Codal

A.M. No. 19-08-15-SC: 2019 Proposed Amendments to the

COMPREHENSIVE REVIEWER Revised Rules on Evidence, effective May 1, 2020
Note: Italicized words reflect additions and changes as per A.M. No. 19-08-15-SC

Annotations
Evidence, The Bar Lecture Series (2016 ed.) by Dean Willard B. Riano
Note: Annotations with “(as amended)”
have been edited by Authors to conform with amended Rules

Annotations on Revised Provisions

Committee on the Revision of the Rules of Court
in Re: 2019 Proposed Amendments to the Revised Rules on Evidence

Remarks on changes from Old Rules (footnoted)

Deputy Court Administrator Raul Villanueva

Rationale for changes

Committee on the Revision of the Rules of Court
in Re: 2019 Proposed Amendments to the Revised Rules on Evidence

Discussions
Atty. Tranquil Salvador Lectures and Justice Maria Filomena Singh Slides
 RULE 128 o The parties to any action are allowed by the Rules to agree in writing upon
General Provisions the facts involved in the litigation and to submit the case for judgment
upon the facts agreed upon, w/o introduction of evidence.
Section 1. Evidence defined. — Evidence is the means, sanctioned by these rules, of 3. Evidence not required on matters of judicial notice and on matters judicially
ascertaining in a judicial proceeding the truth respecting a matter of fact. admitted
4. Evidence is not required when the law presumes a fact
Concept of Evidence; Truth as Purpose o Art. 1756 of the Civil Code of the Philippines establishes the presumption
• Not every circumstance which affords an inference as to the truth or falsity of a that, "In case of death of or injuries to passengers, common carriers are
matter alleged is considered evidence. presumed to have been at fault or to have acted negligently."
o To be considered evidence, the same must be "sanctioned" or allowed by o The same presumption applies when the goods on board a common carrier
the Rules of Court. are lost, destroyed or deteriorated
• It is not evidence if it is excluded by law or by the Rules even if it proves the existence o The constitutional presumption of innocence is also fitting example. The
or non-existence of a fact in issue. accused has no duty to prove his innocence because the law presumes that
o A hearsay evidence, a coerced extrajudicial confession of the accused and an accused in a criminal prosecution is innocent until the contrary is
an evidence obtained in violation of constitutional rights even if ultimately proven.
shown to correspond to the truth, do not fall within the definition of Sec. 5. Evidence is likewise dispensed with when a rule presumes the truth of a fact.
1 of Rule 128. o Under Rule 131, two kinds of presumptions, conclusive and disputable
• The definition provided for under Sec. 1 of Rule 128, significantly considers have been established
"evidence" not as an end in itself but merely as a "means" of ascertaining the truth i. The tenant is not permitted to deny the title of his landlord at
of a matter of fact. the time of the commencement of the relation of landlord and
• Equally significant is the observation that "evidence" as defined in the Rules of Court tenant between them. This presumption is conclusive against the
is a means of ascertainment of the truth not in all types of proceedings but tenant (Sec. 2[b], Rule 131, Rules of Court).
specifically in a "judicial proceeding." ii. It is disputably presumed that official duty has been regularly
• Evidence is required because of the presumption that the court is not aware of the performed (Sec. 3[m], Rule 131, Rules of Court).
veracity of the facts in a case.
• While the purpose of evidence is to know the truth, the truth referred to in the Distinction between proof and evidence
definition is not necessarily the actual truth, but one aptly referred to as the judicial Proof Evidence
or the legal truth. Proof is not the evidence itself. There is Evidence is the means, sanctioned by these
• Under Sec. 34 of Rule 132, courts, as a rule, are not even authorized to consider proof only because of evidence. It is merely rules, of ascertaining in a judicial proceeding
evidence which has not been formally offered. the probative effect of evidence and is the the truth respecting a matter of fact
o Thus, a supposed evidence that would undoubtedly show the innocence of conviction or persuasion of the mind
the accused will not be considered in the decision of the court if not resulting from a consideration of evidence.
formally offered in evidence. Proof is the effect or result of evidence. Evidence is the medium of proof.
o If it is evidence to the contrary that has been formally offered, it is the
latter which the court is bound to consider or appreciate. Factum probandum and factum probans

When evidence is required Evidence signifies a relationship between two facts, namely:
1. Implied from the definition of "evidence" in Sec. 1 of Rule 128 is the need for the Factum probandum Factum probans
introduction of evidence when the court has to resolve a question of fact. the fact or proposition to be established facts or material evidencing the fact or
proposition to be established
When evidence is NOT required: fact to be proved; the fact which is in issue the probative or evidentiary fact tending to
1. When the pleadings in a civil case do not tender an issue of fact, a trial need not be in a case and to which the evidence is prove the fact in issue
conducted since there is no reason to present evidence. directed
o It is ripe for judgment on the pleadings if P claims to have been injured by the The evidence offered by P, whether it be
2. Presentation of evidence may be dispensed with by agreement of parties negligence of D, who specifically denies object, documentary or testimonial,
having been negligent, the negligence of D constitutes the materials to prove the
liability of D. The totality of the evidence to
 that caused the injuries of P constitutes the prove the liability refers to the factum o As long as no law or principles of morality, good customs, and public policy
factum probandum of the suit probans are transgressed or no rights of third persons are violated, the rules on
Notes on Factum Probandum evidence may be waived by the parties. (Art. 6, Civil Code).
• If the factum probandum "signifies the fact or proposition to be established," then
matters of judicial notice, conclusive presumptions and judicial admissions cannot Section 2. Scope. — The rules of evidence shall be the same in all courts and in all trials and
qualify as parts of the factum probandum of a particular case because such hearings, except as otherwise provided by law or these rules.
matters need not be established or proven.
• In practical terms, the factum probandum in a civil case refers to the elements of Scope and Applicability of the Rules on Evidence
a cause of action alleged in the complaint as denied specifically by the defendant. • The rules on evidence in the Rules of Court are guided by the principle of uniformity.
• In criminal cases, when the accused pleads not guilty, the factum probandum As a general policy, the rules on evidence shall be the same in all courts and in all
refers to a matter that the prosecution must prove beyond reasonable doubt in trials and hearings.
order to justify a conviction • The rules on evidence, being components of the Rules of Court, apply only to judicial
• The mere filing of the complaint does not ipso facto give rise to a factum proceedings
probandum. o In relation to this, Sec. 4, of Rule 1 Provides for the non-applicability of the
o When the defendant files his answer and makes no specific denial of the Rules of Court, including necessarily the rules on evidence, to certain
averments of the complaint, no factum probandum arises because of the specified proceedings. The Provision declares:
admissions. o "SEC. 4. In what cases not applicable. - These Rules shall not apply to:
o Where, let us say, the defendant specifically denies a material allegation in § election cases,
the complaint, the matter denied becomes the factum probandum, the fact § land registration,
to be established. Same rule for civil and criminal cases. § cadastral,
§ naturalization and
Liberal construction of the rules on evidence § insolvency proceedings, and
• Like all other provisions under the Rules of Court, the rules on evidence must be § other cases not herein provided for,
liberally construed (Sec. 6, Rule 1, Rules of Court). • except by analogy or in a suppletory character and
• Rules of procedure are mere tools intended to facilitate rather than frustrate the whenever practicable and convenient."
attainment of justice. • The general rule is that administrative agencies are not bound by the technical rules
• However, the rule on liberal construction is not a license to disregard the evidence, on evidence.
or lack thereof on record; or to misapply the laws o It can accept documents which cannot be admitted in a judicial proceeding
• The Rules on Electronic Evidence shall, likewise, be construed liberally where the Rules of Court are strictly observed. It can choose to give weight
or disregard such evidence, depending on its trustworthiness
Absence of a vested right in the rules on evidence o Example of admin bodies where strict rules of evidence not applied:
§ Board of Medicine
• There is no vested right in the rules on evidence because said rules are subject to
§ Civil Service Commission
change by the Supreme Court pursuant to its powers to promulgate rules concerning
§ Petition for Naturalization
pleading, practice and procedure (Sec. 5[5], Art. VIII, Constitution of the Philippines).
o UNLESS: applied by analogy or in a suppletory character and whenever
• The change in the rules on evidence is, however, subject to the constitutional
practicable and convenient.
limitation on the enactment of ex post facto laws (Sec. 22, Art. III, Bill of Rights,
• The technical rules of evidence are not binding on labor tribunals. Thus, the
Constitution of the Philippines).
argument, that the written statements of certain employees are hearsay because
o An ex post facto law includes that which alters the rules on evidence and
such employees were not presented for cross-examination, is not persuasive.
receives less or different testimony than that required at the time of the
o The rules of evidence are not strictly observed in proceedings before the
commission of the offense in order to convict the accused
National Labor Relations Commission (NLRC) which are summary in nature
and decisions may be made on the basis of position papers.
Waiver of the rules on evidence
o NLRC is not precluded from receiving evidence for the first time on appeal.
• The rules on evidence may be waived. When an otherwise objectionable evidence
o Mere photocopies of evidence allowed
is not objected to, the evidence becomes admissible because of waiver.
o Parol evidence should not be strictly applied.
o Where a party fails to object to hearsay evidence, then the same becomes
admissible
Application of the Rules on Electronic Evidence
• May the parties stipulate waiving the rules on evidence?
 • While the definition of "evidence" under the Rules of Court makes reference only to (Note: As amended by 19-08-15-SC, the
judicial proceedings, the provisions of the Rules on Electronic Evidence apply as well Dead Man’s statute is no longer a
to quasi-judicial and administrative cases (Sec. 2, Rule 1 of the Rules on Electronic disqualification, but is now an exception to
Evidence). the hearsay rule. It still applies to the same
o SC: provisions of the Rules on EE do not apply to criminal actions, but only proceedings)
to civil, quasi-judicial and administrative actions The privileged communication rule on It does not apply to a criminal case.
§ Note however, People v. Enojas, where the RTC admitted the patient-physician relationship has reference
text messages against accused in conformity with the Court’s only to a civil case.
earlier resolution expanding Rules on EE to criminal cases. The rule on admission by a conspirator does The rule on admission by a conspirator
• Ephemeral communications are not admissible, subjected to certain conditions. not apply to a civil case applies only to a criminal case.
o Ephemeral electronic communication refers to telephone conversations, The rule on extrajudicial confession does The rule on extrajudicial confession applies
text messages, chatroom sessions, streaming audio, streaming video, and not apply to the defendant in a civil case to the accused in a criminal case.
other forms of communication the evidence of which is not recorded or
retained. B. Admissibility of Evidence

