........................................... 323 Extent of waiver for failure to object ............ . . ............... .. . 354
Declaration about pedigree............................................... 325 Rulings on objections ................................................................. 356
Family reputation or tradition regarding pedigree......... 326 Repetition of objections.............................................................. 358
 Common reputation........................................................... 327 Tender of excluded evidence (offer of proof) ............................. 359
Entries in official records .................................................. 327 Formal offer of evidence and formal offer of
Commercial lists and the like ........................................... 329 proof(Bar 1991)...............¡..............................................363
Learned treatises............................................................... 329 Additional evidence after case is rested .... .. . . ... .... 364
Testimony or deposition at a former proceeding ............. 329
Exception to the hearsay rule in child abuse cases ......... 330 a e Jude........................................................................................36s
C. Opinion Evidence
Admissibility of opinion evidence (Bar 2011) . ...... ........ 332
When opinion evidence in admissible; expert
testimony (Bar 2011) ................................................ 332
Opinion of an ordinary witness;
when admissible (Bar 2005)..................................... 333

XYZ xvii
 Chapter I

PRELIMINARY CONSIDERATIONS

A. Basic Principles

Concept of "evidence”; truth as purpose

1. The term "evidence” is defined in Sec. 1 of Rule 128
of the Rules of Court, thus:

“SECTION 1. Ev’idence defined. — Evidence is

the means, sanctioned by these rules, of ascertaining
in a judicial proceeding the truth respecting a matter of
fact.”

2. The very tenor of the definition clearly indicates that

not every fact having a conceivable connection to the issue of
a case, or that which provides a reasonable inference as to the
truth or falsity of a matter alleged, is considered evidence.
To be considered evidence, the same must be "sanctioned”
or allowed by the Rules of Court. It is not evidence, if it is
excluded by law or by the Rules, even if it proves the
existence or non-existence of a fact in issue. Thus, a hearsay
evidence, a coerced extrajudicial confession of the accused,
and an evidence obtained in violation of constitutional rights,
even if ultimately shown to correspond to the truth, do not fall
within the definition of Sec. 1 of Rule 128.
3. The definition, provided for under Sec. 1 of Rule 128,
significantly considers "evidence” not as an end in itself but
merely as a "means” of ascertaining the truth of a matter
of fact. Equally significant is the observation that
"evidence," as defined in the Rules of Court, is a means of
ascertaining
2 EVIDENCE the truth, not in all types of proceedings, but specifically, in a
(The Bar Lectures Series)
judicial proceeding.”
 4. The purpose of evidence under the Rules of Court is CHAPTER I — PRELIMINARY CONSIDERATIONS 3
to ascertain the truth respecting a matter of fact in a judicial A. Basic Principles
proceeding (lsec. 1, Rule 128, Rules o[ Court). Evidence is
required because of the presumption that the court is not rules on evidence shall be the same in all courts and in all
aware of the veracity of the facts involved in a case. It trials and hearings (!Sec. 2, Rule 128, Rules o[Court).
is, therefore, incumbent upon the parties to prove a fact in
issue through the presentation of admissible evidence. 2. The rules on evidence, being components of the
Rules of Court, apply only to judicial proceedings (Sec. 1,
Thus, it was declared in no uncertain terms, that rules Pule 128, Rules of Court). In relation to this, Sec. 4 of Rule
on evidence are merely the means for ascertaining the truth 1 provides for the non-applicability of the Rules of Court,
respecting a matter of fact (Atienza v. Board of Medicine, 642 including necessarily the rules on evidence, to certain
SCRA 523, 531, February 9, 2011). specified proceedings. The provision declares:
5. While the purposeofevidence is to know the truth,
the truth referred to in the definition is not necessarily the “SEC. 4. In what cases not applicable. — These
Rules shall not apply to election cases, land registration,
actual truth but one aptly referred to as the Judicial or legal
cadastral, naturalization and insolvency proceedings,
truth. The limitations of human judicial systems cannot and other cases not herein provided for, except by
always guarantee knowledge of the actual or real truth. analogy or in a suppletory character and whenever
Actual truth may not always be achieved in judicial practicable and convenient."
proceedings because the findings of the court would depend
on the admissible evidence presented before it. 3. The general rule is that administrative agencies are
Under Sec. 34 of Rule 132, courts, as a rule, are not not bound by the technical rules on evidence. It can
even authorized to consider evidence which has not been accept documents which cannot be admitted in a judicial
formally offered. Thus, a supposed evidence that would proceeding where the Rriles of Court are strictly observed. It
undoubtedly show the innocence of the accused will not be can choose to give weight or disregard such evidence,
considered in the decision of the court if not formally offered depending on its trustworthiness (Sugur Regulatory
in evidence. If it is evidence to the contrary that has been Administration u. Tormon,
formally offered, it is the latter which the court is bound to G.R. No.195640, December 4, 2012).
consider or appreciate. for instance, while it may be the The technical rules of evidence are not binding on labor
actual truth that it was Mr. X who shot Mr. Y, if the tribunals (Manalo u. TNS Philippines, Inc., G.R. No.208567,
available evidence presented and admitted in court points to November 26, 2014). Thus, the argument, that the written
Mr. Z as the culprit, then the judicial or legal truth is that it statements of certain employees are hearsay because such
was Mr. Z, not Mr. X, who shot employees were not presented for cross-examination, is not
Mr. Y. persuasive. The rules of evidence are not strictly observed in
proceedings before the National Labor Relations Commission
Scope and applicability of the rules on evidence (NLRC) which are summary in nature and decisions may
be made on the basis of position papers (Castillo u.
1. The rules on evidence in the Rules of Court are Prudenti•ali[e Plans, Inc., G.R. No. 196142, March 26, 2014).
guided by the principle of uniformit y. As a general policy, the
Also, the rules on evidence are not strictly applied in
proceedings before administrative bodies such as the Board
of Medicine (Atienza u. Board o[ Medicine, 642 SCRA 523,
February 9, 2011).
 4. The Civil Service Commission, for example, conducts its investigations for the purpose of ascertaining
the truth
4 EVIDENCE decision modifying the ruling of the Labor Arbiter.
(The Bar Lectures Seriea)
Distressed by the decision of the NLRC, the
without necessarily adhering to technical rules of procedure petitioners sought recourse with the Court of Appeals
applicable in judicial proceedings. It was, therefore, sustained by filing a petition
by the Supreme Court when it validly appreciated certain
documents in resolving the formal charge against respondent
inspite of the fact that they were not duly authenticated but
its contents were not disputed by respondent and whose only
objection was that they were not duly authenticated (Civil
lseruice Commission v. Colanggo, 553 SCRA 640).
5. Earlier, in Ong Chia v. Republic, 328 SC f 'A 749, the
Court emphasized that the rule on formal offer of evidence is
not applicable to a case involving a petition for naturalization.
Here, the Regional Trial Court rendered judgment in
favor of the petitioner’s application for naturalization. On
appeal, the Court of Appeals reversed the Regional Trial
Court and denied the application for naturalization on the
basis of documents not earlier formally offered in the trial
court, raised for the first time on appeal and merely attached
to the appellant’s brief for the State. Petitioner contends that,
under Sec. 34, Rule 132 of the Rules of Court, only evidence
that has been formally offered shall be considered by the
court. Brushing aside petitioner’s contention, the Supreme
Court held that the rule on formal offer of evidence is not
applicable to a case involving a petition for naturalization
unless applied by analogy or in a suppletory character and
whenever practicable and convenient.
6. A relatively more recent case, Sasan, lsr. v. NLRC,
569 SCR4 fi70, further illustrates the rule on the non-
applicability of the Rules of Court, including the rules on
evidence, to non-judicial proceedings.
In this case, the respondent, in support of its
material allegations, submitted before the NLRC several
documents which it did not present before the Labor
Arbiter. Largely on the baais of those documents presented
for the first time on appeal, the NLRC promulgated its
 CHAPTER I — PRELIMINARY CONSIDERATIONS 5 that, even assuming that the adverse party submitted mere
A. Basic Principles
photocopies, the proceedings before the NLRC are not covered
by the technical rules on evidence and procedure as observed
for certiorai i under Rule 65 of the Rules of Court. In its deci- sion, in the regular courts. Technical rules on evidence do not apply if
the Court of Appeals affirmed the findings of the NLRC holding that the decision to grant the petition proceeds from an examination
it did not commit a grave abuse of discretion. of its sufficiency as well as a careful look into the arguments
In the Supreme Court, the petitioners raised, as one of the contained in position papers and other documents.
isn•ues, the acceptance and consideration by the NLRC of the 8. The rule that the provisions of the Rules of Court
evidence presented before it for the first time on appeal. The do not apply to administrative or quasi-judicial proceedings
Supreme Court ruled that the issue is not a novel procedural issue, likewise found expression in the earlier case of Bantolino v.
and that Philippine jurisprudence is replete with cases allowing the Coca Cola Bottlers, Inc., 4O3 S!CRA 699.
NLRC to admit evidence, not presented before the Labor Arbiter,
and submitted to the NLRC for the first time on appeal. Since Here, the Court reiterated previous rulings that the rules
technical rules of evidence are not binding in labor cases, the on evidence are not strictly observed in proceedings before
NLRC is not precluded from receiving evidence for the first time adminlstrative bodies. The Court disregarded the findings
on appeal. of the Court of Appeals which, among others, considered
the affidavits of the petitioners as mere hearsay, and,
7. In the lsasan case, the petitioners likewise inter- posed a thus, could not be admitted in evidence against their
protest against the documentary evidence submitted by the adverse employers. The Court unequivocally ruled that in a labor
party because they were mere photocopies. case, it is not necessary for an affiant to appear and
The Court, in dismissing the objection, stressed once again testify, and be cross- examined by counsel for the adverse
party on hls affidavit.
6 EVIDENCE 1. The basic rule is that, a mere allegation
(The Bar Lecturer Series)
is not evidence and is not equivalent to proof. For
example, a charge based on mere suspicion and
Administrative bodies are not bound by the technical niceties speculation cannot be given credence (Agdeppa v.
of law and procedure and the rules obtaining in the courts of Office of the Ombudsman, G.R. No. 146376, April 23,
law. 2014).
9. Similarly, it was declared that the parol evidence Evidence is the means of proving a fact. Ae the
rule, like other rules on evidence, should not be strictly definition says, it is offered in court to ascertain the
applied in labor cases. Hence, a Labor Arbiter is not precluded truth “respecting a matter ot fact.’ Implied from the
from accepting and evaluating evidence other than, and even definition of “evidence” in Sec. 1 of Rule 128 is the
contrary to, what is stated in the CBA (Cirtek Employees need for the introduction of evidence when the court
Eabor Union-Federation of Free Workers u. Cirtek Electronics, has to resolve a question of fact. Where no factual
Inc., 650 SCRA 656, 662-663, June 6, 2011; See also Abosta issue exists in a case, there is no need to present
Management Corporation u. National labor Relations evidence because where the case presents a question
Commission fNirst Division], 654 ISCRA 505, 516-517, July 27, of law, such question is resolved by the mere
2011). application of the relevant statutes of this jurisdiction
to which no evidence is required.
When evidence is required; when not required
2. In certain instances, evidence is no longer
required to prove an assertion, as in the following: CHAPTER I — PRELIMINARY CONSIDERATIONS 7
A. Basic Principles
(a) When the pleadings in a civil case do not tender an
issue of fact, a trial need not be conducted since there is
no more reason to present evidence. The case is then ripe (bJ Presentation of evidence may, likewise, be dispensed
for judicial determination, through a judgment on the with by agreement of the parties. The parties to any action
pleadings, pursuant to Rule 34 of the Rules of Court. are allowed by the Rules to agree in writing upon the facts
involved in the litigation and to submit the case for judgment
upon the facts agreed upon, without the introduction of
evidence (Slec. 6, Rule 30, Rules of Court).
(c) Evidence is not required on matters ofjudicial notice
tsec. 1, Rule 129, Rules of Court) and on matters judicially
admitted (lsec. 4, Rule 129, Ru,les of Court).
(d) Evidence is not required when the law presumes the
truth of a fact.
When, for instance, an injured passenger sues a common
carrier for breach of contract of carriage, evidence of’ the
negligence of the defendant carrier is dispensed with. This
is because Art. 1756 of the Civil Code of the Philippines
establishes the presumption that, “In case of death of or
injuries to passengers, common carriers are presumed to have
been at fault or to have acted negligently x x x.” The same
presumption applies under Art. 1735 of the same Code when
the goods on board a common carrier are lost, destroyed or
deteriorated.
The constitutional presumption of innocence is a fitting
example. The accused has no duty to prove his innocence
because the law presumes that an accused in a criminal
prosecution is innocent until the contrary is proven. This basic
constitutional principle is fleshed out by procedural rules
which place upon the prosecution the burden of proving that
an accused is guilty of the offense charged by proof
beyond reasonable doubt. Whether the degree of proof has
been met is largely left for the trial courts to determine (See
for further readings, People v. Baraoil, 676 SICRA 24, 31, July 9,
2012).
(e) Evidence is, likewise, dispensed with when a rule
presumes the truth of a fact. Under Rule 131 of the Rules of
Court, two kinds of presumptions, conclusive and disputable, have been established.
8 EVIDENCE 3. Ephemeral communications are now
(The Bar Lectures Seriea)
admissible evidence, subject to certain conditions.
Ephemeral electronic communication refers to
Thus, the tenant is not permitted to deny the title of his telephone conversations, text mes-
landlord at the time of the commencement of the relation
of landlord and tenant between them. This presumption is
conclusive against the tenant ésec. $ fb1, Rule 131, Rules of
Courts. On the other hand, it is disputably presumed that
official duty has been regularly performed (lsec. 3Lm], Role
131, Rules of Court).

Application of the Rules on Electronic Evidence

1. The application of the rules on evidence in the
Rules of Court contrasts with the application of the Rules on
Electronic Evidence. While the definition of "evidence" under
the Rules of Court makes reference only to judicial proceed-
ings, the provisions of the Rules on Electronic Evidence apply
as well to quasi-judicial and administrative cases. Sec. 2,
Rule 1 of the Rules on Electronic Evidence provides:

“SEC. 2. Cases coverei:/. — These Rules shall

apply to all civil actions and proceedings, as well as
quasi- judicial and administrative cases.”

2. It was previously held that the provisions of the

Rules on Electronic Evidence do not apply to criminal actions.
They apply only to civil actions, quasi-judicial proceedings,
and administrative proceedings (Aug v. Court of Appeals,
G.R. No. 182835, April 20, 2010). Note. See, however, People
v. Enojas, G.R. No. 204894, March 10, 2014, which applied
the Rules on Electronic Evidence to criminal cases. Here,
the RTC admitted text messages against the accused in
conformity with the Court’s earlier resolution (A.M. No. 01-
7-01 SC, September 24, 2012) expanding the coverage of said
rules to criminal cases as well. No reference to this
resolution, amending the coverage of the Rules on Electronic
Evidence, was mentioned in the earlier case of Ang v. Court
of Appeals.
 CHAPTER I — PRELIMINARY CONSIDERATIONS (b) In civil cases, an offer of compromise is not an
A. Basic Principles
admission of any liability, and is not admissible in
evidence against the offeror. In criminal cases, except those
sages, chatroom sessions, streaming audio, streaming video, and involving quasi-offenses (criminal negligence) or those allowed
other forms of communication the evidence of which is not recorded or by law to be compromised, an offer of compromise by the
retained (Bartolome u. Maranan, 740 !SCRA 491). accused may be received in evidence as an implied admission
of guilt (Slec. 27, Rule 130, Rules o[Court).
Some distinctions between evidence in civil cases and evidence
(c) In civil cases, the concept ofpresumption of innocence
in criminal cases
does not apply and, generally, there is no presumption for or
Sec. 2 of Rule 128 declares that the rules on evidence shall against a party except in certain cases provided for by law.
be the same in all trials and hearings, except as other- wise Azomy/e: A common carrier is presumed to have been at fault
provided by law or these rules. To declare such is not to say, or negligent in case a passenger is injured in the course of
however, that there are absolutely no distinctions between a civil his transportation by the carrier (Art. 1756, Civil Code o[
and a criminal proceeding. Indeed, there are certain evidentiary the Philippines). In criminal cases, the accused enjoys the
differences between these proceedings. constitutional presumption of innocence (lsec. 14, Art. III,
(a) In civil cases, the party having the burden of proof must Constitution o[the Philippines).
prove his claim by a preponderance of evidence (Sec. 1, Rule 133, Ru!es (d) The concept of "confession” does not apply to civil
o[ Court). In criminal cases, the guilt of the accused has to be cases which use the more appropriate term, "admission." A
proven beyond reasonable doubt (lsec. 2, Rule 133, Rules of Court). confession is a declaration of an accused acknowledging his
10 EVIDENCE (g) The privileged communication rule on patient-
tThe Bar Lecturer Series)
physician relationship has reference only to a civil case, not to a
criminal case (Sec. 24(c], Rule 130, Rules of Court).
guilt of the offense charged (See Sec. 33, Ruie 130, Rules of
Court). (h) The rule on admission by a conspirator applies only to a
criminal case, not to a civil case ésec. 30, Rule 130, Rules o[Court).
(e) In civil cases, evidence of the moral character (gocd
or bad) of a party is admissible as long as it is pertinent to (i) The rule on extrajudicial confession applies to the
the issue of character involved in the case (Sec. 51 fbJ, Rule accused in a criminal case, not to the defendant in a civil case
130, Rules of Court). In criminal cases, the prosecution is not (lsec. 3, Rule 133, Rules o[Court).
allowed to prove the bad moral character of the accused even
if it is pertinent to the moral trait involved. It can only do so Distinction between proof and evidence
in rebuttal (lsec. 51[«1f2J, Rule 130, Rules of Court).
1. “Proof” is not the evidence itself. There is proof only
(I) The rule on disqualification by reason of death or because of evidence. It is merely the probative effect of
insanity under Sec. 23 of Rule 130, applies only to civil cases evidence and is the conviction or persuasion of the mind
or special proceedings, not to criminal cases. This is because resulting from a consideration of the evidence (29 Am. Jur. 2d,
the rule involves a claim or demand against the estate of the Evidence, §2).
deceased or the person of unsound mind (lsec. 23, Rule 130,
Rules of Court). 2. Proof is the effect or result of evidence, while evi-
dence is the medium of proof (Jones on Evidence, Volume I,
Fourth Edition, §4, p. 5). CHAT'TER I — PRELIMINARY CONSIDERATIONS 11
A. Basic Principles

Factum probandum and factum probans

1. Evidence signifies a relationship between two facts,
namely:
(a) the fact or proposition to be established (rectum
probandum),‘ and
(b) the facts or material evidencing the fact or
proposition to be established ([actum probans) (Wigmore,
Principles o[Judicial Proo[, 5).
2. Stated in another way, the[actum probandum is the
fact to be proved; it is the fact which is in issue in a case and
to which the evidence is directed. On the other hand, /acfum
probans is the probative or evidentiary fact tending to prove
the fact in issue (Blach’s law Dictionary, 5th Ed., p. 533).
Thus, if P claims to have been injured by the negligence
of D, who specifically denies having been negligent, the
negligence of D that caused the injuries of P constitutes the
[actum probandum of the suit. The evidence offered by P,
whether it be object, documentary or testimonial, constitutes
the materials to prove the liability of D. The totality of the
evidence to prove the liability refers to the /actum probans.
3. The rectum probandum in a certain case may be
affected by the judicial admissions of a party. For instance,
if the defendant in a suit based on a culpa aquiliana theory
admits his negligence in his answer to the complaint, there is
no more need to prove negligence. Hence, negligence ceases to
be a factum probandum in the case.
If the rectum pro6ondum “signifies the fact or proposi-
tion to be established,” then matters of judicial notice,
conclusive presumptions and judicial admissions cannot
qualify as parts of the [actum probandum of a particular case
because such matters need not be established or proven.
4. In practical terms, the [actum probandum in a civil
case refers to the elements of a cause of action alleged in the
complaint as denied specifically by the defendant.
12 EVIDENCE CHAPTER I — PRELIMINARY CONSIDERATIONS 13
(The Bar Lectures Series) A. Basic Principles

Por instance, in a suit for collection of a sum of money, (iii) that the taking is with intent to gain; and
in the absence of any admission by the defendant, the [actum
probandum of the plaintiff would be: (iv) that there is violence against or intimida-
tion of persons or force upon things (Art. 293, Revised
(i) the existence of the debt of the defendant; Penal Code; People o. Sandoval, 254 !SCRA 436).
(ii) the maturity of the debt; (b) To convict an accused for illegal possession of
(iii) the demand made by the plaintiff upon the firearms and explosives, the following two (2) essential
defendant to pay; and elements must be indubitably established, each of which
is a [actum probandum:
(iv) the failure to pay despite the demand.
(i) the existence of the subject firearm or
If the fact of non-payment is the only matter disputed explosive which may be proved by the presentation of
in the answer, then it is only the issue of payment or non-
the subject firearm or explosive or by the testimony
payment which constitutes the rectum probandum in the
of witnesses who saw the accused in possession of
case, other allegations having been admitted.
the same; and
It must be clarified, at this juncture, that the mere filing
(ii) the negative fact that the accused had
of the complaint does not ipso [acto give rise to a rectum pro-
no license or permit to own or possess the firearm or
bandum. When the defendant files his answer and makes
ex- plosive which may be established by the
no specific denial of the averments of the complaint, ito
testimony or certification of a representative of
[actum probandum arises because of the admissions. Where,
the PNP Fire- arms and Explosives Unit that the
let us say, the defendant specifically denies a material
accused has no li- cense or permit to possess such
allegation in the complaint, the matter denied becomes the
firearm or explosive.
rectum proban- dum, the fact to be established.
Even if the firearm or explosive is presented in
The same rule applies to a criminal case. The mere filing
court, the failure of the prosecution to prove the absence
of an information does not automatically give rise to a[actum
probandum. It only arises when the accused enters a plea of of a permit to own or possess the firearm or explosive is
fatal to its cause. The essence of the crime penalized is
not guilty.
primarily the lack of license or permit to carry or possess
the firearm, ammunition or explosive since possession,
5. In a criminal case, when the accused pleads not by itself, is not prohibited by Peo Ie v. Re yes, G.R.
guilty, the [actum probandum refers to a matter that the law
No. 1 4606, Febi’uary 18, 2014).
prosecution must prove beyond reasonable doubt in order to (i) that there be personal property belonging
justify a conviction. to another;
(a) Thus, in a prosecution for robbery, the prose- (ii) that there is unlawful taking of
p has the burden to prove the following matters
cution that pro- yy¡
beyond reasonable doubt:
 (c) In a prosecution for il legal sale of prohibited or (i) the identity of the buyer and seller, the
dangerous drugs, what determines if there was a sale of object, and the consideration; and
dangerous drugs is the proof of the concurrence of all the
(ii) the delivery of the thing sold and the
elements of the offense. Conviction is proper if the following payment therefor(People u. Viterbo, G.fi. No. 203434,
elements concur:
14 EVIDENCE yala de Roxas u. Case, 8 Phil. 197) because
(The Bar Lectures Series)
said rules are subject to change by the
Supreme Court pursuant to its powers to
July 23, 2014; People u. Sapitula, G.R. No. 209212, promulgate rules concerning pleading, practice
February 10, 2016). and procedure (Dec. 5fñJ, Art. VIII, Constitution
The drug itself, constitutes the very corpus delicti of the of the Philippines). The change in the rules
offense in illegal sale of drugs (People v. Casacop, G.R. No. on evidence is, however, subject to the
210454, January 13, 2016). This means that in every prosecu- constitutional limitation on the enactment
tion for the illegal sale of drugs, the presentation of the drugs of ez post facto
as evidence in court is material because the identity of the
seized drugs should be established beyond reasonable doubt
(People v. Alagarme, G.fi. No. 184789, February 23, 2015).

Liberal construction of the rules on evidence

1. Like all other provisions under the Rules of Court,
the rules on evidence must be liberally construed (!Sec. 6,
Rule 1, Rules of Court). Rules of procedure are mere tools
intended to facilitate rather than frustrate the attainment of
justice. A strict and rigid application of the rules must always
be eschewed if it would subvert their primary objective of
enhancing substantial justice.
Although strict compliance with the rules of procedure is
desired, liberal interpretation is warranted in cases where a
strict compliance of the rules will not serve the ends ofjustice
(Rubio v. Alabata, G.ft. to. 203947, February 26, 2014).
However, the rule on liberal construction is not a license
to disregard the evidence, or lack thereof on record; or to
misapply the laws (Int,er Orient Maritime Enterprises, Inc. u.
Creer III, G.fi. No. 181921, September 17, 2014).
2. The Rules on Electronic Evidence shall, likewise,
be construed liberally (Sec. 2, Rule 2, Rules on Electronic
Evidence).

Absence of a vested right in the rules on evidence

There is no vested right in the rules on evidence (A
 CHAPTER I — PRELIMINARY CONSIDERATIONS 15 waived, unless the waiver is contrary to law, public crder,
B. Admissibility of Evidence
public policy, morals, or good customs or prejudicial to a
third person with a right recognized by law.” As long as no law
laws (thee. 22, Art. /J/, Bill o[Rights, Constitution o[the Philip- pines). An ex post or principles of morality, good customs, and public policy are
facto law includes that which alters the rules on evidence and receives less or transgressed or no rights of third persons are violated, the rules
different testimony than that required at the time of the commission of the on evidence may be waived by the parties.
offense in order to convict the accused (Med in u. Wolfe, 2 Phil. 74).
B. Admissibility of Evidence
Waiver of the rules on evidence
Requisites for the admissibility of evidence
1. The rules on evidence may be waived. When an otherwise
objectionable evidence is not objected to, the evidence becomes 1. Sec. 3 of Rule 128 provides:
admissible because of waiver.
“SEC, 3. Admissibility of evidence. — Evidence is
Por instance, while, as a rule, hearsay evidence is excluded and admissible when it is relevant to the issue and is not
carries no probative value, the rule admits of an exception. Where a party excluded by the law or these rules.”
fails to object to hearsay evidence, then the same becomes admissible (SCC
Cheiiticals Corporation a. Court of Appeals, 353 SCRA 70). Thus, for evidence to be admissible, two elements must
concur, namely:
2. May the parties stipulate waiving the rules on evidence?
(a) the evidence is relevant-, and
The Civil Code of the Philippines (Arf. 6) provides that, “rights may be
16 EVIDENCE Neither is evidence admissible merely
(The Bar Lectures Series)
because it is competent. Although
evidence is competent, it may still be
(b) the evidence is not excluded by the rules (com- inadmissible if it is not relevant. The formula
petent). (See also Tan v. Hosana, G.fi. No. 190846, Febru- for admissibility is a simple one. To be
ary 3, 2016). admissible, the evidence must be both
These two elements correspond to Wigmore’s two axioms relevant and competent.
of admissibility, namely: (a) That none but facts having
rational probative value are admissible; and (b) That all facts Illustrations of the requisites for admissibility
having rational probative value are admissible unless some 1. In a prosecution for homicide, the
specific rule forbids them (I Wigmore, §§9-10, 289-295). The witness swears that the accused killed the
first axiom is, in substance, the axiom of relevance while the victim because his ever truthful boyhood
second is the axiom of competence. friend told him so. The testimony, although
2. No evidence is admissible unless it is relevant. How- relevant, is not admissible because the
ever, relevancy alone does not make the evidence admissible. witness was not testifying based on his
An item of evidence may be relevant but not admissible. It is personal knowledge of the event. The
not admissible because, although relevant, it may be incom- testimony is hearsay and this type of
evidence is, as a rule, excluded by the
petent, i.e., it is excluded by law or by a particular rule or by
rules (lsee Sec. 36, Rule 130, Rules of'Court). In
both.
short, the testimony offered is relevant but
incompetent. CHAPTER I — PRELIMINARY CONSIDERATIONS 17
B. Admissibility of Evidence
2. In a prosecution for homicide, the wife of the
accused testified that the husband admitted to her in
confidence that it was he who killed their neighbor. If the particular provision of the Rules of Court which excludes
testimony is offered as evidence against the husband and is it as a specie of evidence notwithstanding its obvious
objected to by the latter, the testimonial evidence will be relevance to the issue of guilt (!See lsec. 24 a], Rule 130, Rules
inadmissible by virtue of a of' Court). Here, the testimony is also relevant but
incompetent.
3. In a civil case for collection of a sum of money,
the testimony of an eyewitness to the transaction between
the creditor and the debtor is competent evidence because
the witness would be testifying on the basis of his personal
knowledge.
However, if the subject of the testimony includes the
alleged frequent bouts of dizziness of the debtor, that portion
of the testimony is made inadmissible by the fact that the
matters testified to are irrelevant to the issue of whether
or not a debt exists. In this case, the testimony becomes
irrelevant.
4. If a defense witness testifies having actually seen
the alleged victim fire a gun first at the accused without
the latter’s provocation, the testimony of the eyewitness is
o.ompetent and the matters testified to are relevant to the plea
of self-defense. The testimony is, thus, admissible. It is not
only relevant but competent as well.
5. Upon a timely objection, oral evidence will be
excluded to prove a contract of a sale of a parcel of land which
does not conform to the statute of frauds (Art. 1403L21, Civil
Code of the Philippines). Even if the evidence is relevant to
the issue of existence or non-existence of the contract, it is
inadmissible because it is excluded by law; hence, incompetent.
6. Documents obtained in violation of constitutional
guarantees, although containing relevant matters, are inad-
missible because they are illegally obtained, as when evidence
is illegally seized fsec. 3f2J, Art. III, Constitution of the Phil-
ippines). A:n extrajudicial confession, made during custodial
investigation, is inadmissible when made in violation of a per-
son’s Miranda rights, i.e., he was not informed of his right
to counsel, right to remain silent and other applicable rights (People v. Bio, G.R. No. 195850, February 16, 2015).
EVDENCE witness claims he knows whereof he speaks
(The Bar Lectures Series)
because he saw every- thing that transpired.
Whether or not such testimony meets the test
Relevant evidence (Bar 1981) of relevance will depend upon what counsel
1. Under Sec. 4 of Rule 128, evidence, to be wants to
relevant must have such a relation to the fact in issue as
to induce belief in its existence or non-existence. The
concept of relevance is clearly one of logic. It deals with
the rational relationship between the evidence and the fact
to be proved. In other words, the evidence adduced should be
directed to the matters in dispute and any evidence which has
neither direct nor indirect relationship to such matters must
be set aside as irrelevant.
2. The matter of relevance under the Rules of Court
requires the existence of a fact in issue. Necessarily, this
fact in iesue must be a disputed fact. Since relevant evidence
necessarily relates to a disputed fact, it is obvious that
evidence offered to prove an undisputed fact is irrelevant and,
as such, inadmissible. Where there is no issue as to a matter
of fact, there exists no purpose for an item of evidence.
3. It ie the relation to the fact in issue which makes
evidence either relevant or irrelevant. If the evidence induces
belief as to the existence or non-existence of the fact in issue,
the evidence is relevant. If it does not induce such belief, it is
irrelevant.
4. Although competency of the evidence is a necessary
component of admissible evidence, the question that most
often arises in court is the relevance of the evidence. When an
advocate offers a piece of evidence for the court’s
consideration, he offers the evidence to prove a fact. This fact
may either be the immediate fact in issue or the ultimate fact
in issue.
Take the case of the standard car accident as example.
Counsel for the plaintiff presents the testimony of another
car driver to testify to the following: that the defendant was
driving at a speed of one hundred twenty (120) kilometers per
hour in a sixty (60)-kilometer limit zone at the time
plaintiff was sideswiped and injured by the defendant. The
 CHAPTER I — PRELIMINARY CONSIDERATIONS 19 damage caused to the plaintiff arose out of the defendant’s
B. Admissibility of Evidence
negligent operation of his car. The question that should
necessarily be asked is: Is the immediate fact proved, i.e.,
prove by the testimony. Initially, of course, counsel would want to prove that, defendant’s driving beyond the speed limit, related to the issue
at the time of the accident, the defendant was driving way beyond the speed of negligence? If it is, then the fact proved is relevant
limit. This is the immediate fact sought to be established. Since there is a evidence. If it is not related to the issue of negligence, it is
traceable connection between the substance of the testimony and the fact irrelevant.
to be proved, the testimony is relevant. On the other hand, if the
testimony is offered to prove that the defendant is a thief, the testimony has Test for determining the relevancy of evidence
no logical connection at all to the fact sought to be proved. Certainly, there is
no connection between driving at a very fast pace and the defendant’s 1. Because of the definition of relevant evidence under
being a thief. The testimony is, hence, irrelevant. Sec. 4 of Rule 128, it is obvious that relevance is a matter
of relationship between the evidence and the fact in issue.
Relevance further requires that the immediate fact proved must have a The determination of relevance is, thus, a matter of inference
connection to the ultimate issue. In the car accident case just illustrated, and not of law. The test is, therefore, one of logic, common
assume that counsel has established through the witness that the sense, and experience.
defendant was driving way beyond the speed limit at the time of the
2. The existence of the relationship between the fact
accident. Establishing such a fact is not, however, sufficient. This fact must
in issue and the offered evidence is one that is perceived
be shown to be related to the ultimate issue in the case. Now, the usual
only by the mind without reference to a statute or rule. It is,
ultimate issue in every automobile accident case is whether or not the
20 EVIDENCE the matter in dispute.
(The Bar Lectures Series)
2. For instance, the motive of a person
therefore, a matter of reasoning. It is a matter of and, in some instances, his reputation are matters
reasoning because relevance is a matter of logic. The matter that may be considered collateral to the subject of a
of relevance is one that is addressed to the discretion of the controversy. A very strong motive to kill the victim
court. The case of People u. Galleno, 291 SICRA 761, is does not ipso /acfo make motive relevant to the
issue of guilt or innocence because the person
enlightening:
with absolutely no motive to kill could be the
“There is no precise and universal test of relevancy culprit. Evidence of the bad reputation of the
provided by law. However, the determination of whether accused for being troublesome and aggressive does
particular evidence is relevant rests largely at the not make the evidence admissible to prove his guilt.
discretion of the court, which must be exercised according After all, the culprit could have been the person
to the teachings of logic and everyday experience.” with the most endearing reputation.

Collateral matters When collateral matters are allowed

1. A matter is collateral when it is on a “parallel 1. As a rule, evidence on a collateral
or diverging line,” merely“additional“ or“auxiliary"(Blacb’s matter is not allowed (lsec, 4, Rule 128, Rules of
Law Dictionary, 5th Ed., p. 237). This term connotes an Court). It is not allowed because it does not have
absence of a direct connection between the evidence and direct relevance to the issue of the case. This rule,
however, is not an absolute rule. There exists an
occasion when evidence on a collateral matter may be CHAPTER I — PRELIMINARY CONSIDERATIONS 21
allowed. B. Admissibility of Evidence

2. Under the Rules of Court, a collateral matter

may be admitted if it tends in any reasonable degree to the probability or improbability of the fact in issue (lsec. 4,
establish Rule 128, Rules o/Courts. In other words, while the collateral
evidence may not bear directly on the issue, it will be
admitted if it has the tendency to induce belief as to the
probability or improbability of the issues of the case as when
it would have the effect of corroborating or supplementing
facts previously established by direct evidence.
Illustration: Although evidence of character is generally
inadmissible (Sec. SJ, Rule 130, Rules of Court), the accused
may prove his good moral character which is pertinent to the
moral trait involved in the offense charged (Dec. 5l fo7f2J,
Rule 130, Rules of Court).
In civil cases, evidence of the moral character of a party
is admissible when pertinent to the issue of character
involved in the case (!Sec. 51[b], Rule 130, Rules of Court).
Also, evidence of the good character of a witness is admissible if
his character has been previously impeached (lsec. 14, Rule
132, Rules of Court).

Relevance of evidence on the credibility of a witness

1. Evidence on the credibility of a witness, or the lack
of it, is always relevant. In every proceeding, the credibility
of the witness is always an issue because it has the inherent
tendency to prove or disprove the truthfulness of his assertion
and, consequently, the probative value of the proffered
evidence.
Every type of evidence sought to be admitted, whether it
be an object or document, requires the testimony of a witness
who shall identify, testify, and affirm or deny the authenticity
of the evidence. Thus, when the credibility of the sponsoring
witness is found wanting, Sec. 11 of Rule 132 authorizes his
impeachment by contradictory evidence, by evidence that,
in the past, he has made statements inconsistent with his
present testimony, or by evidence that his general reputation
for truth, honesty or integrity is bad.
2. In the assessment of the testimonies of witnesses, the Court is guided by the rule that for evidence to be believed, it
22 EVIDENCE (a) An accused may testify as a
(The Bar Lectures Series) witness on his own behalf “but subject
to cross-examination on matters covered by
must not only proceed from the mouth ofa credible witness, direct examination‘(Sec. /fdJ, Rule IU,
but must also be credible in itself such as the common Rules o/C ourt).
experience of mankind can approve as probable under the
circumstances. There is no test of the truth of human
testimony except its conformity to our knowledge,
observation, and experience. Whatever in repugnant to
these belongs to the miraculous, and is outside of judicial
cognizance (People v. Calumpang,
454 SCRA 719; Ubales v. People, 570 SCRA 251; See also
People v. Fielded, G.R. No.196005, October 1, 2014).
3. The importance of the credibility of a witness in
a judicial proceeding is highlighted by rules which allow
the adverse party to test such credibility through a
process called ‘cross-examination.’ Hence, under Sec. 6 of
Rule 132, a witness may be cross-examined by the adverse
party not only on matters taken up in the direct examination.
The broad spectrum of the questions allowable in a cross-
examination of a witness, also included those matters
connected with those testified to in the direct examination.
It includes questions designed to grant the cross-examiner
sufficient fullness and freedom to test the accuracy and
truthfulness of the witness, his freedom from interest or bias,
or the reverse. It, likewise, covers inquiries into matters that
elicit all important facts bearing upon the issue.
Since Sec. 6 of Rule 132 affirms the legitimacy of
inquiries into the credibility and biases of a witness, any
objection to a question that intends to demonstrate the lack
or absence of credibility of the witness on the ground that it
in irrelevant or merely collateral does not deserve to be
sustained.
4. There aFe, however, instances provided in the rules
where the questions of the cross-examiner are circumscribed
by the matters taken up in the direct examination. Thus,
questions outside the subject matter of the direct examination
are not allowed.
 CHAPTER I — PRiiLIMINARY CONSIDERATIONS 23 law or rules? If it is allowed, the evidence is competent. If it is
B. Admissibility of Evidence
not allowed, it is incompetent.

(b) A hostile witness may be impeached and cross-examined by Imagine and assume, for the sake of illustration, that a
the adverse party, but such cross- examination “must only be on the rule of evidence has just been adopted mandating that only
subject matter of his examination-in-chief” (Sec, 12, Rule 132, Rules documentary evidence to which have been attached a yellow
o[Court). ribbon on the bottom right corner may be marked and admit-
ted in evidence. If the adverse counsel presents for identifica-
Competent evidence (Bar 2004) tion and marking a document to which had been attached a
red ribbon, the document is to be excluded because it is not
1. Competent evidence is one that is not excluded by law or rules competent. It is incompetent because the rule says so regard-
in a particular case (Moran, Comments on the Rules of Court, Volume 5, less of its demonstrable logical relation to the fact in issue.
1980, citing Porter u. Valentine, 18 Misc. Rep. 213, 41 N.Y.IS. 507; Hart u.
Newland, 10 N.C. 122; Ryan u. Town of Brisol, 63 Conn., 26, 27, Atl. 309). “The 3. Competence, in relation to evidence in general,
admissibility of the evidence depends on its relevance and competence x x refers to the eligibility of an evidence to be received as such.
x” (Tating u. Marcella, 519 SICRA 79; Italics supplied). However, when applied to a witness, the term competent refers
to the qualifications of the Utness. In other words;
2. If the test of relevance is logic and common sense, the test of competence refers to his eligibility to take the stand and
competence is the law or rules. If the law or a particular rule excludes the testify. It is in this context that the term is normally
evidence, it is incompetent. Competence is primarily, therefore, a matter of associated with. Thus, a trial objection employing the
law or rule. The question as to competence is: Is the evidence allowed by the ground incompetent is usually
24 EVIDENCE are. It is sloppy usage to object to a testimony
(The Bar Lecturer Seriea)
or document as incompetent. Such term more
appropriately describes a witness who,
used in relation to the ineligibility of a witness to testify under evidentiary rules, does not possess the
because of the presence of a disability that renders him unfit qualifications of a witness or suffers from a
to bit on the stand. disqualification to be one.
If evidence offered is objected to on the ground that it
is incompetent, such objection is not an accepted form of ob- Competence of electronic evidence
jection because it is a general objection. The objection should Electronic evidence is competent
specify the ground for its incompetence such as leading, hear- evidence and is admis- sible if it complies with
say or parol. the rules on admissibility prescribed by the
Although evidence is incompetent if excluded by law or Rules of Court and related laws, and is
the rules, evidence is not objected to on the ground that it is authenticated in the manner prescribed by
incompetent. It is so general a term and cannot be the Rules on Electronic Evidence
appreciated in court. Courts neither need nor appreciate (Slec. 2, Rule 3, Rules on Electronic Evidence).
generalities. General objections are viewed with disfavor
because specific objections are required under Sec. 36, Rule Admissibility and weight (probative value) of the
132 of the Rules of Court. Thus, for purposes of trial evidence
objections, evidence is never incompetent. It is people who
1. Admissibility of evidence refers to
the question of whether or not the evidence is to be CHAPTER I — PRELIMINARY CONSIDERATIONS 25
considered at all. On the B. Admissibility of Evidence
other hand, the probative value of the evidence refers to the
question of whether or not it proves an issue (PNOC lShf Thus, a particular item of evidence may be admissible,
RPlTtg and T'ransport Corporation u. Court ofAppeals, 297 but its evidentiary weight depends on judicial evaluation
SICRA 402 within the guidelines provided by the rules on evidence
as cited in Atienza u. Board of Medicine, 6d2 SCRA 523, 529, (Heirs o[ Lourdes Saez Sabanpan v. Cormoposa, 408 SCRA
February 9, 2011). 692). Admissibility is one thing, weight is another. To admit
evidence and not to believe it are not incompatible with each
other (Calamba !Steel Center, Inc. u. Commi.ssioner o[Internal
Revenue, 457 ISCRA 482).
2. Stated in another way, the admissibility of evidence
should not be equated with. the weight of the evidence.
The admissibility of the evidence depends on its relevance
and competence while the weight of evidence pertains to
its tendency to convince and persuade. A particular item
of evidence may be admissible but its evidentiary weight
depends on judicial evaluation with the guidelines provided
by the rules on evidence (Tating v. Marcella, 519 SCRA 79).

Multiple admissibility (Bar 1984; 1991; 2005)

1. There are times when a proffered evidence is
admissible for two or more p•arposes. Thus, depending upon
the circumstances, the declaration of a dying person may be
admissible for several purposes. It may be offered as a dying
declaration (lsec. 37, Rule 130, Rules of Court), part of the res
gestae (!Sec. 42, Rule 130, Rules of Court), or declaration against
interest (lsec. 38, Rule 130, Rules of Court). 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. 26 of Rule 130 or as part of the res gestae pursuant
to Sec. 42 of Rule 130.
The Court, in People o. !Salafranca, 666 SICRA 501,
511, February 22, 201a, illustrates the principle of multiple
admissibility, thus:
“It appears from the foregoing testimony that
Bolanon had gone to the residence of Estaño, his uncle,
to seek help right after being stabbed by Salafranca; that
Estaño had hurriedly dressed up to bring his nephew to
the Philippine General Hospital by taxicab; that on the way to the hospital, Estaño had asked Bolanon who had stabbed
26 EVIDENCE CHAPTER I — PRELIMINARY CONSIDERATIONS 27
lThe Bar Lectures Series) B. Admissibility of Evidence
time. If the connection is not shown as
him, and the latter had told Estaño that his assailant promised, the court may, upon motion of the
had been Salafranca; that at the time of the utterance adverse party, strike out from the record the
Bolanon had seemed to be having a hard time breathing, evidence that was previously conditionally
causing Estaño to advise him not to talk anymore; admitted.
and that about ten minutes after his admission at the
emergency ward of the hospital, Bolanon had expired and
had been pronounced dead. Such circumstances qualified
the utterance of Bolanon as both a dying declaration and
as part of the res gestae, considering that the Court has
recognized that the statement of the victim an hour before
his death and right after the hacking incident bore all the
earmarks either of a dying declaration or part of the res
gestae, either of which was an exception to the hearsay
rule.”
2. Sometimes, evidence is inadmissible for one purpose
but admissible for another or vice versa. For instance, evidence
of a person’s bad general reputation for truth, honesty, or
integrity in objectionable if offered to prove that he committed
the crime charged but it may be admissible to impeach the
credibility of a witness under the authority of Sec. 11 of Rule
132.
3. Evidence may also be admissible against one party
but not against another. An extrajudicial statement of a rob-
bery suspect is not admissible against his co-accused under
the res inter alios acta rule but may be admissible against the
declarant himself as an admission pursuant to Sec. 26 of Rule
130.

Conditional admissibility (Bar 2011)

It happens frequently enough that the relevance of a
piece of evidence in 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
 at another time (lsec. 34, Rv.Ie 130, Rules o[ Court). If we were
Curative admissibility to follow the concept of curative admissibility, the court may
be asked to give the defendant the chance to contradict or
1. The doctrine of curative admissibility allows a party to
explain his alleged past acts and to show evidence of his
introduce otherwise inadmissible evidence to answer the opposing
past acts of diligence to counteract the prejudice which the
party’s previous introduction of inadmissible evidence. Thus, a party
improperly admitted evidence may have caused.
who first introduces either irrelevant or incompetent evidence into the
trial cannot complain of the subsequent admission of similar evidence Also, if hearsay evidence prejudicial to the defendant is
from the adverse party relating to the same subject matter. erroneously admitted despite objection, under the principle
Conversely, the doctrine should not be invoked where evidence was of curative admissibility, the court should allow hearsay
properly admitted (For [wuther readings, see Werdell u. Turnynshi, 128 Ill. evidence favorable to the same defendant.
App. 2cl 139).
2. For example, in an action for damages arising from a car Direct and circumstantial evidence (Bar 2011)
accident, the plaintiff, despite objection by the defendant, was allowed 1. Direct evidence proves a fact without the need to
to introduce evidence to show that, on several occasions, the make an inference from another fact. Thus, the testimony
defendant, iii the past, had injured pedestrians because of his of a prosecution witness claiming that he personally saw
negligence. The evidence was offered to prove the defendant’s propensity the accused when the latter drew and fired his pistol at
for negligence. Of course, under the rules, this kind of evidence is the victim, without the latter’s provocation, is a direct
inadmissible because evidence that a person did a certain thing at one testimonial
time is not admissible to prove that he did the same or a similar thing
28 EVIDENCE ously established fact. In other words, in this type of evidence, the
(The Bar Lectures Series)
court uses a fact from which an assumption is drawn. When the
court does not have to make an inference from one fact to arrive at
evidence. There is also a direct evidence when a witness, a conclusion, the evidence is direct.
in a prosecution for arson, testifies that he was only a few feet
away, behind a bush, when he saw the accused set the nipa hut For instance, the testimony of the victim that he dreads the
of the offended party on fire. Evidence is, likewise, direct mere presence of the accused is direct evidence that the statement
when a witness affirms in open court that the bus driver was made. However, it is also circumstantial evidence to show
rammed a car on the opposite lane, and that he saw what that this fear could have prevented the victim from attacking the
happened because he was seated as a passenger right behind accused without provocation.
the driver. Also, the original of a deed of sale is a direct Also, when the fingerprints of the accused are found in a crime
evidence of the terms of the agreement of the parties. scene of murder, such prints constitute circumstantial evidence that
2. Circumstantial evidence or indirect evidence is that he was in the same scene.
evidence which indirectly proves a fact in issue through an
inference which the fact finder draws from the evidence estab- Conviction by circumstantial evidence (Bar 1998; 2011)
lished (Espineli u. People, G.7t. No. 179535, June 9, 2014). 1. Direct evidence of the commission of a crime is not the
3. Circumstantial or indirect evidence is the exact only matrix wherefrom a trial court may draw its conclu- sion on a
opposite of direct evidence. When the evidence is circumstan- finding of guilt. Even in the absence of direct evi- dence, conviction
tial, a fact is established by making an inference from a previ- 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 CHAPTER I -— PRELIMINARY CONSIDERATIONS 29
B. Admissibility of Evidence

of all other hypothesis that he is not. Resort to circumstantial

evidence is essential since to insist on direct testimony would,
in many cases, result in setting felons free and denying proper
protection to the community (People v. Para, G.fi. No. 199877,
August 13, 2012; See also Sabala v. People, G.fi. No. 210760,
January 26, 2015; People v. Urzais, G.R. No.207662, April 13,
2016).
Proof of the commission of a crime need not always be
by direct evidence, for circumstantial evidence could also
be sufficiently and competently establish the crime beyond
reasonable doubt (People v. Bobby Belgay, G.fi. No. 182794,
September 8, 2014). The rules on evidence allow a trial court
to rely on circumstantial evidence to support its conclusion of
guilt. The lack of direct evidence does not ipso facto bar the
finding of guilt against the accused. As long as the prosecution
establishes his participation in the crime through credible
and sufficient circumstantial evidence, he should be convicted
(People v. Consorts, G.fi. No. 194068, July 9, 2014).
2. Circumstantial evidence is the rule of evidence that
applies when no witness saw the commission of a crime. In a
criminal case, circumstantial evidence may be sufficient for
conviction provided the following requisites concur:
(a) There is more than one circumstance;
(b) The facts from which the inferences are derived
are proven; and
(c) The combination of all the circumstances is
such as to produce a conviction beyond reasonable doubt
Sec. 4, Rule 133, Rules o[ Court; People u. 7'nnc/ianco,
670 SCRA 130, 142-143, April 18, 2012; thee also People
v. Lamsen, G.R. No. 198338, February 20, 2013; Callo-
Claridad v. Esteban, G.R. No. 191567, March 20, 207a,
Candelaria u. People, G.R. No. 209386, December 8,
2014).
The above circumstances must constitute an unbroken
chain that inexorably leads to one fair conclusion: the others (People v.
accused c-ommitted the crime to the exclusion of all
30 EVIDENCE CHAPTER I — PRELIMINARY CONSIDERATIONS 31
(The Bar Lecturer Seriea) E. Admissibility of Evidence
presented. Thus, ifW testifies that the gun
Deocampo, 666 ISCRA 288, 293, February 15, 2012; People v. marked as Exhibit “A” was the weapon used
Chauez, G.ft. No. 207950, !September 22, 2014). Also, in the by the accused in the shooting of the victim,
appreciation of circumstantial evidence, the rule is that the findings of the crime laboratory that the
the circumstances must be proved, and not presumed (Franco gun bears only the fingerprints of the accused
v. People, G.A. No. 191185, 'ebruary 1, 2016). corroborates the testimony of W.

3. All the circumstances proved must be consistent

with one another, and they are to be taken together as
proved. Being consistent with one another and, taken
together, they must point unerringly to the direction of
guilt and mere suspicions, probabilities, or suppositions do
not warrant a conviction (Underhill, Criminal Evidence, 4th
Ed., §18; People
v. Pascual, 576 SICRA 242; Slee also Callo-Claridad, G.fi. No.
191567, 3f rcA 20, 2013).

Cumulative evidence and corroborative evidence

1. Cumulative evidence refers to evidence of the same
kind and character as that already given which tends to pro
jre the same proposition (Wyne v. Newman, 75 Va., 811, 817
as cited in Moran, Comments on the Rules of Court, Vol. 5,
1980, p. 3).
Por example, when a witness testifies that he saw the
event testified to and two other witnesses testify having seen
the same event which the first witness claimed he saw,
the subsequent testimonies constitute cumulative evidence.
2. 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 u. Edwards, Tenn. App., 501 S.W. 2d 283. 289 as
cited in Black’s law Dictionary, 5th Ed., p. 311).
As commonly used, the term connotes evidence which
tends to confirm, validate, or strengthen evidence already
 even if it is of the same kind and character.
Corroborative evidence is usually of a different type from that 3. Corroborative testimony is not always required.
previously offered but which tends to prove the same fact. For instance, a For example, in a case, the accused avers that his conviction
witness claims that he saw Mr. X sign the document subject of the for estafa is without legal basis because there was no
action. Mr. X denies the authenticity of his signature. Evidence by a other evidence, documentary or testimonial, establishing
handwriting expert that the signature is indeed that of Mr. X is his alleged crime except for the uncorroborated testimony of
corroborative evidence. Here, we have a testimonial evidence from an the prosecution witness.
eyewitness, and a testimony frcm an expert who did not personally witness
the signing of the document.
In clear terms, the Supreme Court, speaking through
Justice Regalado, ordained:
Although traditionally, this type of evidence is of a different type
from the one it corroborates, the meaning of corroborative evidence has “ . it also bears mention that the testimony of a sin-
been loosely used in local courts so as to cover also e›•idence of the same gle prosecution witness, where credible and positive, is
kind as that already proffered as long as it affirms the previous evidence. sufficient to prove beyond reasonable doubt the guilt of
for instance, the testimony of X that he saw Y hack the victim with a the accused. There is no law which requires that the tes-
Polo corroborates the previous testimony of Z that indeed he saw Y timony of a single witness has to be corroborated, except
where expressly mandated in determining the value and
strike the victim with a bladed weapon. Here, the previous testimony is
credibility of evidence. Witnesses are to be weighed, not
corroborated by evidence of the same kind, i.e., testimonial evidence from numbered” (People u. Pabalari, !262 S!CRA 574, 585).
eyewitnesses. In *his sense, the corroborating evidence is also cumulative
32 EWDENCE Positive and negative evidence
(The Bar Lectures Series)
1. Evidence is said to be positive when a
4. In People u. Nama, 350 ISCRA 266, the defense faults witness affirms in the stand that a certain state of
facts does exist or that a certain event happened. It
the trial court for relying on a single eyewitness account in .“
is negative when the witness states that an event
convicting the accused, Rama. The Supreme Court dismissed
did not occur or that the state of facts alleged to
the argument declaring that it has long been held that the
exist does not actually exist.
testimony of a sole eyewitness is sufficient to support a con-
viction so long as it is clear, straightforward and worthy of Thus, the testimony of W that he saw P fire a
credence. gun at the victim is a pOsitive evidence. The
testimony ofW that he could not have fired the gun
Corroborative evidence is necessary only when there are
because he was not armed during the incident is a
reasons to suspect that the witness falsified the truth or that
negative evidence.
his observations are inaccurate (Mangangey v. !Sandigan- |
• badan, 546 SCTtA SP). 2. Positive and negative evidence may,
5. Under the Rule on Examination of a Child Witness, likewise, refer to the presence or absence of
corroboration shall not be required of a testimony of a child. something. Thus, the presence of fingerprints of a
His testimony, if credible by itself, shall be sufficient to person in a particular place is positive evidence of
support a finding of fact, conclusion or judgment subject to his having been present in said place although
the standard of proof required in criminal and non-criminal absence of his fingerprints does not necessarily mean
he was not in the same place.
cases (lsec. 22, Rule on Examination o[a Child Witness).
A negative finding in a paraffin test is not a
conclusive evidence that one has not fired a gun because CHAPTER I — PRELIMINARY CONSIDERATIONS 33
it is possible B. Admissibility of Evidence

for a person to fire a gun and yet bear no traces of nitrates or

gunpowder, as when the culprit washes his hands or wears
gloves (People u. Cerilla, 539 SCRA 251).
3. The defense of denial is viewed with disfavor for
being inherently weak. It cannot prevail over the positive and
credible testimony of prosecution witnesses (People u.
Reyes,
G.R. No.194606, February 18, 2015). Greater weight is given
to the positive identification of the accused by the prosecution
witnesses than the accused’s denial (People v. Solina, G.R.
No. 196784, Can uary 13, 2O16). Denials are considered with
suspicion and received with caution because they are easily
fabricated and concocted (People u. Salahuddin, Cr.fi. No.
206291, January 18, 2016).
4. Denials, which are essentially negations of a fact,
do not prevail over an affirmative assertion of such fact. Trial
and appellate courts have generally viewed such defense in
criminal cases with considerable caution, if not with outright
rejection. Such judicial attitude comes from the recognition
that denials are inherently weak and unreliable by virtue
of their being excuses that are too easy and too convenient for
the guilty to make. To be worthy of consideration at all,
denials should be substantiated by clear and convincing
evidence (Medina u. People, G.R. No. 182648, June 17, 2015).
Between the categorical statements of prosecution witnesses
and the bare denial of the accused, the former must
prevail (People
u. Salahuddin, G.R. No. 206291, January 18, 2016; See also
People v. De la Rosa, G.R. No.206419, June 1, 2016).
5. Denial, as a defense, can only prosper when substan-
tiated by clear and convincing evidence (People v. Colentava,
G.R. No. 190348, February 9, 2015). This pronouncement
indicates that a denial is not a totally impotent defense.
Denial may be weak but courts should not at once look
at them with disfavor. There are situations where an accused
may really have no other defenses but denial, which, if estab-
lished to be the truth, may tilt the scales ofjustice in his favor, denial assumes significance when the prosecution’s
especially when the prosecution evidence itself is weak. The defense of
34 EVIDENCE Many cases decided by the courts
TheBarLedurezSeñe) raising the issue of admissibility of evidence
have been those connected to searches as
evidence is such that it does not prove guilt beyond reasonable consequences of warrantless arrests by law
doubt (Franco u. People, G.fi. No. 191185, February 1, 2016). enforcement authorities.

Competency of a witness distinguished from his credibility

(Bar 2004)
1. The competency of a witness differs from his cre-
dibility. A witness may be competent, and yet give incredible
testimony; he may be incompetent, and yet his evidence, if
received, is perfectly credible (Black’s law Dictionary, 5th
Ed., p. £577. The term “credibility” refers to worthiness of
belief, that quality which renders a witness worthy of belief
(Black’s Law Dictionary, 5th Ed., p. 330).
2. The meaning of credibility in law is exactly what
it means in ordinary usage: fielievability." After the compe-
tence of a witness is allowed, the consideration of his credi-
bility follows.

Admissible evidence and credible evidence

1. Evidence is admissible when it is relevant to the
issue and is not excluded by the law or rules (Slec. 3, Rule 128,
Rules of Court).
2. Admissible evidence is not necessarily credible
evidence. Admissibility and credibility must be sharply con-
trasted. 'they are entirely two different matters and involve
different concepts. The term “admissible” means that the
evidence is of such a character that the court, pursuant to
the rules of evidence, is bound to receive it or to allow it to
be introduced at the trial. Admissibility, however, does not
guarantee credibility. Adini8sibility is one thing and
credibility
is another.
Inadmissible evidence in relation to arrests, searches and
seizures (Bar 2000; 2009; 2010)
 CHAPTER I — PRELIMINARY CONSIDERATIONS 35 descending the gangplank of the ship and there was no
B. Admissibility of Evidence
outward indication calling for his arrest. 'to all appearances,
he was like any of the other passengers innocently
1. A 1988 landmark case, People u. Aminnudin, 163 SCRA 402, disembarking from the vessel. It was only when the informer
demonstrates the inadmissibility of evidence due to the legal infirmity of pointed to him as the carrier of the marijuana that he
an arrest for noncompliance with the requisites of the in flagrante delicto suddenly became a suspect and so subjected to
exception. apprehenSiOil.
Here, more than two days before the arrest, constabulary officers received The Court added that from the information received
a tip from an informer that the accused was on board an identified vessel by the officers, they could have obtained a warrant since
on a particular date and time and was carrying marijuana. Acting on the they had at least two days to apply for the same but the
information, they waited for the accused and approached him as he officers made no efforts to comply with the bill of rights.
descended the gangplank of the ship and arrested him. A subsequent They chose to ignore the law. The marijuana is
inspection of his bag disclosed the presence of three kilos of marijuana incompetent evidence because its seizure was illegal. The
leaves. seizure was not incident to a valid arrest.
The Court declared as inadmissible in evidence the marijuana found 2. In People v. Mofina, 352 SCRA 174, the conviction by
in the possession of the accused as a product of an i11ega1 search and not the trial court was reversed and set aside when the Supreme
being an incident to a lawful arrest. Emphatically, the Supreme Court ruled Court declared as invalid an arrest made merely on the basis
that the accused was not, at the moment of his arrest, committing a crime of alleged reliable information that the persons arrested were
nor was it shown that he was about to do so or had just done so. He was merely carrying marijuana. The accused were arrested while inside
36 EVIDENTE to side“ clutching his abdomen. The operatives approached the
(The Bar Lectures Series)
three men and introduced themselves as policemen. Two of
them accordingly tried to run away but the attempt was
a pedicab despite the absence of any outward indications of a foiled. The search yielded a revolver in the possession of
crime being committed. Mengote and a fan knife in the pocket of another. Mengote
Similarly, in Malacat v. Court o[Appeals, 283 SCRA 159, contended that the revolver should not have been admitted in
the Supreme Court declared that a warrantless arrest cannot evidence because its seizure was a product of an illegal search
be justified where no crime is being committed at the time and not made as an incident to a lawful arrest.
of the arrest because no crime may be inferred from the fact The Court ruled that the requirements of a warrantless
that the eyes of the person arrested were “moving fast” and arrest were not complied with. There was no offense which
“looking at every person” passing by. could have been suggested by the acts of Mengote of looking
3. Another classic case that illustrates an invalid from side to side while holding his abdomen. Observed the
arrest and a subsequent illegal search and seizure is People Coud:
u. Mengote, 210 ISCRA 174. The issue on the legality of the “These are certainly not sinister acts. x x x He was
arrest, search and seizure stemmed from a telephone call to not skulking in the shadows but walking in the clear light
the police from an alleged informer that suspicious looking of day. There was nothing clandestine about his being on
men were at a street corner in 'fondo shortly before noon. The that street at that busy hour in the blaze of the noonday
police operatives dispatched to the place saw three men one of sun. x x x By no stretch of the imagination could it have
whom turned out to be Mengote, who was looking from side been inferred from these acts that an offense had just
been committed, or was at least being attempted in their CHAPTER I — PRELIMINARY CONSIDERATIONS 37
presence.” B. Admissibility of Evidence

4. One case, People u. Laguio, Jr., 518 SICRA 393, and

which drew much from the ruling in Aminnudin, likewise,
aptly illustrates the application of the doctrine.
In tb.is case, two men were arrested while they were about
to hand over a bag of e/iaòu to a police officer. Questioned, the
arrested men told police operatives that they were working
for a modelling agency owned by a eertain Wang, that they
knew of a scheduled delivery of shabu early the following
morning and that their employer, Wang, could be found at
a eertain apartment building in Malate, Manila. The poliee
operatives looked for Wang to shed light on the i11ega1 drug
activities of his alleged employees, proceeded to the location
of the apartment and placed the same under surveillance.
When Wang came out of the apartment towards a parked
car, two other police officers approached Wang, introduced
themselves as police officers, asked his name and, upon hearing
that he was Wang, immediately frisked him and asked him to
open the back compartment of the car. When frisked, there
was found inside the front right pocket of Wang a pistol with
live ammunition which was later verified to be unlicensed. At
the same time, the other members of the operatives searched
the car and found inside it were transparent plastic bags
v ith shabu, cash in the amount of P650,000.00, electronic
and mechanical scales, and another unlicensed pistol with
magazine. Then and there, Wang objected to the warrantless
arrest and search.
'Phe Supreme Court, in no uncertain terms, declared
that the facts and circumstances surrounding the case did not
manifest any suspicious behavior on the part of Wang that
would reasonably invite the attention of the police. He was
rrierely walking from the apartment and was about to enter
a parked car when the police operatives arrested him, frisked
and searched his person and commanded him to open the
' compartment of the car. He was not committing any
visible offense then. Therefore, there can be no valid
warrantless arrest tn flagrante ‹lelicto under paragraph (a) of
Sec. 5, Rule 113. It is settled, said the Court, that reliable information
38 EVIDENCE 39
CHAPTER I — PRELIMINAltY CONSIDERATIONS
(The Bar Lecturer Seriea) B. Admissibility of Evidence
The Court ruled that in order to determine
alone, absent any overt act indicative of a felonious enterprise the admis- sibility of the seized items in
in the presence and within the view of the arresting officers, evidence, it is indispensable to
is not sufficient to constitute probable cause that would
justify an in flagrante delicto arrest(Citing People v. Binad
Sy Chua, 444 Phil. 757 and People o. Molina, 352 SCRA 174).
In Laguio, Jr., what was clearly established from the
testimonies of the arresting officers, said the Court, was that
Wang was arrested mainly on the information that he was the
employer of the two men who were previously arrested and
charged for illegal transport of shabu. They did not, in fact,
identify Wang to be their source of the s/io6u when they were
caught in flagrante delicto. Upon their declaration that there
will be a delivery ofs/in6u on the early morning of the
following day and that Wang may be found in an apartment
building in Malate, the arresting officers conducted what they
temed was a “surveillance” operation in front of said
apartment, hoping to find a person who will match the
description of Wang, the employer of the arrested men.
The conclusion of the trial court that the warrantless
arrest was illegal and that, ipso jure, the warrantless search
incidental to the illegal arrest was, likewise, unlawful was
sustained by the Supreme Court.
5. In Valdez v. People, 538 ISCRA 611, the prosecution’s
evidence indicated that petitioner was arrested without a
warrant. When he alighted from a mini-bus at around 8:30
in the evening, he was accordingly looking around seemingly
searching for something and appeared suspicious. Besides, he
allegedly ran when the tanods approached him. After his arrest
following a chase, dried marijuana leaves were found
inside his bag according to the barangay fonods. His
conviction by the Regional Trial Court was affirmed by the
Court of Appeals. The accused prayed for his acquittal on appeal
to the Supreme Court alleging, among other defenses, that this
warrantless arrest was illegal and that the warrantless search
of his bag was likewise contrary to law.
 night, to attempt to flee at their approach. flight is not a
ascertain whether or not the search, which yielded the alleged reliable indicator of guilt. When petitioner was arrested
contraband, was lawful. The warrantless search would be jus- tified only if without a warrant, he was neither caught in flagrante delicto
it were incidental to a lawful arrest. committing a crime nor was the arrest effected in hot pursuit.
The Court, in effect, ruled on the inadmissibility of the seized
The Court found that even casting aside the petitioner’s version of evidence.
the facts including his vehement denial of ownership and possession of
the seized items, the petitioner’s unlawful arrest stands out just the same. 6. In Comerciante u. People, G.fi. No. 205926, July 22,
Not one of the circumstances prevailing under Sec. 5 of Rule 113 2015, the Court struck down, as illegal, an arrest and the
authorizing warrantless arrests applies to the arrest of the petitioner. seizure of drugs because the basis for the arrest was that the
Petitioner was not committing a crime at the time he alighted from accused was making “improper and unpleasant movements.”
the bus, nor did he appear to be committing a crime. The act of
petitioner of looking around after getting off the bus was but natural as Some jurisprudential tenets on probative value and
he was finding his way to his destination. That he purportedly attempted credibility
to run away as he was approached is irrelevant and cannot, by itself, be 1. Evidence to be believed must be credible in itself
construed as adequate for o tanod to have personal knowledge that as to hurdle the test of conformity with the knowledge and
petitioner had just engaged in, was actually engaging in or was common experience of mankind. \Vhatever is repugnant to the
attempting to engage in criminal activity. It is not unreasonable to standards of human knowledge, observation and experience
expect the petitioner, after being approached by unknown persons at becomes incredible and must lie outside judicial cognizance
40 EVIDENCE witnesses and weighing their credibility is best left to the trial judge
(The Bar Lectures Series)
by virtue of the first-hand impressions he derives while the
witnesses testify before him. The demeanor on the witness chair of
(People v. De Gunmen, 676 ISCRA 347, 360, July 11, 2012; lsee persons sworn to tell the truth in judicial proceedings is a significant
also People v. Fieldad, G.fi. No. 196005, October 1, 2014). element ofjudicial adjudication because it can draw the line between
2. Findings and conclusions of the trial court on the fact and fancy. Their forthright answers or hesitant pauses, their
credibility of witnesses are entitled to great respect because quivering voices or angry tones, their flustered looks or sincere
the trial courts have the advantage of observing the demeanor gazes, their modest blushes or guilty glances — all these can reveal
of witnesses as they testify. The determination by the trial if the witnesses are telling the truth or lying in their teeth. As the
court of the credibility of witnesses, when affirmed by the final appellate reviewer in this case, then, the Court bows to the age-
appellate court, is accorded full weight and credit as well as old norm to accord the utmost respect to the findings and
great respect, if not conclusive effect (People v. lsolina, G.R. conclusions on the credibility of witnesses reached by the trial
No. 196784, January 13, 2016), except when facts or circum- judge on account of his unmatched opportunity to observe the
stances of weight and influence were overlooked or the sig- witnesses and on account of his personal access to the various indicia
nificance of which was inisappreciated or misinterpreted by available but not reflected in the record (People u. lsabadlab, 668 !
the lower courts (People v. dela Peña, G.B. No. 207635, 'ebru- SCRA 237, 247, March 14, 2012; Slee afso Peopfe v. Espejon, G.R. No.
ary 18, 2015; People v. Abella, G.R. No. 195666, January 20, 199445, February 4, 2015; lsaraum v. People, G.R. No.205472,
2016; lsee also lsaraum v. People, G.R. No. 205472, ronuory January 25, 2016).
25, 2016).
The task of assigning values to the testimonies of
 CHAPTER I — PRELIMINARY CONSIDERATIONS 41 u. S!anchez, 665 S!CRA 639, 643, February 8, 2012; For
B. Admissibility of Evidence further readings, see People u. S!upitula, G.R. No. 209212,
February 10, 2016).
S. “The Court is guided by the following
4. People react differently under emotional stress.
jurisprudence when confronted with the issue of
There is no standard form of behavior when one is confronted
credibility of witnesses on appeal:
by a shocking incident, especially if the assailant is physically
First, the Court gives the highest respect to near. The workings of the human mind when placed under
the RTC’s evaluation of the testimony of the emotional stress are unpredictable. In a given situation, some
witnesses, considering its unique position in may shout, others may faint, and still others may be frozen
directly observing the demeanor of a witness on into silence. Consequently, the failure of complainant to run
the stand. From its vantage point, the trial court away or shout for help at the very first opportunity cannot be
is in the best position *o determine the
construed consent to the sexual intercourse (lsison v.
truthfulness of witnesses.
People, 666 SCRA 645, 662, February 22, 2012; lsee also People
Second, absent any substantial reason u. Court of Appeals, G.R. No. 183652, February 25, 2015).
which would justify the reversal of the RTC’s
assessments and conclusions, the reviewing court 5. Minor inconsistencies in the narration of facts by
is generally bound by the lower court’s findings, the witnesses do not detract from their essential credibility
particularly when no significant facts and as long as their testimonies on the whole are coherent and
circumstances, affecting the outcome of the intrinsically believable. Trivial inconsistencies do not rock
case, are shown to have been overlooked or the pedestal upon which the credibility of witnesses rests, but
disregarded. enhances credibility as they manifest spontaneity and lack of
And third, the rule is even more stringently scheming (People v. Cainat, 677 SCRA 640, 658, Jul y 30, 2012;
applied if the CA concurred with the RTC” (People
42 EVIDENCE CHAPTER I — PRELIMINARY CONSIDERATIONS 43
(The Bar Lectures Series) C. Miscellaneous Doctrines
2014).
ifiee also People u. Peteluna, G.JI. No. 1B704B, Manual 23,
2013; People u. Ducal, G'.R. to. 209590, November 19, 2014;
C. Miscellaneous Doctrines
for fizrther readings, see People u. Zxzg6o, G.7t. No. 207535, Falsus in uno, talons in omnibus
'ebrua 10, 2016).
1. Literally, [alsus in uno, [ales in omnibus
It is perfectly natural for different witnesses testifying on means “false in one thing, false in everything”
the occurrence of a crime to give varying details as there may (Dawson v. Bertolinin, 70 R.I. 325, 38 A.2d 765, 768). It is
be some details which one witness may notice while the other particularly applied to the testimony of a witness
may not observe or remember. In fact, jurisprudence even
who may be considered unworthy of belief as to
warns against a perfect dovetailing of narration by different all the rest of his evidence if he is shown to have
witnesses as it could mean that their testimonies were
testified falsely in one detail (lsee Frondarina v.
fabricated and rehearsed (People u. Cabtalan, 666 ISCRA 174, Mafozarfe,
191, February 15, 2012). Inaccuracies may, in fact, suggest
G.R. to. 148423, December 6, 2006).
that the witnesses are telling the truth and have not been
rehearsed (People v. Torres, G.ft. No. 189850, lSeptem6er 22, 2. The maxim[alsus in uno, [alsus in omnibus
is not an absolute rule of law and is, in fact, rarely applied in
modern jurisprudence (People v. Batin, 539 SCRA 2f2 . It the witness must be shown to have willfully falsified the truth
deals only with the weight of the evidence and is not a on one or more material points. The principle presupposes the
positive rule of law. The rule is not an inflexible one of existence of a positive testimony on a material point contrary
universal application. Modern trend in jurisprudence favors to subsequent declarations in the testimony (Northwest
more 8exibility when the testimony of a witness may be Airlines, Inc. u. Chiong, 543 SCRA 308).
partly believed and partly disbelieved depending on the for instance, in People u. Letigio, 268 SCRA 227, the
corroborative evidence present- ed at the trial (People i . accused alleged that both prosecution witnesses in certain
Negosa, 456 Phil. 861). aspects of their testimony, had “deliberately and wantonly
3. It is not a positive rule of law and is not strictly lied” in inculpating him, and contended that the maxim
applied in this jurisdiction. Before this maxim can be applied, “falsus in uno, [alsus in omnibus” should be applied for his
exculpation.
Quoting an earlier pronouncement in People v. Mana-
lansan, 189 !SCRA 619, the Court stressed:

“... The maxim falsus in unus, falsus in omnibus does

not lay down a categorical test of credibility. While the
witnesses may differ in their recollections of an incident,
it does not necessarily follow from their disagreements
that all of them should be disbelieved as liars and
their testimonies completely discarded as worthless.”

In People u. Pacapac, 248 SCRA 77, the Court added that

the maxim:

“ . is not a positive rule of law or of universal ap-

plication. It should not be applied to portions of the testi-
mony corroborated by other evidence, particularly where
the false portions could be innocent mistakes. Moreover,
the rule is not mandatory but merely sanctions a disre-
gard of the testimony of a witness if the circumstances
so warrant. To completely disregard all the testimony of
a witness on this ground, his testimony must have been
false as to a material point, and the witness must have
a conscious and deliberate intention to..Jalsify a material
point.”

Alibi; denial (Bar 1994)

1. It is a settled doctrine that the defense of alibi is
inherently weak and must be rejected when the identity of the
 44 EVIDENCE CHAPTER I — PRELIMINARY CONSIDERATIONS 45
(The Bar Lectures Series) C. Miscellaneous Doctrines

accused is satisfactorily and categorically established by the

eyewitnesses to the offense, especially when such eyewitnesses places at the same time (People v. Paro, 383 SCRA 75; People
have no ill-motive to testify falsely (People u. Yioyefo, G.ft. v. Ubiua, o27 !3CRA 307).
No. 177140, October 17, 2012; lsee Ibañez u. People, Cr.ft. No.
190798, January 27, 2016). 2. While the defense of alibi is by nature a weak one, it
assumes significance and strength where the evidence for the
Denial, which is the usual refuge of offenders, is an prosecution is also intrinsically weak (People v. Canlas, 372 S!
inherently weak defense, and must be buttressed by other CRA 401). The rule that alibi is a weak defense has never
persuasive evidence of non-culpability to merit credibility. been intended to change the burden of proof in criminal cases.
The defense of denial fails even more when the assailant, as The burden of proof still lies in the prosecution to establish
in this case, was positively identified by credible witnesses, the guilt of the accused (People v. De G“uzman, 676 S!CRA 347,
against whom no ulterior motive could be ascribed (People 36i , July 11, 2012; !See also Franco v. People, G.R. No.191185,
v. Asilan, 669 ISCRA 405, 419, April 11, 2012). Positive February 1, 2016).
identification prevails over alibi since the latter can be easily
fabricated and is inherently unreliable (People v. Dadao, 3. Alibi may serve as a basis for acquittal if it can
G.fi. No. 201860, January 22, 2014; lsee also People u. Lagbo, really be shown by clear and convincing evidence that it was
G.R. No.207535, indeed physically impossible for the accused to be at the
scene of the
crime at the time of its commission Peo Ie v. Cacayan, 557
February 10, 2016). crime was not only somewhere else when the offense was
committed, but was so far away that it would be physically
2. Alibi crumbles in the light of positive identification
impossible to be at the place of the crime or its immediate
by truthful witnesses. The positive identification of the
accused, when categorical and consistent, and without any ill- vicinity at the time of its commission. The reason is that no
; motive on the part of the eyewitnesses testifying on the person can be in two
matter, prevails over alibi and denial (People u. Camat, 677
ISCRA 640, 658-659, July 30, 2012; She also People v.
Cabungan, G.fi. No. 189355, January 23, 2013; People v.
Domingo, G.ft. No. 211672, June 1, 2016).