Some distinctions between evidence in civil cases and evidence in criminal cases Section 3. Admissibility of evidence. — Evidence is admissible when it is relevant to the issue
Civil Cases Criminal Cases and not excluded by the Constitution, the law or these Rules. 1
The party having the burden of proof must The guilt of the accused has to be proven
prove his claim by a preponderance of beyond reasonable doubt Rationale for Revisions (Explanatory Notes of SC, 2019 Revised Rules of Evidence)
evidence • The addition of the words "the Constitution" simply seeks to make explicit the fact
An offer of compromise is not admission of Except those involving quasi offenses that the 1987 Constitution contains a number of exclusionary rules of evidence, to
any liability and is not admissible in (criminal negligence) or those allowed by wit : Article 111, Sections 2, 3 (1) and (2); 12 (1), (2) and (3) ; and 17.
evidence against the offeror law to be compromised, an offer of
compromise by the accused may be Requisites for the admissibility of evidence
received in evidence as an implied For evidence to be admissible, two elements must concur, namely:
admission of guilt. 1. the evidence is relevant; and
The concept of presumption of innocence The accused enjoys constitutional 2. the evidence is not excluded by the Constitution, the law, or these rules (competent)
does not apply and generally, there is no presumption innocence. • These two elements correspond to Wigmore's two axioms of admissibility, namely:
presumption for or against a party except in o That none but facts having rational probative value are admissible; and
certain cases provided by law. E.g., a o That all facts having rational probative value are admissible unless some
common carrier is presumed to be negligent specific rule forbids them
if a passenger is injured. § The first axiom is, in substance, the axiom of relevance while the
Concept of confession does not apply to civil A confession is a declaration of an accused second is the axiom of competence.
cases which use the more appropriate term, acknowledging this guilt of the offense • The formula for admissibility is a simple one. To be admissible, the evidence must be
“admission.” charged. both relevant and competent.
Evidence of moral character of a party is The prosecution is not allowed to prove the
admissible as long as it is pertinent to the bad moral character of the accused even if Illustrations of the requisites for admissibility
issue of character involved in the case. it is pertinent to the moral trait involved. It 1. In a prosecution for homicide, the witness swears that the accused killed the victim
can only do so in rebuttal. because his ever truthful friend told him so. The testimony, although relevant, is not
The rule on disqualification by reason of It does not apply to criminal cases. The rule admissible because the witness was not testifying based on his personal knowledge
death or insanity under Sec. 23 of Rule 130, only involves a claim or demand against the of the event. It is hearsay and incompetent.
applies only to civil cases or special estate of the deceased or the person of 2. The wife of the accused testified that the husband admitted to her in confidence that
proceedings. unsound mind. it was he who killed their neighbor. If the testimony is offered as evidence against
the husband and is objected to by the latter, the testimonial evidence will be
inadmissible by virtue of a particular provision of the Rules. It is incompetent.

1. The amendment in Sec. 3 is that evidence may be inadmissible if excluded also by the Constitution. In the Constitution, there are basic rights that may affect the admissibility of evidence, such as those covered by the Bill of Rights.
 3. In a collection case, if the subject of the testimony includes the alleged frequent against the declarant himself as an admission pursuant to Sec. 26 of Rule
bouts of dizziness of the debtor, that portion of the testimony is made inadmissible 130.
because such is irrelevant to the issue of whether or not a debt exists.
4. If a defense witness testifies having actually seen the alleged victim fire a gun first at Conditional admissibility
the accused without the latter's provocation, the testimony of the eyewitness is • It happens frequently enough that the relevance of a!piece of evidence is not
competent and the matters testified to are relevant to the plea of self-defense. The apparent at the time it is offered, but the relevance of which will readily be seen
testimony is, thus, admissible. when connected to other pieces of evidence not yet offered.
5. Upon a timely objection, oral evidence will be excluded to prove a contract of a sale • The proponent of the evidence may ask the court that the evidence be conditionally
of a parcel of land which does not conform to the statute of frauds (Art. 140.3{2], admitted in the meantime, subject to the condition that he is going to establish its
Civil Code of the Philippines). It is inadmissible because it is excluded by law; hence, relevancy and competency at a later time.
incompetent. o If the connection is not shown as promised, the court may, upon motion
6. Documents obtained in violation of constitutional guarantees, although containing of the adverse party, strike out from the record the evidence that was
relevant matters, are inadmissible because they are illegally obtained, as when previously conditionally admitted.
evidence is illegally seized.
a. An extrajudicial confession, made during custodial investigation, is Curative admissibility
inadmissible when made in violation of a person's Miranda rights. • The doctrine of curative admissibility allows a party to introduce otherwise
inadmissible evidence to answer the opposing party's previous introduction of
Admissibility and weight (probative value} of the evidence inadmissible evidence.
• Admissibility of evidence refers to the question of whether or not the evidence is to o Thus, a party who first introduces either irrelevant or incompetent
be considered at all. evidence into the trial cannot complain of the subsequent admission of
• The probative value of the evidence refers to the question of whether or not it similar evidence from the adverse party relating to the same subject
proves an issue matter.
• Thus, a particular item of evidence may be admissible, but its evidentiary o Conversely, the doctrine should not be invoked where evidence was
weight depends on judicial evaluation within the guidelines provided by properly admitted.
the rules on evidence. o Example, if hearsay evidence prejudicial to the defendant is erroneously
• The admissibility of evidence should not be equated with the weight of the evidence. admitted despite objection, under the principle of curative admissibility,
• The admissibility of the evidence depends on its relevance and competence while the court should allow hearsay evidence favorable to the same defendant.
the weight of evidence pertains to its tendency to convince and persuade.
Tranquil Salvador
Multiple admissibility o To be admissible, evidence must be competent:
• There are times when a proffered evidence is admissible for two or more purposes. § Relevant
• For example, the declaration of a dying person may be admissible for several § Not excluded by the Constitution, the law, or these Rules
purposes. o Ex. Search and seizure, Anti-Wiretapping Law, Rule 115 on no right to be compelled
o It may be offered as a dying declaration (Sec. 37, Rule 130, Rules of Court), as a witness against himself
part of the res gestae (Sec. 42, Rule 130, Rules of Court), or declaration
against interest (Sec. 38, Rule 130, Rules of Court). Section 4. Relevancy; collateral matters. — Evidence must have such a relation to the fact in
o The statement by a bus driver immediately after the collision, that he issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall
dozed off in the wheel while driving, may be admissible as an admission not be allowed, except when it tends in any reasonable degree to establish the probability or
under Sec. 26 of Rule 130 or as part of the res gestae improbability of the fact in issue.
• Evidence is inadmissible for one purpose but admissible for another or vice versa.
o For instance, evidence of a person's bad general reputation for truth, Relevant evidence
honesty, or integrity is objectionable if offered to prove that he committed • Evidence, to be relevant must have such a relation to the fact in issue as to induce
the crime charged but it may be admissible to impeach the credibility of a belief in its existence or non-existence.
witness under the authority of Sec. 11 of Rule 132. o It deals with the rational relationship between the evidence and the fact
• Evidence may also be admissible against one party but not against another. to be proved.
o An extrajudicial statement of a robbery suspect is not admissible against • The matter of relevance under the Rules of Court requires the existence of a fact in
his co-accused under the res inter alios acta rule but may be admissible issue. Necessarily, this fact in issue must be a disputed fact.
 o Since relevant evidence necessarily relates to a disputed fact, it is obvious • A matter is collateral when it is on a "parallel or diverging line," merely "additional"
that evidence offered to prove an undisputed fact is irrelevant and, as or "auxiliary" (Black's Law Dictionary).
such, inadmissible. • This term connotes an absence of a direct connection between the evidence and the
o Where there is no issue as to a matter of fact, there exists no purpose for matter in dispute.
an item of evidence. • For instance, the motive of a person and, in some instances, his reputation are
• It is the relation to the fact in issue which makes evidence either relevant or matters that may be considered collateral to the subject of a controversy.
irrelevant. o A very strong motive to kill the victim does not ipso facto make motive
o If the evidence induces belief as to the existence or non-existence of the relevant to the issue of guilt or innocence because the person with
fact in issue, the evidence is relevant. absolutely no motive to kill could be the culprit.
o If it does not induce such belief, it is irrelevant. o Evidence of the bad reputation of the accused for being troublesome and
• When an advocate offers a piece of evidence for the court's consideration, he offers aggressive does not make the evidence admissible to prove his guilt. After
the evidence to prove a fact. This fact may either be the immediate fact in issue or all, the culprit could have been the person with the most endearing
the ultimate fact in issue. reputation.
o Take the case of the standard car accident as example. Counsel for the
plaintiff presents the testimony of another car driver to testify that the When collateral matters are allowed
defendant was driving at a speed of 120 km per hour at the time plaintiff • As a rule, evidence on a collateral matter is not allowed.
was sideswiped and injured by the defendant. o It is not allowed because it does not have direct relevance to the issue of the
o Whether or not such testimony meets the test of relevance will depend case.
upon what counsel wants to prove by the testimony. Initially, counsel o This rule, however, is not an absolute rule. There exists an occasion when
would want to prove that, at the time of the accident, the defendant was evidence on a collateral matter may be allowed.
driving way beyond the speed limit. This is the immediate fact sought to be • Under the Rules of the Court, a collateral matter may be admitted if it tends in any
established. reasonable degree to establish the probability or improbability of the fact in issue.
o Since there is a traceable connection between the substance of the o While the collateral evidence may not bear directly on the issue, it will be
testimony and the fact to be proved, the testimony is relevant. admitted if it has the tendency to induce belief as to the probability or
o On the other hand, if the testimony is offered to prove that the defendant improbability of the issues of the case as when it would have the effect of
is a thief, the testimony has no logical connection at all to the fact sought corroborating or supplementing facts previously established by direct
to be proved. The testimony is, hence, irrelevant. evidence.
• Relevance further requires that the immediate fact proved must have a connection • Illustration: Although evidence of character is generally inadmissible, the accused
to the ultimate issue. may prove his good moral character which is pertinent to the moral trait involved in
o Same example: the usual ultimate issue in every automobile accident case the offense charged.
is whether or not the damage caused to the plaintiff arose out of the o In civil cases, evidence of the moral character of a party is admissible when
defendant's negligent operation of his car. pertinent to the issue of character involved in the case
o The question that should necessarily be asked is: Is the immediate fact o Also, evidence of the good character of a witness is admissible if his character
proved, i.e., defendant's driving beyond the speed limit, related to the has been previously impeached
issue of negligence? If it is, then the fact proved is relevant evidence. If it
is not related to the issue of negligence, it is irrelevant. Relevance of evidence on the credibility of a witness
• Evidence on the credibility of a witness, or the lack of it, is always relevant because
Test for determining the relevancy of evidence it has the inherent tendency to prove or disprove the truthfulness of his assertion
• Relevance is a matter of relationship between the evidence and the fact in issue. The and, consequently, the probative value of the proffered evidence.
determination of relevance is, thus, a matter of inference and not of law. The test is, • Every type of evidence sought to be admitted, whether it be an object or document,
therefore, one of logic, common sense, and experience. requires the testimony of a witness who shall identify, testify, and affirm or deny the
• SC: "There is no precise and universal test of relevancy provided by law. However, authenticity of the evidence.
the determination of whether particular evidence is relevant rests largely at the o Thus, when the credibility of the sponsoring witness is found wanting, Sec. 11
discretion of the court, which must be exercised according to the teachings of logic of Rule 132 authorizes his impeachment:
and everyday experience." § By evidence that, in the past, he has made statements
inconsistent with his present testimony, or
Collateral matters § by evidence that his general reputation for truth, honesty or
 integrity is bad. § suffers from a disqualification to be one.
• There is no test of the truth of human testimony except its conformity to our
knowledge, observation, and experience. Competence of electronic evidence
o Whatever is repugnant to these belongs to the miraculous, and is outside of • Electronic evidence is competent evidence and is admissible if
judicial cognizance. o it complies with the rules on admissibility prescribed by the Rules of
• The importance of the credibility of a witness in a judicial proceeding is highlighted Court and related laws, and
by rules which allow the adverse party to test such credibility through a process o is authenticated in the manner prescribed by the Rules on Electronic
called cross-examination. (to be updated; re amendments) Evidence (Sec. 2, Rule 3, Rules on Electronic Evidence).
o not only on matters taken up in the direct examination
o It includes questions designed to grant the cross-examiner sufficient fullness Competency of a witness distinguished from his credibility
and freedom to test the accuracy and truthfulness of the witness, his freedom • The competency of a witness differs from his credibility.
from interest or bias, or the reverse. o A witness may be competent, and yet give incredible testimony; he may
• Instances provided in the rules where the questions of the cross-examiner are be incompetent, and yet his evidence, if received, is perfectly credible.
circumscribed by the matters taken up in the direct examination: • The term "credibility" refers to worthiness of belief, that quality which renders a
o An accused may testify as a witness on his own behalf "but subject to cross- witness worthy of belief.
examination on matters covered by direct examination" o ''believability"
o A hostile witness may be impeached and cross-examined by the adverse party, • After the competence of a witness is allowed, the consideration of his credibility
but such cross-examination “must only be on the subject matter of his follows.
examination-in-chief”
• Since Sec. 6 of Rule 132 affirms the legitimacy of inquiries into the credibility and Admissible evidence and credible evidence
biases of a witness, any objection to a question that intends to demonstrate the lack • Admissible evidence is not necessarily credible evidence. They are entirely two
or absence of credibility of the witness on the ground that it is irrelevant or merely different matters and involve different concepts.
collateral does not deserve to be sustained. • 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
Competent evidence (as amended) at the trial.
• One that is not excluded by the Constitution, law or rules in a particular case. • Admissibility, however, does not guarantee credibility.
• If the test of relevance is logic and common sense, the test of competence is the
constitution, law or rules. Some jurisprudential tenets on probative value and credibility
o If the Constitution, law or a particular rule excludes the evidence, it is • Whatever is repugnant to the standards of human knowledge, observation and
incompetent. experience becomes incredible and must lie outside judicial cognizance.
o Competence is primarily, therefore, a matter of law or rule. • The determination by the trial court of the credibility of witnesses, when affirmed by
o The question as to competence is: Is the evidence allowed by the the appellate court, is accorded full weight and credit as well as great respect, if not
Constitution, law, or rules? conclusive effect except when facts or circumstances of weight and influence were
• However, when applied to a witness, the term competent refers to the qualifications overlooked or the significance of which was misappreciated or misinterpreted by the
of the witness. lower courts
o competence refers to his eligibility to take the stand and testify. o The task of assigning values to the testimonies of witnesses and weighing
o It is in this context that the term is normally associated with. their credibility is best left to the trial!judge by virtue of the first-hand
• If evidence offered is objected to on the ground that it is incompetent, such objection impressions he derives while the witnesses testify before him.
is not an accepted form of objection because it is a general objection. § Their forthright answers or hesitant pauses, their quivering
o The objection should specify the ground for its incompetence such as voices or angry tones, their flustered looks or sincere gazes, their
leading, hearsay or parol. modest blushes or guilty glances — all these can reveal if the
o Thus, for purposes of trial objections, evidence is never incompetent. It is witnesses are telling the truth or lying in their teeth
people who are. It is sloppy usage to object to a testimony or document as • The Court is guided by the following jurisprudence when confronted with the issue
incompetent. of credibility of witnesses on appeal:
o Such term more appropriately describes a witness who, under o First, the Court gives the highest respect to the RTC's evaluation of the
evidentiary rules: testimony of the witnesses, considering its unique position in directly
§ does not possess the qualifications of a witness or observing the demeanor of a witness on the stand. From its vantage point,
 the trial court is in the best position to determine the truthfulness of Denials do not prevail over positive evidence
witnesses. • Denials, which are essentially negations of a fact, do not prevail over an affirmative
o Second, absent any substantial reason which would justify the reversal of assertion of such fact. Trial and appellate courts have generally viewed such
the RTC's assessments and conclusions, the reviewing court is generally defense in criminal cases with considerable caution, if not with outright rejection.
bound by the lower court's findings, particularly when no significant facts • Denials are inherently weak and unreliable by virtue of their being excuses that are
and circumstances, affecting the outcome of the case, are shown to have too easy and too convenient for the guilty to make
been overlooked or disregarded. • Between the categorical statements of prosecution witnesses and the bare denial of
o And third, the rule is even more stringently applied if the CA concurred the accused, the former must prevail.
with the RTC. • Denial, as a defense, can only prosper when substantiated by clear and convincing
• People react differently under emotional stress. Consequently, the failure of evidence.
complainant to run away or shout for help at the very first opportunity cannot be o This pronouncement indicates that a denial is not a totally impotent
construed consent to the sexual intercourse defense.
• Minor inconsistencies in the narration of facts by the witnesses do not detract from
their essential credibility as long as their testimonies on the whole are coherent and Miscellaneous Doctrines
intrinsically believable.
o Trivial inconsistencies do not rock the pedestal upon which the credibility Falsus in uno, falsus in omnibus
of witnesses rests, but enhances credibility as they manifest spontaneity • Literally means "false in one thing, false in everything".
and lack of scheming o It is particularly applied to the testimony of a witness who may be
o Jurisprudence even warns against a perfect dovetailing of narration by considered unworthy of belief as to all the rest of his evidence if he is
different witnesses as it could mean that their testimonies were fabricated shown to have testified falsely in one detail
and rehearsed • The maxim falsus in uno, falsus in omnibus is not an absolute rule of law and is, in
fact, rarely applied in modern jurisprudence.
Inadmissible evidence in relation to arrests, searches and seizures o Modern trend in jurisprudence favors more flexibility when the testimony
• In order to determine the admissibility of the seized items in evidence, it is of a witness may be partly believed and partly disbelieved depending on
indispensable to ascertain whether or not the search, which yielded the alleged the corroborative evidence presented at the trial
contraband, was lawful. o It is not a positive rule of law and is not strictly applied in this jurisdiction.
o The warrantless search would be justified only if it were incidental to a lawful • Before this maxim can be applied, the witness must be shown to have willfully
arrest falsified the truth on one or more material points. The principle presupposes the
• If the arrest is invalid and hence the search is the same, the seized evidence is existence of a positive testimony on a material point contrary to subsequent
inadmissible. declarations in the testimony.
o SC: “While the witnesses may differ in their recollections of an incident, it
(Note: discussion of direct vs. circumstantial evidence and corroborative vs. cumulative does not necessarily follow from their disagreements that all of them
evidence moved to Rule 133) should be disbelieved as liars and their testimonies completely discarded
as worthless.”
Positive and negative evidence o SC: “To completely disregard all the testimony of a witness on this ground,
Positive Evidence Negative Evidence his testimony must have been false as to a material point, and the witness
when a witness affirms in the stand that a when the witness states that an event did must have a conscious and deliberate intention to falsify a material point.”
certain state of facts does exist or that a not occur or that the state of facts alleged
certain event happened to exist does not actually exist Alibi; denial
Example: testimony of W that he saw P fire Example: testimony of W that he could not • Defense of alibi is inherently weak and must be rejected when the identity of the
a gun at the victim have fired the gun because he was not accused is satisfactorily and categorically established by the eyewitnesses to the
armed during the incident offense, especially when such eyewitnesses have no ill-motive to testify falsely
Positive and negative evidence may, likewise, refer to the presence or absence of o Denial, which is the usual refuge of offenders, is an inherently weak
something defense, and must be buttressed by other persuasive evidence of non-
Example: the presence of fingerprints of a person in a particular place is positive evidence culpability to merit credibility.
of his having been present in said place although absence of his fingerprints does not o Positive identification prevails over alibi since the latter can be easily
necessarily mean he was not in the same place fabricated and is inherently unreliable
Alibi; not always false Delay and initial reluctance in reporting a crime
• While the defense of alibi is by nature a weak one, it assumes significance and • Delayed reporting by witnesses of what they know about a crime does not render
strength where the evidence for the prosecution is also intrinsically weak. their testimonies false or incredible, for the delay may be explained by the natural
o The rule that alibi is a weak defense has never been intended to change reticence of most people and their abhorrence to get involved in a criminal case.
the burden of proof in criminal cases. The burden of proof still lies in the o But, more than this, there is always the inherent fear of reprisal, which is
prosecution to establish the guilt of the accused quite understandable, especially if the accused is a man of power and
• But to be exonerating, the defense of alibi must be so airtight that it would admit of influence in the community.
no exception. It must be demonstrated that the person charged with the crime was o The natural reluctance of a witness to get involved in a criminal case, as
not only somewhere else when the offense was committed but was so far away well as to give information to the authorities, is a matter of judicial notice
that it would be physically impossible to be at the place of the crime or its • Even the victim may choose to keep quiet rather than expose a defilement to the
immediate vicinity at the time of its commission. harsh glare of public scrutiny. Only when the delay is unreasonable or unexplained
o The reason is that no person can be in two places at the same time may it work to discredit the complainant.
o Physical impossibility refers to distance and facility of access between the
situs criminis and the location of the accused when the crime was Flight or non-flight of the accused
committed. • Flight per se is not synonymous with guilt. However, when flight is unexplained, it is
§ He must demonstrate that he was so far away and could not have a circumstance from which an inference of guilt may be drawn.
been physically present at the scene of the crime and its o Flight betrays a desire to evade responsibility and is, therefore, a strong
immediate vicinity when the crime was committed indication of guilt.
o Cases of invalid alibi: • Case: The fact that appellants never fled the locality where the crime was committed
§ Accused claimed be to merely 7 kms from where the killings is not, by itself, a valid defense against the prosecution's allegations because non-
occurred flight does not signify innocence.
§ Takes only 1 hour to travel by plane from Manila to Cebu and o Non-flight is simply inaction, which may be due to several factors. It cannot
there are 4 airlines plying the route be singularly considered as evidence or a manifestation determinative of
innocence.
Frame-up o There is no law or principle holding that non-flight per se is proof, let alone
• Allegations of frame-up by police officers are common and standard defenses in conclusive proof, of innocence.
most dangerous drugs cases. o Much like the defense of alibi, the defense of non-flight cannot prevail
• For this claim to prosper, the defense must adduce clear and convincing evidence to against the weight of positive identification of the appellants
overcome the presumption that government officials have performed their duties in
a regular and proper manner. RULE 129
o In the absence of proof of motive to falsely impute such a serious crime What Need Not Be Proved
against the accused, the presumption of regularity in the performance of
official duty shall prevail Section 1. Judicial notice, when mandatory. — A court shall take judicial notice, without the
• The defense of frame-up is not looked upon with favor due to its being conveniently introduction of evidence, of the existence and territorial extent of states, their political history,
concocted. forms of government and symbols of nationality, the law of nations, the admiralty and
• Case: the accused did not assail the integrity of the drug confiscated from him except maritime courts of the world and their seals, the political constitution and history of the
by insisting on being framed-up by the policemen. Philippines, official acts of the legislative, executive and judicial departments of the National
o The Court considered the defense as insincere because the accused did not Government of the Philippines, the laws of nature, the measure of time, and the geographical
bother to formally charge the policemen for the supposed frame-up and divisions.2
extortion.
o Such failure can only be regarded, according to the Court, as his tacit A. Judicial Notice
admission that the evidence had not been tampered or meddled with. • Judicial notice is based on the maxim, “what is known need not be proved”; hence
o The Court observed that the accused did not even adduce evidence to when the rule is invoked, the court may dispense with the presentation of evidence
substantiate his story of being falsely incriminated on judicially-cognizable facts.
• Matter of expediency and convenience.