Alibi; not always false

1. Alibi is not always false and without merit (People
v. Cacayan, 557 ISCRA 550). Contrary to the common notion,
alibi is not always a weak defense. Sometimes, the fact that
the accused was somewhere else may just be the plain
and unvarnished truth. But to be exonerating, the defense of
alibi must be so airtight that it would adiriit of no exception.
It must be demonstrated that the person charged with the
TSC.CA 550; Pe.ople v. De Leon, 580 !SCRA 617). “Physical impossibility refers to distance and facility
of access between the situs criminis and tb.e location of the
4. For the defense of alibi to prosper, the accused when the crime was committed. He must demonstrate
requirements of time and place must be strictly met. It is that he was so far away and could not have been
not enough to prove that IN.e accused was somewhere else physically present at the scene of the crime and its
when the crime was committed, but he must also immediate vicinity when the crime was committed”
demonstrate by clear and convincing evidence that it was (People o. Mercado, G.R. No. 213832, December 7, 2015).
physically impossible for him to have been at the scene of
the crime at the time the same was committed (People u. . 5. In Peopfe u. Mercado, G.R. No. 213832, December 7,
Castro, 668 SCRA 291, 300-301, March 14, 2012; See also 2O15, the Court did not appreciate the defense of alibi because
People u. Baraoil, 676 S!CRA 24, 35, Jul y 9, 2012; Ibañez u. the place where the accuseil claimed to be was merely seven
People, G.R. No. 190798, Jenuary 27, 2016). (7) kilometers from z here the killings occurred.
46 EVIDENCE favor due to its being conveniently concocted. In one case, the
(TheBarLeduresgeñee)
accused did not assail the integrity of the drug confiscated
from him except by insisting on being framed-up by the
In the celebrated case of People u. Larrañaga, 463 SCRA policemen. The Court considered the defense as insincere
652, the Supreme Court gave no credence to the alibi that because the accused did not bother to formally charge the
the accused, Larrañaga, was in Quezon City on the date and policemen for the supposed frame-up and extortion. Such
time the alleged crime was committed because it was not failure can only be regarded, according to the Court, as his
impossible for him to be in Cebu on said date and time. The tacit admission that the evidence had not been tampered or
Court ratiocinated, thus: meddled with. The Court, likewise, observed that the accused
”During the hearing, it was shown that it takes did not even adduce evidence to substantiate his story of being
only one (1) hour to travel by plane from Manila to Cebu falsely incriminated (People u. Bautista, 666 !SCRA 518, 536,
and that there are four (4) airline companies plying the February 22, 2012; lsee also People u. Velasquez, 669 ISCRA
route. One of the defense witnesses admitted that there
are several flights from Manila to Cebu each morning,
afternoon and evening . "

Frame-up
1. Allegations of frame-up by police officers are com-
mon and standard defenses in most dangerous drugs eases.
For this claim to prosper, the defense must adduce clear and
convincing evidence to overcome the presumption that gov-
ernment 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 u. Almodiel, G.B. No. eoogs1, lseptember
5, 2012; lsee also, People u. lsteve, G.R. No. 204911, August 6,
2014).
2. The defense of frame-up is not looked upon with
 CHAPTER I — PRELIMINARY CONSIDERATIONS 47 the willingness of the Court to take judicial notice of the natu-
C. Miscellaneous Doctrines
ral reticence of witnesses to get involved in the solution of
crimes.
307, 318, April 11, 2012; See also People u. Tapugay, G.R. No.
200336, February 11, 2015). The witness, who actually saw the shooting of the victims
‹ by the accused and had a clear and positive identification of
Delay and initial reluctance in reporting a crime the plate number of the assailant’s car, denied having wit-
nessed the crime during the investigation by the police and
1. Delayed reporting by witnesses of what they the NBI. He refused to volunteer information to anyone as to
know about a crime does not render their testimonies false what he supposedly witnessed. It was only after consistent
or incredible, for the delay may be explained by the natural prodding and assurance of protection from NBI officials that
reticence of most people and their abhorrence to get involved lie agreed to cooperate with the authorities. The Court recog-
in a criminal case. But, more than this, there is always the nized that the initial reluctance of the fear-gripped witness to
inherent fear of reprisal, which is quite understandable, reveal to the authorities what he supposedly witnessed was
especially if the accused is a man of power and influence sufficiently explained during the trial. His fear was not imagi-
in the community. The natural reluctance of a witness to
nary. He saw with his own eyes the senseless violence per-
get involved in a criminal case, as well as to give
petrated by the accused. He knew that the accused belonged
information to the authorities, is a matter of judicial
to an influential family. In his own words, he testified that his
notice (People v. Wauarro, 297 SCRA 33a).
reluctance was due to his fear for his and his family’s safety.
2. The celebrated double murder and frustrated mur- 3. Even the victim may choose to keep quiet rather
der cases of People u. Teehanhee, Jr., 249 ISCRA 54, illustrate than expose a defilement to the harsh glare of public scrutiny.
48 EVIDENCE 2. Culprits behave differently and even erratically in
(The Bar Lectures Seriea)
externalizing and manifesting their guilt. Some may escape or flee
— a circumstance strongly illustrative of guilt — while others may
Only when the delay is unreasonable or unexplained may it remain in the same vicinity so as to create a semblance of
work to discredit the complainant (People u. Nauarette, Jr., regularity, thereby avoiding suspicion from other members of the
666 SCRA 689, 704, February 22, 2012; lsee also People u. community (People u. Dadao, G.fi. No. 201860, January 22, 2014).
Pateño, G.fi. No. 209040, December 9, 2015).
The fact that appellants never fled the locality where the crime
Flight or non-flight of the accused was committed is not, by itself, a valid defense against the
prosecution’s allegations because non-flight does not signify
1. flight per se is not synonymous with guilt. However, innocence. Non-flight is simply inaction, which may be due to
when flight is unexplained, it is a circumstance from which several factors. It cannot be singularly considered as evidence or a
an inference of guilt may be drawn. “Indeed, the wicked flee manifestation determinative of innocence (People u. Amodia, 571
when no man pursueth, but the innocent are as bold as a
SCRA 444). There is no law or principle holding that non-flight
lion” (People u. Camat, 677 ISCRA 610, 667, July 30, 2012;
per se is proof, let alone conclusive proof, of innocence. Much like
!See also Candelaria u. People, G.fi. No. 209386, December
8, 2014). Flight betrays a desire to evade responsibility and the defense of alibi, the defense of non-flight cannot prevail against
is, therefore, a strong indication of guilt (People u. Aduiento, the weight of positive identification of the appellants (People u.
668 SCRA 486, 500-501, March 20, 2012; People u. Cruz, 726 Dacibar, 325 SCRA
!SCRA 608). 7zs).
— OOO —

Chapter II
BURDEN OF PROOF, QUANTUM
OF EVIDENCE AND PRESUMPTIONS

A. Burden of Proof and Burden of Evidence

Burden of proof (Bar 2004)

1. The burden of proof, or”onus
probandi,”traditionally refers to the obligation of a party to
a litigation to persuade the court that he is entitled to
relief. To persuade the court, one has to prove what he
alleges. It is well-settled that he who alleges a fact has the
burden of proving the same. As jurisprudence puts it: “A
mere allegation is not evidence” 7’ze Sun Wong v. Wong, G.fi.
No. 180364, December 3, 2014).
The term is defined in Sec. 1, Rule 131 of the Rules of
Court, thus:

“SECTION 1. Burden of proof. — Burden of proof

is the duty of a party to present evidence on the facts in
issue necessary to establish his claim or defense by the
amount of evidence required by law.”

2. It is, thus, inaccurate to state that the burden of

proof rests solely on the shoulders of the plaintiff. The burden
of proof, under the clear terms of Sec. 1 of Rule 131, is the
duty of a party to present evidence not only to establish a claim
but also a defense. It will be observed that the rule does not
define burden of proof as the duty of the plaintiff but as the
duty of a “party.” Hence, if a party alleges tlre existence of a
fact, that party has the burden of proof whether that party be
the plaintiff or the defendant. If the plaintiff, for example,
alleges that the defendant owes him a sum of money, the
plaintiff has
 49

50 EVIDENCE upon the employee to first establish by substantial

(The Bar lectures Sezie8)
evidence the fact of his or her dismissal (Noblejas
v. Italian Maritime Academy Phils., Inc., G.ft. No.
the burden to prove the debt. If the defendant asserts that he 207888, June 9, 2014).
has paid the debt, then he has the burden to prove payment.
As aptly described by the Court: “Burden of proof is
the duty of a party to present evidence on the facts in issue
necessary to establish his claim or defense by the amount or
evidence required by law”(BJDC Construction v. Lanuzo, G.It.
No. 161151, March 24, 2014). Thus, in an action anchored on
a quasi-delict under Art. 2176 of the Civil Code, the plaintiff
has the burden of proving that the fault or negligence of
the defendant was the proximate cause of the injuries he
sustained. On the other hand, the defendant has the burden
to prove his defense as when he claims that the injuries of the
plaintiff were caused, not by his wrongful conduct, but by
a third person or a caso fortuito.

Some jurisprudential pronouncements on burden of proof

1. In civil cases, it in a basic rule that the party making
allegations has the burden of proving them by preponderance
of evidence (Alano v. Magud-Logmao, G.fi. No. 175540,
April 7, 2014). By preponderance of evidence is meant that
the evidence adduced by one side is, as a whole, superior to
that of the other side (Hñ'' Industrial Corporation v. G & L
Associated Brokerage, G.R. No.178169, January 12, 2015).
2. In administrative cases, the complainant bears
the onus in proving the averments of his complaint by
substantial evidence. Pointing out circumstances based on
mere conjectures and suppositions are not sufficient to prove
accusations (Lorenzana v. Austria, A.M. No. RU-09-2200, i
April 2, 2014).
3. In termination cases, the law places the burden of
proof upon the employer to show by substantial evidence that
the termination was for a lawful cause and in the manneT
required by law (Deoferio v. Intel Technology Philippines, Inc.,
G.ft. No. 202996, June 18, 2014). It is, however, incumbent
 CHAPTER II — BURDEN OF PROOF, QUANTUM 51 further than may be necessary to effectuate the specific
OF EVIDENCE AND PRESUMPTIONS
A. Burden of Proof and Burden of Evidence purpose of the law. Every statute is, therefore, presumed to
be valid and constitutional (Peres v. People, 544 !SCRA 532).
4. Whoever claims entitlement to the benefits provided by law
should establish his right thereto by substantial evidence 7. The Court has held that one who denies the due
(InterOrient Maritime Enterprises, Inc. v. Creer III, execution of a deed, where one’s signature appears, has the
G.R. No. 181921, September 17, 2014). In claims for disability benefits, for burden of proving that, contrary to the recital in theyuroi, one
instance, the onu>• probandi falls on the claimant to establish his claim never appeared before the notary public and acknowledged
for disability benefits (Bahia !Shipping the deed to be a voluntary act (‘Chua v. Westmont Banh, 667
!Services, Inc. v. Hipe, Jr., G.R. No. 204699, November 12, 2014). SCRA 56, 65, February 27, 2012).

5. In disbarment proceedings, the burden of proof rests on the 8. The burden of proof that a debt was contracted lies
complainant to establish respondent attorney’s liability oy clear, with the creditor-plaintiff. He who asserts, not he who denies,
convincing and satisfactory evidence Clin r. Guico, A.C. No. 10573, must prove (Homeowners Savings & Loan Banh u. Dailo, 453
January .13, 2015). !SCRA 283). However, jurisprudence tells us that one who
pleads payment has the burden of proving it; the burden rests
6. He, who attacks the constitutionality of a law, has the on the defendant to prove payment, rather than on the plain-
onus probandi to sb.ow why the law is repugnant to the tiffto prove non-payment(Bognot v. RRI Lending
Constitution. Failing to overcome its presumption of Corporation, G.fi. to. 180144, lseptember 24, 2014; Sree
constitutionality, a claim that a 1aw is cruel, unusual or inhuman, must also Philippine
fail. The reason for the rule is the presumption that the legislature
intended to enact a valid, sensible and just law which operates no
63 EVIDENCE
CHAPTER II — BURDEN OF PROOF, QUANTUM 53
(The Bar Lectures Series) OF EVIDENCE AND PRESUMPTIONS
A. Burden of Proof and Burden of Evidence

Commercial International Bank fnom BDO UnibanA, Inc.] v. of the adverse party has the burden to justify
f'ranco, G.ft. No. 180069, March 5, 2014). the attachment because a general averment
will not suffice to support the
9. In an eminent domain case, the local government
issuance of a writ for preliminary attachment. It is
that seeks to expropriate private property has the burden of
necessary
proving that the elements for the valid exercise of the right
an applicant for the writ of attachment was defrauded.
of eminent domain have been complied with (Jesus is Lord
It is not enough for the complaint
Christian Foundation, me. u. City ofPasig, 466 ISCRA 235).
to ritualistically cite that the defendants
10. In accident insurance cases, the insured’s are guilty of fraud in contracting the
beneficiary has the burden of proof in demonstrating that obligation. Fraud cannot be presumed. Sec. 1
the cause of death is due to the covered peril. Once that fact of Rule 131 instructs that each party must
is established, the burden then. shifts to the insurer to prove his ohm affirmative allegations
show any excepted peril that may have been stipulated by (Allied Banking Corporation u. South Pacific
the parties (Vda. de Gabriel v. Court o[Appeals, 264 ISCRA lsugar Corporation, 543 ISCRA 585).
137). 12. In international law, the party
11. The party suing for the attachment of the property who wants to have a foreign law applied to
a dispute or case has the burden of proving the foreign law.
Foreign laws do not prove themselves in our jurisdiction, and defenses which he sets up in answer to the plaintiff’s cause of
our courts are not authorized to take judicial notice of them action. Hence, if the defendant sets up the affirmative defense
(Del Socorro v. Van Wif#em, G.ft. No. 193707, December 10, of prescription, he must prove the date when prescription
2014). began to run (Anna- Brothers Realt y Co. u. A ying, 458 SCRA
496; Banh o[ the Philippine Islands u. !Spouses Royeca, 559
Test for determining where burden of proof lies ! ISCRA 207).
1. The test for determining where the burden of proof 2. The burden of proof rests with the party who wants
liea is to ask which party to an action or suit will fail if he to establish a legal right in his favor. for instance, one who
offers no evidence competent to show the facts averred as the asserts a right to a preliminary injunction has the burden to
basis for the relief he seeks to obtain. If the defendant has prove such right. If he claims a right granted by law, he must
affirmative defenses, he bears the burden of proof as to those prove his claim by competent evidence, relying on the strength
of his own evidence and not upon the weakness of that of his
opponent (China Banking Corporation u. Tu Fa Industries,
Inc., 553 !SCRA 211).

Where burden of proof is fixed

The burden of proof is fixed by the pleadings. The claim
of the plaintiff, which he must prove, is spelled out in his
complaint. The defendant’s defenses, which he must, likewise,
prove, are found in his answer to the complaint. The burdens
of proof of both parties do not shift during the course of the
trial.
For instance, as previously adduced, the burden of proof
to establish that the defendant owes the plaintiff remains
with the plaintiff; the burden of proof to establish that the
loan has been paid remains with the defendant, throughout
the ljtigation (Banh o[ the Philippine Islands u. Slpouses
Royeca, 550 ISCRA 2O7).

Burden of evidence (Bar 2004)

1. The burden of evidence is the duty of a party to
go forward with the evidence to overthrow the prima mere
evidence against him (Bautista v. Slarmiento, 138 SICRA 587;
lsee also People u. Court of Appeals, 21st Division, G.fi. No.
183652, February 25, 2015).
As the trial progresses, one party may have presented
an evidence that weighs heavily in his favor and sufficient to
64 EVIDENCE (The Bar Lectures Series)
 CHAPTER II — QUANTUM 55
BURDEN OF PROOF, OF EVIDENCE AND PRESUMPTIONS
B. Presumptions

convince the court of the justness of his claim. If this occurs, heavily). In this case, the decision should be
the other party has the burden to come forward with his own against the party with the burden of proof.
evidence to counteract whatever positive impression which
the evidence of the other party may have been created in the
mind of the court. This duty, also called the burden of coming
forward with the evidence (1 Jones on Evidence, 6th Ed., p.
523), is what is referred to as burden o[euidence.
2. In illegal possession of firearms, the prosecution has
the burden of proving the accused’s lack of authority to have a
firearm. The prosecution having proved that the accused was
not issued a firearms license, the burden of evidence was then
shifted to appellant to prove his authorization to possess a
Grearm Peo Ie u. lsalahuddin, G.R. No. 206291, January 18,
20J6).
3. Generally, “the burden lies upon the prosecution to
prove the guilt of the accused beyond reasonable doubt rather
than upon the accused that he was in fact innocent." If the
accused, however, admits killing the victim, but pleads self-
defense, the burden of evidence is shifted to him to prove such
defense by clear, satisfactory and convincing evidence that
excludes any vestige of criminal aggression on his part. To
escape liability, it now becomes incumbent upon the accused
to prove by clear and convincing evidence all the elements
of that justifying circumstance (Flores u. People, G.R. No.
181354, February 27, 2013).

Equipoise rule or equiponderance doctrine (Bar 1995) !

i
1. The equipoise doctrine is based on the principle
that no one shall be deprived of life, liberty or property
without due process of law(Sec. 1, Art. III, Constitution of the

! Philippines).
2. The 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
 Hence, in a civil case, where the burden of proof is on the B.Presumpflons
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 Concept of presumptions
defendant (Rivera v. Court of Appeals, 284 SCRA 673; Marubeni Corp. v. 1. A presumption is an assumption of fact resulting
Lirag, 362 SCRA 620). from a rule of law which requires such fact to be assumed from
another fact or group of facts found or otherwise established
In a criminal case, the equipoise rule provides that where the evidence
in the action (Black’s taut Dictionary, 5th Ed., p. 1067, citing k!
is evenly balanced, the constitutional presump- tion of innocence tilts the
niform Rule 13; NJ Evidence Rule 13). A presumption is an
scales in favor of the accused. Thus, where the inculpatory facts and
inference of the existence or non-existence of a fact which
circumstances are capable of two or more explanations one of which is
courts are permitted to draw from proof of other facts (In the
consistent with the innocence of the accused and the other consistent
Matter o[ the Intestate Estetes o[ Delgado and Rustia, 480
with his guilt, then the evidence does not fulfill the test of moral
certainty and is not sufficient to support a conviction (People !SCRA 334).
v. lsaturno, 355 !SCRA 578; People u. Ison, G.R. No. 205097, 2. A presumption is not evidence (.California Evidence
June 8, 2016). Code, cited in Black’s law Dictionary, 5th Ed., p. 1167). They
merely affect the burden of offering evidence (1 Wharton’s
3. The equipoise rule, however, is not applicable where the
Criminal Evidence, Dec. 64).
evidence presented is not equally weighty, such as where the evidence
of the prosecution is overwhelming (Malana v. People, 549 ISCRA 451). In a sense, a presurription is an inference which is
mandatory unless rebutted (29 Am Jur 29, Evidence, §181).
56 EVIDENCE 57
CHAPTER II — BURDEN OF PROOF, QUANTUM
(The Bar Lectures Series) OF EVIDENCE AND PRESUMPTIONS
B. Presumptions

Example: D is the debtor of C, creditor for P1 million the inference”

payable in twelve (12) equal monthly installments. If evidence
is introduced that the installment payment for December (29 Am slur 2d §182).
I
A presumption, on the other hand, is a rule
has been received by the creditor, a presumption arises
of law
that previous installments have been paid. This is
directing that if a party proves certain facts
because, under the law, the receipt of a later installment
(the basic facts) at a trial or hearing, the
of a debt, without reservation as to prior installments,
factfinder must also accept an additional fact
gives rise to the presumption that such installments have
(the presumed fact) as proven unless
been paid (Art. 1176, Ciuil Code of the Philippines; lsec. 3f/7.
sufficient evidence is introduced tending to
Rule 131, Rules of Court).
rebut the presumed fact. In a sense,
therefore, a presumption is an inference
Inference distinguished from a presumption which is mandatory ualess rebutted (29 Am
1. An inference is a factual conclusion that can Jur 2d §181).
rationally be drawn from other facts(29 Am Jur 2d §182 citing 2. Thus, ifX proposes marriage to Y, it
Computer Identics Corp. v. Southern Pacific Co. $ A1 Massl). It may be inferred that X is in love with Y. This
is, in other words, one that is a result of the reasoning is a mere inference and has in fact no legal
process. It need not have a legal effect because it is not effect. There are no legal relations established
mandated by law. “The factfinder is free to accept or reject
by the mere fact that one is in love. On the other hand, if X
Kinds of presumptions
enters into a contract of sale of a car with Y, there arises a
presumption that the contract was entered into with a Presumptions are classified into presumptions of law and
sufficient cause or consideration(lsec. 3fr7, Rule 131, Rules of presumptions of fact. Presumptions of law are, in turn, either
Court) and although the cause is not stated in the contract, it conclusive or disputable (In the Matter of the Intestate Estates
is presumed that it exists and is lawful, unless the contrary is o[Delgado and Rustia, 480 SCRA 334).
proven (Art. 1354, The presumption that an accused is innocent of the
Civil Code of the Philippines). The presumption, involved in crime charged until the contrary is proven is a presumption of
the example, has a definite legal effect. i law embodied in the Constitution (Spec. 14 $1, Art. III, Bill of
Rights, Constitution o[the Philippines). Art . 1756 of the Civil
Code of the Philippines also illustrates another presumption
mandated by the law. Under the said provision, in case of
death or injuries to passengers, common carriers are
presumed to have been at fault or to have acted negligently.
An assumption of fact does not arise from any direction
of the law. It arises because reason itself allows a
presumption from the facts. If A attacks B without
provocation, the logical presumption arises that A does not
have tender feelings towards B. A presumption of fact is, in
effect, actually a mere inference because it does not
necessarily give rise to a legal effect.
This must be the reason for the trend to discard the
distinction between a presumption of fact and a presumption
of law (Black’s Law Dictionary, 5th Ed., p. 1067).

Effect of presumptions
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 [acre proof of the fact
presumed (Diesel Construction Co., Inc. v. UPSI Propert y
Holdings, Inc., 549 ISCRA 12).

Meaning of conclusive presumptions (Bar 2012)

1. As classified in Rule 131 of the Rules of Court, a
presumption may either be:
(a) conclusive (presumptionsJurfs et de jure), or
(b) disputable (presumptions juris iorirem).
58 EVIDENCE (The Bar Lectures SerieB)
 CHAPTER II — BURDEN OF PROOF, QUANTUM 59
OF EVIDENCE AND PRESUMPTIONS
2. A presumption is tonclusive when the presumption B. Presumptions
becomes irrebuttable upon the presentation of the evidence
and any evidence tending to rebut the presumption is not belief, he cannot, in any litigation arising out of such
declaration, act or omission, be permitted to falsify it.
admissible.
(b) The tenant is not permitted to deny the
Thus, the Supreme Court taught that conclusive pre- title of his landlord at the time of the commencement
sumptions are “inferences which the law makes so peremp- of the relation of landlord and tenant between them.”
tory that it will not allow them to be overturned by any con-
trary proof however strong” (Datalift Movers, Inc. v. Belgravia 2. The conclusive presumptions under the Rules
fieoffy & Development Corporation, 500 S!CRA 163). of Court are based on the doctrine of estoppel. Under this
“A conclusive or irrebuttable presumption is not a doctrine, the person making the representation cannot claim
presumption at all; it is a substantive rule of law directing benefit from the wrong he himself committed (Phil. Pryce
that proof of certain basic facts conclusively proves an Assurance Corp. u. Court o[Appeals, 230 SCRA 164).
additional fact which cannot be rebutted. Such presumption 3. The first conclusive presumption is often referred to
rests upon grounds of expediency or public policy so
as estoppel in pats or estoppel by conduct.
compelling in character as to override the requirement of
proofi é29 Am Jur 2d, Evidence, §18d; Citations omitted).
Estoppel
3. A presumption is disputable or rebuttable if it may
1. Under the doctrine of estoppel, an admission or
be contradicted or overcome by other evidence (tsec. 3, Rule
representation is rendered conclusive upon the person making
131, Rules of Court). In the language of Sec. 3 of Rule 131,
it, and cannot be denied or disproved as against the person
disputable presumptions “are satisfactory, if uncontradicted,
but may be contradicted and overcome by other evidence.” relying thereon (Spouses Menzanilla u. Waterfields Industries
Corporation, w.R. No. 177484, Jul y 18, 2014).
When evidence that rebuts the presumption is intro-
duced, the force of the presumption disappears. Example: Axomyfe: Persons who assume to be a corporation
While evidence of receipt of payment of a later installment without legal authority to act as such shall be considered a
gives rise to the presumption that previous installments have corporation by estoppel and shall be liable as general
been paid, yet when evidence is shown that prior installments partners (lsec. 21, Corporation Code of tire Philippines).
remain unpaid, the presumption falls. 2. Under Art. 1431 of the Civil Code, through estoppel,
an admission or representation is rendered conclusive upon
Conclusive presumptions under the Rules of Court (Bar the person making it, and cannot be denied or disproved
2012) as against the person relying on it. Where a party, by his
1. The following are the conclusive presumptions deed or conduct, has induced another to act in a particular
under Sec. 2, Rule 131 of the Rules of Court: manner, estoppel effectively bars the former from adopting an
inconsistent position, attitude or course of conduct that causes
“SEC. 2. Conc/cis7ve presumptions. — x x x loss or injury to the latter. The doctrine- of estoppel is based
(a) Whenever a party has, by his own declaration, upon the grounds of public policy, fair dealing, good faith and
act, or omission, intentionally or deliberately led justice, and its purpose is to forbid one to speak against his
another to believe a particular thing is true, and to act own act, representations, or commitments, to the injury of
upon such one to whom they were directed and who reasonably relied
thereon (Harold u. Aliba, 534 S!CRA 478).
60 EVIDENCE CHAPTER II — BURDEN OF PROOF, QUANTUM 61
(The Bar Lecturer Seriea) OF EVIDENCE AND PRESUMPTIONS
B. Presumptions
contrary suggesting ill motive on the part of
3. “Because of the conclusive presumption under the police officers or deviation from the
Section 2(b) of Rule 131, the Rules of Court sufficiently shields regular performance of their duties”
the lessor from being questioned by the lessee, regarding its (People u. Alejandro, G.R. No.205227, April 7,
title or better right of possession as lessor because having 2014).
admitted the existence of a lessor-lessee relationship, the
lessee is barred from assailing the lessor’s title of better right
of possession x x x 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
leasor has valid title to or better right of possession to the
subject leased premises than it has” (Datal•’ft **overs, Inc. u.
Belgrauia Realty & Development Corporation, 500 ISCRA 163)
(Bar ii0lii).

Effect of disputable presumptions

The effect of a presumption upon the burden of proof is to
create the need of presenting evidence to overcome the prima
;focie case created by the presumption. If no contrary proof is
offered, the presumption will prevail (Draw i›. People, G.fi. No.
208113, December 2, 2015).

Disputable presumptions under the Rules of Court

1. A significant example of a disputable presumption
under the Rules of Court is the presumption that “official
duty haa been regularly performed” (lsec. hfm1, Rule 131) (Bar
£01£).
For example, in buy-bust operations, the Court has '
usually presumed the regularity of performance of their
official duties in favor of members of the buy-bust team ,
(People v. Mendoza, G.ft. No. 192432, June 23, 201d). Settled
is the rule that, in cases involving violations of the Dangerous
Drugs Act, credence is given to prosecution witnesses, who are
police officers, for they are presumed to have performed their
duties in a regular manner, unless there is evidence to the
 This presumption of regularity of court proceedings in- cludes to questioning, the confessant was warned of his cons
presumptions of regularity of service of summons. It is, therefore, incumbent titutionally-protected rights because the presumption
upon the party questioning the validity of the service to rebut these o[regularit y of official acts does not apply during in-custod y
presumptions with competent and proper evidence. The return is prima facie investigation. Trial courts should further keep in mind that
proof of the facts indicated therein (Masagana Concrete Products u. NLRC, 313 even if the confession of the accused is gospel truth, if it was
SCRA 576). made without the assistance of counsel, it is inadmissible in
2. The Court, however, emphasized that the pre- sumption of evidence regardless of the absence of coercion or even if it had
regularity in the performance of official duty obtains only when there is no been voluntarily given (People u. Camat, 256 SCRA 52).
deviation from the regular performance of duty (People v. Casabuena, G.R. 5. The presumption of regularity in the performance of
No. 186455, November 19, 2014). It is rebuttable by affirmative evidence of oificial functions cannot, by itself, overcome the presumption
irregularity or of a failure to perform a duty (People v. Alejandro, CLR. No. of innocence. Evidence of guilt beyond reasonable doubt, and
205227, April 7, 2014). nothing else, is required to era.se all doubts as to the culpability
3. The presumption of regularity does not apply in a petition for a of the accused (Zafra u. People, 677 ISCRA 396, 405, April 25,
writ of amparo. Under Sec. 17 of the Rule on the Writ of Amparo, the 2012). Also, the presumption of regularity in the performance
“respondent public official or employee cannot invoke the presumption of official duty does not constitute proof beyond reasonable
that official duty has been regularly performed to evade responsibility or doubt. It should be noted that the presumption is precisely
liability.” just that — a presumption. Once challenged by evidence, it
4. It is incumbent upon the prosecution to prove during the trial that prior
62 EVIDENCE
(The Bar Lectures Seriea) CHAPTER II — BURDEN OF PROOF, QUANTUM 63
OF EVIDENCE AND PRESUMPTIONS
B. Presumptions

cannot be regarded as binding truth (People v. Caranto, G.R. (a) That a person is innocent of a crime or wrong;
No. 193768, March 5, 2014). Reliance on the legal presumption (b) That an unlawful act was done
of regularity in the performance of official duty is inadequate with unlawful intent;
to uphold a conviction. After all, the burden of proving the
guilt of the accused rests on the prosecution which must rely (c) That a person intends the
on the strength of its own evidence and not on the weakness ordinary conse- quences of his voluntary
of the defense (People v. Enad, G.R. No. 205764, February 3, act; (Bar fl01fl)
2016). (d) That a person takes ordinary care of his
busi-
In case of conflict between the presumption of regularity
ness;
in the performance of duty of police o&cers and the presump-
tion of innocence of the accused, the latter must prevail as the (e) That evidence willfully
law imposes upon the prosecution the highest degree of proof suppressed would be adverse if produced;
of evidence to sustain conviction (People v. Guinto, G.R. No. (I) That money paid by one to another
198314, lseptember 24, 2014). was due to the latter;
Examples of disputable presumptions (Bar 2011; 2012) (g) That a thing delivered by one
to another belonged to the latter;
1. Some significant disputable presumptions under
(h) That an obligation delivered up to the
Sec. 3 of Rule 131 are:
 debtor
has been paid; ) That a person acting in a public office was
regularly appointed or elected to it;
(i) That prior rents or installments had been paid
when a receipt for the later ones is produced; (k) That official duty has been regularly performed;
(Bar 2012)
(l) That a court, or judge acting as such, whether
in the Philippines or elsewhere, was acting in the lawful
exercise ofjurisdiction;
Note: Please refer to other disputable presumptions in
Sec. 3 of Rule 131.
2. One of the most significant presumptions, which is,
at the same time, a constitutional right (lsec. I4f27, Art. III
[Bill o[Rights], Constitution o[the Philippines), is the right to
be presumed innocent of a crime or wrong.
3. The constitutional presumption of innocence is
enjoyed by the accused until final conviction and, in this
regard, the prosecution’s case must rise and fall on its own
merits and cannot draw its strength from the weakness of the
defense (People u. Mingming, 573 SCRA 509). The evidence of
the prosecution must stand on its own strength and not rely
on the weakness of the defense (People u. Bontuyan, G.R. No,
206912, September 10, 2014).
4. The presumption that evidence, when willfully sup-
pressed, would be adverse, if produced, does not apply if (a)
the evidence is at the disposal Of both parties; (b) the suppres-
sion was not willful; (c) it is merely corroborative or cumula-
tive; and (d) the suppression is covered by the privileged com-
munication between physician and patient (Blue Cross Health
Care, Inc. o. Olivares, 544 SCRA 580).
5. Generally, a notarized document carries the eviden-
tiary weight conferred upon it with respect to its due execu-
tion, and documents acknowledged beforé a notary public have
in their favor the presumption of regularity which may only
be rebutted by clear and convincing evidence (Rural Bank of
Cabadbaran, Inc. v. Melecio-Yap, G.R. No. 178451, July 30,
2014; See also Tan v. Hosana.. G.R. No. 190846, February 3,
2016).
64 EVIDENCE (Th
 e Bar Lectures Series) that they observed all the diligence of a good
father of a family to prevent damage. This
6. The settled rule is that, in the absence of satisfactory indicates that there is a presumption
explanation, one found in possession of and who used a forged
document is the forger and therefore, guilty of falsification.
If a person had in his possession a falsified document and he
made use of it (uttered it), taking advantage of it and profiting
thereby, the clear presumption is that he is the material
author of the falsification (Maliwat v. Court of Appeals, 256
SCRA 718).
The presumption, that whoever possesses or uses a
spurious document is its forger, applies only in the absence
of a satisfactory explanation (Metrobank v. Tobias III, 664
SCRA 165, 179-180, laundary 25, 2012). Hence, a satisfactory
explanation would render the presumption ineffective.
7. A judgment or final order against a person, rendered
by a tribunal of a foreign country with jurisdiction to render
said judgment or final order, is presumptive evidence of a
right as between the parties and their successors-in-interest.
If the judgment or final order is upon a specific thing, said
judgment or final order is conclusive upon the title to the
thing. The presumptions are not, however, irrefutable. In
either case, the judgment or final order may be repelled by

' any of the following: (a) want ofjurisdiction; (b) want of notice
to the party; (e) collusion; (d) fraud; or (e) clear mistake of law
or fact (Sec. 48, Rule 39, Rules of Court).
8. While the judgment or final order rendered by a
Philippine court, among others, in respect to the probate of a
will or the administration of the estate of a deceased person
is conclusive upon the will or administration, the probate of a
will or granting letters of administration .shall only be prima
Macie evidence of the death of the testator (!Sec. 47, Rule 39,
Rules o[Court).
9. The persons mentioned in Art. 2180 of the Civil Code
like employers, and owners or managers of establishment,
among others, are liable for the acts of those persons for
whom they are responsible. Under the same provision, such
responsibility shall cease when the persons mentioned prove
 CHAPTER II — BURDEN OF PROOF, QUANTUM 65 Code o[the Philippines).
OF EVIDENCE AND PRESUMPTIONS
B. Presumptions 12. In some cases where negligence is diffieult to
prove, the doctrine of res ipsa loquitur permits an inference
that employers and other persons in Art. 2180 have, likewise, been negligent in of negligence on the part of the defendant where the thing
case those under them have caused damage to another. or transaction speaks for itself (Jose[a v. Manila Electric
Whenever an employee’s negligence causes damage or injury to another, Compan y, G.R. No. 182705, July 18, 2014). The doctrine of res
ipsa loquitur establishes a presumption of negligence against
there instantly arises a presumption uris tantum that the employer failed to
the defendant and furnishes a substitute for a specific proof
exercise diligentissimi yatris[amilias in the selection (culpa eligiendo) or
of negligence. The doctrine can be invoked only when, under
supervision (culpa in uigilando) of its employees (Macalinao v. Ong, 477
ISCRA 740). the circumstances, direct evidence is absent and not readily
available. For the doctrine to apply, the following must be
10. It is disputably presumed that a driver was negli- gent, if he had satisfactorily shown:
been found guilty of reckless driving or violat- ing traffic regulations at least (a) The accident is of a kind which ordinarily does
twice within the next preceding two months (Art. 2184, CiuiJ Code o[the not occur in the absence of someone’s negligence;
Philippines).
(b) It is caused by an instrumentality within the
11. There is prima f’acie presumption of negligence on the part of the exclusive control of the defendant or defendants; and
defy.ndant if the death or injury results from his possession of dangerous (c) The possibility of contributing conduct which
weapons or substances, such as firearms and poison, except when the possession would make the plaintiff responsible is eliminated
or use thereof is indispensable in his occupation or business (Art. 2188, Ciuil IR o Court of App«ls, se1 ecu s8 ,- M«li a
66 EVIDENCE CHAPTER II — BURDEN OF PROOF, QUANTUM 67
(The Bar Lectures Seriea) GF EVIDENCE AND PRESUMPTIONS
C. Quantum of Evidence (Weiq•ht and Suffieieney of Evidence)
u. Ong, 477 SICRA 740; See Solidum v. People, G.R. No. a degree of proof as, excluding possibility of error,
292J23, March J0, 20J4). produces absolute certainty. Moral certainty only
is required, or that degree of proof which produces
13. The legal presumption is that a person takes ordi-
nary care of his concerns. ’I'o this, case law dictates that the conviction in an unprejudiced mind.”

natural presumption is that one does not sign a document Jurisprudence reiterates the above rule by declaring that
without first informing himself of its contents and conse- “[I]n every criminal prosecution, the State must prove beyond
quences (Diam v. People, Cr.It. No. 208113, December 2, 2015). reasonable doubt, all the elements of the crime charged
and the complicity or participation of the accused” (People
C. Quantum of Evidence height and u. Maraorao, 674 SCRA 151, 159, June 20, 2012; See also
SuJ'ficiency of Evidence) People u. Roxas, G.fi. to. 218396, P'ebruary 10, 2016). Proof
beyond reasonable doubt is the degree of proof that, after
Proof beyond reasonable doubt investigation of the whole record, produces moral certainty
1. In criminal cases, the burden of proof as to the in an unprejudiced mind of the accused’s culpability (Atienza
guilt of the accused lies with the prosecution because of the u. People, G.fi. No. 1B8694, February 12, 2014). Proof beyond
presumption that the accused is presumed innocent until the reasonable doubt does not mean such a degree of proof that
contrary is proven(Sec. 14(2], Art. III, Bill ofRights, Philippine excludes all possibility of error. Only moral certainty is
Constitution). required (lsec. 2, Rule 133, Rules of Court).
 Sec. 2 of Rule 133 provides for the quantum of evidence 2. The presumption of innocence of an accused in a
required in criminal cases as follows: cz‘iminal case is a basic constitutional principle fleshed out by
procedural rules which place on the prosecution the burden
"SEC. 2. 'roof geyond reasonag/e doubt. — In a of proving that the accused is guilty of the offense charged
criminal case, the accused is entitled to an acquittal, by proof beyond reasonable doubt. Corollary thereto, the evi-
unless his guilt is shown beyond reasonable doubt. dence of the prosecution must stand on its own strength and
Proof beyond reasonable doubt does not mean such not rely on the weakness of the evidence of the defense
(People
u. Bontuyan, Cr.fi. No. 206912, Sleptember 10, 2014; Saraum v.
People, Cr.fi. No. 205472, January 25, 2016; Slee also Franco v.
People, G.R. No. 191185, February 1, 2016).

Preponderance of evidence (Bar 2003; 2011)

1. Sec. 1 of Rule 133 provides:

“SECTION 1. Preponderance of evidence; how

determined. — In civil cases, the party having the burden
of proof must establish his case by a preponderance of
evidence. In determining where the preponderance or
superior weight of evidence on the issues involved lies,
the court may consider all the facts and circumstances
of the case, the witnesses’ manner of testifying, their
intelligence, their means and opportunity 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, their interest or want of
interest, and also their personal credibility so far as the
same may legitimately appear upon the trial. The court
may also consider the number of witnesses, though
the preponderance is not necessarily with the greater
number.”

2. In civil cases, the party having the burden of

proof must establish his case by a preponderance of
evidence. 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 evidence” or “greater weight of the credible
evidence.”
analysis, means probability of the truth. It is
68 EVIDENCE
(The Bar Lectures Series) evidence which is more convincing to the
court as worthier of belief than that which is
offered in opposition thereto (Clone r.
Preponderance of evidence is a phrase which, in the last
Westmont Banh, 667 ISCRA 56, 6B, February 27, 2012, Asian
Construction and CHAPTER II — BURDEN OF PROOF, QUANTUM 69
OF EVIDENCE AND PRESUMPTIONS
Development Corporation v. Mendoza, 675 ISCRA 284, 290, C. Quantum of Evidence (Weight and Sufficiency of Evidence)
June 27, 2012; him v. Mindanao Wines & liquor Gafferio, 675
SCRA 628, 640, July 4, 2012; Slpouses Ramos v. Obispo, G.R. be deemed established if it is supported by substantial
evidence, or that amount of relevant evidence which a
No. 193804, February 27, 2013; lsee also !Standard Insurance
reasonable mind might accept as adequate to justify a
Co., Inc. v. Cuaresma, G.R. No.200055, lseptember 10, 2014). conclusion.”
3. Preponderance of evidence means that the evidence
adduced by one side is, as a whole, superior to or has greater 2. Substantial evidence refers to such relevant evi-
weight than that of the other. It is evidence which is more dence which a reasonable mind might accept as adequate
convincing to the court as worthy of belief than that which is to support a conclusion (Montinola v. Philippine Airlines,
offered in opposition thereto (BJDC Construction v. Lanuzo, G.fi. No. 198656, September 8, 2014). In administrative cases,
G.fi. No. 161151, March 24, 2014). the quantum of evidence required is that of substantial
4. In determining whether or not there is evi- dence. It does not require evidence that is
preponder- ance of evidence, the court may consider the overwhelming or even preponderant (Astorga and Repol Lan›
following: Offices u. Villan- ueva, A.M. No. P-09-2669, February 24, 2015;
(a) all the facts and circumstances of the case; Sree also Asian International Manpower Slervices, Inc. u.
Department o[Labor arid Employment, G.fi. No. 210308, April
(b) the witnesses’ manner of testifying, their 6, 2016).
intelligence, their means and opportunity of knowing the
facts to which they are testifying, the nature of the 3. In administrative or quasi-judicial proceedings,
facts to which they testify, the probability or like those conducted before the NLRC, the standard of proof
improbability of their testimony; is substantial evidence which is understood to be more than
just a scintilla or such amount of relevant evidence which
(c) the witnesses’ interest or want of interest, and a reasonable mind might accept as adequate to justify a
also their personal credibility so far as the same may conclusion (Morales u. Harbour Centre Port Terminal, Inc.,
ultimately appear in the trial; 664 ISCRA 110, 121, January 25, 2012; !See also Republic u.
(d) the number of witnesses, although it does mean Arias, G.R. No.188909, September 17, 2014).
that the preponderance is necessarily with the greater
In claims for workmen’s compensation, for example,
number (lsec. 1, Rule 133, Rules o[Court).
the degree of proof required is merely substantial
evidence. This means that it suffices that the claims be
Substantial evidence (Bar 2003; 2011)
based on mere probability, not certainty of causal relations
1. The pertinent rule on substantial evidence is found (Leuiste v. lsocial
in Sec. 5 of Rule 133. The relevant provision declares: !Securit y S yste.m, 539 SICRA 120). However, the employee has
the burden to present substantial evidence or such relevant
"SEC. 5. Substantial evidence. — In cases filed
evidence which a reasonable mind might accept as adequate to
before administrative or quasi-judicial bodies, a fact may
justify a conclusion, showing a reasonable connection between
the conditions of his work and his illness, or that the risk of
contracting the same was increased by his working conditions
(Masangcay u. Trans-Global Maritime Agenc y, Inc., 569 SCRA
9’2). o[ E. B. Roxas, Inc. v. Tolentino, 167 ISCRA 334).
In agrarian cases, all that is required is mere substantial evidence (Heirs
70 EVIDENCE CHAPTER II — BURDEN OF PROOF, QUANTUM 71
(The Bar Lecturer Seriea) OF EVIDENCE AND PRESUMPTIONS
C. Quantum of Evidence (Weight and Sufficiency of Evidence)
Quantum of evidence in a petition for a Writ of Amparo Conversely [th)e ICourt] ha[s] also ruled that
In a petition for a writ of amparo, the parties shall the dismissal of the criminal case is not per se a bar to
administrative sanctions To paraphrase, dismissal of
establish their claims by substantial evidence (Sec. 17, The
the criminal case does not foreclose administrative action
Rule on the Writ o[Amparo, effective October 24, 2007). involving the same facts” (Paredes v. Court of Appeals,
528 SCRA 577).
Effect on the criminal case of failure to prove administrative
Ilabillty Clear and convincing evidence (Bar 2011)
In Paredes 1. Evidence is clear and convincing if it produces
v. APPeals, 528 SCRA 577, the accused
argued that as his liability in the administrative case against criminal cases. The prosecution ia certainly not
him was not established by substantial evidence, so will his precluded from, adducing additional
criminal case necessarily fall, demanding as it does, a heavier evidence to discharge the burden of proof
quantum of proof, i.e., proof beyond reasonable doubt. To this required in the criminal cases.
argument the Supreme Court declared: XSx

”The petition must fail.

x x x It is indeed a fundamental principle ... that
administrative cases are independent from criminal
actions for the same act or omission. Thus, an absolution
from a criminal charge is not a bar to an administrative
prosecution, or rice versa. One thing is administrative
liability; quite another thing is the criminal liability for
the same act.
xxx
Criminal and administrative proceedings may
involve similar operative facts; but each requires a
different quantum of evidence.
xxx
Thus considering the difference in the quantum
of evidence, as well as the procedure followed and the
sanctions imposed in criminal and administrative
proceedings, the findings and conclusions in one should
not necessarily be binding on the other. Notably, the
evidence presented in the administrative case may not
necessarily be the same evidence to be presented in the
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 (Blach’s Eaw
Dictionary, 5th Ed., p. 227d.
2. The Court, in Government of Honghong Especial Administrative
Region u. Olalia, Mr. (521 S!CRA 470), explained this quantum of
evidence, thus:

“An extradition proceeding being sui generis, the standard of

proof required in granting or denying bail can neither be the proof
beyond reasonable doubt in criminal cases nor the standard of proof
of preponderance of evi- dence in civil cases. While administrative in
character, the standard of substantial evidence used in administrative
cases cannot likewise apply given the object of extradition law which is
to prevent the prospective extraditee from fleeing [Philippine]
jurisdiction. In his separate opinion in Pw-ganan, then Associate
Justice, now C.“href Justice Reynato S. Puno, proposed that a new
standard which he termed ‘clear and convincing evidence’ should be
used in granting bail in extradition cases. According to him, this
standard should be lower ffioit proof beyond reasonable doubt but higher
than preponderance o/ evidence. The potential extraditee must prove
by ‘clear and convincing evidence’ that he is not a flight risk and will
abide with all the orders and processes of the extradition court.”

3. One recent case makes a more liberal use of the “clear and
convincing evidence” rule when it declared: “Once an accused in a
prosecution for murder or homicide admitted his infliction of the fatal
injuries, he assumed the burden to prove
72 EVIDENCE
(The Bar Lectures Series)

by clear, satisfactory and convincing evidence the justifying

circumstance that would avoid his criminal liability” (People
u. Fontanilla, 664 SCRA 150, 158, January 25, 201; Italics
supplied). Chapter III
Evidentiary weight of electronic evidence JUDICIAL NOTICE AND JUDICIAL
1. In assessing the evidentiary weight of electronic ADMISSIONS
evidence, certain factors may be considered, like:
(a) The reliability of the manner in which it was
A. Judicial Notice
generated, stored or communicated;
1. The relevant provisions on judicial notice under
(b) The reliability of the manner in which its origi- ième 129 provide:
nator was identified;
(c) The integrity of the information and communi- “SECTION 1. Luc/ic/a/ nof/ce, w’/men mandatory. — A
court shall take judicial notice, without the introduction
cation system;
of evidence, of the existence and territorial extent of
(d) The familiarity of the witness or the person who states, their political history, forms of government and
made the entry with the communication and information symbols of nationality, the law of nations, the admiralty
system; and maritime courts of the world and their seals, the
political constitution and history of the Philippines, the
(e) The nature and quality of the information which official acts of the legislative, executive and judicial
went into the communication and information system; departments of the Philippines, the laws of nature, the
and measure of time, and the geographical divisions.

(f) Other factors ivhich the court may consider. SEC. 2. Judicial notice, when discretionary. — A
(Sec. 1, RuIe 7, Rules on Electronic Evidence). court may take judicial notice of matters which are of
public knowledge, or are capable of unquestionable
2. All matters relating to the admissibility and eviden- demonstration, or ought to be known to judges because
tiary weight of an electronic docùment may be established of their judicial functions.
by an affidavit stating facts of direct personal knowledge of SEC. 3. Judicial notice, when hearing necessary.
the affiant or based on authentic records. The affidavit must — During the trial, the court, on its own initiative, or on
affirmatively show the competence of the alliant to testify on request of a party, may announce its intention to take
the matters contained therein (Sec. 1, RuIe 9, Rules on Elec- judicial notice of any matter and allow the parties to be
tronic évidence). heard thereon.

The affiant shall be made to affirm the contents of the After the trial, and before judgment or on appeal,
the proper court, on its own initiative or on request of
affidavit in open court and may be crosa-examined as a matter
a party, may take judicial notice of any matter and allow
of right by the adverse party(l!Sec. 2, Rule 9, Rules on Electronic
the parties to be heard thereon if such matter is decisive
Evidence). of a material issue in the case.”
— o0o —
73
74 EVIDENCE 2. There are matters in a litigation
(The Bar Lectures Series)
which must be admitted without need for
 evidence. For example, when the complainant in a criminal CHAPTER III — JUDICIAL NOTICE AND JUDICIAL ADMISSIONS 75
case alleges that he was assaulted by the accused in Quezon A. Judicial Notice
City, it would be ridiculous to require the prosecution to
prove that a place called Quezon City exists. Also, if the Evidence shall be dispensed with because the matter is so well
accused is charged with the violation of a statute, there is no known and is of common knowledge not to be disputable.
need to introduce evidence that said statute exists because the
court is charged with knowledge of the law, it being the When judicial notice is mandatory
product of an official act of the legislative department of the
Philippines. 1. A matter ofjudicial notice may either be mandatory
(lsec. 1, Rule 129, Rules of Court) or discretionary (lsec. 2,
There is, likewise, no need to adduce evidence to prove Rule 129, Rules of Court). then the matter is subject to a
that there are twenty-four (24) hours in a day or that the sun mandatory judicial notice, no motion or hearing is necessary
rises in the east and sets in the west. The fact that Cebu lies for the court to take judicial notice of such matter because it is
in the Visayan region needs no further evidence. To require what it says it is — “mandatory.”
evidence for such obvious facts would be totally absurd. Now,
all these matters which the court may take cognizance of 2. The following are matters subject to mandatory
without evidence are called matters of judicial notice.” judicial notice:
3. Judicial notice is based on the maxim, “what is (a) existence and territorial extent of states;
known need not be proved”; hence, when the rule in invoked, (b) political history, forms of government and
the court may dispense with the presentation of evidence on symbols of nationality of states;
judicially-cognizable facts (Thayer, Preliminary Treatise on
(c) law of nations;
Evidence, p. 277 cited in Jones, The law on Evidence in Civil
Cases, Volume I, 3rd Ed.). (d) admiralty and maritime courts of the world and
their seals;
4. The taking of judicial notice is a matter of expedi-
ency and convenience for it fulfills the purpose that the (e) political constitution and history of the Philip-
evi- dence is intended to achieve, and in this sense, it is pines;
equivalent to proof (hand Bank of the Philippines v. Yatco (f) official acts of the legislative, executive and
Agricultural Enterprises, Cr.fi. No. 172551, January 15, 2014). judicial departments of the Philippines;
(g) laws of nature;
Function of judicial notice
(h) measure of time; and
Judicial notice takes the place of proof and is of equal
force. It displaces evidence and fulfills the purpose for which (i) geographical divisions.
the evidence is designed to fulfill. Hence, it makes evi- 3. It would be error for a court not to take judicial
dence unnecessary (Moran, Comments on the Rules of Court, notice of an amendment to the Rules of Court. In a case, the
Supreme Court declared that even if petitioners did not raise
, 1980, p. 38 citing Alzua v. Johnson, 21 Phil. 308). When or allege the amendment of the Rules of Court in their motion
the court takes judicial notice of a matter,’the court accepts for reconsideration before it, the Court of Appeals should
and recognized the same without necessity of formal proof. have taken mandatory judicial notice of the Supreme Court’s
resolution in A.M. No. 00-02-03-SC amending Sec. 4 of Rule
6o, effective September 1, 2000. Under Sec. 1 of Rule 129, a
court shall take judicial notice, among others, of the official
acts not only of the legislative and executive departments but also of
76 EVIDENCE
(TheBerlmctimesSeñœ}
the judicial department (Siena Realt y Corporation u. Gal-lang, 428 ISCRA
422).
 It is axiomatic that a court has the mandate to apply CI-LAPTER III — JUDICIAL NOTICE AND JUDICIAL ADMISSIONS 77
relevant statutes and jurisprudence in determining whether A. Judicial Notice
the allegations in a complaint establish a cause of action.
While it focuses on the complaint, a court clearly cannot accurate and ready determination by resorting to sources
disregard decisions material to the proper appreciation of the whose accuracy cannot reasonably be questionable.
questions before it. In resolving the motion to dismiss, the
trial court should have taken cognizance of the official acts of “Things of ‘common knowledge,’ of which courts take
the legislative, executive, and judicial departments because judicial notice of, are matters coming to the knowledge of
they are proper subjects of mandatory judicial notice as men generally in the course of the ordinary experiences of
provided by Sec. 1 of Rule 129 of the Rules of Court (DENR life, or they may be matters which are generally accepted by
v. DENR Region 12 Employees, 409 ISCRA 359). mankind as true and are capable of ready and unquestioned
demonstration. Thus, facts which are universally known, and
4. In a case questioning the title of the University of
which may be found in encyclopedias, dictionaries or other
the Philippines to certain lots, the Court ruled that the lower
publications, are judicially noticed, provided, they are of such
courts should take judicial notice of the fact that Congress
universal notoriety and so generally understood that they
and the Supreme Court have both officially recognized the
may be regarded as forming part of the common knowledge
university’s indefeasible title to its landholdings. The official
of every person. As the common knowledge of man ranges
acts of the legislative, executive and judicial departments
far and wide, a wide variety of particular facts have been
of the Philippines are matters of mandatory judicial notice
judicially noticed as being matters of common knowledge. But
(Republic of the Philippines v. Romano, G.R. No. 186635,
a court cannot take judicial notice of any fact which, in part, is
January 27, 2016).
dependent on the existence or non-existence of a fact of which
the court has no constructive knowledge" (Expertravel and
When judicial notice is discretionary (Bar 2012)
Tours, Inc. o. Court o[A ppeals, 459 ISCRA 147).
1. Under the principle of discretionary judicial notice,
“A court may take judicial notice of matters which are of 3. The power to take judicial notice is to be exercised
public knowledge, or are capable of unquestionable by courts with caution especially in an expropriation case
demonstration, or ought to be know to judges because of which involves a vast tract of land. Care must be taken that
their judicial functions“ (lsec. 2, Rule 129, Rules of Court). the requisite notoriety exists; and every reasonable doubt on
the subject should be promptly resolved in the negative. (Land
2. The principal guide in determining what facts may Banh of the Philippines u. W ’coco, 419 SCRA 67).
be assumed to be judicially-known is that of notoriety. Hence,
it can be said that judicial notice is limited to facts evidenced In W ycoco, the trial court, in arriving at the valuation of
by public records and facts of general notoriety. Moreover, a the land, took judicial notice of the alleged prevailing market
judicially-noticed fact must be one not subject to a reasonable value of agricultural lands in the place without apprising the
dispute in that it is either: (1) generally known within the parties of its intention to take judicial notice thereof despite
territorial jurisdiction of the trial court; or (2) capable of the requirement of a hearing under Sec. 3, Rule 129 of the
Rules on Evidence.
The Supreme Court, in the same case, held that,
inas- much as the valuation of the property is the very issue
in the case at bar, the trial court should have allowed the
parties to present evidence thereon instead of practically
assuming a valuation without basis.
78 EVIDENCE 1. Judicial notice may be taken of a fact which judges
fThe Bar Lectures Seriee)
ought to know because of their judicial fiinctions (lsec. 2, Rule 129,
Rules of Court).
Judicial notice and knowledge of the judge (Bar 1980; 2011)
 But judicial notice is not judicial knowledge. The mere
CHAPTER III — JUDICIAL NOTICE AND JUDICIAL ADMISSIONS 79
personal knowledge of the judge is not the judicial knowledge A. Judicial Notice
of the court, and he is not authorized to make his individual
knowledge of a fact, not generally or professionally known, as Judicial notice of foreign laws; doctrine of processual
the basis of his action (lstate Prosecutors v. Muro, 236 ISCRA presumption (Bar 1997; 2005; 2011)
505; Land BanA of the Philippines v. Wycoco, supra).
1. It is well-settled in our jurisdiction that our courts
2. Judicial notice is not limited by the actual knowl- cannot take judicial notice of foreign laws. Like any other
edge of the individual judge or court. A judge must take judi- facts, they must be alleged and proved. Australian marital
cial notice of a fact if it is one which is the proper subject laws, for example, are not among those matters that judges
of judicial cognizance even if it is not within his personal are supposed to know by reason of their judicial functions
knowl- edge. Consequently, a judge may not take judicial (Garcia v. Garcia-Recio, 366 SCRA 437; Vda. de Catalan v.
notice of a fact which he personally knows if it is not part of Catalan-Lee, 665 SCRA 487, 496, February 8, 2012). Thus, a
the evidence or not a fact generally known within its territorial party who wants to have a foreign law applied to a dispute or
jurisdiction (29 Am fur, Evidence, §35; Moore v. Dresden case has the burden of proving the foreign law (Del Socorro u.
Investment Co., 162 Wash, 289, 298 Pae. 465, 77 A.L.R. 1258 Van Wilsem, G.R. No. 193707, December 10, 2014).
cited in Jones, The law of Evidence in Civil Cases, Vol. 1, In general, and in the absence of statutory requirement
§132). to the contrary, the courts of the forum will not take judicial
notice of the law prevailing in another country 59 Am Jur,
Stage when judicial notice may be taken Evidence, §116). foreign laws must be alleged and proved. In
the absence of proof, the foreign law will be presumed to be
The court can take judicial notice of a fact during or after the same as the laws of the jurisdiction hearing the case under
trial pursuant to the procedure in Sec. 3 of Rule 129 of the the doctrine of processual presumption (Northwest Orient Air-
Rules of Court, as follows: lines u. Court ofA ppeals, 241 !SCRA 192).
1. Judicial notice may be taken during the trial of the for instance, the Court cannot determine whether the
case. The court, during the trial, may announce its intention termination of plaintiff is in accordance with Singaporean law
to take judicial notice of any matter. It may do so on its own because of the failure to prove the applicable law of Singapore.
initiative or on the request of any party and allow the parties Philippine courts do not take judicial notice of foreign laws.
In the absence of evidence of the law of the foreign country,
to be heard (lsec. 3, Rule 129, Rules of Court). Philippine laws should be applied under the doctrine of
2. Judicial notice may also be taken by the proper processual presumption (Laureano v. Court o[ Appeals, 324
court after the trial, and before judgment. Judicial notice !SCRA 414).
may also be taken on appeal. The proper court, on its own 2. It was, however, held that where the foreign law is
initiative or on request of a party, may take judicial notice of within the actual knowledge of the court, such as when the
any matter and allow the parties to be heard thereon if law is generally well-known, had been ruled upon in previous
such matter is decisive of a material issue in the case (Ibid.). cases before it, and none of the parties claim otherwise, the
court may take judicial notice of the foreign law (PCIB o.
Escolin, 56 SCRA 266).
Judicial notice of the law of nations
When the foreign law refers to the law of nations, said
law is subject to a mandatory judicial notice under Sec. 1 of
80 EVIDENCE adopts the generally-accepted principles of
(The Bar Lectures Series)
international law as part of the law of the land (Sec.
2, Art. II, Constitution o[ the Philippines). Being parts of
Rule 129. Under the Philippine Constitution, the Philippines the law of the land, they are, therefore, technically, in
 the nature of local laws and, hence, subject to a mandatory
CHAPTER III — JUDICIAL NOTICE AND JUDICIAL ADMISSIONS 81
judicial notice under Sec. 1 of Rule 129. A. Judicial Notice

Judicial notice of municipal ordinances (Bar 2005; 2011) authorized to take judicial notice of the contents of the records
1. Municipal trial courts should take judicial notice of of other cases, even when such cases have been tried or are
municipal ordinances in force in the municipality in which pending in the same court, and notwithstanding the fact
they sit (U.S. v. Blanco, 37 Phil. 126). that both cases may have been heard or are actually pending
before the same judge (Land Banh of the Philippines u. Yatco
2. A Court of First Instance (now RTC) should also Agricultural Enterprises, G.R. No.172551, January 15, 2014).
take judicial notice of municipal ordinances in force in the
2. The following are the exceptions to the rule in the
municipalities within their jurisdiction but only when so
immediately preceding paragraph: (a) when, in the absence of
required by law. For example, the charter of the City of
any objection and with the knowledge of the opposing party,
Manila requires all courts sitting therein to take judicial
the contents of said other case are clearly referred to by title
notice of all ordinances passed by the city council (Cit y o[
and number in a pending action and adopted or read into
Manila u. Garcia, 19 ISCRA 413). The RTC must take judicial
the record of the latter; or (b) when the original record of the
notice also of municipal ordinances in cases on appeal to it
other case or any part of it is actually withdrawn from the
from the inferior court in which the latter took judicial
archives at the court’s discretion upon the request, or with
notice of (U.!S.
the consent, of the parties, and admitted as part of the record
v. Hernandez, 31 Phil. 342; U.S. u. Blanco, supra; Moran,
of the pending case (Tabuena u. Court of Appeals, 196 ISCRA
Comments on the Rules of Court, 1980, p. 42).
650; People u. Mendoza, 204 SCRA 288; Jumamil v. C.a[é, 470
3. The Court of Appeals may take judicial notice of SCRA 475; Calamba Steel Center, Inc. v. Commissioner o[
municipal ordinances because nothing in the Rules prohibits Ieternal Revenue, 457 ISCRA 482).
it from taking cognizance of an ordinance which is capable
of unquestionable demonstration (Gallego v. People, 8 !SCRA Judicial notice of proprietary acts of government-owned
813). and controlled corporations
A management contract entered into by a government-
Judicial notice of a court’s own acts and records owned and controlled corporation like that involving the
! A court will take judicial notice of its own acts and Philippine Ports .Authority is not among the matters which
records in the same case(Republic v. Court ofAppeals, 277 the courts can take judicial notice of. It cannot be considered
ISCRA 633). an official act of the executive department because it was
entered into while performing a proprietary function (Asian
No judicial notice of records of other cases; exceptions Terminally, Inc. u. Malayan Insurance Co., Inc., 647 SCRA
111, 130-131, April 4, 2011).
1. While courts may take judicial notice of its own
acts and records in the same ease, as a rule, courts are
not Judicial notice of post office practices
That a registered letter when posted is immediately
stamped with the date of its receipt, indicating therein the
number of the registry, botn on the covering envelope
itself and on the receipt delivered to the person who delivered
the letter to the office is not a proper subject of judicial
notice.
82 EVIDENCE
TheBsrLxtcesSeñe)
This post office practice is not covered by any of the
instances under the Rules and is not of unquestionable CHAP’1ER lil — JUDICIAL NOTICE AND JUDICIAL ADMISSIONS 83
demonstration (Republic u. Court of Appeals, 107 SCRA 504). A. Judicial Notice

Judicial notice of banking practices Judicial notice of other matters

May judicial notice be taken of the practice of banks in 1. Courts cannot take judicial notice of the assessed
conducting background checks on borrowers and sureties? value. of a realty (Penta Pacific Realt y Corporation v. Ley
onstructioii and Deuelopmen.t Corporation, 741 ISC RA 426).
While a court is not mandated to take judicial notice of
this practice under Sec. 1 of Rule 129 of the Rules of Court, 2. It is a matter of judicial notice that an overseas
it, nevertheless, may do so under Sec. 2 of the same rule on worker bears a great degree of emotional strain while making
discretionary judicial notice. Sec. 2 of Rule 129 provided that a an effort to perform his work well (Fil-Pride Shipping
court may take judicial notice of “matters which are of public Company, Inc. u. Balasta, G.R. No. 193047, March 3, 2014;
knowledge, or ought to be known to judges because of hlagsa ysay Mitsui O!SK Marine, Inc. u. Bengson, 738 SCRA
their judicial functions.” Thus, the Court has taken judicial 184).
notice of the practices of banks and other financial 3. A court cannot take judicial notice of an administra-
institutions. Precisely, it has noted that it is their uniform tive regulation or of a statute that is not yet effective. The
practice, before approving a loan, to investigate, examine and reason is simple. A law which is still inexistent cannot be
assess would-be borrowers’ credit standing or real estate of common knowledge capable of ready and unquestionable
offered as security for the loan applied for (lsolidbanb demonstration (!State Prosecutors u. Muro, 236 SCRA 505).
Corporation v. Mindanao Ferroalloy Corporation, 464 !SCRA
409). 4. MTC and MCTC judges may act as notaries
public ex o[{icio in the notarization of documents connected
Judicial notice of the financial condition of the government only with the exercise of their official functions and duties
(Borre
Judicial notice could be taken of the fact that the u. Mayo, Adm. Matter 1765-CFI, 100 SCRA 314; Penera v.
government is and has for many years been financially Daloccinog, helm. Matter 2113-MW, 104 sCnA 1gs . They may
strapped, to the point that even the most essential
not, as notaries public ex o[ficio, undertake the preparation
services have suffered serious curtailment (La Bugal- and acknowledgment of private documents, contracts and
B’laan Tribal Association v. Ramon, 445 ISCRA 1). other acts of conveyances which bear no direct relation to the
performance of their functions as judges.
Judicial notice of presidential powers
However, the Court, taking judicial notice of the fact that
The trial court should take judicial notice of R.A. there are still municipalities which have neither lawyers nor
No. 6734, as implemented by E.O. No. 429, as legal basis of notaries public, ruled that MTC and MCTC judges assigned
the President’s power to reorganize the executive depart- to municipalities or circuits with no lawyers or notaries public
ment. The official acts of the legislative, executive and judicial may, in their capacities as notaries public ez officio, perform
departments are proper subjects of mandatory judicial notice any act within the competency of a regular notary public,
(DENR u. DENR Region 12 Employees, 409 SICRA 359). provided that: (1) all notarial fees charged be for the account
of the Government and turned over to the municipal treasurer
(Lapena, Mr. u. Marcos, 114 SIC RA 572); and (2) certification
be made in the notarized documents attesting to the lack
of any lawyer or notary public in such municipality or
circuit (Doughlas u. Lopez, 325 !SCRA 129).
EVIDENCE
(The Bar lectures Series)
 5. It must be emphasized that the circumstances of CHAPTER III — JUDICIAL NOTICE AND JUDICIAL ADMISSIONS 85
minority and relationship mentioned in the Revised Penal A. Judicial Notice
Code are special qualifying circumstances which must be
alleged in the information and duly proven by the prosecution. 8. The trial court properly took judicial notice that
Here, although the minority of the victim was properly Talamban, Cebu City is an urban area. Judicial notice is the
alleged in the information, there is insufficient evidence of cognizance of certain facts which judges may properly take
private complainant's age. The trial court erred when it took and act on without proof because they already know them. A
judicial notice of private complainant’s age to be fourteen. It municipal jurisdiction, whether designated as chartered city
should have required competent evidence, such as her birth or provincial capital, is considered as urban in its entirety
certificate, as proof of the victim’s actual age at the time of if it has a population density of at least 1,000 persons per
the commission of the offense (People v. Metin, 403 ISCRA 105 square kilometer. The City of Cebu was created on October 20,
20031). 1934 under Commonwealth Act 58. It is a highly urbanized
6. In this age of modern technology, the courts may city classified as entirely urban. Thus, all its barangays,
take judicial notice that business transactions may be made including Talamban, are considered urban (Chiongbian-Oliua
by individuals through teleconferencing. Teleconferencing is v. Republic, 522 SCRA 599).
interactive group communication (three or more people in two 9. It is ofjudicial notice that the judiciary is Reset with
or more locations) through an electronic medium. In general the gargantuan task in unclogging dockets, not to mention
terms, teleconferencing can bring people together under one the shortage of judges occupying positions in far-flung areas.
roof even though they are separated by hundreds of miles. Apart from presiding in the trial of cases, justices and judges
'this type of group communication may be used in a number are required to resolve the same within a prescribed period
of ways, and have three basic types: (1) video conferencing mandated by law (Government Slervice Insurance IS ystem v.
— television-like communication augmented with sound; (2)
Vallar, 536 ISCRA 620).
computer conferencing — printed communication through
keyboard terminals; and (3) audio-conferencing — verbal 10. Judicial notice can be taken of the fact that
communication min the telephone with optional capacity for testimonies during trial are much more exact and elaborate
telewriting or telecopying. Although judicial notice may be than those stated in sworn statements, usually being
taken of teleconferencing as a means of making business incomplete and inaccurate for a variety of reasons, at times
transactions, there is no judicial notice that one was conducted i because of partial and innocent suggestions or for want of
in a particular case (Expertravel and Tours, Inc. v. Court o[ specific inquiries (Estioca v. People, 556 SCRA 300). It is of
Appeals, 459 ISCRA 147). judicial notice that sworn statements are almost always
7. It can be judicially noticed that the scene of the incomplete, often inaccurate and generally inferior to the
rape is not always nor necessarily isolated or secluded, for testimony of witness in open court (People v. Sorila, Mr., 556
lust is no respecter of time or place. The offense of rape can SCRA 392).
and has been committed in places where people congregate,
11. The Supreme Court has taken judicial notice of
e.g., inside a house where there are occupants, a five (5)-meter
scientific findings that drug abuse can damage the mental
room with five (5) people inside, or even in the same room
faculties of the user — it is beyond question, therefore, that
which the
any employee under the influence of drugs cannot possibly
victim is sharing with the accused’s sister (People u. Tundag, continue doing his duties without posing a serious threat to
yq y HQq),
the 1i,ves and property of his co-workers and even his employer
(Bughaw, Jr. v. Treasure Island Industrial Corporation, 550
sc sot .
86 EVIDENCE 12. It is a matter of judicial
lThe Bar Lectures Series)
knowledge that persons have killed or
committed serious of'fenses for no reason at
 all (People u. beta, 549 SCRA 541). CHAPTER III — JUDICIAL NOTICE AND JUDICIAL ADMISSIONS 87
B. Judicial Admissions
13. If, counsel moves to another address without
informing the court of that change, such omission or neglect
in inexcusable and will not stay the finality of the decision. first, the same must be made by a party to the case.
The court cannot be expected to take judicial notice of the Admissions of a non-party do not fall within the definition of
new address of a lawyer who has moved, or ascertain, on its Sec. 4 of Rule 129.
own whether or not the counsel of record has been changed Second, the admission, to be judicial, must be made in the
and who the new counsel could possibly be or where he course of the proceedings in the some case. Thus, an admission
probably resides or holds office (Karen and wrist y Fishing made in another judicial proceeding will not be deemed a
Industry u. Court of Appeals, 536 ISCRA 243). judicial admission in another case where the admission was
14. Notwithstanding a person’s standing in the not made. Instead, it will be considered an extrajudicial
business community, the court cannot take judicial notice admission for purposes of the other proceeding where such
of said person’s home address or office after his departure admission is offered.
from the government as a cabinet member (Oarrucho u. It has been held that “... To be considered as a
Court o[ Appeals, 448 ISCRA 165). judicial admission, the same must be made in the same case
in which it is offered” (Programme Incorporated u. Province of
B. Judicial Admissions Bataan, 492 ISCRA 5E9; Camitan u. Fidelit y Insurance
Corporation, 551 SCRA 540).
1. Under Sec. 4 of Rule 129, judicial admissions are Third, Sec. 4 of Rule 125 does not require a particular
described and defined as follows: form for an admission. Such form is immaterial because the
provision recognizes either a verbal or written admission.
"SEC. 4. judicial admiss/ons. — An admission,
4. Tire stipulation of facts at the pre-trial of a case
verbal or written, made by a party In the course of
the proceedings in the same case, does not require constitutes judicial admissions. The veracity of judicial
proof. The admission may be contradicted only by admissions requires no further proof and may be controverted
showing that it was made through palpable mistake only upon a clear showing that the admissions were made
or that no such admission was made." through palpable mistake or that no admissions were made.
Thus, the admissions of parties during the pre-trial, as
2. Ajudicial admission requires no embodied in the pre-trial order, are binding and conclusive
proof(Commissioner of Internal Revenue v. Petron, 668 SCRA upon them (Cuenco v. Talisay Tourist lsports Complex, 569
735, 758, March 21, 2012). They are legally binding on the SCRA 616).
party making the admission (E!astern lshipping Eines v. BPI/
5. A party may make judicial admissions in (a) the
NHS Insurance Corporation, G.R. No.182864, January 12, 2015).
‹ 3. To be a judicial admission under Sec. 4 of Rule 129,
pleadings, (b) during trial, either by verbal or written mani-
festations or stipulations, or (c) in other stages of the judicial
‹ certain elements must be considered: proceedings (Manzanifn r. Waterflelds Industries Corpora-
tion, G.R. No.177484, July 18, 2014).

Admissions in pleadings and motions (Bar 2011)

1. Admissions made in the pleadings of a party are
deemed judicial admissions (Ching u. Court of Appeals, 331
gg EVIDENCE SICRA 16). The admission includes those made in the com- plaint
IThe Bar Lectures Pierres) (Delfîn v. Billones, 485 SICRA 38).
 2. The admissions made in a motion are judicial CHAPTER III — JUDICIAL NOTICE AND JUDICIAL ADMISSIONS 89
admissions which are binding on the party who made them. B. Judicial Admissions
Such party is precluded from denying the same unless there is
proof of palpable mistake (Herrera-Felix v. Court of Appeals, authorship of the same (BBB u. AAA, G.R. No.193225, Febru-
436 SCRA 87). ary 9, 2015).
3. An admission in the answer to the complaint takes 6. Admissions, however, made in drafts of pleadings
on the character of a judicial admission contemplated in Sec. 4, not yet filed are obviously not judicial admissions because
Rule 129 of the Rules of Court. A judicial admission conclusi- they are not parts of the records of the case.
vely binds the party making it. He cannot thereafter contradict
it. The exception is found only in those rare instances when Averments in pleadings which are not deemed admissions
the trial court, in the exercise of its discretion and because
of strong reasons to support its stand, may relieve a party There are averments in the pleadings which are not
from the consequences of his admission. A party cannot deemed admitted even if the adverse party fails to make a
subsequently take a position contrary to, or inconsistent with, specific denial of the same like immaterial allegations (!Sec. 11,
his pleadings (Heirs of Pedro Clemeña v. Heirs of Irene B. Rule 8, Rules of Court), conclusions, non-ultimate facts in the
Bien, 501 ISCRA 405). pleading (Slec. 1, Rule 8, Rules of Court) as well as the amount
of unliquidated damages (Sec. 11, Rule 8, Rules of Court).
4. An admission made in a pleading may be an actual
admission as when a party categorically admits a material
Implied admissions of allegations of usury
allegation made by the adverse party. An admission may,
likewise, be inferred from the failure to specifically deny Under Sec. 11 of Rule 8, if the complaint makes an
the material allegations in the other party’s pleadings. The allegation of usury to recover usurious interest, the defendant
rules of civil procedure, for example, require a defendant to must not only specifically deny the same but must, likewise,
specifically deny the material averments of the other party. do so under oath. failure to make the proper denial under
oath would involve an implied admission of the allegation of
“Material averments in the complaint, other than those
usury.
as to the amount of unliquidated damages, shall be deemed
admitted when not specifically denied ...” (!Sec. 11, Rule 8,
Implied admissions of actionable documents
Rules of Court).
1. When an action or defense is founded upon a written
5. In one case, the petitioner argued that the lower instrument, the genuineness and due execution of the same
courts erred in admitting certain text messages he sent des- instrument shall be deemed admitted unl•.ss the adverse
pite the failure of the offeror to authenticate such messages. party, under oath, specifically denies them and sets forth
The record, however, discloses his having admitted to what he claims to be the facts ésec. 8, Rule 8, Rules o[Court;
have sent the text messages. The Court ruled that, any Philippine National Bank u. Refrigeration Industries, Inc.,
question as to the admissibility of the messages as evidence 479 ISCRA 240).
is rendered moot and academic if the party raising such
issue admits the 2. The failure to deny the genuineness and due execu-
tion 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 (Acabal u. Acabal, 454 SCRA 555; Phil-
ippine National Banh v. Refrigeration Industries, Inc., 479
90 EVIDENCE ISCRA 240). He is, however, precluded from arguing that the document is
(The Bar Lectures Series)
a forgery because the genuineness of the docu- ment has been impliedly
admitted by his failure to deny the same under oath.
 CHAPTER III — JUDICIAL NO’FICE AND JUDICIAL ADMISSIONS 91
Admissions in the pre-trial of civil cases B. Judicial Admissions

1. One of the purposes of a pre-trial in a civil case is

for the court to consider the possibility of obtaining the accused and counsel, otherwise, they cannot be
stipulations or admissions of facts (lsec. $ fd1, Rule 18, Rules of used against the accused.”
Court). A pre-trial is mandatory (lsec. 2, Rule 18, Rules
o[ Court) and because it is mandatory, it is an important 2. Does the above rule (requiring an admission made
part of a civil proceeding. Admissions, therefore, in the pre- or entered into during the pre-trial conference to be reduced in
trial, as well as those made during the depositions, writing and signed by the accused and his counsel before the
interrogatories or requests for admission, are all deemed same may be used in evidence against the accused), equally
judicial admissions because they are made in the course of the apply to stipulation of facts made during the trial?
proceedings of the case. In resolving the question in the negative, the
2. Admissions made in a stipulation of facts by the Supreme Court ruled:
par- ties in the pre-trial are treated as judicial admissions “A stipulation of facts entered into by the prose-
(East- ern lshipping lines, Inc. v. BPI/ MIS Insurance cution and defense counsel during trial in open court
Corporation, G.fi. No. 182684, January 12, 2015). For instance, is automatically reduced in writing and contained in
petitioner’s admission as to the execution of the promissory the official transcript of proceedings had in court. The
note at the pre-trial sufficed to settle the question of the conformity of the accused in the form of his signature
genuineness of the signatures therein. The admission, having affixed thereto is unnecessary in view of the fact ... that
an attorney who is employed to manage a party's conduct
been made in a stipulation of facts at pre-trial by the parties,
of a lawsuit ... has prima /acte authority to make relevant
must be treated as a judicial admission (SCC Chemicals admissions by pleadings, by oral or written stipulation ...
Corporation u. Court of Appeals, 353 ISCRA 70). which, unless allowed to be withdrawn are conclusive. In
fact judicial admiSsiOns are frequently those of counsel
Admissions in the pre-trial of criminal cases (Bar 2008) or of the attorney of record, who is, for the purpose of the
trial, the agent of his client. When such admissions are
1. Although an admission made during the pre-trial
made, ... they bind the client ..." (People v. Hernaiidez,
is deemed to have been made in the course of a judicial pro-
206 iSCRA 25; lsilot v. De la Rosa, 543 ISCRA 533).
ceeding and is necessarily a judicial admission, an admission
made by the accused in the pre-trial of a criminal case is not Implied admissions in the modes of discovery (Bar 1984)
necessarily admissible against him. To be admissible, the con-
1. Admissions obtained through depositions, written
ditions set forth by Sec. 2 of Rule 118 must be complied with.
interrogatories or requests for admission are also considered
The pertinent rule provides:
judicial admissions (Programme Incorporated u. Province of
"SEC. 2. Pre-trial agreement. — All agreements Bataan, 492 SCRA 529). The filing of written interrogatories
or admissions made or entered during the pre-trial under Rule 25 and request for admission by adverse party
conference shall be reduced in writing and signed by under Rule 26, is mandatory in civil cases. Within one day
from the receipt of the complaint, aside from the preparation
of the required summons, the court shail issue an order
requiring the parties to avail of Rules 25 and 26 U fA] I JR.21,
A.M. No. 03-1-09-ISC, Jul y 13, 2004).
2. Under Sec. 1 of Rule 26 of the Rules of Court, a
party may, at any time after the issues have been joined,
file and
92 EVIDENCE serve upon any other party a written request for the admission by
(The Bar Lectures SeriesJ
the latter of the genuineness of any material and relevant
document described in and exhibited with the request. The CHAPTER III — JUDICIAL NOTICE AND JUDICIAL ADMISSIONS 93
request for admission may also be of the truth of any material B. Judicial Admissions
and relevant matter of fact set forth in the request.
The party to whom the request is directed must file and evidence (Torres u. Court. of“Appeals, 131 ISCRA 24; Ching v.
serve, upon the party requesting the admission, a sworn Court o[A ppeals, 331 SCRA 16).
statement either denying specifically the matters of which an
admission is requested or setting forth in detail the reasons Admissions in dismissed pleadings
why he cannot truthfully either admit or deny those matters. Admissions made in pleadings that have been dismissed
The sworn statement must be filed and served within the are meIely extrajudicial admissions (Seruicewide Specialists,
period designated in the request which shall not be less than Inc. v. Court of Appeals, 257 !SCRA 643).
fifteen (15) days after service thereof, or within such further
time as the court may allow on motion. If the sworn statement Sworn statement of a proposed state witness
required is not filed and served, each of the matters of which
an admission is requested shall be deemed admitted (Sec. 2, If the motion to discharge an accused as a state witness
Rule 26, Rules of Court). is denied, his sworn statement, submitted to support the
motion, shall be inadmissible in evidence (!Sec. 17, Rule 119,
3. Under Sec. 3 of Rule 26, any admission made Rules o[Court).
pursuant to the request for admission is for the purpose of the
pending action only. The admission shall not be considered as Admissions by counsel
one for any other purpose nor may the same be used against
him in any other proceeding. Admissions by a counsel are generally conclusive upon
a client (De Carcia u. Court o[Appeals, 37 ISCRA 129). Even
Admissions in amended pleadings (Bar 2011) the negligence of counsel binds the client (Sarroga v. Banco
Filipino !Savings & Mortgage Banh, 393 !SCRA 566).
When a pleading is amended, the amended pleading
This rule is not, however, without exception. In cases
supersedes the pleading that it amends and the admissions in
where reckless or gross negligence of counsel deprives the
the superseded pleading may be received in evidence against
client of due process of law, or when its application will result
the pleader (lsec. 8, Rule 10, Rules of Court).
in outright deprivation of the client’s liberty or property, or
when the interests of justice so require, relief is accorded the
Nature of admissions in superseded pleadings client who suffered by reason of the lawyer’s gross or palpable
It has been held that the admissions in a superseded mistake or negligence (Slalazar u. Court ofAppeals, 376 SCRA
pleading are to be considered as extrajudicial admissions 459; Silot u. De la Rosa, 543 SCRA 533).
which must be proven. The Supreme Court declared that
pleadings that have been amended disappear from the re- Effect of judicial admissions
cord, lose their status as pleadings, and cease to be judicial 1. Judicial admissions are legally binding on the
admissions, and to be utilized as extrajudicial admissions, party making the admissions (Noynay u. Citihomes Builder
they must, in order to have such effect, be formally offered in aitd Development, Inc., 735 !SCRA 708). R is an established
principle that judicial admissions cannot be contradicted by
the admitter who is the party himself and binds the
person who makes the same, absent army showing that this was
made through palpable mistake, no amount of rationalization
can offset it (Philippine Charter Insurance Corporation v.
Central
94 EVIDENCE
(The Bar Lectures Series)
Colleges o[the Philippines, 666 SCRA 540, 553, February
 22, CHAPTER III — JUDICIAL NOTICE AND JUDICIAL ADMISSIONS 95
2012; Do la Peña u. Auila, 665 SCRA 553, 567, February 8, B. Judicial Admissions
2012; Commissioner of Internal Revenue v. Manila Electric
Company f3fJRALCOJ, G.fi. No. 181459, June 9, 2014). presented (S!antos v. Lumbao, 519 SCRA 408 citing Atillo
A party who judicially admits a fact cannot later chal- v. Court of’Appeals, 266 ISCRA 596; Philippine Health-Care
lenge that fact, as judicial admissions are a waiver of proof; Providers, Inc. v. Estrada/ Cara Health !Services, 542 ISCRA
production of evidence is dispensed with. A judicial admis- 616) because said admissions may not necessarily prevail
over documentary evidence (Asean Pacific Planners v. Cit y o[
sion removes the admitted fact from the field of controversy.
Consequently, an admission made in the pleadings cannot Urdaneta, 566 SCRA 219).
be controverted by the party making such admission, and is 4. Specifically, under Sec. 4, Rule 129 of the Rules of
conclusive to such party, and all proofs to the contrary or in- Court, the following are the effects ofjudicial admissions:
consistent therewith should be ignored, whether objection is
interposed or not. The allegations, statements or admissions (a) They do not require proof; and
contained in a pleading are conclusive as against the pleader. (b) They cannot be contradicted because they are
A party cannot subsequently take a position contrary to or conclusive upon the party making it.
inconsistent with what was pleaded (Eastern lshipping Lines,
Inc. r. BPI/MS Insurance Corporation, G.fi. No. 182864, How judicial admissions may be contradicted
January 12, 2015). 1. Sec. 4 of Rule 129 provides for either of two ways to
The reason for the above rulings is found under the contradict a judicial admission, namely:
doctrine of estoppel. Under the doctrine, an admission or (a) by showing that the admission was made
representation is rendered conclusive upon the person through palpable mistake, or
making it, and cannot be denied or disproved as against the
person relying thereon (Manzanilla u. Waterfields Industrial (b) by showing that no sucfi admission was made.
Corporation, G.fi. No. 177484, July 18, 2014). The mistake that would relieve a party from the
2. The trial court may reject evidence that a party effects of his admission is not any mistake. It must be one
adduces to contradict a judicial admission he made in that is “palpable,” a mistake that is “clear to the mind or
his pleading aince such admission is conclusive as to him plain to see” (New Oxford American Dictionary, 2001 Ed., p.
(Equitable Cardnetworb, Inc. v. Capistrano, 665 ISCRA 454, 1232). It is a mistake that is “readily perceived by the senses
465, February 8, 2012). The judicial admission removes an or the mind” (Oxford English Reference, ›'Second Edition,
admitted fact from the field of controversy (Josefa u. Manila Revised, 2002,
Electric Company, G.7t. No. 182705, July 18, 2014). p. 1049).
3. No evidence is needed to prove a judicial admission 2. A party may also argue that he made “no such ad-
IlliSsion.” This argument may be invoked when the statement
and it cannot be contradicted unless it is shown to have been of a party is taken out of context or that his statement was
made through palpable mistake or that no such admission made not in the sense it is made to appear by the other party
was made (Arroyo, Jr. u. Taduran, 421 !SCRA 423) but despite
Here, the party upon whom the admission is imputed does
the presence ofjudicial admissions in a party’s pleading, the
not deny making a statement. What he denies is the
trial court is still given leeway to consider other evidence
meaning attached to his statement, a meaning made to appear by
the adverse party as an admission.
The Committee on the Revision of the Rules of Court
explained the second exception in this wise:
96 EWDENCE “... if a party invokes an ‘admission’ by an
(TheBarLeduesSeñe) adverse party, but cites the admission ‘out of
context,’ then the one making the ‘admission' may
 show that he made no ‘such’ admission, or that his
admission was taken out of
cozttext.
‘... that the party can also show that he made no
‘such admission,’ i.e., not in the sense that the admission
is made to appear.
Chapter IV
That is the reason for the modifier ‘such’ because if the
rule simply states that the admission may be contradicted OBJECT AND DOCUMENTARY EVIDENCE
by showing that ‘no admission was made,’ the rule would
not really be providing for a contradiction of the admission
but just a denial” (Atiffo o. Court of Appeals, 266 !SCRA A. Object Evidence
596; lsicam u. Jorge, 529 SCRA 443). (Rule 130)

Nature of object evidence

— OOO —
1. Object or real evidence, as defined by the Rules of
Court, refers to evidence that is addressed to the senses of the
court.