2. The amendment in Sec. 1 pertains to recognizing the official acts of the legislative, executive and judicial departments of the National Government of the Philippines
 • Judicial notice is equivalent to proof o ought to be known to judges because of their judicial functions
• Examples of matters which are admitted without proof: • Principle guide in determining what facts may be assumed to be judicially-known is
o That there’s a place called “Quezon City” that of NOTORIETY
o That a statute exists o Judicial notice is limited to facts evidenced by public records and facts of
o That there are 24 hours in a day general notoriety.
o The sun rises in the east and sets in the west o A judicially-noticed fact must be one not subject to a reasonable dispute
in that it is either:
Function of judicial notice 1. generally known within the territorial jurisdiction of the trial court; or
• Takes the place of proof and is of equal force. 2. capable of accurate and ready determination by resorting to sources whose accuracy
• It makes evidence unnecessary as its common knowledge not be disputable. cannot reasonably be questionable.
o Things of “common knowledge” of which courts take judicial notice of
When judicial notice is mandatory (as amended) § Are matters coming to the knowledge of men generally in the
• A matter of judicial notice may either be mandatory (Sec. 1) or discretionary (Sec. 2). course of the ordinary experiences of life, or
• When the matter is subject to mandatory judicial notice, no motion or hearing is § they may be matters which are generally accepted by mankind
necessary for the court to take judicial notice of such matter as true and are capable of ready and unquestioned
• Matters subject to mandatory judicial notice: (EPLAPOLMG/ GAME-PPOLL) demonstration.
o Existence and territorial extent of states § Thus, facts which are universally known, and which may be found
o Political history, forms of government and symbols of nationality of states in encyclopedias, dictionaries or other publications, are judicially
o Law of nations noticed, provided, they are of such universal notoriety and so
o Admiralty and maritime courts of the world and their seals generally understood that they may be regarded as forming
o Political constitution and history of the Philippines part of the common knowledge of every person.
o Official acts of the legislative, executive, and judicial departments of the § But a court cannot take judicial notice of any fact which, in part,
National Government of the Philippines is dependent on the existence or non-existence of a fact of which
o Laws of nature the court has no constructive knowledge
o Measure of time, AND o Cases:
o Geographical divisions. § The power to take judicial notice is to be exercised by courts with
• Cases of mandatory judicial notice: caution especially in an expropriation case which involves a vast
o Amendment to the Rules of Court. tract of land. There must be notoriety and doubt should be
§ It is an official act of the judicial department. promptly resolved in the negative.
o University of the Philippines’ title to certain lots. § Court took judicial notice of the alleged prevailing market value
§ The Congress and SC have both officially recognized the of agricultural lands
university’s indefeasible title to it landholdings.
Judicial notice and knowledge of the judge
Tranquil Salvador • Judicial notice may be taken of a fact which judges ought to know because of their
o Established, settled, and readily verifiable judicial functions. BUT judicial notice is not judicial knowledge.
o The judge is expected to take notice o Mere personal knowledge of the judge is not the judicial knowledge of the
court, and he is not authorized to make his individual knowledge of a fact, not
Section 2. Judicial notice, when discretionary. — A court may take judicial notice of matters generally or professionally known, as the basis of his action
which are of public knowledge, or are capable to unquestionable demonstration, or ought to o And a judge must take judicial notice of a fact if it is one which is the proper
be known to judges because of their judicial functions. subject of judicial cognizance even if it is not within his personal knowledge.

When judicial notice is discretionary Section 3. Judicial notice, when hearing necessary. — During the pre-trial and the trial, the
• Matters which: court, motu proprio, or upon motion, shall hear the parties on the propriety of taking judicial
o Are of public knowledge, or notice of any matter. 3
o Are capable to unquestionable demonstration, or

3. The amendment in Sec. 3 recognizes, among others, the judicial notice may be announced also during the pre-trial. Also, the court may motu proprio or upon motion”, instead of “on request”, hear the parties on giving a matter judicial notice.
Before judgment or on appeal, the court, motu proprio or upon motion, may take judicial o For ex. The charter of Manila requires all courts sitting therein to take JN
notice of any matter and shall hear the parties thereon if such matter is decisive of a material of all ordinances passed by the city council.
issue in the case.4 o BUT: RTC must take JN also of municipal ordinances in cases on appeal to
it from the inferior court in which the latter took JN.
Stage when judicial notice may be taken (as amended) • The CA may take JN of municipal ordinances because an ordinance is capable of
• Court may take judicial notice of a fact motu proprio or upon motion by any party unquestionable demonstration.
and may allow the parties to be heard.
• Judicial notice may be taken during the pre-trial or trial of the case. Tranquil Salvador
• JN may also be taken by the proper court before trial and or an appeal if such matter • SJS v. City of Manila: SC cannot take judicial notice of an ordinance
is decisive of a material issue in the case. o However, Trial Courts, if the ordinance is within their territorial
jurisdiction, should take judicial notice over ordinances
Tranquil Salvador
o Courts can take judicial notice of any matter No JN of records of other cases; exceptions
• While a court will take JN of its own acts and records in the same case, as a rule,
Judicial notice of foreign laws; doctrine of processual presumption courts are not authorized to take JN of the contents of records of other cases
• Our courts cannot take judicial notice of foreign laws. Like any other facts, they must • Even when such cases have been tried or are pending in the same court,
be alleged and proved. and notwithstanding the fact that both cases may have been heard or are
o Australian marital laws, for example, are not among those matters that actually pending before the same judge.
judges are supposed to know by reason of their judicial functions • Exceptions to the rule in the immediate paragraph:
• Foreign laws must be alleged and proved. In the absence of proof, the foreign law • when, in the absence of any objection and with the knowledge of the
will be presumed to be the same as the laws of the jurisdiction hearing the case opposing party, the contents of said other case are clearly referred to by
under the doctrine of processual presumption title and number in a pending action and adopted or read into the record
o Case: Court cannot determine whether the termination of plaintiff is in of the latter; or
accordance with Singaporean law because of the failure to prove the • when the original record of the other case or any part of it is actually
applicable law of Singapore. Philippine courts do not take judicial notice of withdrawn from the archives at the court's discretion upon the request,
foreign laws. In the absence of evidence of the law of the foreign country, or with the consent, of the parties, and admitted as part of the record of
Philippine laws should be applied. the pending case
• It was, however, held that where the foreign law is within the actual knowledge of
the court, such as when: Judicial notice of other matters
o the law is generally well-known, • No JN of proprietary acts of government-owned and controlled corporations.
o had been ruled upon in previous cases before it, and o A management contract entered into by a GOCC like the Phil. Ports
o none of the parties claim otherwise, Authority is not an official act of the executive because it was entered into
§ the court may take judicial notice of the foreign law while performing a proprietary function.
• When the foreign law refers to the law of nations, said law is subject to mandatory • No JN of post office practices
judicial notice under Sec. 1, Rule 129. o How a letter is stamped and receipt delivered is not of unquestionable
o PH Constitution: PH adopts the generally-accepted principles if demonstration
international law as part of the law of the land • Courts are not mandated to take JN of the practice of banks in conducting
o They are in the nature of local law. background checks on borrowers and sureties under Sec. 1.
o BUT: court MAY take discretionary JN under Sec. 2 because it is of public
Judicial notice of municipal ordinances knowledge or ought to be known to judges because of their judicial
• MTCs should take judicial notice of municipal ordinances in force in the municipality functions.
in which they sit o The court has taken JN that it is their uniform practice, before approving a
• RTCs should also take JN of municipal ordinances in force in the municipalities within loan, to investigate, examine and assess would-be borrowers' credit
their jurisdiction but only when so required by law. standing or real estate offered as security for the loan applied for.