“SECTION 1. Ob/eel as evidence. — Objects as

evidence are those addressed to the senses of the court.
When an object is relevant to the fact in issue, it may be
exhibited to, examined or viewed by the court.”

2. Object evidence does not refer to the perception

of the witness and a recollection of that perception. It is
not a reconstruction of past events as related by a witness on
the stand. Real or object evidence is not a verbal
description of something. It is not a replica or a mere
representation of something. Object or real evidence is
exactly what its name suggests. It is the real thing itself like
the knife used to slash the victim’s throat, the ring actually
stolen by the accused, the bullet extracted from the victim’s
chest, the mangled fender of a truck that was rear-ended
by a bulldozer, or the blood splattered on the wall of the
roorr where the victim was found. It consists of tangible things
like a gun, a broken glass, a piece of bloody clothing or the
defective ladder that caused the fall of the plaintiff.
Object or real evidence appeals directly to the senses of
the court. Instead of relying on the recollection of the witness,
97
98 ÉVIDENCE an object evidence will enable the court to have its own first- hand
(The Bar Lectures Series)
perception of the evidence. If the court wants to know whether or
not the bolo used in the crime is long or short, big or small, sharp
or blunted, the object evidence would be the bolo itself.
CHAPTER IV — OBJECT AND DOCUMENTARY ÉVIDENCE 99
3. Object evidence could have a very persuasive effect A. Object Evidence (Rule 130)
on the part of the court. A display of one’s injury is very
powerful. No one can dispute a missing arm or a severed leg. composition, the court may listen to the composition involved.
No other evidence is necessary to establish the injury. The court may not only look at but also touch the blade of
a knife to know whether or not it could have produced the
Even a human being may be a form of real evidence. incision characteristic of sharp blades.
Where the racial characteristics of a party are at issue, the
court may, at its discretion, view the person concerned. In a 6. Physical evidence is a mute but eloquent manifes-
tation of truth, and it ranks high in our hierarchy of trustwor-
criminal case where the complaining witness avers that he
thy evidence — where the physical evidence runs counter to
was stabbed in the arm by the accused, the court may inspect
the testimonial evidence, the physical evidence should prevail
his arm. The absence of any scar in the spot where the injury
(Banb o[the Philippine Islands v. Reyes, 544 ISCRA 206).
was allegedly inflicted may convince the court that the wit-
ness was untruthful in his testimony. Requisites for admissibility of object evidence
The court may, likewise, allow the exhibition of the 1. The admissibility of object or real evidence, like
weapon allegedly used in attacking the victim, the bloody any other evidence, requires that the object be both relevant
garment of the victim or the personal effect, like a glove, left and competent. To be relevant, the evidence must have a
by the supposed assailant in the scene of the crime. Relationship to the fact in issue. To be competent, it must
4. Object evidence could provide a dramatic end to not be excluded by the rules or by law. The legal basis of this
a case. In one sensational American double murder case requirement is Sec. 3 of RuIe 128: “Evidence is admissible
committed in 1994 involving the football great, O.J. Simpson, when it is relevant to the issue and is not excluded by the lan
the court allowed the prosecution to have the accused or thèse rules.”
Simpson try on a glove which the prosecution claimed to have 2. For the object not to be excluded by the Rules, the
been left same must pass the test of oo fiñeritico fion. The threshold
foundation for real evidence is its being authenticated. Is
it the real thing? In other words, is it the actual object it is
claimed to be?
To authenticate the ob,ject, it must be shown that it is
the very thing that is either the subjeet matter of the lawsuit
by the murderer in the crime scene. After a few breathless or the very one involved to prove an issue in the case. If
moments, gasps from the audience broke the silence in the the proseeution wants the admission of the gun used in the
courtroom when the glove did not fit the hand of the accused. murder, it must prove that it was the very same gun used by
During the oral arguments before the jury, the defense the aeeused. Another gun, although identical with the actual
repeatedly chanted an argument that proved powerful and gun in all respects, would not satisfy the requirements of
effective: ‘I[it doesn’t fit, you must acquire" O.J. Simpson was authentication.
acquitted.
3. To authenticate the object, there must be someone
5. Object evidence is not visual alone. It covers the who should identify the object to be the actual thing involved
entire range of human senses: hearing, taste, smell, and in the litigation. This someone is the. witnes.«. An object
touch. In a case where the issue is infringement of a musical evidence, being inaniriiate, cannot speak for itself. It cannot

100 EVIDENCE ancient document (a private document that is more than thirty years
(The Bar Lectures Series)
old produced from a custody in whiCh Ît would naturally be found if
genuine and is unblemished by any alterations or circumstances of
present itself to the court as an exhibit. Even a supposedly suspicion) requires a witness to testify on the characteristics of the
document even if it no longer requires authentication (!See ! CHAPTER IV —- OBJECT AND DOCUMENTARY EVIDENCE 101
Sec. 21, RuIe 132, putes o/ Courf). A. Object Evidence (RuIe 130)
4. It must be emphasized that every evidence, whether
it be a document or an object, needs a witness. Even object Cutting through all the legal foliage, the Court finds the
evidence requises statements from a witness to make its way following as the basic requisites for the admissibility of an
into the realm of admissible evidence. In short, testimonial object or real evidence:
evidence provides the foundation for all types of evidence.
This is a very basic rule. In layman’s term, the evidence must (a) The evidence must be relevant,
be “sponsored” by a witness. To authenticate the object, the (b) The evidence must be authenticated;
witness must have capacity to identify the object as the very
thing involved in the litigation. Better still, he must have (c) The authentication must be made by a eompe-
actual and personal knowledge of the exhibit he is presenting tent witness; and
for admission. This is because “a witness can only testify to (d) The object must be formally offered in evidence.
those facts which he knows of his personal knowledge; that is,
The authentication of the object by a competent witness
which are derived from his own perception ...” Sec. 36, Rule is to comply with the element of competence as an essential
130, Jules of Court).
5. An object evidence is not taken in isolation. It iS ingredient of admissibility. After its authentication, the object
weighed in relation to the testimony of a witness. Also, in needs to be of'fered in evidence at the appropriate time.
giving credence to a testimony, the court takes into considera- As a rule, the formal offer of evidence is particularly a
tion the physical evidence. If the testimony bears a striking vital act before the admission of evidence because the court
similarity with the physical evidence, the testimony becomes “shall consider no evidence which has not been formally
worthy of belief(People v. Larraiiaga, 463 ISCRA 652)• offered” (Sec. 34, Rule 132, Rules of Court).
6. When the truth or falsity of a fact in issue may be
The requirements of relevance by the testimony of a
explained by the presentation of an object, the same may be
competent witness rarely pose a problem. Relevance is a
eahibited before the court. If the witness wants to show the
matter of reasoning and the court will draw an inference
condition of a particular article or substance, his testimony
of the relevancy of the evidence from the issues of the
will be enhanced by the presentation of said article or
case. Also, almost no party would offer a witness who has
substance. More often than not, the presentation of object
no personal knowledge of the object to be authenticated.
evidence supplements the credibility of the testimony of a
The problem commonly lies in showing that the object
witness when the object has a clear relevance to the issue of
the case. sought to be admitted is, in fact, the real thing and not
a mere substitute or representation of the real thing. This
problem of
„ authentication is commonly called “laying the foundation” for
the evidence.
7. An object evidence, when offered in accordance with
the requisites for its admissibility, becomes evidence of the
highest order and speaks more eloquently than witnesses put
together. The presence of the victim’s ravished body in a deep
ravine with handcuffs on her wrist is a physical evidence that
bolsters the testimony of the witness (People v. Larrafiaga,
463 ISCRA 652). In contrast, in another ease, the absence
of external ir.juries in the body of the alleged victim belies
102 EVDENCE
(The Bar Lecturer Seriea) her claim that she was dragged to the bushes by the
 accused CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 103
(People v. Ganduma, 160 ISCRA 799). A. Object Evidence (Rule 130)

Object evidence and the right against self-incrlmination (Bar when it is properly authenticated by a witness who is familiar
2010) with the scene or person portrayed, and who testifies that the
'Phe right against self-incrimination cannot be invoked photograph faithfully represents what it depicts.
against object evidence. Some courts insist on requiring the photographer to
In one early case, the accused-appellant argued that the testify but this view has been eroded by the tendency of
admission as evidence of the victim’s wallet, together with its modern courts to admit as a witness one who has familiarity
with the scene portrayed (lsison u. People, 250 ISCRA 58, 75).
contents, air., (1) his residence certificate; (2) his identif.cation
card; and (3) bunch of keys, violated his right against self- Under the Rules on Electronic Evidence, photographic
incrimination. evidence of events, acts or transactions shall be admissible in
evidence provided that:
The Court held that the right against self-incrimination, ;
guaranteed under the fundamental law, had no application (a) It shall be presented, displayed and shown to
in this case because no testimonial compulsion was involved the court; and
(People v. Malimit, 26d SCRA 167). ,’ (b) It shall be identified, explained or authenticated
by either:
Demonstrative evidence
(i) The person who made the recording; or
1. Demonstrative evidence is not the actual thing but
it is referred to as "demonstrative" because it represents or (ii) Some other person competent to testify
demonstrates the real thing. It is not strictly "real" evidence on the accuracy thereof (!Sec. 1, Rule 11, Rules on
because it is not the very thing involved in the case. A map, a Electronic Evidence).
diagram, a photograph, and a model, fall under this category.
The admissibility of photographs is within the discretion
This category of evidence is not separately defined in the of the trial court, and its ruling in this respect will not be
Rules of Court and appears to have been incorporated under interfered with, except upon a clear showing of an abuse of
the general term "object" evidence. discretion. In determining whether photographs should be
2. The admissibility of this type of evidence largely admitted, a trial judge must determine whether they are
depends on laying the proper foundation for the evidence. relevant, and whether a proper foundation has been laid (29A
The rule boils down to one basic question: Does the evidence Am Jur Evidence, 2d §960).
sufficiently and accurately represent the object it seeks to
demonstrate or represent? If it does, the evidence would be Example:
admissible.
Q: Where do you work Mr. Witness?
3. Photographs — Photographs of persons, things and
places, when instructive to the understanding of the case, will A: I work in National Bank of the Philippines, Sir.
be admitted in evidence. for a still photograph to be admitted, Q: Where is the bank where you work located?
the same must be relevant and competent. It is competent A It is located in the corner of Guess and Rado
Sts. in St. Jude Village.
Q: How long have you worked in that bank?
104 For the past ten years, Sir.
EVIDENCE
(The Bar Lecturer Series)
I am showing you a photograph. Could you
identify this photograph?
A: Of picture of the corner of Guess and Rado Sts. CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 105
co in St. Jude Village. A. Object Evidence (Rule 130)
ur How do you recognize it?
se person who actually made the recording. Under the Rules on
A: I’ve worked in this area for the past ten years
, Electronic Evidence, audio, photographic and video evidence
Si
and I have seen this corner almost everyday. of events, acts or transactions shall be admissible provided
r. it shall be shown, presented or displayed to the court and
T shall be identified, explained or authenticated by the person
hi who made the recording or by some other person competent
s to testify on the accuracy thereof. Hence, authentication can
is be done by some other person other than by the person who
a made the recording or took the photograph as long as he can
testify as to its accuracy (!Sec. 1, Rule 11, Rules on Electronic
Q: How accurate is this photograph? Evidence).
A: It is an exact depiction of the place, Sir. 5. Diagrams, models and maps — These types of
demonstrative evidence are presented to indicate the relative
4. Motion pictures and recordings — The rules that locations or positions of objects and persons. Aside from the
apply to photographs generally apply to motion pictures requirement of relevance, a diagram, model or map must be
and recordings. Because of the possibility of tampering identified by a witness who is familiar with what the evidence
and distortion, courts have traditionally required a stricter depicts, and that the same is an accurate representation of
standard for laying the foundation for motion pictures and the scene it portrays. Like any other exhibit, the touchstone
tape recordings. Courts then would require detailed testimony for admissibility of maps, diagrams and models is the ability
as to the qualifications of the operator, a detailed description of the witness to authenticate the exhibit. Some courts may
of the equipment used, and the conditions under which the require that the model, diagram or map be made or drawn to
photograph and the recordings were taken. scale. If not drawn to scale, the court must be So informed. The
Modern courts, however, have taken judicial notice of question as to the sufficiency of the authentication is a matter
how motion cameras and tape recorders work and their ofjudicial discretion (29A Am Jur 2d, Evidence, §§989, 990).
general reliability and prevalent use. Court practices fi. X-ray pictures — X-ray pictures, also referred
regarding motion pictures and tape recordings have been
to as “skiagraphs” or “radiographs,” are admissible when
liberalized and the testimony of a person present when the
shown to have been made under circumstances as to assure
activities of taking the picture and recording have been held
their accuracy and relevancy to a material issue in the case.
sufficient. He must testify that the motion picture accurately
Authenticated x-rays are normally involved in personal injury
and faithfully represents the place or person it purports to
portray. cases to show the location and extent of the injury. X-rays
are properly authenticated by the x-ray technician or the
In the case of tape recordings, the witness should physician who testifies to the competence..of the person taking
identify the speakers, state how he recognizes their voiced it, the procedure taken and that the x-ray picture shown is
and that the recording was not taken in violation of the Anti that of the person, the anatomical part or the object involved
Wire-Tapping Law (R.A. 4200). in the case (T.C. Young Construction Co. v. Brown [KyJ 372
The modern approach to motion pictures and recordings SW2d 670, 99 ALR3d 288). Because the science of taking x-ray
is reflected in local rules. Under the Rules on Electronic pictures is now well-founded and generally recognized, almost
Evidence, the authentication process need not involve the
106 EVIDENCE
(The Bar Lectures Seriee)
all courts no longer require testimony as to the
reliability of an x-ray machine (29A Am Jur 2d, Euidente, CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 107
§§977). A. Object Evidence (Rule 130)

7. lscientiflc tests, demonstrations and experiments

— The issue of refusing or granting requests for demonstra- should be made in the presence of the parties or at least with
previous notice to them. It is error for the judge, for example,
' tions, experiments and tests in open court is a matter subject to go alone to the land in question, or to the place where the
to judicial discretion (Cleary, McCormick On Evidence, 3rd crime was committed and take a view without the previous
Ed., 676 citing!SpaaA v. Chicago & Northu estern Railu ay Co., knowledge of the parties. Such inspection or view is part of
231 F'.2d 27$ f7th Cir. 1956]). the trial since evidence is thereby being received (Moran,
Comments on the Rules of Court, Vol. 5, pp. 78-79, 1980).
8. Text messages — Text messages are to be proved
by the testimony of a person who was a party to the same
Categories of object evidence
or has personal knowledge of them (People v. Enojas, G.R.
No. 204894, Mercy 10, 2014). 'this rule applies to telephone 1. For purposes of authentication of an object or for
conversations and other ephemeral electronic communication. laying the foundation for the exhibit, object evidence may be
In the absence or iinavailability of the required witnesses, classified into the following (29A Am Jur, §§945-947):
other competent evidence may be admitted (Sec. 2, Rule 11,
(a) Objects that have readily identifiable marks
Rules on Electronic Evidence). (unique objects);
View of an object or scene (b) Objects that are made readily identifiable
(objects made unique); and
1. Under Sec. 1 of Rule 130, when an object is relevant
to the fact in issue, it may be exhibited to, examined or viewed (c) Objects with no identifying marks (non-unique
by the court. In this sense, object evidence has been referred objects).
to as “autoptic” evidence. 2. If the object has a unique characteristic, like the
2. Courts have recognized that there are times when serial number of a caliber .45 pistol, it becomes readily
a party cannot bring an object to the court for viewing in the identifiable. So long as the witness testifies that the object
courtroom. In such a situation, the court may take a view of has a unique characteristic, he saw the object on the relevant
an object. The court may make an ocular inspection of a date, remembers its characteristics, asserts that the object
contested land to resolve questions of fact raised by the shown to him in court is the same or substantially in the
parties. It may inspect a crime scene to clarify itself with same condition as when he first saw it and alleges that those
certain matters raised by the litigants. It may view the characteristics are those of the object he is identifying in court,
conditions of vehicles involved in a civil case for damages. the authentication requirement is satisfied.
Going out of the courtroom to observe places and objects is 3. If the object does not have a unique
commonly termed as “view.” characteristic, like the typical kitchen knife that has no
The “view” is expressly authorized by Sec. 1 of Rule 130 serial number, is commonplace, and identical with a lot of
but even without this express provision, it in well-recognized knives of the same kind and quality, the witness may be
that the court has an inherent power to order a view when able to identify the same in court if he claims that he made
there is a need to do so (lsee lsec. 5, Rule 135, Rules of the thing acquire a unique characf.eristic like placing
Court). identifying marks on it. All he has to do in court is to testify
as to what he did to make the object identifiable and that the
object presented to him for
3. The inspection may be made inside or outside the (, identification in court has the characteristics he made on the
courtroom. An inspection or view outside the courtroom object.
108 EVIDENCE Chain of custody in general
(The Bar Lectures Seriea)
1. The third category of object evidence
refers to those which are not readily identifiable, were not CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 109
made identifiable or cannot be made identifiable like drops of A. Object Evidence (Rule 130)
blood or oil, drugs in powder form, fiber, grains of sand and
similar objects. Under this situation, the proponent of the Q: How are you able to recognize this as the very
evidence must establish a c/toin o[custody. same gun?
2. The purpose of establishing a chain of custody is to It has the same characteristics as the gun I
ensure that the integrity and evidentiary value of the seized found in the crime scene. The initials “P.M.”
items are preserved, so much so that unnecessary doubts as to are still here. Besides, it has the same serial
the identity of the evidence are removed (People v. Langcua, number in the barrel as the one I recorded in
G.ft. No. 190343, February 6, 2013). my notebook and as I wrote in my official report.
Mlustrations: (Counsel now proceeds to have the exhibit
appropriately marked.)
A. The fact situation is a criminal case. The police
investigator is testifying that he found a gun in the crime B. If the obyeet found by the police investigator
scene, was a knife that has no distinguishing features, the
examination would go something like the following:
Officer, you said you found a gun on the bed
of the victim in the morning of September Q: Officer, you said you saw a knife in the victim’s
15, 2012 at around 9:00 A.M.? bedroom?
A: I did, Sir.
A: I did, Sir.
Q.’ Would you please describe the knife you saw?
Would you
A.' It was of the kind you normally buy in a wet
please describe the weapon you law?
market. It had a brown wooden handle and a
A: It was a .45ACP, Colt Gold Cup Series, a five- four-inch non-stainless blade.
inch barrel, blue finish, a black handle with What did you do with tfie knife you found?
wrap around grooves, and with the initials
‘P.M.” on the lower left hand side of its handle. A: With my own Swiss knife, I scratched my
initials on the handle of the knife then
(After other questions) Would you be able to placed it inside the evidence plastic bag I
recognize the gun if shown to you right now? always carry with me.
A: I would be able to recognize it, Sir. (The witness is then shown a knife and
I would like to show you this gun. Will you asked to identify it.) The witness answers:
please examine it? (Witness examines the gun.) A: It is the same knife, Sir. I can see the initials I
What relationship does this gun have to the made. You can see them yourself.
gun you said you found on the victim’s bed?
(Counsel seeks permission of the court for
It is the very same gun, Sir. the marking of the knife as exhibit.)
C. If the object is not readily identifiable, a chain
of custody must be shown. To avoid gaps in the chain
of custody and prevent further evidentiary objections,
110 EWDENCE called to the stand. Assume that the fact situation is a murder
(The Bar lectures 8ezies)
case committed allegedly by poisoning the victim. During a
judicially authorized search of the house of the accused, the
ideally, all the persons who handled the object should be
 police found five grams of what appears to be a toxic CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 111
substance in powder form inside a plastic bag kept in the A. Object Evidence (Rule 130)
closet of the accused. The police investigator who found
the substance is called first to testify. The following sealing the portion of the bag which he had opened, he wrote
would be the general thrust of the examination in the thereon the appropriate markings and put the evidence in
absence of a law or rule providing the contrary: a locker safe. The chemist would testify, too, that, from the
time he kept the evidence, it was never handled by anyone
Q: Officer, aiter finding the substance you said you else and that, as it is shown in court, there appear no signs of
saw in the closet of the accused, what did you tampering.
do?
It has been held, however, that the forensic chemist, if
I placed the substance inside a plastic evidence a public officer, need not testify to identify and describe how
bag then sealed it with a sealer which our office the report was made. This is because the chemistry report
provides for the purpose. The evidence bag has is a public document. As such, “it is admissible in
in its opening a special non-detachable paper evidence without further proof of its due execution and
where you can write on after sealing the bag. I genuineness”
wrote my name on it, the date, the name of the (Kummer o. People, G.R. No. 174461, September 11, 2013).
accused, his address, and the time I found it.
Chain of custody in drug cases (Sec. 21 of the Comprehen-
What did you do with it after that? sive .Drugs Act of 2002) (Bar 2011)
Following our internal procedures, I logged the 1. In the Philippines, the confiscation and seizure
evidence in our evidence log book and handed of drugs require a stringent specific procedure to establish
it to the chemist in our crime laboratory. He the chain of custody. The required procedure is embodied
gave me a receipt for it. in Sec. 21, paragraph 1, Art. II of R.A. 9165, as amended by
In what condition was the evidence bag when R.A. 10640.
you handed it to the chemist? 2. The Court recognizes that a unique characteristic of
narcotic substances is that they are not readily identifiable;
hence, in authenticating the same, a more stringent standard
than that applied to readily-identifiable objects is necessary.
This exacting standard entails a chain of custody of the item
with sufficient completeness to re.nder it iiriprobable for the
original item to be exchanged with another, contaminated or
tampered with (!See Mallillin v. People, 553 SCRA 619). In
A: It was sealed, Sir. drug cases, the identity of the dangerous drugs should be
established beyond doubt by showing that the items offered
Ideally, the next witness would be the chemist who in court were the same substance involved in the buy-bust
would testify to having personally received the evidence bag operation. The chain of custody performs the function of
described by the investigator. The chemist would further ensuring that unnecessary doubts concernin g the identity of
testify having removed the powdery substance or a portion the evidence (See People v. Dahil, G.R. No. 212196, JanuaT y
of it from the bag for examination by making an opening in 12, 2015)
the bag without disturbing the previously dealed portion of 3. Sec. 1(b) of the Dangerous Drugs Board Regulation
the bag, that after putting back the remainder in the bag and No. 1, Series of 2002 (in relation to Sec. 81fb) of R.A. 9165),
llZ EVIDENCE which implements R.A. 9165, defines “chain of custody”
(The Bar Lectures Series)
as follows:
 “b. ‘Chain of Custody’ means the duly recorded CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 113
authorized movements and custody of seized drugs or A. Object Evidence (Rule 130)
controlled chemicals or plant sources of dangerous drugs
or laboratory equipment of each stage, from the time of
seizure/confiscation to receipt in the forensic laboratory to condition at the time of t.esting or trial is critical, or when
safekeeping to presentation in court for destruction. Such a witness has failed to observe its uniqueness. The same
record of movements and custody of seized item shall standard likewise obtains in case the evidence iS suscep-
include the identity and signature of the person who held tible to alteration, tampering, contamination. and even
temporary custody of the seized item, the date and time substitution and exchange. In other words, the exhibit’s
level of susceptibility to fungibility, alteration or tamper-
when such transfer of custody were made in the course
ing — without regard to whether the same is advertent
of safekeeping and use in court as evidence, and the final
or otherwise not — dictates the level of StrictneSs in the
disposition” (People a. Obmiranis, 574 SCRA 140).
application of the chain of custody rule” (Also cited in Fa-
yardo o. People, 677 !SCRA 541, 549, Jul y 25, 2012).
4. In Mallillin u. People, 553 SICRA 619, the Court had
the occasion to expound on the chain of custody rule, thus:
5. The procedure to be followed in the custody and
“As a method of authenticating evidence, the chain handling of seized dangerous drugs is provided for in Sec. 21,
of custody rule requires that the admission of an exhibit Art. II of R.A. 9165, as amended by R.A. 106a.0, thus:
be preceded by evidence sufficient to support a finding
(a) “The apprehending team having initial custody
that the matter in question ig what the proponent claims
it to be. It would include testimony about every link in and control of the dangerous drugs, controlled precursors
the chain, from the moment the item was picked up to and essential chemicals, instruments/paraphernalia
the time it is offered into evidence, in such a way that and/or laboratory equipment shall, immediately after
every person who touched the exhibit would describe seizure and confiscation, conduct a physical inventory
how and from whom it was received, where it was and of the seized items and photograph the same in the
what happened to it while in the witness’ possession, the presence of the accused or the person/s from whom
condition in which it was received and the condition in such items were confiscated and/or seized, or his/her
which it was delivered to the next link in the chain. These representative or counsel, with an elected public official
witnesses would then describe the precautions taken to and a representative of the National Prosecution Service
ensure that there had been no change in the condition of or the media who shall be required to sign the copies
the item and no opportunity for someone not in the chain of the inventory and be given a copy thereof: Provided,
to have possession of the same (See also People u. Pooada,
That the physical inventory and photograph shall be
667 SCRA 790, 808, March 12, 2012; Zafra u. People, 671
S!CRA 396, 406, April 25, 2012). conducted at the place where the search warrant is
served; or at the nearest police station or at the
While testimony about a perfect chain is not always
nearest office of the apprehending officer/team,
the standard because it is almost always impossible to
obtain an unbroken chain of custody, it becomes indis- whichever is practicable, in case of warraniless
pensable and essential when the item of real evidence is seizures: Provided, finall y, That noncompliance with these
not distinctive and is not readily identifiable, or when its requirements under justifiable grounds, as long as the
integrity and the evidentiary value of the seized items
are properly preserved by the apprehending
officer/team, shall riot render void and invalid such
seizures and custody over said items.”
Note that the law requires the apprehending
team having initial custody of the drugs to conduct a
physical irtUentory of the drugs as well as to photograph
the same.
114 EVIDENCE (The Bar Lectures Series)
 CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 115
Such acts are to be done immediately and in the presence A. Object Evidence (Rule 130)
of the persons enumerated in the law as witnesses. Such
persons are required to sign the copies of the in question, the Secretary of Justice shall appoint a member
inventory and shall each be given a copy of the same. of the public attorney’s office to represent the former (Dec.
21[6J, R.A. 9‘165; !See also Valleno v. People, G.R. No. 192050,
(b) Within twenty-four (24) hours upon the confis-
January 9, 2013).
cation or seizure of the drugs, the same shall be submit-
ted to the PDEA Forensic Laboratory for a qualitative
and quantitative examination (lsec. 21 2J, RA. 9165). Links in the chain of custody

(c) The forensic laboratory examiner is required 1. Since it is called a chain, there must be links to
to issue within twenty-four (24) hours after the the chain. The links are the people who actually handled
receipt of the drugs, a certification of the forensic or had custody of the object. Each of the links in the chain must
laboratory examination results which shall be done show how he received the object, how he handled it to prevent
under oath (lsec. 21[3], R.A. 9165). substitution, and how it was transferred to another. Each of
the handlers of the evidence is a link in the chain and must
(d) After the filing of the criminal case, the court testify to make the foundation complete. This is the ideal way
shall, within seventy-two (72) hours, conduct an ocular to show the chain of custody.
inspection of the confiscated drugs, and through the
PDEA shall within twenty-four (24) hours proceed with 2. Jurisprudence identified the links that the prosecu-
the destruction of the same in the presence of the accused tion must establish in the chain of custody in a buy-bust situ-
or the person from whom such drugs were confiscated, ation to be as follows:
his representative or counsel, a representative from the
media and the DOI, civil society groups and any elected First, the seizure and marking of the confiscated
public official (Sec. 21[4], R.A. 9165). drugs recovered from the accused;
!Second, the turnover of the illegal drug seized by the
(e) The Dangerous Drugs Board shall then issue a
apprehending officer to the investigating officer;
sworn certification as to the fact of destruction or burning
of the substances. The certification shall be submitted to Third, the turnover by the investigating officer of
the court. Also to be submitted are the representative the illegal drug to the forensic chemist for laboratory
samples of the substances in the custody of the PDEA. examination; and
Such samples shall be of a minimum quantity as deter-
Fourth, the turnover and submission of the marked
mined by the Board (lsec. 21 6 R.A. 9J65).
illegal drug by the forensic chemist to the court (See
6. The alleged offender or his/her representative or People v. Kamad, 610 SCRA 295, 307-308 and cited in
counsel shall be allowed to personally observe all of the above People u. Dahil, G.fi. No. 212196, January 12, 2015; See
proceedings. His presence shall not constitute an admission also People v. lsapitula, G.R. No. 209212, February 10,
of guilt. However, after having been duly notified in accord- 2016).
ance with law and said alleged offender or accused refuses
or fails to appoint a representative within seventy-two (72) 3. Because of the definition of custody as defined by
hours before the actual burning or destruction of the evidence Sec. 1(b) of the Dangerous Drugs Board Regulation No. 1,
Series of 2002, the movement of the drugs from one person
to another must be duly recorded. Such record of movements
116 EVIDENCE and custody of seized item shall include the identity and
(The Bar Lecturer Seriea)
signature of the person who held temporary custody of the
seized item, the date and time when such transfer of custody were
made in the course of safekeeping and use in court as CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 117
evidence. A. Object Evidence (Rule 130)

Importance of the marking of the evidence Effect of non-compliance with Sec. 21 of R.A. 9165, as
It must be noted that “marking" is not found in amended
R.A. 9165, as amended. It is different from the inventory- 1. In case there is a failure to comply with the
taking and photography under Sec. 21 of the said law. requirements of the law in the handling of confiscated drugs,
Howev- er, long before Congress passed R.A. 9165, the Supreme the law, as amended by R.A. 10640, clearly requires the
Court had consistently held that failure of the authorities to authorities to show the following:
imme- diately mark the seized drugs would cast reasonable
(a) the non-compliance must be because of justifi-
doubt on the authenticity of the corpus delicti (People v. Do/tif,
able grounds; and
G.B. No. 212196, January 12, 2015).
b) the apprehending officer/team must have prop-
‘Crucial in proving the chain of custody is the erly preserved the integrity and evidentiary value of the
marking of the seized drugs or other related items seized items.
immediately after they had been seized from the accused.
‘Marking" means the placing by the apprehending officer or As long as the above are met, the non-compliance of Sec.
the poseur-buyer of his/her initials and signature on the 21 shall not render the seizure and custody of the seized items
items seized. Marking after seizure is the starting point void and inva.lid. (Bar 2011)
in the custodial link; hence, it is vital that the seized 2. failure to strictly comply with the law does not
contraband be immediately marked because succeeding necessarily render the arrest of the accused illegal or render
handlers of the specimens will use the markings as reference. inadmissible the items seized or confiscated from him (People
The marking of the evidence serves to separate the marked u. Dafiif, G.R. No.212196, January 12, 2015; !See also People u.
evidence from x x x all other similar or related evidence ’I'apugay, G.R. No.200336, February 11, 2015; People u. Enad,
from the time they are seized from the accused until they G.R. No. 205764, February 3, 2016). However, the prosecution
are disposed of at the end of the criminal proceedings, thus, must still prove that (a) there is a justifiable ground for the
preventing switching, planting or contamination of evidence” non-compliance, and (b) the integrity and evidentiary value of
(People v. Dahil, G.Zt. No. 212196, January 12, 2015). the seized items were properly preserved (Valencia u. People,
CI.R. No. 198804, January 22, 2014).
The marking should be made immediately and in the
presence of the apprehended violator upon arrest. The
DNA evidence
immediate marking upon confiscation or recovery of the
dangemus drugs or related items is indispensable in the 1. In a case where the admissibility of DNA testing as
preservation of their integrity and evidentiary value (People a means for determining paternity has become the focal issue
v. €ionzales, G.R. No.182417, April 3, 2013; S ee also Valencia in controversy for the first time, the Supreme Court described
o. People, G.R. No.198804, January 22, 2014). DNA in the following words:

“DNA, or deoxyribonucleic acid, is a molecule that

encodes the genetic information in all living organisms.
A person’s DNA is the same in each cell and it does
not change throughout a person’s lil‘etime; the DNA in
a person’s blood is the same as the DNA found in his
saliva, sweat, bone, the root and shaft of hair, earwax,
118 EVDENCE mucus, urine, skin tissue and vaginal or rectal cells. Most
TteBarLectumsSeñe) importantly, because of polymorphisms in human genetic
structure, no two individuals have the same DNA, with the
notable exception of identical twins"(Agustin u. Court
 ofAppeals, 460 SCT 315).
CHAPTERIV- OBJECTANDDOCUMENTARYEVDENCE 119
A. OjectEidene(Rulel30)
2. Agustin has its roots in an action for support filed
by a mother and her hon against the batter’s alleged biological
Consistent with the rulings of the era, the Court, as well as
father who denied having sired the child. The plaintiffs then
the lower courts, decided against the defendant-father on
moved for the issuance of an order directing all the parties
the basis of the incriminating letters written by him and not
to submit themselves to DNA testing pursuant to Rule 28
because of any DNA testing or similar procedure.
(Physical and Mental Examination of Persons) of the Rules
of Court. The defendant opposed the motion by invoking his 3. In 2001, however, tf.e Supreme Court showed signs
constitutional right against self-incrimination. He, likewise, of opening up to DNA evidence, in ’T'ijing v. Court of Appeals
moved for the dismissal of the complaint for lack of a cause (354 ISCRA 17), when it recognized the existence of the facility
of action. The trial court denied the motion to dismiss and (UP-NSRI DNA Analysis I aboratory) and expertise in using
ordered the parties to submit themselves to DNA paternity DNA test for identification and parentage testing. Although
testing. The Court of Appeals later affirmed the trial court. acknowledging that the test is still open to challenge being
The Supreme Court, in upholding the order of the trial a novel scientific technique, the Supreme Court, in Ti jing,
court and the Court of Appeals requiring the petitioner to categorically declared that “eventually, courts should not
submit himself for DNA testing, had the occasion to reiterate hesitate to rule on the admissibility of DNA evidence ...
its earlier yet novel stand that DNA testing is a valid means of courts should apply the results of science when competently
determining paternity. In Agustin, the Supreme Court briefly obtained in aid of situations presented, since to reject said
sketched its past decisions on DNA testing which the Court result is to deny progress. Though it is not necessary in this
initially considered as not as accurate and authoritative as the case to resort to DNA testing, in the future, it would be useful
scientific forms of identification evidence such as fingerprints to all concerned in the prompt resolution of parentage and
(People v. Teehanbee, 249 !SCRA 54). The Supreme Court identity issues.”
admitted in Agustin that, in early cases, “[The Court’s] faith 4. One year after Tijing, in what could be considered as
in DNA testing ... was not quite to steadfast in the previous a landmark decision, the Supreme Court in People v. Vallejo
decade." (3B2 ISCRA 192 2002]), a rape-slay case of a 9-year old girl,
Earlier, in Pe Lim r. Court ofAppeals (270 ISCRA 1), £LISO admitted in evidence the DNA samples of the victim which
a case for support filed by the mother in behalf of her child were found in the bloodstained garments of the accused.
against the supposed natural father, the Court cautioned Vaginal swabs taken from the victim were also admitted and
against the use of DNA evidence because, as a relatively new were found to show the DNA profile of the accused who was
science, it has not yet been accorded official recognition by subsequently convicted. Vallejo is considered by the Court
Philippine courts and held that paternity would still have to be the “first real breakthrough of DNA as admissible and
to be resolved by such conventional evidence as the relevant authoritative evidence in Philippine jurisprudence.” From
incriminating acts, verbal and written, by the putative father. a mere recognition of the existence of DNA testing, Vallejo
moved towards an open use of DNA evidence in deciding cases.
Vallejo adopted the following guidelines to be used by courts
in assessing the probative value of DNA evidence:
(a) How the samples were collected;
(b) How they were handled;
(c) The possibility of contamination of the samples;
(d) The procedure followed in analyzing the
120 EVIDENCE
(The Bar Lectures Series)
samples;
(e) Whether the proper standards and procedure were
 followed in conducting the tests; and
‘. CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE I2I
(f) The qualification of the analyst who conducted A. Object Evidence lRule 130)
the test (Bar 2009; fl010).
Ong, died during the pendency of his appeal. Amidst the
In People v. Janson (400 SICRA 584), the importance of
protestation cf the estate-petitioner for DNA testing because
DNA evidence was, likewise, recognized although the accused,
of the death of the defendant, the Court, invoking the newly-
who was charged with rape, was acquitted because of doubts
promulgated rules on DNA evidence, held that the test
as to who the real malefactor was. Here, the Court lamented
may provide the definitive key to the resolution of the
the lack of DNA evidence as a means to still the Court’s
issue and even if the defendant had already passed away,
doubts.
biological samples could be obtained for the testing. “...
In Tecson u. COMJLFC (424 ISCRA 277), the Court [E]ven [the] death of Rogelio cannot bar the conduct of DNA
acknowledged the weight of DNA evidence when the Court testing.” The Supreme Court affirmed the judgment of the
was faced with the issue of filiation of Fernando Poe, Jr. Any Court of Appeals remanding the case to the trial court for
doubt as to filiation or paternity, according to the Court, DNA testing.
would have been cleared up by a positive match through DNA
testing. Rules on DNA evidence
5. following the trail blazed by Vallejo, the 1. The Rule on DNA Evidence (referred to in this work
Supreme Court in 2004 in People v. Yatar, 428 ISCRA 504 as RDE) was promulgated by the Supreme Court through
(May 19, 2004), relied on evidence, including DNA evidence, in A.M. 06-11-05-SC and, in accordance with Sec. 14 thereof,
affirming the conviction of the accused for rape with took effect on October 15, 2007, following publication in a
homicide when the test showed that a match existed newspaper of general circulation.
between the DNA profile of the semen found in the victim
and the DNA profile of the blood sample given by the 2. In what situation does the Rule on DNA Evidence
accused. Yatar also made a lengthy discussion on DNA, the apply?
process of DNA testing and the reasons for its The Rule on DNA Evidence is the primary rule to be
admissibility. Yatar significantly upheld the constitutionality applied whenever DNA evidence is offered, used, or proposed
of compulsory DNA testing and rejected the contention that it to be offered or used as evidence in:
would infringe on the constitutional right against self-
incrimination. The case significantly and clearly recognized (a) criminal actions;
DNA testing and the admissibility of its results as evidence. (b) civil actions; and
6. A clear acknowledgment of the importance of DNA (c) special proceedings (Sec. 1, RDE).
evidence is exemplified in the later case of In re Estate of
Rogelio Ong u. Diam (540 S!CRA 480). The case originated in When a matter is not specifically governed by the
a complaint for compulsory recognition and support filed by Rule on DNA Evidence, the Rules of Court and other
a minor represented by her mother. The defendant, pertinent provisions of law on evidence shall apply (lsec. 2,
Rogelio RDE).
3. What is (a) DNA? (b) DNA profile? (c) DNA evidence?
(a) DNA refers to deox yribonucleic acid which is
the chain of molecules found in every nucleated cell of
the body (!Sec. 3[bJ, RDE).
(b) DNA “profile” is the genetic information derived
from DNA testing of biological samples obtained from a
122 EVIDENCE (The Bar Lectures Series)
 CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 123
person where such biological sample is clearly identifi- A. Object Evidence (Rule 130)

able as originating from that person (Sec. 3(d1, RDE).

Finding that the above requirements have been complied
(c) The totality of the DNA profiles, results and
with, the court shall now issue an order, if appropriate, to
other genetic information directly generated from
(a) take biological samples from any person or crime scene
the DNA testing of biological samples is called “DNA
evidence” (Sec. 3 c1, RDE). evidence; and (b) impose reasonable conditions on the testing
to protect the integrity of the biological sample and the
4. What is the significance of DNA? liability of the test results (!Sec. 5, RDE).
The significance lies in the uniqueness of the totality of Note: The court may inotu proprio order a DNA testing
the DNA of a person. It is a scientific fact that the totality (lsec. 4, RDE).
of an individual’s DNA is unique for the individual, except
for identical twins (lsec. 3(b], RDE). 6. Is a court order always required before undertaking
a DNA testing?
5. How may an order for a DNA testing be obtained?
It is not always required. The last paragraph of Sec. 4 of
A person who has a legal interest in the litigation may the RDE allows a testing without a prior court order if
file an application for DNA testing order before the done before a suit or proceeding is commenced at the
appropriate court, at any time (Sec. #, RDE). request of any party, including law enforcement agencies.
The order for a DNA testing shall not, however, be This also means that a litigation need not exist prior to
issued as a matter of course and from the mere fact that the DNA testing. Thus, a court order shall be required only if
person requesting for the testing has a legal interest in the there is a pending litigation, but not before the li tigation.
litigation. for the order to be issued, there must be a further
7. Is the order of the court granting a DNA testing
showing that:
appealable?
(a) A biological sample exists that has relevance to
the ease; It is not appealable and is immediately executory.
Sec. 5 of the RDE clearly provides that “An order granting
(b) The biological sample (i) was not previously the DNA testing shall be immediately exeeutory and shall not
subjected to the DNA testing requested; or (ii) if it was be appealable. ”
previously subjected to DNA testing, the results may
8. What then is the remedy against the court order if it
require confirmation for good reasons;
is not appealable?
(c) The DNA testing uses a scientifically-valid
technique; The remedy is a petition for certiorari under Rule 65 of
the Rules of Court but under Sec. 5 “any petition for certiorari
(d) The DNA testing has the scientific potential to initiated therefrom shall not, in any way, stay the imple-
produce new information that is relevant to the proper mentation thereof, unless a higher court issues an injunctive
resolution of the case; and order” (lsec. 5, RDE).
(e) The existence of other factors, if any, which the 9. Is there an automatic admission of the DNA evi-
court may consider as potentially affecting the accuracy dence obtained in the testing?
and integrity of the DNA testing(Sec. 4, RDE).
There is none. By the terms of Sec. 5 of the RDE, the
grant of a DNA testing application shall not be construed
124 EVIDENCE
(The Bar Lecturer Series) CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 125
A. Object Evidence (Rule 130)

as an automatic admission into evidence of any component y (b) such sample is relevant to the case;
and
of the DNA evidence that may be obtained as a result of the
testing. This necessarily means that the court will still have (c) the testing would probably result in the
to evaluate the probative value of the proposed evidence reversal or modification of the judgment of conviction
before its admission. (!Sec. 6, RDE).
11. Is a court order required for a post DNA testing?
The determination of the probative value of the DNA
evidence rests upon sound judicial assessment taking into Sec. 6 of the RDE is clear. It may be available “without
consideration the following matters: need o[prior court order.”
(a) The chain of custody, including how the biologi- 12. What remedy is available to the convict if the
ca1 samples were collected, how they were handled, and results of the post DNA testing are favorable to him?
the possibility of contamination of the samples;
If the results of the DNA testing are favorable to the
(b) The DNA testing methodology, including the convict, he may file a petition for a writ of/io6eas corpus with
procedure followed in analyzing the samples, the advan- the court of origin. The court shall then conduct a hearing and
tages and disadvantages of the procedure, and compli- in case the court finds, after due hearing, that the petition
ance with the scientifically-valid standards in conducting is meritorious, it shall reverse or modify the judgment of
the tests; conviction and order the release of the convict, unless his
detention is justified for a lawful cause (!Sec. 10, RDE).
(c) The forensic DNA laboratory, including its
accreditation and the qualification of the analyst who The petition shall be filed with the court of origin as a
conducted the test; if the laboratory is not accredited, rule. However, the rule also allows the petition to be filed
the court shall consider the relevant experience of the either with the Court of Appeals or with the Supreme Court,
laboratory in forensic casework and its credibility shall or with any member of said courts. A hearing may be
be properly established; and conducted by the latter courts or by any member thereof or
(d) The reliability of the testing result (Sec. 7, instead of conducting a hearing, may instead remand the
RDE). petition to the court of origin and issue the appropriate
orders (lsec. 10, RDE).
10. If a person has already been convicted under a final Note that under Sec. 10, the petition for a writ of habeas
and executory judgment, may he still avail of DNA testing?
corpus may also be filed by the prosecution.
(Bar 2012)
13. Are the DBA profiles of a person open to public
He may still have DNA testing. The test after his convic-
scrutiny?
tion is termed a ‘post-conviction” DNA testing. Significantly,
Sec. 6 of the RDE allows a post-conviction DNA testing. It They are not. DNA profiles and all the results or other
may be available to (a) the prosecution, or (b) the person con- information obtained from DNA testing are confidential.
victed by a final and executory judgment, provided that Whoever discloses, utilizes or publishes in any form any
the following requirements are met: information concerning a DNA profile without the proper
court order shall be liable for indirect contempt of the court
(a) a biological sample exists;
wherein such DNA evidence was offered, presented or sought
to be offered and presented (lsec. 11, RDE).
126 EVIDENCE
(The Bar Lefturea Seriea) CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 127
A. Object Evidence lRule 130)

Except upon order of the court, the

DNA profiles and A person who tests positive may have handed one or more
other results shall only be released to any of the following: substances with the same positive reaction for nitrates such
as explosives, fireworks, fertilizers, pharmaceuticals, tobacco
(a) The person from whom the sample was taken; and leguminous plants. The argument that the negative
(b) Lawyers representing parties in the case or result of gunpoz•der nitrates from the paraffin test conducted,
action where the DNA evidence in offered and presented shows an absence of physical evidence that one fired a gun,
or sought to be offered and presented; is untenable as it is possible for one to fire a gun and yet be
(c) Lawyers of private complainants in a criminal negative for the presence of nitrates as when the hands
are washed before the test (People v. Cajumocan, 430 SCRA
action;
311; People v. Baconguis, 417 S!CRA 66).
(d) Duly authorized law enforcement agencies;
and A person who uses tobacco may also have nitrate or nitrite
deposits on his hands since these substances are present in
(e) Other persons as determined by the court the products of combustion of tobacco (Revita v. People, 570
(Sec. 11, RDlfi). SCRA 356).
The person from whom the biological sample was taken 2. The negative findings of a paraffin test do not con-
may also request that his DNA profile and all results or other
clusively show that a person did not discharge a gun, if he
information obtained from the DNA testing be disclosed to the
fired a gun with a glove on, or if he thoroughly washed his
person designated in his request. This request, however, must hands thereafter. Besides, a paraffin test is not conclusive
be in writing, verified and filed with the court that allowed the owing to several factors like wind direction, firing at a
DNA testing (Sec. 11, RDE).
hard object, using’ a long barrel or a low caliber gun and
profuse
14. The trial court is mandated to preserve the DNA perspiration tPeople v. Baltazar, 352 SICRA 678; People u.
evidence in its totality, including all biological samples, DNA Galvez, 519 SICRA 521; flee also People u. Buduhan, 561 SCRA
profiles and results or other genetic information obtained from 337).
DNA testing in accordance with Sec. 12 of the RDE.
Polygraph tests (Lie detector tests)
Paraffin tests
1. A polygraph test operates on the principle that
1. Paraffin tests, in general, have been considered as stress causes physiological changes in the body which can be
inconclusive by the Court because scientific experts concur in measured to indicate whether the subject of the examination
the view that paraffin tests have proved extremely unreliable is telling the truth. During an examination in which a
in use. The tests can only establish the presence or absence poly- graph is used, sensors are attached to the subject so
of nitrates or nitrites on the hand, but the tests alone cannot that the polygraph can mechanically record the subject’s
determine whether the source of the nitrates or nitrites was
the discharge of a firearm. physiological responses to a series of questions.
2. Courts, accordingly and uniformly, reject the results
The presence of nitrates should be taken only as an of polygraph tests when offered in evidence for the purpose of
indication of a possibility, or even a probability, but not of establishing the guilt or innocence of one accused of a crime
infallibility that a person has fired a gun, since nitrates are because it has not yet attained scientific acceptance as a
also admittedly found in substances other than gunpowder. reliable and accurate means of ascertaining truth or deception
128 EVIDENCE (The Bar Lectures Series)
 CHAPTER IV — OBJECT AND DOCUMENTA RY EVIDENCE 129
B. DOCtlmentary Evidence (Rule 130)

(U.IS. v. Tedder, (CA4 SIC] 801 F2d 1437; 29A Am Our 2d When a contract is presented in court to show that it
§1007; People u. Reanzares, 334 !SCRA 624; People v. Adoviso, exists or simply to establish its condition, it is not offered to
309 !SCRA 1; People v. Carpo, 356 SCRA 248). prove its contents. The contract, therefore, is not considered a
documentary evidence, but an object or real evidence.
B. Documentary Evidence
(Rule 130) Documents under the Rules on Electronic Evidence (Bar
2009)
Meaning of documentary evidence (document as evidence)
1. Sec. 1(h), Rule 2 of the Rules on Electronic
1. Another category of evidence is documentary evi- Evidence defines an ‘electronic document’ as follows:
dence. Documents, as evidence, do not exclusively refer to
writings. They may refer to any other material like objects as (h) ‘Electronic document’ refers to information or
long as it contains letters, words, numbers, figures, symbols or therepresentation of information, data, figures, symbols
or other modes of written expressions, described or
other modes of written expression and offered as proof of
however represented, by which a right is established
their contents. There are, therefore, two categories of documents or an obligation extinguished, or by which a fact may
as evidence, namely:
(a) writings; or be proved and affirmed, which is received, recorded,
(b) any other material containing modes of written transmitted, stored, processed, retrieved or produced

expressions. electronically. It includes digitally signed documents

and any print-out or output, readable by sight or other
The relevant provision provides: means, which accurately reflects the electronic data
message or electronic document. For purposes of these
“SEC. 2. Oocz/mentazy ev’idence. — Documents Rules, the term ’electronic document’ may be used
as evidence consist of writings or any material interchangeably with ‘electronic data message."’
contain- ing letters, words, numbers, figures, symbols
or other modes of written expressions offered as proof ‘2. An elcctronic document, also known interchangeably
of their contents.” as electronic data message (Sec. 1[h1, Rule 2, Rules on Elec-
tronic Evidence), based on the definition of the Rules, does not
2. Under the first category are those instantly recog- only refer to the information itself. It also refers to the rep-
nizable documents like written contracts and wills. Under resentation of that information. Whether it be the informa-
the second category are those which are not traditionally tion itself or its representation , for the document to be deemed
considered as writings but are actually objects which contain ‘electronic, it is important that it be received, recorded, trans-
modes of written expressions. mitted, stored, processed, retrieved or produced electronically
However, being writings or materials containing modes (Bar 2012).
of written expressions do not ipso Jocfo make such materials It is submitted that the rule does not absolutely require
documentary evidence. For such writings or materials to be that the electronic document be initially generated or
deemed documentary evidence, the same must be offered produced electronically. A contract, for instance, prepared
as proof of their contents. If offered for some other purpose, through the traditional written way may be converted to
the writings or materials would not be deemed documentary an electronic document if transmitted or received or later
evidence but merely object evidence. recorded electronically.
130 EVIDENCE elect
(The Bar Lectures Series) roni
The rule also emphasizes that an
c document is one that may be used for any of the following CHAPTERIV- OBJECTANDDOCUMENTARYEVIDENCE 131
purposes: B. Documentary Evidence (Rule 130)

(a) To establish a right;

“SEC. 2. Manner of authentication. — Before any
(b) To extinguish an obligation; or private electronic document offered as authentic is
(c) To prove or affirm a fact (Sec. Iffi}, Rule 2, Rules received in evidence, its authenticity must be proved by
any of the following means:
on Electronic Evidence).
3. Electronic documents are the functional equivalents (a) by evidence that it had been digitally signed
by the person purported to have signed the same;
of paper-based documents (!Sec. 1 of Rule 3 of the Rules on (Bar 2012)
Electronic Evidence). The provision declares:
(b) by evidence that other appropriate security
“Whenever a rule of evidence refers to the term of procedures or devices as may be authorized by the
writing, document, record, instrument, memorandum or Supreme Court or by law for authentication of electronic
documents were applied to the document; or
(c) by other evidence showing its integrity and
reliability to the satisfaction of the judge."
any other form of writing, such term shall be deemed Notice that the aforementioned rigorous requirements
to include an electronic document as defined in these for the authentication of an electronic document do not apply
Rules." to all electronic documents. Sec. 2 of Rule 5 will obviously
Since an electronic document is the functional equiva- apply only when the document is a private electronic document
lent of a paper-based document, whenever a rule of evidence and the same is offered as an nutfienfic document.
makes reference to the terms of a writing, document, record, If the electronic document is offered simply for what
instrument, memorandum or any other form of writing, such it is or for what it is claimed to be without regard to
terms are deemed to include electronic documents (thee. 1, Rule whether or not it is authentic, Sec. 2 of Rule 5 finds no
3, Rules on Electronic Evidence). It is, therefore, but logical to relevance. In such a case, the electronic document has only to
consider the rules on evidence in the Rules of Court, including be identified pursuant to the suppletory application of Sec. 20
statutes containing rules of evidence, to be of suppletory of Rule 132 of the Rules of Court. Accordingly, under the said
application to the Rules on Electronic Evidence in all matters provision, “Any other private document need only be
not specifically covered by the latter (Sec. 3, Rule 1, Rules on identified as that which it is claimed to be.”
Electronic Evidence) (Bar 2003; 2010).
6. When, for instance, a document is electronically
4. Under Sec. 1, Rule 5 of the Rules on Electronic
notarized, the manner of authentication under Sec. 2 of Rule
Evidence, the person offering the document has the burden to 5 will not likewise apply. When so notarized, it is transformed
prove its authenticity. Thus:
into a public document and is to be proved not in accordance
"SECTION 1. Burden of proving authenticity. — with the Rules on Electronic Evidence but in accordance with
The person seeking to introduce an electronic document the Rules of Court. The tenor of Sec. 3, Rule 5 of the Rules on
in any legal proceeding has the burden of proving its Electronic Evidence is enlightening:
authenticity in the manner provided in this Rule.”
“SEC. 3. Proofofelectronicallynotarized document.
5. The manner of authentication of an electronic — A document electronically notarized in accordance
document is outlined under Sec. 2, Rule 5 of the Rules on with the Rules promulgated by the Supreme Court shall
Electronic Evidence as follows: be considered as a public document and proved as a
notarial document under the Rules of Court.”
132 EVIDENCE Sec. 30 of Rule 132 of the Rules of Court provides for the
(The Bar Lectures Series)
manner of proving notarial documents. In distinct terms, the
provision categorically states that “Every instrument duly
acknowledged or proved and certified as provided by law, may CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 133
be presented in evidence without further proo[, the certificate C. Best Evidence Rule
of acknowledgment being prima[acre evidence of the execution
of the instrument or document involved” (Italics supplied).
C. Best Evidence Rule
Evidentiary concepts involved in the presentation of decu- Meaning of “best evidence” (Bar 1988)
mentary evidence
1. The “best evidence” rule as embodied in Sec. 3 of
To be admissible, documentary evidence, like any other Rule 130 of the Rules of Court provides:
evidence, must be relevant and competent. It is also subject
to general exclusionary rules such as the rule on hearsay, “SEC. 3. Original document must be produced;
best evidence rule, and parol evidence rule. exceptions. — When the subject of inquiry is the con-
tents of a document, no evidence shall be admissible
Thus, depending upon the specific purpose for which other than the original document itself, except in the
the contents of the document is offered, there are certain following cases:
inevitable issues which may arise in connection with the
admissibility of the document aside from the issue of (a) When the originaJ has been lost, or destroyed,
relevance. Has the document been authenticated? Is it or cannot be produced in court, without bad faith on
the part of the offeror;
relevant? Is it the best evidence? Is it a mere parol
evidence and so must be excluded? Is it hearsay and, (b) When the original is in the custody or under
therefore, must be rejected? It would, therefore, be critical the control of the party against whom the evidence is
to remember that whenever a documentary evidence is offered, and the latter fails to produce it after reasonable
involved, the best evidence rule, parol evidence rule, and notice;
hearsay rule, or any one of these rules may come into play, (c) When the original consists of numerous
However, where the evidence is offered as an object evidence, accounts or other documents which cannot be examined
the best evidence rule, parol evidence rule, and hearsay rule in court without great loss of time and the fact sought
find no application. to be established from them is only the general result of
the whole; and
Requisites for admissibility of documentary evidence (d) When the original is a public record in the
The following are the requisites for the admissibility of custody of a public officer or is recorded in a public
office.”

2. The term “best evidence,” as used in the “best

evidence rule,” has been a source of misconception. It has often
been misunderstood and given a meaning it does not deserve.
Despite the word “l›est,” the rule does not proclaim itself as
documentary evidence:
the highest and most reliable evidence in the hierarchy of
evidence. The term best” has nothing to do with the degree
(a) The document must be relevant, of its probative value in relation to other types of evidentiary
rules. It is not intended to mean the “most superior” evidence.
(b) The evidence must be authenticated; More accurately, it is the “original document” rule or the
(c) The document must be authenticated by a primary evidence” rule.
competent silvers; and
3. The best evidence rule does not apply to all types
(d) The document must be formally offered in evi- of evidence. It does not comprehend object and testimonial
dence. evidence. It only applies when the evidence is documentary.

134 EVIDENCE CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 135

(The Bar Lectures Seriea) C. Best Evidence Bule
Also, it does not apply just because a document is offered in Republic, observed the Court, did not even make an attempt
evidence. The rule only covers situations in which the sub.ject to provide a plausible reason why the originals were not
of inquiry in the contents of the document. Subject to certain presented and why the photocopies should be admitted as
exceptions, under the best evidence rule, when the subject of secondary evidence (Republic v. Marcos-Manotoc, 665 SCRA
inquiry relates to the contents ofa document, no evidence shall 367, 386, February 8, 2012).
be admissible other than the original document itself. In other
words, one who wanta to prove the contents ofa document 7. In an action against a taxpayer, the best evidence
need to present the original document. Where the purpose of obtainable under the then Sec. 16 of the 1977 NIRC, as
the offeror is one other than to prove the contents of a amended, does not include mere photocopies of records and
document, compliance with the best evidence rule is not documents. The copies presented have no probative weight
necessary. The key, therefore, to the understanding of the ° and are mere scraps of paper. The copies cannot prove any
est evidence” riiJe is simply to remember that the rule cannot deficiency in the taxes of the taxpayer (Commissioner o[
be invoked unless the contents of a writing is the subject of Internal Revenue u. Hantex Trading Co., Inc., 454 SCRA 301).
judicial inquiry, in which case, the best evidence is the This is because inquiry as to the contents of the documents is
original writing itself. inevitable to prove the deficiency.

4. An early case ruled: Purpose of the rule (Bar 1994; 1998)

“x x x the rule-applies only where the content of 1. “The best evidence rule ensures that the exact
the document is the subject of the inquiry. Where the contents of a document are brought before the court. In
issue is the esecittioti or existence of the document or deeds, wills, and contracts, a slight variation in words may
{lie circumstances surroundine ita execution. the best mean a great deal of difference in the rights and obligations
evidence rule does not apply and testimonial evidence is
of the parties. A substantial hazard of inaccuracy exists in
admissible.”(Arceo u. People, 495 SICRA204; Underscoring
supplied). the human process of making a copy by handwriting or
typewriting x x x. The best evidence rule, likewise, acts as an
5. The RTC, in one case, was sustained for admitting insurance against fraud. If a party is in the possession of the
in evidence mere copies of certain deeds. As held, the best evidence in its place, the presumption naturally arises
‘T›est evidence rule" applies only when the content of such that the better evidence is withheld for fraudulent purposes
document i8 the subject of the inquiry. Where the issue is that its production would expose and defeat. The rule,
only as to whether such document was actually executed, or likewise, protects against misleading inferences resulting
existed, or on the circumstances relevant to or surrounding its from the intentional or unintentional introduction of selected
execution, the best evidence rule does not apply and even portions of a larger set of writings” éfiepubJic r. Mopes, G.fi.
testimonial evidence is admissible. Any other substitutionary No. 181892, September 8, 2015).
evidence is, likewise, admissible without need to account for
2. The theory, therefore, is that the copy of the original
the original
is not as reliable as the latter because of possible inaccuracy
‹chua can ›. ctua, ss1 scnx sos).
in the process of copying and the danger of erroneous
6. In a prosecution for ill-gotten wealth, the Republic transmission of the original.
of'fered in evidence photocopies of certain documents to prove
The above principle is reiterated, thus: The only actual
the contents thereof which would implicate the respondents.
rule that the term “best evidence” denotes is the rule
The Court categorically ruled that such offer of mere
photocopies violate the “best evidence” rule, which mandates requiring that the original of a writing must, as a general
proposition,
that the evidence must be the original document itself. The
136 EVIDENCE be produced (EDSA-Shangrila Hotel v. BF Corporation, 556 ISCRA 25).
(The Bar Lectures Seriea)
Waiver of the rule
 The best evidence rule may be waived if not raised in CHAPTER IV — OBJECT ANO DOCUMENTARY EVIDENTE 137
the trial. In one case, although the marriage certificate, C. Best Evidence Rule
the marriage license, and other pieces of documentary
evidence were only photocopies, the fact that these have been a document, and its contents are the subject of that same
examined and admitted by the trial court, with no inquiry, the best evidence rule applies and must, therefore,
objections having been made as to their authenticity and
be complied with. The procedural compliance of the rule
due execution, means that these documents are deemed
requires the presentation of the original document, and not
sufficient proof of the facts contained therein v. Court
a copy of that document. So long as the original is available,
o[Appeals, 330 ISCRA 550).
no other evidence can be substituted for the original because
When document is merely collaterally In issue the original is the “best evidence” and not the mere copies or
substitutes thereof.
1. When a document is involved in the inquiry but the
document is only collaterally in issue, the best evidence rule To reiterate, the best evidence rule applies only when
does not apply. A document is collaterally in issue when the the contents of the document is the subject of inquiry. Where
purpose of introducing the document is not to establish the issue is only as to whether such document was actually
its terms, but to show facts that have no reference to its executed, or exists, the best evidence rule does not apply.
contents like its existence, condition, execution or delivery. In fact, testimonial evidence may be admissible (lshunac
Corporation u. !S ylianten.g, G.fi. No. 205879, April 23, 2014).
2. If a witness testifies that the victim was writing a
letter when he was shot by the accused, the judge would 2. Now what is to be done if, for one reason or another,
likely rule against the party who insists on the presentation the original cannot he presented in evidence? If this happens,
of the letter because it ig not the subject of an important the second step now comes into play. This step involves two
issue in the ease and, hence, merely collateral. stages: (1) finding an adequate legal excuse for the failure to
Also, if a witness testifies that he actually saw the debtor present the original; and (2) presenting a secondary evidence
tender payment of his obligation to the creditor, he need not allowed by the Rules of Court.
be required to produce the original promissory note If the rule were to be restated into a simple formula,
evidencing the debt because it is the act of payment which the rule wculd be: “Present the original, except when you can
is the focal point of the testimony, not the document. The justify its unauciilabil.it y in the manner provided for by the
document need not be, likewise, presented when the witness Rules o[Court.”
merely testifies to the delivery of a deed of sale by X to Y
because proving the contents of the document itself is not
the purpose of the testimony. Illustrative applications of the best evidence rule

How to apply the best evidence rule Illustration No. 1

1. The first step in applying the best evidence rule In a case where counsel wants to show that a
in to determine the matter inquired into. If the inquiry marriage ceremony took place between H and W, the
involved following questions were asked:
Q. Mr. Witness, where were you on September 26,
2015 ai around 7:30 in the evening?
I was in the Manila Cathedral attending the
wedding of H and W where I stood as a
principal sponsor.
138 EVIDENCE CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE I39
(The Bar Lectures Series) C. Best Evidence Rule
 Q: Can you tell this Court what happened when Did you and the other sponsors sign the docu-
you were there? ment?
A: There was a marriage ceremony officiated by A: We all did, Sir.
the parish priest for the marriage of H and W.
How about H and W?
Opposing counsel objects at this stage:
A They also signed, Sir.
“Objection, Your Honor! The best evidence is
the marriage contract!” How about the priest?

Should the court sustain the objection? No! The best : He signed the document, Sir.
evidence rule does not apply. For the best evidence rule to By the way, what document did all of you sign?
apply, two requisites must concur:
A. The marriage contract, Sir.

A:

(a) The subject matter must involve a document;

and The opposing counsel objects: “Objection, Your Honor!
The best evidence is the marriage contract. Counsel should
(b) The subject of the inquiry is the contents of the show the marriage contract.”
document.
Should the objection be sustained? No! As in the first
The subject of the inquiry and response in the illustra- illustration, the best evidence rule does not apply. While it
tion does not even involve a document. The evidence is purely is conceded that a document is involved in the question and
testimonial. Where the contents of a document ie not in issue, response, the inquiry involved the existence and execution of
the best evidence rule cannot be invoked and more so when the marriage contract. An inquiry into these matters does not
the evidence doea not involve a document. The illustration bring the best evidence rule into operation, there being no
merely involves an inquiry into an activity that occurred in inquiry as to the contents of the document. In the words of the
the presence of the witness. Thus, a witness may testify as Rules of Court, the best evidence rule applies only when the
to an event he perceived. The wedding ceremony is an event subject of inquiry is the contents o[ a document (lSe•. 3, Rule
or a fact with an existence independent of any writing. The 13D, Rules of Court). Thus, a witness may be asked whether
ceremony was observed and perceived by the witness, and or not he sold his land in writing to another, and an objection
one’s perception, if relevant to an issue in the case, is a that the deed of sale is the best evidence of the sale is
legitimate subject of a testimony. Thus, a witness may testify improper because the testimony made lio reference to the
that Pedro died in his presence without presenting a death contents of the deed.
certificate. He may also testify that he traveled to Los Angeles
without necessarily presenting the plane ticket and that his It is always vital to remember that the best evidence rule
father gave him a car without presenting a deed of donation. applies only when the purpose is to establish the contents
of a writing. When the evidence introduced concerns some
Illustration No. 2 external fact about a writing like its existence, execution
or delivery, without reference to its terms, the rule cannot
Q: After the wedding ceremony Mr. Witness, what be invoked (People u. Tandoy, 192 ISCRA 28; 4 Wigmore
happened, if any? On Evidence, §117R, 1188; People u. Bago, 330 SICRA 115)
A: The priest asked all sponsors to sign a document. because the writing is not a documentary evidence but a mere
140 EVIDENCE C11AP'£ER JV — OBJECT AND DOCUMENTARY EVIDENCE 141
(The Bar Lectures Series) C. Best Evidence Rule

object evidence. The best evidence rule does not apply to (a) When the original has been lost or destroyed,
an object evidence. Hence, the original need not be or cannot be produced in court, without bad faith on the
presented. The existence or condition of that writing may be part of the offeror;
proved by any other evidence, like oral testimony (People u.
Tandoy, 192 SICRA 28). (b) When the original is in the custody or under the
control of the party against whom the evidence is offered,
and the latter fails to produce it after reasonable notice;
Illustration No. 3
(c) When the original consists of numerous ac-
Assume that we are continuing the hypothetical counts or other documents which cannot be examined in
involving the testimony of a sponsor of the wedding: court withoiit great loss of time and the fact sought to be
Q: Mr. Witness, you testified that you, the other established from them is only the general result of the
sponsors, as well as both H and W, signed the whole; and
marriage contract. Is that right? d) When the original is a public record in the
A’ That is correct, Sir. custody of a public offiCeI’ Or is recorded in a public office.
You also testified that you read the contract Requisites for the introduction of secondary evidence in
before you signed it. Is that correct? case of loss, destruction, or unavailability of the original
A: That is correct, Sir. 1. Secondary evidence refers to evidence other than
What did the marriage contract contain as to the original instrument or document itself(EDSA Sliangri-La
the name of the officiating priest? Hotel and Resort, Inc. v. BF Corfioration, 556 SICRA 25).
Opposing counsel objects: “Objection, Your Secondary evidence, like a copy of the original, is admis-
Honor! Counsel should present the marriage sible as an exception if the original writing has been lost,
contract under the best evidence rule!” destroyed or cannot be produced in court without bad faith
on the part of the party offering the secondary evidence. 'this
Should the objection be sustained? It should. In this exception does not only cover loss or destruction but also other
illustration, the best evidence rule in properly invoked. Here, reasons for the failure to produce the original in court even if
counsel is trying to prove some contents in the marriage the original is not lost or destroyed, as when the original is
contract through oral testimony without producing the ori- beyond the territorial jurisdiction of the court (Re ynolds on
ginal document. Evidence, 2nd Ed., §61; PNB v. Olila, 98 Phil. 1002).
2. Under Sec. 5 of Rule 130, secondary evidence
Excuses for not presenting the original document (Bar 1992; may be admitted only by laying the basis for its production.
1997) Specifically, laying such basis requires compliance with the
following:
The excuses for the non-production of the original docu-
ment refer to the instances when the original does not have to (a) The offeror must prove the existence and
be produced even when the contents of the document are the execution of the original document;
subjects of inquiry. These instances are those mentioned in
Sec. 3, Rule 130 of the Rules of Court, namely: (b) The offeror must show the cause of its unavail-
ability such as the loss or destruction of the original; and
142 EVIDENCE
(The Bar Lectures Series) CHAPTER fV — OBJECT AND DOCUMENTARY EVIDENCE 148
C. Best Evidence Rule
 (c) The offeror must show that the unavailability
the marriage was solemnized; (b) birth certificates of her
was not due to his bad faith (lsee also Republic u. Mupas, children by her husband; (c) certificate of baptism of one child
G.fi. No. 181892, September 8, 2015). indicating that he was born to respondent and her husband;
After complying with the requirements for laying the (d) the testimony of respondent herself; and (e) the testimony
basis for the introduction of secondary evidence, the offeror of the sister of her husband as to the fact of marriage.
may now be allowed to prove the contents of the documents The Court ruled that the evidences offered established
by
secondary evidence. the fact of marriage of responden t to the man she claimed to
be her husband. The marriage of petitioner to the same man,
3. Based on the Rules, the presentation of secondary was declared null and void (!See Macua Vda. de Auenido u.
evidence should be in the following order: Auenido, G.fi. No. 173540, January 22, 201¢)
(a) a copy of the original; Citing precedents, the Court, in the same case, declared:
(b) a recital of the contents of the document in some
authentic document; or “While a marriage certificate is considered the
(c) by the testimony of witnesses (Sec. 5, Rule 130, primary evidence of a marital union, it is not regarded
Rules of Court). as the sole and exclusive evidence of marriage.
Jurispruden ce teaches that the fact of marriage may be
Accordingly, the correct order of proof is as follows: proven as relevant evidence other than the marriage
existence, execution, loss and contents although, at the sound certificate. Hence, even a person’s birth certificate may
discretion of the court, this order may be changed if necessary be recognized as competent evidence of the marriage
(Citibank, N.A. Mastercard u. Teodoro, 411 SCRA 577, 585). between his parents.

4. One case, involving two women who claimed to be

the legal spouse of the same man, in illustrative. Requisites for the introduction of secondary evidence when
the original is in the custody or control of the adverse party
In the case, the respondent filed an action for the 1. A showing that the original document is in the
declaration of nullity of the second marriage of her husband to custody or under the control of the adverse party does not
the petitioner. The respondent alleged in her complaint that ipso [acto authorize the introduction of secondary evidence to
she had married her husband in 1942. 'I'he petitioner, on the prove its contents. The party who seeks to present secondary
other hand, claimed to be the legal wife of the same man on evidence must first lay the basis for its introduction. Laying
the basis of her marriage to him in 1979. She alleged, by way the basis requires proof of the following:
of defense, that the man she married was not the legal
(a) that the original exists;
husband, but only the common law husband, of the
respondent.
The respondent, who had no original marriage certificate
to prove the marriage, offered in evidence the certifications (b) that said document is under the custody or
control of the adverse party;
from both the civil registrar of the place of marriage and the
(c) that the proponent of secondary evidence
National Statistics Office, attesting to the destruction of all given the adverse party reasonable notice to producehas
the
records of marriage during the Second World War. Since
Original document; and
there was no copy of the record of marriage, she submitted
the
following secondary evidences: (a) certificate of her marriage (d) that the adverse party failed to produce the
to her husband issued by the parish priest of the place where original document despite the reasonable notice.

EVIDENCE (The Bar Lectures Series)

 CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 145
2. In one case, the Supreme Court emphasized that C. Best Evid•.nce Rule
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 writings and their examination in court would result in great
warrant the admission of secondary evidence. The offeror loss of time considering that the evidence desired from the
must prove that he has done all in his power to secure the voluminous accounts is only the general result of the whole
best evidence by giving notice to the said party to produce the like a summary of the accounts. Under this exception, a
document. The notice may be in the form of a motion for the witness may be allowed to offer a summary of a number of
production of the original, or made in open court in the documents, or the summary itself may be admitted, if the
presence of the adverse party, or via a subpoena duces tecum, underlying documents are so voluminous and intricate as to
provided that the party in custody of the original has make an examination of all of them impracticable. They may
sufficient time to produce the same. When such party has also be presented in the form of charts or calculations (29A
the original of the writing and does not voluntarily offer to Am Jur, Evidence, §§1059-1060).
produce it or refuses to produce it, secondary evidence may
be admitted (Magdayao v. People, 436 SCRA 677). 3. The trial court may admit a summary of the
voluminous original documents, in lieu of original documents,
3. After the foundational requirements for the intro- if the party has shown that the underlying writings are
duction of secondary evidence have been complied with, numerous and that an in-court examination of these docu-
secondary evidence may now be presented as in the case of ments would be inconvenient. In other words, the rule does
loss (lsec. 6, Rule 130, Rules of Court). This means that the away with the item-by-item court identification of voluminous
contents of the document may now be proven by a copy of' the exhibits which would only be burdensome and tedious for the
document, a recital of its contents in some authentic docu- parties and the court(See Republic v. Mupas, G.fi. No. 181892,
ment, or by testimony of witnesses in the order stated (lsec. 5, September 8, 2015).
Rule 130, Rules of Court).
For example, an accountant’s written summary of some
Requisites for the introduction of secondary evidence when 150,000 sales invoices for goods sold by the plaintiff may
the original consists of numerous accounts be allowed under this exception despite the objection of the
defendant that the sales invoices constitute the original
1. Under this exception, secondary evidence is admis- documents ar.d should be presented (Compania Maritima u.
sible: Allied FI ee iVorhei s Union, 77 SCRA 24).
(a) if the original consists of numerous accounts or
As a condition precedent to the admission ofa summary
other documents;
of numerous documents, the proponent must lay a proper
(b) such accounts or documents cannot be exam- foun- dation for the admission of the original documents on
ined in court without great loss of time; and which the summary is based. This means that the source
(c) the fact sought to be established from them is documents must be shown to be original and not secondary
only the general result of the whole (lsec. 3fcJ, Rule 130, and must be made accessible to the opposing party so that the
Rules o[Court). correctness of the summary may be tested on cross-examination
or may be refuted in pleadings. A proper foundation for the
2. The main reason for this exception lies in the introduction of a summary may be established through the
determination by the court that production of the original testimony of the person responsible for the summary’s
preparation, or the person who supervised the preparation of
the summary (See Republic u. Miipas, G.R. No.181892,
lseptember 8, 2015).
146 EVIDENCE
(The Bar Lectures Series)
Requisites for the introduction of secondary
evidence when the original document is a public record CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 147
C. Best Evidence Rule
There are instances when the original of a document is a
public record or is recorded in a public oflice (lsee. 3 d y R zzIe
or near the time of the transaction, all the entries are
130, Rules of Court). Public records are generally not to be likewise equally regarded as originals.”
removed from the places where they are recorded and kept
(lsec. 26, Rule 132, Stiles o/Court). For this reason, the proof 2. 'the layman’s concept refers to the original as the
of the contents of a document, which forms part of a first one written and from which mere copies are made,
public record may be done by secondary evidence. This transcribed or imitated. Accordingly, from this perspective,
evidence is a certified true copy of the original. This there can only be one original. This is not, however, so. Under
certified copy is to be issued by the public officer in custody of the Rules of Court, there are instances when subsequent
the public records (Sec. 7, Rule 130, Rules o[Court). documents are also regarded as originals. One example is that
provided for in Sec. 4(c) of Rule 130. Here, when an entry is
Effect of not offering a document in evidence after calling
repeated in the regular course of business, one being copied
for its production and Inspection from another at or near the time of transaction, all the entries
If the party who calls for the production of a are equally regarded as originals.
document does not offer the same in evidence, no
To be considered originals under this provision, certain
unfavorable inference may be drawn from such failure. This is
requisites must be complied with:
because under Sec. 8 of Rule 130, a party who calls for the
production of a document is not required to offer it. The (a) there must be entries made and repeated in the
pertinent provision states: regular course of business; and

"SEC. 8. Parfy who calls for document not bound (b) the entries must be made at or near the time
to o/7er /t. — A party who calls for the production of a of the transaction.
document and inspects the same is not obliged to offer
Thus, if a data clerk makes an entry of a transaction
it as evidence."
which is repeated several times for the files of each
Meaning of "original" (Bar 1997; 2001) department of the company, each document where the entry
was made is an original as long as the entries are made at
1. Sec. 4 of Rule 130 elucidates on the concept of the or near the time of the transaction and in the regular course
term "original," thus: of business. Also, when a lawyer writes a pleading in two or
more copies which are executed at the same time, with
“SEC. 4. Original of document. —
identical contents, each document is an original (!See !Sec.
(a) The original of a document is one the contents 4[b1, Rule 130, Rules o[ Court). So are writings with identical
of which are the subject of inquiry. contents made by printing, mimeographing, lithography
(b) When a document Is In two or more coplea and other similar methods executed at the same time. Thus,
executed at or about the same tlmd, with Identical each newspaper sold in the stand is an original in itself.
con- tents, all such copies are equally regarded as
originals. 3. American authorities declare that where a docu-
irient is executed in duplicate or multiplicate form, each one
(c) When an entry is repeated in the regular of the parts is primary evidence of the contents of the docu-
course of business, one being copied from another at
ment, and the other need not be produced. In such a case, each
is deemed an original (Anglo-American Packing, etc., Co. v.
148 EVIDENCE
(The Bar Lectures Veriest CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 149
C. Best Evidence Rule

Cannon, 31 Fed. 313 cited in Jones On Evidence, §209). The Originals under the Rules on Electronic Evidence (Bar 2003)
rule observed in the Philippines is the same. Thus, where car-
bon sheets are inserted between two or more sheets of 1. Under Sec. 1, Rule 4 of the Rules on Electronic Evi-
writ- ing so that the writing of a contract upon the outside dence, the original of the electronic document is its printout
sheet, including the signature of the party to be charged or output readable by sight or other means, provided it is
thereby, produces a facsimile upon the sheets beneath, such shown to reflect the data accurately (lsec. 1, Rule 4, Rules on
signature being thus reproduced by the same stroke of pen Electronic Evidence; MCC Industrial Sales Corporation v.
which made the surface or exposed impression, all of the lssangyong Corporation, 536 SCRA 4O8).
sheets so written on are regarded as originals and either of
“SECTION 1. Original of an electronic document.
them may be intro- duced in evidence without accounting for
— An electronic document shall be regarded as the
the nonproduction of the others (Capital Shoes Factory, Ltd. u. equivalent of an original document under the Best Evi-
Traveller Kids, Inc., 736 SCRA 489). dence Rule if it is a printout or output readable by
4. Under the Rules of Court, “the original ofa sight or other means, shown to reflect the data
document is one the contents of which are the subject of accurately.”
inquiry” (lsec. 4[a], Rule 130, Rules of Court). Thus, when the
2. The copies of the printout or output readable by
rule speaks of an “original,” it obviously does not refer to the
sight referred to in the immediately preceding paragraph are
original of an object evidence but an original of a
also deemed originals where the copies were executed at or
documentary evidence. In a documentary evidence, its
about the same time with identical contents, or is a counterpart
contents are the subjects of the inquiry. It is not, therefore,
produced by the same impression as the original or from
legally accurate to speak of the original of a gun. the same matrix, or by other means and which accurately
5. A signed carbon copy or duplicate of a document reproduces the original (Sec. 2, Rule 4, Rules on Electronic
executed at the same time as the original is known as a Evidence).
duplicate original and maybe introduced in evidence without
accounting for the non-production of the original. When a “SEC. 2. Copies as equivalent of the originals. —
document is in two or more copies executed at or about When a rlocument is in two or more copies executed
the same time, with identical contents, all such copies are at or about the same time with identical contents, or is
equally regarded as originals (Sbunac u. IS ylianteng, G.R. a counterpart produced by the same impression as the
original, or from the same matrix, or by mechanical or
No.205879, ARTil 23, 2014). electronic re-recording, or by chemical reproduction,
6. In a suit against the telegraph company for failure to or by other equivalent techniques which accurately
transmit a message, the original is the message submitted to reproduces the original, such copies or duplicates shall
the company for transmission (Jones on Evidence, §210 citing be regarded as the equivalent of the original.”
Conyers u. Postal Cable Co., 92 Ga. 619, 19 IS.E. 253 Am. St.
3. For the court not to consider the copies mentioned
ReR IOO). If the suit is for damages by the sender against
in the immediately preceding paragraph as having the same
the telegraph company because of delay in transmission, the
effect as originals, a genuine question as to the authenticity of
original would be the message as received by the recipient the original must be raised, or that the circumstances would
(Jones on Evidence, §210 citing Collins U. Western Union Tel.
make it unjust or inequitable to admit the copy in lieu of the
to., 145 Ala. 412 41 filo. 160, 8 ann. eas.
268). original (lsec. 2, Rule 4, Rules on Electronic Evidence). The
applicable rule provides:
160 xxx
 E 2. Copies as eqt/iva/enf of the originals. —
V CHAPTERIV— OBJECTANDDOCUMENTARYEVIDENCE 151
I D.PaolEidenceRub(Rlel30)
D Notwithstanding the foregoing, copies or dupli-
E “... A facsimile is not a genuin.e and. authen i.
N
pleading. It is at best an exact conv nreseryino all the
C
"SEC. marks of an original *fithout the original there is no way.
cates shall not be admissible to the same extent as the of determining on its face whether the facsimile nleadine
original if: is eenuine and authentic and was orieinallv aimed by the
(a) a genuine question is raised as to the authen- oartv and his counsel It mav in fact be a sham oleadinsr”
ticity of the original; or (Underscoring supplied).
(b) In the circumstances it would be unjust or
inequitable to admit a copy in lieu of the original." D. Parol Evidence Rule
(Rule 130)
Original printout of facsimile transmissions (Bar 2012)
Contracts and the parol evidence rule
1. ls a printout of a facsimile transmission an electro-
nie data message or electronic document? 1. Among the various evidentiary rules, it is the
parol evidence rule that has direct application to the law on
This question was answered by the Supreme Court in contracts. The rule, however, applies only to contracts which
MCC Industrial lsales Corporation u. lssangyong Corporation the parties have decided to set forth in writing, i.e., as Sec.
9 of Rule 130 provides: “When the terms of an agreement
The Court, in this case, concluded that the terms “elec- have been reduced to writing.” Hence, when the agreement is
tronic data message” and “electronic document,” as defined merely oral, the parol evidence rule should not be applied.
under the Electronic Commerce Act of 2000, do not include a 2. A contract is a “meeting of the minds” between two
facsimile transmission and cannot be considered as electronic or more persons. This is how a contract is described under
evidence. It is not the functional equivalent of an original un- Art. 1305 of the Civil Code. The Civil Code does not define a
der the Best Evidence Rule and is not admissible as electronic contract as a document, a deed, or an instrument. The docu-
evidence. ment, deed, or instrument is merely the tangible evidence of
Accordingly, the congressional deliberations on the Elec- a contract. It is the meeting of the minds between the parties
tronic Commerce Act show that when Congress formulated that constitutes the contract.
the term “electronic data message,” it intended the same 3. Before executing a written agreement, the parties
meaning as the term ‘electronic record” in the Canada law normally engage in preliminary oral negotiations. They may
which excludes telexes or [axes, except computer-generated even exchange letters or notes constituting offers and counter-
[axes from the term, “electronic data message.” offers which, of course, are not intended to be contracts in
The Court explained that since a facsimile transmission themselves but are merely parts of the negotiation process.
is not an ‘electronic data message“ or an “electronic docu- When the minds of the parties finally agree on the object and
ment,” and cannot be considered as electronic evidence by cause or consideration, a contract is born. In legal parlance,
the Court, with greater reason is a photocopy of such fax a contract is perfected. The perfected contract may be oral
trans- mission not electronic evidence. or written, or partly oral and partly written. The form of
the contract, as a rule, does not matter. As long as there
2. In Oaruida u. lsales, Jr. (271 SCRA 767), the Court is a “meeting of the minds,” there is a perfected contract.
explained the unacceptability of filing pleadings through fax Even a purely oral agreement does not negate the
machines. In so doing, the Court ruled: existence of a contract because under this jurisdiction,
even an oral
1gg EVIDENCE
(The Bar Lecturer Seriea)
agreement gives rise to a contract. There is a contract CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 153
because there is a meeting of the minds (See Arts. 1305 and D. Parol Evidence Rule (Rule 130)
1315, Ciuil Code o[the Philippines).
4. The decision of the parties to reduce the agreement 2. The term "parol” evidence means something
in written form is critical to the application of the parol "oral” or verbal but, with reference to contracts, it means
evidence rule. When they execute a written contract, the parol extraneous evidence or evidence aliunde (Blach’s Law
evidence rule ipso [acto comes into play. Under Sec. 9 of Rule Dictionary, 5th Ed., pp. 1005, 1006).
130, “When the terms of an agreement ha i›e been reduced to As used in the Rules of Court, the term refers not
writing, it is considered as containing all the tems agreed only to oral but also to written evidence which are outside
upon and there can be, between the parties and their successors of or extraneous to the written contract between the parties.
in interest, no evidence of such terms other than the contents
3. The parol evidence rule becomes operative when the
of the written agreement (See Sec. 9, Rule 130, Rules o[ Court;
issues in the litigation are the terms of a written agreement.
Carganillo u. People, G.fi. No. 182424, September 22, 2014).
In clear-cut language, the basic question that would bring
Application of the parol evidence rule (Bar 1978; 1981; 1983; the parol evidence rule into play is: “Wfioi fioue ifie parties
2012) agreed upon?” The appropriate answer would be: “Loob into
1. The "parol evidence rule" is embodied in Sec. 9,
the u›rit*en agreement and not elsewhere because onl y the
contents o[ the written agreement are admissible in evidence.”
Rule 130 of the Rules of Court which provides:
There is no need to look into any other source because such
“SEC. 9. Evic/ence of' written agreements. — When sources are barred by the rule. They are barred because, as
the terms of an agreement have been reduced to writing, Sec. 9 of Rule 130 provides, the writing “... is considered as
it is considered as containing all the terms agreed containing all the terms agreed upon. ”
upon and there can be, between the parties and their
successors in interest, no evidence of such terms 4. The provisions of Sec. 9 of Rule 130 consider the
other than the contents of the written agreement. written agreement as the embodiment of off the terms
agreed upon by the parties, i.e., a total integration of said
However, a party may present evidence to modify,
explain or add to the terms of the written agreement if agreement. Because the writing is considered as containing
he puts in issue in his pleading: all the terms of said agreement, the traditional distinction
between partial and total integration observed in traditional
(a) An intrinsic ambiguity, mistake or imperfec- American jurisprudence appears irrelevant to the application
tion in the written agreement; of the parol evidence rule in a Philippine setting. In American
(b) The fallure of the written agreement to express jurisprudence (29A Am Our 2d §§1116-1120), when a writing
the true intent and agreement of the parties thereto; is on its face incomplete, said writing is only a partial
(c) The validity of the written agreement; or integration of the agreement of the parties; hence, parol
evidence is not barred to prove matters not covered by the
(d) The existence of other terms agreed to by the
parties or their successors in interest after the execution writing. Parol evidence is, however, barred when the writing
of the written agreement. is a total integration of the agreement.
The term "agreement" includes wills.” Under the Rules of Court, the written agreement is
already “considered to contain all the things agreed upon.”
If this be so, the written agreement already represents the
final expression of the agreement of the parties on the subject.
164 EVIDENCE is inadmissible for any of the following purposes:
(The Bar Lectures Seriea)
(a) modify,
(b) explain, or (e) add to the terms of the written
Being the final agreement, any extraneous or “parol” evidence
agreement. CI—iAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 155
D. Parol Evidence Rule (Rule 130)
5. The parol evidence rule, therefore, forbids any
addition to, or contradiction of, the terms of a written
agreement by testimony or other evidence purporting to last paragraph of Sec. 9 of Rule 130 confirms this observa/.ion,
show that different terms were agreed upon by the thus: “The term ‘agreement’ includes mills” (Italics supplied).
parties, varying the purport of the written contract (lSeaOil 8. !Should the “u›riting” that embodies the agreenien,t o[
Petroleu Corporation o. Autocorp Group, 569 SCRA 387). the parties be in a particular form? Note that Sec. 9 of Rule
Whatever IS not found in the writing is understood to have 130 only makes reference to a “writing,” not a public writing
been waived and abandoned (Edrada u. Ramos, 468 SCRA or a private writing.
5977.
One case particularly well illustrates the answer to
6. In general, the parol evidence rule is designed to the question. In this case, the petitioner contends that since
give certainty to written transactions, preserve the reliability the promissory note is not a public instrument with the
and protect the sanctity of written agreements. formali- ties prescribed by law but a mere commercial paper,
The rationale behind the foregoing rule was explained in parol evi- dence may “overcome” the contents of the
promissory note.
Ortañez u. Court of Appeals (266 SCRA 561), thus:
The Supreme Court did not view the argument with
“Spoken words could be notoriously undesirable merit and held that the rule does not specify that the written
unlike a written contract which speaks of a uniform agreement be a public document. The Court stated in the
language. Thus, under the general rule in Section 9 of
case:
Rule 130 of the Rules of Court, when the terms of
an agreement were reduced to writing, as in this case,
it is deemed to contain all the terms agreed upon and “What is required is that the agreement be in
no evidence of such terms can be admitted other than writing as the rule is in fact founded on ‘long experience
the contents thereof’ (flee ofso Espouses Paras u. Kimwa that written evidence is so much more certain and
Construction and Development Corporation, G.R. No. accurate than that which rests in fleeting memory only,
171601, April 8, 2015). that it would be unsafe, when parties have expressed
the terms of their contract in writing, to admit weaker
7. Be it noted again that the parol evidence rule does evidence to control and vary the stronger and to show
not apply to oral agreements. For the .taid rule to apply, that the parties intended a different contract from that
expressed in the writing signed by them.’ Thus, for the
there must be a writing. Not all writings, however, will
parol evidence rule to apply, a written contract need not
trigger the application of the parol evidence rule. That be in any particular form, or be signed by both parties.
writing must embody an agreement. The tenor of Sec. 9 As a general rule, bills, notes and other instruments of a
clearly uses the following words: ’then the terms of an similar nature are not subject to be varied or contradicted
agreement have been reduced to writing ...” by parol or extrinsic evidence” (Inciong, Jr. v. Coitrt of
Appeals, G.R. No. 96405, June 26, 1996, 247 SICRAñ 78).
There is only one writing which, although not legally an
agreement, is considered to be one for purpDses of the appli-
Application of the rule only to parties and their successors-
cation of the parol evidence rule. This writing is a will. The in-interest
1. The parol evidence rule does not apply to
persons who are not parties to a deed and do not base their
claim on it (Eagleridge Development Corporation u. Cameron
Crronoi//e 8 Asset Management, Inc., 741 ISCRA 557).
166 EVIDENCE
(The Bar Lectures Series)
2. Only the parties and successors-
in-interest are bound by the parol evidence rule. The rule CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 157
that the terms of an agreement are to be proven only by D. Parol Evidence Rule lRule 130)
the contents of the writing itself refers to suits between
“parties and their successors in interest” (Sec. 9, Rule 130, the air conditioners and that the payment period for the
Rules o[ Court). The rule does not bind suits involving balance was two (2) years. He would not be allowed to
strangers to the contract. It applies only to the parties to a do so because of the rule that the only evidence of the
written agreement and those who are privy to a party or
terms of the agreement between the parties shall be the
successors-in-interest tzg›i ›im fur, Evidence, §1096). Thus, a
contents of the written agreement itself. Any extrinsic
total stranger to the writing is not bound by its terms and is
evidence therefore, that would modify, explain or add
allowed to introduce extrinsic or parol evidence against the
efficacy of the writing (Lechugas u. Court of Appeals, 22 Phil. 310, to the writing would be deemed "parol" evidence and
August 6, 1986, citing Horn u. Hansen, 57 N.W. 315). hence, barred. Parol evidence is inadmissible to establish
stipulations other than those contained in the writing.
Application of the rule to wills Thus, all other evidence of the contents of the writing are
to be ignored. This is the general rule.
1. The parol evidence rule applies to contractual obli-
gations. However, by the explicit provision of Sec. 9 of When and how to introduce parol evidence
Rule 130, the term "agreement” includes wills. There can,
there- fore, be no evidence of the terms of the will other 1. The rule prohibiting parol evidence is not absolute.
than the contents of the will itself. A party may present evidence when he desires to modify,
2. While the parol evidence rule applies to wills, an explain or add to the terms of the written agreement
express trust concerning an immovable or any interest therein (Carganillo u. People, Cr.fi. No. 182424, lseptember 22, 2014)
may not be proved by parol evidence (Art. 1443, Civil Code o[ by putting in issue in the pleadings any of the following:
the Philippines). (a) An intrinsic ambiguity, mistake or imperfection
in the written agreement;
Illustration:
(b) The failure of the written agreement to express
Mr. Seller and Mr. Ruyer entered into a written the true intent and agreement of the parties thereto
contract for the sale of a house and lot. The deed of sale
(Saberola u. lsuarez, 558 SICRA 135);
mentions a purchase price of P25 million, a down payment
of seventy percent (70%), and the balance payable (c) The validity of the written agreement; or
within one (1) year from the tender of the downpayment
(d) The existence of other terms agreed to by the
although the actual period agreed upon orally was two
parties or their successors-in-interest after the execu-
(2) years. The oral agreement between them also
tion of the written agreement (!Sec. 9, Rule 130, Rules o[
considered the air conditioners inside each room of the
house as part of the purchase price, but this fact was Court).
inadvertently not mentioned in the written agreement. 2. Introducing parol evidence means offering extrinsic
Under the parol evidence rule, Mr. Buyer would or extraneous evidence that would modify, explain or add to
not be allowed to show that the purchase price included the terms of the written agreement, but“ parol evidence may
only be allowed if, any of the matters mentioned above (from
"a” to "d”) is put in issue in the pleadings (Carganillo v. People,
Cr.fi. No. 182424, September 22, 2014). Without complying
with this requirement, i.e., putting in issue in the pleadings,
parol evidence cannot be introduced.
168 EVIDENCE
(The Bar Lectures Series)
Example: Seller sues Buyer for P300,000.00, an amount
representing the unpaid balance of the price of a car bought
by and duly delivered to the latter. Although the deed of sale
 CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 159 be admissible to vary the terms of the written agreement,
D. Parol Evidence Rule (Rule 130)
the mistake or imperfection thereof or its failure to express
the true agreement of the parties should be put in issue in
stipulated a contract price of P700,000.00, the actual oral the pleadings. As correctly noted by the appellate court, the
agreement was only for Buyer to pay a price of P400,000.00, plaintiff failed to raise the issue of an intrinsic ambiguity,
an amount already paid. The amount as written in the deed mistake or imperfection in the terms of the insurance policy,
of sale was actually a result of mere inadvertence. If Buyer or the failure of sald contract to express the true intent and
wants to prove during the trial that the true price as agreement of the parties thereto in its complaint. There was,
agreed by the parties is P400,000.00, Buyer must allege in his
therefore, no error on the part of the appellate court when it
answer to the complaint that there was a mistake in the
affirmed the RTC’s order disallowing the witness to testify as
writing and it does not reflect the true agreement of the to the alleged terms of the contract (Pilipinas Bank u. Court of
parties. Such Appeals, 341 ISCRA 527).
allegations would put such matters in issue in the pleading,
opening the door to the introduction of parol evidence.
Prior, contemporaneous, and subsequent agreements
3. To reiterate, the parol evidence rule does not per se
bar the introduction of parol evidence as long as the pleader 1. The traditional rules limit the inadmissibility of
puts in issue in the pleading any of the matters set forth parol evidence or extrinsic evidence to prior or contempora-
in the rule such as the mistake or imperfection of the neous stipulations. Hence, if a written agreement was executed
writing, its failure to express the true agreement of the by the parties on December 22, 2015, agreements before
parties or the existence of subsequent agreements. The key (prior) that date or even on the same date (contemporaneous)
words are putting in issue” in the pleading. Unless duly which modify, alter, or contradict the stipulations written
pleaded, a party will be barred from offering extrinsic into the December 22 agreement are not admissible since
evidence over the these constitute parol evidence. But assuming that the
objection of the adverse party. same parties entered into another agreement on January 5,
Thus, it was clearly declared: ‘Provided that a party puts 2016 which modifies some of the terms of the December 22
in issue in its pleading any of the four (4) items enumerated agreement, would the January 5 agreement be admissible
in the second paragraph of Sec. 9, Rule 130, a party may without violating the parol evidence rule? Under traditional
present evidence to modify, explain or add to the terms of rules, the agreement would be admissible because subsequent
the agreement (Spouses Paras v. Kimwa Construction and agreements are not barred by the parol evidence rule.
Development Corporation, G.R. No. 171601, April 8, 2015).
Citing American sources, the eminent authority, Moran,
4. In an action to recover from an insurance policy, the writes: “The parties to a written agreement may show by parol
plaintif'f wanted to put forth a witness who would testify as evidence tha*, subsequent to the execution of such written
to the actual terms of the contract of insurance as allegedly agreement, they have entered into an oral contract tending
agreed upon despite contrary provisions in said policy. The to waive, dissolve, or annul the former agreement, or in any
testimony was not allowed. The Supreme Court sustained manner to add to, or subtract from or vary or qualify the terms
both the trial court and the Court of Appeals on the basis of thereof’ (Moran, Comments on the Rules o[Court 1980, 112).
Sec. 9 of Rule 130.
2. The rule forbidding the admission of evidence
The Court ruled that Sec. 9, Rule 130 of the Revised aliunde or extrinsic evidence did not prohibit proof of an
Rules of Court expressly requires that for parol evidence to
160 EVDENCE the effect of adding to, changing or modifying the written
(The Bar Lectures Seriee)
agreement of the parties (Canuto u. Mariano, 37 Phil. 840). This is in
fact the rule in American jurisprudence (Jones on Evidence, 6th Ed.,Vol.
agreement entered into after the written instrument was 3, §16.10). Parol evidence on subsequent agreements may be
executed, notwithstanding that such agreement may have
admitted (29a Am Jur, Evidence, §1133). This means that the
CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 161
existence of another agreement after the execution of the D. Parol Evidence Rule (Rule 130)
original written agreement may be introduced without first
complying with the requirement of putting the subsequent but a single meaning, but some matter extraneous to the
agreement in issue. writing creates the ambiguity (Black’s law Dictionary, 5th
3. In contrast to the 1964 Rules on Evidence, the id., p.73 citing Vogue u. Von Almen, 379 Ill. 208, 40 N.E.2d
amendments to the rules, effective July 1, 1989, added 73, 82).
“subsequent agreements” as among those matters that need
In this type of ambiguity, the document is clear on its
to be put in issue. This signifies that before evidence may be face but matters outside the agreement create the ambiguity.
introduced that the parties entered into another agreement
after the execution of the written agreement, such subsequent Illustration: The testator’s will bequeaths to lose
agreement has first to be put in issue in the pleadings. The Navidad, his only grandson, a parcel of grazing land with
phraseology of the rule leads one to conclude that, unlike an area of ten thousand square meters, located in a town
traditional jurisprudence, such a subsequent agreement could called Magdiwang. It was discovered, after his death, that the
be invoked only if its existence is put in issue in the pleading. testator owns two parcels of land in the same place which are
of exactly the same area and description. There is here an
Intrinsic ambiguity in the writing intrinsic ambiguity in the writing.

1. An instance when evidence aliundg or parol evidence Similarly, if the testator owns only one parcel of land
may be allowed to modify, explain or even add to the written and bequeaths that land to his grandson, described in the will
agreement is when an intrinsic ambiguity exists in the as Jose Navidad, but it was discovered later that he has two
written agreement. It must be emphasized, however, that the grandsons with the same name, there also exists an intrinsic
mere existence of an intrinsic ambiguity will not authorize or latent ambiguity. Parol evidence may be introduced to
the admission of parol evidence. It is very important that the prove the grandson intended in the will provided that the
intrinsic ambiguity be put in issue in the party’s pleading. It is will’s intrinsic ambiguity is put in issue.
the raising of the issue of intrinsic ambiguity in the pleading 3. Note that the rule allowing parol evidence
which will authorize the introduction of parol evidence. particu- larly refers only to an intrinsic ambiguity in the
2. Intrinsic or latent ambiguity is one which is not writing. The
apparent on the face of the document but which lies in the ! obvious implication is that where the ambiguity is potent or
person or thing that is the subject of the document or deed. extrinsic, parol evidence will not be admitted even if the same
In other words, the ambiguity is intrinsic or latent when the is put in issue in the pleading.
language of the writing is clear and intelligible and suggests A patent or extrinsic ambiguity is that which appears on
the very face of the instrument, and arises from the defective,
obscure, or insensible language used (Blach’s Law Dictionary,
5th Ed., p. 73). Parol evidence is not admissible to explain the
ambiguity; otherwise, the court would be creating, instead of
construing a contract.
For example, a donor writes in the deed of donation that
lie is donating to his only son, Jose, one of his cars. Without
describing the specific car, there is a patent ambiguity. The
ambiguity which is apparent on the very face of the document
cannot be clarified or explained by parol evidence.
162 EVIDENCE
(The Bar Lectures Series)
 4. To reiterate, as long as the latent or intrinsic CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 163
ambiguity is raised as an issue in the pleadings, the court will D. I-'aro1 Evidence Rule (Rule 130)
allow evidence aliunde to explain the ambiguity to give effect
to the intention of a party or the parties. However, even if conduct or accident (Art. 1359, Ciuil Code of the Philippines),
a pleader raises as an issue the extrinsic or patent ignorance, lack of skill, negligence or bad faith on the part of
ambiguity in a contract or will, the court will not allow the person drafting the instrument (Art. 1364, ibid.).
parol evidence to explain the ambiguity or supply the 3. If the document appears to be a sale, parol evidence
deficiency. The rule only allows parol evidence in the case of may be resorted to if the same does not express the true
an intrinsic or latent ambiguity. intent of the parties because it is actually a loan. The owner
of the property may prove that the contract is really a loan
Mistake or imperfection in the writing and failure to express with mortgage by raising as an issue in the pleading the fact
the true agreement of the parties (Bar 2001) that the document is not really a sale (Madrigal i . Court o[
1. The admission of evidence aliunde may be justified Appeals, 456 ISCRA 247).
when there is a mistake or imperfection in the written 4. When there is a meeting of the minds between
agreement. Again, this mistake or imperfection must be put the parties, but their true intention is not expressed in
in issue in the pleading by the party who wants to prove the the instrument by any of the aforementioned causes, one of
defect in the writing. the parties may ask for the reformation of the instrument
(Art. 1359, Civil Code o[the Philippines).
The pleading does not need to specifically state words
and phrases such as ‘mistake”, “imperfection” or “failure to In an action for reformation of the instrument under
express the true intent of the parties.” When the other party Art. 1359 of the Civil Code, the plaintiff may introduce parol
responds to the allegations by making the proper denial, such evidence to show the real intention of the parties. An action
matters have already been put in issue (lsee Spouses Paras v. for reformation presupposes that a meeting of’ the minds
Kimwa Construction and Development Corporation, G.fi. No. exists between the parties, i.e., there is a contract between
171601, April 8, 2015). them although the instrument that evidences the contract
does not reflect the true agreement of the parties by reason of,
2. The failure of the writing to express the true
for instance, fraud or mistake.
agree- ment of the parties is another ground for admitting
parol evi- dence as long as the issue is raised in the 5. If there is no meeting of the minds between the par-
pleadings. In fact, mistake or imperfection of the writing may ties because of mistake, fraud, inequitable conduct or accident,
be a reason for the failure of the instrument or writing to the proper remedy is not reformation of the instrument but an
embody the intention of the parties. This does not mean, action for annulment (Art. 1359, Civil Code of the Philippines)
however, that the mistake or imperfection prevented the because the contract is rendered voidable by the vitiation of
meeting of the minds between or among the parties. This the consent of one of the parties (Art. 1390, ibid.).
only means that, despite the meeting of the minds, the true
agreement of the parties is not rejected in the instrument. Examples:

Aside from mistake, there are some other reasons enu- (a) The parties have agreed on the area of the land
merated in substantive law for the failure of the instrument to subject of the sale. By an act of fraud of the seller, who
express the true intention of the parties like fraud, inequitable prepared the deed of sale, a smaller area is indicated in
the deed. There is nothing defective in the contract which
is the meeting of the minds. The defect is in the deed of
sale, which is the instrument. If an action for reformation
164 EVIDENCE reforming the instrument, not for reforming the
(The Bar Lectures Series)
contract.
(b) An instrument may be reformed if it
is brought, the action must be for the purpose of
 does not express the true intention of the parties CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 165
because of lack of skill of the person drafting the E. Authentication and Proof of Documents (Rule l32J
instrument (Art. 1364, Civil Code of the Philippines).
(c) If the parties agree upon the mortgage or Distinctions between the best evidence rule and the parol
pledge of property, but the instrument states that the evidence rule
property is sold absolutely or with a right of repurchase, 1. The best evidence rule establishes a preference for
reformation of the instrument is proper (Art. 1365, the original document over a secondary evidence thereof.
Ciuil Code o[the Philippines). The parol evidence rule is not concerned with the primacy of
6. Reformation of the instrument cannot be brought to evidence but presupposes that the original is available.
reform any of the following: 2. The best evidence rule precludes the admission of
(a) Simple donations inter vivos wherein no condi- secondary evidence if the original document is available. The
tion is imposed; parol evidence rule precludes the admission of other evidence
to prove the terms of a document other than the contents of
(b) Wills; or the document itself for the purpose of varying the terms of the
(c) When the real agreement is void (Art. 1366, writing.
ibid.).
3. The best evidence rule can be invoked by any
litigant to an action whether or not said litigant is a party
Waiver of the parol evidence rule to the document involved. The parol evidence rule can be
The parol evidence rule can be waived by failure to invoked only by the parties to the document and their
invoke the benefits of the rule. This waiver may be made by successors-in- interest.
failure to object to the introduction of evidence aliunde. 4. The best evidence rule applies to all forms of writing.
Inadmissible evidence may be rendered admissible by The parol evidence rule applies to written agreements
failure to object (Santiago u. Court of Appeals, 278 ISCRA 98; (contracts) and "wills."
Policarpio u. Court o[Appeals, 194 ISCRA 729). Failure to object
to the parol evidence presented by the adverse party Note: If the subjects of inquiry are the terms of the written
operates as a waiver of the protection of the parol agreement between the parties, one must read the agreement
evidence rule (Willex Plastic Industries Corporation u. Court itself and not seek guidance on sources outside the writing.
ofAppeals, 256 SCRA 478). Sources outside such writing are considered "parol" evidence
and, as a rule, are inadmissible. This is the "parol
Probative value evidence" rule. However, one should not look into any
Even if parol evidence is admitted, such admission would writing. He must look at the original writing. This is the
not mean that the court would give probative value to the "best evidence" rule.
parol evidence. Admissibility is not the equivalent of
probative value or credibility. E. Authentication and Proof of Documents
(Rule 132)

Meaning of authentication (Bar 2012)

1. The concept of "authentication" occupies a vital
place in the presentation of evidence. Not only objects but
also documents introduced in evidence need to be
authenticated.
166 EVIDENCE
(The Bar LectureB SerieB)
 It is the preliminary step in showing the admissibility of an CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 167
evideztce. E. Authentication and Proof of Documents (Rule 132)

For example, a weapon, let us say, a .38 revolver, is

the document is not offered for that purpose, the document is
fomd in the crime scene. To be admissible in evidence, it
a mere object evidence as when the purpose is merely to prove
must be authenticated, This means that it must be shown its existence. Hence, not every document is to be received as a
to the satisfaction of the court that the weapon is the very documentary evidence.
same weapon found in the crime scene. To convince the court,
the proponent of the evidence must call someone to identify Public and private documents
the weapon and affirm: “This is the weapon I found in the
crime scene.“ This someone could be the police investigator or 1. Documents may either be public or private. This
someone else who handled the evidence. When he affirms it is classification is for the purpose of their presentation in
the same weapon, then the evidence is authenticated. evidence.
2. Litigation always involves the authentication of 2. Sec. 19 of Rule 132 enumerates the public docu-
either object or documentary evidence. Unless a document ments, thus:
is considered self-authenticating, it will not be admitted in
evidence without a prior authentication. The requirement for “SEC. 19. Classes of documents. — For the
authentication of evidence discloses the existence, in the legal purpose of their presentation in evidence, documents
system, of a legal presumption that in not, however, directly are either public or private.
written in statutes or procedural rules but is necessarily Public documents are:
implied therein. This presumption is: That objects and
(a) The written official acts, or records of the
documents presented in evidence are, as a rule, counterfeit.
official acts of the sovereign authority, official bodies
In short, an evidence presented in court is not presumed and tribunals, and public officers, whether of the Philip-
authentic. It is, therefore, incumbent upon the proponent of pines, or of a foreign country;
the evidence to prove its authenticity.
(b) Documents acknowledged before a notary
3. Authentication of a private document does not public except last wills and testaments; and
require a seal. There shall be no difference between sealed
(c) Public records, kept in the Philippines, of
and unseated private documents insofar as their admissibi- private documents required by law to be entered therein.
lity as evidence is concerned(lsec. 32, Rule 132, Rules of
Court). All other writings are private."

Concept of a document 3. The written official acts and records of the official
acts of the sovereign authority do not refer only to those of
The Philippine Supreme Court has defined a document the Philippines. They also refer to those of a foreign country.
as a ‘deed, instrument or other duly authorized paper by
which something is proved, evidenced or set forth" (Bermejo Documents acknowledged before a notary public are
v. Barrios, 31 S!CRA 764; People v. Camacho, 44 Phil. 484; public documents except last wills and testaments which are
U.IS. v. Orera, 11 Phil. 596). However, for documents to be private documents even if notarized (!Sec. 19 b1, Rule 132,
considered as documentary evidence, it must be ‘offered as Rules of Court). Assumed to be included in this class of public
proof of their contents“ (!Sec. 2, Rule 130, Rules of Court). If documents 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
 168 EVIDENCE
('Phe Bar Lecturer Seriea) CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 169
E. Authentication and Proof of Documents (Rule 132)

to be entered in a public record, the public document does not second mode does not require that the document be executed
refer to the private document itself but the public record in the presence of the witness. Here, the witness testifies
of that private document (Bar 2011). or shows evidence that the signature or handwriting of the
4. The rule does not give a specific definition of a maker is genuine (!Sec. 20, Rule 132, Rules of Court; Ong u.
pri- vate document except by providing that “... All other People, 342 SCRA 372; lsee also Banga yan v. RCBC, 647
uiritings are private” (Sec. 19, Rule 132, Rules of Court). Private ISCRA 8, 26,
docu- ments are those that do not fall under any of the April 4, 2011; !See also Tan !Shu y v. Maulawin, 665 SCRA 604,
enumera- tions in Sec. 19, Rule 132 of the Rules of Court 612, February 8, ’2012; lsee also Cercado-Siga v. Cercado, Jr.,
(Franco v. People, Cr.ft. No. 191185, February 1, 2016). G.R. No. 185374, knock 11, 2015).
The manner of authenticating a document, required by
Proof of a private document Sec. 20 of Rule 132, applies only when a private document
1. Sec. 20 of Rule 132 provides: is offered as authentic as when it is offered to prove that the
document was truly executed by the person purported to have
"SEC. 20. Proof of' prfvare docomeor. — Before made the same. Where the document is offered in evidence not
any private document offered as authentic Is received as authentic, its genuineness and due execution need not be
in evidence, its due execution and authenticity must be proven as when the only purpose is for the offeror to show that
proved either: a certain piece of document exists. When a witness says: “/
(a) By anyone who saw the document executed [ound this document iii the drawer o[m y table,” the document
or written; or only needs identification and not authentication. But when
(b) By evidence of the genuineness of the the witness wants to show that the deed was indeed executed
signature or handwriting of the maker. by his brother, the process of authentication required by
Sec. 20 must be complied with.
Any other private document need only be Identified
as that which it is claimed to be.”
Authentication of both the original and a photocopy of the
original
When authentication of a private document is required
While it is a basic rule o* evidence that the original copy
1. Where the private document is offered in evidence
prevails over a mere photocopy, there is no harm if in a case,
as authentic, there is a need to prove its due execution
and authenticity. If the document or writing is not offered both the original and a photocopy thereof are authenticated,
as authentic, it only needs to be identified as that which it identified and offered in evidence by the party proponent
is claimed to be (Slec. 2O, Rule 132, Rules of Court; Franco v. (Santos v. Alcazar, G.R. No. 183034, March 12, 2014).
People, G.ft. No. 191185, February 1, 2016).
When authentication of private documents is not required
2. isec. 20 recognizes two ways of proving the due
The requirement of authentication pf a private document
execution and genuineness of a private instrument. One way
is excused in some instances, specifically:
is to rely on the personal knowledge of a witness. Here, the
witness attests to the genuineness of the document because (a) when the document is an ancient one within the
it.was executed or signed in his presence, i.e., he context of Sec. 21, Rule 132 of the Rules of Court;
personally witnessed the execution or writing of the
(b) when the genuineness and authenticity of an
document. The
actionable document have not been specifically denied
170 EVIDENCE
IThe Bar Lecturer Seriea)
 under oath by the adverse party under Sec. 8 of Rule 8 CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 171
of E. Authentication and Proof of Documents (Rule 132)
the Rules of Court;
in which it would naturally be found if genuine, and is
(c) when the genuineness and authenticity of the
unblemished by any alterations or circumstances of
document have been admitted under Sec. 4 of Rule 129;
suspicion, no other evidence of its authenticity need
or be given."
(d) when the document is not being offered as
authentic as implied from Sec. 20, Rule 132 of the Rules How to prove genuineness of a handwriting
of Court, which requires authentication only when the
1. Sec. 22 of Rule 132 enumerates how the
document is offered as ‘authentic’ (lsee Patula u. People,
genuine- ness of a handwriting may be proved:
669 ISCRA 135, 157, April 11, 2012).
“SEC. 22. How gens/ineness o/' handwriting
Ancient documents (Bar 1990) proPec/. — The handwriting of a person may be proved
There is an exception to the rule requiring proof of the by any witness who believes it to be the handwriting
genuineness and due execution of a private document. The of such person because he has seen the person write,
exception is in the case of a private ‘ancient document.” A or has seen writing purporting to be his upon which
private document is considered ancient when it is more than the witness has acted or been charged, and has thus
thirty (30) years old, is produced from a custody in which it acquired knowledge of the handwriting of such person.
would naturally be found if genuine, and is unblemished by Evidence respecting the handwriting may also be
given by a comparison, made by the witness or the court,
any alterations or circumstances of suspicion (Sec. 21, Rule
with writings admitted or treated as genuine by the
132, Rules of Court; Cercado-lSiga u. Cercado, Jr., G.ft. No.
party against whom the evidence is offered, or proved
185374, March 11, 2015). (Bar 2011).
to be genuine to the satisfaction of the judge.”
When a document is ancient pursuant to the descriptions
in Sec. 21 of Rule 132, evidence of its authenticity need not 2. Sec. 22 of Rule 132 does not require expert testimony
be given, i.e., there is no need to prove its genuineness to prove the handwriting of a person.
and due execution. This means that there is no necessity
for observance of the authentication process under Sec. 20
! It may be proven by any witness who believes it to be the
such as the testimony of a person who saw the document handwriting of a person because: (1) he has seen the person
executed or by one who will show evidence of the write; or (2) he has seen writing purporting to be his upon
genuineness of the handwriting of the maker of the which the witness has acted or been charged, and has thus
document. It must, however, be established first that the acquired knowledge of the handwriting of such person; or
document is ancient and that it has the characteristics of a (3) by a comparison made by the witness or the court,
document so provided under Sec. with writings admitted or treated as genuine by the party
21. When all these are complied with, no other evidence of its against whom the document is offered, or proved to be
authenticity need be given. genuine to the satisfaction Gf the judge (Heirs of Amado
Sec. 21 of Rule 132 is clear on this point. To quote: Celestial v. Heirs of Editha G. Celestial, 408 ISCRA 291).

"SEC. 21. When evii:/ence of authenticity of private Importance of hnowing whether a document is public or
document nof necessary. — Where a private document private; proof of notarial documents
is more than thirty years old, is produced from a
1. The nature of documents as either public or private
custody
determines how they may be presented as evidence in court.
172 EVIDENCE A public document is admissible in court without further
(The Bar Lectures Seriesl
proof of its due execution and authenticity (Kummer u. People,
G.R. No. 174461, September 11, 2013). In contrast, a private
document, because it lacks the official or sovereign character CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 173
of a public document, or the solemnities prescribed by law, E. Authentication and Proof of Documents lRule 132)
requires authentication in the manner allowed by law or
the Rules of Court before its acceptance as evidence in court proof, the certificate of acknowledgment being prima [acre
(Patula u. People, 669 !SCRA 135, 156, April 11, 2012; lsee also evidence of the execution of the instrument or document
!Spouses £ehner u. Chua, G.fi. No. 174240, March 20, 2013). involved.
Thus, the chemistry report of a public o&cer, showing a The notarial seal converts a document from a private to
positive result of a paraffin test, is a public document. As a public document (A. C. No. 8637, !September 15, 2014; lsistual
a public document, the rule on authentication does not u. Ogena, A. C. No. 9807, February 2, 2016). A notarized docu-
apply. It is admissible in evidence without further proof of ment is entitled to full faith and credit upon its face. Courts,
its due execution and genuineness. The person who made the administrative agencies and the public at large must be able
report, need not be presented in court to identify, describe to rely upon the acknowledgment executed by a notary public
and testify how the report was conducted. Moreover, (Fabay u. Resuena, A. C. No. 8723, January 26, 2016).
documents consist- ing of entries in public records made in 3. Sec. 30 of Rule 132 affirms the above principles,
the performance of a duty by a public officer are prima Jocie thus:
evidence of the facts stated therein (Kummer u. People, G.R.
No. 174461, lSeptem- her 11, 2013). “SEC. 30. Proof of notarial documents. — Every
instrument duly acknowledged or proved and certified
Also, the picture seat plan, prepared by officers of the
as provided by law, may be presented in evidence with-
Civil Service Commission in implementing a government out further proof, the certificate of acknowledgement
examination, is a public document. The presentation of the being prima /'acie evidence of the execution of the
room examiners in not necessary to establish the authenticity instrument or document involved.”
and due execution of the said seat plan. Documents consisting
of entries in public records made in the performance of a duty The above rule presupposes that the document was
by a public officer are prima [acie evidence of the facts stated notarized by a person duly authorized to perform notarial
therein (Ciuil Service Commission u. Vergel de Dios, G.fi. No. functions. Without such authority, the private document does
203536, February 4, 2015). not become a public document.
2. Before the admission of a private document in evi- Public documents as evidence
dence that is offered as authentic, its due execution and au-
thenticity must be proved (Spec. 20, Rule 132, Rules of Court). Under Sec. 23 of Rule 132, when a public officer, in the
This requirement does not apply to a public document which performance of his duty, makes an entry in the public record,
is admissible without further proof of its due execution and the document of such entry is deemed prima [acre evidence
genuineness. of the fact stated in the entry. However, in the case of other
public documents, the facts stated therein only consti-
For example, under Sec. 30 of Rule 132, every document tute evidence of the fact that gave rise to the execution of
duly notarized may be presented in evidence without further such documents and of the date of the execution of the same.
Sec. 23, as quoted, declares:

“SEC. 23. Public documents as eyic/ence. — Docu-

ments consisting of entries in public records made in
the performance of a duty by a public officer are prima
Macie evidence of the facts therein stated. All other public
174 EVIDENCE the fact which gave rise to their execution and of the date of
(The Bar Le«t«r« Series) the latter."

documents are evidence, even against a third person, of In Kummer u. People, G.fi. to. 174461, September 11, 2013, for
example, the Court considered the entries made by a ' CHAPTERIV- OBJECTANDDOCUMENTARYEVIDENCE 175
government forensic chemist in a chemistry report as prima E.AuthentkationandProofofDocuments(Ru1e132)
Macie evidence of the facts stated therein.
“SEC. 26. Irremovability o/' public record. — Any
Proof of official record; attestation of a copy public record, an official copy of which is admissible
in evidence, must not be removed from the office in
1. While a public document does not require the which it is kept, except upon order of a court where
authentication imposed upon a private document, there is the inspection of the record is essential to the just
a necessity for showing to the court that indeed a record determination of a pending case."
of the oificial acts of official bodies, tribunals or of public
officers exists. How is this effected? Sec. 24 of Rule 132 Proof of foreign laws; doctrine of processual presumption
supplies the answer. The record of a public document may be (presumed-identity)
evidenced by: To prove a foreign law, the party invoking it must pres-
(a) An official publication thereof; or ent a copy thereof and comply with Secs. 24 and 25 of Rule 132
as mentioned in the preceding topic. Where a foreign law
(b) A copy of the document attested by the officer
having legal custody of the record or by the is not pleaded or, even if pleaded, is not proven, the
attestation of his deputy; i[the record is not kept in the presumption is that the foreign law is the same as
Philippines, the attestation must be accompanied with a Philippine law (Orion
certificate that such officer has the custody; if the !Savings Bank, G.fi. No. 205487, November 12, 2014), in accor-
office in which the record is kept is in a foreign country, dance with the doctrine of processual presumption.
the certificate may be made by a secretary of the
embassy or legation, consul-general, consul, vice-consul, Special power of attorney executed abroad (Bar 2011)
or consular agent or by any officer in the foreign
In one case, a special power of attorney was executed
service of the Philippines stationed in the foreign
and acknowledged before a notary public of the state of
country in which the record is kept, and authenticated
by the seal of his office. Washington, USA, authorizing the son of the principal to file
in the Philippines a suit against certain persons. The power
2. The attestation referred to in the preceding number of attorney did not contain a certificate of authentication
must ‘state, in substance, that the copy is a correct copy by a secretary of the Philippine embassy or legation,
of the original, or a specific part thereof, as the case may consul general, consal, vice-consul or consular agent or by any
be. The attestation must be under the official seal of the officer in the foreign service of the Philippines stationed in the
attesting officer, if there be any, or if he be the clerk of a foreign country.
court having a real, under the real of such court” (Sec. 25,
Rule 132, Rules o[ Court). The Court held that a notary public in a foreign country
is not one of those who can issue the certificate mentioned
3. The certificate and attestation are required because in Sec. 24 of Rule 132 of the Rules of Court. The Court ruled
of the general rule on the “irremovability of public records“ that non-compliance with said provision will render the
embodied in Sec. 26 of Rule 132, thus: special power of attorney inadmissible in evidence. Not being
duly established in evidence, the special power of attorney
cannot be used by the son to file a suit in representation
of his father. The case filed then is considered as one not
filed by a real party in interest. Not being a real party in
interest and without the authority to pursue the case, the
son could not have validly commenced the case. The
argument that the
176 EVIDENCE
(The Bar Lectures Seriea)
lack of consular authentication is a mere technicality that can
CHAPTER IV — OBJECT AND DOCUMENTARY EVIDENCE 177
be brushed aside in order to uphold substantial justice was E. Authentication and Proof of Documents (Rule 132)
also considered as untenable. The failure to have the special
power of attorney authenticated, according to the Court, is Last wills and testaments
not a mere technicality but a question of jurisdiction. Citing
the previous case of Lopez u. Court of Appeals (156 SCRA Last wills and testaments must undergo an authenti-
838), it was held that jurisdiction over the real party in cation process even if they are notarized as required by Art.
interest was never acquired by the courts. As a result, all 806 of the Civil Code of the Philippines. The Rules of Court
proceedings in the lower courts are declared null and void (Sec. 19[b], Rule 132), while declaring that the term “public
and, thus, set aside (Heirs of Medina v. Natiuidad, 572 ISCRA document” includes one acknowledged before a notary public,
227). nevertheless, expressly excludes last wills and testaments.
Besides, substantive law provides that no will shall pass
Public record of a private document either real or personal property unless proved and allowed in
A public record of a private document may be proved by the proper court (Art. 838, Ciuil Code of the Philippines). The
any of the following: same substantive rule is echoed in Sec. 1 of Rule 75 which
provides:
(a) By the original record; or
(b) By a copy thereof, attested by the legal “SECTION 1. Allowance necessary. Conc/z/siv’e as
custo- dian of the record, with an appropriate to execution. — No will shall pass either real or personal
certificate that such officer has the custody (lsec. 27, estate unless it is Droved and allowed in the prooer
Rule 132, Rules of Court). court. S‹abject to the right of appeal, such allowance
of the will shall be conclusive as to its due execution”
Proof of lack of record (Underscoring supplied).

A litigation does not always involve evidence of the

Explaining alterations in a document
existence of a record. Sometimes, the issue centers on the
absence of an official record. How then may the absence of a The party proaucing the document as genuine but which
record be proven? bears alterations after its execution has the duty to account for
Proof of lack of record of a document consists of a any alteration found in a document purported to be genuine.
written statement signed by the officer having custody of an for such purpose, he may show any of the following:
official record or by his deputy. The written statement must (a) that the alteration was made by another with-
contain the following matters: out his concurrence; or
(a) there has been a diligent search of the record; (b) that the alteration was made with the consent
(b) that despite the diligent search, no record of of the parties affected by it;
entry of a specified tenor is found to exist in the records
of his office. (c) that the alteration was otherwise properly or
innocently made; or
The written statement must be accompanied by a
certificate that such officer has the custody of official records (d) that the alteration did not in anyway change
(lsec. 28, Rule 132, Rules of Court). the meaning or language of the instrument.
Failure to do any of the above will make the document
inadmissible in evidence (lsec. 31, Rule 132, Rules of Court).
178 EVIDENCE Proof of documents in an unofficial language
(The Bar Lectures Series)
Because the rule provides that a document written in an
unofficial language shall not be admitted as evidence, it must
be accompanied by a translation into English or Fili- pino. C °TER IV — OBJECT AND DOCUMENTARY EVIDENCE 179
To avoid interruption of court proceedings, attorneys are E. Authentication and Proof of Documents (Rule 132)
required to have such translation prepared before trial
(lsec. 33, Rule 132, RuleE of Court). Foreign judgments; divorces
Before a foreign judgment is given presumptive evi-
Impeachment of judicial record dentiary value, the document must first be presented and
1. A judicial record refers to the record of judicial admitted in evidence. A divorce obtained abroad is proven
proceedings (Black’s law Dictionary, 5th Ed., p. 76£7. It does by the divorce decree itself. Indeed, the best evidence of a
not only include official entries or files or the official acts of a judgment is the judgment itself. The decree purports to be a
judicial officer tWharton’s Criminal Evidence, 11th Ed., §805), written act or record of an act of an official body or tribunal of
but also the judgment of the court (Blach:’e Can Dictionary, a foreign country.
p. 762). Under Secs. 24 and 25 of Rule 132, on the other hand, a
2. Sec. 29 of Rule 132 authorizes the impeachment of writing or document may be proven as a public or official re-
any judicial record if there be evidence of the existence of any cord of a foreign country by either (1) an official publication or
of the following grounds: (a) lack ofjurisdiction in the court or (2) a copy thereof attested by the officer having legal custody
judicial officer; (b) collusion between the parties; or (c) fraud of the document. If the record is not kept in the Philippines,
in the party offering the record, in respect to the proceedings. such copy must be (a) accompanied by a certificate issued by
the proper diplomatic or consular officer in the Philippine
foreign service stationed in the foreign country in which the
Registration of contracts
record is kept, and (b) authenticated by the seal of his office
1. Where a contract in required by law to be registered, (Vda. de Catalan v. Catalan-Lee, 665 scini «8z, 4gs, Febru-
the same must be, as a rule, in a public instrument. for ary 8, 2012).
example, for purposes of registration and convenience,
acts and contracts which have for their object the creation, Church registries
transmission, modification or extinguishment of real rights As early as in the case of U.S. u. Euangelista, 29 Phil.
over immovable property must appear in a public instrument 215, it has been settled that church registries of births,
(Art. 1358, Civil Code of the Philippines). marriages, and deaths made subsequent to the promulgation
2. Certain contracts must be in writing or in a public of General Orders No. 68, promulgated on December 18, 1889,
instrument in order to be valid. Examples: (a) A donation of and the passage ofAct No.190, enacted on August 7,1901, are
an immovable (Art. 749, Civil Code of the Philippines); (b) A no longer public writings, nor are they kept by duly authorized
donation of a movable with a value exceeding five thousand public officials. They are private writings and their
pesos fArt. 748, ibid.); (c) A partnership where immovable authenticity must, therefore, be proved, as are all other
property or real rights are contributed (Art. 1771, ibid.). private writings in accordance with the Rules of Evidence
(Llemos u. Llemos, 513 !SCRA 128; lsee also Cercado-!Siga u.
Cercado, Jr., G.fi. No. 185374, March 11, 2015). (Bar 2011).

— OOO —
CHAPTERV— TESTIMONIALEVIDENCE
A. Qualifications of Witnesses 181

TESTIMONIAL EVIDENCE

Chapter V Qualifications of Witnesoea

 whether it be object, demonstrative or documentary evidence,
Nature of testimonial or oral evidence need the intervention of a witness. The admission of any
1. Testimonial or oral evidence is evidence elicited evidence requires its identification by a witness. It is a legal
kom the mouth of a witness as distinguished from real truth that identification precedes authentication. Without
and documentary evidence (BlacA’s Eaui Dictionary, 5th a witness, no evidence can ever be authenticated. Even the
Ed., so-called “self-authenticating documents” need a witness to
p. 1323). It is sometimes called oiro voce evidence which identify the document. The reason is simple. Being inanimate,
literally means ‘living voice" or by word of mouth. In this kind a document or an object cannot speak for itself.
of evidence, a human being is called to the stand, is asked
questions, and answers the questions asked of him. The’ Presumption in favor of competence of a witness
person who gives the testimony is called a “witness.”
As a general rule, a person who takes the stand as a
2. Recall that competent evidence means evidence that witness is presumed to be qualified to testify. A party who
is not excluded by the law or rules. It, therefore, means the desires to question the competence of a witness must do so
eligibility of an evidence to be admitted by the court. by making an objection as soon as the facts tending to show
When applied to a witness, competence means that the incompetency are apparent (Jones on Evidence, Vol. 3, §796).
witness is qualified to take the stand and testify. It means
that he is fit or eligible to testify on a particular matter in Qualifications of a witness
a judicial proceeding.
1. As to the qualifications of a witness, Sec. 20,
If a witness cannot perceive or even if he can perceive Rule 130 of the Rules of Court provides:
but he cannot remember what he has perceived, he is
incompe- tent to testify. If he has no personal knowledge of “SEC. 20. I/pitnesses; their qualifications. — Except
an event the truth of which he wants to prove, he is also as provided in the next succeeding section, all persons
incompetent to testify. Competence of a witness, therefore, who can perceive, and perceiving, can make known
refers to his personal qualifications to testify. Competence their perception to others, may be witnesses.
also includes the absence of any factor that would disqualify Religious or political belief, interest in the outcome
him from being a witness. of the case, or conviction of a crime unless otherwise
3. Experience and plain observation will tell us that provided by law, shall not be a ground for disqualifica-
the presentation and introduction of every kind of evidence, tion.”

180 2. The above provision supplies the basic qualifica-

tions of a witness, namely:
(a) He can perceive; and
(b) He can make known his perception to others.
To these, we may add the following:
(a) He must take either an oath or an affirmation
(lsec. 1, Rule 132, Rules o[Court); and
182 EVIDENCE
CHAPTER V — TESTIMONIAL EVIDENCE 183
(TheBarLxtumsSents)
A. Qualifications of Witnesses

(b) He must not possess any of the disqualifications Oath or affirmation

imposed by law or the rules.
1. While the taking of an oath or of an
affirmation is either rarely mentioned and merely glossed
over by commentators in discussing the qualifications of a 4. Not all may want to take an oath for reasons of
religion or the lack of it. Thus, the rule in this jurisdiction
witness to take the stand, the rule clearly requires that the
affords the courts the flexibility to deal with those who refuse
examination of a witness in a trial or hearing shall be done x
to being sworn by requiring the witness to make an
x x under oath or affirmation (Dec. 1, Rule 132, Rules of
affirmation instead. Consider this hypothetical:
Court). The willingness to take an oath or affirmation is an
essential qualification of a witness. No court would and Suppose that the prosecution calls a witness
should allow the testimony of someone who desires to testify and offers his testimony to prove that it was indeed
but refuses to swear or make an affirmation. the accused who ran over the victim with a car.
2. A person is not qualified to be a witness if he is Here goes the brief exchange between the bailiff
incapable of understanding the duty to tell the truth. An oath or appropriate court personnel and the supposed
or affirmation is necessary for the witness to recognize the witness:
duty to tell the truth. The oath of a witness signifies that he “Sir, please raise your right hand.”
is swearing to the Creator “to tell the truth and nothing but
the truth” and that if he does not, he will later on answer for The supposed witness retorts: “for what?”
all the lies he is guilty of. Of course, in the early stages of The bailiff snaps: “You are going to be sworn
legal history, this was concededly the underlying reason for before you testify, Sir.”
requiring an oath before a witness testifies. In modern times,
this reason may have been obscured by a universal shift in “No! I will not!”
moral valu’es but the oath is, nevertheless, required, as a “Do you instead want to make an affirmation?”
rule, even if, to many, the oath appears merely to be a pious “I won’t do that either!”
incantation or ‘a meaningless ritual which must simply be
done to be allowed to testify, The next most probable scenario is of the court dismissing
3. The issue which a judge must resolve before a wit- the proposed witness. Most likely, that person will not be
allowed to testify. This is because he failed to meet the oath
ness is allowed to take the stand is whether the witness un-
derstands the nature of an oath, realizes the moral duty to tell or affirmation requirement.
the truth, and understands the prospects of being punished
for a falsehood. This understanding is not necessarily inferred Ability to perceive
from the age of the witness. One American ease (People o. A witness must be able to perceive an event. Thus, it
Berry 19681, 260 CA!2d 649, 67 CR 312) ruled that it is not would be absurd to ask a blind man what he saw, or a deaf
required that the understanding of the importance of an oath person what he heard. Corollary to this capacity to perceive
be a detailed one. It is enough that the witness understands is the requirement that the witness must have personal
and believes that some earthly evil will occur to him for lying. knowledge of the facts surrounding the subject matter of
his testimony. Sec. 36 of Rule 130 explicitly requires that o
witness can testify onl y to those [acts which he knows o[ his
personal knowledge, i.e., those which are derived from his own
perception. When the witness takes an oath or an affirmation
to tell the truth, he cannot live up to that oath or affirmation
without his ability to show that his testimony is based on his
184 EVIDENCE
(The Bar Lectures Seriea) CHAPTER V — TESTIMONIAL EVIDENCE 185
A. Qualifications of Witnesses

personal knowledge. Without this personal knowledge, the A witness is called to testify in a
witness lacks the competence to testify. To illustrate: defamation suit for alleged defamatory acts
committed against the offended party on
 March 27, 2015 in the corner of XYZ and ABC Sts. in
they are going to testify to; and (3) communicate their ideas
Manila. He willingly took the oath. through a qualified interpreter (People v. Tuangco, 345 ISCRA
Q: Sir, where were you on the 27th of March 2015 429).
at around 7:30 in the evening?
Gompetency and credibility (Bar 2004)
A: I was in Israel, Sir, for a pilgrimage.
1. Competence is a matter of law or, in this jurisdiction,
Obviously, the witness will be dismissed from the stand. also a matter of rule. Credibility of a witness has nothing
The court has no use of him. He is incompetent for the to do with the law or the rules. It refers to the weight
purpose for which he was called. While taking the oath and trustworthiness or reliability of the testimony. In
enabled him to meet the first requirement for competency, deciding the competence of a witness, the court will not
he miserably failed the next test. He did not perceive inquire into the trustworthiness of a witness.
anything about the incident and could offer no facts about
2. Accordingly, a prevaricatin,g witness or one who has
the incident based on his personal knowledge. given contradicting testimonies is still a competent witness
(U.!S. u. COok, 949 F2d 289 [10th Cir. 1991]). Although he may
Ability to make known the perception to others be competent as a witness, his testimony may not be given
1. The ability of the witness to make known his much weight by the court or no weight at all if the court deems
perception to the court involves two factors: (a) ability him not worthy of belief. The competence of the witness must,
to remember what has been perceived; and (b) ability to hence, be sharply distinguished from his credibility.
communicate the remembered perception. Consider a witness 3. Competency of a witness has reference to the
who has taken the oath and has personal knowledge of basic qualifications of a witness as his capacity to perceive
the event on which he is going to testify. Imagine the and communicate his perception to others. It also includes
exchange that follows in the courtroom: the absence of any of the disqualifications imposed upon a
witness (!Secs. 20-24, Rule 130, Rules of Court). Credibility
Q: What incident, if any, occurred... etc... el:c.... of a witness refers to the believability of a witness and has
A: Sorry, sir. I... can’t recall... I don’t remember. nothing to do with the law or the rules. It refers to the weight
and trustworthiness or reliability of the testimony.
It is of common reason to realize that a witness is
In deciding the competence of a witness, the court will
pre- not inquire into the trustworthiness of a witness. As earlier
sented to testify on a matter he has perceived. If he cannot mentioned, a witness who has given contradicting testimonies
remember what he perceived, he cannot be a competent is still a competent witness (U.3. u. Cook, 949 F2d 289 [10th
Cir. 1991J). Bias is not even a basis for declaring a witness
incompetent to testify (U.S. v. Ceruantes-Pacheco, 826 F2d
310[5(h Cir. 1987)).
witness.
4. Under the Rules of Court, persons covered by the
2. Deaf-mutes are not necessarily incompetent as wit- Survivorship Disqualification Rule (Dead Man’s Statute)
nesses. They are competent where they can: (1) understand cannot testify as to any matter of fact occurring before the
and appreciate the sanctity of an oath; (2) comprehend facts death or insanity of the adverse party (Slec. d3, ftu/e 130, Rules
186 EVIDENCE
(The Bar Lectures Seriea) CHAPTER V — TESTIMONIAL EVIDENCE 187
B. Disqualifications of Witnesses

of Court). This rule is directed to the issue of competency of a testify (U.SI. u. Behrens, 689 F.2d 154 fl0th Cir.
witness, not to his credibility. 19821) (Bee 2011). Drug abuse becomes
relevant oily if the witness was under the
5. Drug abuse will not render a person incompetent to
in8uence of drugs at the time he is testifying or at the time
(c) interest in the outcome of the case; or
the events in question were observed (U.S. v. Novo
!Sampol, 636 F.2d 621 ID.C. Cir. 19801). While bias and drug (d) conviction of a crime, unless otherwise provided
abuse may not be grounds for barring a witness from testify- by law (Example: those who have been convicted of
ing, they may serve as grounds for attacking the credibility of falsification of a document, perjury or false testimony
a witness. are disqualified from being witnesses to a will). (Art.
6. Questions concerning the credibility of a witness are 821[2], Civil Code o[ the Philippines) (Bar 2011). As
best addressed to the sound discretion of the trial court as a consequence, these persons may not also testify as
it is in the best position to observe his demeanor and bodily witnesses in the probate of a will where the subject of the
movements (Llanto u. Alzona, 450 ISCRA 288). The Supreme testimony is the very fact of execution of the will in their
Court generally defers to the trial court’s assessment because presence.
it has the singular opportunity to observe the demeanor of 2. The relationship of a witness with a party does
witnesses and their manner of Le aiifying(People v. not ipso [acto render him a biased witness in criminal cases
Bustamante, 533 SICRA 179; People v. Slolina, G.ft. No. 196784, where the quantum of evidence is proof beyond reasonable
Jcinuary I’m, 2016). doubt. There is no reason why the same principle should not
7. Pindings of the trial court, its calibration of the apply to a civil case where the quantum of evidence is only
testimony of the witnesses, and its assessment of the preponderance of evidence (Northwest Airlines, Inc. v. Chiong,
probative weight thereof, as well as its conclusions 543 SCRA 308). (Bar 1994)
anchored on said findings are accorded respect if not
conclusive effect (Ricalde u. People, G.2t. No. 211002, January B. Disqualifications of Witnesses
21, 2015).
Disqualification by reason of mental incapacity
Pindings of the lower courts with respect to the
credibility of a rape victim, for example, are conclusive 1. In relation to a disqualification by reason of mental
(People v. Dayapdapan, G.R. No.209040, December 9, 2015). incapacity, Sec. 21(a) of Rule 130 declares:

Factors that do not affect the competency of a witness (Bar “SEC. 21. Disqualification by reason of' mental
2011) incapacity x x x. — The following persons cannot be
witnesses:
1. Under Sec. 20 of Rule 130, except as provided by
(a) Those whose mental condition, at the time
the law and the rules, the following factors do not, as a
of their production for examination, is such that they
general rule, constitute a disqualification of a witness: are incapable of intelligently making known their
(a) religious belief; perception to others;

(b) political belief; (b) x x x”

2. To be disqualified as a witness by reason of mental

incapacity, the following must concur:
(a) the person miist be incapable of intelligently
making known his perception to others; and
188 EVIDENCE
(The Bar Lectures Series) CHAPTER V — TESTIMONIAL EVIDENCE 189
B. Disqualifications of Witnesses

(b) his incapability must exist at the time of his Sec. 21(a) of Rule 130 establishes the rule
production for examination. that the mental incapacity of a witness at the
time of his perception of the events subject of the
3. Note that, in a disqualification by reason of mental
testimony does not affect his competency as long as he is
incapacit y under Sec. 21(a) of Rule 130, the incompetence of
competent at the time he is produced for examination to the witness must exist, not at the time of his perception of
make known his perception to others. His incapacity at the the facts, but at the time he is produced for examination, and
time of perception, although without legal effect on his consists in his inability to intelligently make known what he
competency to testify, would, however, concededly, affect has perceived. In disqualification by reason of immaturity,
his credibility. the incompetence of the witness must occur at the time he
3. The test supplied by the Rules of Court is simple: Is perceives the event including his incapability to relate his
the mental condition of the proposed witness at the time he perceptions truthfully.
is called to testify is such that he is incapable of intelligently The rule on disqualification by reason of immaturity
making known his perception to others? (Sec. 21(a1, Rule 130, must, however, be construed in relation to the Rule on
Rules of Court). The answer to this question will determine Examination of a Child Witness EA.M. 004-07-ISC, December
whether or not a person is a mentally-competent witness. 15, 2000).

Disqualification by reason of immaturity Child witness; meaning (Bar 2012)

1. Sec. 21(b) of Rule 130 provides: 1. A “child witness” is any person who, at the time
of giving testimony, is beiow the age of eighteen (18) years
"SEC. 21. Disqualification gy reason of x x x (Sec. 4(a1, Rule on Examination of a Child Witness, A. II. 004-07-
immaturity. — The following persons cannot be sc).
witnesses:
2. May a person over eighteen (18) years old be some-
(a) x x x times considered as a child? Yes, he may. In child abuse cases,
(b) Children whose mental maturity is such as to a child includes one over eighteen (18) years but is found by
render them incapable of perceiving the facts respect- the court as unable to fully take care of himself or protect him-
ing which they are examined and of relating them truth- self from abuse, neglect, cruelty, exploitation, or discrimina-
fully." tion because of a physical or mental disability or condition
(Sec. faJ, Rule on Examinati•on o[a Child Witness, A.M. 004-
2. To be disqualified as a witness by reason of immatu- oz-sc .
rity, the following must concur:
Competency of a child witness; presumption; competency
(a) the mental maturity of the witness must render examination
him incapable of perceiving the facts respecting which he
1. Every child is presumed qualified to be a witness.
is examined; and This is the presumption established by the Rule on Examina-
(b) he is incapable of relating his perception tion of a Child Witness (lsec. 6, A.M. 004-07-TSC) and to rebut
truthfully flee. 21[b1, Rule 130, Rules o[Court). the presumption of competence enjoyed by a child, the bur-
den of proof lies on the party challenging his competence (lsec.
6kbJ, Rule. on Examination o[a Child Witness).
2. When the court finds that substantial doubt exists
regarding the ability of the child to perceive, remember,
190 EVIDENCE
(The Bar Lecturer Seriea) CHAfTERV- TESTIMONIALEWDENCE 191
B. Disqualifications of Witnesses

communicate, distinguish truth from falsehood, or appreciate motu pT’ORrio or on motion of a party(Sec. 6,
the duty to tell the truth in court, the court shall conduct a Rule on II'xamination of a Child Witness).
competency examination of the child. The court may do so
 A party who seeks a competency examination must
6. The assessment of the competency of the child is
present proof of necessity of a competency examination. designed to be a continuing one. 'Phe court has the duty of
Proof of such necessity must be grounded on reasons other continuously assessing the competence of the child through-
than the age of the child because such age, in itself, is not a out his testimony (Smac. 6 f1, Rule on Examination of a Child
sufficient basis for a competency examination ésec. 6 aJ, Rule Witness).
on Examination of a Child Witness).
7. The court may order that the testimony of the
3. The competency examination of a child witness is child be taken by live-link television if there is a substantial
not open to the public. Only the following are allowed to likelihood that the child would suffer trauma from testifying
attend the examination: in the presence of the accused, his counsel or the prosecutor as
(a) The judge and necessary court personnel; the case may be. The trauma must be of a kind which would
impair the completeness or truthfulness of the testimony of
(b) The counsel for the parties; the child (lsec. 2Jf//, Rule on Examination ofa Child Witness).
(c) The guardian ad litem; (Bar 2005)

(d) One or more support persons for the child; and Survivorship disqualification rule or the dead man’s statute
(e) The defendant, unless the court determines (Bar 2001)
that competence can be fully evaluated in his absence 1. The survivorship disqualification rule (dead man’s
(lsec. 6f 7, Rule on Examination of a Child Witness). statute) is detailed in Sec. 23 of Rule 130 which provides:
4. The competency examination of the child shall be
“SEC. 23. Disqualification by reason of death or
conducted only by the judge. If the counsels of the parties insanity of' adverse party. — Parties or assignors of
desire to ask questions, they cannot do so directly. Instead, parties to a case, or persons in whose behalf a case
they are allowed to submit questions to the judge which he is prosecuted, against an executor or administrator or
may ask the child in his discretion (lsec. 6 d1, Rule on other representative of a deceased person, or against
Examination o[a Child Witness). a person of unsound mind, upon a claim or demand
against the estate of such deceased person or against
5. The questions asked at the competency examination such person of unsound mind, cannot testify as to
shall be appropriate to the age and developmental level of the any maNer of fact occurring before the death of such
child. The questions shall not be related to the issues at the deceased person or before such person became of
trial but shall focus on the ability of the child to remember, unsound mind.”
communicate, distinguish between truth and falsehood and
2. This rule “applies only to a civil case or a special
appreciate the duty to testify truthfully (1 ec. 6fe7, Rule on proceeding over the estate of a deceased or insane person”
Examination of a Child Witness). (Regalado, Remedial law Compendium, Vol. II, 2008 Ed.,

The following are the elements for the application of this

rule:
(a) The suit is upon a claim by the plaintiff against
the estate of said deceased or person of unsound mind;
192 193
EVIDENCE CHAPTERV -
(The Bar Lectures Series) TESTIMONIALEMDENCE
B. Disqualifications of Witnesses
 (b) The defendant in the case is the executor or unfair to the memory of Mr. D if I were to listen to you. I
administrator or a representative of the deceased or the am sorry, I cannot pay.”
person of unsound mind; What is the effect of the death of Mr. D in relation
(c) The witness is the plaintiff, or an assignor to Sec. 23 of Rule 130? The rule is clear. Mr. C is rendered
of that party, or a person in whose behalf the case is incompetent to testify as to the transaction he had with Mr.
rule: prosecuted; and D. He is incompetent because of the possibility that his claim
is fraudulent. If Mr. C were to be heard, there would be a high
(d) The subject of the testimony is as to any matter risk of paying a fraudulent or a fictitious claim. It is Mr. C
of fact occurring before the death of such deceased person who has the motive to lie. He is the survivor. Mr. D cannot
or before such person became of unsound mind (Sec. 23, lie. He is dead. He did Hot Survive. Worse, he cannot
Rule 130, Rules of Court). answer back. He cannot disprove the claim of Mr. C. To
3. A simple hypothetical may help us understand the level the playing field between the lucky survivor and the
poor deceased, our remedial law ancestors devised a rule
that would seal the lips of the survivor by declaring him
Mr. D approaches Mr. C, one rainy Sunday incompetent to testify on the transaction between him and
morning, to borrow P100,000.00 to be paid exactly a the deceased. The rule is definitely one that does not
year after. Without hesitation, Mr. C gives Mr. D the protect the survivor even at the risk of not paying a just and
amount requested. Mr. C does not require Mr. D to valid claim because it is the survivor who has the stronger
execute a promissory note. They have been very good reason to file a false claim. The rule is for the protection of the
friends for as long as they can remember. Years ago, guy who died. Hence, the name, Duad Man’s !Statute.
when Mr. C’s small business was on the verge of 4. The Supreme Court had repeatedly held, in not a
bankruptcy, it was
the generosity of the then wealthy Mr. D that bailed him few cases, that the object of the rule is to guard against
out. Exactly a day before the agreed date for payment, the temptation to give false testimony in regard to the
Mr. D peacefully joins his Creator without paying the transaction on the part of the surviving party and thereby put
debt. What does Mr. C do? Well, he does what every the parties upon equal terms. Its purpose is to close the lips of
creditor would do under the circumstances. He goes the plaintiff when death has closed the lips of the
to the executor of what remains of the estate of Mr. D, defendant, in order to remove from the plaintiff the
and tells him of the debt of Mr. D. He says: temptation to do falsehood and the possibility of fictitious
claims against the deceased (Tan u. Court of Appeals, 295 SCRA
“Today is supposed to be the due date of his debt. I 247; Sree also Garcia u. Vda. de Caparas, G.R. No. 180843, April
cannot demand payment from him because he is dead. 17, 2013).
You are the executor and you are very much alive. I am
asking you to pay his debt.” It is obvious that the rule, by its terms, intends to protect
the representatives of the deceased person when sued in such
The executor retorts: capacity or a person of unsound mind pn a claim against the
estate of the decedent or a claim against the insane person.
“Look Sir! I am not sure if you are telling the truth.
Don’t get me wrong! I am not calling you a liar but I How to apply the rule
cannot verify the truth of your claim. Mr. D is dead. He
cannot speak. His lips are forever sealed. I would be 1. For a clearer understanding of the rule, the
doing an act initial point of inquiry would be in regard to the parties
involved.
194 EVIDENCE CHAPTER V — TESTIMONIAL EVIDENCE 195
lThe Bar Lectures Seriea)
B. Disqualifications of Witnesses
In order to determine whether or not the survivorship 3. The next essential point to consider is the nature of
disqualification rule will apply to a particular situation, pre the case. What is the case about? Sec. 23 of Rule 130 clearly
should know who the plaintiff is. We should also know who specifies that the case be “upon a claim or demand against
the defendant is. the estate of the deceased person or a person of unsound
The plaintiff is the person who has a claim against the mind.” The rule does not apply when the action brought is not
estate of the decedent or the person of unsound mind. He is “against” the estate, or not upon a claim or demand “against”
the survivor. The defendant is the representative (executor or the estate. This claim, from the tenor of the rule is, by its
administrator) of the deceased or the person of unsound mind. nature, civil, not criminal, because the estate itself cannot be
Therefore, the persons entitled to invoke the protection of the criminally liable.
dead man’s statute are the executor, administrator and any
4. The parties and the nature of the action having
other representative of a deceased person, when they are the
been determined, the inquiry should now shift to the persons
defendants in a claim against the estate of the deceased. The
protection may, likewise, be invoked by a person of unsound prohibited to testify and the subject matter of their testimony.
mind in a claim filed against him. The provisions of Sec. 23 of Rule 130 describe them as the
“parties or assignors of parties to a case, or persons in whose
Conversely, the rule will not apply where the plaintiff behalf a ease is prosecuted.”
is the executor or administrator as representative of the
The rule is obviously intended to be exclusive and does
deceased or if the plaintiff is the person of unsound mind. So
not prohibit a testimony by a mere witness to the transaction
if the executor of the estate of Mr. C sues Mr. D to collect an
between the plaintiff and the deceased and who has no interest
unpaid debt incurred in favor of Mr. C before the latter’s
in such transaction. Thus, offering the testimony of a so-called
death, Mr. D, although a survivor, is not precluded from
“disinterested witness” is not a transgression of the rule since
testifying as to the transaction he previously had with Mr. C
because the case is not upon a claim against the estate of Mr. the prohibition extends only to the party or his assignor or the
C but a claim by his estate against Mr. D. person in whose behalf the case is prosecuted.