4. The amendment in the same section removed the phrase “After the trial”, which actually involves proceedings “before judgment.” Further, the use of the terms “motu proprio” and “upon motion” are consistent with the use thereof in the 1st par. of
Sec. 3.
 • Judicial notice could be taken of the fact that the government is and has for many • Notwithstanding a person's standing in the business community, the court cannot
years been financially strapped, to the point that even the most essential services take JN of said person's home address or office
have suffered serious curtailment
• Courts should take JN of the president’s power to reorganize the executive Section 4. Judicial admissions. — An admission, oral or written, made by the party in the
department under RA 6734. course of the proceedings in the same case, does not require proof. The admission may be
• No JN of the assessed value of a realty contradicted only by showing that it was made through palpable mistake or that the imputed
• There is JN that an overseas worker bears a great degree of emotional strain while admission was not, in fact, made. 5
making an effort to perform his work well.
• No JN of an administrative regulation or of a statute that is not yet effective B. Judicial Admissions (as amended)
o A law which is still inexistent cannot be common knowledge capable of • A judicial admission requires no proof. They are legally binding on the party making
unquestionable demonstration the admission
• There is JN that there are still municipalities which have neither lawyers nor notaries • To be a judicial admission under Sec. 4 of Rule 129, certain elements must be
public and that MTC and MCTC judges may act as notaries public ex officio and considered:
perform any act within the competency of a regular notary public o First, the same must be made by a party to the case.
• No JN of private complainant's age to be fourteen. It should have required § Admissions of a non-party do not fall within the definition of Sec.
competent evidence, such as her birth certificate, as proof of the victim's actual age 4 of Rule 129.
at the time of the commission of the offense, even if minority is alleged in the o Second, the admission, to be judicial, must be made in the course of the
information proceedings in the same case.
• Although JN may be taken of teleconferencing (video conferencing, computer § Thus, an admission made in another judicial proceeding will not
conferencing, audio-conferencing) as a means of making business transactions, there be deemed a judicial admission in another case where the
is no judicial notice that one was conducted in a particular case. admission was not made.
• It can be JN that the scene of the rape is not always nor necessarily isolated or • Instead, it will be considered an extrajudicial
secluded, for lust is no respecter of time or place. admission for purposes of the other proceeding where
• There is JN that Talamban, Cebu City is an urban area. such admission is offered.
o JN is the cognizance of certain facts which judges may properly take and o Third, Sec. 4 of Rule 129 does not require a particular form for an
act on without proof because they already known to them. admission.
o A municipal jurisdiction, whether designated as chartered city or provincial § Such form is immaterial because the provision recognizes either
capital, is considered as urban in its entirety if it has a population density oral or written admission.
of at least 1,000 persons per square kilometer. • The stipulation of facts at the pre-trial of a case constitutes judicial admissions and
• There is JN that the judiciary is beset with the gargantuan task in unclogging dockets, conclusive upon them.
not to mention the shortages of judges occupying positions in far-flung areas. • A party may make judicial admissions in (a) the pleadings, (b) during trial, either by
• There is JN that testimonies during trial are much more exact and elaborate than oral or written manifestations or stipulations, or (c) in other stages of the judicial
those stated in sworn statements, usually being incomplete and inaccurate for a proceedings
variety of reasons, at times because of partial and innocent suggestions or for want
of specific inquiries Admissions in pleadings and motions
• There is JN of scientific findings that drug abuse can damage the mental faculties of • Judicial admissions include admissions made in the:
the user - it is beyond question, therefore, that any employee under the influence of o Complaint
drugs cannot possibly continue doing his duties without posing a serious threat to o Answer
the lives and property of his co-workers and even his employer o Pleadings
• There is JN that persons have killed or committed serious offenses for no reason at § may be an actual admission as when a party categorically admits a
all. material allegation made by the adverse party.
• If counsel moves to another address, court cannot be expected to take judicial notice § Admissions, however, made in drafts of pleadings not yet filed are
of the new address of a lawyer who has moved, or ascertain, on its own whether or obviously not judicial admissions because they are not parts of the
not the counsel of record has been changed and who the new counsel could possibly records of the case.
be or where he probably resides or holds office.

5. The amendment in Sec. 4 used the word “oral”, instead of “verbal” when referring to an admission. Also, the “imputed admission” simply refers to the “judicial admission.” A “judicial admission” not “in fact” made is just stressing the point.
 • A judicial admission conclusively binds the party making it. He cannot thereafter judicial admissions because they are made in the course of the
contradict it. proceedings of the case.
o The exception is found only in those rare instances when the trial court, in • Ex. petitioner's admission as to the execution of the promissory note at the pre-trial
the exercise of its discretion and because of strong reasons to support its sufficed to settle the question of the genuineness of the signatures therein.
stand, may relieve a party from the consequences of his admission.
o A party cannot subsequently take a position contrary to, or inconsistent Admissions in the pre-trial of criminal cases
with, his pleadings • Although an admission made during the pre-trial!is deemed to have been made in
• An admission may, likewise, be inferred from the failure to specifically deny the the course of a judicial proceeding and is necessarily a judicial admission, an
material allegations in the other party's pleadings. admission made by the accused in the pre-trial of a criminal case is not necessarily
o Material averments in the complaint, other than those as to the amount admissible against him.
of unliquidated damages, shall be deemed admitted when not specifically • To be admissible, the conditions set forth by Sec. 2 of Rule 118 must be complied
denied (Sec. 11, Rule 8, Rules of Court). with. The pertinent rule provides:
o SEC. 2. Pre-trial agreement. - All agreements or admissions made or
Averments in pleadings which are not deemed admissions entered during the pre-trial conference shall be:
• There are averments in the pleadings which are not deemed admitted even if the § reduced in writing and
adverse party fails to make a specific denial of the same like: § signed by the accused and counsel,
o immaterial allegations (Sec. 11, Rule 8, Rules of Court), • otherwise, they cannot be used against the accused.
o conclusions, • Does the above rule, equally apply to stipulation of facts made during the trial?
o non-ultimate facts in the pleading (Sec. 1, Rule 8, Rules of Court) as well as o SC: A stipulation of facts entered into by the prosecution and defense
o the amount of unliquidated damages (Sec. 11, Rule 8, Rules of Court). counsel during trial in open court is automatically reduced in writing and
contained in the official transcript of proceedings had in court.
Implied admissions of allegations of usury o The accused’s signature is unnecessary because an attorney who is
• Under Sec. 11 of Rule 8, if the complaint makes an allegation of usury to recover employed to manage a party's conduct of a lawsuit has prima facie
usurious interest, the defendant must not only specifically deny the same but must, authority to make relevant admissions by pleadings. When such
likewise, do so under oath. admissions are made, they bind the client.
o Failure to make the proper denial under oath would involve an implied
admission of the allegation of usury. Implied admissions in the modes of discovery
• Admissions obtained through depositions, written interrogatories or requests for
Implied admissions of actionable documents admission are also considered judicial admissions.
• When an action or defense is founded upon a written instrument, the genuineness o The filing of written interrogatories under Rule 25 and request for
and due execution of the same instrument shall be deemed admitted unless the admission by adverse party under Rule 26, is mandatory in civil cases.
adverse party, under oath, specifically denies them and sets forth what he claims to • Under Sec. 1 of Rule 26, a party may, at any time after the issues have been joined,
be the facts file and serve upon any other party a written request for the admission by the latter
• The failure to deny the genuineness and due execution of an actionable document of the genuineness of any material and relevant document described in and
does not preclude a party from arguing against the document by evidence of fraud, exhibited with the request.
mistake, compromise, payment, statute of limitations, estoppel, and want of o The request for admission may also be of the truth of any material and
consideration. relevant matter of fact set forth in the request.
o He is, however, precluded from arguing that the document is a forgery o The party to whom the request is directed must file and serve, upon the
because the genuineness of the document has been impliedly admitted by party requesting the admission, a sworn statement either denying
his failure to deny the same under oath. specifically the matters of which an admission is requested or setting forth
in detail the reasons why he cannot truthfully either admit or deny those
Admissions in the pre-trial of civil cases matters.
• One of the purposes of a pre-trial in a civil case is for!the court to consider the o The sworn statement must be filed and served within the period
possibility of obtaining stipulations!or admissions of facts. designated in the request which shall not be less than 15 days after service
o Admissions, therefore, in the pre-trial, as well as!those made during the thereof, or within such further time as the court may allow on motion.
depositions, interrogatories or requests for admission, are all deemed
 o If the sworn statement required is not filed and served, each of the matters o An admission made in the pleadings cannot be controverted by the party
of which an admission is requested shall be deemed admitted (Sec. 2, Rule making such admission, and is conclusive to such party, and all proofs to
26, Rules of Court). the contrary or inconsistent therewith should be ignored, whether
• Under Sec. 3 of Rule 26, any admission made pursuant to the request for admission objection is interposed or not.
is for the purpose of the pending action only. o The trial court may reject evidence that a party adduces to contradict a
o The admission shall not be considered as one for any other purpose nor judicial admission he made in his pleading since such admission is
may the same be used against him in any other proceeding. conclusive as to him.
• A judicial admission removes the admitted fact from the field of controversy.
Nature of admissions in superseded pleadings o The reason for the above rulings is found under the doctrine of estoppel.
• When a pleading is amended, the amended pleading supersedes the pleading that it § Under the doctrine, an admission or representation is rendered
amends conclusive upon the person making it, and cannot be denied or
o but the admissions in the superseded pleading may be received in disproved as against the person relying thereon
evidence against the pleader (Sec. 8, Rule 10, Rules of Court). • Specifically, under Sec. 4, Rule 129 of the Rules of Court, the following are the
• Admissions in a superseded pleading are to be considered as extrajudicial effects of judicial admissions:
admissions which must be proven. o They do not require proof; and
o SC: pleadings that have been amended disappear from the record, lose o They cannot be contradicted because they are conclusive upon the party
their status as pleadings, and cease to be judicial admissions, and to be making it.
utilized as extrajudicial admissions, they must, in order to have such effect,
be formally offered in evidence. How judicial admissions may be contradicted (as amended)
• Sec. 4 of Rule 129 provides for either of two ways to contradict a judicial admission,
Admissions in dismissed pleadings namely:
• Admissions made in pleadings that have been dismissed are merely extrajudicial o by showing that the admission was made through palpable mistake, or
admissions § It must be one that is "palpable," a mistake that is "clear to the
mind or plain to see."
Sworn statement of a proposed state witness • It is a mistake that is "readily perceived by the senses
• If the motion to discharge an accused as a state witness is denied, his sworn or the mind"
statement, submitted to support the motion, shall be inadmissible in evidence (Sec. o by showing that the imputed admission was not, in fact, made.
17, Rule 119, Rules of Court). • A party may also argue that he made "no such admission" (Note: This is the old codal.
Now: “the imputed admission was not, in fact, made”)
Admissions by counsel o This argument may be invoked when the statement of a party is taken out
• Admissions by a counsel are generally conclusive upon a client. of context or that his statement was made not in the sense it is made to
o Even the negligence of counsel binds the client. appear by the other party
• This rule is not, however, without exception. o Here, the party upon whom the admission is imputed does not deny
o In cases where reckless or gross negligence of counsel deprives the client making a statement.
of due process of law, or § What he denies is the meaning attached to his statement, a
o when its application will result in outright deprivation of the client's meaning made to appear by the adverse party as an admission.
liberty or property, or o The Committee on the Revision of the Rules of Court explained the second
o when the interests of justice so require exception in this wise:
§ relief is accorded the client who suffered by reason of the § " if a party invokes an 'admission' by an adverse party, but cites
lawyer's gross or palpable mistake or negligence the admission 'out of context,' then the one making the
'admission' may show that he made no 'such' admission, or that
Effect of judicial admissions his admission was taken out of context.
• Judicial admissions are legally binding on the party making the admissions. § " that the party can also show that he made no 'such admission,'
o It is an established principle that judicial admissions cannot be i.e., not in the sense that the admission is made to appear.”
contradicted by the admitter who is the party himself and binds the person • That is the reason for the modifier 'such' (Note: remember this uses the old codal)
who makes the same, absent any showing that this was made through because if the rule simply states that the admission may be contradicted by showing
palpable mistake, no amount of rationalization can offset it.
 that 'no admission was made,' the rule would not really be providing for a o A person's appearance, as evidence of age (for example, of infancy, or of
contradiction of the admission but just a denial. being under the age of consent to intercourse), is admissible as object
evidence, the same being addressed to the senses of the court.
Tranquil Salvador • Object evidence is not visual alone. It covers the entire range of human senses:
o “No such admission” was changed to “imputed admission not, in fact, made” hearing, taste, smell, and touch.
o In a case where the issue is infringement of a musical composition, the
court may listen to the composition involved.
Chapter IV o The court may not only look at but also touch the blade of a knife.
OBJECT AND DOCUMENTARY EVIDENCE • Physical evidence is a mute but eloquent manifestation of truth, and it ranks high in
our hierarchy of trustworthy evidence - where the physical evidence runs counter
RULE 130 to the testimonial evidence, the physical evidence should prevail.
Rules of Admissibility
Requisites for admissibility of object evidence (as amended)
A. OBJECT (REAL) EVIDENCE • The basic requisites for the admissibility of an object or real evidence:
1. The evidence must be relevant;
Section 1. Object as evidence. — Objects as evidence are those addressed to the senses of 2. The evidence must be authenticated;
the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or 3. The authentication must be made by a competent witness; and
viewed by the court. 4. The object must be formally offered in evidence.
• The admissibility of object or real evidence, like any other evidence, requires that
Nature of object evidence the object be both relevant and competent.
• Object or real evidence, as defined by the Rules of Court, refers to evidence that is o To be relevant, the evidence must have a relationship to the fact in issue.
addressed to the senses of the court. o To be competent, it must not be excluded by the Constitution, the rules,
o Real or object evidence is not a verbal description of something. or by law.
o It is not a replica or a mere representation of something.
o It is the real thing itself Authentication
o It consists of tangible things like a gun, a broken glass, a piece of bloody • For the object not to be excluded by the Rules, the same must pass the test of
clothing or the defective ladder that caused the fall of the plaintiff. authentication.
• Instead of relying on the recollection of the witness, an object evidence will enable o The threshold foundation for real evidence is its being authenticated.
the court to have its own first-hand perception of the evidence. • To authenticate the object, it must be shown that it is the very thing that is either
o If the court wants to know whether or not the bolo used in the crime is the subject matter of the lawsuit or the very one involved to prove an issue in the
long or short, big or small, sharp or blunted, the object evidence would be case.
the bolo itself. o If the prosecution wants the admission of the gun used in the murder, it
o The court may, allow the exhibition of the weapon allegedly used in must prove that it was the very same gun used by the accused.
attacking the victim, the bloody garment of the victim or the personal o Another gun, although identical with the actual gun in all respects, would
effect, like a glove, left by the supposed assailant in the scene of the not satisfy the requirements of authentication.
crime. • To authenticate the object, there must be someone who should identify the object
• Object evidence could have a very persuasive effect on the part of the court. to be the actual thing involved in the litigation. This someone is the witness.
o A display of one's injury is very powerful. o An object evidence, being inanimate, cannot speak for itself. It cannot
o The absence of any scar in the spot where the injury was allegedly inflicted present itself to the court as an exhibit.
may convince the court that the witness was untruthful in his testimony. o Even a supposedly ancient document requires a witness to testify on the
o No one can dispute a missing arm or a severed leg. characteristics of the document even if it no longer requires authentication
o No other evidence is necessary to establish the injury. (See Sec. 21, Rule 132).
• Even a human being may be a form of real evidence. o Every evidence, whether it be a document or an object, needs a witness.
o Where the racial characteristics of a party are at issue, the court may, at Testimonial evidence provides the foundation for all types of evidence.
its discretion, view the person concerned. This is a very basic rule.
§ In layman's term, the evidence must be "sponsored" by a
witness.
 o To authenticate the object, the witness must have capacity to identify the o It is not strictly "real" evidence because it is not the very thing involved in
object as the very thing involved in the litigation. the case.
o Better still, he must have actual and personal knowledge of the exhibit he • A map, a diagram, a photograph, and a model, fall under this category. This category
is presenting for admission. of evidence is not separately defined in the Rules of Court and appears to have been
§ This is because "a witness can only testify to those facts which incorporated under the general term "object" evidence.
he knows of his personal knowledge; that is, which are derived o NOTE: In the amended Rules, photographs, stored images, x-ray films,
from his own perception" (Sec. 36, Rule 130). videotapes, and motion pictures are now considered DOCUMENTARY
o Note: For civil cases and criminal cases involving a penalty of not less than EVIDENCE.
6 years of imprisonment, with Judicial Affidavit Rule, the direct testimony o NOTE: But Riano’s pre-revision notes are still reproduced below because
of witnesses is replaced with Judicial Affidavits. Now, witnesses the Supreme Court, in its Explanatory Notes for the 2019 Revisions, still
authenticate evidence through their affidavits which are attached to the used old jurisprudence to outline how photographs, etc. should be
complaint (or other pleadings which assert a claim or defense). They admitted. See Rationale for Revisions under Documentary Evidence.
should however still be present during trial for cross-examination. (Note: • The admissibility of this type of evidence largely depends on laying the proper
not in Riano) foundation for the evidence.
• Also, in giving credence to a testimony, the court takes into consideration the o The rule boils down to one basic question: Does the evidence sufficiently
physical evidence. If the testimony bears a striking similarity with the physical and accurately represent the object it seeks to demonstrate or represent?
evidence, the testimony becomes worthy of belief. If it does, the evidence would be admissible.
• When the truth or falsity of a fact in issue may be explained by the presentation of
an object, the same may be exhibited before the court. Photographs - Photographs of persons, things and places, when instructive to the
o If the witness wants to show the condition of a particular article or understanding of the case, will be admitted in evidence. For a still photograph to be admitted,
substance, his testimony will be enhanced by the presentation of said the same must be relevant and competent. It is competent (Note: See Documentary Evidence)
article or substance. • when it is properly authenticated by a witness who is familiar with the scene or
• After its authentication, the object needs to be offered in evidence at the person portrayed, and who testifies that the photograph faithfully represents what
appropriate time. it depicts.
o As a rule, the formal offer of evidence is particularly a vital act before the • Some courts insist on requiring the photographer to testify but this view has been
admission of evidence because the court "shall consider no evidence which eroded by the tendency of modern courts to admit as a witness one who has
has not been formally offered" (Sec. 34, Rule 132). familiarity with the scene portrayed
• The problem commonly lies in showing that the object sought to be admitted is, in • Under the Rules on Electronic Evidence, audio, photographic and video evidence
fact, the real thing and not a mere substitute or representation of the real thing. of events, acts or transactions shall be admissible in evidence provided that:
o This problem of authentication is commonly called "laying the foundation" 1. It shall be presented, displayed and shown to the court; and
for the evidence. 2. It shall be identified, explained or authenticated by either:
• An object evidence, when offered in accordance with the requisites for its 1. The person who made the recording; or
admissibility, becomes evidence of the highest order and speaks more eloquently 2. Some other person competent to testify on the accuracy thereof (Sec. 1,
than witnesses put together. Rule 11, Rules on Electronic Evidence).
• Example of how a witness is examined:
Object evidence and the right against self-incrimination o Q: I am showing you a photograph. Could you identify this photograph?
• The right against self-incrimination cannot be invoked against object evidence. o A: Of course, Sir. This is a picture of the corner of Guess and Rado Sts. in St. Jude
Village.
• In one early case, the accused-appellant argued that the admission as evidence of
o Q: How do you recognize it?
the victim's wallet, together with its contents, viz., (1) his residence certificate; (2)
o A: I've worked in this area for the past ten years and I have seen this corner almost
his identification card; and (3) bunch of keys, violated his right against self- every day.
incrimination. o Q: How accurate is this photograph?
o SC: the right against self-incrimination had no application in this case o A: It is an exact depiction of the place, Sir.
because no testimonial compulsion was involved
Motion pictures and recordings - The rules that apply to photographs generally apply to
Demonstrative evidence (as amended) motion pictures and recordings.
• Demonstrative evidence is not the actual thing but it is referred to as
"demonstrative" because it represents or demonstrates the real thing.
 • Because of the possibility of tampering and distortion, courts have traditionally Scientific tests, demonstrations and experiments - The issue of refusing or granting requests
required a stricter standard for laying the foundation for motion pictures and tape for demonstrations, experiments and tests in open court is a matter subject to judicial
recordings. discretion
• Courts then would require detailed testimony as to:
o the qualifications of the operator, Text messages - Text messages are to be proved:
o a detailed description of the equipment used, and • by the testimony of a person who was a party to the text message or has personal
o the conditions under which the photograph and the recordings were knowledge of them (People v. Enojas).
taken. • In the absence or unavailability of the required witnesses, other competent
• Modern courts, however, have taken judicial notice of how motion cameras and tape evidence may be admitted (Sec. 2, Rule 11, Rules on Electronic Evidence).