2. As declared by the Court, the rule contemplates a Consider the following illustration:
suit against the estate, its administrator or executor and not The case is an action for a sum of money against the
a suit filed by the administrator or executor of the estate. A decedent’s estate. The decedent is Mr. D, the debtor. The
defendant, whO Opposes the suit filed by the administrator plaintiff is Mr. C, the creditor. Mr. C claims that Mr. D
to recover alleged shares of stock belonging to the deceased, borrowed P20G,000.00 from him and that the debt has
is not barred from testifying as to his transaction with the been due even before the death of Mr. D, who despite
deceased with respect to the shares (Ramon v. Intermediate demand upon him, failed to pay. Mr. C calls his secretary
Appellate Court, 207 ISCRA 234). to testify about the transaction that occurred in her
presence.
Also, when a counterclaim is set up by the administrator
of the estate, the case is removed from the operation of the Q: What did Mr. D say to Mr. C on that day and
“dead man’s statute.” The plaintiff may testify to occurrences time you mentioned earlier?
before the death of the deceased to defeat the counterclaim Adverse counsel: “Objection, Your Honor. I
which is not brought against the representative of the estate invoke the dead man’s statute.”
but by the said representative (Sunga-Chan v. Chua,
363 Counsel for Mr. C: “May I be heard, Your
/2CAA 249). Honor, before ruling on the objection?”
196 EVIDENCE objection does not apply, Your
(The Bar Lectures Series)
Honor. The witness is not a
plaintiff or an assignor of the
Court: “You may.” plaintiff or one on whose behalf
Counsel for Mr. C: “The ground for the the claim against the estate is
 prosecuted.”
CHAPTER V — TESTIMONIAL EVIDENCE
Court: “Objection is overruled.” (The reason for the B. Disqualifications of Witnesses
ruling is obvious. The witness is not one of
those prohibited to testify.) 6. The survivorship disqualification rule is intended
to benefit the estate of the deceased or the insane person;
5. The incompetency imposed upon the witness is /.o
hence, this protection may be waived by (a) failing to object
testify “on any matter of fact occurring before the death of
to the testimony, or (b) cross-examining the witness on
sueh deeeased person or before such person became of unsound
the prohibited testimony (Santos v. Santos, 366 SCRA 395),
mind.” Hence, if the subject of the testimony is on some other
or by
matter, the witness may testify on such matter as when (c) offering evidence to rebut the testimony. (Bar 2007)
the subject of the testimony is on a fact which transpired
after the death of such person. Marital disqualification rule (Spousal immunity) (Bar 2000;
Also, since a claim or demand against the estate implies 2010)
a claim adverse to the estate, a testimony beneficial to such
1. The marital disqualification rule is provided for in
estate should not be excluded. In other words, the rule
Sec. 22 of Rule 130, rim.:
does not altogether intend to keep the witness out of the
stand altogether. He is merely precluded from testifying on
“SEC. 22. Disqualification by reason of marriage.
particular topics. Thus, a testimony favorable to the estate or — During their marriage, neither the husband nor the
to the insane person is not barred since the rule is designed wife may testify for or against the other without the
to protect the interest of the estate of the deceased or insane consent of the affected spouse, except in a civil case by
person. In one old case, an oral testimony to prove a lesser one against the other, or in a criminal case for a crime
claim than what might be warranted by the evidence was committed by one against the other or the latter’s direct
allowed (Icard v. Masigan, 40 O.G., 13th !Suppl., 215; 71 Phil. descendants or ascendants.”
419).
2. The rule prohibiting testimony by one spouse
Also, witnesses who testify on the basis of their know-
against the other is based on society’s intent to preserve the
ledge of a transaction, not based on their dealings with marriage relations and promote domestic peace. A spouse
the deceased, are not barred. As the Court ruled: “The dead testifying against the other creates an ugly sight inimical
man’s statute does not operate to close the mouth of a to society’s interests. The rule prohibiting a testimony in
witness as to any matter of fact coming to his knowledge in favor of the spouse is intended to discourage the
any other way than through personal dealings with tile commission of pe ury.
deceased person, or communication made by the deceased
to the witness” (Bordalba u. Court of Appeals, 374 SCRA The case of Afuarez v. Raniirez (473 ISCRA 72) gives the
555). specific reasons for the rule, thus:
(a) There is identity of interests between husband
and wife;
(b) If one were to testify for.or against the other,
there is a consequent danger of perjury;
(c) 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
198 EVIDENCE B. Disqual
(The Bar Lecturer Series) CHAPTER V — TESTIMONIAL EVIDENCE
199

(d) Where there is want of domestic tranquility, to the knowledge of the witness-spouse before the marriage.
there is danger of punishing one spouse through the The affected spouse may still invoke the rule by objecting to
hostile testimony of the other. the testimony as long as it is offered during the marriage.
3. The marital disqualification rule, under Sec. 22 of Nothing in the tenor of the rule allows a contrary view.
Rule 130, forbids the husband or the wife to testify for or To illustrate: Before the marriage of W to H, she
against the other without the consent of the affected spouse witnessed the murder of X by H but she never reported what
except in those cases authorized by the rule. The prohibition she witnessed to the authorities. A year after the murder,
extends not only to a testimony adverse to the spouse but also H and W married. Barely six months after the marriage, W
to a testimony in favor of the spouse. It also extends to both became a battered wife and to get even with H, she decided to
criminal and civil cases because the rule does not distinguish. report the murder to the police. (a) May she testify against H
over the latter’s objection even if the murder took place before
4. In order that the husband or wife may claim the
privilege, it is essential that they be validly married. If they the marriage? Answer: She cannot testify over the objection
are not, there is no privilege (Moran, Comments on the Rules of of H. The situation is covered by the marital disqualification
rule. (b) Suppose a year after the marriage, the marriage
Court, Vol. 5, p. 176, citing lstate v. Hartcocb, 28 Nev. 300, 32,
is annulled, may W now testify despite the objection of H?
Pac. 95). The rule, therefore, does not cover illicit cohabitation. Answer: She can now testify after the marriage is annulled.
Sec. 22 of Rule 130 requires not only a valid marriage The prohibition no longer applies since the testimony is to be
but the existence of that valid marriage at the moment the offered after, not during the marriage.
witness-spouse gives the testimony.
8. Be it noted that the testimony is prohibited only
5. The rule applies whether or not the witness-spouse over the objection of the affected spouse or the spouse against
is a party to the case but the other spouse must be a party. whom the testimony is offered. It is the latter spouse who has
That the other spouse must be a party is evident from the the right to object to the competency of the spouse-witness. It
phrase “... neither the husband nor the wife may testify [or or goes without saying that the testimony is admissible where
against the other...” no objection is interposed by the spouse who has the right to
6.The prohibited testimony is one that is given or of- invoke the prohibition. In other words, the benefit of the rule
fered during the existence of the marriage. Sec. 22 explicitly may be waived and it may be done so impliedly or expressly.
refers to a testimony “During their marriage ...‘ I-fence, the
rule does not prohibit a testimony for or against the other Exceptions to the marital disqualification rule
af- ter the marriage is dissolved. When the marriage is 1. In the following instances, a spouse may testify for
dissolved on the grounds provided for by law like annulment or or against the other even without the consent of the latter:
decla- ration of nullity, the rule can no longer be invoked. (a) in a civil ease by one against the other; or
One may now testify for or against the other despite an
objection inter- posed by the latter because there is no more (b) in a criminal case for a crime committed by one
marriage to speak of. against the other, or the latter’s direct descendants or
ascendants (!Sec. 22, Rule 130, Rules of Court).
7. If the testimony for or against the other spouse
2. The phrase “or the latter’s direct descendants or
is offered during the existence of the marriage, it does not ascendants” did not appear in the old rules. Sec. 19(c) of the
matter if the tacts subject ot the teetimony occurred or came then Rule 130 only mentioned two exceptions: (a) in a
civil
200 EVIDENCE
(The Bar Lectures Seriee) CHAPTER V — TESTIMONIAL EVIDENCE 201
B. Disqualifications of Witnesses
case by one against the other; or (b) in a criminal case for a
5. The rule is different in a criminal case. In a criminal
crime committed by one against the other.
case, the privilege of one to testify against the other is not
The current rule has been harmonized with the Supreme con- fined to crimes ccmmitted by one against the other, but
Court ruling in Ordoño v. Daquigan (62 SCRA 270) allowing covers crimes committed by one against the direct
the wife to testify against her husband who was accused descendants or ascendants of the latter like the latter’s
of raping his daughter. Here, the Court concluded that a children or parents. However, crimes committed by the
rape perpetrated by the father against his daughter is a spouse against a spouse’s collateral relatives like uncles,
crime committed by him against his wife. aunties, cousins or nephews and nieces are not covered b3
In Ordoño, the Court ruled that the correct rule is the one the exception because they are neither direct descendants
laid down in Cargill v. State (35 ALR 133, 220 Pac 64, 25 OM. nor ascendants.
314) which held that:
Testimony where spouse is accused with others
“The rule that the injury must amount to a physical
wrong upon the person is too narrow x x x. The better rule May a spouse testify in a trial where the other spouse is
is that, when an offense directly attacks or directly and a co-accused? Consider the following:
vitally impairs the conjugal relations, it comes within the
exception to the statute ...” IHustration:
Accused-appellant and his brothers were jointly
3. If the wife sues the husband for fraudulently
accused with parricide for the alleged killing of their own
embezzling the paraphernal funds of the former, the reason
father. One of the witnesses presented by the prosecution
for the prohibition in the rule ceases. The wife can now testify
against all the accused was the wife of accused-appellant.
against .the husband. Also, if the wife in sued for adultery, the
May the wife testify in the proceedings against all the
husband cannot be barred from testifying against the wife.
accused?
In a suit for annulment of marriage, each spouge can testify
against each other. The same rule applies when the husband In People v. Quidato, Jr. (297 SCRA 1), the Court
is sued by the wife for bigamy. ruled in the affirmative but, likewise, held that the
testimony of the wife in reference to her husband must
4. In order for a spouse to be allowed to testify against
be disregarded since the husband timely objected thereto
the other in a civil case, the case must be a “civil case by one
under the marital disqualification rule. The Court
against the other.” This contemplates a situation where one
explained that the disqualification is between husband
spouse is a plaintiff or petitioner and the other spouse is a
and wife, but the rule does not preclude the wife from
defendant or respondent. Where the civil case is between a
testifying when it involves other parties or accused.
spouse and the direct descendants or ascendants of the other,
Hence, the wife could testify in the murder case against
the marital disqualification rule still applies. Thus, if the wife
the brothers who were jointly tried with her husband. The
sued the father of her husband for collection of a loan, the
Court also stressed, however, that the testimony cannot
husband may be barred from testifying against the wife upon
be used against accused-appellant directly or through the
the objection of the latter. This is because the civil case is not
guise of taking judicial notice of the proceedings in the
by one spouse against the other but between a spouse and the
murder case without violating the marital disqualification
parent of the other. rule. “What cannot be done directly cannot be done
indirectly.”
202 EVIDENCE CHAPTER V — TESTIMONIAL EVIDENCE 203
(The Bar Lecturer SeriesJ B. Disqualifications of Witnesses

Testimony by the estranged spouse (Bar 2006) 1. Sec. 22 of Rule 130 prohibits a
testimony by one spouse against the other
without the consent of the latter “during their In sustaining the Court of Appeals allowing the
marriage.”Literally, this prohibition would cover a testimony
testimony of Esperanza Alvarez, the Court explained:
by the estranged spouse because a separation “de facto” does
not sever the marriage bonds and the spouses remain legally “x x x like all other general rules, the marital
married to each other. A testimony under such a situation disqualification rule has its own exceptions, both in civil
would still technically be a testimony “during their marriage.” actions between the spouses and in criminal cases for
This literal construction of the rule has, however, been offenses committed by one against the other. Like the
rejected by the Supreme Court. rule itself, the exceptions are backed by sound reasons
2. Whether or not the estranged spouse may testify which, in the excepted cases, outweigh those in support
against the other is illustrated by the following facts: of the general rule. For instance ,where the mental and
domestic relations are so strained that there is no more
Susan Ramirez, the respondent, is the complaining harmonv to be nreserved nor neace and tranouilitv which
witness in a criminal case for arson of her house against may be disturbed the reason based unon such harmony
the accused Maximo Alvarez, the petitioner, who is the and tran0uilitv fails In such a case identitv of interests
estranged husband of Esperanza Alvarez, the sister of disannears and the conseouent dancer of neriurv based
the respondent and who also lives in the house allegedly on that identitv is non-existent Likewise in such a
burned. situation the securitv and confidences of nrivate life
During the trial of the case, the private prosecutor which the law aims at nrotectine will be nothing but
called Esperanza Alvarez to the witness stand as the first ideals. which through their absence merely leave a void
witness against her husband. Petitioner and his counsel in the unhapDv home” (Unclerscoring supplied).
initially raised no objection. Obviously, the offense of arson attributed to peti-
Subsequently, before the continuation of the testi- tioner directly impairs the conjugal relation between him
mony of his estranged wife, petitioner, through counsel, and his wife Esperanza. His act, as embodied in the
filed a motion to disqualify Egperanza Alvarez from tes- In- formation for arson filed against him, eradicates all
tifying against him. The trial court issued an order dis- the major aspects of marital life such as trust, confidence,
qualifying Esperanza Alvarez from further testifying and res- pect and love by which virtues the conjugal
deleting her testimony from the records. The prosecution relationship survives and flourishes.
filed a motion for reconsideration but was denied.
The denial prompted respondent Susan Ramirez, As correctly observed by the Court of Appeals:
the complaining witness, to file with the Court of Appeals
a petition for certiorari with application for preliminary “'l’he act of private respondent in setting fire to the
injunction and temporary restraining order. The Court house of his sister-in-law Susan Ramirez, knowing fully
of Appeals rendered a decision nullifying and setting well that his wife was there, and in fact with the alleged
aside the assailed orders issued by the trial court. In iritent of injuring the latter, is an act totally alien to
a subsequent petition for review on certiorari, the issue the harmony and confidences of marital relation which
sought to be resolved by the Supreme Court was whether the disqualification primarily seeks to protect. The
Esperanza Alvarez can testify against her estranged criminal act complained of had the effect of directly
husband. and vitally impairing the conjugal relation. It
underscored the fact that the marital and domestic
relations between her and the accused-husband have
become so strained that there is no o e h mon eace t a
u t be se .
204 EVIDENCE CHAPTER V — TESTIMONIAL EVIDENCE
(The Bar Lectures Series) 205
B. Disqualifications of Witnesses

“x x x in such a case. identity_is.mo-exis1_en1In s.mb a situation the security .anti confidences..of

 nrivate. lif.e which the law aims to protect are nothine but
3. Under the provisions of Sec. 24(a) of Rule 130, the
ideals which throueh their absence. merelv leave a void in
the unhanDV home” (Alvarez v. Ramirez, 473 SCRA 72; husband or the wife cannot be examined without the consent
Underscoring supplied). Thus, there is no longer any reason of the other as to any communication received in confidence by
to apply the marital disqualification rule. one from the other during the marriage.
“It should be stressed that as shown by the records, The application of the rule requires the presence of the
prior to the commission of the offense, the relationship following elements:
between petitioner and his wife was already strained.
In fact, they were separated de facto almost six months (a) there must be a valid marriage between the
before the incident. Indeed, the evidence and facts husband and wife;
presented reveal that the preservation of the marriage
between petitioner and Esperanza in no longer an interest (b) there is a communication received in confidence
the State aims to protect” (Alvarez u. Ramirez, supra). by one from the other; and
(c) the confidential communication was received
Marital privileged communications (Bar 1995; 2004; 2010) during the marriage.
1. There are two independent codal provisions which
4. “The law insures absolute freedom of communica-
cover marital disqualifications. The first is Sec. 22 of Rule
tion between the spouses by making it privileged x x x.
130 (Disqualification by reason of marriage) and the second is Neither may be examined without the consent of the other
Sec. 24(a) of Rule 130 (Disqualification by reason of privileged
as to any communication received in confidence by one from
communication).
the other during the marriage, save for specified exceptions.
2. Under Sec. 24 of Rule 130 of the Rules of Court, But one thing is freedom of communication; quite another
there are certain persons who cannot testify as to matters is a compulsion for each one to share what one knows with
learned in confidence. Among those subject to the rule are the other and this has nothing to do with the duty of fidelity
legitimate spouses. The provision states as follows: that each owes to the other” (Zulueta u. Court of Appeals, 253
SCRA 699).
”SEC. 24 Disqualification by reason of privileged
communication. — The following persons cannot testify
5. Since the application of the rule requires a confiden-
as to matters learned in confidence in the following tial information received by one spouse from the other
cases: dur- ing the marriage, information acquired by a spouse before
the marriage, even if received confidentially, will not fall
(a) The husband or the wife, during or after the
squarely with the provisions of Sec. 24(a) of Rule 130.
marriage, cannot be examined without the consent of the
However, divulg-
other as to any communication received in confidence
ing the same may be objected to under Sec. 22 of Rule 130
by one from the other during the marriage except in a
civil case by one against the other, or in a criminal case upon proper objection as long as the information is sought to
for a crime committed by one against the other or the be revealed during the marriage through a testimony for
latter’s direct descendants or ascendants; x x x" or against the affected spouse. The tenor of See. 22 of Rule
130 does not distinguish as to when the information subject of
the testimony was acquired and, thus, may cover matters
which occurred or to adverse information acquired prior to
the mar- riage. It is sufficient that the witness-spouse
testifies during
206 EVIDENCE
(The Bar Lecturer Serie8) CHAPTER V — TESTIMONIAL EVIDENCE 207
B. Disqualifications of Witnesses
the marriage. It is unlike Sec. 24(a) which explicitly requires
parties are not deemed confidential even when made durin g
that the confidential information be received during the mar-
the marriage, but Sec. 22 could apply, instead of Sec.
riage.
24(a), when used as parts of a testimony for or against the
Note that Sec. 24(a) of Rule 130 also requires that the party- spouse.
information received in confidence during the marriage be
“try one com ffie other.” The implication is clear: confidential The marital privileged communication rule in Sec. 24(a)
information received from a third person is not covered by the applies only to testimonies of a confidential nature received by
privilege. one spouse from the other during the marriage and obviously
does not include acts merely observed by the spouse unless
6. For the information to be confidential, it must be such acts are intended as a means of conveying confidential
made during and by reason of the marital relations and is communication by one to the other.
intended not to be shared with others. Without such inten-
tion, common reason suggests that the information is not 2. Sec. 22 of Rule 130 includes facts, occurrences or
confidential. Thus, in U.S. v. Antipolo (37 Phil. 726), the wife information even prior to the marriage unlike Sec. 24(a) which
was allowed, in a prosecution for murder, to testify as to her applies only to confidential information received during the
husband’s dying declaration regarding the identity of the as- marriage. In this sense, Sec. 22 is broader because it prevents
sailant because there was no intent of confidentiality in the testimony for or against the spouse on any fact and not merely
information. The declaration is intended to be communicated a disclosure of confidential information.
after the husband’s death because it was made in the further- 3. When the marital privileged communication rule
ance ofjustice. under Sec. 24(a) applies, the spouse affected by the disclosure
7. The marital privilege rule, being a rule of evidence, of the information or testimony may object even after the
may be waived by failure of the claimant to object timely to dissolution of the marriage. The privilege does not cease just
its presentation or by any conduct that may be construed as because the marriage has ended. The marital disqualification
implied consent (Lacurom u. Jacoba, 484 SCRA 206). rule under Sec. 22, on the other hand, can no longer be
invoked once the marriage is dissolved. It may be asserted only
Explanation of distinctions between the marital disqualifica- during the marriage. In this sense, Sec. 24(a) is broader.
tion rule and the marital privileged communication rule 4. The marital disqualification rule in Sec. 22 requires
1. Sec. 24(a) of Rule 130 has reference to confidential that the spouse for or against whom the testimony is offered
communications received by one spouse from the other dur- is a party to the action. This is not required in the marital
ing the marriage. The marital disqualification rule under Sec. privileged communication rule in Sec. 24(a) which applies
22 of Rule 130 does not refer to confidential communications regardless of whether the spouses are parties or not.
between the spouses. It will not come into play when the fact Note: In the marital disqualification rule in Sec. 22, the
pattern in a problem makes reference to confidential com- prohibition is a testimon y for or agains*t the other. In Sec.
munications between husband and wife during the marriage. 24(a), what is prohibited is the examination of a spouse as to
Sec. 24(a) of Rule 130 will, instead, apply. matters received in confidence by one from the other during
However, communications that are not intended to be the marriage.
confidential because they were uttered in the presence of third
208 EVIDENCE
(The Bar Lectures Series) CHAPTER V — TESTIMONIAL EVIDENCE 209
B. Disqualifications of Witnesses

Attorney-client privilege (Bar 2008) and his client:

1. The following is the applicable provision under Rule
“SEC. 24. Disqualification by reason
130 involving privileged communications between an attorney
of privileged communication.— The
 following persons cannot testify as to matters learned
in confidence in the following cases: Hence, the privilege is extended to communications
made for the purpose of securing the services of counsel even
(a) x x x if the counsel later refuses the professional relationship. The
(b) An attorney cannot, without the consent of insertion of the clause “with a view to” includes preliminary
his client, be examined as to any communication made negotiations within the privilege. Without the clause, it would
by the client to him, or his advice given thereon in the seem extremely risky to consult an attorney for the first time
course of, or with a view to, professional employment, and communicate to him certain sensitive information without
nor can an attorney’s secretary, stenographer, or clerk the protection of confidentiality.
be examined, without the consent of the client and his
employer, concerning any fact the knowledge of which
4. Accordingly, the privilege is not confined to commu-
has been acquired in such capacity.” nications regarding actuai pending cases. The communica-
tions may refer to anticipated litigations or may not refer
to any litigation at all. It is sufficient that the statements
2. The following requisites must be present for be made in the course of legitimate professional relationship
privilege to arise: be- tween the attorney and the client (Jones on Evidence,
(a) There must be a communication made by the Vol. 3,
client to the attorney, or an advice given by the attorney §’749).
to his client; The communication may be oral or written but is
(b) The communication or advice must be given in deemed to extend to other forms of conduct, like physical
demonstration, as long as they are intended to be confidential.
confidence; and
It is, likewise, submitted that the communication between a
(c) The communication or advice must be given client and his lawyer is not deemed lacking in confidentiality
either in the course of the professional employment or solely because the communication is transmitted by facsimile,
with a view to professional employment. cellular telephone, or other electronic means.
3. The present rules do not require a perfected attor- 5. It is commonly acknowledged that the privilege does
ney-client relationship for the privilege to exist. The commu- not extend to communications where the client’s purpose is the
nications between the attorney and the client no longer need furtherance of a future intended crime or fraud (8 Wigmore,
to be in the course of an actual professional employment. It Evidence, §§2298, 2299 [McNaughton been. 1961J; Gardner,
is enough that the communication or advice be “with a view The Crime o[Fraud Exception to the Attorne y-Client Privilege,
47 A.B.A.J. 708), or for the purpose of committing a crime or a
to” professional employment (lsec. 241 J, Rule 130, Rules of
tort(U.S. u. Wilson, 798 F.2d 509[1st Cir. 19861), or those made
Courts.
in furtherance of illicit activity (U.S. v. Aucoin, 964 F.2d 1492
[5th Cir. 1992J). Accordingly, although communications made
when used to further crimes are not privileged, the discussion
of the communications in confidence with the lawyer after
the crime has been committed may still be privileged even
though the earlier ones were not (In re Federal Grand jury
Proceedings 89-10 [MIA], 938 F.2d 1578 [1lth Cir. 1991]).
6. The statements of the client need not be made to
the attorney in person. Those made to the attorney’s
secretary,
210 EVIDENCE
(The Bar Lectures Series) CHAPTER V — TESTIMONIAL EVIDENCE 211
B. Disqualifications of Witnesses

clerk, or stenographer for transmission to the attorney for the purpose of the professional relationship, or with a
 view to such relationship, or those knowledge acquired by
such employees in such capacity are covered by the privilege. 2. This privilege, embodied in Sec. 24(c) of Rule
Like the attorney, their employer, these persons cannot be 130, applies to a ciu/f case, whether the patient is a party
examined as to the communication made by the client or the or not. The phraseology of the rule implies that the privilege
advice given by the attorney without the cfienfs consent and cannot be claimed in a criminal case presumably because the
also the employer’s consent (Sec. 24(bJ, ftufe 130, Rules of interest of the public in criminal prosecution should be
Court). deemed more important than the secrecy of the
communication.
7. A lawyer is bound to comply with Canon 21 of the
Code of Professional Responsibility which states that, “a 3. Accordingly, this privilege protects the interest
lawyer shall preserve the confidences and secrets of his client of the patient. It is designed to promote health, not truth.
even after the attorney-client relation is terminated.” The It encourages free disclosure in the sickroom by preventing
reason for the prohibition is found in the relation of attorney disclosure in the courtroom. The patient is the person to be
and client, which is one of trust and confidence of the highest encouraged and he is the holder of the privilege (Metropolitan
degree. A lawyer becomes familiar with all the facts connected life and Insurance Co. u. Kaufman, 104 Colo. 13, 87 P.2d 758
with his client’s case. He learns from his client the weak in McCoi mich, Evidence, §102).
points of the action as well as the strong ones. Such knowledge 4. The person against whom the privilege is claimed
must be considered sacred and guarded with care (lsamala v. is a person duly authorized to practice medicine, surgery, or
Valencia, 512 ISCRA 1; Mercado v. Vitriolo, 459 ISCRA 1). obstetrics.

Physician-patient privilege (Bar 1998) The information which cannot be disclosed refers to:
1. The privileged communication between a physician (a) any advice given to the client;
and his patient is stated as follows in Sec. 24 of Rule 130:
(b) any treatment given to the client;
“SEC. 24. Disqualification by reason of priv’i/egec/ (e) any information acquired in attending such
communication.— The following persons cannot testify patient provided that the advice, treatment or
as to matters learned in confidence in the following information was made or acquired in a professional
cases:
capacity and was necessary to enable him to act in that
(a) x x x capacity; and
(b) x x x (d) the information sought to be disclosed would
(c) A person authorized to practice medicine, tend to blacken the reputation of the patient (!Sec. 24{cJ,
surgery or obstetrics cannot in a civil case, without the Rule 130, Rules of Court). The word “reputation” is used
consent of the patient, be examined as to any advice instead of the previous word, “character.”
or treatment given by him or any information which
he may have acquired in attending such patient in a 5. Also, it is opined that the rule does not require
professional capacity, which information was necessary that the relationship between the physician and the patient be a
to enable him to act in that capacity, and which would result of a contractual relationship. It could be the result of a
blacken the reputation of the patient; x x x" 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 as in the situation described in Art. 2167
of the Civil Code of the Philippines.
212 EVIDENCE
(The Bar Lectures Seri=s) CHAPTER V — TESTIMONIAL EVIDENCE 213
B. Disqualifications of Witnesses
 6. The privilege does not apply to shield the commis- Priest/minister-penitent privilege
sion of a crime or when the purpose is an unlawful one as to
obtain narcotics or prohibited drugs in violation of law 1. Another privileged communication under the Rules
because there is no treatment involved. Similarly, where the is as follows:
purpose is to ask a physician to have one’s appearance
disguised by cosmetic or plastic surgery to escape “SEC. 24. Disqualification by reason of privileged
communication. — The following persons cannot testify
apprehension, the privilege does not apply. Common
as to matters learned in confidence in the following
reason suggests that all these cases be deemed outside the cases:
operation of the privilege because the purpose is not for
X XX
treatment or prevention of any disease or injury.
(d) A minister or priest cannot, without the con-
7. The privilege survives the death of the patient. sent of the person making the confession, be examined
Death does not permit the living to impair the deceased’s as to any confession made to or any advice given by him
name by disclosing communications held confidential by law. in his professional character in the course of discipline
Thus, in Cionzales v. Court o[Appeals (298 SCRA 322), the enjoined by the church to which the priest or minister or
priest belongs;
Supreme Court, prevented the disclosure of medical findings
that would tend to blacken the reputation of the patient even x x x"
after his death.
2. The oerson making the confession holds the
8. The privilege may be waived by the patient. The
privi- lege, and the priest or minister hearing the confession
waiver may be made expressly or impliedly. The waiver
in his professional capacity is prohibited from making a
may be by a contract as in medical or life insurance.
disclosure of the confession without the consent of the person
When there is disclosure by the patient of the information,
confessing.
there is necessarily, a waiver. When the patient answers
questions on matters which are supposedly privileged on The privilege also extends not only to a confession made
cross-examination, the waiver also exists. by the penitent but also to any advice given by the minister or
priest. The confession and the advice must be made or given
There could also be a waiver by operation of law or the
pursuant to the course of discipline of the denomination or
rules. Under Rule 28 of the Rules of Court, the court in which
sect to which the minister or priest belongs (!Sec. 24Ld J, Rule
the action is pending may, in its discretion, order a party to
130, Rules of Court). Thus, the minister or priest must be duly
submit to a physical or mental examination (Sec. 1, Rule 26,
ordained or consecrated by his sect.
Rules of Court). Thin happens when the mental or physical
condition of a party is in dispute. The party examined may 3. Not every communication made to a minister
request a report of the examination. By doing so, he waives or priest is privileged. The communication must be made
any privilege he may have in that action regarding the pursuant to confessions of sins (Wigmore on Evidence, §84d).
testimony of every other erson who has examined him in As clearly provided in the rule, the advice -given as a result of
rgegsppe$ct of the same exa IYtlIl&tion (Sec. 4, flute 28, the confession must be made in the minister’s “professional
lutes o[ character” (Alec. 24[â), Rule 130, Rules of Court), or in his
“spiritual” capacity. Accordingly, where the penitent discussed
business arrangements with the priest, the privilege does not
apply (U .!S. u. Gordon, 493 F. S’upp. 822 [7th Cir. 1987j).
214 EVIDENCE
(The Bar Lecturer Seriea)
CHAPTERV- TESTIMONIALEWDENCE 2I5
B. Disqualifications of Witnesses

Privileged communications to public officers the relevant rule declares:

1. As to privileged communications to public officers,
 “SEC. 24. Disqualification by reason ofprzv//epecf
communication.— The following persons cannot 2. The doctrine of executive privilege found recognition
testify as to matters learned in confidence in the in the 1995 case of Almontc v. Vasquez (244 ISCRA 286).
following cases: Here, the Court acknowledged that there are certain types
xxx
of information which the government may withhold from the
public like military, diplomatic and national security secrets.
(e) A public officer cannot be examined during Alluding to foreign jurisprudence, it was ruled that the
his term of office or afterwards, as to communications
President and those who assist him must be free to
made to him in official confidence, when the court
finds that the public interest would suffer by the explore alternatives in the process of shaping policies and
disclosure.” making decisions and to do so in a way many would be
unwilling to express except privately.
2. Under the above rule, communications made to a 3. Chavez v. PCGG (299 ISCRA 744) ruled that there
public officer in official confidence are privileged when the is a privilege against disclosure on certain matters involving
court finds that the disclosure would adversely affect the state secrets regarding the following:
public interest. It is the interest of the public that is sought (a) military ;
to be protected by the rule. Hence, the disclosure or non- (b) diplomatic; and
disclosure in not dependent on the will of the o&cer but
on the determination by a competent court. The privilege may (c) other national security matters.
be invoked not only during the term of office of the public Again, in Chauez u. Public Estates Authorit y (384 SCRA
officer but also afterwards (!Sec. ddfeJ, Rule 130, Rules of 152), it was similarly held that secrets involving military,
Court). diplomatic, and national security matters, and information on
3. National security matters and State secrets are, of investigations of crimes by law enforcement agencies before
the prosecution of the accused were exempted from the right to
course, confidential and a court will most likely uphold the
information. The right to information does not also extend to
privilege. A society may not always be able to conduct its
presidential conversations, correspondences, and discussions
business with total openness and matters affecting national iii closed-door cabinet meetings.
interest must not be divulged éGuong o. U.S., 860 F.2d 1063
fl ed. Cir 19881). 4. The Constitution of tire Philippines recognizes the
right of the people to information on matters of public concern
Executive privilege; Presidential communications privilege and guarantees access to official records, documents, and
papers pertaining to official acts, transactions, or decisions, as
1. The concept of “executive privilege” and its well as to government research data used as basis for policy
origins were elucidated in sufficient detail in Senote o/ the development, subject to such limitations as may be provided
Philip- pines v. Ermita (488 ISCRA 1). In relation to its by law (!Sec. 7, Art. III Bill o[ Rightsl, Constitution o[ the
American origins, the privilege has been described as “the
Philippines).
power of the government to withhold information from the
public, the courts, and the Congress.” What matters may be disclosed in relation to the right to
information on matters of public concern?
This was actually one of the issues sought to be resolved
in AJO3AYAN v. Aquino (558 SCRA 468). The petitioners in
216 EVIDENCE CHAPTER V — TESTIMONIAL EVIDENCE
(The Bar Lectures Seriea) 217
B. Disqualifications of Witnesses

the case, a tapestry of various personalities like citizens, tax- obtain from respondents in the persons of various
payers, congressmen including non-government organiza- government functionaries, the full text of the
tions, sought via a petition for mandamus and prohibition to Japan-Philippines Economic Partnership
Agreement (JPEPA), information which the gov- ernment these exchanges could impair the ability of the Philippines to
previously refused to disclose. The petitioners assert among deal not only with Japan but with other foreign governments
others, that the refusal of the government to disclose the in future negotiations. Reminding the parties of what it had
documents bearing on the JPEPA violates their right to in- declared in Chanel u. PCGG (299 SICRA 744), that while
formation on matters of public concern, and contravenes other the constitutional right to information includes official
constitutional provisions on transparency, such as the policy
information on ongoing negotiations before a final contract,
of full disclosure of all transactions involving public interest. such information does not cover recognized exceptions like
They likewise posit that non-disclosure of the documents un- privileged information, military and diplomatic secrets and
dermines their right to effective and reasonable participation similar matters affecting national interest. The matters
in all levels of social, political and economic decision-making.
falling under these exceptions, according to the Court, cannot
Respondents do not dispute that the JPEPA, as an be disclosed even if they constitute definite propositions. Since
international trade agreement, is a matter of public concern diplomatic negotiations enjoy a presumptive privilege against
but they claim that a full disclosure of matters would involve disclosure, petitioners need to sufficiently show the existence
disclosure of diplomatic negotiations which were then in of a public interest sufficient to overcome the privilege. The
progress. They assert that diplomatic negotiations are covered court concluded with a finding that the petitioners have failed
by the doctrine of executive privilege, thus constituting an to present a “sufficient showing of need” in their arguments.
exception to the right to information and the policy of full 5. An earlier case, Neri u. Senate Committees on
public disclosure. Accountabilit y of Public Officers and Investigations (435
SCRA 110, 148), similarly demonstrates the extent of the
In resolving the conflicting claims of the parties, the right to information on matters alleged to be of public concern.
Court first affirmed what it termed “the well-established Romulo Neri, the petitioner in this case, as then director of
jurisprudence that neither the right to information nor the the NEDA, was accordingly said to have discussed with
policy of full disclosure is absolute, there being matters which, the President of the Philippines regarding the ZTE-NBN
albeit of matters of public concern or public interest, are deal. The petitioner, upon invitation of the respondents
recognized as privileged in nature.” tsenate Committee on Accountability of Public Officers and
'the Court reiterated what it held in previous cases Investigations, Senate Committee on Trade and Commerce,
that the infomation on inter-government exchanges prior and Senate Committee on National Defense and Security),
to the conclusion of treaties and executive agreements may testified on the ZTE-NBN contract and the bribe offers in
be subject to reasonable safeguards for the sake of national connection with the deal. When asked on the details of the
interest. The Court held that while the final text of the matters he discussed with the President after he divulged to
JPEPA may not be left perpetually confidential since there the latter the bribe offers, petitioner declined to disclose the
is a need to discuss the same before it is approved, the offers details of their conversation invoking the privileged nature of
the conversation on specifically the following matters:
(a) Whether the President followed up the NBN
proJect;
exchanged by the parties during the negotiations continue to (b) Whether Neri was dictated upon to follow up
be privileged, even after the JPEPA is published. Disclosing the project; and

218 EVIDENCE CHAPTER V — TESTIMONIAL EVIDENCE 219

(The Bar Lectures Series) B. Disqualifications of Witnesses

(c) Whether the President said to go ahead and The only way for them to be exempted from
the compulsory process of Congressional
approve the project after being told of the alleged bribe. subpoena is through a valid claim of
The Court, in deciding the case, started with the premise executive privilege. The Court declared it
recognizing the power of Congress to conduct inquiries in aid was convinced that the communications
of legislation, a power which extends even to public officials. elicited by the three (3) questions are covered
by the presidential communication privilege. Under the fiaf privilege rule, a child may not be compelled to
The Neri case emphasized the rule that for the claim testify against his parents or other direct ascendants.
of executive privilege to be invoked, there must be a
formal claim of the privilege, lodged by the head of the 2. A person, however, may testify against his parents
department which has control of the matter, and that a or children voluntarily but if he refuses to do so, the rule
formal and proper claim of the privilege requires a “precise protects him from any compulsion. Said rule applies to both
and certain reason” criminal and civil cases since the rule makes no distinction
for preserving confidentiality, but Congress must not require (Sec. 25, Rule 130, Rules of Court). The rule states:

“SEC. 25. Parental and filial privilege. — No

person may be compelled to testify against his
parents, other direct ascendants, children or other
direct descendants.”

3. In criminal cases, the Family Code of the

Philippines lays down, as a general rule, a policy
substantially similar to Sec. 25, Rule 130 of the Rules of
Court. Under the Family Code, no descendant shall be
compelled, in a criminal case, to testify
the executive to state the reasons for the claim with such against his parents and grandparents. The Code, however,
particularity as to compel the disclosure of the information specifically provides for an exception. The descendant may be
which the privilege is meant to protect. This is a matter of compelled to give his testimony in the following instances:
respect for a coordinate and co-equal department. It was ruled
(a) when such testimony is indispensable in a
that the letter of Secretary Ermita to the respondents
satisfies crime committed against said descendant, or
the requirement. (b) in a crime committed by one parent against the
other (Art. 215, Family Code of th.e Philippines).
Privileged communications under the Rules on Electronic The relevant article provides:
Evidence
Privileged communications apply even to electronic
evidence. Under Sec. 3, Rule 3 of the Rules on Electronic “Art. 215. No descendant shall be compelled, in a
criminal case, to testify against his parents and grand-
Evidence, the confidential character of a privileged commu- parents, except when such testimony is indispensable
nication is not lost solely on the ground that it is in the form in a crime, against the descendant or by one parent
of an electronic document. against the other.”

Parental and filial privilege (Bar 1998) Other privileged communications not found in the Rules of
1. Two privileges are embodied in Sec. 25 of Rule Court
130, namely: (a) the parental privilege rifle; and (b) the filial 1. Sec. 24 of Rule 130 deals with the types of dis-
privilege rule. qualifications by reason of privileged communication, to wit:
Under the parental privilege rule, a parent cannot be com- (a) communication between husband and wife; (b) communica-
pelled to testify against his child or other direct descendants. tion between attorney and client; (e) communication between
220 EVIDENCE
(The Bar Lectures Series) CHAPTER V — TESTIMONIAL EVIDENCE 221
C. Examination of Witnesses
physician and patient; (d) communication between priest and
penitent; and (e) public officers and public interest. 3. Likewise, depositions need not be taken in open
court. They may be taken before a notary public (Sec. 10,
2. There are, however, other privileged matters that Rule 23, Rules of Court) or before any person authorized to
are not mentioned under Rule 130. Among them are the administer oaths (lsec. 14, Rule 23, Rules of Court).
following: (a) editors may not be compelled to disclose the
4. In a criminal case, either party may utilize the
source of published news; (b) voters may not be compelled to testimony of a witness who is deceased, out of the country,
disclose for whom they voted; (c) trade secrets; (d) information unavailable or unable to testify despite the exercise of due
contained in tax census returns; and (e) bank deposits (Air diligence, even if the testimony was one used in another case
Philippines u. Pennswell, Inc., 540 SCRA 215). or proceeding, judicial or administrative, provided the said
3. Under Art. 23.3 of the Labor Code of the Philippines, proceeding involved the same parties and subject matter and
information and statements made at conciliation proceedings the adverse party had the opportunity to cross-examine the
shall be treated as confidential. witness (!Sec. 1[f], Rule IU, Rules o[Court).
4. Under Sec. 6 of R.A. 9194, amending Sec. 9 of R.A. 5. Under the Judicial Affidavit Rule, the judicial
9160(Anti-Mone y LaunderingAct of200l), institutions covered affidavit shall take the place of direct testimonies of witnesses
by the law and its officers and employees who communicate a (lsec. 2, Judicial A[fidauit Rule).
suspicious transaction to the Anti-Money Laundering Council,
are barred from disclosing the fact of such report, that such Oath or affirmation
report was made and other related information.
1. The witness must take either an oath or an affirma-
tion (lsec. 1, Rule 132, Rules o[C'ourt) but the option to do so is
C. Examination of Witnesses
given to the witness and not to the court.
Open court examination; exceptions 2. An oath is an outward pledge made under an
1. Sec. 1 of Rule 132 provides for the examination of immediate sense of responsibility to God or a solemn appeal
the witness in open court and, unless the question calls for a to the Supreme Being in attestation of the truth of some
different mode, the answer of the witness shall be given statement (Blach’s Law Dictionary , 5th Ed., p. 966). An
orally. This method allows the court the opportunity to affirmation is a substitute for an oath, and is a solemn and
observe the demeanor of the witness and also allows the formal declaration that the witness will tell the truth (Ibid.
adverse party to cross-examine the witness. ssl-
2. There are, however, testimonies which need not 3. Where the witness refuses to take an oath or give
be given orally in open court. Under the Rule on Summary any affirmation, the testimony may be barred (U.S. u. Fowler,
Procedure, in criminal cases, the affidavits of the parties shall 605 F.2d 181 {5th Cir. 1979]).
constitute the direct testimonies of the witnesses who executed
the same (lsec. 15, Rule on lsummary Procedure). In civil cases, Examination of witnesses and record of proceedings (Bar
the parties are merely required to submit the affidavits of 1978)
their witnesses and other pieces of evidence on the factual 1. The examination of witnesses presented in a trial
issues,
together with their position papers, setting forth the law and or hearing shall be done in open court and under oath or
the facts relied upon (lsec. 9, Rule on lsummary Procedure). affirmation. The answers of the witness shall be given orally
222 EVIDENCE
CHAPTER V — TESTIMONIAL EVIDENCE 223
(The Bar Lecturer Series)
C. Examination of Witnesses

except if: (a) the witness is incapacitated to speak, or (b) the question calls for a different mode of answer
 (lsec. 1, Rule 132, Rules of Court).
Note, however, that under R.A. 6981 (Witness Protection,
2. The questions propounded to a witness and his lsecurit y and Benefit Act), a witness admitted into the witness
answers thereto shall be recorded. Alao to be recorded are protection program cannot refuse to testify or give evidence or
the statements made by the judge, any of the parties or any produce books, documents, records or writings necessary for
of the counsels. In fact, the entire proceedings of the trial or the prosecution of the offense or offenses for which he has
hearing must be recorded. The recording may be by short- been admitted on the ground of the right against self-
hand, stenotype or any means of recording found suitable by incrimination (lsec. 14, R.A. 6981.i.
the court (See Sec. 2, Rule 132, Rules of Court).
3. Aside from the right against self-incrimination, a
3. The official stenographer, stenotypist or recorder •vitness likewise has the right not to give an answer that will
shall make a transcript of the record of the proceedings and tend to degrade his reputation. However, even if the answer
shall be certified by him as correct. The transcript so prepared tends to degrade his reputation, he must answer the question
and certified shall be deemed prima /ocie a correct statement if the degrading answer . (a) is the very fact in issue; or (b)
of such proceedings (Sec. 2, Rule 132, Rules of Court). refers to a fact from which the fact in issue would be presumed
(Sec. 3[5J, Rule 132, Rules of Court).
Rights and obligations of a witness (Bar 1998; 2004; 2005)
But a witness must answer to the fact of his previous
1. As a rule, a witness has an obligation to answer final conviction for an offense (Ibid.).
questions, although his answer may tend to establish a claim
against him (Slec. 3, Rule 132, Rules of Court). 4. If the witness is the accused, he may totally
refuse to take the stand. A mere witness cannot altogether
Ofcourse, there are questions which he is not bound to
refuse to take the stand. Before he refuses to answer, he
an- swer. This is because a witness has certain rights like: (a)
must wait for
Not to give an answer which will tend to subject him to a
penalty for an offense; (b) To be protected from irrelevant, the incriminating question (Bagadiong v. Gonzales, 94 SCRA
906).
improper, or insulting questions, and from harsh or insulting
demeanor; 5. Counsel must always come to the aid of his wit-
(c) Not to be examined except only as to matters pertinent to ness being subjected to intimidation, harassment and embar-
the issue; (d) Not to be detained longer than the interest of rassment. Such acts are objectionable and a timely objection
justice required; and (e) Not to give an answer which will tend should be raised.
to degrade his reputation, unless it be the very fact at issue or
to a fact from which the fact in issue would be presumed (!Sec. Examination of a child witness; live-link television (Bar 2006)
3, Rule 132, Rules of Court).
1. The examination of a child witness presented in a
2. Foremost among the rights of a witness is the right hearing or any proceeding shall be done in open court. The
not to give an answer that will subject him to a penalty, answer of the witness shaJl be given orally, unless the witness
unless otherwise provided by law (!Sec. 3141, Rule 132, Rules of is incapacitated to speak, or the question calls for a different
Court). This provision in the Rules of Court gives meaning to mode of answer (Sec. 8, Rule on Examination of a Child
the right of a person against self-incrimination (Sec. 17, Art. Witness).
III, Constitution of the Philippines).
The examination in this provision does not refer to the
competenéy examination of the child pursuant to Sec. 6 of
the same rule, but to a situation where the child is already
224 EVIDENCE
(The Bar Lectures Series) CHAPTER V — TESTIMONIAL EVIDENCE 225
C. Examination of Witnesses

testifying in court. Under See. 6(c), only specified persons are allowed to attend the competency examination
of the child and is obviously not an open court examination.
4. A child testifying at a judicial proceeding or making
When the child is testifying, the court may exclude a deposition shall have the right to be accompanied by one
the public and persons who do not have a direct interest or two persons of his own choosing to provide him emotional
in the ease, including members of the press. The order shall support. Said support persons shall remain within the view of
be made if the court determines on the record that to the child during his testimony. One of the support persons may
testify in open court would cause psychological harm to even accompany the child to the witness stand and the court
him, hinder the ascertainment of truth, or result in his may also allow the support person to hold the hands of the
inability to effectively communicate due to embarrassment, child or to take other appropriate steps to provide emotional
fear or timidity. The court may also motu proprio exclude support to the child in the course of the proceedings but the
the public from the courtroom if the evidence to be court shall instruct the support persons not to prompt, sway,
produced during trial is of such character as to be offensive to or influence the child during his testimony (lsec. 11, ibid.).
decency or public morals. The court may also, on motion of The support person may be another witness but the
the accused, exclude the public from trial, except court court shall disqualify him if it could be sufficiently estab-
personnel and the counsel of the parties (•8ec. 23, ibid.). lished that the attendance of such support person would pose
The court may also order that persons attending the trial a substantial risk of influencing or affecting the content of
shall not enter or leave the courtroom during the testimony of the testimony of the child. If the support person who is also a
the child (Sec. 24, ibid.). witness is allowed by the court, he shall testify ahead of the
child (lsec. 11 bJI ibid.).
2. When a child does not understand the English
or Filipino language or is unable to communicate in said 5. An application may be made for the testimony of
languages due to his developmental level, fear, shyness, the child to be taken in a room outside the courtroom and
disability, or other similar reason, an interpreter whom the be televised to the courtroom by live-link television. The
child can understand and who can understand the child may application may be made by the prosecutor, counsel or
be appointed by the court, motu proprio or upon motion, to guardian ad litem at least five (5) days before the trial date
interpret for the child (Sec. 9La), ibid.). Being another witness (Sec. 25La), ibid.).
in the same case or a member of the family of the child is The court may order that the testimony of the child
not in itself a disqualification. Such a person may be an be taken by live-link television if there is a substantial
interpreter if he is the only one who can serve as interpreter. likeli- hood that the child would suffer trauma from testifying
If the interpreter is also a witness, he shall testify ahead of in the presence of the accused, his counsel or the prosecutor
the child Sec. 9(b), ibid.). as the case may be. The trauma should be of a kind which
3. If the court determined that the child is unable to would impair the completeness or truthfulness of the
understand or respond to questions asked, the court may, testimony of the child (lsec. 25[f], ibid.) (Bar £006).
motu proprio or upon motion, appoint a facilitator. The If the child is testifying by live-lin4t television and it is
facilitator may be a child psychologist, psychiatrist, social necessary to identify the accused at trial, the court may allow
worker, guidance counselor, teacher, religious leader, parent, the child to enter the courtroom for the limited purpose of
or relative (See. 10, ibid.). identifying the accused, or the court may allow the child to
identify the accused by observing his image on a television
monitor (!Sec. 25kg][31, ibid.).
226 EVIDENCE
CHAPTER V — TESTIMONIAL EVIDENCE 227
(The Bar Lectures Series)
C. Examination of Witnesses

6. The testimony of the child shall be preserved on order (Sec. 25fJJ, ibid.).
videotape, digital disc, or other similar devices which shall be
7. To shield the child from the accused,
made part of the court record and be subject to a protective
the court may allow the child to testify in such a manner response to any inquiry made to him for any purpose, shall
that the child cannot see the accused by testifying through one- not be held under any provision of law to be guilty of perjury
way mirrors, and other devices (Alec. 26, ibid.).
or of concealment or misrepresentation (Alec. J2f& , ibid.).
8. Records regarding a child shall be confidential and
kept under seal. Except upon written request and order of the Kinds of examinations
court, a record shall only be released to the following:
1. Direct examination — This is the examination-in-
(1) Members of the court staff for administrative chief of a witness by the party presenting him on the facts
use; relevant to the issue (lsec. 5, Rule 132, Rules of Court). It is
(2) The prosecuting attorney; actually a procedure for obtaining information from one’s own
witness in an orderly fashion. It is information which counsel
(3) Defense counsel; wants the court to hear. The purpose is to elicit facts about
(4) The guardian ad litem; the client’s cause of action or defense. This examination is
(5) Agents of investigating law enforcement agen- now subject to the Judicial Affidavit Rule which took effect
cies; and on January 1, 2013. The Rule is discussed at the end of this
chapter.
(6) Other persons as determined by the court (Sec.
82fo7, ibid.). 2. Cross-examination — This is the examination of the
witness by the adverse party after said witness has given his
9. Whoever publishes or causes to be published in
testimony on direct examination. As a rule, the scope of the
any format the name, address, telephone number, school, or
cross-examination is not confined to the matters stated by the
other identifying information of a child who is or is alleged to
witness in the direct examination. Thus, under the Rules of
be a victim or accused of a crime or a witness thereof, or
Court, an objection that the question in the cross-examination
an immediate family of the child shall be liable to the
is on a matter not touched upon by the witness in his testimony
contempt power of the court (lsec. 31 dJ, ibid.).
will seldom be sustained provided the question covers matters
10. Where a youthful offender has been charged before allowed to be asked by way of cross-examination. This is
any city, or provincial prosecutor or any municipal judge and because the rule allows questions designed to test the accuracy
the charges have been dropped, all the records of the case and truthfulness of the witness, his freedom from interest or
shall be considered as privileged and may not be disclosed bias, or the reverse, and to elicit all important facts bearing
directly or indirectly to anyone for any purpose upon the issue (lsec. 6, ibid.).
whatsoever. If lie is charged and acquitted or the case is
dismissed, the records are also privileged, as a rule (lsec. 31 Although See. 6 of Rule 132 allows the cross-examiner a
g1, ibid.). wide latitude in asking his questions, this provision merely
states a general rule. Where the witness is an unwilling or a
11. The youthful offender, who fails to acknowledge hostile witness as so declared by the court, he may be cross-
the case against him or to recite any fact related thereto in examined only as to the subject matter of his examination-
in-chief (lsec. 12, ibid.). The same limited scope of a cross-
examination is imposed upon the cross-examiner where the
witness examined is an accused because he is subject to cross-
examination on matters covered by the direct examination
(!Sec. 1(d], Rule 115, Rules of Court).
228 EVIDENCE CHAPTER V — TESTIMONIAL EVIDENCE 229
(The Bar Lectures Series) C. Examination of Witnesses

Cross-examination has two basic purposes, namely: (a) by the direct testimony, and (b) To enable counsel to impeach or
To bring out facts favorable to counsel’s client not established to impair the credibility of the witness.
 3. Re-direct examination — This examination is con- examination, the direct testimony of the witness shall remain
ducted after the cross-examination of the witness. The party in the record and cannot be ordered stricken off because the
who called the witness on direct examination may re-examine cross-examiner is deemed to have waived the right to cross-
the same witness to explain or supplement his answers given examine the witness (De la Pan v. Intermediate Appellate
during the cross-examination. It is the examination of a Court, 154 SCRA 65).
witness by the counsel who conducted the direct examination
after the cross-examination. In re-direct examination the Recalling a witness
counsel may elicit testimony to correct or repel any wrong
impression or inferences that may have been created in If a witness has been examined by both sides, the witness
the cross-examination. It may also be an opportunity to cannot be recalled without leave of court. Recalling a witness
rehabilitate a witness whose credibility has been damaged. In is a matter of judicial discretion. In the exercise of its discre-
its discretion, the court may even allow questions on matters tion, the court shall be guided by the interests ofjustice (lsec.
not touched in the cross-examination (Sec. 7, Rule 132, Rules 9, Rule 132, Rules o[Court).
of Court).
Leading questions
4. Re-cross examination — This is the examination
conducted upon the conclusion of the re-direct examination. 1. A leading question is one that is framed in such
Here, the adverse party may question the witness on matters a way that the question indicates to the witness the
stated in his re-direct examination and also on such matters answer desired by the party asking the question. In the
as may be allowed by the court in its discretion (Sec. B, i6id.9. words of Sec. 10 of Rule 132, it is a question “which suggests to
the witness the answer which the examining party desires.”
Death or absence of a witness 2. Leading questions are not appropriate in direct
1. If the witness dies before his cross-examination and re-direct examinations particularly when the witness is
is over, his testimony on the direct may be stricken out asked to testify about a major element of the cause of action
only with respect to the testimony not covered by the cross- or defense. Leading questions are allowed in cross and re-
examination. The absence of the witness is not enough to cross examinations. In fact, leading questions are the types
warrant striking out his testimony for failure to appear for of questions that should be employed in a cross-examination.
further cross-examination where the witness has already Such questions enable the counsel to get the witness to
been sufficiently cross-examined, and the matter on which agree with his client’s version of the facts. Most lawyers will
the cross-examination is sought is not in controversy agree that a “why” question should not be asked in cross-
(People v. Sleñeris, 99 SCRA 92). examination. This kind of question allows a witness to explain
his or her position, emphasize key points of harmful testimony
2. If the witness was not cross-examined because and control the pace and scope of the examination. It invites
of causes attributable to the cross-examining party and the witness to deliver an unwanted “lecture” in the courtroom.
the witness had always made himself available for crogs- Short and leading questions will help control the witness.
3. Leading questions are, however, allowed in a direct
examination in the following instances: (a) on preliminary
matters; (b) when the witness is ignorant, or a child of
tender years, or is feeble-minded or a deaf-mute and there
280 EVIDENCE CHAPTER V — TESTIMONIAL EVIDENCE 231
(The Bar Lectures Seriea) D. Impeachment of a Witness

is difficulty in getting direct and intelligible answers from Illustration No. 2:

such witness; (c) when the witness is a hostile witness; or (d) managing agent of a corporation, partnership or
when the witness is an adverse party, or an officer, director, or association which is an adverse party (lsee. 10,
 Rule 132, Rules o[Court). The fact situation is a robbery case. The accused
claims innocence and that a couple of hours after the
Leading questions to a child witness alleged robbery, he is arrested by the police while in the
park with his children. The defense counsel calls the
As to a child witness, Sec. 10, Rule 132 of the Rules of accused to the stand.
Court should be deemed modified by Sec. 20 of the Rule on
Examination of a Child Witness. Under the said rule, the Q. What were you doing in the park?
court may allow leading questions in all stages of examination A: I was taking a stroll with my two adolescent
of a child under the condition that the same will further children.
the interest of justice. Under the Rules of Court, a leading
question may be asked of a child only if there is difficulty of Q: While you were in the park with your children,
the police officers arrived to arrest you, is that
eliciting from said child a direct and intelligible answer
true?
(Sec.
10 1 Rule 132, Rules of Court). The question is leading. It suggests the next event
which the witness should testify to. The attorney could
Hlustrations: convert the question into a non-leading one by taking
the suggestive element out of the question. Thus, ’What
The following examples of leading questions in a happened, if any, while you and your children were in the
direct examination may be illuminating: park?”

Misleading questions
The case is a collection case. The defendant 1. A misleading question is one which assumes as true
contends that the debt has been paid. He calls a witness a fact not yet testified to by the witness, or contrary to that
to testify to the fact of payment. which he has previously stated. It is not allowed (lsec. 10, Rule
Q: While the plaintiff and the defendant were 132, Rules o[Court) in any type of examination.
engaged in a conversation on the date and 2. Consider this illustration:
time you mentioned, did you see the defendant
deliver P50,000.00 to the plaintiff? Counsel: "You testified that you and the accused were in
a car bound for Baguio City. How fast were you driving?”
The question is objectionable on the ground that it
is leading. Here, the examiner obviously wants the This question is objectionable as misleading where there
witness to directly testify that money was delivered was no previous testimony from the witness that he was driv-
by the defendant to the plaintiff in his presence. The ing the car. The question assumes a fact not yet in evidence.
question could have been properly framed in this manner:
“What have you observed, if any, while the plaintiff and D. Impeachment of a Witness
the defendant were engaged in a conversation?“ 1. Impeachment is basically a technique employed
usually as part of the cross-examination to discredit a witness
by attacking his credibility. Destroying credibility is vital
232 EVIDENCE CHAPTER V — TESTIMONIAL EVIDENCE 233
(The Bar Lecturer Seriea) D. Impeachment of a Witness

because it is linked with a witness’ ability and willingness to (a) The impeachment of a witness is to
tell the truth. be done by the party against whom the
witness is called (lsec. 11, Rule 132, Rules of
2. The rules enumerate certain guideposts in impeach-
ing a witness: Court).
 (b) Subject to certain exceptions, the party produc- character. If he has been impeached, then he can be
ing the witness is barred from impeaching his own wit- rehabilitated by evidence of his good character.
ness (Sec. 12, ibid.). Thus, if D calls W as his witness, D
in not allowed to impeach the credibility of W. It is the How to impeach a witness
adverse party, P, against whom W was called, who is ac-
corded the privilege of impeaching W. 1. Sec. 11 of Rule 132 specifies the manner of impeach-
ing the witness of the adverse party. It declares:
(c) By way of exception to the immediately pre-
ceding rule, if the witness is unwilling or hostile, the “SEC. 11. Impeachment of adverse party’s witness.
party calling him may be allowed by the court to impeach — A witness may be impeached by the party against
the witness. But it is not for the party calling the witness whom he was called, by contradictory evidence, by
to make a determination that the witness is unwilling or evidence that his general reputation for truth, honesty,
hostile. Whether or not a witness is hostile is addressed or integrity is bad, or by evidence that he has made at
to judicial evaluation and the declaration shall be made other times statements inconsistent with his present
only if the court is satisfied that the witness possesses testimony, but not by evidence of particular wrongful
acts, except that it may be shown by the examination of
an interest adverse to the party calling him or there is
the witness, or the record of the judgment, that he has
adequate showing that the reJuctance of the witness is
been convicted of an offense.”
unjustified, or that he misled the party into calling him
as a witness (Slec. 12, ibid.). 2. Under the above rule, a witness may be impeached
A party may also be allowed to impeach his own through the follov*ing modes:
witness when said witness is an adverse party or .is an (a) By contradictory evidence;
officer, director, or managing agent of a corporation,
partnership or association which is an adverse party (b) By evidence that his general reputation for
(lsec. 12, ibid.). truth, honesty or integrity is bad; or

(d) It is also improper for the party calling the (c) By evidence that he has made at other times
witness to present evidence of the good character of his statements inconsistent with hi - present testimony (Slec.
own witness. The same is allowed only if the 11, Rule 132, Rules o[ Court).
character of the witness has been impeached (Sec. 14, 3. A witness cannot be impeached by evidence of
ibid.). Thus, evidence of the good character of the witness particular wrongful acts except evidence of his conviction of
is allowed only to rebut the evidence offered to impeach an offense as disclosed by his examination or the record of the
the witness’ judgment (!Sec. 11, ibid.).
4. An unwilling or hostile witness so declared by
the court or the witness who is an adverse party cannot
be impeached by evidence of his bad character (Sec. 12, ibid.).

Impeachment by contradictory evidence

Every ethical trial lawyer will tell us that one basic
rule in impeaching a witness by contradictory evidence
234 EVIDENCE
CHAPTER V — TEi3TIMONlAL EVIDENCE 235
(The Bar Lectures Series)
D. Impeachment of a Witness

is the observance of fairness. Fairness demands that the deny a matter to be used as the basis for
impeaching matter be raised in the cross-examination of the impeachment by contradictory evidence.
witness sought to be impeached by allowing him to admit or
 Normally, the basis of this mode of impeachment is a Impeachment by prior inconsistent statements
declaration made by the witness in his direct testimony. The
cross-examiner’s intention is to show to the court that there 1. Prior inconsistent statements are statements
were allegations made by the witness that do not correspond made by a witness on an earlier occasion which contradict
to the real facts of the case. the statements he later made during the trial. In the
words of Sec. 13 of Rule 132, they are “that he has made
This mode of impeachment may also be used to contra- at other times statements inconsistent with his present
dict conclusions made by expert witnesses during their tes- testimony.“ These inconsistent statements are admissible
timonies. Usually, the adverse party may also call another to impeach the credibility of the witness making them.
expert to testify to a contrary conclusion. Impeachment by a prior inconsistent statement is the most
commonly used method because of its simplicity and the
Illustration: impact it makes when properly used. The relevant rule
Witness A testifies on direct examination that he provides:
was barely five meters away from where the accused,
D shot the victim, V. The defense counsel has reliable "SEC. 13. How witness impeac/ted' by evir/ence of
inconsisfenf sfafemenfs. — Before a witness can be im-
infomation that, nt the time the shooting took place,
peached by evidence that he has made at other times
Witness A was standing as a witness in a wedding of his statements inconsistent with his present testimony, the
friend, Witness B, in a place a hundred miles away. The statements must be related to him, with the circumstanc-
defense counsel now asks: es of the times and places and the persons present, and
Q: You testified that you were present when D he must be asked whether he made such statements,
shot V, is that right? and if so, allowed to explain them. If the statements be
in writing they must be shown to the witness before any
Perfectly right, Sir! question is put to him concerning them."
Isn’t it true that, at the time of the alleged 2. Effectively impeaching a witness by prior incon-
shooting of V by D, you were in a wedding of sistent statements requires laying the proper foundation for
your friend miles and miles away? the impeachment. Laying the foundation, commonly referred
A: That isn't true. Sir. Absolutely not. to as “la ying the predicate,” is a preliminary requirement
before the impeachment process prospers. The elements of
Because Witness A denied his being in a friend’s
wedding at the time of the incident, the defense counsel now this foundation are clearly spelled out in Sec. 13 of Rule 132.
has the chance to prove the contrary by a contradictory These are:
evidence. He can do so by calling Witness B or any other (a) The alleged statements must be related to
witness to testify on the whereabouts of Witness A on the the witness including the circumstances of the times
relevant date and time. and places and the persons present. If the statements
are in writing, they must be shown to him; and
(b) He must be asked whether he made such
statements and also to explain them if he admits making
those statements.
3. The mere presentation of the prior declarations of
the witness without the same having been read to him while
236 EVIDENCE
(The Bar Lectures Seriea) CENTER V — TESTIMONIAL EVIDENCE 237
D. Impeachment of a Witness

testifying in court is insufficient for the desired impeachment opportunity to explain the supposed
of his testimony, if he was not given the ample discrepancy. This rule is founded, not only
upon common sense, but is essential to protect the
And when was this?
character of the witness (People u. De Guzman, 288 ISCRA
346, 354). A: On February 15, 2015, around 9:30 in the
4. To achieve a dramatic effect, the first step in setting evening. That was the date and time of the
up the prior inconsistent statement would actually be to ask burglary.
the witness to repeat or reaffirm his most recent statement. Do you recall having seen SPO4 Morales
The second step would be to relate to the witness his prior outside the burglarized store at around 10:00 of
inconsistent statement and, at the same time, building up” the same day and night?
or highlighting the contradictory utterance by relating to the
witness the circumstances of times, persons and places. Then, I do, Sir. He spoke to me that night and asked
the witness is asked whether or not the statements were me what I save.
made (Slee Sec. 13, Rule 132, Rules of Court). And that was only thirty minutes from the time
The underlying purpose for laying the predicate is to you saw the man. Is that correct?
allow the witness to admit or deny the prior statement and A: That is correct, Sir.
afford him an opportunity to explain the same. Non-
compliance with the foundational elements for this mode of And at that time, everything was still fresh
impeachment will be a ground for an objection based on in your mind. Right?
“improper impeach- ment.” Over a timely objection, extrinsic A: You’re absolutely right, Sir.
evidence of a prior inconsistent statement without the
required foundation is not admissible. Do you recall telling SPO4 Morales that you
cannot give an accurate description of the man
Illustration No. 1: who came out of the burglarized store because
he was wearing a bonnet over his face, had a
The case is a robbery case. The accused has oriental pair of gloves on and was wearing dark long
features and is five feet and three inches tall. The sleeves?
prosecution witness is one who allegedly saw the culprit
come out of the crime scene. At this point, the witness gets boxed in, and his
credibility starts crumbling no matter how he responds to the
Q: Mr. A, you testified on direct examination that
question asking him to affirm or deny the prior inconsistent
the man you saw come out of the burglarized
store had oriental features and was a little over statement. If the witness admits the prior inconsistent
five feet tall. Is that correct? statement, the rule requires that he be allowed to explain
them. Often, it is difficult to explain inconsistent statements
A: Yes, Sir. and would require a lot of effort. If the witness denies
Are you certain of your description of the man? making the statement, it is imperative for the impeaching
party to be prepared to present another witness who would
Very certain, Sir. contradict the witness being impeached.
It happens sometimes that the prior inconsistent state-
ment is in writing. The process of laying the predicate is
fundamentally the same as when the prior statement is oral,
238 EVIDENCE
(The Bar Lectures Series) CHAPTERV- TESTIMONIALFVIDENCE 239
D.ImpeachmentofaWSMes

but if the statement be in writing, it must be shown to the 13, Rule 132, Rules of Court).
witness before any question in put to him concerning it (lsec.
Nlustration No. 2:
 The case is one for murder. The witness was inter- Q: I am showing you a three-page statement
viewed by the police ten minutes after the incident. In entitled “!Sinumpaang !Salaysay.” Is this the
her signed statement, the claimed that the did not actu- statement you signed before Detective Rosales?
ally see the accused fire the shot that killed the
victim, but in her direct examination, she testified that A: It is, sir.
she saw him fire once at the victim. At the end of the last page is a name and
Q: Did you earlier testify that you saw the accused signature over the name. Is that your name
fire at the victim? and signature?
A: I did, sir. A: They are, Sir.
Are you certain of that? Counsel will now ask that the statement be marked
Yes, Sir. as an exhibit including the name and signature of wit-
ness. Then counsel will call the attention of the witness
Do you recall having made a statement to the to the relevant paragraph of her signed statement. The
police ten minutes after the incident? reading of the prior inconsistent statement must be ver-
Yes, Sir. I made it before Detective Rosales. batim, not a mere summary, as: In paragraph 13 of this
“!Sinumpaang !Salaysay,” you stated, and I quote...”
Your statement was reduced to writing, is that
right?
Impeachment by showing bad reputation
A: Right, Sir.
1. When a witness testifies, he puts his credibility
After your statement was typed, it was shown at issue because the weight of his testimony depends upon
to you, right? his credibility. One way to impair his credibility is by showing
A: Yes, sir. a not so pleasing reputation. Hence, the prevailing rule allows
his impeachment by evidence that he has a bad general
He asked you to read the statement very reputation.
carefully before you signed it. Am I correct?
2. Not every aspect of a person’s reputation may be the
Yes, Sir. subject of irripeachment. Evidence of bad reputation for the
After making sure that the contents of the purpose of impeachment should refer only to the following
written statement were correct, you signed the specific aspects: (a) for truth; (b) for honesty; or (c) for
statement. Is that correct? integrity (Sec. 11, Rule 132, Rvles o[Court). These are aspects
of a person’s reputation that are relevant to his credibility.
That is correct, Sir. He cannot be impeached for his reputation on other grounds.
Thus, it would be improper for a witness to be impeached
because of his reputation for being troublesome and abrasive.
Example: Mr. W is called by the prosecution to
testify that it was indeed the accused who picked the pocket
of the victim when the latter accidentally tripped by the
sidewalk.
240 EVIDENCE in the community for telling lies. The
(The Bar Lectures Series) CHAPTER
testimony of Mr. D is TESTIMO
an impeaching testimony to discredit Mr. W. Mr. WDENCE
The defense later presents Mr. D, a neighbor of Mr. W for D, who has D. Impeach
thirty (30) years, who testifies that Mr. W has a reputation Witness
 — Evidence of the good character of a witness is not
241
“SEC. 14. Evidence of good character of witness. admissible until such character has been impeached.”
testified on the reputation of Mr. W, may be cross-examined 2. The rule that bars evidence of the good character of
like any witness. He may be asked on cross-examination about the witness, who has not yet been impeached, has reference
the extent of his familiarity with the witness who is being only to a mere witness. It does not refer to an accused in a
impeached, together with any prejudice and biases he may criminal case. In a criminal case, the accused may prove his
have against the witness or his stake and interest in the case. good moral character relevant to the offense charged even
before his character is attacked (Sec. 51[a][1], Rule 130, Rules
No impeachment by evidence of bad character but by bad o[ Court). However, the prosecution cannot initiate proof of
reputation the bad character of the accused. It can only do so by way of
rebuttal (Dec. 51[a][2], ibid.). This means that the prosecution
1. It should be noted that Sec. 11 does not allow im-
can prove the bad character of the accused only if the latter
peachment by evidence of bad character but by bad reputa-
had first presented evidence of his good character.
tion.
2. "Character" is made up of the things an individual No impeachment by evidence of particular wrongful acts
actually is and does, whereas "reputation” is what people
think an individual is and what they say about him (Mcnault y 1. Consider this example: The case is a criminal prose-
v. lstate, 138 Tex.Cr.R. 317. 135 IS.W.2d 987, 989; James v. cution for robbery. The defense is presenting its evidence- in-
state ex rel. Loser, 24 Tenn. App. 453, 145 S. W.2d 1026, 1033 chief and calls its first witness to impeach the primary
cited in Black’s Law Dictionary, p. 1172). Hence, a person’s witness of the prosecution. The defense counsel asks a series
reputation is not necessarily his character and vice versa. of questions to show specific instances of misconduct of the
prosecution witness.
Evidence of good character of the witness
Q: Do you know the prosecution witness?
1. Be it noted, too, that the party calling a witness
cannot initiate proof of his good character. Thus, if the plain- A: I do, Sir.
tiff in a civil case presents Mr. W to testify on a vehicular Q: How did you come to know him?
collision, the counsel is not allowed to ask questions tending
A: Two years ago, he robbed me of my wallet at
to show the good character or reputation of the witness. Any
gun point.
question to that effect can be validly objected to as "improper
character evidence.” Because a witness is presumed to be Q: Was that incident the first time you came to
truthful and of good character, the party presenting him does know the prosecution witness?
not have to prove he is good because he is presumed to be
A.’ No Sir.
one. It is only after his character has been attacked can he
prove his being good. He must first be discredited before his Q: Why do you say so?
reputation or character can be bolstered. This basic
A: Prior to my being robbed by him, he stole
-procedural rule is supported by the provisions of Sec. 14 of the carabao of my neighbor.
Rule 132:
24S EVIDENCE
(The Bar Lectures Series) CHAPTER V — TESTIMONIAL EVIDENCE 248
E. Admissions, Conf•.ssions and the Res Inter Alton Acta Rule (Rule 130a

Is this line of questioning objectionable? Certainly, it He can, nevertheless, be impeached as to his

is. A witness cannot be impeached by evidence of particular bad reputa- tion for truth, honesty or integrity.
wrongful acts (lsec. 11, Rule 132, Rules o[Court). Thus:
 Q: How long have you known the prosecution custodian of records) to present in court the record of convic-
witness? tion. The rule is clear on this. It should be by “the examination
A: Since childhood, Sir. of the witness.” This witness is obviously the one whose prior
conviction is the subject of inquiry.
How well do you know him?
A: Very well, Sir. Exclusion and separation of witnesses
Why do you may so? 1. The judge may exclude a witness who, at the time of
exclusion, is not under examination so that he may not hear
A: We studied in the same school since nursery the testimony of other witnesses (lsec. 15, Rule 132, Rules of
school until we both graduated from college. We Court).
were also neighbors since childhood.
2. The judge may cause the witnesses to be kept
What can you say about his reputation? separate and be prevented from conversing with one another
A: Terrible, Sir. He is reputed to be dishonest and until all shall have been examined (Ibid.).
untruthful.
When the witness may refer to a memorandum
This line of questioning does not violate the rules on
1. During his testimony, in order to refresh his
impeachment. This is not an impeachment by evidence of
memory, a witness may refer to a memorandum or to
specific wrongful conduct which is barred, but an impeach-
anything written or recorded by himself, or written or
ment by evidence of bad reputation.
recorded by someone acting under his direction. Such
2. As earlier mentioned, Sec. 11 of Rule 132 disallows memorandum should be written at the time the fact occurred
the impeachment of a witness by evidence of his or immediately thereafter or at any time when the event or
particular wrongful acts. fact was fresh in his memory. It is necessary too that the
witness affirm that the fact was correctly written or recorded.
There is, however, a particular wrongful act that is ad- Also, the memorandum must be produced and may be
missible in evidence under the same section — his prior con- inspected by the adverse party (Alec. 16, Rule 132, Rules of
viction of an offense. This prior conviction of the witness is Court).
shown through either of two ways: (a) by his examination,
i.e., by cross-examining him, or (b) by presenting the record 2. The witness may testify from the memorandum,
of his prior conviction. writing or record, although he has no more recollection of the
facts written therein as long as he swears that the memoran-
Examining another witness to elicit from his lips the pri- dum, writing or record correctly stated the fact or transaction
or conviction of another witness is not the correct procedure, when the recording was made. This type of evidence must,
unless the witness is one who is competent (like an official however, be received with caution (Ibid.).

E. Admissions, Confessions and the

item Inter Clios Acf‹i Rule
(Rule 130)
“SEC. 26. Admissions of a parfy. — The act,
declaration or omission” of a party as to a relevant fact
may be given in evidence against him.