recorders work and their general reliability and prevalent use. o This rule applies to telephone conversations and other ephemeral
o The testimony of a person present when the activities of taking the picture electronic communication.
and recording have been held sufficient.
o He must testify that the motion picture accurately and faithfully represents View of an object or scene
the place or person it purports to portray. • Under Sec. 1 of Rule 130, when an object is relevant to the fact in issue, it may be
exhibited to, examined or viewed by the court. In this sense, object evidence has
Tape recordings, in case of such, the witness should: been referred to as "autoptic" evidence.
o identify the speakers, • Courts have recognized that there are times when a party cannot bring an object to
o state how he recognizes their voices and the court for viewing in the courtroom. In such a situation, the court may take a view
o that the recording was not taken in violation of the Anti-Wire-Tapping Law of an object.
(R.A. 4200). o The court may:
• The modern approach to motion pictures and recordings is reflected in local rules. § make an ocular inspection of a contested land to resolve
Under the Rules on Electronic Evidence, the authentication process need not questions of fact raised by the parties.
involve the person who actually made the recording. § inspect a crime scene to clarify itself with certain matters raised
by the litigants.
Diagrams, models and maps § may view the conditions of vehicles involved in a civil case for
• These types of demonstrative evidence are presented to indicate the relative damages.
locations or positions of objects and persons. o Going out of the courtroom to observe places and objects is commonly
• Aside from the requirement of relevance, a diagram, model or map must be termed as "view."
identified by a witness who is familiar with what the evidence depicts, and that the • The "view" is expressly authorized by Sec. 1· of Rule 130 but even without this
same is an accurate representation of the scene it portrays. express provision, it is well-recognized that the court has an inherent power to order
• Some courts may require that the model, diagram or map be made or drawn to scale. a view when there is a need to do so (See Sec. 5, Rule 135, Rules of Court).
If not drawn to scale, the court must be so informed. o The inspection may be made inside or outside the courtroom.
• An inspection or view outside the courtroom should be made in the presence of the
X-ray pictures, also referred to as "skiagraphs" or "radiographs," are admissible when shown parties or at least with previous notice to them.
to have been made under circumstances as to assure their accuracy and relevancy to a o It is error for the judge, for example, to go alone to the land in question, or
material issue in the case. to the place where the crime was committed and take a view without the
• Authenticated x-rays are normally involved in personal injury cases to show the previous knowledge of the parties.
location and extent of the injury. o Such inspection or view is part of the trial since evidence is thereby being
• X-rays are properly authenticated by the x-ray technician or the physician who received
testifies to:
o the competence of the person taking it, Categories of object evidence
o the procedure taken and • For purposes of authentication of an object or for laying the foundation for the
o that the x-ray picture shown is that of the person, the anatomical part or exhibit, object evidence may be classified into the following:
the object involved in the case. 1. Objects that have readily identifiable marks (unique objects);
• Because the science of taking x-ray pictures is now well-founded and generally 2. Objects that are made readily identifiable (objects made unique); and
recognized, almost all courts no longer require testimony as to the reliability of an 3. Objects with no identifying marks (non-unique objects).
x-ray machine
 • If the object has a unique characteristic, like the serial number of a caliber .45 pistol, § seizure/confiscation to
it becomes readily identifiable. § receipt in the forensic laboratory to
o So long as the witness testifies that the object has a unique characteristic, § safekeeping to
he saw the object on the relevant date, remembers its characteristics, § presentation in court for destruction.
asserts that the object shown to him in court is the same or substantially • It would include testimony about every link in the chain, from the moment the item
in the same condition as when he first saw it and alleges that those was picked up to the time it is offered into evidence, in such a way that every person
characteristics are those of the object he is identifying in court, the who touched the exhibit would describe how and from whom it was received, where
authentication requirement is satisfied. it was and what happened to it while in the witness' possession, the condition in
• If the object does not have a unique characteristic, like the typical kitchen knife that which it was received and the condition in which it was delivered to the next link in
has no serial number, is commonplace, and identical with a lot of knives of the same the chain.
kind and quality, the witness may be able to identify the same in court if he claims o These witnesses would then describe the precautions taken to ensure that
that he made the thing acquire a unique characteristic like placing identifying marks there had been no change in the condition of the item and no opportunity
on it. for someone not in the chain to have possession of the same
o All he has to do in court is to testify as to what he did to make the object • While testimony about a perfect chain is not always the standard because it is almost
identifiable and that the object presented to him for identification in court always impossible to obtain an unbroken chain of custody, it becomes indispensable
has the characteristics he made on the object. and essential when:
o the item of real evidence is not distinctive and is not readily identifiable, or
Chain of custody in general o when its condition at the time of testing or trial is critical, or
• The third category of object evidence refers to those which are not readily o when a witness has failed to observe its uniqueness.
identifiable, were not made identifiable or cannot be made identifiable o when the evidence is susceptible to alteration, tampering, contamination
o like drops of blood or oil, drugs in powder form, fiber, grains of sand and and even substitution and exchange.
similar objects. § In other words, the exhibit's level of susceptibility to fungibility,
• Under this situation, the proponent of the evidence must establish a chain of alteration or tampering dictates the level of strictness in the
custody. application of the chain of custody rule
• The purpose of establishing a chain of custody is to ensure that the integrity and
evidentiary value of the seized items are preserved, so much so that unnecessary The procedure to be followed in the custody and handling of seized dangerous drugs
doubts as to the identity of the evidence are removed • Provided for in Sec. 21, Art. II of R.A. 9165, as amended by R.A. 10640, thus:
1. The apprehending team having initial custody and control of the dangerous
Chain of custody in drug cases (Sec. 21 of the Comprehensive Drugs Act of 2002) drugs, controlled precursors and essential chemicals,
• In the Philippines, the confiscation and seizure of drugs require a stringent specific instruments/paraphernalia and/or laboratory equipment shall, immediately
procedure to establish the chain of custody. after seizure and confiscation:
o The required procedure is embodied in Sec. 21, paragraph 1, Art. II of R.A. o conduct a physical inventory of the seized items and
9165 (Comprehensive Dangerous Drugs Act of 2002), as amended by R.A. o photograph the same in the presence of
10640. i. the accused OR the person/s from whom such items were
• The Court recognizes that a unique characteristic of narcotic substances is that they confiscated and/or seized, OR his/her representative or
are not readily identifiable; hence, in authenticating the same, a more stringent counsel, WITH:
standard than that applied to readily-identifiable objects is necessary. ii. an elected public official AND
o In drug cases, the identity of the dangerous drugs should be established iii. a representative of the National Prosecution Service OR the
beyond doubt by showing that the items offered in court were the same media
substance involved in the buy-bust operation. • who shall be required to sign the copies of the
o The chain of custody performs the function of ensuring that unnecessary inventory and be given a copy thereof
doubts concerning the identity of the evidence. o (They must also mark the evidence with their initials and signature at
• Sec. 1(b) of the Dangerous Drugs Board Regulation No. 1, Series of 2002 which this stage in the presence of apprehended violator)
implements R.A. 9165, defines "chain of custody" as follows: 2. Provided, That the physical inventory and photograph shall be conducted at:
o Chain of Custody means the duly recorded authorized movements and o the place where the search warrant is served; or
custody of seized drugs or controlled chemicals or plant sources of o at the nearest police station or
dangerous drugs or laboratory equipment of each stage, from the time of: o at the nearest office of the apprehending officer/team
 i. whichever is practicable, in case of warrantless seizures o Second, the turnover of the illegal drug seized by the apprehending officer
3. Provided, finally, That noncompliance with these requirements under justifiable to the investigating officer;
grounds, as long as: o Third, the turnover by the investigating officer of the illegal drug to the
o the integrity and forensic chemist for laboratory examination; and
o the evidentiary value of the seized items o Fourth, the turnover and submission of the marked illegal drug by the
§ are properly preserved by the apprehending officer/team forensic chemist to the court
§ shall not render void and invalid such seizures and custody over • Because of the definition of custody as defined by Sec. l(b) of the Dangerous Drugs
said items. Board Regulation No. 1, Series of 2002, the movement of the drugs from one person
4. Within twenty-four (24) hours upon the confiscation or seizure of the drugs, the to another must be duly recorded.
same shall be submitted to the PDEA Forensic Laboratory for a qualitative and o Such record shall include:
quantitative examination § the identity and signature of the person who held temporary
5. The forensic laboratory examiner is required to issue within 24 hours after the custody of the seized item,
receipt of the drugs, a certification of the forensic laboratory examination § the date and time when such transfer of custody were made in
results which shall be done under oath the course of safekeeping and use in court as evidence.
6. After the filing of the criminal case, the court shall, within 72 hours, conduct an
ocular inspection of the confiscated drugs, and through the PDEA shall within Importance of the marking of the evidence
24 hours proceed with the destruction of the same • It must be noted that "marking" is not found in R.A. 9165, as amended. It is different
o in the presence of the accused or the person from whom such drugs from the inventory-taking and photography under Sec. 21 of the said law.
were confiscated, his representative or counsel, a representative o However, long before Congress passed R.A. 9165, the Supreme Court had
from the media and the DOJ, civil society groups and any elected consistently held that failure of the authorities to immediately mark the
public official seized drugs would cast reasonable doubt on the authenticity of the corpus
7. The Dangerous Drugs Board shall then issue a sworn certification as to the fact delicti.
of destruction or burning of the substances. The certification shall be submitted • "Marking" means the placing by the apprehending officer or the poseur-buyer of
to the court. his/her initials and signature on the items seized.
o Also, to be submitted are the representative samples of the o Marking after seizure is the starting point in the custodial link
substances in the custody of the PDEA. Such samples shall be of a o Vital that the seized contraband be immediately marked because
minimum quantity as determined by the Board succeeding handlers of the specimens will use the markings as reference.
• The alleged offender or his/her representative or counsel shall be allowed to o The marking of the evidence serves to separate the marked evidence from
personally observe all of the above proceedings. His presence shall not constitute all other similar or related evidence from the time they are seized from the
an admission of guilt. accused until they are disposed of at the end of the criminal proceedings,
o However, after having been duly notified in accordance with law and said thus, preventing switching, planting or contamination of evidence
alleged offender or accused refuses or fails to appoint a representative • The marking should be made immediately and in the presence of the apprehended
within 72 hours before the actual burning or destruction of the evidence violator upon arrest.
in question, the Secretary of Justice shall appoint a member of the public o The immediate marking upon confiscation or recovery of the dangerous
attorney's office to represent the former drugs or related items is indispensable in the preservation of their
integrity and evidentiary value
Links in the chain of custody
• Since it is called a chain, there must be links to the chain. The links are the people Effect of non-compliance with Sec. 21 of R.A. 9165, as amended
who actually handled or had custody of the object. • In case there is a failure to comply with the requirements of the law in the handling
o Each of the links in the chain must show how he received the object, how of confiscated drugs, the law, as amended by R.A. 10640, clearly requires the
he handled it to prevent substitution, and how it was transferred to authorities to show the following:
another. 1. the non-compliance must be because of justifiable grounds; and
o This is the ideal way to show the chain of custody. 2. the apprehending officer/team must have properly preserved the
• Jurisprudence identified the links that the prosecution must establish in the chain integrity and evidentiary value of the seized items.
of custody in buy-bust situation to be as follows: • As long as the above are met, the non-compliance of Sec. 21 shall not render the
o First, the seizure and marking of the confiscated drugs recovered from the seizure and custody of the seized items void and invalid.
accused;
 o Failure to strictly comply with the law does not necessarily render the o From a mere recognition of the existence of DNA testing, Vallejo moved
arrest of the accused illegal or render inadmissible the items seized or towards an open use of DNA evidence in deciding cases.
confiscated from him, as long as prosecution can show the above two. • Vallejo adopted the following guidelines to be used by courts in assessing the
• Case: The blunders committed by the police officers relative to the procedure in Sec. probative value of DNA evidence:
21, R.A. No. 9165, especially on the highly irregular manner by which the seized items 1. How the samples were collected;
were handled, generates serious doubt on the integrity and evidentiary value of the 2. How they were handled;
items. 3. The possibility of contamination of the samples;
o Considering that the seized items constitute the corpus delicti of the 4. The procedure followed in analyzing the samples;
offenses charged, the prosecution should have proven with moral 5. Whether the proper standards and procedure were followed in conducting
certainty that the items confiscated during the buy-bust operation were the tests; and
actually those presented before the RTC during the hearing. 6. The qualification of the analyst who conducted the test
o Because accused’s guilt was not proven beyond reasonable doubt, he • People v. Yatar, significantly upheld the constitutionality of compulsory DNA testing
should be acquitted. (Note: not in Riano; just added this case here to help and rejected the contention that it would infringe on the constitutional right against
us phrase the answer to a bar question showing lack of compliance with self-incrimination.
chain of custody) o The case significantly and clearly recognized DNA testing and the
admissibility of its results as evidence.
Presumption of regularity does not apply • Case: even if the defendant had already passed away, biological samples could be
• The presumption of regularity of performance of official duty stands only when no obtained for the testing. Death cannot bar the conduct of DNA testing.
reason exists in the records by which to doubt the regularity of the performance of
official duty. RULE ON DNA EVIDENCE (A.M. 06-11-05-SC)
o And even in that instance the presumption of regularity will not be
stronger than the presumption of innocence in favor of the accused. • The Rule on DNA Evidence (RDE) took effect Oct. 15, 2007
o Otherwise, a mere rule of evidence will defeat the constitutionally
enshrined right to be presumed innocent. (Note: not in Riano). In what situation does the Rule on DNA Evidence apply?
• The Rule on DNA Evidence is the primary rule to be applied whenever DNA evidence
DNA evidence is offered, used, or proposed to be offered or used as evidence in:
• In a case where the admissibility of DNA testing as a means for determining paternity 1. criminal actions;
has become the focal issue in controversy for the first time, the Supreme Court 2. civil actions; and
described DNA in the following words: 3. special proceedings (Sec. 1, RDE).
o "DNA, or deoxyribonucleic acid, a molecule that encodes the genetic • When a matter is not specifically governed by the Rule on DNA Evidence, the Rules
information in all living organisms. of Court and other pertinent provisions of law on evidence shall apply (Sec. 2, RDE).
o A person's DNA is the same in each cell and it does not change throughout
a person's lifetime; What is (a) DNA? (b) DNA profile? (c) DNA evidence?
o the DNA in a person's blood is the same as the DNA found in his saliva, a. DNA refers to deoxyribonucleic acid which is the chain of molecules found in
sweat, bone, the root and shaft of hair, earwax, mucus, urine, skin tissue every nucleated cell of the body (Sec. 3[b], RDE).
and vaginal or rectal cells. b. DNA "profile" is the genetic information derived from DNA testing of biological
o Most importantly, because of polymorphisms in human genetic structure, samples obtained from a person where such biological sample is clearly
no two individuals have the same DNA, with the notable exception of identifiable as originating from that person (Sec. 3[d], RDE).
identical twins" c. The totality of the DNA profiles, results and other genetic information directly
o SC: DNA testing is a valid means of determining paternity. generated from the DNA testing of biological samples is called "DNA evidence"
• In a landmark decision, the SC in People v. Vallejo, a rape-slay case of a 9-year old (Sec. 3[c], RDE).
girl, admitted in evidence the DNA samples of the victim which were found in the
bloodstained garments of the accused. Vaginal swabs taken from the victim were What is the significance of DNA?
also admitted and were found to show the DNA profile of the accused who was • The significance lies in the uniqueness of the totality of the DNA of a person. It is a
subsequently convicted. scientific fact that the totality of an individual's DNA is unique for the individual,
o Vallejo is considered by the Court to be the "first real breakthrough of DNA except for identical twins (Sec. 3[b], RDE).
as admissible and authoritative evidence in Philippine jurisprudence."
 for the evidence. 2. It shall be identified, explained or authenticated by either:
• An object evidence, when offered in accordance with the requisites for its 1. The person who made the recording; or
admissibility, becomes evidence of the highest order and speaks more eloquently 2. Some other person competent to testify on the accuracy thereof (Sec. 1,
than witnesses put together. Rule 11, Rules on Electronic Evidence).
• Example of how a witness is examined:
Object evidence and the right against self-incrimination o Q: I am showing you a photograph. Could you identify this photograph?
• The right against self-incrimination cannot be invoked against object evidence. o A: Of course, Sir. This is a picture of the corner of Guess and Rado Sts. in St. Jude
Village.
• In one early case, the accused-appellant argued that the admission as evidence of
o Q: How do you recognize it?
the victim's wallet, together with its contents, viz., (1) his residence certificate; (2)
o A: I've worked in this area for the past ten years and I have seen this corner almost
his identification card; and (3) bunch of keys, violated his right against self- every day.
incrimination. o Q: How accurate is this photograph?
o SC: the right against self-incrimination had no application in this case o A: It is an exact depiction of the place, Sir.
because no testimonial compulsion was involved
Motion pictures and recordings - The rules that apply to photographs generally apply to
Demonstrative evidence (as amended) motion pictures and recordings.
• Demonstrative evidence is not the actual thing but it is referred to as
"demonstrative" because it represents or demonstrates the real thing.