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E. Admissions, Confessions and the Yes Inter Alton Acta Rule (Rule 130)

SEC. 27. Offer of'compromise not adfrtiSGible. — admission of any liability, and is not
In civil cases, an offer of compromise is not an
 admissible in evidence against
SEC. 32. Admission by silence. — An act or
the offeror. declaration made in the presence and within the hearing
In criminal cases, except those involving quasi- or observation of a party who does or says nothing
offenses (criminal negligence) or those allowed by law when the act or declaration is such as naturally to call
to be compromised, an offer of compromise by the for action or comment if not true, and when proper and
accused may be received in evidence as an implied possible for him to do so, may be given in evidence
admission of guilt. against him.
SEC. 33. Confession. — The declaration of an
A plea of guilty later withdrawn, or an unaccepted
ac- cused acknowledging his guilt of the offense
offer of a plea of guilty to a lesser offense, is not charged, or of any offense necessarily included
admissible in evidence against the accused who made therein, may be given in evidence against him.
the plea or offer.
SEC. 34. Simi/ar acts as evidence. — Evidence that
An offer to pay or the payment of medical, hospital one did or did not do a certain thing at one time is not
or other expenses occasioned by an injury is not admissible to prove that he did or did not do the same
admissible in evidence as proof of civil or criminal or a similar thing at another time; but it may be received
liability for the injury. to prove a specific intent or knowledge, identity, plan
SEC. 28. A¢/miss/on 6y third-parfy. — The rights of system, scheme, habit, custom or usage, and the like.
a party cannot be prejudiced by an act, declaration, or SEC. 35. Unaccepted offer. — An offer in writing
omission of another, except as hereinafter provided. to pay a particular sum of money or to deliver a written
insti ument or specific personal property is, if rejected
SEC. 29. Admission by co-partner or agent. — The without valid cause, equivalent to the actual
act or declaration ofa partner or agent of the party within production and tender of the money, instrument, or
the scope of his authority and during the existence of property."
the partnership or agency, may be given in evidence
against such party after the partnership or agency is Concept of admissions and confessions
shown by evidence other than such act or declaration.
The same rule applies to the act or declaration of a joint 1. An admission is an act, declaration or omission of a
owner, joint debtor, or other person jointly interested party as to a relevant fact (Dec. 26, Rule 130, Rules of Court).
with the party. It is a voluntary acknowledgment made by a party of the
existence of the truth of certain facts which are inconsistent
SEC. 30. Admission 6y conspirator. — The act or
with his claims in an action (Bl.ach’s Law Dictionary, 5th Ed.,
declaration of a conspirator relating to the conspiracy
and during its existence, may be given in evidence
p. 44).
against the co-conspirator after the conspiracy is shown In a confession, there is an acknowledgement of guilt; in
by evidence other than such act or declaration. an admission, there is merely a statement of fact not directly
involving an acknowledgement of guilt or the criminal intent
SEC. 31. Admission byprivies. —Where one derives
title to property from another, the act, declaration, or to commit the offense with which one is-charged (Ladiana v.
omission of the latter, while holding the title, in relation People, 393 SCRA 419).
to the property, is evidence against the former. 2. A confession is the declaration of an accused
acknowledging his guilt of the offense charged, or of any
offense necessarily included therein (Sec. SS, Rule 130, Rules
of Court; Trac y’s Handbook, 62 Ed., 242). It is a statement
246 EVIDENCE
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E. Admissions, Confessions and the ftes Inter A/ios Aero Rule (Rule 130)

by the accused that he engaged in conduct which constitutes person declares in his counter-affidavit that
a crime (29A Am Jur 2d, Ei idence, §708). Hence, when a he performed an act like shooting the
victim but denied that he did so with criminal intent because
the shooting was done in self-defense, the declaration in 130 refers to a confession as a “declaration” which connotes an
affirmative statement from the person making the confession.
merely an admission and not a confes-
sion (Ladiana v. People, 393 SCRA 419). 2. An admission may be Judicial or extrajudicial. An
admission is judicial when made in the course of a judicial
proceeding. An admission is extrajudicial when made out of
court or even in a proceeding other than the one under con-
sideration (Perry r. lsimpson, Conn. 313). A confession may
3. An admission, in a general sense, includes confes- be also judicial or extrajudicial for the same reasons (29A Am
sions, the former being a broader term because, accordingly, Jur 2d, §711).
a confession is also an “admission ... by the accused of the fact
charged against him or of some fact essential to the charge” 4 3. An admission may also be adoptive. This admission
occurs when a person manifests his assent to the statements
Wigmore, Sec. 1050). A confession is a specific type of admis- of another person. The admission may be received in evidence
sion which refers only to an acknowledgment of guilt. As if it can be shown that a party adopted the statements as his
used, the term admission refers to acknowledgment of facts own (Fed. Enid. R. 8O1(d](2] B]; Blach’s Can› Dictionary, 5th
which, although may be incriminating, falls short of an Ed., p. 44).
admission of guilt.
A party may, by his words or conduct, voluntarily adopt
4. An admission may be implied like an admission by or ratify another’s statement. Where it appears that a party
silence. A confession cannot be implied. It should be a direct
clearly and unambiguously assented to or adopted the state-
and positive acknowledgment of guilt because Sec. 33 of Rule
ments of another, evidence of those statements is admissible
130 describes a confession as a “declaration” unlike an admis- against him. This is the essence of the principle of adoptive
sion which is described not only as a ‘declaration” but also as admission.
an “act” or “omission” (Sec. 26, Rule 130, Rules o[Court).
An adoptive admission is a party’s reaction to a state-
Effects of admissions ment or action by another person when it is reasonable to
treat the party’s reaction as an admission of something stated
Under Sec. 26, Rule 130, the act, declaration or omis- or implied by the other person. By adoptive admission, a
sion of a party as to a relevant fact may be given in evidence third person’s statement becomes the admission of the party
against him. This rule is based on the notion that no man embracing or espousing it. Adoptive admission may occur
would make any declaration against himself, unless it is true when a party:
Re ublic u. Bautista, 532 SC ?A 598, 606). (a) expressly agrees to or concurs in an oral state-
ment made by another;
Classification of admissions and confessions
(b) hears a statement and later on essentially re-
1. An admission may be express or implied. A:n express peats it;
admission is a positive statement or act. An implied admis- (c) utters an acceptance or builds upon the asser-
sion is one which may be inferred from the declarations or tion of another;
acts of a person.
(d) replies by wa3 of rebuttal to some specific points
A confession cannot be implied. It must be a positive ac- raised by another but ignores further points which he or
knowledgment of guilt and cannot be inferred. Sec. 33 of Rule she has heard the other make; or
248 EVIDENCE
(The Bar Lectures Series) CHAPTER V — TESTIMONIAL EVIDENCE 249
E. Admissions, Confessions and the Res Inter Amos Acta RuIe (RuIe 130)

(e) reads and subsequently signs a written state-

Effect of extrajudicial confession of guilt; corpus delicti
ment made by another (Republic v. Kenricb Development
Corporation, 498 SICRA 220, 231). Examples of adoptive admissions are the
alleged admis- sions made by President Estrada when his 1. While a judicial confession may sustain a conviction,
options dwindled when, according to the Angara Diary, the an extrajudicial confession is not sufficient for conviction. The
armed forces with- drew its support from him as President rule requires that the confession be corroborated by evidence
and Commander-in- Chief. Thus, Executive Secretary Angara of corpus delicti (!Sec. 3, RuIe 133, Rules of Court).
had to allegedly ask Senate President Pimentel to advise
2. Corpus clelicti is the “body of the crime” or the
petitioner to consider the option of‘dignified exit or offense (People v. lstroob, 347 Ill. 460, 170 N.E. 821). Strictly
resignation.“ President Estrada did not object to the speaking, it means the actual commission of the crime and
suggested option but simply said he could never leave the someone criminally responsible therefor (People v. Sltoll,
country. According to the Court, his silence on this and other 84 Cal App. 99, 257 Pay. 583 cited by Underhill, Criminal
related suggestions can be taken as adoptive admissions by Evidence, §34). lt is the substance of the crime; the fact that a
him (Estrada v. Desierto, 356 ISCRA 108). crime has actually been committed é€afia/o u. People, G.fi.
Besides, he had several opportunities, according to the No. 210760 January 26, 201S).
Court, to object to the admissibility of the diary, but did not Corpus delicti has two elements: (1)proofof the occurrence
do so seasonably. It is too late in the day to raise his of a certain event — for example, that a man has died or a
objections in an omnibus motion. The Angara Diary also building has been burned; and (2) some person’s criminal
contains direct statements of the President which could be responsibility for the act (People v. Boco, 309 SCRA 42; People
categorized as admissions of a party like: (a) his proposal for v. Base, 329 SICRA 158).
a snap election
in which he would not participate; (b) his statement that he 3. Corpus delicti, and all the elements thereof, may
would leave by Monday if the second envelope would be be proved b) circumstantial evidence but such proof must
opened by Monday; and (c) statements like: “Pagod na pagod be convincing and compatible with the nature of the
case
na ako. A yobo na, masyado nang masabit. Pagod na ago sa (Underhill , Criininal Evidence, §37).
red tape,
bureaucracy, intriga. I just want to clear my name, then I will 4. While an extrajudicial confession will not be
go.” (Estrada v. Desierto, 356 !SCRA 108). These words were suffi- cient for conviction unless corroborated by evidence of
taken by the Court as admissions indicative of his resignation corpus delicti (!Sec. 3, RuIe 133, Rules of Court), a judicial
from office. confession
will support conviction without proof of corpus delicti
To rebut the argument that the diary of Angara is not independent of the judicial confession (! u. Dena, 28 N.
the diary of the former president and, thus could not be ad- State
Mexico, 479, 214, Pac. 583).
missible against him, the Court declared:
5. In prosecutions involving narcotics, the narcotic
substance itself eonstitutes the corpus ‘delicti of the offense
“... The argument overlooks the doctrine of adoptive and its existence is vital to sustain a judgment of conviction
admission. An adoptive admission is a party’s reaction
to a statement or action by another person when it is beyond reasonable doubt. Proof beyond reasonable doubt
reasonable to treat the party’s reaction as an admission of demands that unwavering exactitude be observed in estab-
something stated or implied by the other person” (Estrada lishing the corpus delicti. The chain of custody performs this
u. Desierto, ibid.). function as it ensures that unnecessary doubts concerning
250 EVIDENCE
(The Bar Lectures Series) CHAPTER V — TESTIMONIAL EVIDENCE 251
E Admissions, Confessions and the Yes Inter Clios Acta Rule (Rule l3G)

the identity of the evidence are removed. The rule seeks to or recovery of the body is impossible. It is enough that the
settle definitively whether the object evidence subjected to death and the criminal agency causing it be proven. Quoting
laboratory examination and presented in court is the same Wharton on Criminal Evidence, Vol. 2, Sec. 871, pp. 1505-1506,
object allegedly seized from the accused (Eajardo u. People, the Supreme Court also held that by the weight of authority,
677 SCRA 541, 549, July 25, 2012). it is a rule now established that the element of death in the
corpus delicti may be established by circumstantial evidence.
For an accused to be convicted of illegal possession
of drugs, it is necessary that the following elements be To establish the corpus delicti b circumstantial evidence,
established: facts are admissible to show the impossibility of rescue, as
at sea, the existence and extent of wounds, and deceased’s
(a) the accused is in possession of an item or condition of health; and that the wound was sufficient to
object which is identified to be a prohibited drug; cause death and that the party was reported dead. Death is
(b) such possession is not authorized by law; sufficiently shown by the testimony of a witness that he saw
the flash ano heard the report, and that the deceased fell to
(c) the accused freely and consciously possessed the the ground, declaring that he was shot and that the accused
said drug(People v. Gustafsson, 677 ISCRA 612, 621, July st.ot him People u. S!asota, 91 Phil. 111; People u. Agsunod,
30, 2012; for further readings, see People u. Domingo, •Ir., 306 S!CRA 612).
G.A. No. 2J1672, June J, 2016). In People v. Ansang (93 Phil. 44), the appellant, while
riding on a vinta, ignited home-made bombs and threw them
6. In theft, corpus delicti has two elements, namely: (l)
at the victims in another boat. While the parts of the boat
that the property was lost by the owner, and (2) that it was
were later found, the passengers were never seen again. Hold-
lost by felonious taking. The fact of the commission of the
ing that the corpus dé/ic/i was shown by the facts and that
offence or the corpus deficit may be proven by testimonial
the victims died, the Court convicted the appellant of multiple
evidence and whatever documentary evidence is on record (+
murder.
R <! *
People, G.fi. No. 170863, March 20, 2013; Zabala v. People, 9. A mere recent pronouncement by the Court confirms
the rule that corpus delicti refers to the fact of the commission
G.R. No. 210760, January 26, 2015).
of the crime charged or to the body or substance of the crime.
7. The corpus delicti in the crime of illegal possession In its legal sense, it does not refer to the ransom money in the
of firearms in the accused’s lack of license or permit to possess crime of kidnapping for ransom or to the body of the person
or carry the firearm, as possession itself is not prohibited by murdered or, to the stolen items in theft. “Since the corpus
law (lsayco v. People, 547 SCRA 368). delicti is the fact of the commission of the crime, the Court has
ruled that even a single witness’ uneorroborated testimony, if
8. The accused, in one case, argues that, inasmuch as credible, may suffice to prove the corpus delicti and warrant a
there is no conclusive evidence of the death of the deceased
conviction for the offense charged. Corpus delicti may even be
because his body was never found, neither was the place
established by circumstantial evidence” (Zapanta u. People,
where he is supposed to have been buried indicated; hence,
G.fi. No. 170863, Morcfi 20, 2013).
corpus delicti was not established.
The Court ruled that it is not necessary to recover the
body or show where it can be found in a case of murder or 10. The rule on extrajudicial confession in the Rules
homicide. There are cases like death at sea, where the finding of Court must be considered together with applicable

252 EVIDENCE CHAPTER V — TESTIMONIAL EVIDENCE 253

(The Bar Lectures Series)
E. Admissioiis, Confessions and the Res Inter Alios Acta Rule (Rule 130)

constitutional and substantive laws which must be complied of R.A. 7438 (Act Defining Certain Rights of Persons, Arrested,
with for the confession to be admissible. For instance, Sec. 2(d) Detained or Under Custodial Investigation) provides:
 “Any extrajudicial confession made by a person officers after a person has been taken into custody or other-
arrested, detained, or under custodial investigation shall
be in writing and signed by such person in the presence wise denrived of his freedom of action in any significant way.
of his counsel or in the latter’s absence, upon a valid It is only after the investigation ceases to be a general inquiry
waiver, and in the presence of any of the parents, older into an unsolved crime and begins to focus on a particular
brothers and sisters, his spouse, the municipal mayor, the suspect, the suspect is taken into custody, and the police
municipal judge, district school supervisor, or priest or carries out a process of interrogations that lend itself to
minister of the gospel as chosen by him; otherwise, such eliciting incriminating statements, that the rule begins to
extrajudicial confession shall be inadmissible as evidence operate (Aquino v. Paiste, ñññ SCRA 2ññ).
in any proceeding.” (Bar 2006; 2008)
Note that R.A. 7438 (Dec. 2[f]) has extended the meaning
11. The above rights refer to an extrajudicial confession of‘custodial investigation’ to include the practice of issuing an
of a person arrested, detained or is under custodial investiga-
invitation to a person who is investigated in connection with
tion because a confession made by the accused before he is an offense he is suspected to have committed.
placed under custodial investigation need not comply with the
above. 13. Voluntary admissions made by the accused such as
his possession of a firearm used in the commission of a crime
If the accused talks to a person in a private meeting
with, for instance, a municipal mayor spontaneously, and the subsequent surrender of the firearm at a time when he
was already under custodial investigation are not admissible
and voluntarily confessing to his commission of a crime, the
constitutional requirements in a custodial investigation do nOt against the accused. At the time the admissions were made,
apply. When the accused talked to the mayor as a confidant the police had already begun to focus on the accused and were
and carrying out the process of interrogations that was lending
not as a law enforcement officer, the uncounselled confession itself to eliciting incriminating statements and evidence. The
did not violate his constitutional rights. Constitutional investigation was, thus, no longer a general inquiry into an
procedures on custodial investigation do not apply to spon- unsolved crime as the accused was already being held as a
taneous statements, not elicited through questioning suspect for the alleged killing of the victims. Consequently,
authorities, but given in an ordinary manner whereby the the rights of a person under custodial investigation, including
accused orally admitted having committed the crime. Hence, the right to counsel, have already attached in his favor. Any
such confession is admissible in evidence against him, even waiver of these rights should be in writing and undertaken
when he did so without the assistance of counsel (People u. with the assistance of counsel. Admissions under custodial
Cabiles, 284 ISCRA 199). investigation without the assistance of counsel are barred as
12. Custodial investigation has been described as one evidence. The records do not disclose any indication that the
which involves any questioning initiated by law enforcement accused had waived his right to counsel; hence, his admissions
are inadmissible against him. A siispect’s confession, whether
verbal or non-verbal, when taken withoiit the assistance of
counsel or without a valid waiver of such assistance regardless
of the absence of such coercion, or the fact that it had been
voluntarily given, is inadmissible in evidence, even if such
confession were gospel truth (People u. Ador, 432 SCRA 1).
264 EVIDENCE CHAPTER V — TESTIMONIAL EVIDENCE 255
(The Bar Lecturer Seriea) E. Admissions, Confessions and the Res Inter Alios Acta Rule (Rule 130)

Admission by silence “SEC. 32. Admission by s//ence. —

An act or declaration made in the
1. Admission by silence, as expressed in Sec. 32 of presence and within the hearing or
Rule 130 of the Rules of Court, provides: observation of a party who does or says
 nothing when the act or declaration is such as
naturally to call for action or comment if not true, and was at liberty to make a denial; (c) the statement was about a
when proper and possible for him to do so, may be matter affecting his rights or in which he was interested and
given in evidence which naturally calls for a response; (d) the facts wele within
against him.” his knowledge; and (e) the fact admitted from his silence is
material to the issue (People v. Paragsa, 64 SCRA 105).
2. Admission by silence has been traditionally
received, even in common law, as admissible evidence. The Thus, in one case, despite the many opportunities given
to the respondent, he refused to comment and present his
usual pat- tern for its admissibility involves a statement by a
person in the presence of a party to the action, criminal or side. The gravity of the charges and weight of the evidence
civil. The statement contains assertions against the party against him would have prompted an innocent man to come
out and clear his name. However, he opted to maintain his
which, if un- true, would be sufficient cause for the party to
silence. His silence can easily be interpreted as an admission
make a denial. His failure to speak against the statement is
of guilt(Ortiz v. De Gunman, 451 ISCRA 393; Office of the Court
admissible as an admission.
Administrator v. Bernardino, 450 NICRA 88).
Suppose, upon seeing a policeman, a bystander, in the
presence of other people, points to a man and accuses him Res inter alios acta, branches
as the killer of another man found dead the night before.
The man pointed to does not respond. He does not deny the 1. The expression if fully expressed reads: res inter
accusation. His failure to respond may be given in altos acta alteri nocere non debet which literally means that
evidence against him. The idea of the rule on admission by “things done between strangers ought not to injure those who
silence is that if an accusation is made, and a reasonable are not parties to them” (Blach’s Lan Dictionary, 5th Ed.,
person would have denied the same if it were false, the p. 1178; Dynamic Sigrimaher Outdoor Advertising Services,
failure to deny the accusation by the person accused may be Inc. v. Potongan, 461 SCRA 328).
construed as an implied admission of the truth of the 2. The res inter altos acta rule has two branches,
accusation and may be given in evidence against him. namely:
3. Not every silence is an implied admission. For (a) The rule that the rights Of a party cannot be
instance, the silence of a person under investigation for prejudiced by an act, declaration, or omission of another
the commission of an offense should not be construed as an (lsec. 28, Rule 130, Rules of Court).
admission by silence because of constitutional reasons (lsec.
2[b1, R.A. 7438). (b) The rule that evidence of previous conduct
or similar acts at one time is not admissible to prove
4. For silence to be deemed an admission, it is neces- that one did or did not do the same act at another time
sary that: (a) he heard and understood the statement; (b) he (lsec. 34, Rule 132, Rules of Court).
3. The provisions on res inter altos acta under Rule 130
read:

“SEC. 28. Admlssion by third party. — The rights

of a party cannot be préjudiced by an act, declaration or
omission of another, except as hereinafter provided.”
256 EVIDENCE CHAPTER V — TESTIMONIAL EVIDENCE 257
(The Bar Lectures Series) E. Admissions, Confessions and the Res Inter Altos Acta Rule (Rule 130)

“SEC. 34. Similar acts as ev’ic/ence. — Evidence that to prove a specific intent or knowledge,
one did or did not do a certain thing at one time is not identity, plan, system, scheme, habit,
admissible to prove that he did or did not do the same custom or usage, and the like.”
or a similar thing at another time; but it may be received
 4. The first branch is a very simple and logical rule
2. An extrajudicial confession or admission of one
which holds that whatever one says or does or omits to do
accused is admissible only against said accused, but is inad-
should only affect him but should not affect or prejudice
missible against the other accused. But if the declarant
others. In other words, both common reason and fairness
or admitter repeats in court his extrajudicial admission,
demand that a man’s actions and declarations should affect
and the other accused is accorded the opportunity to cross-
him alone and should not affect others.
examine the admitter, the admission is admissible against
Thus, ifX makes a statement before the media admitting both accused because then, it is transposed into a judicial
his participation in a previous murder, his statement is admission (Yaps uco v. Slandiganbayan, 674 ISCRA 420, 451,
admissible against him under Sec. 26 of Rule 130. The rest June 25, 2012). (Bar 2003)
of his statement pointing to Y and Z as co-participants in
the murder are not admissible against Y and Z under the Exceptions to the res inter alias acta rule (first branch)
first branch of the res inter alios echo rule in Sec. 28 of
Rule 1. The first branch of the rule admits of certain
130. Under this rule, the statement of X should not affect or exceptions, to wit:
prejudice Y and Z. (a) admission by a co-partner or agent (Slec. 29,
5. The above rule has reference only to extrajudicial Rule 130);
declarations. Hence, statements made in open court by a (b) admission by a co-conspirator (Sec. 30, Rule
witness implicating persons, aside from his own judicial 130); and
admissions, are admissible as declarations from one who has (c) admission by privies (Sec. 31, Rule 130).
personal knowledge of the facts testified to.
2. The basis for admitting the above admissions is
Distinctions between extrajudicial and judicial admissions that the person making the statement is under the same
1. A distinction must be made between extrajudicial circumstances as the person against whom it is offered. Such
and judicial confessions. “An extrajudicial confession may be circumstances give him substantially the same interest and
given in evidence against the confessant but not against his the same motive to make a statement about certain matters
co-accused as they are deprived of the opportunity to cross- (4 Wigmore, Sec. 1080a, 140).
examine him. A judicial confession is admissible against the
declarant’s co-accused since the latter are afforded opportunity Admissions by a co-partner or agent
to cross-examine the former. Sec. 30 of Rule 130 of the Rules 1. An agent performs some service in representation
of Court applies only to extrajudicial acts or admissions and of or on behalf of his principal (Art. 1868, Ciuil Code of the
not to testimony at trial where the party adversely affected Philippines). The agent, therefore, is in legal contemplation, a
has the opportunity to cross-examine the declarant” (People v. mere extension of the personality of the principal and unless
Janjalaiii, G.fi. to. 188314, January 10, 2011). the agent acts in his own name, the principal must comply
with all the obligations which the agent may have contracted
within the scope of his authority (Art. 1883; Art. 1910, Civil
Code of the Philippines).
Hence, whatever is said by an agent to a third person, dur-
ing the course of the agency and within the scope of his actual
258 EVIDENCE
CHAPTER V — TESTIMONIAL EVIDENCE 259
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E. Admissions, Confessions and the Res Inter Alios Acta Rule (Rule 130)

or apparent authority, relative to the business contemplated (29A Am Jur 29, Evidence, 815 citin Hitchman Coal & Code Co. u.
by the agency is, for legal purposes, also the statement of the Mitchell, 245 U.S. 229, 62 £ld 260, 38 S Ct 65).
principal and is, therefore, admissible against said principal
 2. However, not every declaration or act made or done Admissions by a co-conspirator
by a partner or agent is admissible against the other partners
or the principal. For the admission of a co-partner or agent to 1. A conspiracy exists when two or more persons
be admissible, the following requisites must concur: corrie to an agreement concerning the commission of a felony
and decide to commit it (Art. 8, Revised Penal Code). Once
(a) The declaration or act of the partner or
agent must have been made or done within the scope the conspiracy is proven, the act of one is the act of all.
of his authority; The statement, therefore, of one may be admitted against
the other co-conspirators as an exception to the rule on res
(b) The declaration or act of the partner or inter altos acta.
agent must have been made or done during the
existence of the partnership or agency (while the person 2. Assume that two months after a successful bank
making the declaration was still a partner or an agent); robbery, A was arrested as a direct participant in the crime.
and During a television interview, he admitted his participation
in the robbery. He also implicated B and C as his other
(c) The existence of the partnership or agency is
proven by evidence other than the declaration or act companions in planning and executing the robbery. Is his
of the partner or agent ésec. 29, Rule 130, Rules of statement admissible? The statement is admissible as to him
Court). (!Sec. 26, Rule 130, Rules of Court) but not as to B and C (lsec.
28, Rule 130, Rules of Court). (Bar 1991)
3. Any declaration made before the partnership or
agency existed, or those made after, are not admissible To be admissible against B and C, the following must
against the other partners or the principal but remains concur:
admissible against the partner or agent making the (a) The declaration or act be made or done during
declaration. It is also necessary for the application of the the existence of the conspiracy;
exception that the proof of the agency or partnership be from
a source independent of the declaration made by the (b) The declaration or act must relate to the
partner or agent. conspiracy; and
Thus, if after the partnership is dissolved and liquidated, (c) The conspiracy must be shown by evidence
AA, a former partner in ABC Partnership, admits before a other than such declaration or act (!Sec. 30, Rule 130,
police investigator that he and his partners were engaged Rules of Court).
in smuggling highly dutiable imported cigarettes while
the partnership was operating a buy and sell business, the Observe that the declaration of A was made long after
extrajudicial declarations of AA are not admissible against the conspiracy was over. It was then no longer made during
BB and CC, his former partners. His declarations are, the existence of the conspiracy. In fact, at the time of the
nevertheless, admissible against him. declaration, A was no longer a co-conspirator. Even assuming
4. The above rules also apply to the declarations or that the corispiracy can be proven by independent evidence
acts of a joint owner, joint debtor, or other persons jointly and even if his statement was related to the conspiracy, the
interested with the party (Sec. 29, Rule 130, Rules of Court). declaration is not admissible as an exception to the rule of res
inter alios aeta.
Incriminating declarations of co-conspirators made in
the absence of or without the knowledge of the others
after
EVIDENCE CHAPTER V — TESTII\4ONIAL EVIDENCE 261
fThe Bar Lectures Series) E. Admissions, Confessions and the Res Inter Clios Acta Rule (Rule 130)

the conspiracy has come to an end is inadmissible (U.S. v. Nerlinger fC 862 F'2d 967, 27 F'ed Rules Evidence item 271;
29A Am Jur, Evidence, §838). the declarant’s co-accused since the latter is afforded the
The arrest of the declarant is often found to terminate opportunity to cross-examine the former. Sec. 30 of Rule 130
the declarant’s participation in the conspiracy so that the applies only to extrajudicial admissions and not to testimonies
declarant’s post arrest statements do not qualify as admissible at trial where the party adversely affected has the opportunity
co-conspirator statements (29A Am Jur, Evidence, §840). An to cross-examine the declarant (People v. Palijon, 343 SCRA
extrajudicial confession is binding only upon the confessant 486).
and is not admissible against his co-accused (People u. Raquel, When che extrajudicial admission of a conspirator is
265 SCRA248). An against the latter, the confession is confirmed at the trial, it ceases to be hearsay. It becomes,
hearsay (People v. Camat, 256 SCRA 52). instead, a judicial admission, being a testimony of an eye-
8. The rule of res inter altos acta does not apply witness admissible in evidence against those he implicates.
when the co-accused takes the witness stand and repeats Here, the extrajudicial confession was affirmed by him in open
his extrajudicial confession as a witness. The declarations court during the trial. Thus, such confession already partook
referred to under Sec. 30 of Rule 130 are merely extrajudicial ofjudicial admission (Abay, Jr. v. People, 566 SCRA 34).
statements or declarations. When he testifies as a witness, his 6. Also assuming that the statement relating to the
statements become judicial and are admissible not only against conspiracy was made by a conspirator during the existence
him but also against his co-accused. This is also because the of the conspiracy, for the statement to be admitted, the extra-
statements by witnesses in open court are admissible as judicial statements of the co-conspirator must be proven by
testimonies of a person based on his personal perceptions and evidence other than such admission (!3et. 30, Rule 130, Rules
knowledge pursuant to Sec. 36 of Rule 130, Rules of Court. o[Court; U.S. v. Arias -Vi'lanueua C A9 Or] 998 F2d 1491; 29A
4. Jurisprudence holds that the general rule is that Am Our 2d, §847). If the only evidence of the conspiracy is the
the extrajudicial confession or admission of one accused is extrajudicial declaration of the declarant, the statements are
admissible only against the said accused but inadmissible not admissible against the others.
against the other accused. However, if the declarant/admitter In indicting accused-appellant, the prosecution relied
repeats in court his extrajudicial confession during trial and heavily on the affidavits executed by the two other accused.
the other accused is accorded the opportunity to cross-examine The Solicitor General, in advocating the aétmissibility of the
the admitter, such confession or admission is admissible sworn statements of the brothers, cited Sec. 30, Rule 130 of the
against both accused. The erstwhile extrajudicial confession Rules of Court which provides that, “ft]he act or declaration
or admission, when repeated during the trial, is transposed of a conspirator relating to the conspiracy and during its
into judicial admissions (People u. Buntag, 427 !SCRA 180). existence, Inay be given in evidence against the co-conspirator
5. The Supreme Court also held in one case that after the conspiracy is shown by evidence other than such act
a distinction must be made between an extrajudicial and or declaration.”
judicial confession. An extrajudicial confession may be given The Court ruled that the inapplicability of the provision
in evidence against the confessant but not against his co- relied upon was clearly apparent. The confessions were made
accused since the latter are not afforded the opportunity to after the conspiracy had ended and after the consummation
cross-examine him. A judicial confession is admissible against of the crime. Hence, it cannot be said that the execution of
the affidavits were acts or declarations made during the
conspiracy’s existence (People v. Quidato, Jr., 297 !SCRA 1).
262 EVIDENCE
CHAPTER V — TESTIMONIAL EVIDENCE 263
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E. Admissions, Confessions and the Res Irtter Altos Acts Rule (Rule 130)

7. The res inter alios acta rule provides that the rights is binding only upon the confessant and is not admissible against
of a party cannot be prejudiced by an act, declaration, or his co-accused. The reason for the rule is that, on a principle of good
omission of another. Consequently, an extrajudicial confession faith and mutual convenience, a man’s own acts are binding upon
himself and are evidence against him. So are his conduct and It iS not because the statement was made after X held
declarations. Yet, it would not only be rightly inconvenient, his title to the land. For an admission of a predecessor-in-
but also manifestly unjust, that a man should be bound by interest to be admissible against the successor-in-interest, the
the acts of mere unauthorized strangers; and if a party ought following requisites must be present:
not to be bound by the acts of strangers, neither ought their
acts or conduct be used as evidence against (a) There must be an act, declaration or omission
by a predecessor-in-interest;
The rule on admissions made by a conspirator is an (b) The act, declaration, or omission of the pre-
exception to the foregoing rule but in order for such decessor must have occurred while he was holding (not
admission to be admissible against a co-accused, Sec. 30, after) the title to the property; and
Rule 130 of the Rules of Court requires, among others, (c) The act, declaration, or omission must be in
that there must be independent evidence aside from the relation to the property (!Sec. 31, Rule 130, Rules of Court).
extrajudicial confession to prove conspiracy. If apart from the
extrajudicial confession of the confessant, no other evidence of 3. Accordingly, when the former owner of the property
the alleged participation of the accused in the conspiracy was made the declaration after he ceased to be the owner of the
presented by the prosecution, the culpability of the accused property, the rule on admission by privies does not apply.
could not be sufficiently established (People u. Guiffap, 403 What applies is the general rule that the rights of a party
SCRA 167). cannot be prejudiced by an act, declaration, or omission of
another (Gevero v. Intermediate Appellate Court, 189 SCRA
Admission by privies 201).
1. “Privies” are persons who are partakers or have
an interest in any action or thing, or any relation to another Offer of compromise in civil cases
(BlacA’s law Dictionary, 5ffi Ed., p. 1077). Examples: (a) A In civil cases, an offer of compromise is not an admission
lessor and his lessee, a grantor and a grantee; an assignor of any liability, and is not admissible in evidence against the
and an assignee are privies in an estate or a contract; (b) An offeror (Dec. 27, Rule 130, Rules o[Court).
executor or an administrator and the estate of the deceased
are privies in representation; or (c) An heir and his ascendant Offer of compromise in criminal cases (Bar 1989; 2008)
are privies in blood or succession.
1. An offer of compromise by the accused may be
2. Z inherited a house and lot from his father, X. received in evidence as an implied admission of guilt (lsec. 27,
Assume that X, father of Z, while the former was alive, Rule 130, Rules o[ Court). E.xample: Although the marriage
sold the property and, thereafter, openly told his of the accused in a rape case extinguishes the penal action
acquaintances that the same lot where his house stood had (Alonte u. Eavellano, Mr., 287 SCRA 245), an offer of marriage
already been sold to Y. Is this declaration by X necessarily is, generally speaking, an admission of-guilt (People u. Bulos,
admissible against Z? 359 3CRA 621).
2. There is no implied admission of guilt if the offer
of compromise is in relation to: (a) quasi-offenses (criminal
negligence); or (b) cases allowed by law to be compromised
(!Sec. 27, Rule 130, Rules o[Court).
264 EVIDENCE CHAPTER V — TESTIMONIAL EVIDENCE 265
(The Bar Lecturer Series) E. Admissions, Confessions and the Res l rtter Altos Peto Rule (Rule 130)

Plea of guilty later withdrawn the accused who made the plea (Slec. 27, Rule 130, Rules of Court).
In case the accused withdraws his guilty plea, that plea
of guilty later withdrawn is not admissible in evidence against Unaccepted plea of guilty to a lesser offense
 If the plea of guilty to a lesser offense is not accepted, that the U.S. Federal Rules of Evidence (FRE), in Rule 407
the rule does not provide for an adverse consequence of the theleof, prohibits the admission of evidence of subsequent
unaccepted plea. On the contrary, the rule provides that remedial measures when offered to prove the negligence of
an unaccepted plea of guilty to a lesser offense is not the defendant. Evidence of such measures may, however, be
admissible in evidence against the accused who made the admissible to prove some other purpose like the fact that the
plea or offer (Sec. 27, Rule 130, Rules o[Court). defendant had ownership of the hotel or control over the same
and all the fixtures therein.
Offer to pay or the payment of medical, hospital or other
expenses Accordingly, the rule is based on the policy of encouraging
potential defendants to remedy hazardous conditions with-
An offer to pay or the payment of medical, hospital or ou.t fear that their actions will be used as evidence against
other expenses occasioned by an injury is not admissible in them (Pan c. Yosemite Parh [CA9 Cal] 928 F2d, 880). To adopt
evidence as proof of civil or criminal liability for the injury the contrary rule would discourage owners from improving
(lsec. 27, Rule 130, Rules of Court). In other jurisdictions, this the condition causing the injury because of their fear of
act of rendering aid is sometimes called the “good samaritan the evidential use of such improvement to their
rule.” The phrase is used to refer to the rendering of voluntary disadvantage (Werner o. Upjohn Co. [CA4 MD} 628 F2.d, 848;
aid to a suffering person. 29 Am Jur 2d
§463-464).
Subsequent remedial measures The rule (FRE 4079 provides that:
Assume that PP, while negotiating the stairs from the
lobby of a hotel to his third floor room, slipped and fell from “When after an event, measures are taken which,
the stairs and sustained head injuries. The hotel owner, upon if taken previously, would have made the event less
likely to occur, evidence of the subsequent measures is
learning of the accident, immediately ordered the mainte- not admissible to prove negligence or culpable conduct
nance department of the hotel to install a non-slippery mate- in connection with the event. This rule does not
rial on every step of the stairway. In an action for damages require the exclusion of evidence of subsequent measures
against the hotel owner by PP, may the latter introduce evi- when offered for another purpose, such as proving
dence of the subsequent remedial measures taken to prove an ownership, control, or feasibility of precautionary measures,
admission by the defendant of the hazardous condition of the if contro- verted, or impeachment.”
stairway at the time of the incident?
No direct legal provision in this jurisdiction addresses Evidence of similar conduct (Bar 2011)
the question as it is. It is, however, interesting to observe 1. The general rule is that the law will not consider
evidence that a person has done a certain act at a particular
time as probative of a contention that he has done a similar act
at another tlme. This is the rule of res inter altos neon found in
Sec. 34, Rule 130 of the Rules of Court, as amended. A similar
conduct which does not even sufficiently establish a plan or
scheme is not admissible (Enriquez v. People, 331 ›3CRA 538;
Espinosa o. !Sandiganbayan, 331 ISCRA 538).
2. Assume that Mr. X is accused of physical injuries.
Is evidence that, in the past, he committed several acts
266 EVIDENCE CHAPTER V —— TESTIMONIAL EVIDENCE 267
(The Bar Lecturer Series) E. Admissions, Confessions and the Res Inter Alios Acta Rule (Rule 130)

constituting physical injuries admissible to prove his conformity with his past acts? Answer: The evidence is not
propensity for committing such acts or that he acted in admissible for the purpose for which it is offered. Sec. 34 of Rule
130 clearly provides:
various persons in the past and had not paid such debts,
despite demand, is not admissible to show that the debtor did
"SEC. 34. Similar acts as eviz/ence. — Evidence
that one did or did not do a certain thing at one time is not pay his obligation to the plaintiff in the present case. In
not admissible to prove that he did or did not do the a similar vein, evidence that Jose was cleared of a
same or a similar thing at another time; but it may be previous charge of robbery or that he was never involved in any
received to prove a speclfic intent or knowledge, robbery in the past is not admissible to prove that he could
Identlty, plan, system, scheme, habit, custom or usage, not have committed the robbery for which he is presently
and the like.” charged. The rule enunciated in Sec. 34 of Rule 130 is also
founded on plain common sense. To argue that a person did or
3. The above provision constitutes the second branch of did not commit an act because he did or did not commit a
the res inter alios acta rule as previously mentioned. similar thing in the past is certainly non sequitur.
The rule prohibits the admission of the so-called
‘propensity evidence” which is evidence that tends to show When evidence of similar acts or previous conduct is
that what a person has done at one time is probative of admissible
the contention that he has done a similar act at another 1. Evidence of similar acts is admissible for any of the
time. following purposes:
4. Evidence of similar acts or occurrences compels the (a) specific intent;
defendant to meet allegations that are not mentioned in the
complaint, confuses him in his defense, raises a variety of (b) knowledge;
relevant issues, and diverts the attention of the court from (c) identity;
the issues immetliately before it. Hence, the evidentiary rule
guards the practical inconvenience of trying collateral issues (d) plan;
and protracting the trial and prevents surprise or other (e) system;
mischief prejudicial to litigants (Cruz v. Court o[Appeals, 293
(D scheme;
SCRA 239).
(g) habit;
Under Sec. 34 of Rule 130, although the accused has
previously been charged with and convicted of similar (h) custom;
offenses, the trial court commits an error if it considers such (i) usage; and
circumstance for the purpose of showing that he was
likely to commit the crimes charged in the indictment. ) the like (Sec. 34, Rule 130, Rules of Court).
Evidence of collateral offences must not be received as 2. Evidence of similar acts may frequently become
substantive evidence of the offenses on trial (People u. relevant, especially in actions based on fraud and deceit,
Slantos, 536 SCRA 489). because it sheds light on the state of mind or knowledge of a
5. Under the same rule, in an action to collect a person, his motive or intent, or they may uncover a scheme,
sum of money, evidence that the debtor had contracted debts design or plan (Cruz u. Court of Appeals, 293 SCRA 239).
with 3. The admissibility of similar acts or previous conduct
would depend on the purpñses for which such actg or conduct
are off‘ered.
268 EVIDENCE CHAPTER V — TESTIMONIAL EVIDENCE 269
(The Bar Lectures Series) F. Judicial Affidavit Rule (A.M. 12-8-8-SC)

for example, evidence of the other similar crimes, acts or his prior similar acts show the "signature" or
wrongs previously committed by the accused are admissible "handiwork" of the accused, or because of
to show that the offense for which he in currently charged and identical modus operandi. In other words, the similar
acts may be offered to show that they share distinctive presenting the testimonies of‘ witnesses, thus speeding up the
features as the offense for which the accused is currently hearing and adjudication of cases.”
charged with, but the evidence cannot be offered to show that
the accused is likely to be guilty of the charge for having Thus, in order “to replicate nationwide the success of
committed the same or similar acts before his present the Quezon City experience in the use of judicial affidavits,”
indictment. The rule is: The past acts of the accused are the Supreme Court en hanc approved the recommendation
inadmissible to prove that he acted in conformity with such of the Committee on Res ision of the Rules of Court, headed
previous acts. by Senior Associate Justice Antonio T. Carpio and the Sub-
Committee on the Revision of the Rules on Civil Procedure,
headed by Associate Justice Roberto A. Abad, to adopt the
F. Judicial AfTidnvit Rule (A.M. IN-8-8-SC)
Judicial Affidavit Rule.
Rationale for the Judicial Affidavit Rule
Effectivity of the Judicial Affidavit Rule
1. The most basic reason for the adoption of the Rule
is to decongest the courts of cases and to reduce delays in the By the terms of the Rule, the Judicial Affidavit Rule
disposition of cases. took effect on January 1, 2013 following its publication in two
newspapers Gf general circulation not later than September
Due to these delays, the Supreme Court declares in the 15, 2012 (Dec. 12, Judicial A f'fidavit Rule).
"whereas clause" of the Rule, that “few foreign businessmen
make long-term investments in the Philippines because its Significance of the use of a judicial affidavit; exhibits
courts are unable to provide ample and speedy protection
to their investments, keeping its people poor.” 1. The judicial affidavit shall take the place of the
direct testimonies of witnesses (!Sec. 2[a]t11, Judicial A[ davit
The ‘whereas clause’ of the Judicial Affidavit Rule, like- Rule). The rule, therefore, modifies the existing practice
wise, affirms that ‘case congestion and delays plague most in the conduct of’ a trial and reception of evidence by doing
courts in cities, given the huge volume of cases filed each away with the usual oral examination of a witness in a direct
year and the flow cumbersome adversarial system that the examination.
judiciary has in place." The Rule also recognizes that ‘about
2. To be attached to the judicial affida•zit are the
40% of criminal cases are dismissed annually owing to the
documentary or object evidence of the parties which shall
fact that complainants simply give up coming to court
be marked as Exhibits A, B, C, and so on in the ease of
after repeated postponements."
the complainant or plaintiff. In the case of the respondent or
2. The same ‘whereas clause’ reports that after the the defendant, the evidence shall be marked as Exhibits 1, 2,
evaluation of a pilot project in Quezon City requiring the 3 and so on (lsec. 2[aJ[2], judicial A[fidauit Rule).
compulsory use ofjudicial affidavits, “such piloting has 3. The original document or object evidence need not
quickly resulted in reducing by about two-thirds the time be attached to the judicial affidavit. Tlre party or witness may
used for keep the same in his possession after the exhibit has been
identified, marked as an exhibit and authenticated. He must,
however, warrant in his judicial affidavit that the copy or
reproduction attached is a faithful copy or reproduction of the
original (!Sec. 2[b], Judicial A f’fidavi I Rule).
270 EVIDENCE CHAPTER V — TESTIMONIAL EVIDENCE 271
(The Bar Lecturer Seriea) F. Judicial Affidavit Rule tA.M. 12-8-8-SC)

Aside from the above requirement, the party or witness is during the preliminary conference. In case of failure to bring the
required to bring the original document or object evidence for originals for comparison, the attached copy, reproduction
comparison with the attached copy, reproduction or pictures,
 of evidence. Remember that the Judicial Affidavit Rule, 2. Note, however, that the Judicial Affidavit Rule
in Sec. 1 thereof, requires its application to all applies to criminal cases where “the maximum of the
actions, proceedings and incidents requiring the r imposable
ception of evidence.
or pictures shall not be admitted (!Sec. f •fudiciof Affidavit penalty does not exceed six years” ésec. 9f1], Judicial A[fidavit
Rule). Rule). In other cases, the use of judicial affidavits will now
depend on the accused. The Rule will apply, irrespective of
Scope of the Judicial Affidavit Rule the penalty involved, she.re the accused agrees to the use of
1. The Rule shall apply to all(a) actions, judicial affidavits (!Sec. 9f2/, Judicial Affidavit Rule).
(b)proceedings, or (c) incidents requiring the reception of
evidence (lsec. 1, Judicial Affidavit Rule). With respect to the civil aspect of the criminal action,
the Judicial Affidavit Rule shall apply, irrespective of the
2. The Rule, in effect, applies to all courts, other than penalty involved (Sec. 9[3], Judicial A[fldavit Rule). Hence,
the Supreme Court. It also applies to certain non-judicial with respect to the civil aspect, the penalty for the offense is
bodies. The Rule specifies the following courts and bodies: not to be considered.
(a) Metropolitan Trial Courts, Municipal Trial It is understood that the civil aspect of the criminal
Courts in Cities, Municipal Trial Courts, Municipal action refers to the action to recover civil liability “arising
Circuit Trial Courts and the Shari’a Circuit Courts but from the offense charged” and which is deemed instituted
shall not, however, apply to small claims cases; with the criminal action as provided in Sec. 1 of Rule 111 of
(b) Regional Trial Courts and lShari’a District the Rules of Court.
Cowts;
Contents of the judicial affidavit
(c) lsandiganbayan, Court of Tax Appeals, Court of
Appeals and Shari’a Appellate Courts; 1. A judicial affidavit shall be prepared in the language
known to the witness. If the affidavit is not in English or
(d) Investigating officers and bodies authorized Filipino, it shall be accompanied by a translation in either
by the Supreme Court to receive evidence, including the language (Sec. 3, Judicial A{fldauit Rule).
Integrated Bar of the Philippines; and
2. The judicial affidavit shall contain the name, age,
(e) Special courts and quasi-judicial bodies, whose residence or business address, and occupation of the witness
rules of procedure are subject to disapproval of the (lsec. SfoJ, Judicial Affidavit Rule).
Supreme Court (Sec. 1, Judicial Affidavit Rule).
There must also be a statement in the affidavit that
Applicability of the Judicial Affidavit Rule to criminal cases the witness is answering the questions asked of him, fully
conscious that he does so under oath, and that he may face
1. The Judicial Affidavit Rule shall apply to criminal criminal liability for false testimony or pe ury (lsec. 3f 7,
cases (lsec. 9, Judicial Affidavit Rule). Judicial A[ dauit Rule).
The reason for the above rule is not difficult to appre- 3. The judicial affidavit shall also contain the name
ciate. Criminal cases are actions which require the reception and address of the lawyer. This is because the examination
272 EVIDENCE
CHAPTER V — TESTIMONIAL EVIDENCE
(The Bar Lectures Series) 273
j F. Judicial Affidavit Rule (A M. 12-8-8-SC)

of the witness shall be conducted and supervised by a lawyer Affidavit Rule).

(Sec. 3{bj, dudicia! A[ftdauit Rule).
5. The judicial affidavit shall contain the
4. The judicial affidavit shall also indicate the place questions asked of‘ the witness and his answers to
where the examination is being held (Sec. 3(b], Judicial the questions, all consecutively numbered. The
questions and answers shall: an officer who is authorized to administer the same (lsec. 3(f],
(a) show the circumstances under which the Ju,dicial A[fidauit Rule).
witness acquired the facts upon which he testifies;
Effect of non-compliance with the content requirements of
(b) elicit from him those facts which are relevant Sec. 3 of the Judicial Affidavit Rule
to the issues that the case presents; and
A judicial affidavit which does not conform to the content
(c) identify the attached documentary and object requirements of Sec. 3 of the Judicial Affidavit Rule shall
evidence and establish their authenticity (Sec. 3[d1, not be admitted by the court in evidence (lsec. 2Of 7,
Judicial Affidavit Rule). Judicial A[[idavit Rule).
It is evident that the questions to be asked will The relevant provision, however, does not absolutely bar
determine whether or not the witness has personal knowledge of the submission of a compliant replacement judicial affidavit
the facts upon which he testifies, and thus, prevent the as long as the replacement shall be submitted before the
introduction into the record of mere hearsay testimonies. hear- ing or trial and provided further that the following
The matters testified to should also be on matters relevant requisites are met:
to the issues of the case. The affidavit also requires that
the witness not merely identify the exhibits but also 1. The submission shall be allowed only once,
authenticate the same for evidentiary purposes. 2. The delay is for a valid reason;
Under the Rules of Court, proof of the due execution and 3. The delay would not unduly prejudice the
authenticity of a private document shall be made in case the opposing party; and
document is offered as authentic. If not offered as authentic, 4. The public or private counsel responsible for the
the private document need only be identified as that which it preparation and submission of the affidavit pays a fine
is claimed to be (Sec. 20, Rule 132, Rules of Court). Nothing of not less than Pl,000.00 nor more than P5,000.00,
in the provisions of the Judicial Affidavit Rule dispenses with at the discretion of the court (lsec. 10 1, Judicial
the application of this principle. Affidavit Rule).
6. The judicial affidavit shall be signed by the witness
Sworn attestation of the lawyer
over his printed name (Spec. 3[e], Judicial Affidavit Rule).
7. The judicial affidavit shall contain aJuraf, with the The judicial affidavit, aside from the content require-
signature of the notary public who administers the oath or ments of Sec. 3 of the Judicial affidavit Rule, shall also contain
a sworn attestation at the end, executed by the lawyer
who conducted and supervised the examination, to the effect
that there was a faithful recording of the questions and
answers in the judicial affidavit and that there was no
coaching of the witness on what to answer. Specifically, the
sworn attestation shall attest to the following:
(a) That he faithfully recorded or caused to be
recorded the questions he asked and the corresponding
answers that the witness gave; and
274 EVIDENCE CHAPTER V — TESTIMONIAL EVIDENCE 275
(The Bar Lectures Seriea) F. Judicial Affidavit ftule (A.M. 12-8-8-SC)

(b) That neither he nor any other person present or

assisting him coached the witness regarding the latter’s Effect of a false attestation by the lawyer
answers (Sec. 4(a], judicial Affidai it Rule).
 A false attestation shall subject the lawyer to discip- scheduled hearing, with respect to motions and incidents (lsec.
linary action, including disbarment (Sec. 4[bJ Judicial 2(a1, judicial A ffidauit Rule).
Affidavit Rule).
2. Under traditional rules, service of papers shall be
Effect of non-compliance with the attestation requirement made either personally or by mail (lsec. 5, Rule 13, Rules o[
j Court), and if service cannot be made through such modes,
A judicial affidavit which does not conform to the attes- service shall be done basically through substituted service by
tation requirement of Sec. 4 of the Judicial Affidavit Rule delivering a copy of the paper to be served with the clerk of
shall not be admitted by the court in evidence (Sec. 10LcJ, court (lsec. 8, Rule 13, Rules of Court).
Judicial Affidavit Rule). The court may, however, allow the
submission of a compliant replacement judicial affidavit as Howcver, under the Judicial Affidavit Rule, the filing of
long as the replacement shall be submitted before the hearing the judicial affidavit and its attached exhibits shall be done,
or trial and provided further that the following requisites are not only personally, but also by licensed courier service (lsec.
met: 2fa], Judicial Affidavit Rule). Service by mail is not mentioned
in the Rule.
1. The submission shall be allowed only once;
3. In criminal cases, the prosecution shall submit the
2. The delay is for a valid reason;
judicial affidavits o*its witnesses not later than9ve days before
3. The delay would not unduly prejudice the the pre-trial. Copies of the judicial affidavits shall be served
opposing party; and upon the accused. To be attached to the judicial affidavits are
such documentary or object evidence as the prosecution may
4. The public or private counsel responsible for have, marking them as Exhibits A, B, and C and so on (Sec.
the preparation and submission of the affidavit pays a 9[bJ, Judicial Affidavit Rule).
fine of not less than P1,000.00 nor more than P5,000.00,
at the discretion of the court (Sec. 10 cJ, judicial A[[idauit In criminal cases, no further judicial affidavit, docu-
Rule). mentary or object evidence shall be admitted at the trial (Dec.
9(b J, Judicial Affidavit Rule). This means that even before
Filing and service of the judicial affidavit and exhibits; the trial, the prosecution has to lay down on the table, all its
modes of service evidence — testimonial, documentary and object.
1. The judicial affidavits of the witnesses and the 4. Since the accused is already aware of the evidence of
documentary or object evidence shall be filed by the parties the prosecution, he has the options to submit or not to submit
with the court and served on the adverse party, not later than his judicial affidavits. If the accused desires to be heard on his
Joe days before the pre-trial or preliminary conference or the defense after receiving the judicial affidavits of the prosecu-
tion, the accused may submit his judicial affidavit as well as
ihose of his witnesses, including his documentary and object
evidences marking them as Exhibits 1, 2, 3, and so on. The
submission ,shall be done within ten days from receipt of the
affidavits of the prosecution with service upon the public and
private prosecutor (Sec. 9[c], Judicial A[fidavit Rule).
276 EVIDENCE
(The Bar Lectures Series) CI-tAPTER V — 'TESTIMONIAL EVIDENCE 277
F. Judicial Affidavit Rule (A.M. 12-8-8-SC)

Effects of failure to submit the judicial affidavits and exhibits affidavits and exhibits on time shall be deemed to have waiued their
on time submission (Sec. 10LaJ, Judicial Afpidaoit Rule).
1. A party who fails to submit the required judicial 2. The waiver would mean that a party who failed to submit
the judicial affidavit ofa particular witness would have no
Offer of testimony in the judicial affidavit
direct testimony for that witness and the documentary or
object evidence integrated with such affidavit could not be Instead of oftéring the oral testimony of the witness, the
identified, marked as an exhibit, and authenticated. In effect, party using the judicial affidavit of his witness in place of
the exhibit could not be offered in evidence. a direct testimony, shall present such affidavit and state
the purpose of the testimony contained therein at the start of
If the waiver extends to the required affidavits of all the
the presentation of the witness (Sec. 6, Judicial Affidavit
witnesses of a party because all the judicial affidavits were
Rule).
not filed and served, then said party is deemed to have not
presented his evidence-in-chief for his case.
Objections to testimony in the judicial affidavit; ruling of the
court
Remedy in case of late submission
1. The presentation of the judicial affidavit and the
1. The failure ofa party to subozita judicial affidavit statement of the purpose of the testimony contained therein
on time does not mean a permanent waiver to submit the will give the adverse party the opportunity to object to the
same. He is given another chance to do to. The remedy is to testimony.
move that the late submission of the judicial affidavit and its
exhibits be allowed. The adverse party may, on the ground of inadmissibility,
move to (a) disqualify the witness, (b) strike out his affidavit,
2. The court may allow the late submission of the or (c) strike out any of the answers found in the judicial
judicial affidavit and exhibits provided the following requisites affidavit (Sec. 6, Judicial A[[idauit Rule).
concur:
2. The court is required to promptly rule on the motion
(a) A late submission shall be allowed onfy once, of the adverse party. If it grants the motion, any excluded
(b) The delay is for a valid reason; answer shall be marked by placing the same in brackets under
the initials of an authorized court personnel. 'Phe other party
(c) The late submission will not unduly prejudice may, however, make a tender of excluded evidence under Sec.
the opposing party; and 40 of Rule 132 of the Rules of Court (lsec. 6, Judicial A[fidavit
(d) The defaulting party pays a fine of not less Rule).
than Pl,000.00 nor more than P5,000.00, at the 3. The provisions of Sec. 6 of the Judicial Affidavit
discretion of the court LSec. 10faJ, Judicial Affidavit Rule require the court to promptly rule on the motion of the
Rule). adverse party.
The term “promptly,” it is submitted, should be taken
in its literal context and akin to the word, “immediately,” as
used in Sec. 38 of Rule 132 of the Rules of Court. Under the
said provision, the ruling of the court in case of an objection,
must be given immediately. The mandate on the giving of an
immediate ruling is, however, qualified by the phrase, “unless
the court desires to take a reasonable time to inform itself
on the question presented.” It is significant to note that such
qualification is not found in the Judicial Affidavit Rule.
278 EVIDENCE
(The Bar Lectures Series) CHAPTER V — TESTIMONIAL EVIDENCE 279
F. Judicial Affidavit Rule (A.M. 12-8-8-SCO

Appearance of the witness at the scheduled hearing 1. The submission of the judicial
affidavit of the witness and the attached
exhibits does not exempt the witness from appearing at the
scheduled hearing. The rule still requires his appearance A counsel who fails to appear without a valid cause
(Sec. l dfbJ! Judicial Affidavit Rule). despite notices shall be deemed to have waived his client’s
right to confront by cross-examination, the witnesses present
2. The appearance of the witness is necessary because (lsec. 10[b], Judicial Affidavit Rule).
the adverse party has the right to cross-examine him. The
cross-examination shall be on his judicial affidavit and on
the attached exhibits. After the cross-examination, the party When there is a need for the issuance of a subpoena
presenting the witness may also examine him as on re-direct 1. A requesting party may avail himself of the issuance
(lsec. 7, judicial Affidavit Rule). of a subpoena ad testi ficanduni or duces tecu i under Rule 21
A postponement of the cross-examination would be of the Rules of Court if a witness unjustifiably declines to (a)
contrary to the spirit of the rule because the judicial affidavits execute a judicial affidavit, or (b) refuses without just cause
have been filed and served even before the scheduled hearing. to make the relevant books, documents, or other things under
his control available for copying, authentication, and eventual
3. The court, under the Judicial Affidavit Rule, is not
production in court ésec. 5, judicial A[ dauit Rule).
a mere passive entity that merely receives evidence from the
parties. The Rule integrates an element of the inqiiisitorial The witness referred to is a government employee or
system which allows the court to have an active role in the official, or a requested witness, who is neither the witness
proceedings. The Rule clearly mandates the court to take of the adverse party nor a hostile witness (Spec. 5, Judicial
active part in examining the witness to (a) determine the A[Jidauit Rule).
(i) credibility of the witness and (ii) truth of his testimony; 2. The rules governing the issuance of a subpoena to
and (b) elicit the answers that it needs in resolving the case the witness shall be the same as when taking his deposition
(Sec. 7, Judicial Affidavit Rule). The questions of the court except that the taking of a judicial affidavit shall be understood
shall not, therefore, be confined to mere clarificatory to be ex parte (Spec. 5, Judicial A[fldavit Rule).
questions.

Effect of failure of a witness to appear at the scheduled Oral offer and objections to exhibits
hearing; failure of counsel to appear 1. A party shall immediately make an oral offer of
evidence of his documentary or object exhibits, piece by piece,
1. The court shall not consider the affidavit of any in their chronological order, stating the purpose or purposes
witness who does not appear in the scheduled hearing of the
for which he offers the particular exhibit. The offer shall be
case as required (lsec. 10[b], Judicial Affidavit Rule). If the
affidavit is not considered, it is as if no judicial affidavit has made upon the termination of the testimony of his last witness
been executed by the absent witness. Such witness, hence, (lsec. 8LaJ, judicial Affidavit Rule).
shall be deemed as not having given a direct testimony in the It is not necessary to describe each exhibit in the offer of
evidence. It is sufficient that such exhibits are simply cited
2. It is the duty of counsel to appear at the scheduled by their markings during the offers, the objections, and the
rulings, dispensing with the description of each exhibit since
the documentary or object exhibits form part of the judicial
hearing because of the adverse effect of his failure to do so on affidavits that describe and authenticate them (Sec. 8f I,
a basic right of his client. Judicial A{fidavit Rule).
280 EVIDENCE
(The Bar lectures Serie8)

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 Chapter VI
ruling respecting that exhibit ésec. 8 b), Judicial Affidavit
Rule).
HEARSAY EVIDENCE, OPINION EVIDENCE
2. Under Sec. 35 of Rule 132 of the Rules of Court,
documentary and object evidence shall be offered after the AND CHARACTER EVIDENCE
presentation of a party’s testimonial evidence. Such offer
shall, as a rule, be done orally. The Judicial Affidavit Rule Preliminaries
likewise echoes the same principle, requiring that the offer of Hearsay evidence (Bar 2004; 2007; 2011)
a party’s documentary or object exhibits shall be made upon
the termination of the testimony of his last witness. Be it 'l’he Philippine version of the hearsay rule is embodied in
noted, however, that while Sec. 35 of Rule 132 of the
Rules of Court allows the offer to be made in writing, Sec. 8 Sec. 36 of Rule 130. It provides:
of the Judicial Affidavit Rule requires that the offer be
made only “SEC. 36. Testimony generally confined to person-
orally. al knowledge; hearsay excluded. — A witness can tes-
tify only to those facts which he knows of his personal
knowledge; that is, which are derived from his own per-
— OOO — ception, except as otherwise provided in these rules.”

Hearsay may be oral or written

Hearsay is not limited to oral testimony or
statements. The rule that excludes hearsay evidence
applies to both written and oral statemcnt (D.M. Consunji,
Inc. u. Court o[ Appeals, 357 !SCRA 249, cited in Malayan
Insurance Co. u. Alberto, 664 ISCRA 791, 799, February 1,
2012).

Basis for excluding hearsay evidence

1. The rule excluding hearsay testimony rests mainly
on the ground that there is no opportunity to cross-examine
the person to whom statements or writings are attributed
(Marina Port lseruices, Inc. u. American Home Assurance
Corporation, G.fi. No. 201822, August 12, 2015). Moreover,
the court is without the opportunity to test the credibility of
hearsay statements by observing the demeanor of the person
who made them (People u. Padit, G.fi. No. 202978, February 1,
2016).
281
(The Bar Lecturer Serie8)
282 EVIDENCE
 Thus, for instance, the person who makes a private
survey report, must be presented in court to testify on the CHAPTEn vi — HEwsAv EviDENCE, OPINION EVIDENCE 283
AND CHARACTER EVIDENCE
same. Being a private document, it cannot be accorded A. Preliminaries
probative value if the party against whom it is presented is
deprived of the right to cross-examine such person ments on the property, and to show that such improvements
(Marina Port Services, Inc. v. American Home Assurance were made pursuant to a verbal contract that the leased prop-
erty will eventually be sold to her.
Corporation, G.fi. DVO. 201822
August 12, 2015). The importance of purpose was also recognized by the
2. An affidavit is merely hearsay evidence where its Supreme Court in a much earlier case. In U.IS. v.
affiant/maker did not take the witness stand (Rosit v. DOVOO Enriquez, 1 Phil. 241, testimony was admitted as to the
Doctors Hospital, G.fi. No. 210445, December 7, 2015). While statements made by another for the purpose of showing his
affidavits that have been notarized are public documents if state of mind, his physical and mental condition, knowledge,
they are acknowledged before a notary public, these are still belief, intention, and other emotions. In the same case,
considered hearsay unless the affiants themselves are placed documents and letters were also admitted as circumstantial
in the witness stand to testify thereon. The reason for this evidence of a person’s physical and mental state.
rule is that, generally, they are not prepared by the affiants, In a very much later case, the Supreme Court acknowl-
but by another one who uses his own language in writing edged that the ban on hearsay does not include statements
the statements, parts of which may be either omitted or yrhich are relevant independently of whether they are true
misunderstood by the one writing them. Moreover, the or not, like statements of a person to show, among others, his
adverse party is deprived of cross-examining the affiants state of mind, mental condition, knowledge, belief, intention,
(Republic v. Marcos-Manotoc, 665 SCRA 367, 388, Eebrua 8, ill-will and other emotions (Estrada v. Desierto, 356 ISCRA
2012; See also Dantis v. Maghinang, G.fi. DVO. 191696, April 108).
10, 2013; Atienza v. People, G.fi. 7Vo. 188694, February 12,
2014). 3. Sec. 36, as written, incompletely describes the
essence of the hearsay rule because of its failure to embody
When evidence is hearsay the element of “purpose.” It appears more to be a definition of
1. Although hearsay evidence presupposes lack of the “first-hand knowledge rule” which, although similar to the
personal knowledge of the truth of the fact asserted by a hearsay rule, is traditionally distinct from it. Writing about
witness, the purpose for which the evidence is offered is a the rule requiring firsthand knowledge, the eminent authority
vital element of hearsay evidence. It is the purpose for which on evidence, Dean McCormick, writes:
the evidence is offered which would determine whether the
same “There is a rule, more ancient than the hearsay
rule, and having some k Airship in policy, which is to be
is hearsay or not. distinguished from it. This is the rule that a witness is
2. The element of “purpose” had long been recognized qualified to testify to a fact susceptible of observation,
in this jurisdiction, as was done in the early case of only if it appears that he had a reasonable opportunity to
Robles observe the fact” (McCormick, Evidence, 3rd Ed., p. 731).
v. Lizarraga Hermanos (42 Phil. 584,- also cited by Moron,
Comments on the Rules of Court, Vol. 5, p. 289). 4. A much clearer definition of “hearsay” is found in
the Federal Rules of Evidence (Rule 801lc1) where ‘hearsay’ is
Here, the Supreme Court admitted unsigned statement defined as:
of accounts not to prove the truth of its entries but for the
pur- pose of showing the possessor’s good faith in making “... a statement, other than the one made by the
improve- declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.”
284 EVIDENCE This definition considers “hearsay" as a statement. But what
(The Bar Lectures Series)
is a ’statement’? In Rule 801(a), Federal Rules of Evidence, a
statement is either an oral oz smitten assertion or a nonverbal CHAPTER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 285
conduct intended by the person as an assertion. ’Po constitute AND CHARACTER EVIDENCE
hearsay, therefore, there must be: A. Preliminaries

(1) an out-of-court statement, oral, written or is. It may be oral. It may be written. It may even be a
nonverbal conduct, made by one other than the one made conduct, as long as that conduct is intended by the actor
by the declarant or witness testifying at the trial; and as an assertion. What matters is that the statement was
not made by the declarant in the hearing or trial.
(2) the out-of-court statement must be offered to
prove the truth of the matter asserted in the out-of-court b) Second, that the statement made out of court is
statement (29 Am Jur 2d, 2nd Ed., pp. 704- POS; FRE, repeated and offered by the witness in court to prone the
8dJfcJ. truth of the matters asserted by the statement.
Authorities have defined hearsay evidence substantially 2. A more recent pronouncement which clearly
in the same manner. Some definitions call hearsay a “state- embodies the element of "purpose" holds: “To be hearsay,
ment or assertive conduct which was made or occurred out of the testimony of a witness, regarding a statement made by
court to prove the truth of the facts asserted” or a “testimony another person, is given for the purpose of establishing the
in court, or written evidence, of a statement made out of court, truth of the fact asserted in the statement” (Espineli u. People,
such evidence being offered as an assertion to show the truth G.R. No. 179535, June 9, 2014).
of the matters asserted therein, and which thus, rests for its
value upon the credibility of the out-of-court agserter” (Dean Anecdotal illustration:
Z.add and Dean McCormick respectively, cited in Kaplan, Evi- Let us have Jose, a witness testifying in court as to what
dence, 6th Ed., p. 87). his friend, Juan, wrote him. In a letter dated August 5, his
A shorter definition but complete definition of the term friend wrote Jose that it was a street bum who shot the cop,
is found in People v. DeMarco (195 N.E. 2d, 213, 216, 44 Ill. not Jose’s uncle. Jose’s friend, Juan, the eyewitness, is not in
App. 2d 459), where hearsay is defined ‘as an out of court court. It is Jose who is in court but we hear Jose presenting a
statement offered for the truth of the matter asserted" écifed in statement that is not his own. It is a statement made outside
Words and Phrases, Permanent Ed., 1970, 269; See for further the court by his friend, Juan. His friend’s statement is an out-
readings, Dantis v. Maghinang, G.R. No. 191696, April 10, of-court statement because when it was made, the friend who
2013). made it was in Cebu and he is not the witness in court. We
clearly have an out-of-court statement from Jose’s friend
Specific elements of hearsay evidence Whom we shall call an outside declarant. We have the first
part of our formula: An out-of-court statement from an out-of-
1. There is a common thread running through all the
court declarant.
cited definitions. There is agreement that the following are Is Jose’s testimony, tb.erefore, hearsay? AnSwer: We still
the specific elements of hearsay evidence: do not know. We do not know because we do not know the
(a) First, there must be an out-o -court statement. purpose of the testimony. Is it offered to prove that it was
It does not really matter what the form of the statement indeed a bum who shot the cop? Or is it offered to prove
something else? We are not sure. If we are not sure, then we
do not know if it is hearsay. How can we be sure then? To be
sure, we must know what it is the proponent wants to prove.
After knowing what he wants to prove, then we ask whether
286 EVIDENCE in the case. This is basic, a matter of
(The Bar Lectures Series)
logic, and no rules of evidence need tell
us this.
or not the matter he wants to prove is relevant to an issue
 Suppose the judge asks: “Counsel, what is the purpose of CHAPTER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 287
Jose’s testimony that his friend wrote him that’it was a street AND CHARACTER EVIDENCE
bum who ahot the cop and not Jose’s uncle?”’ Comes the quick A. Preliminaries
reply: “To prove, Your Honor, that Joge’g friend was alive on Should the judge sustain a hearsay objection? This time,
August 5 and not to prove that it was a bum who shot the cop. the judge should sustain the objection. The formula is now
Had he been dead on that day, he would not have been able to complete. Jose’s testimony is hearsay. It is hearsay because
write Jose.” the out-of-court statement of Jose’s friend that “it was a street
Is the testimony of Jose hearsay? Now let us go back to bum who shot the cop and not Jose’s uncle” is offered to prove
our formula. Do we have an out-of-court statement? Yes, we the very matter asserted in the statement: that “it was a street
do. The friend’s statement is out-of-court and you know the bum who shot the cop... etc... etc... etc...” The first response is
reason for this. We have our first element, an out-of-court different. It is not hearsay because it was not offered to prove
statement. To be hearsay, we must have the second. Do the truth of the assertion in the letter of Jose’s friend. It was
we have it this time? Let us repeat what counsel says his offered to prove a different purpose.
purpose is. He says, “To prove, Your Honor, that Jose’s friend
was alive on August 5 ... etc.” There you are. We do not have 3. Problems are rarely encountered as to the first
the second part of our formula. We do not have the second component. It is easy to know whether or not a statement
part because we are told the statement is offered to prove offered is out of court. When a witness testifies: “A policeman
that “Jose’s friend was alive on August S.” It is not to told me that a car was stolen in Pedro’s driveway,” we
prove that it was “a street bum who shot the cop.” The immediately can tell that the policeman's statement was
declaration of Juan is not, therefore, to prove the truth of the made out of court. It is the witness who is in court, not the
matter asserted in the statement of Juan. We have the first policeman.
component but we don’t have the second. What, then, would Implied from an out-of-court statement is the fact
the judge rule? Clearly, it would be, “Objection, overruled. Not that the witness has no personal knowledge of the matter
hearsay!” testified to. It is someone outside the court and who, at the
Will Jose’s testimony then be admissible? It would be same time, is not in the stand who has personal knowledge of
admissible as long as the fact that Jose’s friend was alive on the facts. That someone outside the court cannot be
August 5 is relevant to an issue of the case. If the evidence is questioned. His perception cannot be tested. His capacity to
not allowed, it is not because of the hearsay rule but remember what
because it did not meet the standards of relevance. he perceived cannot be accurately determined. Neither can his
capacity to communicate his remembered perceptions. Why?
Let us repeat the question of the judge: “Counsel, what Because he is not in court and, if he is not in court, he cannot
is the purpose of Jose’s testimony that his friend wrote him be cross-examined. If he cannot be cross-examined, who, in
that ’it was a street bum who shot the cop and not Jose’s his right rr.ind, is willing to take his words at their face value?
uncle?’” This time counsel emphatically declares: “To prove, Who can you find willing to believe his statements repeated
Your Honor, that it was not Jose’s uncle who shot the cop but by the witness inside the courtroom? Remember Sec. 36, Rule
a bum!” 130 of the Rules of Gourt? Let us have a piece of it once more:
“A witness can testify only to those [acts which he hnows o[his
personal hnowled. e..." And what do the rules say as to what
“personal knowledge” is? Those “which are derived [rom his
own perception. ”
4. Why must a witness testify only to matters of his per-
sonal hiiowledge? The answer is clear. The witness’ credibility,
288 EVIDENCE
(The Bar Lectures Series)
accuracy of perception and recollection, can be tested before CHAPTER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 289
the court through cross-examination. Those of the out-of-court AND CHARACTER EVIDENCE
A. Preliminaries
declarant cannot. The latter’s statements are, therefore, un-
reliable. In the high fallutin terminology of the academe, his or not, unless offered for a purpose other than proving the
statements lack the “indicia” of trustworthiness. It is this lack truth of the matter asserted. In this case, the news article
of reliability which is the reason for the time-honored rule ex- is admissible only as evidence that such publication does
cluding hearsay testimony. exist w .th the tenor of the news therein stated" (citations
omitted).
5. The issue often centers on the second component
of the hearsay formula and it is this second one which the Examples of non-hearsay evidence
reader must set his sights on. In most hearsay problems,
the first component is always present. It is this part which (a) A “statement having probative worth simply 6y
the mind easily grasps. Not the second. Sometimes, this uirtue of’ the fact that it nos uttered, if relevant to a material
component approximates the abstract hiding itself from the fact in issue, is not hearsay and is generally admissible . .
eyes of common mortals like us. It is concededly the more Where a statement is not of'fered for the truth of the contents
controversial part of our supposedly practical rule. When this of the conversation, but only to show that it was made, then
part is absent, i.e., the out-of-court statement is not offered the statement is not hearsay. For example, a statement
to prove the truth of the matter asserted, it is said that the that is offered to show its patent falsity, so as to suggest the
statement is offered for a non-hearsay purpose. If it is offered defendant’s consciousness of guilt, is not hearsay” (29 Am Jur
to prove the truth of the statement, it is hearsay because it 2d, 708).
is offered to prove a hearsay purpose. Where a statement is (b) There are other kinds of out-of-court statements that
not offered for the truth of the matter asserted but is offered have been considered admissible because they were offered
for an evidentiary purpose, not dependent on the truth of the for a non-hearsay purpose like statements relating to the state
matters asserted, the statement is non-hearsay. of mind of the declarant and statements relating to the state
6. In a case, the only evidence the petitioners of mind o[ the listener. Words uttered, in this regard, merely
presented to prove that the price of a round trip ticket constitute circumstantial evidence of an assertion and where
between Manila and Los Angeles at that time was only the making of the statement is the significant fact because it
$856.00 is a newspaper advertisement for another airline either gives rise to the inference about the declarant’s
company. The Court considered the advertisement state of mind or indicates its effect on the hearer. The
inadmissible for being “hearsay evidence, twice removed.” It truth of the statement is not in issue here. A statement by an
categorically ruled that newspaper clippings are hearsay if out-of- court declarant may be offered not for the veracity of
they were offered for the purpose of proving the truth of the what is
matter alleged. asserted but merrily to impeach the declarant’s credibility. A
Quoting Feria v. Court of Appeals, 325 !SCRA 525, the threat against a witness may be offered in evidence to show
Court explained: its impact on the witness and where the reasonableness of a
person’s conduct is an issue, an out-of-court declaration may
“[N]ewspaper articles amount to ‘hearsay evidence, oe offered to explain the person’s reactions to the declaration
twice removed’ and are therefore not only inadmissible (U.IS. u. Canieso, 470 F2d 1224 2d Cir. 1972; U.S. v. Monroe,
but without any probative value at all whether objected to 943 F 2d 1007, 9th Cir. 1991; U.SI. v. Baird, 29 F.3d 647,
D.C. Cir. 1994; cited in Charles Wagner, FRE Case Law
Commentary, 533-535).
290 EVIDENCE declarant
(The Bar Lecturer Series)
1. As long as an out-of-court statement is offered for a non-
Out-of-court statements offered to prove mental state of the hearsay purpose (a purpose other than to prove the truth of the matter
asserted), the statement is admissible if it has relevance to CHAPTER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 291
the matter in issue. AND CHARACTER EVIDENCE
A. Preliminaries
A popular example of an out-of-court statement offered
for a non-hearsay purpose is one which demonstrates by idea l am Saddam Hussein.“ When I served
inference from the tenor of the statement the state of mind him supper, he said, “Those fools! They didn’t
of the speaker or the declarant. Here, the significance of the realize they just met Alexander the Great!”
statement is not whether its assertion is true or false. Its Court: Objection, overruled!
significance rests on the mere fact that it was uttered and, by
extension, on the conclusion which may reasonably be drawn Are the statements of the testator offered to prove the
from the statement. truth of the assertions therein? Certainly not. Obviously, the
out-of-court statements of the testator are not offered to prove
2. Let us assume we have a special proceeding in court.
that he is Joseph Stalin, Theodore Roosevelt, Saddam Hussein
Let us say, it is the probate of a testator’s will. Some heirs
who felt aggrieved by the dispositions in the will raised the and Alexarider the Great rolled into one. They are offered for
issue of the testator’s sanity. The will was purportedly a non-hearsay purpose, i.e., to prove by inference through the
executed on January 3 of the previous year. A witness for the statement that the testator, on the day the will was executed,
oppositors is on the stand to testify on the testator’s alleged was incapacitated by reason of a mental condition.
incapacity. From experience, we know that a person’s state of mind
Q: How long have you known the testator? may be revealed by his actions or statements. The declarant’s
words or conduct constitute circumstantial evidence of his
A- For twenty (20) years by the time he died, Sir. state of mind. In this case, it is not the truth or falsity
Q: How did you come to know him? of the conduct or words which matter. It is the fact that
the statement was made which is relevant. A testimony by
A: I was her nurse for twenty (20) years, Sir. the hearer that such statement was made is not hearsay.
Q: On January 3, 2015, what did you hear the Why? The hearer will be testifying as to his personal
testator say, if any? knowledge that the statement was uttered. He may,
therefore, be cross- examined as to what he heard, when it
Objection, Your Honor! Hearsay! (Opposing was heard, how it was said, and the circumstances
counsel objects.) surrounding the making of the statement. The hearer’s
Court: Not so fast, Pañero. Witness may veracity and sincerity can well be tested under a cross-
answer! examination because he will not be testifying as to the
veracity of the assertion or its falsity which are totally
A- In the morning of January 3, he said, “I am irrelevant.
Joseph Stalin.” At around twelve high noon,
he told me, “I am Theodore Roosevelt.” Right 3. Statements relating to the state of mind of the
after the subscribing witnesses to his will left, declarant is one of those admissible out-of-court statements if
he brushed me aside and said. “They had no offered for non-hearsay purposes £9 Am Jur 2d, 708, 709).

Out-of-court statement offered to prove its effect on the

listener/hearer
1. An out-of-court statement may be offered not only
to prove the state of mind of the declarant. It may also be
used to show the state o/‘mind o/t/tg hearer or listener. This
state of mind of the listener is oftentimes described in terms of
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the effect of the declarant’s statement on the hearer and why
the listener acted in a particular manner. As in our previous CHAPTER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 293
illustration, the statement here, although out of court, is AND CHARACTER EVIDENCE
presented not to prove the truth of the statement and, hence, A. Preliminaries
non-hearsay. The testimony, “This happened barely two minutes ago
When the statement is not offered for the truth of the and that guy sitting there pretending to be an onlooker is the
matter asserted but is offered to show the mental effect of the culprit,” is not offered to prove that (a) the incident occurred
statement on the hearer, the statement is not hearsay (U.IS. u. two minutes ago, or (b) that the guy sitting and pretending
Norwood, 798 F'.2d 1094 f7 Cir. 1960]). to be an onlooker was the culprit. The testimony is to
2. The next example is a prosecution for arbitrary prove that an arrest was made as a consequence of the out-
detention. The accused is a police officer who chanced upon of-court statement’s effect on the hearer. This effect was the
the crime scene and arrested the complainant after he reason for the arrest. This effect is relevant to justify the
was fingered by a witness to the felony. He is on the stand apprehension of the complaining witness.
to testify on the circumstances surrounding the arrest. Let us “Words offered to prove the effect on the hearer are
see whether or not a hearsay objection can be sustained. admissible when they are offered to show their effect on one
Q: Sir, what were you doing on such and such whose conduct is at issue” (Sltate v. Hernandez [AppJ 170
place? Arizona 301; 29 Am Jur E9, 710).
A: I was on a routine patrol. This is an important category of non-hearsay evidence
worth remembering. The statement offered in evidence is
What happened on such and such date and on not hearsay because it is the hearer’s reaction to the state-
such and such time? ment which is sought to be proved. It is his reaction to the
A: I saw people milling around something in statement that is relevant, not the truth of the assertion in
the corner of ABC and XYZ Sts. the statement. Since the hearer is present in court, he can
What, if any, did you do? be cross-examined on whether or not he heard the statement
accurately, believed the statement to be true, and whether or
A: I got out of my patrol car to see what was not he really acted in conformity with his belief.
happening.
What, if any, did you see? Out-of-court statement offered to prove that the statement
was made (Bar 2012)
A: I saw a man lying face downward on the side of
the street with blood all over his back. 1. Where the statement is not offered for the truth
What happened next? of the matter asserted, but merely to show what was said,
the statement is not hearsay (Ries Biological, Inc. u. The
A: A man whispered to me, “This happened barely Bank of Santa Fe, 780 F .2d 888 10th Cir. 1986]).
two minutes ago and that guy sitting there
pretending to be an onlooker is the culprit.” 2. Here is another example. This time, it is a
prosecution for oral defamation where the following exchange
Counsel: Objection, Your Honor, hearsay!
took place between the prosecutor and his witness:
Court: Objection overruled!
Prosecutor: What did you hear the accused say?
Defense: Objection, Your Honor. Question calls for
hearsay testimony!
Court: Not so fast! Witness may answer.
294 EVIDENCE Witness: The accused said while pointing to the victim: “You
(The Bar Lecturer Series)
are a thief! You stole my money! You are a liar!”
 Court: Objection overruled! CHAPTER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 295
AND CHARACTER EVIDENCE
Is the testimony of the witness excludable as hearsay? A. Preliminaries
It is not. The testimony is not hearsay. It is not offered
relevant reason independent of their truth or falsity. They are
to prove that the complaining witness is a “thief’ or a
relevant because the statement itself is either the very fact
"liar.” It is of'fered to prove the tenor of the statement, i.e.,
in issue or a circumstantial evidence of a fact in issue. Some
that the statement was made. What is significant is the
authorities call independent relevant statements as the ‘op-
making of the statement. Beyond the mere fact that the words
erative acts’ which give rise to legal consequences (29 Am Jur
were uttered, the statement proves nothing as to its
averments because the out-of-court declaration’s relevance 2d, 709).
is independent of the truth of its assertions. In a 2. An independently relevant statement is not hearsay
prosecution for defamation, an important issue is whether arid is, therefore, not banned under the hearsay evidence rule.
or not the words constituting the offense were uttered. There Hence, a witness may be asked questions concerning what
is no other inference required. Once there is proof that the the accused told him that other persons were involved in the
words were uttered, then the legal consequences of the mere conspiracy if the purpose of the testimony is not to prove that
making of the statement will follow. The only question such persons were really involved in the conspiracy but only
remaining which is a subject matter best for another story to prove what the accused had mentioned (People o. Cusi, Mr.,
is: Does the accused have a defense? 14 SCRA 944). If the purpose of the testimony is merely to
3. “If an extrajudicial utterance is offered, not as an establish the fact that the statement was made, the hearsay
assertion to prove the matter asserted but without reference rule does not apply. Evidence as to the making of the
to the truth of the matter asserted, the hearsay rule does not statement is a primary evidence where it is relevant to the
apply. for example, in a slander case, if a prosecution witness existence of a fact (See Espineli v. People, G.R. No.179535, June
testifies that he heard the accused say that the complainant 9, 2014).
was a thief, this testimony is admissible not to prove that the
complainant was really a thief, but merely to show that Newspaper accounts of an incident are hearsay if of'fered
the accused uttered those words.” (Patula u. People, 669 to prove the truth of the accounts but are not hearsay if offered
SCRA 135, 153, April 11, 2012). for a purpose other than the truth of the matter asserted. The
newspaper account is admissible only to prove that there was
Independently relevant statements (Bar 2003; 2009; 2011) a publication and merely the tenor of the news, but not its
truth (Fei’ia u. Court of Appeals, 325 !SCRA 525).
1. It is doctrinal that a declarant’s statement may
have relevance to an issue in a case from the mere fact that 3. Independently relevant statements actually come in
the words were spoken or written, irrespective of the truth or various shapes and shades because of the different reasons
falsity of the assertion. This category of a non-hearsay out- for which such statements are offered. They, however,
of-court statement, together with the previously discussed have a unifying element. That element is: Their relevance
categories, is commonly known in this jurisdiction under the to the matter in issue is not dependent on their truth or
general term, “independently relevant statements.” They are falsity. Their relevance lies in the fact that they were said.
called as such because the statements are admissible for some 4. An out-of-court statement introduced in court to
impeach a previous witness is another form of independently
relevant statement, and an example of how an out-of-court
declaration may be used for a non-hearsay purpose.
A hypothetical will illustrate the point. Let us say, a
prosecution witness in the stand testified: “I saw with my
own eyes when the accused drew a pistol from his waist and
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aimed it at the victim. I was there when he fired. I was there CHAPTER VI — HEARSA"/ EVIDENCE, OPINION EVIDENCE 297
when the victim fell to the ground. I was there when blood AND CHARACTER EVIDENCE
A. Preliminaries
flowed out of his blasted chest. I was there when the
victim gasped his last breath! I was there. I saw it all!" The “To show that Mr. A’s testimony is inconsistent
witness, whom we shall call Mr. A, is testifying not on the with what he told Mr. B one day after the incident,
basis of what another person saw. He is testifying on facts Your Honor.”
which he knows of his own knowledge just what the Rules “Objection overruled. Witness may answer.”
of Court says he should. This is not hearsay and an
objection on that ground will have to be overruled. “Sir, he told me: I did not see with my own eyes
when the accused drew a pistol from his waist and
However, without the witness knowing it, someone he
aimed it at the victim. I was not there when he fired.
did not expect to be in the audience heard everything he said.
I was not there when the victim fell to the ground. I
That someone could not believe what he just heard straight
from the witness’ mouth! Let us call him Mr. B. Tugging at was not there... I was not there. I was somewhere.”
the shirt of the guy next to him, he exclaimed, ‘I know the Of cor.rse, Mr. A’s supposedly eyewitness account is im-
witness. He is a homegrown kid like me. We grew up together portant in the lawsuit. But there is something more important
in the same block. What he just told the court was not what than the credibility of the testimony. It is the credibility of
he told me a day aRer the killing!” the witness himself. Prom the moment the witness takes his
Our next scene is of Mr. B now sitting on the witness oath on the stand, even before he utters his first words on the
stand. In the previous cross-examination of Mr. A, he denied stand, his credibility is automatically put in issue. That the
ever talking to Mr. B, who takes his oath, and after all those credibility of a witness is always an issue in every
predicates for the questions were laid, come the questions litigation is a given. It is basic. Of course, a testimony that
from the defense counsel: attacks the credibility of the witness is equally relevant
especially when that witness claims to have personal
“Did you hear what Mr. A told this court about knowledge of the facts testified to. Prior out-of-court
what he said he saw on the day the victim was declarations of that same wit- ness inconsistent with his
killed?” testimony on the stand are admis- sible not to prove the
Yes, sir,” comes the confident reply. truth of what was said.
“What can you say about his In the example, the testimony of Mr. B on the
testimony?” declarations of Mr. A was not introduced to prove that Mr. A
did not indeed witness the killing of the victim by the
“The things he said in court were not what accused. Whether or not the statement of Mr. A is true is
he told me about the incident!” irrelevant. What is important is that the statements were
“What did he tell you?” uttered. Because they were uttered, Mr. A had made
inconsistent statements and because he did, it is not now
“Objection. Hearsay,” barks the prosecutor.
easy to believe Mr. A’s testimony. He may have witnessed the
If the judge is awake, and judges are always incident. He may have not. We do not know. We know one
awake even if sometimes you think they are not, he thing for sure. Mr. A’s credibility has been impaired. In the
will ask before ruling on the objection, ‘that is the language of the rules, Mr. A has been “impeached.”
purpose of your question, counsel?”
5. The ban on hearsay evidence does not cover inde-
pendently relevant stateinents, i.e., those statements which
are rele want independently of whether they are true or not.
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The case of Estrndo u. Desierto (356 ISCRA 108) classifies in-
dependently relevant statements into two: CHAPTER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 299
AND CHARACTER EVIDENCE
The first class included the following: B. Exceptions to the Hearsay Rule
(a) statements which are the very facts in issue; (g) Entries in the course of business (lsec. 43, Rule
and 130);
(b) statements which are circumstantial evidence
(h) Entries in official records (lsec. 44, Rule 130);
of the fact in issue.
(i) Commercial lists and the like (!Sec. 45, Rule
The second class includes the following:
130);
(a) statements of a person showing his state of
mind; that is, his mental condition, knowledge, belief, (j) Learned treatises (Sec. 46, Rule 130);
intention, ill-will and other emotions; (k) Testimony or deposition at a former proceeding
(b) statements of a person which show his physical (!Sec. 47, Rule 130).
condition, as illness and the like;
2. It is not correct to assert that the exceptions to the
(c) statements of a person from which an inference hearsay rule are not hearsay. They are hearsay evidence
may be made as to the state of mind of another; that but they are deemed admissible hearsay for certain reasons.
is knowledge, belief, motive, good or bad faith, etc. of Under appropriate circumstances, a hearsay statement
the latter; may possess circumstantial guarantees of trustworthiness
(d) statements which may identify the date, place, sufficient to justify non-production of the declarant in person
and person in question; and (Advisory Committee Notes to Federal Rules of Evidence cited
in 29 Am Jur 29, 7263. Another justification may be simply
(e) statements showing the lack of credibility of a
dictated by the necessity to admit an out-of-court statement
witness. (29A km Our 214). Declaration against interest, act or
declaration about pedigree, entries in the course of business,
B. Exceptions to the Hearsay Rule entries in official records, commercial lists, and learned
1. The Rules of Court enumerates the following excep- treatises are examples of hearsay evidence where there exist a
diminished risk of untrustworthiness because the motivation
tions to the hearsay rule:
to lie is less. Some statements may be admissible where no
(a) Dying declarations (Sec. 37, Rule 130); other or better evidence is available to prove an act, such that
(b) Declaration against interest (lsec. 38, Rule 130); their admissibility is predicated on a compelling necessity. A
dying declaration is admissible largely under this rationale.
(c) Act or declaration about pedigree (Sec. 39, Rule
130); Dying declaration (Bar 2007; 2010)
(d) Family reputation or tradition regarding pedi- 1. A famous exception to the hearsay evidence rule
gree (lsec. 40, Rule 130); called “dying declaration” is described in Sec. 37 of Rule 130,
(e) Common reputation (lsec. 41, RuIe 130); as follows:
(f) Part of the res gestae (Sec. 42, RuIe 130);
“SEC. 37. Dying declaration. — 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.”
300 EVIDEI9CE
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 2. “A dying declaration is an evidence of the highest CHAPTER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 301
order; it is entitled to the utmost credence on the premise AND CHARACTER EVIDENCE
B. Exceptions to the Hearsay Rule
that no x x x person who knows of his impending death would
make a careless and false accusation. At the brink of death, it is not difficult to understand why at common law, the dying
all thoughts on concocting lies disappear” (People u. Cabtalaii, declaration exception was made available only in homicide
666 SCRA 174, 194-195, February 15, 2012). cases, a generic term which of course includes murder and
3. The reasons for its admissibility is necessity and parricide. Nearly all courts, based upon the theory of necessity,
trustworthiness. Necessity, because the declarant’s death refused to recognize a dying declaration in civil cases, or even
renders it impossible his taking the witness stand, and it in those criminal cases where homicide is not an integral
often happens that there is no other equally satisfactory part of an offense (Ross u. Cooper, 38 N.D. 173, 164 N.W. 679;
proof of the crime; allowing it, therefore, prevents a failure of Win[re y u. !State, 174 Art. 729, 296 S. W.; Cited in McCormick,
justice. And trustworthiness, because the declaration is made Evidence, 831). Thus, the dying declaration exception was not
in extremity, when the party is at the point of death, when available in rape, abortion, kidnapping, burglary cases or any
every motive to falsehood is silenced and the mind is induced civil case.
by the most powerful considerations to speak the truth. The The Federal Rules, however, did not adhere to the com-
law considers the point of death as a situation so solemn and mon law limitation on homicide cases. If the declarant is un-
awful as creating an obligation equal to that which is imposed available as a witness, the statement made under a conscious-
by an oath administered in court (People u. Cerilla, 539 SCRA ness of an impending death was admissible also in a civil case
251). where there is an issue concerning the cause or circumstances
Why dying declarations are admissible, is explained in of such death (FRE, 804b).
People u. Villariez VG.fi. No. 211160, September 2, 2015): 5. A similar rule, confining admissibility to criminal
“Statements identifying the assailant, if uttered by cases, prevailed in our jurisdiction until the changes in our
a victim on the verge of death, are entitled to the highest Rules on Evidence in 1989 allowed the use of dying declara-
degree of credence and respect. Persons aware of an im- tions even in non-criminal cases. The former rule (!Sec. 31,
pending death have been known to be genuinely truthful Rule 130, Rules o[ Count) limited the admissibility of dying
in their words and extremely scrupulous in their accusa- declarations to a criminal case, thus:
tions. The dying declaration is given on the premise that
no one who knows of one’s impending death will make a “Sec. 31. D ying Declaration — The declaration of a
careless and false accusation x x x.” dying person, made under a consciousness of an impending
death, may be received in a criminal case wherein his
4. As originally conceived, dying declaratiOns were death is the subject of inquiry, as evidence of the cause
admissible only in criminal cases, particularly homicide cases. and circumstances of his death” (Italics supplied).
Courts, in the early days, anchored much of their support
for the dying declaration exception on the need to uphold As presently worded, Sec. 37 of Rule 130 provides that
justice. Courts, at early common law, reasoned out that the the declaration of a dying person, made under the
culprit would go free if the victim’s dying declarations were consciousness of an impending death, may be receiv.ed in
excluded and it is in homicide cases where the necessity for city case wherein
admission of a dying declaration il clear and pressing. Thus, his death is the subject of inquiry, as evidence of the cause and
surrounding circumstances of such death (!See also Remedial
Eaw Compendium , Volume II, Regalado, 2008 Ed., p. 781).
In doing so, the Rules of Court no longer places any
limitation on the type of action in which a dying declaration
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may be introduced. As long as the relevance is clear, a dying CHAPTER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 303
declaration may now be introduced in a criminal or a civil AND CHARACTER EVIDENCE
action and the requirement of relevance is satisfied where the B. Exceptions to the Hearsay Rule
subject of inquiry is the death of the declarant himself. To admit a dying declaration in evidence, it must be
6. Any objection to a dying declaration may be pre- shown that the declarant believed, at the time the statement
mised on any of the requisites for its admissibility embodied was made, that he was in a dying condition and had given up
in Sec. 37 of Rule 130. Thus, counsel who wants a dying decla- the hope of surviving (People v. Brioso, 37 SCRA 336; People
ration excluded must have to deal with the primary question u. De Garcia, 18 SCRA 197).
of whether or not the evidentiary foundations for the
8. A central question that is frequently asked is one
introduc- tion of a dying declaration were met.
concerning the kind of facts which would lead to an inference
The basic objection to a dying declaration is that the declarant was conscious of his impending death.
expressed in the words, “Objection, Your Honor. There is no Do we arrive at this inference solely from the words of the
foundation for the declaration.” Some would prefer, declarant himself? May it be established by other means?
“Objection, no basis.” Others would say, “Objection, predicate
Authorities are in agreement that, apart from the
not laid.” Whatever the lawyer’s preference is, the message
statements of the declarant, consciousness of an impending
is the same: The proponent has not established the
death may be established b3• other circumstances, such as the
essential elements of a dying declaration; hence, the
nature of the injury and the conduct of the declarant. In any
objection. The objecting counsel must, however, specify the
event, it is conceded that the attendant circumstances should
reason for the lack of a founda- tion requirement. Thus,
be carefully weighed in determining the consciousness of the
counsel would may, “Objection. No foundation. Declarant was
impending death and the sincerity of such belief (29A Am
not under the consciousness of an impending death.”
Our 2d 219, £20 . The declarant’s belief that he is going to
7. When the prosecutor attempts to introduce a dying die soon inay be shown circumstantially by the obvious fatal
declaration, the very first question that the defense should quality of the wound, by the statements made to the victim by
ask is whether or not the declarant, at the time the statement the physician that his condition is hopeless, or by some other
was made, knew or believed that he was going to die. When? circumstances (People v. Silang Cruz, 53 Phil. 636; People v.
Not next week. Not next month. Not next year. But very soon Chan Lin Watt, 50 Phil. 182).
or now! This constitutes the objector's first line of defense. Sec.
37 of Rule 130 has an eye-catching name for this knowledge A witness, for example, testifies:
or belief. It calls it, “consciousness of an impending death.”
“When I arrived at the scene, I saw the victim ly-
Under the rules, it is evident that a mere consciousness ing on his back in the sidewalk. He was lying in a pool
of death is not enough because everyone of us, at one time of his o vn blood. I rushed to pick him up. I told him that
or another, has become conscious of death. The kind of death I am calling an ambulance to take him to the hospital.
which the declarant should be conscious of is a death that He asked me to call a priest. “I need... Fr. Pio... need...
is impending. The declarant must be conscious that death extreme unction,” he said in heavily, labored breath-
is near and certain, that “death in near at hand, and what ing. Then, wiih one last breath, he Said, “Chito... Chito...
is said must have been spoken in the hush of its impending stabbed me!” He expired.”
presence.”
The example speaks clearly of the declarant’s knowledge
of his impending death. The need for a priest to
administer the last rites of a particular religion allows us
to infer that
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the declarant believed his end is near. Thus, the declarant’s CHAPTER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 305
belief that death is impending may be deduced from all the AND CHARACTER EVIDENCE
surrounding circumstances such as his physical condition, B. Exceptions to the Hearsay Rule
conduct and statements, and it is not necessary for the recognized the rule that dying declarations, which exculpate
admission of a dying declaration to prove that the declarant or exonerate an accused, may be introduced by him and are
should state that he is giving up the hope of life. It is enough admissible in his favor.
if, from the circumstances, it can be inferred with certainty
that such must have been his state of mind (People u. Chan The early case of U.S. v. Antipolo (37 Phil. 726) affirms
Min Watt, 50 Phil. 182). that dying declarations are admissible in favor of the accused
as well as against him (Citing Mattox v. U.IS., 146 U.!S. 140).
9. The following hypothetical of a testimony by a Thus, a dying declaration which avers that the firearm that
doctor responding to a 911 call by the victim himself may injured the declarant was not discharged on purpose but only
indicate a consciousness that death is certain to come soon: accidentall) , is admissible to prove the innocence of the ac-
cused (U.S. v. Clemente, 22 Phil. 277). All facts relating to the
“I hurriedly went up the stairs. I kicked the door cause of death are admissible whether the same are in favor
open. I saw the victim in a dreadful condition. Blood was
of or against the accused (Regalado, Remedial. law Compen-
all over his chest and stomach area. He was clutching
with his right hand what seemed at first to me were dium, Vol. II, 2004 Ed., p. 741).
his intestines. I looked closely and they were! Blood Another case which illustrates this principle particularly
was gushing too from his forehead, from his ears, from
well is People o. Martins.z (42 Phil. 85). In this case, two of
his nostrils and from his mouth. He was loeing blood as
quickly as a drum of water blasted by a grenade and a the suspects were presented to the declarant before the latter
dozen shotguns. What a horrible sight! Then, from his expired. In the presence of the justice of the peace, the
bloody lips came the words as I knelt down to help him, mortally wounded man declared that they were not the
’Chito... he shot... me... he shot me!’ A few seconds after, perpetrators and authors of his wound. When, however, the
he died." third suspect was presented to him, he pointed to the
accused and said: “This is the man who wounded me.” The
10. Now, let us assume that the declaration of the declaration was held admissible and considered in favor of
deceased was made under the consciousness of an impending the first two suspects.
death. Let us also assume that the witness died immediately It has been ruled that it would be unfair to restrict
after uttering his last words and these words were: “I do the use of dying declarations by the prosecution. It is well-
not know... I do not know... the one who stabbed me.” The
settled that it will also be received on behalf of the defendant
declarant then expired. May these words be admitted to favor
(Mattox v. U.S., 146 U.S. 140, 151).
the accused? Such words may be admitted. There is nothing in
the rules which prohibits the admission of a dying declaration 11. The requirement that a dying declaration must
that is favorable to the accused. relate to the cause and the circumstances surrounding the
declarant’s death may be a source for counsel’s objection
to the admission of the declaration. This requirement is
an essential part of the evidentiary foundation for a dying
declaration and where the statement sought to be introduced
Certainly, the interest of the State in conw‘cting an by the prosecution is on a matter other than the cause of death
accused is as strong as its interest in acquitting a man falsely of the declarant, the required foundation for its admissibility
and erroneously charged. The Supreme Court had long cannot be laid. An objection timely interposed will most likely
be sustained.
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 Suppose that a man collapses on your front door, blood CHAPTER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 307
oozing from his back where a knife is prominently planted. AND CHARACTER EVIDENCE
B. Exceptions to the Hearsay Rule
You rush to help him and you notice the poor, hapless guy is
your next-door neighbor, Candido. You have long wanted to Elements of a dying declaration (Bar 1985; 1991)
ask him whether or not he had something to do with the
1. The Court in People u. Gatarin, G.R. No. 198022,
death of Calixto, another neighbor, six months ago. As he lay
April 7, 2014), accurately enumerates the elements of a dying
dying in your arms, you ask him the question and, in a weak
declaration, thus:
voice, he whispers: “It was not me... it was Prank Santos.” In
a couple of seconds, he dies. Is the decedent’s statement “A dying declaration, although generally inadmis-
admissible as a dying declaration in a prosecution against sible as evidence due to its hearsay character, may, none-
Frank Santos for the death of another neighbor? Of course, theless, be admitted when the following requisites con-
the answer should be ‘No.’ It should be ‘no’ because the cur, namely:
declaration was neither about the cause nor the
(a) the declaration concerns the cause and the
circumstances of the declarant’s death. It is not admissible
because the subject of the inquiry is the death of someone else. surrounding circumstances of the declarants’ death;
(b) it is made when death appears to be imminent
12. Let us take a similar, but slightly different, example
and the declarant is under a consciousness of an impend-
using the same characters. Let us say that before expiring,
ing death;
Candido declares: “Joaquin stabbed me...!” Haltingly and
between gasps, he states he and Joaquin had been robbing (c) the declarant would have been competent to
tourists in the area for the past twelve months, that a couple testify had he or she survived; and
of hours ago they robbed a tourist of his money worth $5,000,
(d) the dying declaration is offered in a case in
that there was an argument between them while dividing the
which the subject of inquiry involves the declarant’s
loot, and that, as a consequence, Joaquin stabbed him in the
death.”
back. Despite his weakened state, he also states that he and
Joaquin were also responsible for robbing the convenience 2. In a prosecution for murder, the records show that
store at the street corner the day before. the deceased communicated his ante-mortem statement
to another, identifying the accused as the person who had
Would the other declarations aside from “Joaquin
stabbed him. At the time of his statement, the deceased
stabbed me...!” be admissible as a dying declaration? While the
was conscious of his impending death, having sustained a
declaration that he was stabbed because of an argument while
stab wound in the chest and experiencing great difficulty in
dividing the loot may be argued to be part of the circumstances
breathing. The deceased succumbed in the hospital emergency
surrounding the declarant’s death, other portions of the
room a few minutes from admission, which occurred under
declaration, like the admission that he and Joaquin had been
three hours after the stabbing. The Court held that there
robbing tourists in the past and that they recently robbed
is ample authority for the view that the declarant’s belief in
a convenience store, do not come within the purview of the
the imminence of his death can be shown by the declarant’s
exception. They are distinct matters not related to the killing
own statements or from circumstantial evidence, such as the
of the declarant.
nature of his wounds, statements made in his presence, or by
the opinion of his physician. Besides, the deceased would have
been competent to testify on the subject of the declaration
had he survived (People u. lsalafranca, 666 ISCRA 501, 512,
February 22, 2012).
308 EVIDENCE If the deceased made declarations before his demise, “It is the
(The Bar Lectures Series)
belief in impending death and not the rapid succession of death in
point of fact that renders a dying declaration admissible. The test is
 whether the declarant has abandoned all hopes of survival CHAPTER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 309
and looked on death as certainly” (People AND CHARACTER EVIDENCE
B. Exceptions to the Hearsay Rule
v. Vatorirt, G.R. No.198022, April 7, 2014).
The objecting counsel may also demonstrate that the
However, even if the utterances of the victim could
not be appreciated as a dying declaration, his statements declarant has no personal knowledge of the identity of the
may still be appreciated as part of the res gestae (People v. assailant. Hence, a declarant’s statement that another person
Gatarin, G.R. No. 198022, April 7, 2014), which refers to told him who hacked him In the back with a bolo would
spontaneous statements made immediately prior to, while a not qualify for the dying declaration exception. It would
startling occurrence is taking place or immediately after such not qualify because the statement is plain and simple
occurrence. Since the statements are contemporaneous with hearsay.
the startling event, deliberation and fabrication are ruled out It may also be pointed out that the declarant would not
and, thus, deemed reliable. have been a competent witness even if he had survived. This
competence is vi*a1 to the admissibility of a dying declaration.
Assailing a dying declaration Competence is affected where the declarant had no opportu-
nity to see the assailant. The declaration must identify the
1. Although jurisprudentially considered as evidence
assailant; otherwise, it loses its significance (People v. Ador,
of the highest order, it is submitted that the admissibility of
432 !SCRA 1; Geraldo v. People, 571 !SCRA 420).
a dying declaration, like any admissible evidence, does not
create a conclusive presumption of credibility of the admitted 2. The ways by which the credibility of the declaration
declaration. No evidentiary rule grants a dying declaration and the declarant may be assailed are as varied as the
a favored status in the hierarchy of evidence. Like any other particular circumstances of the case. Knowing them is largely
evidence, the declaration may be attacked in the same manner a matter of’logic and not necessarily of law.
as one would do to a testimony in open court. The declarant counsel may, for example, demonstrate that the decla-
himself may be impeached through the nomal methods rant, at the time of his declaration, was in an irrational state
provided for under the rules. for instance, the objector may because he was under the influence of large doses of sedatives
show that prior to the admitted declaration, the declarant had administered in the hospital. While there are judges who are
previously made a statement inconsistent with his supposedly influenced by the theory that when a person is at the point of
‘dying declaration.’ death, one is induced to speak the truth, ti ese same judges
When the declarant, for example, stated that he was may be swayed by evidence to the contrary. So where the
attacked while he was lying on the bed but, on another objector succeeds in showing that there are incontrovertible
occasion, declared that he was attacked while lying on the facts that tend to prove that the declarant could not have been
bench, a disturbing conflict exists between the two statements influenced by the desire to tell the truth, such as when his
specially when the alleged dying declarations are not in words show that his motive was vengeance or revenge, the
accordance with the actual physical facts (People v. Bingaan, declaration loses weight.
48 Phil. 926). Courts have to apply to dying declarations the same rules
applied in testing the credibility of testimony of a witness in
court. No law allows them to use a different criterion. One
may even question the competency of the declarant himself
who, like any other witness, may also be impeached. If the
declarant is incompetent under the rules if he were to appear
in court and in person, he would also be incompetent as a dying
declarant. 'Fiius, if a court would adjudge him incompetent
310 EVIDENCE
(The Bar Lecturer Seriea)
because of his insanity if he were alive, there is no reason
CHAPTER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 311
to consider him sane as a dying declarant. It is a matter of AND CHARACTER EVIDENCE
common sense to know that one who is insane does not become B. Exceptions to the Hearsay Rule
sane because of an utterance made under consciousness of
compasses the exclamations and statements made by either
an impending death. A dying declaration, as an exception to
the participants, victims, or spectators to a crime immediate-
the hearsay rule, is not meant to confer competency on an
otherwise incompetent witness. Thus, where the declarant ly before, during, or immediately after the commission of the
is publicly known to be untruthful in his words and conduct, crime when the circumstances are such that the statements
the credibility of his declaration at the point of death may were made as a spontaneous reaction or utterance inspired by
adversely be affected and he does not, by a sudden twist of the excitement of the occasion and there was no opportunity
circumstance, become immaculate because of his having made. for the declarant to deliberate and fabricate a false statement.
a dying declaration. The test of admissibility of evidence as a part of the res gestae
is, therefore, whether the act, declaration, exclamation is so
The credibility or trustworthiness of those who have al- intimately interwoven or connected with the principal fact or
legedly heard or taken down the dying declaration and the event that it characterizes as to be regarded as a part of the
form and manner by which the declaration was taken are transaction itself, and also whether it clearly negatives any
vital points to be considered by an objector who desires to
premeditation or purpose to manufacture testimony" (People
water down the effects of a dying declaration. Where it is shown u. Villarico, !Sr., 647 SCRA 43, 58, April 4, 2011; People v.
that the persons from the prosecution were the ones who lsalafranca, 666 !SCRA 501, 514, February 22, 2012,- People u.
squeezed out the dying declaration from the lips of a Lupac, G.R. Vo. 182230, Sleptember 19, 2012; Citations of the
weakened de- clarant through questions calculated to bring Court omitted; People u. Gatarin, G.R. No. 198022, April 7,
out a desired response, a conscientious counsel may bring 2014).
this matter up in court.
3. Suppose, a guy casually strolling in a park was
Parts of the res gestae (Bar 2007) suddenly clubbed by a man from behind. The hapless guy’s
head was split open by the blow. He died almost instantly. He
1. The term res gestae is an old word which literally didn’t have the chance to speak. An elderly lady, the witness
means, things done, and was originally used by the courts in to the event, let out a high-pitched shriek and while pointing
the other side of the world in the early 1800’s to create at a man in a white shirt, screamed, “He did it... he did
hearsay exceptions whenever it was difhcult to justify the it...
admission of a piece of hearsay evidence at a time when the he hit him!” Let us assume that the elderly lady is nowhere to
hearsay theory was far from being a developed concept in the be found but someone heard her utter those words, her state-
law of evidence. ment may, nevertheless, be admissible under the res gestae
2. The term rev gestae has been defined as “those cir- doctrine as a description of the event itself speaking through
cumstances which are the undesigned incidents of a particu- the words of the lady.
lar litigated act and which are admissible when illustrative
of such act. In a general way, T’es gestae refers to the circum- 4. The concept of res gestae is still recognized in the
stances, facts, and declarations that grow out of the main fact laws on evidence of many states but the term itself is no
and serve to illustrate its character and are so spontaneous longer used in many jurisdictions (29A Am Jur 29 278, 279).
and contemporaneous with the main fact as to exclude the The use of the term has fallen out of favor and acts, formerly
idea of deliberation and fabrication. The rule on res gestae en- called parts of the res gestae, are now designated by specific
names. The Federal Rules of Evidence, for instance, makes
no reference to res gestae but recognizes as exceptions to the
hearsay rule in Rule 803 thereof, certain evidentiary rules like
‘excited utterances,’ ‘present sense impression,’ ‘statements
3I2 EVIDENCE
(The Bar Lectures Series)
of then existing mental or emotional physical condition,’ CHAP'€ER VI — HEAnSAY EVIDENCE, OPINION EVIDENCE 3I3
and ‘statements made for purposes of medical diagnosis AND CHARACTER EVIDENCE
B. Exceptions to t,he Hearsay Rule
or treatment.’ The Evidence Code of the State of California
makes no mention either of the term and uses, instead, (a) There is a startling event or occurrence taking
phrases like 'spontaneous statements’ and ‘contemporaneous place;
statements’ (Secs. 1240-1241). All these are concepts derived
(b) A statement was made while the event is taking
from the original res gestae doctrine. These concepts now have
place, or immediately prior to, or subsequent thereto;
their own designated names and are recognized as distinct
exceptions with identities of their own. (c) The statement was made before the declarant
had the time to contrive or devise a falsehood
Res gesfae under the Rules of Court (Talidano
1. The res gestae doctrine in our jurisdiction is em- u. Falcom Maritime & Allied Services, Inc., ibid.); and
bodied in Sec. 42, Rule 130 of the Rules of Court: (d) The statement relates to the circumstances
of the startling event or occurrence Sec. 42, Safe 130,
"SEC. 42. Part of the res gesfae. — Statements Rules of Court), or that the statements must concern
made by a person while a startling occurrence is taking the occurrence in question and its immediate attending
place or immediately prior or subsequent thereto with circumstances (Talidano o. Falcom Maritime & Allied
respect to the circumstances thereof, may be given in Services, Inc., supra; People u. Sala[ranca, 666 SCRA
evidence as part of the res gesfae. So, also, statements 501, 513, February 22, 2012; People u. Lupac, G.fi.
accompanying an equivocal act material to the issue, No. 182230, !September 19, 2012; citations of the Court
and giving it a legal significance, may be received as
part of the res gestae.” omitted).
When all these conditions are met, we have a sponta-
2. It can be observed that the use of res gestae in neous statement constituting an exception to the rule barring
the Philippines is limited to two matters: (1) spontaneous hearsay statements. Even if the declarant is unavailable and,
statements and (2) uerbal acts. While the term remains in thus, cannot be cross-examined, the evidence may be received
the rules, its application is restrictive and no other statement, in evidence.
act or evidence may qualify as part of the res gestae. The requisites were met in one case where the victim
It has been held that in spontaneous exclamations or went to her aunt’s house immediately after escaping from
statements, the res gestae is the startling occurrence, whereas the crime scene and spontaneously, unhesitatingly and
in verbal acts, the res gestae are the statements accompanying immediat•1y declared to her that the accused had sexually
the equivocal act (Talidano v. 'alcom Maritime & Allied abused her. Such manner of denunciation of him as her rapist
Services, Inc., 558 NICRA 279). was confirmed by the aunt’s testimony about the victim’s
panic-stricken demeanor and her use of words sufficiently
A. Spontazzeous etatezoents indicating her being raped (People v. Lupac, G.fi. No. 182230,
!September 19, 2012; Citations o[the Court omitted).
1. Spontaneous statements (spontaneous exclamations
or excited utterances), to be admitted in evidence, must have In another case, the requisites ’for admissibility of a
the following characteristics: declaration as part of the res gestae were said to be met. When
the deceased gave the identity of his assailant to another, he
was referring to a startling occurrence, i.e., his stabbing by
the accused. The victim Was then on board the taxicab that
would bring him to the hospital and, thus, had no time to
314 EVIDENCE
(The Bar Lecturer Series) contrive his identification of the accused as the assailant. His utterance
about the accused having stabbed him was made in
C£IAP'FER VI — HEADWAY’ I3VIDEN CE, OPINION EVIDENCE 315
spontaneity and only in reaction to the startling occurrence. AND CHARACTER EVIDENCE
The statement was relevant because it identified the accused E. Exceptions tc the Hearsay Rule
as the perpetrator (People v. lsalafi-anca, 666 SIC!RA 501, 513,
without the event, will not qualify for admission because the
February 22, 2012).
circumstances surrounding the making of the statement make
said statement admissible. The res gestae is the startling event
Basis of admissibility or occurrence and the statement is a part of that res gestae.
1. The admissibility of a spontaneous statement is The circumstances stamp on the statement a character of
anchored on the theory that the statement was uttered under reliability on the theory that it is almost impossible to lie in an
circumstances where the opportunity to fabricate ia absent. excited state. It has, thus, been said that the spontaneity of the
The statement is a reflex action rather than a deliberate act, utterance is the guaranty of’its trustworthiness. The principle
instinctive rather than deliberate. Thus, the declaration was rests upon common experience that utterances made under
made under conditions suggestive of the truth. Accordingly, such circumstances are devoid of self-interest and are in the
the basia for the excited utterance exception to the hearsay same category as exclamations. The probability of falsehood is
rule is that the perceived event produced nervous excitement, too remote as to be negligible (People v. Ricaplaza, 23 ISCRA
making fabrications about that event unlikely (Morgan u. 374; People v. Ner, 28 SCRA 1151; People u. Gondayao, 30
Foretich, Ca 4 Va, 846 F2d 941, cited in 29 Am Jur 29 865). !SCRA 226).
2. The justification for the excited utterance exception
is that a spontaneous declaration of an individual who has Objections to admissibility
recently suffered an overpowering and shocking experience
1. A counsel, who intends to object to the presentation
in likely to be truthful (Commonwealth v. Blackwell, 343 Pa
of a spontaneous statement as evidence, needs to analyze
Super 201).
the evidence sought to be admitted by strictly weighing
The earlier example of the elderly lady who screamed it according to the standards set by Sec. 42 of Rule 130.
while pointing at the man who clubbed the guy in the Remember that the proponent of the evidence must sustain
park from behind, illustrates a spontaneous statement the burden of proving the preliminary facts that would support
clearly well. First, the clubbing of the guy from behind by the the foundational elements for the admissibility of the alleged
culprit would obviously qualify as a startling event or spontaneous statement. It is the duty of counsel to subject
occurrence. S!econd, a statement was made immediately each foundational element to a very rigid scrutiny.
before, during or immediately subsequent to the startling
event or occurrence. In fact, the lady made a screaming For instance, one initial point which counsel needs to
statement at the time the guy waa being clubbed. Third, the consider is whether or not the event or occurrence is indeed
statement made must refer to the circumstances of the event. a startling one. This is because the res gestae is the startling
The lady’s cry, as she pointed to the culprit, fits this element event of which the spontaneous statement in only a part of.
squarely. Since the declarant is supposed to have made a statement
under the influence of the occurrence, the event must be of
3. In the “spontaneous statement” part of the res such a nature as to cause an excited reaction in an
gestae, common reason suggests that the statement and average individual. If the event in itself is not sufficient to
the event cannot be taken separately. The statement alone, disturb the emotional and mental equilibrium of the average,
reasonable person, then raise this issue with the court as
soon as it becomes apparent that the event is not as
startling as that required by the rules.
316 EVIDENCE But, suppose the court rules that the event can qualify as
(The Bar Lecturer Seriea)
startling? Simple. Back off and proceed to the next element of the
foundation. If the excited utterance was made imme- diately
CHAPTER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 3I7
before or while the startling event was taking place, you AND CHARACTER EVIDENCE
may have a tough time in your hands. It is likely that the B. Exceptions to the Hearsay Rule
statement will be ruled as admissible.
the declarant’s part but does the statement accurately reflect
2. There are times though that a declaration is not what truly and actually happened? What if the excitement
made simultaneously with the event but made sometime of the declarant impaired his power of observation? Let the
after. This is a break for opposing counsel who must zero in judge rule. Let him weigh the merits of your opposition but do
on the time interval between the event and the making of the not surrender an inch of ground without a fight!
statement. We have to concede that there has been no clear
4. Ncw, let us go back to the issue of admissibility
standard formulated so far as to when a statement made after
of the statement. So the court ruled there was a startling
the event is one made under the influence of that event. There occurrence or event, let us say, a car collision. It also declared
is no mathematical formula for this. Everything hinges on that the statement was made simultaneously with the event
the unique and particular circumstances of each case. Hence, and such statement was made spontaneously. The declarant
the determination as to the spontaneity of the utterance is made the statement at that precise moment when the accident
a matter of judicial discretion. It is, however, this matter of happened. She z•as very excited and evidently under the spell
judicial discretion which presents a window of opportunity to of the event. What then? Is the statement now admissible
an analytical, opposing counsel. For example, he may argue as an exception to the hearsay rule? Not yet. But why?
and show that the facts disclose that the statement was made The statement is not yet admissible because we still do not
without the declarant exhibiting any sign of excitement or know the tenor and the content of' the statement! Not every
spontaneity, that the statement was made in a cool, relaxed statement made under the influence of the startling event
manner coupled with a calm facial expression. If so, then the is admissible even if it be spontaneous. This is the rule. It
guarantee of the statement’s reliability is lost. The statement is a rule that cannot be overlooked by any objecting counsel.
may no longer be admissible. The only spontaneous statement made under stress of excite-
3. What if the court, however, rules the statement to ment of the startling event that qualifies for admissibility is
have been made while under the influence of the startling one that relates to the circumstances of the event. In short-
event? What if, after the occurrence, the evidence shows the cut lingo, the statement must describe the event perceived.
declarant to be obviously still in a state of excitement and Suppose the declarant was said to have uttered when the
perhaps, shock? When this happens, the fight would no longer collision occurred: “My Lord, that one looks like my son’s ear!”
be on the ground of admissibility of the declaration. The The statement is not a description of the event. If it is not,
battle though has not yet been lost. The battleground has just it does not qualify as part of the res gestae. If it does not, it
shifted. To where? Answer: The matter of credibility! The court is not admissible as exception to the hearsay rule. See. 42 of
of course knows, as everyone does, that one does not have to Rule 130 requires that the statement be with respect to the
be a psychiatrist or a psychologist to know that perceptions, circumstances of the startling occurrence. (Bar 2005)
observations and statements are clouded by strong emotions. 5. A declaration by a deceased person concerning the
Argue that there is a reason to distrust a statement made circumstances of his death may not be considered a dying
under emotional stress. There may have been no desire to lie declaration if it cannot be established that he uttered his
on statement while conscious of his impending death but the
utterance of the victim made immediately after sustaining
injuries may be considered the ‘incident’ speaking through the
victim. While it may not qualify as a dying declaration, it may,
nonetheless, be admitted in evidence as part of the res gestae.
318 EVIDENCE
(The Bar Lectures Series)
A declaration made spontaneously after a
 startling occurrence is deemed as part of the res gestae when: CHAPTER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 319
(1) the principal act, the res gestae, is a startling occurrence; AND CHARACTER EVIDENCE
B. Exceptions to the Hearsay Rule
(2) the statements were made before the declarant had time
to contrive or devise a falsehood; and (3) the statements Suppose that a witness testifies on the stand for the
concern the occurrence in question and its immediately plaintiff in a collection case where defendant denies having
attending circumstances (See People v. Peña, 370 SCRA 639). borrowed P10,000 from the plaintiff. The debt is not evidenced
6. If there is no showing in the records that the victim by a promissory note because plaintiff claims that defendant
was under a consciousness of an impending death at the time had orally borrowed money from him in the past and had
of his declaration that the accused was the one who shot him, always paid. This time, he refuses to pay. The witness
the same is not admissible as a dying declaration but, because testifies that one year ago, he saw the plaintiff give money
it was made shortly after a startling occurrence and under the to the defendant. There is no hearsay problem at this point
influence thereof, it is, nonetheless, admissible as part of the because the witness is testifying to what he actually saw. He
res gestae Peo Ie u. fispina, 361 SCRA 701). has a personal knowledge of the transaction, i.e., the act of
the plaintiff handing money to the defendant. The act of the
B. Verbal acts (Bar 2011) plaintiff, however, taken in itself, has no legal significance
because it is an equivocal act. It is ambiguous. Is the money
1. The last sentence of Sec. 42 of Rule 130 defines a intended as a bribe? Is it a payment for a debt? Is it a gift? Or
verbal act as ‘statements accompanying an equivocal act ma- is it a loan extended by the plaintiff to the defendant? We do
terial to the issue, and giving it a legal significance.” A verbal not know. We still do not know what to make of’ that money
act presupposes a conduct that is equivocal or ambiguous, one
delivered by the plaintiff to the defendant so the attorney asks
which, in itself, does not signify anything when taken sepa- the witness:
rately. It only acquires a meaning, specifically what the rules
call a fegof significance, only because of the statements that Illustration:
accompany the act. It is the statement contemporaneous with
the act that identifies or indicates the character, purpose or Q: Mr. Witness, did you testify that you saw the
motive of the act. plaintiff give money to the defendant?
To be admissible under this category, the following A: I did, Sir.
requisites must be present:
Q: What, if any, did anybody say at the time the
(a) the principal act to be characterized must be money was handed over by the plaintiff to the
equivocal; defendant?
(b) the equivocal act must be material to the issue; As the plaintiff handed the money, he said to the
(c) the statement must accompany the equivocal defendant: “This is the P10,000 you told me you
act; and were borrowing from me.”
(d) the statement gives a legal significance to the Q: What did the defendant say, if any?
equivocal act (Talidano v. Falcom Maritime &: Allied
A: The defendant said, “Thank you. I’ll pay you
8eroices, Inc., ssa seia i79). after a year.”
Forget what the defendant said. Focus on what the plaintiff
said instead. What he said is an out-of-court statement. There
is no doubt about that. The statement is offered to explain
320 EVDENCE the conduct of the plaintiff. With his statement, the act of the
(The Bar Lectures Seriea)
plaintiff acquires a legal significance. The money is not intended as
a bribe, a gift or a payment of a debt. It is a loan by the plaintiff to the
defendant. CHAPTER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 321
AND CHARACTER EVIDENCE
Now, focus this time on the statement of the defendant. B. Exceptions to the Hearsay Rule
The act of receiving money in itself has no definite meaning or
significance. When, however, the defendant answered: “Thank the swinging of the bat may be ambiguous as to whether
you. I’ll pay you after a year,” the act of receiving the money or not it was swung with or without the intent to kill.
now acquires a legal significance. A contract of loan has just 'the utterance accompanying the act may explain the
been perfected. It is now evident, therefore, that the nature of the act. Thus, if the accused, while swinging
defendant is the debtor of the plaintiff for P10,000. He is a at the victim, said “Adios Amigo! See you in hell,” the
debtor because this is what the acts of the plaintiff and statement may help explain the purpose of the act of the
defendant point to, as explained by the utterances accused.
contemporaneous to such acts. Now, the witness is testifying to (c) Is the equivocal act material to the issue?
that out-of-court statement and it is offered to prove the truth Mate- riality is necessary for relevance. As earlier
of that statement, that the money handed over is a loan to the mentioned in a previous chapter, it is matter of logic and
defendant. It is hearsay, but it is an admissible hearsay as is absolutely necessary for the admissibility of evidence
part of the res gestae. and the refer- ence to it in the rules is a redundancy.
2. Objections to the admissibility of verbal acts depend (d) Does the statement accompany the equivocal
upon whether or not the proponent has established the act? The requirement that the statement accompany
foundations for admissibility. The objector has to consider the the act is explicit in Sec. 42 of Rule 130. This element
following questions:
is one distinction between a spontaneous statement and
(a) Is there an act that is equivocal or ambiguous? a verbal act. A spontaneous statement may be prior to,
If the act is clear, it needs no explanation and so there is simultaneous with, or subsequent to the startling event
no res gestae Lo speak of. The act of swinging a baseball or occurrence. This is not so in a verbal act. The statement
bat at the victim in a physical injuries case is not in the latter must ‘accompany’ the equivocal act which
equivocal and need not be explained by any statement to evidently means that it must be contemporaneous with
understand the nature of the act. The bat was swung to the act.
cause injuries to the victim.
(b) Will the statement accompanying the ambi- Entries in the course of business (Business Records Rule)
guous or equivocal act explain the act or give legal 1. This hearsay exception states:
significance to it? If it will not, then the statement is
not admissible. Thus, the statement, “I will hit you with “SEC. 43. Entries in the course of business. —
this” as he swung the bat at the victim, does not explain Entries made at, or near the time of the transactions to
the act in the physical injuries case. Because of the which they refer, by a person deceased, or unable to
testify, who was in a position to know the facts therein
nature of the case, the accompanying words will not add stated, may be received as prima facie evidence, if such
a new meaning to it. However, where the indictment person made the entries in his professional capacity or
is attempted homicide where intent to kill is an in the performance of duty and in the ordinary or regular
element, course of business or duty.”

2. The exception is commonly encountered in breach of

contract suits and suits for collection of a sum of money.
The plaintiff, let us say, is Technics Corporation. The
complaint alleges that it delivered 100 television sets to MS
322 EVIDENCE
(The Bar Lectures Series)
 Tronics Store, the defendant, and that the latter failed to pay CHAPTER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 323
for the sets delivered. Assume that the defendant filed an AND CHARACTER EVIDENCE
B. Exceptions to the Hearsay Rule
answer denying the plaintiffs allegations. The plaintiff now
wants to introduce a delivery receipt signed by the manager (e) The entries were made in the ordinary or
of the defendant acknowledging the receipt of the sets de- regular course of buSin.ess or duty (Patula v. People, 669
livered. The plaintiff also wants to introduce the company’s SCRA 135, 171, April 11, 2012).
accounting records prepared by a clerk who personally knows
of the fact of delivery. The witnesses are the delivery man and 5. It has been held that entries in the payroll, being
the clerk, all employees of the plaintiff. The witnesses would entries in tne ordinary course of business, enjoy the presump-
be testifying on the basis of their first-hand knowledge of the tion of regularity under Sec. 43 of Rule 130 of the Rules of
events that transpired. Since their perception and memory of Court (lsapio v. Undaloc Construction, 554 SICRA 148).
the events may be tested by cross-examination, our fact situ- 6. The Rules on Electronic Evidence expressly exempt
ation would not require an exception to the hearsay rule. But business records from the application of the hearsay rule
if the delivery man and the clerk are now dead and all that provided the mechanics of record-keeping of such records are
the plaintiff has are the delivery receipt and the shown by the testimony of the custodian or other qualified
accounting records showing defendant’s debt, the problem witnesses. The reliability of business records is, therefore,
starts. This exception allows the presentation of the delivery presumed (flee lsec. 1, Rule 8, Rules on Electronic Evidence).
receipt and accounting records even if the delivery man and The presumption, however, may be overcome by evidence
the clerk are no longer available to testify. of the untrustworthiness of the source of information or the
3. In our version of the exception, the necessity for the method or circumstances of the preparation, transmission or
admissibility of such evidence arises from the absence of the storage thereof(!Sec. 2, Rule 8, Rules on Electronic Evidence).
person who has personal knowledge of the facts. lie is absent
because he is dead, outside of the jurisdiction of the court or Declarations against interest
otherwise, unable to testify. 1. The rule on declaration against interest provides:
4. Before entries in the course of business could
be excepted from the hearsay rule, the concurrence of thee “SEC. 38. Declaration against interest. — The
declaration made by a person deceased or unable
following requisites must be shown:
to testify, against the interest of the declarant, if the
(a) The person who made the entry must be dead fact asserted in the declaration was at the time it was
or unable to testify; made so far contrary to declarant’s own interest, that
a reasonable man in his position would not have made
(b) The entries were made at or near the time of the declaration unless he believed it to be true, may be
the transactions to which they refer; received in evidence against himself or his successors
in interest and against third persons.”
(c) The entrant was in a position to know the facts
stated in the entries; 2. This is a well-established exception which finds con-
(d) The entries were made in his professional firmation in human nature and experience. People normally
capacity or in the performance of a duty, whether legal, speak freely and even with untruth when the statement is
contractual, moral, or religious; and in their interest, but are usually unwilling to speak falsely
against their interest.
Wigmore considers a declaration against interest as
also founded on necessity on account of the impossibility of
324 EVIDENCE obtaining other evidence from the same source, the declarant being
(The Bar Lectures Series)
unavailable in person to testify on the stand on account of death,
absence from the jurisdiction or serious illness (5 Wigmore on
Evidence, Sec. 1456). CHAPTER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 325
AND CHARACTER EVIDENCE
3. This exception refers to a declaration made by a per- B. Exceptions to the Hearsay Rule
son who, at the time his declaration is presented in evidence,
is already dead or unable to testify. This declaration must be interest but, in our jurisdiction, the declaration could possibly
one which, when made, was known to the declarant himself to be against one’s penal interest because if one admits to a
be against his interest, pecuniary or moral, and which would crime, he is also eivilly liable, a liability that is pecuniary (lsee
not have been made unless he believed it to be true. It is clear for further readings, People u. Toledo, 51 Phil. 826).
from the rule that it is not enough that a declaration against 8. Note that the declaration against interest made
interest was made. It is necessary that the declarant knew by the deceased, or by one unable to testify, is admissible
that the statement was against his interest and which he even against the declarant’s successors-in-interest or even
would not have made had it not been true. against third persons (lsec. 38, Rule 130, Rules of Court).
4. A statement by the debtor before he died that he
owes the creditor a sum of money, or an oral Declaration about pedigree
acknowledgment by the principal that he received the money 1. The exception as provided in See. 39 of Rule 130
previously entrusted to his agent, are clear declarations states:
against the interest of the person making the statement.
5. This exception will not apply where the declarant “SEC. 39. Act or r/ec/arafion about pec/igree.
is available as a witness. The declarant must be dead or is The act or declaration of a person deceased, or
unable to testify, in respect to the pedigree of another
unable to testify. Death is easy to explain. But what kind
person related to him by birth or marriage, may be
of unavailability, aside from death, is a sufficient reason to received in evidence where it occurred before the
justify the application of the exception? Being outside the controversy, and the relationship between the two
territorial jurisdiction of the country may be a good reason for persons is shown by evidence other than such act or
unavailability if his exact whereabouts abroad are unknown. declaration. The word "pedigree” includes relationship,
If known, his deposition may be taken and the exception will family genealogy, birth, marriage, death, the dates
not apply. Serious physical or mental impairments may be when and the places where these facts occurred, and
grounds for considering a person "unavailable." the names of the relatives. It embraces also facts of
family history intimately connected with pedigree.”
6. The declaration contemplated under Sec. 38 of Rule
130 is a declaration against interest. If the declaration is 2. To be admissible as an exception to the hearsay
favorable to the interest of the declarant, it is a mere self- rule, it must be shown that:
serving statement and does not fall as an exception to the
hearsay rule. (a) The declarant is dead, or unable to testify;
7. As a rule, the interest against which the declaration (b) The declarant is related by birth or marriage to
may have been made should be either a pecuniary or moral the person whose pedigree is in issue;
(c) The declaration was make before the controver-
sy; and
(d) The relationship between the two persons is
shown by evidence other than such act or declaration
(lsec. 39, Rule 130, Rules of Court).
326 EVIDENCE 3. The declaration of Jose, already dead, prior to his death
(The Bar Lectures Seriea)
and prior to any controversy, that Juan is his illegiti- mate son, is a
declaration about pedigree. Similarly, a state- ment from a mother
 while living, that her daughters, Maria and Petra, were CHAPTERVI- HEAhSAYEVIDENCE,OPINIONEVIDENCE 327
sired by the same father is admissible. ANDCHARACTEREVIDENCE
B. Exceptions to the Hearsay Rule
4. Be it noted that the declaration about pedigree may Gommon reputation
be received in evidence if the relationship is shown by evi-
dence other than the declaration (Sec. 39, Rule 130, Rules 1. The exception, as quoted, declares:
o[ Court).
“SEC. 41. Common reputation. — Common repu-
5. The word “pedigree” includes relationship, family tation existing previous to the controversy, respecting
genealogy, birth, marriage, death, the dates when and the facts of public or general interest more than thirty
places where these facts occurred, and the names of the years old, or respecting marriage or moral character,
relatives. It also embraces facts of family history may be given in evidence. Monuments and inscriptions
intimately connected with pedigree (lsec. 39, Rule 130, Rules in public places may be received as evidence of
of Court). common reputation.”

Family reputation or tradition regarding pedigree 2. Common reputation is admissible in evidence where
the reputation refers to a matter of public or general interest,
1. The exception provides:
or respecting marriage or moral character and said matter
“SEC. 40. Family reptifat7on or trad'/lion regarcfing is more than thirty (30) years old. The common reputation
pec//gree. — The reputation or tradition existing in a must likewise be one existing prior to the controversy.
family previous to the controversy, in respect to the This common reputation may, on the other hand, be
pedlgree of any one of its members, may be received established by monuments and inscriptions (Sec. 41, Rule
in evidence if the witness testifying thereon be also a
member of the family, either by consangulnity or affinity.
130, Rules of Court).
Entries in family bibles or other family books or charts, 3. Common reputation is hearsay, like any other
engraving on rings, family portraits and the like, may be exception to the hearsay rule, but is admissible because of
received as evidence of pedigree.” trustworthiness (Reg. v. Bedforshire, 4 E. & B. 535, 82 E.C.L.
535, 642).
2. This exception involves: (a) a statement by a mem-
ber of the family either by consanguinity or affinity; (b) the 4. While common reputation in the community may
statement is about the reputation or tradition of the family establish a matter of public or general interest, marriage
in respect to the pedigree of any member of the family; or moral character, it cannot establish pedigree. This is
and established by reputation in the family and not in the
(c) the reputation or tradition is one existing previous to the community (!See !Secs, 40 and 41, Rule 130, Rules o[Court).
controversy (Sec. 40, Rule 130, Rules of Court).
3. Entries in family bibles or other family books or Entries in official records
charts, engravings on rings, family portraits and the like, may 1. The exception, as stated, follows:
be received as evidence of pedigree aside from family tradition
or reputation (Sec. 40, Rule 130, Rules of Court). “SEC. 44. Entries in official record/s. — Entries In
official records made in the performance of his duty by
a public officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law, are
prima Macie evidence of the facts therein stated.”
328 EVDENCE 2. The requisites for the admissibility in evidence of entries
(TheBarLedumsSeñes)
in official records, as an exception to the hearsay rule, are:
 (a) The entry was made by a public officer or by CHAPTER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 329
another person specially enjoined by law to do so; AND CHARACTER EVIDENCE
B. Exceptions to the Hearsay Rule
(b) It was made by the public officer, or by such
Commercial lists and the like
other person in the performance of a duty specially
enjoined by law; and 1. 'I’he exception declares:
(c) The public officer or other person had “SEC. 45. Commercial lists and the like. —
sufficient knowledge of the facts by him or her stated, Evidence of statements of matters of interest to persons
which must have been acquired by the public officer or engaged in an occupation contained in a list, register,
other person personally or through official information periodical, or other published compilation is admissible
(Alvarez v. PI- COP Resources, 606 SICRA 444, as cited in as tending to prove the truth of any relevant matter so
stated if that compilation is published for use by
Malayan In- su,rance Co., Inc. v. Alberto, 664 ISCRA 791,
persons engaged in that occupation and is generally
799, February 1, 2012; lsabili u. Commission on Elections,
used and relied upon by them therein.”
670 SICRA 664, 670, April 24, 2012).
2. Certain commercial lists and reports of matters of
3. In a case, petitioner denies receiving the assessment interest to persons engaged in a particular occupation are
notice sent by respondent BIR. The respondent presented the admissible in evidence as exceptions to the hearsay rule,
BIR record book where the name of the taxpayer, the kind provided, they are made by persons engaged in that occupa-
of tax assessed, the registry receipt number and the date tion and are generally used and relied upon by them and those
of mailing were noted. The BIR records custodian also lists and reports are published (lsec. 45, Rule 130, Rules of
testified that she made the entries therein. Respondent Court).
offered the entry in the BIR record book and the testimony of
its record custodian as entries in official records in accordance Learned treatises
with Sec. 44, Rule 130 of the Rules of Court. 1. This self-explanatory and common exception states:
In this case, it was not stated in the transcript of
“SEC. 46. Learned treatises. — A published
stenographic notes how and from whom the witness obtained treatise, periodical or pamphlet on a subject of history,
the pertinent information. Moreover, the witness did not law, science, or art is admissible as tending to prove the
attest to the fact that the report was acquired from persons truth of a matter stated therein if the court takes judicial
under a legal duty to submit the same. Hence, Sec. 44 of Rule notice, or a witness expert in the subject testifies, that
130 finds no application in the present case. The evidence the writer of the statement in the treatise, periodical or
offered by respondent does not qualify as an exception to the pamph let is recognized in his profession or calling as
rule against hearsay evidence (Barcelon Roxas Slecurity, Inc. expert in the subject.”
u. Commissioner o[Internal Revenue, 498 SICRA 126). 2. History books and published findings of scientists
fall within this exception provided that an expert on the
subject testifies to the expertise of the writer or the court
takes judicial notice of such fact.
Testimony or deposition at a former proceeding
1. The exception pi ovides:
“SEC. 47. Testimony or deposition at a former
proceeding. — The testimony or depositi jgn of a witness
330 EVIDENCE deceased or unable to testify, given in a former case or
(The Bar Lectures Series) proceeding, judicial or administrative, involving the same
parties and subject matter, may be given in evidence
 against the adverse party who had the opportunity CHAPTER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 3S1
to cross-examine him.” AND CHARACTER EVIDENCE
C. Opinion Evidence
2. The testimony contemplated is one given in a Asi‹ie from the above requirements, the following must
former case or proceeding, judicial or administrative, likewise be complied with:
involving the same parties and subject matter. The testimony
(a) The proponent shall make known to the
is given by one who is now deceased or unable to testify. Said
adverse party the intention to offer such statement and
testimony may be given in evidence against the adverse party
its particulars to provide him a fair opportunity to object
provided the latter had the opportunity to cross-examine the before the hearsay statement may be admitted.
witness who gave the previous testimony (lsec. 47, Rule 130,
Rules of Court; See also Samalio v. Court of Appeals, 454 SCRA (b) If the child is available, the court shall, upon
motion of the adverse party, require the child to be
462, 3forc/t 31, 2005).
present at the presentation of the hearsay statement for
3. For Sec. 47 of Rule 130 to apply, the following cross-examination by the adverse party; and
requisites must be satisfied: (a) the witness is dead or unable (c) When the child is unavailable (as when the
to testify; (b) his testimony or deposition was given in a child is deceased, suffers from physical infirmity, mental
former case or proceeding, judicial or administrative, illness, loss of memory, or because the child will be
between the same parties or those representing the same exposed to severe psychological injury), the fact of such
interests; (c) the former case involved the same subject as circumstance must be proved by the proponent and the
that in the present case, although on different causes of hearsay testimony shall be admitted only if corroborated
action; (d) the issue testified to by the witness in the former by other admissible evidence (Sec. 28[aJ, Rule on
trial is the same issue involved in the present case; and (e) the Examination of a Child Witness).
adverse party had an opportunity to cross-examine the 3. In ruling on the admissibility of the hearsay state-
witness in the former case MoZificfic v. Calaunan, 512 SCRA ‹ ment, the court shall consider the (a) time, (b) content, and
642). (c) circumstances surrounding the making of the statement
which would provide sufficient indicia of reliability (lsec. 28[b],
Exception to the hearsay rule in child abuse cases Rule on Examination of a Child Witness).
1. Under Sec. 28 of the Rule on Examination of a Certain factors are also to be considered by the court
Child Witness, a hearsay statement of a child which under before deciding to admit the statement like the motive to lie,
the Rules of Court, is not admissible for being hearsay the general character of the declarant child, the number of
because the facts testified to are not within his personal per- sons who heard the statement, the spontaneity of the
knowledge, may be admitted in evidence in any criminal or making of the statement, the timing of the making of the
non-criminal proceeding. statement, the relationship between the declarant child and
the witness, the remoteness of the possibility of a faulty
2. The testimony is admissible provided the same recollection and other circumstances surrounding the
be offered in child abuse cases and the statement made by statement ésec. 28(b], Rule on Examination o[a Child Witness).
the child is one describing any act or attempts.d act o[child
abuse. C. Opinion Evidiince
The rules on opinion evidence provide:
“SEC. 48. General rule. — The opinion of a witness
is not admissible, except as indicated in the following
sections.
332 EVIDENCE SEC. 49. Opinion of expert w'itness. — The opinion of a
(The Bar Lecturer Series) witness on a matter requiring special knowledge, skill,
experience or training which he is shown to possess, may be
 received in evidence. CHAP’£ER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 333
AND CHARACTER EVIDENCE
SEC. 50. Opinion of ordinary witnesses. — The C. Opinion Evidence
opinion of a witness for which proper basis is given,
may be received in evidence regarding — to the courts in showing the facts which serve as a basis for his
(a) The identity of a person about whom he has criterion and the reasons upon which the logic of his conclusion
adequate knowledge; is founded (Dixon v. Tuazon, 557 S!CIIA 487).
(b) A handwriting with which he has sufficient Expert opinions are not ordinarily conclusive. When
familiarity; and faced with conflicting expert opinions, courts give weight
(c) The mental sanity of a person with whom he and credence to that which is more complete, thorough and
is sufficiently acquainted. scientific (Bacalso u. Padigos, 552 SICRA 185).
The witness may also testify on his impressions 3. For instance, in examining forged documents, the
of the emotion, behavior, condition or appearance of a testimonies of handwriting experts are concededly useful.
person.“ However, resort to these experts is not mandatory or indis-
pensable because a finding of forgery does not depend entirely
Admissibility of opinion evidence (Bar 2011) on their testimonies. Judges must also exercise independent
As a rule, the opinion of a witness is inadmissible judgment in determining the authenticity or genuineness of
(lsec. 48, Rule 130, Rules o[Court). This is because when a the signature in question, and not rely merely on the testimo-
witness testifies, a witness does so only with respect to facts nies of handwriting experts (Mendes u. Court of Appeals, 672
personally observed by him and it is for the court to draw SCRA 200, 209, June 13, 2012).
conclusions from the facts testified to. A handwriting expert is not indispensable to prove that
a signature was indeed a forgery. The opinion of handwriting
When opinion evidence is admissible; expert testimony (Bar experts are not necessarily binding upon the court, the
2011) expert’s function being to place before the court data upon
1. When the opinion is that of an expert, i.e., the opin- which the court can form its own opinion. While these experts
ion of a witness requiring special knowledge, skill, experience are helpful in the examination of forged documents because of
or training which he is shown to possess, it may be received in the technical procedure involved in analyzing them, resort to
evidence (lsec. 49, Rule 130, Rules of Court). them is not mandatory or indispensable to the examination or
comparison of handwriting (Lorzano v. Tabayag, 665 !SCRA
2. The court is not, however, bound by the opinion 38, 47, February 6, 2012).
of an expert such as a handwriting expert. Expert opinion
evidence is to be considered or weighed by the court, like any Opinion of an ordinary witness; when admissible (Bar 2005)
other testimony, in the light of its own general knowledge and
experience upon the subject of inquiry. The probative force of 1. When the opinion is that of a witness who is not an
the testimony of an expert does not lie in a mere statement of expert (ordinary witness), his testimony may be admitted in
his theory or opinion, but rather in the aid that he can render evidence provided that the proper basis of the opinion is given
and the subject of the opinion is any of the following matters:
(a) The identity of a person about whom the witness
has adequate knowledge;
(b) The handwriting of a person with which the
witness has sufficient familiarity;
334 EVIDENCE CHAPTER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 335
(The Bar Lectures Series) AND CHARACTER EVIDENCE
D. Character Evidence
 (c) The mental sanity of a peraon with whom he is
very bad man may have a righteous cause (People v. See, 382
sufficiently acquainted; and
SCRA 596).
(d) The impressions of the witness of the emotion,
behavior, condition or appearance of a person (Sec. 50, Evidence of bad moral character of the accused (Bar 2010)
Rule 130, Rules of Court).
1. In a criminal case, the prosecution cannot prove the
2. In any of the above, the opinion of an ordinary bad moral character of the accused in its evidence-in-chief.
witness in admissible. It can only do so in rebuttal (Spec. 51[a][2], Rule 130, Rules
of Court). This means that the prosecution may not offer
D. Character Evidence evidence of the character of the accused unless the accused
himself has offered evidence of his good moral character. The
Inadmissibility of character evidence
prosecution, therefore, must wait until the accused puts his
1. Character is the aggregate of the moral qualities character in issue during the proceedings. Where the accused
which belong to and distinguish an individual person; the proves his good moral character pertinent to the moral trait
general results of one’s distinguishing attributes. It refers to involved in the offense charged (Sec. 51[aJ[1J, Rule 130, Rules
what a man is and depends on the attributes he possesses. of Court), he opens the door to the prosecution to prove that
It is not the same as a man's reputation because the latter his moral character is, in fact, bad. Then and only then may
depends on attributes which others believe one to possess. the prosecution prove the bad moral character of the accused.
Character signifies reality while reputation signifies what
in accepted to be reality at present (BlacA’s Daur Dictionary, 'I’he relevant provision provides:
5th Ed., p. HU. In other words, while character is what the
person really is, reputation in what he is supposed to be in "SEC. 51. C//aracfer av/dence not genera//y admis-
sible,’ exceptions. —
accordance with what people say he in, and is dependent on
how people perceive him to be. (a) In Criminal Cases:
2. Character evidence is, as a rule, not admissible (1) xxx
(Sec. 51, Rule 130, Rules of Court). Character i8 generally (2) Unless in rebuttal, the prosecution
irrelevant in determining a controversy because the evidence may not prove his bad moral character which is
of a person’s character or trait is not admissible to prove that pertinent to the moral trait involved in the offense
a person acted in conformity with such character or trait in a charged” lied).
particular occasion (29 Am Jur 2d, Evidence, §363).
2. As mentioned, the prosecution in forbidden by Sec.
The rule in that the character or reputation of a party is
regarded as legally irrelevant in determining a controversy, 51(a)(2) of Rule 1S0 to initiate evidence of the bad moral
to that evidence relating thereto is not admissible. Ordinarily, character of the accused. It prevents the government from
if the issues in the case were allowed to be influenced by opening the doors towards the introduction of character
evidence of the character or reputation of the parties, the trial evidence of the accused. The rule that confines the right of
would be apt to have the a8pects Of a popularity contest the prosecution to prove the bad moral character of the
rather than a factual inquiry into the merits of the case. After accused only by way of rebuttal is a logical one. It prevents a
all, the bilsine8g of the court iB t0 try the case, and not the pronouncement of guilt on account of his being a “bad” man
man; and a and instead anchors a conviction on the basis of the sufficiency
336 EVIDENCE a crime. The rule likewise discourages the presentation of the so-
(The Bar Lectures Series)
called “propensity evidence,” i.e., evidence that one acts in
accordance with one’s character.
of evidence of his guilt. The rule also prevents the inference
3. The offering of evidence of good moral character is a
that, being a bad person, the accused is more likely to commit
privilege of the accused and the prosecution cannot even CHAPTER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 337
comment on his failure to produce such evidence. But once he AND CHARACTER EVIDENCE
raises the issue of his good character, the prosecution may, D. Character Evidence
in rebuttal, offer evidence of the defendant’s bad character
charged. When the accused presents proof of his good moral
(People v. See, 382 SCRA 596).
character, this strengthens the presumption of innocence
Evidence of good moral character of the accused (Bar 2010; and, where good character and reputation are established, an
2011) inference arises that the accused did not commit the crime
charged. This vie•a proceeds from the theory that a person
1. The accused may prove his good moral character of good character and high reputation is not likely to have
when pertinent to the moral trait involved in the offense committed the act charged against him.
charged(lsec. 51fa]f1), Rule 130, Rules of Court). The applicable
provision states: In contrast, the prosecution may not prove the bad mor-
al character of the accused except only in rebuttal and when
"SEC. 51. Character evidence not generally admis- such evidence is pertinent to the moral trait involved in
sible,- exceptions. — x x x the offense charged. This is intended to avoid unfair prejudice
(a) In Criminal Cases: to the accused who might otherwise be convicted not because
he is guilty but because he is a person of bad character. The
(1) The accused may prove his good moral of- fering of character evidence on his behalf is a privilege of
character which is pertinent to the moral trait
the accused, and the prosecution cannot comment on the failure
involved in the offense charged.”
of the accused to produce such evidence. Once the accused
2. While the prosecution is forbidden to present raises the issue of his good character, the prosecution
evidence of the bad moral character of the accused unless in may, in re- buttal, offer evidence of his bad character
rebuttal, the general rule against “propensity evidence” does (People u. See, 382 SCRA 596).
not apply to the accused who is allowed to of'fer evidence of his
good character. Not all aspects, however, of the character of Evidence of character of the offended party
the accused may be proven. Only those moral traits involved
1. The good or bad moral character of the offended
in the offense charged are provable. In doing so, an accused
part y may be proved by the accused if it tends to establish in
may advance more than one character trait as evidence so
long as each trait is germane to some issue in the case. This any reasonable degree the probability or improbability of the
theory is plain from a reading of Sec. 51(a) of Rule 130. offense charged (Sec. 51(aJ 3J, Rule 130, Rules of Court). Sec.
51(a)(3)of Rule 130 provides:
3. The accused may prove his good moral character
which is pertinent to the moral trait involved in the
offense
; “SEC. 51. x x x

(a) In Criminal Cases:

(1) xxx

(2)x x x
(3) The good or bad moral 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.”
338 EVIDENCE 2. It will be readily observed that the
(The Bar Lectures Seriea)
above provision pertains only to criminal
cases. Also, not every good or bad moral
 character of the offended party may be proved under this CHAPTER VI — HEARSAY EVIDENCE, OPINION EVIDENCE 339
provision but only those which would establish the AND CHARACTER EVIDENCE
probability or improbability of the offense charged. This means D. Character Evidence
that the character evidence must be limited to the traits and (!Sec. 14, Rule 132 and !Sec. 57{c2, Rule 130, Rules of Court). It
characteristics involved in the type of offense charged. is error for counsel to offer evidence of the good character of
In one rape case, where it was established that the his witness who is presented in court for the first time since
alleged victim was morally loose and apparently uncaring he could not have been previously impeached.
about her chastity, the Court found the conviction of the
accused doubt- ful (Civil lseruice Commission v. Belagan, 440
SCRA 578). — o0o —

Sexual abuse shield rule in child sexual abuse cases

The following evidence, however, is not admissible in
any criminal proceeding involving alleged child sexual abuse
under the “sexual abuse shield” rule:
(a) Evidence to prove that the alleged victim
engaged in other sexual behavior; and
(b) Evidence offered to prove the sexual predisposi-
tion of the alleged victim (lsee lsec. 30, Rule on Examina-
tion o[a Child Witness EA.M. No. 004-07-SC1).
Under this rule, the accused is not allowed to prove the
bad moral character of the of'fended party. However, evidence
of any of the above is admissible to prove that a person other
than the accused was the source of semen, injury or other
physical evidence.

Character evidence in civil cases

In civil cases, evidence of the moral character of a party
is admissible only when pertinent to the issue of character
involved in the case (lsec. 51 b1, Rule 130, Rules of Court).
Thus, evidence of a party’s intemperance may be admitted
when such is pertinent to the issues involved.

Evidence of good character of a witness

Evidence of the good character of a witness is not
admissible until such character has been impeached
CHAP’1’ER VII — OFFER OF EVIDENCE AND TRIAL OBJECTIONS 841
(RULE 132)

OFFER OF EVIDENCE AND

TRIAL OBJECTIONS
Chapter VII (Rule 132)
 The provisions relevant to this chapter are reproduced of the examination of a witness that the questions being
as follows: propounded are of the same class as those to which
objection has been made, whether such objection was
“SEC. 34. Offer o/' ey'ic/ence. — The court shall sustained or overruled, it shall not be necessary to
consider no evidence which has not been formally repeat the objection, it being sufficient for the adverse
offered. The purpose for which the evidence is offered party to record his continuing objection to such class of
must be specified. questions.
SEC. 35. When fo make o/?'er. — As regards the SEC. 38. Ruling. — The ruling of the court must be
testimony of a witness, the offer must be made at the given immediately after the objection is made, unless
time the witness is called to testify. the court desires to take a reasonable time to inform
Documentary and object evidence shall be offered itself on the question presented; but the ruling shall
after the presentation of a party’s testimonial evidence. always be made during the trial and at such time as will
Such offer shall be done orally unless allowed by the give the party against whom it is made an opportunity to
court to be done in writing. meet the situation presented by the ruling.
SEC. 36. Ob/ecfion. — Objection to evidence The reason for sustaining or overruling an
offered orally must be made immediately after the offer objection need not be stated. However, if the objection
is made. is based on two or more grounds, a ruling sustaining
the objection on one or scme of them must specify the
Objection to a question propounded in the course
ground or grounds relied upon.
of the oral examination of a witness shall be made as
soon as the grounds therefor shall become reasonably SEC. 39. Striking oof an answer. — Should a
apparent. witness answer the question before the adverse party
An offer of evidence in writing shall be objected had the opportunity to voice fully its objection to the
to within three (3) days after notice of the offer unless same, and such objection is found to be meritorious, the
a different period is allowed by the court. court shall sustain the objection and order the answer
given to be stricken off the record.
In any case, the grounds for the objections must
be specified. On proper motion, the court may also order
the striking out of answers which are incompetent,
SEC. 37. When repetition o/°ob/ecf7on onnecersa/y. irrelevant, or otherwise improper.
— When it becomes reasonably apparent In the course
SEC. 40. Tender o/' excluded ev'ic/ence. — If docu-
340 ments or things offered in evidence are excluded by
the court, the offeror may have the sam° attached to
or made part of the record. If the evidence excluded is
oral, the offeror may state for the record the name and
other personal circumstances of the witness and the
substance of the proposed testimony.”

Importance of offer of evidence (Bar 2003; 2012)

1. An evidence must be formally offered. Under the
Rules of Court, the court shall consider no evidence which has
not been formally offered (lsec. 34, Rule 132, Rules of Court).
342 EVIDENCE and strictly upon the evidence offered by the parties (Aludos u.
(The Bar Lecturer Series)
lsuerte, 673 ISCRA 413, 425, June 18, 2012).
2. The offer of evidence is necessary because it is the Thus, in Dixon u. Court of Tax A Reals, 553 ISCRA 111, it
duty of the court to rest its findings of fact and judgment only was ruled that no evidentiary value can be given the pieces of
evidence submitted by the BIR, since they were not formally
offered. This is the rule under Sec. 34 of Rule 132 of the Rules CHAPTERWI- OFFEROFEVlDENCEANDTRIALOBJECTIONS 343
of Court. (RULE132)
3. In Espouses Tan v. Republic, 573 ISCRA 89, the Court
sustained the Court of Appeals which refused to consider a the marking of the evidence as an exhibit, while the
document submitted for the first time by the petitioners when second is done only when the party rests its case (Dixon v.
the same was attached to their motion for reconsideration Court of Tax Appeals, 553 ISCRA 111 citing Vda. de Oliate v.
of the decision of the Court of Appeals. In sustaining the Court of Appeals, 250 !SCRA 283, and Interpatific Transit, Inc.
appellate court, the Supreme Court reiterated the rule in v. Auiles, 186 SCRA 385).
Sec. 34 of Rule 132 that ”the court shall consider no evidence
which haa not been formally offered.” The document ahould When formal offer of evidence is not required
have been offered during the trial in the Regional Trial 1. A formal offer of evidence is not required in certain
Court. cases, thus:
Marking of a document; not a formal offer (a) In a summary proceeding, because it is a pro-
ceeding where there is no full-blown trial;
1. A document, or any article for that matter, is not
evidence when it is simply marked for identification; it (b) Documents judicially admitted or taken judicial
must be formally offered, and the opposing counsel given an notice of;
opportunity to object to it or cross-examine the witness called (c) Documents, affidavits and depositions used in
upon to prove or identify it. A formal offer ia necessary ainee rendering a summary judgment;
judges are required to base their findings of fact and judgment
(d) Documents or affidavits used in deciding quasi-
only, and strictly, upon the evidence offered by the parties at
judicial or administrative cases (Bantolino v. Coca-Cola
the trial. The appellate court will have difficulty reviewing
Bottlers, Inc., 403 !SCRA 699); or
documents not previously scrutinized by the court below. The
pertinent provisions of the Revised Rules of Court, on the (e) Lost objects previously marked, identified,
inclusion on appeal of documentary evidence or exhibits in the described in the record, and testified to by witnesses who
records, cannot be stretched as to include such pleadings or had been subjects of cross-examination in respect to said
documents not offered at the hearing of the case (Candido v. objects (Tabuena u. Court o[ Appeals, 196 SCRA 650;
Court of Appeals, 263 SCRA 78). People v. Napat-a, 179 SCRA 403). (Bar 2012)
2. There is a distinction between identification of a 2. There were instances, however, when the Court
documentary evidence and its formal offer as an exhibit. The allowed the admission of evidence not formally offered as in
first i8 done in the course of the trial and is accompanied by People v. Napat-a, supra, citing People u. Mate, 103 ISCRA 484,
where evidence not formally offered was held to be allowable
provided certain requirements are present:
(a) The evidence must have been duly identified by
testimony duly recorded; and
(b) The same must have been incorporated in the
records of the case (!See also Medina u. People, G.R. No.
182648, June 17, 2015).
3. In People v. Libnao, 395 ISCRA 407, evidence of the
prosecution in a crime involving a violation of the Dangerous
344 EWDENCE Drugs Act were considered by the Court even without their
(The Bar Lectures Series)
having been formally offered because the evidence were prop-
erly identified by testimony duly recorded and incorporated in
the records of the case. The counsel for the accused also cross- CHAPTER VII — OFFER OF EVIDENCE AND 'PRIAL OBJECTIONS 345
examined the witnesses testifying on the evidence. (RULE 132)

When evidence is offered by petitioner but not by respondent the evidence at this time should not be construed as a waiver
In one case, certain delivery receipts and sales invoices of the objection to the evidence.
did not form part of respondent’s formal offer of evidence but 3. A relatively well-known criminal case, hlacasiray v.
the same formed part of petitioner’s formal offer of evidence. People, 291 S!CRA 154, is instructive as to when an objection
Petitioner insisted that since the said documents did not form to a documentary evidence need be made. It, once and for all,
part of the evidence formally offered by respondent, the trial reinforces what has already been made clear by the Rules of
court and the Court of Appeals had no legal basis to Lourt — that objections to a documentary evidence shall be
award interest and damages in his favor. The Supreme made after it is offered and the offer of such evidence shall be
Court held that no error could be ascribed to the lower made after the presentation of a party’s testimonial evidence.
courts because the delivery receipts and sales invoices
were, nevertheless, formally offered by petitioner in The case involves a certain Macasiray and two others
evidence. Hence, the documents may be considered by who were accused of murder. During the course of the trial,
the courts below (Titan Construction Company u. Uni-Field the prosecution introduced, among others, two documents.
Enterprises, Inc., 517 SCRA 180). One was an extrajudicial confession by one of the accused
admitting his participation in the crime and implicating the
When evidence is to be offered others. The other document was the transcript of stenographic
1. As to when the offer of evidence is made depends notes taken during the preliminary investigation of the case.
upon the nature of the evidence. At the time the documents were introduced for marking and
identification, the accused interposed no objection to the
(a) As regards the testimony of the witness, the evidence. When they were, however, offered at the close of the
offer is to be made at the time the witness is called to prosecution’s presentation of evidence, the accused objected
testify (Sec. 35, Rule 132, Rules of Court).
to the admissibility of the documents on the ground that the
(b) As regards documentary and object evidence, documents were made without the assistance of counsel.
they are to be offered after the presentation of a party’s The trial court sustained the objections and declared the
testimonial evidence. The offer is orally made unless documents inadmissible.
allowed by the court to be in writing (Sec. 35, Rule 132,
Rules of Court). However, the Court of Appeals declared the two docu-
ments admissible and ordered their admission by the trial
2. The provisions of the Rules of Court, as stated court. In so holding, the Court of Appeals considered th.e fail-
above, give a simple rule as to when an evidence is to be ure of the defense to object to the documents when they were
offered. Hence, the presentation of a documentary or object introduced for marking and identification as a waiver of their
evidence for marking and identification during the course objection.
of the trial is not the offer contemplated in the Rules. Failure
to object to In reversing the Court of Appea‘ls and reinstating the
order of the trial court excluding the documents, the Supreme
Court ruled that a party is not deemed to have waived
objection to admissibility of documents by his failure to
object to the same when they were marked, identified and
then introduced during the trial. This is because objection
to documentary
346 EVIDENCE evidence must be made at the time it is formally offered and not
(The Bar Lecturer Seriea)
earlier.
 4. Cases prior to Macasiray had similarly held that CHAPTER VII — OFFER OF EVIDENCE AND TRIAL OBJECTIONS 347
an objection to evidence must be made after the evidence is (RULE 132)
formally offered and that a documentary evidence is offered
after all the witnesses of the party making the offer have (b) To protect the record, i.e., to present the issue of
testified. inadmissibility of the offered evidence in a way that if the
‘Contrary to the ruling of the appellate court, petitioners trial court rules erroneously, the error can be relied upon
did not waive objection to admissibility of the said documents as a ground for a future appeal;
by their failure to object when these were marked, identified
and then introduced during the trial. That was not the proper (c) To protect a witness from being embarrassed on
time to make the objection x x x. A document or any article the stand or from being harassed by the adverse
for that matter, is not evidence when it is simply marked for counsel;
identification — it must be formally offered”(Candido v. Court (d) To expose the adversary’s unfair tactics like his
0 APPeals, 253 SCRA 78; People v. Santito, Jr., 201 SCRA 87). consistently asking obviously leading questions;
It is when the accused fails to object to the admissibility (e) To give the trial court an opportunity to correct
of certain items during their formal offer, that he is deemed its own errors and, a* the same time, warn the court that
to have waived his right against their admissibility (People v. a ruling adverse to the objector may supply a reason to
Diam, 271 SCRA 504). invoke a higher court’s appellate jurisdiction; and
How an offer of evidence is made (D To avoid a waiver of the inadmissibility of an
otherwise inadmissible evidence.
1. When a party makes a formal offer of his evidence,
he must state the nature or substance of the evidence, and General ancl specific objections (Bar 1997)
the specific purpose for which the evidence is offered (Sec. 34,
Rule 132, Rules of Court). (Bar 1983) 1. An objection must point out the specific ground of
the objection and, if it does not do so, no error is committed in
2, The court shall consider the evidence solely for the
overrul’ing it (75 Am Jur 2d, 2nd Ed., §254-256).
purpose for which it is offered, not for any other purpose
(lSpouEes Ragudo u. Eabella Estate Tenants Association, Inc., 2. The last paragraph of Sec. 36, Rule 132, provides:
466 SCRA J36). “... the grounds for the objections must be specified.” The
objection, therefore, “must be specific.” Hence, an objector
Objections; purposes of objections (Bar 2012) must be explicit as to the legal ground he invokes. He cannot
Objections may be made for any of the following purposes: simply manifest that he is interposing an objection. He has
to precisely state the exclusionary rule that would justify his
(a) To keep out inadmissible evidence that would opposition to the proffered evidence.
cause harm to a client’s cause. The rules on evidence are
not self-operating and, hence, must be invoked by way of 3. The following examples are considered as general
an objection; objections:
(a) “Objection, The evidence .is incompetent!”
b) “Objection! Inadmissible!”
(c) “Objection: Incompetent, Irrelevant, and Im-
material!”
(d) “Objection: Improper!”
348 EVIDENCE
(The Bar Lectures Series) C TER'flI- OFFER OFEVIDENCEANDTRIAL OBJECTIONS 349
(RULEl32)
 They are called “general” for an obvious reason. They 7. The rule is that a specific objection is always
do not clearly indicate to the judge the ground upon which preferred over a general objection. This is not to say, however,
the objections are predicated. They assign no grounds to that a general objection can never be allowed. The rule on
the objection. A general objection, in including everything, specificity is dictated largely by the need to allow the court
actually specifies nothing. to inte11igen /.ly rule on the objection and give the other party
4. An objection that evidence is “incompetent,” irre- an opportunity to withdraw the evidence or correct an error
levant," or “immaterial” is ordinarily regarded in most in his presentation. The rule, however, does not impose a
jurisdictions, in the absence of any statutory provision to the general or an absolute ban on general objections. There is
contrary, as not sufficiently definite to present any question no compelling need to specify the ground, “if the ground for
for review (Mills v. Texas Compensation Ins. Co., 75 Am Jur exclusion should have been obvious to the judge or to counsel”
29 256, citing Mills v. Texas Compensation Ins. Co., CA 5 Tex (Floy u. Hibbard, 227 Iowa 149, 287 N.W. 829). There are cases
220 F2nd 942; People v. Wrt 26 Cal App 2d J97, 79 P2d where the incompetency of the evidence is so palpable that a
102), because it conveys neither to the court nor counsel any mere general objection is deemed sufficient, and where the
specific point of objection 75 km Our 2d 256). portion of the evidence objected to is clearly pointed out and
its illegality is apparent o.n its face, then the objection must
5. Rule 132 does not tell us how specific an objection be allowed (75 Am Jur 257 citing Scott v. Times-Mirror Co.,
must be. Practical reasons, however, tell us that the objection 181 Cal 345, 184 P 672, 12 ALR 1007; Spar[ u. United States,
must be specific enough to adequately inform the court the 150 US 51, 39 L Ed 343, 15 S. Ct. 273).
rule on evidence or of substantive law that authorizes the
exclusion of the evidence. Objections like, “question calls Formal and substantive objections (Bar 1997)
for
a hearsay answer” — ‘witness cannot testify on a privileged 1. Objections may be formal or substantive. A [ormal
communication” — “the question calls for a conclusion” — objection is one directed against the alleged defect in the for-
‘f/te question is beyond the scope of the direct examination” mutation of the question. Examples: ambiguous questions;
“impeachment is improper‘ — are specific enough for anyone leading and misleading questions; repetitious questions; mul-
to know the basis of the objection. , tiple questions; argumentativ e questions.
6. While an objection that the evidence is “incompe- 2. A objection is one made and directed
Sttbsta.ntive
tent, irrelevant and immaterial” ia, by common wisdom, against the very nature of the evidence, i.e., it is inadmissible
concededly a general objection, some writers hold that an either because it is irrelevant or incompetent or both.
objection that the evidence is “irrelevant” may, at times, Examples: parol; not the best evidence; hearsay; privileged
not be general. This kind of objection states “a distinct and communication; not authenticated; opinion; res inter altos
substantial ground for exclusion” (M. Graham, Handbook o[
Federal Evidence, 13 n. 16, 1981). It is submitted that the
opinion is worth considering. Necessarily, when the evidence
Objections must be timely
clearly is one which does not prove a fact in issue, with no
probative value and with no relationship to the fact in issue, 1. Aside from the requiremen t that an objection must
state the specific ground relied upon, it is also necessary that
or inadmissible for any purpose and no other objection is
possible, there is no other ground for the objection except to the objection be timely.
say that it is “irrelevant.” In such a situation, this should be When a party desires the court
deemed as substantially the equivalent of a specific objection. to reject the evidence
offered, he must so state in the form of objection. Without
360 EWDENCE tTheBmLe
dum»geñe
 s)
CHAPTER VII — OFFER OF EVIDENCE AND TRIAL OBJECTIONS 351
(RULE 132)
such objection, he cannot raise the question for the first time
on appeal (See People u. Gabuya, G.A. to. 195245, February By objecting as soon as the question was completed, coun-
16, 2015; People v. Diaz, G.R. No.197818, February 25, 2015). sel has succeeded in preventing the witness, Mr. Santos, from
2. In order to be timely, therefore, the objection must introducing a hearsay answer into the records of the case. The
be made at the earliest opportunity (88 C.J.H. 236). What the nature of the question manifestly required a hearsay answer,
earliest opportunity is depends upon the manner the evidence and so the ground for the objection became apparent as soon
is offered. as the question was asked. In this situation, an objection made
after the witness has answered would come too late.
(a) If the evidence is offered orally, objection to the
evidence must be made immediately after the offer is 5. There are witnesses who are quick to answer
made (Sec. 36, par. 1, Rule 132, Rules o[Court). even before the question is over. Before the adverse
counsel can react and object to the question, the answer
(b) An objection to a question propounded in
comes in rapid- fire fashion preventing counsel from inserting
the course of the oral examination of the witness
himself neatly between the question and the answer. What does
shall be made as soon as the grounds therefor shall
counsel do in this case? Counsel must, nevertheless, object, state
become reasonably apparent (lsec. 36, par. 2, Rule
his reasons, and inove to strike out the answer. This is a
132, Rules o[
technique which the lawyer avails of when he does not have
the opportunity to object before the witness responds. Should
(c) An offer of evidence in writing shall be objected the witness persist in giving lightning-quick responses,
to within three (3) days after notice of the offer unless a counsel should request the judge to direct the witness to
different period is allowed by the court (Sec. 36, par. 3, allow opposing counsel to object prior to his answer.
Rule 132, Rules of Court).
The provisions of the Rules of Court are explicit: “Should
3. The rules, therefore, make the offer of evidence the a witness answer the question before the adverse party had
frame of reference for a timely objection. Hence, it is to be the opportunity to voice fully its objection to the same, and
assumed that an objection to the evidence before it iS offered such objection is found to be meritorious, the court shall
is premature and no adverse inference may be had against a sustain the objection and order the answer given to be
party who does not object to the evidence before it is offered. stricken off the record” (Sec. 39, Rule 132, Ruies of Court).
4. Recall that the rule requires that an objection to
a question in the course of an oral examination should be made Striking out an answer or testimony
as soon as the ground for the objection becomes apparent. 1. A motion to strike may be availed of in the following
Consider this example where the question is asked to prove instances:
the truth of the statement of an outside declarant:
(a) when the answer is premature;
Question: Mr. Santos, can you tell this court what
Mr. Cruz told you about the truth of how (b) when the answer of the witness is irrelevant,
the collision happened? incompetent or otherwise improper;
(c) when the answer is unresponsive;
Counsel: Objection, Your Honor. Question calls for a
hearsay answer! (d) when the witness becomes unavailable for cross-
examination through no fault of the cross-examining
Court: Sustained. party; or
352 EVIDENCE (e) when the testimony was
(The Bar Lectures Series)
allowed conditionally and the
 condition for its admissibility was not fulfilled. CHAP'FER VII — OFFER OF EVIDENCE AND TRIAL OBJECTIONS 353
(RULE 132)
2. Sometimes, an apparently unobjectionable question
brings out an objectionable and inadmissible response. But
the infirmity of the response becomes apparent only after it disqualify the witness from testifying on the
details of the incident. It is obvious that he is
is completed. If the answer is damaging, then relief may
incompetent for lack of personal knowledge.
be obtained by a motion to strike.
3. Consider this example where the grounds for 4. An objection to a witness’ disqualification in general
objection are not manifested by the question. The witness is must be made as soon as he is called to the stand and before
examined by the prosecutor. The case is one for homicide and his examination begins, provided his disqualification is then
the information says the crime was committed in Town A. known (Wigmore, Evidence, Vol. I, p. 323). A husband accused
The witness is presented to testify that he knows that it was of robbery, for instance, can object the moment his wife is
called by the prosecution to testify against him without his
indeed the accused who killed the victim.
consent on the basis of Sec. 22 or Sec. 24(a) of Rule 130.
Q: Do you know the victim?
Waiver of objections; belated objections (Bar 2004)
A: Yes, Sir.
1. I is a rule of evidence that any objection against
Q: Do you also know the accused?
the admission of any piece of evidence must be made at
A I do, Sir. the proper time, and that, if not so made, it will be
(A few more questions are asked) understood to have been waived. The proper time to make a
protest or an objection is when, from the question addressed
Where were you on the date and time when to the witness, or from the answer thereto, or from
the killing of the victim happened? (There is no presentation of the proof, the inadmissibility of the evidence
parent impropriet y in this question.) is, or may be, inferred (People u. Del Rosario, 642 !SCRA 625,
A: I was in Town B, Sir. (Opposing counsel does 635, February 9, 2011).
not have to react immediately to the answer The term “waiver” implies the existence of a right, claim,
because counsel should allow the witness’ lack privilege or something one is entitled to. It is, by its nature, a
of personal knowledge to have an impact on the unilateral act. It need not, however, be a positive act. A waiver
listener). may result from failure to perform an act. When the claim,
How do you know it was the accused who killed right, or privilege is abandoned, repudiated, renounced or not
the victim? asserted, there is a waiver.

A witness to the killing told me a day after Applied to objections, there is a waiver when there is
the incident. (The infirmity of the question is failure to point out some defect, irregularity or wrong in the
now very apparent.) admission or exclusion of evidence. Such failure may take
various forms and may either be expressed or implied. “A
Opposing Counsel: I object, your Honor! party may by his acts or omissions, waive or be estopped
Hearsay! I move to strike out the answer and to make objections to the admission or exclusion of the evidence.
Such waiver or estoppel may arise from failure to object ...
from acts done or omitted before the evidence is offered, as
by failure to object to previous similar evidence ... or from
some affirmative act done after the ruling on the evidence”
(88 C.I.!S., 229?.
354 EVIDENCE 2. A failure to assert an objection
(The Bar Lecturer Seriea)
promptly and specifically is a
 waiver(McCormick, Evidence, 3rd Ed., p. 141). Unless a timely CHAPTER VII — OPFER OF'' EVIDENCE AND TRIAL OBJECTIONS 355
and sufficient objection is made to an evidence introduced, (RULE 132)
the reviewing court will not ordinarily consider the
question of the propriety of the admission of the evidence (75 involves no admission that the evidence possesses the weight
Am Our 2d, 3rd Ed., p. 252). It will not be considered on attributed to it by the offering party.
appeal because there is deemed to be a waiver.
2. A waiver should not be construed as an admission
Failure to object to an offer of evidence is a waiver of the that the evidence is credible. It does not also mean that
objection. For instance, even assuming ex grofio argumenti the non-objecting party waives his right to present
that certain documents are inadmissible for being hearsay, controverting evidence. It only involves waiver of objection to
the same may be admitted on account of failure to object two matters, namely, the relevance and the competence of
thereto (Manliclic v. Calaunan, 512 SCRA 642; People v. Martin, the evidence. Why is this so? Because these are the
543 S!CRA 143). components of admissibility and this is what Sec. 3, Rule
3. In one case, no objection was made to the testimony 128 of the Rules of Court tells us. The pertinent provision
of the adverse witness from the time the testimony was reads:
offered and up to the time the direct examination was
conducted. Any subsequent attempts to have the testimony “SEC. 3. Admissibility of ev/r/ence. — Evidence is
of the witness excluded for being hearsay, held the Court, admissible when it is relevant to the issue and is not
excluded by the law or these rules.”
have no grounds to stand on but while the testimony is
admissible, it does not necessarily follow that the same
should be given weight. Admissibility of evidence should not for example, a failure to object would involve a waiver
of objections “that the evidence introduced is not the best
be equated with weight of evidence Ba ani v. People, 530
evidence, that it is hearsay, that there is a variance between
SCRA 84).
the evidence and pleadings ...” (88 C.I.!S. 231), or that the
In another case, counsel was deemed to have waived his witness is disqualified by reason of marriage or filial relation.
objection in failing to object to a hearsay testimony which has Again, it would be helpful to nag ourselves with the reminder
become admissible because of the failure to object (People v. that the lack Of objection merely makes an incompetent
Martin, 543 SCRA 143). evidence admissible.
4. Where a continuing objection had been interposed The Court once held: “... admissibility of evidence should
on prohibited testimony, the objection is deemed waived not be equated with weight of evidence” (People u. Valero,
where the objecting counsel cross-examined the witness on 112
the very matters subject of the prohibition (Abraham u. !SCRA 661; De let Torre v. Court o[Appeals, 294 ISCRA 196).
Kasten, 11d Phil. 239).
3. The rule of waiver by failure to object applies also
Extent of waiver for failure to object to the admission of documentary evidence. Failure to object
1. When an objection to evidence is deemed waived, waives an objection that there was an irregularity in the
what exactly does the non-objecting party waive? Answer: He taking of an affidavit or deposition, that the document is not
waives objections to its admissibility (88 C.I.IS. 230). In plain what it purports to be on its face, or that it is not relevant.
language, the evidence becomes admissible but the waiver Introducing a note in evidence without objection dispenses
with the necessity of proving the signatures on the note, or of
its execution (88 C.I.!S. 234).
4. The admissibility of the hearsay evidence, when
not objected to, .hould not, in any case, be confused with the
credibility or the weight of the admitted evidence. The
absence
 356 EVIDENCE CHAPTER VII — OFFER OF EVIDENCE AND TRIAL OBJECTIONS 357
(The Bar Lecturer Series) (RULE 132)

of an objection makes the hearsay evidence admissible because of the trial, no definitive ruling on the objection was made
it has assumed the character of an evidence but, other than even if several objections have been repeatedly made.
becoming evidence, no special characteristic is conferred upon
it by the waiver. Its inherent nature as wanting in the indicia The Supreme Court, speaking through Justice More-
of trustworthiness required of a credible evidence remains. land, held that the words, “the objection will be taken into
consideration,” is prejudicial to the interests of a litigant
Thus, on many occasions, the Supreme Court has consistently
ruled that “hearsay evidence whether objected to or not has since it deprives the party against whom the ruling was made
no probative value” (People v. Nebreja, 203 ISCRA 45), unless an opportunity to meet the situation presented by the ruling.
the proponent can show that it falls within the exception The Court considered the act of the trial court as reversible
error having resulted in serious prejudice to the substantial
to the hearsay rule (People v. Villaviray, 262 SCRA 13).
rights of the objecting party.
Although hearsay evidence may be admitted without
objection by the adverse party’s counsel, it is, nonetheless, 3. If the court fails to rule on the objection, the
without probative value. same should be brought to the attention of the court.
Another case that could aptly show an improper ruling,
Rulings on objections although not as well-known but is likewise as illustrative as
Lopez, is People v.
1. The ruling of the court must be given !Singh (45 Phil. 676). Unlike Lopez which is a civil case, lsingh
immediately after the objection is made except when the is a criminal case.
court desires to take a reasonable time to inform itself on
the question presented. However, the court must give its Here, Singh was alleged to have extrajudicially confessed
ruling during the trial and at such time as will give a party to a friend the killing of the victim. Later, that friend became
an opportunity to meet the situation presented by the ruling a prosecution witness and testified as to what Singh told him.
(Sec. 38, Rule 132, Rules of Court). Singh moved to strike out the testimony on the ground of the
absence of evidence that the alleged confession was made
2. As early as Lopez v. Valdez (32 Phil. 044), the freely and voluntarily. As in Lopez, the court in Singh did
Court has bewailed the erroneous manner by which courts not rule on the objection and merely took the motion “under
have ruled on an objection. Here, counsel for the advisement.” In deciding the case against Singh, the objected
defendant objected to certain questions propounded by testimony was taken “into consideration.” Upon Singh’s
counsel for the plaintiff. The questions were designed to elicit conviction, an appeal was made and one of the assigned errors
testimony that would prove the contents of certain documents of the trial court was its failure to rule on the motion to
without laying a proper foundation for the questions. Of strike. Significantly, the Supreme Court ruled: “If as a result
course, there was a valid ground to object because the of the failure of the trial court to promptly rule upon a
examining counsel was offering secondary evidence without motion to strike a confession from the record, the accused
first establishing the existence, due execution and eventual has been deprived of the opportunity to present evidence in
rebuttal of such confession, that fact should be brought to the
loss or destruction of the originals.
attention of the trial court through the appropriate motions.”
The trial court, in ruling on the objection merely in
essence, said that the objection “will be taken into 4. Words like “submitted” or “the objections are noted”
are, by common reason, not appropriate rulings and neither
consideration.” The court, nevertheless, allowed the witnesses
sustains or overrules the objection. There is no need to
to testify over the objection ofthe counsel for the defendant. stretch the rules of logic to deduce a ruling that the evidence
Until the termination is “admit.red [or whatever the y may be worth” or that the
358 EVIDENCE
(The Bar Lecturer Series)
“evidence is admitted subject to the objections” exe not rulings CHAPTER VII — OFFER OF EVIDENCE AND TRIAL OBJECTIONS 359
on the admissibility or inadmissibility of the evidence. (RULE 132)

5. When a counsel asks a question and the other

examined, that he is asked questions which are of the same
objects, the court rules on the objection by either sustaining
class as those to which an objection has already been made,
or overruling the objection.
whether such objection was sustained or overruled. Instead
Let us assume the judge rules, “Sustained.” What of repeating the objection, it is sufficient for the objection
does this ruling mean? The answer in not difficult to to be recorded as a ’continuing objection’ to such class of
understand. When an objection to a question is sustained, objectionable questions (Dec. 37, Rule 132, Rules of Court).
the judge considers the question as improper and the Thus, when questions calling for a hearsay answer are
witness will not be allowed to answer the question. This repetitiously asked by the adverse counsel, the recording of a
means the exclusion of a testimonial evidence. continuing objection to such questions would be in order after
When the objection is overruled, this means that for the an initial objection had already been made.
court, the question is proper and the witness will be allowed
to answer. Tender of excluded evidence (offer of proof}
6. Let us suppose that our fact pattern involves an 1. Assume that you have called your witness to the
action for breach of contract. The plaintiff wants to prove the stand. He takes his oath and proceeds to testify. You are
contents of the agreement through an offer of a photocopy of certain your witness will pull through. He is sharp and
the same. Without laying the basis for the admissibility of responsive. His demeanor projects sincerity. Everything is
the copy, counsel seeks to of'fer the copy in evidence. Let us going on as planned. Then, from the right end of the table
assume that the other counsel objects and that the objection screams the opposing counsel, “Objection, Your Honor!” The
is sustained. What is the significance of the court’s sustaining objection comes unexpectedly. Before you could say a word the
of the objection? This means the court considers the document judge rules, “Sustained!” The ruling feels like a laser-guided
inadmissible because it is incompetent. In our example, the
missile aimed straight at the heart of your client’s case. You
incompetence is based on the “best evidence” rule which
spring from your chair and move to reconsider the ruling.
requires the other of the original document when the subject of
inquiry is the contents of a document (Sec. 3, Rule 130, Rules “Motion denied,” the judge again rules.
of Court). You did not prepare for this scenario. You thought
everything has been planned. You came to court with an
7. The ruling of the court sustaining or overruling the
armload of copies of the latest jurisprudence on your case,
objection need not be stated except if the objection is based on
two or more grounds. In such a case, a ruling sustaining the bound and carefully tabbed, to reveal to the court the gems of
objection must specify the ground or grounds relied upon (lsec. wisdom you will hurl against the “enemy” seated at the other
3B, Rule 132, Rules of Court). end of the table. Your supposedly well-oiled examination is
now sputtering like a badly-tuned engine. Your witness has
Repetition of objections been stopped r’l§ ht on his tracks. But you are not
rattled. Instead, you are seething with anger. You want to
It shall not be necessary to repeat an objection when kick the table in front of you. You cannot get a critical
it becomes reasonably apparent, while the witness is being testimony heard by the judge who just declared with finality
that he refuses to hear from your witness. You are certain the
judge is in error. You are determined to turn it around in case
you cannot save your client from the mistake of the trial court.
360 EVIDENCE A situation like the one just described is
(The Bar Lecturer Seriea) not infrequent and does occur when you least
expect it. It happens to all of us. This is not a
 heartbreaking episode in your legal career. It is not a reason CHAPTERVII- OFFEROFEVIDENCEANDTRIALOBJECTIONS 861
to throw in the towel. You do not have to feel the horror of (RULE 182)
failing to figure out the right remedy. This is not a problem at
all. As we usually say, “This is a piece of cake. Peanuts. identify the object or document, and in case of the latter,
Chicken feed. Child’s play." Indeed it is. Calm down. This is to state the contents of the document that is sought to be
not panic time.
admitted where the substance cf the same is not apparent
So what do you do if you are the victim of an on its face. Reading the substance of the document is an
objection sustained by the trial court or of a motion to strike accepted way of stating its contents for the record in
granted on a testimony that is crucial to your cause of action states which recognize a tender. A disclosure of the contents
or defense? The answer: make a “tender of excluded of the document is necessary in order to aid the court in
evidence.” What do our rules say on the matter? Clearly, they
provide: determining its competence and relevance.
The next step is to state the purpose for which the object
"SEC. 40. Gene/er o/ exe/z/c/ez/ ev’i¢fence. — If
documents or things offered in evidence are excluded or document sought to be attached is offered, and to ask that it
by the court, the offeror may have the same attached to be marked for identification and have it attached to the
or made part of the record. If the evidence excluded is record.
oral, the offeror may state for the record the name and Por example, counsel may state after manifesting to
other personal circumstances of the witness and the
substance of the proposed testimony.” make a tender of excluded evidence: “Your Honor, this doc-
ument is a deed of sale executed between the plaintiff and
defendant on such and such date in the presence of both the
town mayor and vice-mayor who signed the deed as witnesses,
and notarized before Notary Public so and so. The document
reads: (Counsel reads the document). With this document, we
intend to prove that the defendant bought the parcel of land
herein described prior to taking possession of the property as
2. The foregoing owner on such and such date. We request that this document
rule, called “of'fer of proof’ in other be marked and attached to and made part of the records
jurisdictions, embodies
the procedure for the ”tender of of
excluded evidence.“ Why make a tender of excluded evidence? this case.”
You do it for two reasons. First, to allow the court to know 4. If‘ the evidence excluded is testimonial, the offeror
the nature of the testimony or the documentary evidence may state for the record the name and other personal
and convince the trial judge to permit the evidence or circumstances of the witness and the substance of the pro-
testimony. !Second, even if he is not convinced to reverse posed testimony (!Sec. 40, Rule 132, Rules of
his earlier ruling, the tender is made to create and Court).
preserve a record for appeal. There are two traditional methods of making the tender:
3. How is the tender done? The procedure depends upon The first is where the counsel tells the court what the
the type of evidence excluded. Where the evidence involved is
proposed testimony will be. This is the method prescribed
documentary or object evidence, the tender is made by having
the document or object attached to or made part of the record in the Rules of Court. After stating for the record the name
(Slec. 40, Rule 132, Rules of Court). and other personal circumstances of the witness, counsel, for
instance, says:
Even if the rules do not spell out the details on how Counsel: Defendant, Your Honor, makes this tender
this should be done, it is a common practice, in almost all of excluded evidence. If permitted to testify, defendant
jurisdictions, for the offering counsel to produce, describe, will affirm that he was allowed by the plaintiff to build a
 362 EVIDENCE
CHAPTER VII — OFF'ER OP EVIDENCE AND TRIAL OBJECTIONS 363
(The Bar Lectures Series) (RULE 132)

house in the former’s land; that the witness knows about conclusions of fact such as, “If permitted to pursue this line of
this fact because the plaintiff granted this permission to questioning, Your Honor, the witness will testify that he is not
him personally; that the permission was given on (date), a trespasser.” The offer must make reference to the details of
in (place) at approximately (time), and in the presence the excluded testimony or excluded document.
of the plaintiffs neighbor and wife who interposed no
objection to the grant of permission. 5. An erroneous way of making an offer of excluded
testimony is to make a mere general ‘offer of proof (tender
The second method is by using the question and answer of excluded evidence) without producing the witness or
form. To illustrate:
stating the evidence whereby the fact in issue is to be proved
Counsel: Your Honor, if allowed to ask the question (Douillard v. Wood ”1942 20 C2d 670, 128 P2d 6).
objected to, the testimony would have been as follows: 6. May an objection be interposed to the manner of
Q: Why did you construct a house on the plaintiffs tender of excluded evidence? The rules are silent on the issue.
land? However, there is no cogent reason to disallow the objection.
If the document tendered is not described or identified, its
A: Because he allowed me to do so, Sir.
substance stated in vague and general terms or when the
Q: When and where was the permission granted? purpose for which it is offered is not declared, then the
A: On (date), in (place) at around (time), Sir. evidence has to be objected to. If the testimony tendered is in
the form of a conclusion and, thus, fails to disclose sufficient
Q: How was the permission granted? information to enable the court and the other party to
A: It was orally granted. determine its admissibility, the same may, likewise, be the
target of an objection. To have a contrary rule and confer
Q: Who were present, if any, when plaintiff gave immunity from objection to such type of evidence would be to
you the permission to build a house on the land? grant a favored status to evidence initially excluded by the
A: {Witness gives the names o[witnesses) trial court.
The first method has the advantage of brevity and
efficiency but it does not create as clear a record as the second Formal offer of evidence and formal offer of proof (Bar 1991)
method. Whichever method is to be used lies in the discretion Formal offer of evidence refers either to the offer of
of the trial court. The court may prefer the second method the testimony of a witness prior to the latter’s testimony,
which, although not described in the rules, is not prohibited. or the offer of the documentary and object evidence after a
In fact, the use of the first method is not mandatory. This party has presented his testimonial evidence. Loosely, it has
is evident from the use of the word m‹iy, instead of shall, in been referred to as formal offer of exhibits where object and
Sec. 40 of Rule 132. Whichever method of tender is used, the documentary evidences are to be offered.
advocate must see to it that the offer must be specific enough
to contain the facts and circumstances of the matter sought to Offer of proof is the process by which a proponent of an
be proved by the excluded evidence. excluded evidence tenders the same. If what has been excluded
The tender is not meant to be a mere manifestation to is testimonial evidence, the tender is made by stating for the
the court in mere general terms. It must not be in the form of record the name and other personal circumstances of the
j proposed witness and the substance of his proposed testimony.
If the evidence excluded is documentary or of things, the offer
364 EVIDENCE
(The Bar Lectures Series)

of proof is made by having the same attached to or made a

part of.the record.

Additional evidence after case is rested INDEX

The Rules of Court does not prohibit a party from
requesting the court to allow it to present additional evidence
A
even after it has rested its case (Republic v. Sandiganbayan
(Fourth Division], 662 SCRA 152, 184, December 13, 2011). Abay, Jr. v. People, 566 SCRA 34.............................................261
Abosta Management Corporation v. National Labor
Relations Commission [first Division),
— OOO — 654 SCRA 505, 516-517, July 27, 2011...................................6
Abraham v. Kasten, 114 Phil. 239................................................354
Acabal v. Acabal, 454 SCRA 555....................................................89
Agdeppa v. Office of the Ombudsman, G.R. No. 146376,
cpaii 23, 2oi4........................................................................6
Agustin v. Court of Appeals, 460 SCRA 315.................................118
Air Philippines v. Pennswell, Inc., 540 SCRA 215........................220
AKBAYAN v. Aquino, 558 SCRA 468................................215
Alano v. Magud-Logmao, G.R. No. 175540, April 7, 2014..............50
Allied Banking Corporation v. South Pacific Sugar
Corporation, 543 SCRA 585........................................52
Almonte v. Vasquez, 244 SCRA 286......................................215
Alonte v. Savellano, Jr., 287 SCRA 245.......................................263
Aludos v. Suerte, 673 SCRA 413, 425, June 18, 2012.....................342
Alvarez v. PICOP Resources, 606 SCRA 444................................328
Alvarez v. Ramirez, 473 SCRA 72.........................................197, 204
Alzua v. Johnson, 21 Phil. 308...........................................................74
Aug v. Court of Appeals, G.R. No. 182835, April 20, 2010...............8
Anglo-American Packing, etc., Co. v. Cannon, 31 Fed. 313..........147
Aquino v. Paiste, 555 SCRA 255 ................................................,. 253
Arceo v. People, 495 SCRA 204..............................................134
Arroyo, Jr. v. Taduran, 421 SCRA 423.....................................94
Asean Pacific Planners v. City of Urdaneta, 566 SCRA 219...........95
Asian Construction and Development Corporation v.
Mendoza, 675 SCRA 284, 290, June 27, 2012.......................68
Asian International Manpower Services, Inc. v. Department
of Labor and Employment, G.R. No. 210308,
April 6, 2ti16....................................................................69
Asian Terminals, Inc. v. Malayan Insurance Co., Inc.,
647 SCRA lll,130-131, April 4, 2011................................81

365
366 EVIDENCE (The Bar Lectures Seriea)
 INDEX 367
Astorga and Repol Law Offices v. Villanueva,
A.M. No. P-09-2669, Pebruary 24, 2015.................................69
Atienza v. Board of Medicine, 642 SCRA 523, 529, Camitan v. Fidelity Insurance Corporation,
February 9, 2011................................................................2, 24 55i SCRA 5‹0.........................................................87
Atienza v. People, G.R. No. 188694, February 12, 2014.........66, 282 Candelaria v. People, G.R. No. 209386, December 8, 2014........29, 48
Atillo v. Court of Appeals, 266 SCRA 596.......................................95 Candido v. Court of Appeals, 253 SCRA 78..........................342, 346
Ayala de Roxas v. Case, 8 Phil. 197...............................................14 Canuto v. Mariano, 37 Phil. 840..................................................160
Aznar Brothers Realty Co. v. Aying, 458 SCRA 496.......................53 Capital Shoes Factory, Ltd v. Traveller Kids, Inc.,
736 SCRA 489..........................................................148
B Carganillo v. People, G.R. No. 182424,
September 22, 2014........................................................152, 157

BMdaSMppmgSenñcesInc. vHipe,Jr,
i.,3•n,.o. Cargill v. State, 35 ALR 133, 220 Pac 64, 25 Okl. 314.................200
Cercado-Siga v. Cercado, Jr., C>.R. No. 185374,
March 11, 2015.......................................................169, 170, 179
%ff,STcd96::::::::::::::::::::::::::::::::::::::::::::333 Chavez v. PCGG, 299 SCRA 744..........................................215, 217
Chavez v. Public Estates Authority, 384 SCRA 152.....................215
China Banking Corporation v. Ta Fa Industries, Inc.,
G.R.No.204699,Novemberl2,20l4.... :....::.......: ........:. 51
553 SCRA 211............................................................53
Bangayan v. RCBC, 647 SCRA 8, 26, April 4, 2011.....................169
Ching v. Court of Appeals, 331 SCRA 16.....,............................87, 93
Bank of the Philippine Islands v. Reyes, 544 SCRA 206................99
Chiongbian-Oliva v. Republic, 522 SCRA 599......................,.............85
Bank of the Philippine Islands v. Spouses Royeca,
Chu v. Guico, A.C. No. 10573, January 13, 2015...............................51
669 SCRA 207........................................................................53
Chua Gaw v. Chua, 551 SCRA 505..................................................134
Bantolino v. Coca Cola Bottlers, Inc., 403 SCRA 699...............5, 343
Chua v. Westmont Bank, 667 SCRA 56, 65,
Barcelon Roxas Security, Inc. v. Commissioner of
Pebruary 27, 2012...............................................................51, 68
Internal Revenue, 498 SCRA 126.........................................328
Cirtek Employees Labor Union-Federation of Free
Bartolome v. Maranan, 740 SCRA 491............................................9
Workers v. Cirtek Electronics, Inc., 650 SCRA 656,
Bautista •. Sarmiento, 138 SCRA 587..........................................s3 662-663, June 6, 2011............................................................6
Bayani v. People, 530 SCRA 84.....................................................354 Citibank, N.A. Mastercard v. Teodoro, 411 SCRA 577, 585..........142
BBB v. AAA, G.R. No. 193225, February 9, 2015...........................89 City of Manila v. Garcia, 19 SCRA 413...........................................80
Bemejo v. Barrios, 31 SCRA 764.................................................166 Civil Service Commission v. Belagan, 440 SCRA 578...................338
BJDC Construction v. Lanuzo, G.R. No. 161151, Civil Service Commission v. Colanggo, 553 SCRA 640.....................4
March 24, 2014 .....................,...................................,....,. so, s8 Civil Service Commission v. Vergel de Dios,
Blue Cross Health Care, Inc. v. Olivares; 544 SCRA 580...............63 G.R. No. 20.8536, February 4, 2015.........................................172
Bognot v. RRI Lending Corporation, G.R. No. 180144, Collins v. Western Union Tel. Co., 145 Ala. 412 41
September 24, 2014..................................................................51 So. 160, 8 ann. Cas. 268..........................................................148
Bordalba v. Court of Appeals, 374 SCRA 666...............................196 Comerciante v. People, G.R. No. 205926, July 22, 2015....................39
Borre v. Mayo, Adm. Matter 1766-CFI, 100 SCRA 314..................83 Commissioner of Internal Revenue v. Hantex Trading
Bughaw, Jr. v. Treasure laland Industrial Corporation, cv., Inc., use scm 301...................................................iss
Commissioner of Internal Revenue v. Manila Electric
Company (MERALCO], G.R. No. 181459, June 9, 2014 ............
c Commissioner of Internal Revenue v. Petron,
Calamba Steel Center, Inc. v. Commissioner of Internal 668 SCRA 735, 758, March 21, 2012...............................86
Revenue, 457 SCRA 482 ................................,....................25, 81 Commonwealth v. Blackwell, 343 Pa Super 201..........................314
Callo-Claridad v. Esteban, G.R. No. 191567, Compania Maritima v. Allied Pree Workers Union,
March 20, 2013...............................,.....,.........,....................29, 30 77 SCRA 24..............................................................145
368 EVIDENCE Computer Identics Corp. v. Southern Pacific Co. [CA1 Mass]
(The Bar Lecturer Series)
 ................................................................................................... 56 INDEX 369
Confers v. Postal Cable Co., 92 Ga. 619,
19 S.E. 253 Am. St. Rep. 100.............................................148
Cruz v. Court of Appeals, 293 SCRA 239............................266, 267
Cuenco v. Ta1igay Tourist Sports Complex, Eur quez v. People, 331 SCRA 538.............................................265
569 SCRA 616.....................................................................87 Eq i ñ table Cardnetwork, Inc. v. Capistrano,
665 SCRA 454, 465, February 8, 2012.....................................94
Espineli v. People, G.R. No. 179535, June 9, 2014...........28, 285, 295
Espinosa v. Sandiganbayan, 331 SCRA 538...................................265
D.M. Consunji, Inc. v. Court of Appeals, 357 SCRA 249.............281 Estioca v. People, 556 SCRA 300.................................................85
Dantis v. Maghinang, G.R. No. 191696, April 10, 2013.......282, 284 Estrada v. Desierto, 356 SCRA 108................................248, 283, 298
Datalift Movers, Inc. v. Belgravia Realty & Development Expertravel and Tours, Inc. v. Court of Appeals,
Corporation, 500 SCRA 163................................................58, fi0 459 SCRA 147.....................................................................77, 84
Dawson v. Bertolinin, 70 R.I. 325, 38 A.2d 765, 768........................42
De Garcia v. Court of Appeals, 37 SCRA 129................................93
De la Paz v. Intermediate Appellate Court, 154 SCRA 65...........229
Faba3 v. Resuena, A.C. No. 8723, January 26, 2016.....................173
De la Peña v. Avila, 665 SCRA 553, 567, February 8, 2012..........94 Fajardo v. People, 677 SCRA 541, 549, July 25, 2012...........113, 250
De la Torre v. Court of Appeals, 294 SCRA 196..........................355 Feria v. Court o1’Appeals, 325 SCRA 525............................288, 295
Del Socorro v. Van Wilsem, G.R. No. 193707, Fil-Pride Shippings Company, Inc. v. Balasta,
December 10, 2014........................................................52, 79 G.R. No. 193047, March 3, 2014..............................................83
Delfin v. Billowed, 485 SCRA 38........................................................88 Flores v. People, G.R. No. 181354, F'ebruary 27, 2013.....................54
DENR v. DENR Region 12 Employees, 409 SCRA 359............76, 82
Floy v. Hubbard, 227 Iowa 149, 287 N.W. 829................................349
Deoferio v. Intel Technology Philippines, Inc.,
Franco v. People, L“.R. No. 191185,
G.R. No. 202996, June 18, 2014...............................................50
Febi uary 1, 2016.............................................30, 34, 45, 67, 168
Diaz v. People, G.R. No. 208113, December 2, 2015...................60, 66 Prondarina v. Malazarte, G.R. No. 148423,
Diesel Construction Co., Inc. v. UPSI Property
December G, 2006 ........,.............................................................. 42
Holdings, Inc., 549 SCRA 12................................................57
Dizon v. Court of Tax Appeals, 553 SCRA 111.....................342, 343 G
Dizon v. Tuazon, 557 SCRA 487.................................................333
Doughlas v. Lopez, 325 SCRA 129...............................................83 e8° +°°p e, 8 SCRA 813......................................................8o
Douillard v. Wood [1942], 20 C2d 670, 128 P2d 6.......................363 Garcia v. Garcia-Recio, 366 SCRA 437.........................................79
Dynamic Signmaker Outdoor Advertising Services, Garcia v. Año. de Caparas, G.R. No. 180843,
Inc. v. Potongan, 461 SCRA 328.........................................255 Apr 7, 2 3..........................................................93
Garrucho v. court of Appeals, 448 SCRA 165............................... 86
E Garvida v. Sales, Jr., 271 SCRA 767.............................................. 150
heraldo v. People, 571 SCRA 420............................................... 309
Eagleridge Development Corporation v. Cameron Gevero v. Intermediate Appellate Court, 189 SCRA 201.............263
Granville 3 Asset Management, Inc., 741 SCRA 557..........155 Gonzales v. Court of Appeals, 298 SCRA 322.............................214
Eastern Shipping Lines, Inc. v. BPI/MS Insurance Government Service Insurance System v. Vallar,
Corporation, G.R. No. 182684, January 12, 2015........83, 90, 94 536 SCRA 620...............,........................................................... 85
Edrada v. Ramos, 468 SCRA 597...................................................154 Cuong v. U.S., 860 F.2d 1063 (Fed. Cir 1988)................................214
EDSA Shangri-La Hotel and Resort, Inc. v. BF
Corporation, 556 SCRA 25.........................................136, 141 H
Edwards v. Edwards, Tenn. App., 501 S.W. 2d 283. 289..............30
Harold v. Aliba, 534 SCRA 478.................................................... 5g
Hart v. Newland, 10 N.C. 122 .....................,..................................... 23
Heirs of Amado Celestial v. Heirs of Editha G. Celestial,
408SCRA291........ ............. .......:.........: ...:. 171
370 EVIDENCE INDEX 371
(The Bar Lectures Series)
Heirs of E. B. Roxas, Inc. v. Tolentino, 167 SCRA 334....................69 L
Heirs of Lourdes Saez Sabanpan v. Cormoposa,
408 SCRA 692............................................................ - 25 La Bugal-B’laan Tribal Association v. Ramos, 445 SCRA l............82
Heirs of Medina v. Natividad, 572 SCRA 227............................... 176 Lacurom v. Jacoba, 484 SCRA 206...............................................206
Heirs of Pedro Clemeña v. Heirs of Irene B. Bien, Ladiana v. People, 393 SCRA 419.........................................245, 246
501 SCRA 405........................................... Land Bank of the Philippines v. Wycoco, 419 SCRA 67............77, 78
Herrera-Felix v. Court of Appeals, 436 SCRA 87.............................88 Land Bank of the Philippines v. Yatco Agricultural
Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, Enterprises, G.R. No. 172551, January 15, 2014...............74, 81
62 L Ed 260, 38 S CI 65........................................................... 2ñ8 Lapena, Jr. v. Marcos, 114 SCRA 572................................................83
Laureano v. Court of Appeals, 324 SCRA 414................................79
I-fozoeowners Savings & Loan Baok v. Datlo, 453 SCRA 283..........51 Lechugas v. Court of Appeals, 22 Phil. 310, August 6, 1986...........156
Hongkong Special Administrative Region v. Olalia, Jr.,
521 SCRA 470...................................................................71 Leviste v. Social Security System, 539 SCRA 120..........................69
Lim v. Mindanao Wines & Lio,uor Galleria,
Horn v. Hansen, 57 N.W. 315....................................................... 156
675 SCRA 628, 640, July 4, 2012.............................................68
Llanto v. Alzona, 450 SCRA 288..................................................186
Llemos v. Llemos, 513 SCRA 128.................................................179
Ibañez v. People, G.R. No. 190798, January 27, 2016..............44, 45 Logue v. Von Almen, 379 111. 208, 40 N.E.2d 73, 82......................161
Icard v. Masigan, 40 O.G., 13th Suppl., 215; 71 Phil. 419...........196 Lopez v. Court of Appeals, 156 SCRA 838....................................176
In re Estate of Rogelio Ong v. Diaz, 540 SCRA 480......................120 Lopez v. Valdez. 32 Phil. 644........................................................356
Lorenzana v. Austria, A.M. No. RTI-09-2200, April 2, 2014..........50
In re Federal Grand Jury Proceedings 89-10 fMIAJ, Lorzano v. Tabayag, 665 SCRA 38, 47, February 6, 2012............333
938 F.2d 1578 [11th Cir. 1991])............................................ 209
In the Matter of the Intestate Estates of Delgado M
and Rustia, 480 SCRA 334...................................................... ,..55, 57 Macalinao v. Ong, 477 SCRA 740...................................................65
Inciong, Jr. v. Court of Appeals, G.R. No. 96405, ........................155 Macalino v. Ong, 477 SCRA 740....................................................65
June 26, 1996, 247 SCRA 578........................
Inter Orient Maritime Enterprises, Inc. v. Creer III, Macasiray v. People, 291 SCRA 154.............................................345
G.R. No. 181921, September 17, 2014.............................14, 51 Macua Vda. de Avenido v. Avenido, G.R. No. 173540,
Interpacific Transit, Inc. v. Aviles, 186 SCRA 385........................343 January 22, 2014..........................................................143
Madrigal v. Court of Appeals, 456 SCRA 247...............................163
Magdayao v. People, 436 SCRA 677.............................................144
Magsa3'say Mitsui OSK Marine, Inc. v. Bengson,
James v. State ex rel. Loser, 24 Tenn.App. 453, 738 SCRA 184............................................................................83
145 S.W.2d 1026, 1033............................................................ 240 Malacat v. Court of Appeals, 283 SCRA 159..................................36
Jesus is Lord Christian Foundation, Inc. v. City of Pasig, Malana v. People, 549 SCRA 451...................................................55
466 SCRA 235........................................................................52 Mala664 eC I t
Jogefa v. Manila Electric Company, G.R. No. 182705, SCRA: 79 ebruab $' 2012 281 328
July 18, 2014....................................................................... 65, 94 ::: :: :::: Ills 162
Jumamil v. Café, 470 SCRA 475....................................................81 MI!! n v’ c urt f App R256 SC ‘718 """""'
jt Mangangey v. Sandiganbayan, 546 SCRA 51“.:: :::: :::::.. ..:: ::32
Manliclic v. Calaunan, 512 SCRA 642..................................330, 354
Karen and Christy Fishing Industry v. Court Manzanila v. Waterfields Industries Corporation,
of Appeals, 536 SCRA 243.............................................86 G.R. No. 177484, ‹luly J8, 2014..........................................87, 94
Kummer v. People, G.R. No. 174461, Marina Port Services, Inc. v. American Home Assurance
September 11, 2013...............................................111, 172, 174 Corporation, d“.R. No. 201822, August 12, 2015............281, 282
372 EVIDENCE Marubeni Corp. v. Ltrag, 362SCRA 620........................................... M
(The Bar Lectures Series) Masagana Concrete Products v. NLRC, 313 a
SCRA 576.......................................................................................................... s
 angcay v. Trans-Global maritime Agency, Inc.,
INDEX 373

0
Office of the Court Administrator v. Bernardino,
569 SCRA 592........................................................................69 450 $CRA 88............................................................255
Mattox v. U.S., 146 U.S. 140, 151................................................305 Ong Chia v. Republic, 328 SCRA 749................................................. 4
MCC Industrial Sales Corporation v. Ssangyong Ong v. People, 342 SCRA 372...................................................... 169
Corporation, 536 SCRA 408.........................................149, 150 Ordono v. Daquigan, 62 SCRA 270.............................................. 200
Menaulty v. State, 138 Tex.Cr.R. 317. 135 Orion Savings Bank, G.R. No. 205487, November 12, 2014.........175
S.W.2d 987, 989......................................................................240 Ortañez v. Court of Appeals, 266 SCRA 561................................154
Medina v. People, G.R. No. 182648, June 17, 2015.................33, 343 Ortiz v. De Guzman, 451 SCRA 393.............................................255
Mekin v. Wolfe, 2 Phil. 74...............................................................l5
Mendez v. Court of Appeals, 672 SCRA 200, 209,
June 13, 2012..........................................................................333
Paredes v. Court of Appeals, 528 SCRA 577.............................70, 71
Mereado v. Vitriolo, 459 SCRA 1........,..........................................210 Patula v. People, 669 SCRA 135, 157,
Metrobank v. Tobias III, 664 SCRA 165, 179-180, April 11,a 2012.....................................................170, 172, 294, 323
January 25, 2012.............................................................64 Pan v. Yosemite Pant {CA9 Call 928 F2d, 880..............................265
Metropolitan Life and Insurance Co. v. Kaufman,
104 Colo. 13, 87 P.2d 758........................................................211 PCIB v. Escolin, 56 SCRA 266 ..................,................,...................... 7g
Mills v. Texas Compensation Ins. Co., 75 Am Jur 29 256................348 Pe Lim v. Court of Appeals, 270 SCRA 1......................................118
Penera v. Dalocanog, Adm. Matter 2113-MJ, 104 SCRA 193.........83
Mills v. Texas Compensation Ins. Co.,
CA 5 Tex 220 F2nd 942............................................................348 Penta Pacific Realty Corporation v. Ley Construction
Montinola v. Philippine Airlines, G.R. No. 198656, and Development Corporation, 741 SCRA 426.......................83
People v. Abella, G.R. No. 195666, January 20, 2016.....................40
September 8, 2014..................................................................69
Moore v. Dresden Investment Co., 162 Wash, 289, People v. Ador, 432 SCRA 1.................................................’253, 309
298 Pac. 465, 77 A.L.R. 1258.....................................................78 People v. Adoviso, 309 SCRA 1.....................................................128
Morales v. Harbour Centre Port Terminal, Inc., People v. Adviento, 668 SCRA 486, 500-501, March 20, 2012..........48
664 S 2 69 People v. Agsunod, Jr., 306 SCRA 612.........................................251
Morg Foret 1h'124 Va 46 F2d 201 People v. Alagarme, G.R. No. 184789, February 23, 2015..............14

Neri
cited in 29 Jur 29 865......................................................314 People v. Alejandro, G.R. No. 205227, April 7, 2014.................60, 61
People v. Almodiel, G.R. No. 200951, September 5, 2012...............46
N People v. Aminnudin, 163 SCRA 402............................................. 35
Senate Committees on Accountability of Public People v. Amodia, 571 SCRA 444...................................,...................4g
O
NFF Induetri :: :t .: nion 35 SC ocia ’d 148 ’’’ ‘......‘‘ .217 People v. Ansang, 93 Phil. 44.......................................................251
People v. Asilan, 669 SCRA 405, 419, April 11, 2012.........................44

Brokerage, G.R. No. 178169, January 12, 2015.........................50 241 SCRA 192........................................................................79
Noblejas v. Italian Maritime Academy Phils., Inc., Noynay v. Citihomes Builder and Development, Inc.,
G.R. No. 207888, June 9, 2014..................................................50 735 SCRA 705...........................................................................93
Northwest Airlines, Inc. v. Chiong, 543 SCRA 308.................43, 187
Northwest Orient Airlines v. Court of Appeals,
People v. Baconguis, 417 SCRA. 66.................................................. 127 People v. Base, 329 SCRA 158 .........................,............................... 249
People v. Bago, 330 SCRA ll5 ..................,.....,..........................139 People v. Batin, 539 SCRA 272...................................................... 42
People v. Baltazar, 352 SCRA ti78................................................1 27 People v. B•autista, 666 SCRA 518, 536, February 22, 2012............46
People v. Baraoil, 676 SCRA 24, 31, July 9, 2012.......................7, 45 People v. Berry [19681, 260 CA2d 649, 67 CR 312.........................182
People v. Baro, 383 SCRA 75............................................... .. .... ,. 4b
374
EVIDENCE INDEX 375
(The Bar Lectures Series)
People v. Court of Appeals, G.R. No. 183662,
Fe bru ar y 25, 2016 ...............................................................„.....41
People v. Binad Sy Chua, 444 Phil. 757..........................................38 Pe opl v. Cruz, 726 SCRA 608 ....................................................,..‹.48
People v. Bingaan, 48 Phil. 926.................................................•• 308
People v. Cusi, Jr., 14 SCRA 944 ................................................›•.295
People v. Bio, G.R. No. 195850, February 16, 2015........................17
People v. Bobby Belgay, G.R. No. 182794,
Septezober 8,
People v. Boco, 309 SCRA 42...........................................................249
People v. Bontuyan, G.R. No. 206912,
September 10, 2014.......................................................................... 63,6 7
People v. Brioso, 37 OCRA 336............................................ . 303
People v. Buduhan, 561 SCRA 337........................................................ 127
People v. Bulos, 359 SCRA 621............................................................ 263
People v. Buntag, 427 533
People v. Bustamante,
People v. Cabiles, 284 SCRA 199 ..................... 2s2
People v. Cabtalan, 666 SCRA 174, 191, 194-195,
February 15, 2012 ........................................................••e. 42, 300
People v. Cabungan, G.R. No. 189356, January 23, 2013.............44
People v. Cacayan,557SCR A560....:. .:..: -:::.„.......„. ;:44
People v. Jajumo an, 430 SCRA 311 ........................•................••••127
People v. Calumpang, 454 SCRA 719...•.....................................„„.22
People v. Camacho, 44 Phil. 484 ...........................................,........166
People v. Camat, 266 SCRA 52............................................................ 61, 260
People v. Camat, 677 SCRA 610, 667, July 30,2012.........................48
People v. Camat, 677 SCRA 640, 658-669, JMy 30, 2012...........41, 44
People v. Canlas, 372 SCRA 401.................... 45
People v. Caranto, G.R. No. 193768, March 5, 2014........................62
People v. Carpo, 366 SCRA 248......................................................128
People v. Caaabuena, G.R. No. 186465,
November 19, 2014................................................................› .61
People v. Casacop, G.R. No. 210454, January 13, 2016.................14
People v. Castro, 668 SCRA 291, 300-301, March 14, 2012 ....•......45
People v. Cecilia, 639 SCRA 251.........................................33, 300
People v. Chan Lin Watt, 50 Phil. 182.....................................303, 304
People v. Chavez, G.R. No. 207950, September 22, 2014................30
People v. Colentava, G.R. No. 190348, February 9, 2015...............33
People v. Conaorte, G.R. No. 194068, July 9, 2014..........................29
People v. Court of Appeals, 21St Division, G.R. No. 183652,
}?ebm 25, 2{}lfj .........................................•••....•••.....••• ••••• ••• • • 5
 People v. Dacibar, 325 SCRA 725................................................... People v. Domingo, G.R. No. 211672, June 1, 2016..................44, 250
People v. Dadao, G.R. No. 201860, January 22, 2014. People v. Ducay, G.R. No. 209590, November 19, 2014
..................................................................................................... People v. Enad, G.R. No. 205764, February 3, 2016...............62, 117
44, 48 People v. Enojas, G.R. No. 204894, March 10, 2014...................8, 106
People v. Dahil, G.R. No. 212196, People v. Espejon, G.R. No. 199445, February 4, 2015...................40
January 12, 2015............................................111, 115, 116, People v. Espina, 361 SCRA 701..................................................318
117 People v. Fieldad, G.R. No. 196005, October 1, 2014................22, 40
People v. Dayapdapan, G.R. No. 209040, People v. Fontanilla, 664 SCRA 150, 158,
December 9, 2015................................................................186 January 25, 2012............................................................72
People v. De Garcia, 18 SCRA 197................................................303 People v. Gabuya, G.R. No. 195245, February 16, 2015..............350
People v. De Guzman, 288 SCRA 346, 354.......................................236 People v. Galleno, 291 SCRA 761............................................20
People v. Galvez, 519 SCRA 521...................................................127
People v. De Guzman, 676 SCRA 347, 360, July 11, 2012.
People v. Ganduma, 160 SCRA 799.............................................102
.....................................................................................................
People v. Gatarin, G.R. No. 198022, April 7, 2014........307, 308, 311
40, 45
People v. Gondayao, 30 SCRA 226...............................................315
People v. De la Rosa, G.R. No. 206419, June 1, 2016........................
People v. Gonzales, G.R. No. 182417, April 3, 2013.........................116
People v. De Leon, 580 SCRA 617............................................
People v. Guinto, G.R. No. 198314, September 24, 2014...................62
People v. Del Rosario, 642 SCRA 625, 635, February 9, 2011.........353
People v. Guittap, 403 SCRA 157......................................................262
People v. Dela Peña, G.R. No. 207635, February 18, 2015.............
People v. Gustafsson, 677 SCRA 612, 621, July 30, 2012...............250
People v. DeMarco, 195 N.E. 2d, 213, 216,
People v. Hernandez, 206 SCRA 25................................................91
44 Ill. App. 2d 459....................................................284
People -v. Ison, G.R. No. 205097, June 8, 2016..................................55
People v. Deocampo, 666 SCRA 288, 293, February 15, 2012...........
People v. Janjalani, G.R. No, 188314, January 10, 2011.................256
People v. Diaz, 271 SCRA 504..........,...........................................346
People v. ‹Janson, 400 SCRA 584.....................................................120
People v. Diaz, G.R. No. 197818, February 25, 2015....................350
People v. Kamad, 610 SCRA 295, 307-308...................................115
376 EVIDENCE INDEX 377
(The Bar Lectures Series)

People v. Lagbo, G.R. No. 207535, February 10, 2016..............42, 44 People v. Raquel, 265 SCRA 248..................................................260
People v. Laguio, Jr., 518 SCRA 393 .................................. 37 People v. Reanzares, 334 SCRA 624.............................................128
People v. Lamsen, G.R. No. 198338, February 20, 2013................29
People v. Reyes, G.R. No. 194606, February 18, 2014..............13, 33
People v. Langcua, G.R. No. 190343, February 6, 2013...............108 People v. Ricaplaza, 23 SCRA 374................................................315
People v. Lara, G.R. No. 199877, August 13, 2012........................29
People v. Roxas, G.R. No. 216396, February 10, 2016....................66
People v. Larrañaga, 463 SCRA 652...............................46, 100, 101 People v. Sabadlab, 668 SCRA 237, 247,
People v. Lee, 382 SCRA 596........................................335, 336, 387
March 14, 2012.........................................................................40
People v. Letigio, 268 SCRA 227.................................................•••. 43
People v. Salafranca, 666 SCRA 501, 511, 512, 513, 514,
People v. Libnao, 395 SCRA 407................................3 43
February 22, 2012 ........... ...
People v. Lupac, G.R. No. 182230, September 19, 2012.......311, 313 25, 307, 311, 313, 31<.
People v. Malimit, 264 SCRA 167 ............................................•. People v. Salahuddin, G.R. No. 206291, January 18, 2016........33, 54
•.••102
People v. Sanchez, 665 SCRA 639, 643, February 8, 2012...............41
People v. Manalansan, 189 SCRA People v. Sandoval, 254 SCRA 436.................................................l3
People v. Maraorao, 674 SCRA 151, 159, June 20, 2012.................66
People v. Santito, Jr., 201 SCRA 87..............................................346
People v. Martin, 543 SCRA 143................................. 35 4 People v. Santos, 536 SCRA 489...................................................266
People v. Martinez, 42 Phil. 85.....................................................305
People v. Mate, 103 SCRA 484..................................................... 343
’’opF Sa itu
People v. Mendoza, 204 SCRA 288.................................................•.81 : 20ii No. 209212, 14 41 115
People v. Mendoza, G.R. No. 192432, June 23, 2014.....................60 People v. Metin, 403 SCRA 105 (2003) .......................................›. 84
People v. Mengote, 210 SCRA 174..................................................36 People v. Mingming, 573 SCRA 509...............................................63
People v. Mercado, G.R. No. 213832, December 7, 2015....................45 People v. Molina, 352 SCRA 174...............................................35, 38
 People v. Napat-a, 179 SCRA 403.................................................343
People v. Navarette, Jr., 666 SCRA 689, 704, People v. Sasota, 91 Phil: 111. :::::: ::::::: :: :::::::::::::::::::: ::.....’......'.251
Febmary22 , 2012..........................48 People v. Saturno, 355 SCRA 578..................................................55
People v. Navarro, 297 SCRA 331...................................................47 People v. Señeris, 99 SCRA 92.....................................................228
People v. Nebreja, 203 SCRA 45...................................................356 People v. Silang Cruz, 53 Phil. 636...............................................303
People v. Negosa, 456 Phil. 861......................................................42 People v. Singh, 45 Phil. 676........................................................357
People v. Ner, 28 SCRA 1151 ......................................................•. 315 People v. Solina, G.R. No. 196784, January 13, 2016.......33, 40, 186
People v. Obmiranis, 574 SCRA 140............................................112 People v. Sorila, Jr., 556 SCRA 392...............................................85
People v. Pabalan, 262 SCRA 574, 585..........................................31 People v. Steve, G.R. No. 204911, August 6, 2014..........................46
People v. Pacapac, 248 SCRA 77....................................................43 People v. Stoll, 84 Cal App. 99, 257 Pac. 583...................................249
People v. Padit, G.R. No. 202978, February 1, 2016.....................281 People v. Strook, 347 Ill. 460, 170 N.E. 821.................................249
People v. Palijon, 343 SCRA 486.................................................. 261 People v. Tanchanco, 670 SCRA 130, 142-143,
People v. Paragsa, 84 SCRA 105...................................................255 April 18, 2012............................................................................29
P e ople v. Pa scual, 576 SCRA 242........................................................30 People v. Tandoy, 192 SCRA 28...........................................139, 140
People v. Pateño, G.R. No. 209040, December 9, 2015...................48 People v. Tapugay, G.R. No. 200336, February 11, 2015........47, 117
People v. Peña, 376 SCRA 639.....................................................318 People v. Teehankee, Jr., 249 SCRA 54..................................47, 118
People v. Peteluna, G.R. No. 187048, January 23, 2013................42 People v. Toledo, 51 Phil. 826...........................................................325
People v. Pogada, 667 SCRA 790, 808, March 12, 2012...............112 People v. Torres, G.R. No. 189850, September 22, 2014..................42
People v. Quidato, Jr., 297 SCRA 1......................................201, 261 People v. Tuangco, 345 SCRA 429...............................................185
People v. Rama, 350 SCRA 266......................................................32 People v. Tundag, 342 SCRA 704...................................................84
People v. Ubina, 527 SCRA 307.....................................................45
People v. Urzais, G.R. No. 207662, April 13, 2016..........................29
People v. Valero, 112 SCRA 661...................................................355
People v. Vallejo, 382 SCRA 192 (2002)........................................118
People v. Velasquez, 669 SCRA 307, 318, April 11, 2012...............46
People v. Villarico, Sr., 647 SCRA 43, 58, April 4, 2011...............311
378 EVIDENCE
(The Bar Lectures Seriea) INDEX 379

People v. Villariez, G.R. No. 211160, September 2, 2015.............300 Republic v. Marcos-Manotoc, 665 SCRA 367, 386,
People v. Villaviray, 262 SCRA 13..............................................356
February 8, 2012 ...................„,......................................135, 282
People v. Viojela, G.R. No. 177140, October 17, 2012......................44
Republic v. Mupas, G.R. No. 181892,
People v. Viterbo, G.R. No. 203434, July 23, 2014........................13
September 8, 2015..................................................135, 142, 145
People v. Wright, 26 Cal App 2d 197, 79 P2d 102.......................345
People v. Yatar, 428 SCRA 504, May 19, 2004...........................120 Republic v. Sandiganbayan (Fourth Division],
People v. Zeta, 549 SCRA 541......................................................86 662 SCRA 152, 184, December 13, 2011.................................364
Perez v. People, 544 SCRA .532....................................................51 Revita v. People, 570 SCRA 356............................................ 127
Perry v. Simpson, Conn. 313......................................................247 Ricalde v. People, G.R. No. 211002, January 21, 2015...............186
Phil. Pryce Assurance Corp. v. Court of Appeals, Ries Biological, Inc. v. The Bank of Santa Fe,
230 SCRA 164...........................................................................59 780 F .2d 888 110th Cir. 1986]................................................ 293
Philippine Charter Insurance Corporation v. Central Rivera v. Court of Appeals, 284 SCRA 673.................................. 55
F beges o22h2 2lippines, 666 SCRA 540, 553, Robles v. Lizarraga Hermanos, 42 Phil. 584............................... 282
93 Rosit v. Davao Doctors Hospital, G.R. No. 210445,
Philippine Commercial International Ba [now BDO”“”””““”” December 7, 2015.........................................................282
nib n 4 v. F'ranco, G.R. No. 180069, $ ROSS V. Cooper, 38 N.D. 173, lf14 N.W. 679........................................ 301
I$ -2» 1 1 Rubio v. Alabata, G.R. No. 203947, February 26, 2014................14
C‘r 54 P2 ’’ 6 I c' ’Estrad C Rural Bank of Cabadbaran, Inc. v. Melecio-Yap,
He£t tH a”””"’” ’ 95 ration gg
 pn es e ‘nnc '479 24 G.R. No. 178451, July 30, 2014................................................ 63
Pilipinas Bank v. Court of Appeals, 341 SC ‘527 : :::: ::: ::::: 159 Ryan v. Town of Brisol, 63 Conn., 26, 27, Atl. 309............................23
PNB v. Olila, 98 Phil. 1002.........................................................141
PNOC Shipping and Transport Corporation v. S
A’
Saberola v. Suarez, 558 SCRA 135..................................................157
Sabili v. Commission on Elections, 670 SCRA 664, 670,
PolicC uo v pp 19?0J W29 164 April 24, 2012.......................................................................... 328
Porter v. Valentine, 18 Misc. Rep. 213, 41 N.Y.S: 507 ::::::: .: ::..23 Salazar v. Court of Appeals, 376 SCRA 459...................................... 93
Programme Incorporated v. Province of Bataan, Samala v. Valencia, 512 SCRA 1............................................... 2l o
492 SCRA 529................................................................87, 91 Samalio v. Court of Appeals, 454 SCRA 462,
March 31, 2005............................................................. 330
R Santiago v. Court of Appeals, 278 SCRA 98............................... 164
“ 8 Santos v. Alcazar, G.R. No. 183034, March 12, 2O14......................169
Ra onv In$ermed ate Appel2at o 207 SC ’234 : : : : : 5
Santos v. Lumbao, 519 SCRA 408....................................................g5
Reg. v. Bedforshire, 4 E. & B. 535, 82 E.C.L. 535, 542.................327 Santos v. Santos, 366 SCRA 395..................................................... 197
Republic of the Philippines v. Rosario, G.R. No. 186635, Sapio v. Undaloc Construction, 554 SCRA 148.......................... 323
January 27, 2016......................................................................76 Saraum v. People, G.R. No. 205472,
Repubhc v. Arias, G.R. No. 188909, January 25, 2016................................................................ 40, 67
September 17, 2014...................................................................69 Sarraga v. Eanco filipino Savings & Mortgage Bank,
Republic v, Bautista, 532 SCRA 598, 606...................................246
Republic v..Court of Appeals, 107 SCRA 504................................82 Sasan, Sr. v. NLRC, 569 NICRA 670 .........................................,..........4
Republic v. Court of Appeals, 277 SCRA 633................................80
Sayco v. People, 547 SCRA 368............................................. 250
Republic v. Kenrick Development Corporation, SCC Chemicals Corporation v. Court of Appeals,
498 SCRA 220, 231.................................................................248
353 SCRA 70.................................................................15, 90
380 EVIDENCE INDEX 381
(The Bar Lectures Seriee)

Scott v. Times-Mirror Co., 181 Cal 345, 184 P 672, T

12 QR 1007 ................................................-----------------------49
T.C. Young Construction Co. v. Brown [Ky] 372 SW2d 670,
Seaoil Petroleum Corporation v. Autocorp Group, 99 ALR3d 288..........................................................105
569 SCO 387............................................ . -- - "4 Tabuena v. Court of Appeals, 196 SCRA 650........................81, 343
Senate of the Philippines v. Ermita, 488 SCRA 1....................... 214
Talidano v. Falcom Maritime & Allied Services, Inc.,
Servicewide Specialists, Inc. v. Court of Appeals, 558 SCRA 279..........................................................312, 313, 318
257SCRA 643.................................9 3 Tan Shuy v. Maulawin, 665 SCRA 604, 612,
Sicam v. Jorge, 529 SCRA 443 ......................... --..........................••. 96 February 8, 2012...............................................................169
Siena Realty Corporation v. Gallang, 428 SCRA 422.................•. 76 Tan v. Court of Appeals, 295 SCRA 247.........................................193
Silot v. De la Rosa, 543 SCRA 533..................... ...................••....91, 93 Tan v. Hosana, G.R. No. 190846, February 3, 2016...................16, 63
Sison v. People, 250 SCRA 58, 75 . ........ Tating v. Marcella, 519 SCRA 79............................................23, 25
Sison v. People, 666 SCRA 645, 662, February 22, 2012................41 173 Tecson v. COMELEC, 424 SCRA 277...............................120
Sistual v. Ogena, A.C. No. 9807, February 2, 2016....................... Tijing v. Court of Appeals, 354 SCRA 17....................................118
Skunac Corporation v. Sylianteng, G.R. No. 205879, 137, 148 Titan Construction Company v. Uni-field
April 23, 2014........................................................ ••.. Enterprises, Inc., 517 SCRA 180.............................................344
Solidbank Corporation v. Mindanao Ferroalloy ..................... Torres v. Court of'Appeals, UI SCRA 24............................93
Corporation, 464 SCRA 409........................... ••••. 82 Tze Sun Wong v. Wong, G.R. No. 180364,
Solidum v. People, G.R. No. 192123, March 10, 2014................... 66 December 3, 2014...........................................................49
Spaak v. Chicago & Northwestern Railway Co.,
231 F.2d 279 [7th Cir. 1956)............................................. 106
Sparf v. United States, 156 US 51, 39 L Ed
343, U.S. v. Antipolo, 37 Phil. 726..............................................206, 305
15S. Ct.27'..3 ..............................349 U.S. v. Arias-Villanueva [CA9 Or] 998 F2d 1491........................261
Spouses Lehner v. Chua, G.R. No. 174240, U.S. v. Aucoin, 964 F.2d 1492 [5th Cir. 1992)................................209
March 20, 2013 .......................... 172 U.S. v. Baird, 29 F.3d 647, D.C. Cir 1994........................................289
Spouses Manzanilla v. Waterfields Industries Corporation, U.S. v. Behrens, 689 F.2d 154 [l0th Cir. 1982]...........................186
G.R. No. 177484, July 18, 2014................................................ 59 U.S. v. Blanco, 37 Phil. 126...............................................................80
Spouses Paras v. Kimwa Construction and Development U.S. v. Ganieso, 470 F2d 1224 2d Cir. 1972....................................289
Corporation, G.R. No. 171601, April 8, 2015..........154, 158, 162 U.S. v. Cervantes-Pacheco, 826 F2d 310 [5th Cir. 1987]...............185
Spouses Ragudo v. Fabella Estate Tenants Association, U.S. v. Clemente, 22 Phil. 277.........................................305
Inc., 466 SCRA 136.................................................................. 346 U.S. v. Cook, 949 F2d 289 [10th Cir. 1991]....................................185
Spouses Ramos v. Obispo, G.R. No. 193804, U.S. v. Enriquez, 1 Phil. 241......................................................283
February 27, 2013.............................................................. 68 U.S. v. Evangelista, 29 Phil. 215................................................179
Spouses Tan v. Republic, 573 SCRA 89...........................................342 U.S. v. Fowler, 605 F.2d 181 f5th Cir. 1979)....................................221
Standard Insurance Co., Inc. v. Cuaresma, U.S. v. Gordon, 493 F. Supp. 822 [7th Cir. 1967]...........................214
G.R. No. 200055, September 10, 2014................................. 68 U.S. v. Hernandez, 31 Phil. 342...................................................80
State Prosecutors v. 6luro, 236 SCRA 505..............................78, 83 U.S. v. Monroe, 943 F 2d 1007, 9th Cir. 1991.................................289
State v. Dena, 28 N. Mexico, 479, 214, Pac. 583.........................249 U.S. v. Nerlinger [CA2 NY] 862 F2d 967, 27 Fed
State v. Hancock, 28 Nev. 300, 32, Pac. 95.................................. 198 Rules Evidence Serv 271....................................................260
State v. Hernandez [App) 170 Arizona 301; U.S. v. Norwood, 798 F.2d 1094 f7th Cir. 1960]..............................292
U.S. v. Novo Sampol, 636 F.2d 621 fD.C. Cir. 1980]......................186
Sunga-Chan v. Chua, 363 SCRA 249............................................... 194 U.S. v. Orera, 11 Phil. ii96..............................................................166
Sy v. Court of Appeals, 330 SCRA 550 ...............................-----------136
 382 EVIDENCE
(The Bar lectures Series)

U.S. v. Tedder, [CA4 SC] 801 P2d 1437;

29AAm Jur 2d §1007...........................................................128
U.S. v. Wilson, 798 F.2d 509 [1st Cir. 1986].................................209
Ubales v. People, 570 SCRA 251....................................................22

V
Valdez v. People, 538 SCRA 611.....................................................38
Valencia v. People, G.R. No. 198804,
January 22, 2014............................................................116, lJ 7
Valleno v. People, G.R. No. 192050, January 9, 2013..................115
Vda. de Catalan v. Catalan-Lee, fi65 SCRA 487, 495,
February 8, 2012............................................................79, 179
Vda. de Gabriel v. Court of Appeals, 264 SCRA 137....................52
Vda. de Oñate v. Court of Appeals, 250 SCRA 283.......................343

Werdell v. Turzynski, 128 Ill. App. 2d 139.....................................27

Werner v. Upjohn Co. [CA4 MD] 628 P2d, 848;
29 Am Jur 2d §463-464........................................................265
Willex Plastic Industries Corporation v. Court of Appeals,
256 SCRA 478......................................................................164
Winfrey v. State, 174 Ark. 729, 296 S.W......................................301
Wyne v. Newman, 75 Va., 811, 817................................................30

Yapyuco v. Sandiganbayan, 674 SCRA 420, 451,

June 25, 2012..........................................................................257

Zabala v. People, G.R. No. 210760,

January 26, 2015.......................................................29, 249, 250
Zafra v. People, 671 SCRA 396, 405, April 25, 2012...............61, 112
Zapanta v. People, G.R. No. 170863, March 20, 2013......,....250, 251
Ziilueta v. Court of Appeals, 253 SCRA 699.................................205