• Because of the possibility of tampering and distortion, courts have traditionally Scientific tests, demonstrations and experiments - The issue of refusing or granting requests
required a stricter standard for laying the foundation for motion pictures and tape for demonstrations, experiments and tests in open court is a matter subject to judicial
recordings. discretion
• Courts then would require detailed testimony as to:
o the qualifications of the operator, Text messages - Text messages are to be proved:
o a detailed description of the equipment used, and • by the testimony of a person who was a party to the text message or has personal
o the conditions under which the photograph and the recordings were knowledge of them (People v. Enojas).
taken. • In the absence or unavailability of the required witnesses, other competent
• Modern courts, however, have taken judicial notice of how motion cameras and tape evidence may be admitted (Sec. 2, Rule 11, Rules on Electronic Evidence).
recorders work and their general reliability and prevalent use. o This rule applies to telephone conversations and other ephemeral
o The testimony of a person present when the activities of taking the picture electronic communication.
and recording have been held sufficient.
o He must testify that the motion picture accurately and faithfully represents View of an object or scene
the place or person it purports to portray. • Under Sec. 1 of Rule 130, when an object is relevant to the fact in issue, it may be
 exhibited to, examined or viewed by the court. In this sense, object evidence has
Tape recordings, in case of such, the witness should: been referred to as "autoptic" evidence.
o identify the speakers, • Courts have recognized that there are times when a party cannot bring an object to
o state how he recognizes their voices and the court for viewing in the courtroom. In such a situation, the court may take a view
o that the recording was not taken in violation of the Anti-Wire-Tapping Law of an object.
(R.A. 4200). o The court may:
• The modern approach to motion pictures and recordings is reflected in local rules. § make an ocular inspection of a contested land to resolve
Under the Rules on Electronic Evidence, the authentication process need not questions of fact raised by the parties.
involve the person who actually made the recording. § inspect a crime scene to clarify itself with certain matters raised
by the litigants.
Diagrams, models and maps § may view the conditions of vehicles involved in a civil case for
• These types of demonstrative evidence are presented to indicate the relative damages.
locations or positions of objects and persons. o Going out of the courtroom to observe places and objects is commonly
• Aside from the requirement of relevance, a diagram, model or map must be termed as "view."
identified by a witness who is familiar with what the evidence depicts, and that the • The "view" is expressly authorized by Sec. 1· of Rule 130 but even without this
same is an accurate representation of the scene it portrays. express provision, it is well-recognized that the court has an inherent power to order
• Some courts may require that the model, diagram or map be made or drawn to scale. a view when there is a need to do so (See Sec. 5, Rule 135, Rules of Court).
If not drawn to scale, the court must be so informed. o The inspection may be made inside or outside the courtroom.
• An inspection or view outside the courtroom should be made in the presence of the
X-ray pictures, also referred to as "skiagraphs" or "radiographs," are admissible when shown parties or at least with previous notice to them.
to have been made under circumstances as to assure their accuracy and relevancy to a o It is error for the judge, for example, to go alone to the land in question, or
material issue in the case. to the place where the crime was committed and take a view without the
• Authenticated x-rays are normally involved in personal injury cases to show the previous knowledge of the parties.
location and extent of the injury. o Such inspection or view is part of the trial since evidence is thereby being
• X-rays are properly authenticated by the x-ray technician or the physician who received
testifies to:
o the competence of the person taking it, Categories of object evidence
o the procedure taken and • For purposes of authentication of an object or for laying the foundation for the
o that the x-ray picture shown is that of the person, the anatomical part or exhibit, object evidence may be classified into the following:
the object involved in the case. 1. Objects that have readily identifiable marks (unique objects);
• Because the science of taking x-ray pictures is now well-founded and generally 2. Objects that are made readily identifiable (objects made unique); and
recognized, almost all courts no longer require testimony as to the reliability of an 3. Objects with no identifying marks (non-unique objects).
x-ray machine
 • If the object has a unique characteristic, like the serial number of a caliber .45 pistol, § seizure/confiscation to
it becomes readily identifiable. § receipt in the forensic laboratory to
o So long as the witness testifies that the object has a unique characteristic, § safekeeping to
he saw the object on the relevant date, remembers its characteristics, § presentation in court for destruction.
asserts that the object shown to him in court is the same or substantially • It would include testimony about every link in the chain, from the moment the item
in the same condition as when he first saw it and alleges that those was picked up to the time it is offered into evidence, in such a way that every person
characteristics are those of the object he is identifying in court, the who touched the exhibit would describe how and from whom it was received, where
authentication requirement is satisfied. it was and what happened to it while in the witness' possession, the condition in
• If the object does not have a unique characteristic, like the typical kitchen knife that which it was received and the condition in which it was delivered to the next link in
has no serial number, is commonplace, and identical with a lot of knives of the same the chain.
kind and quality, the witness may be able to identify the same in court if he claims o These witnesses would then describe the precautions taken to ensure that
that he made the thing acquire a unique characteristic like placing identifying marks there had been no change in the condition of the item and no opportunity
on it. for someone not in the chain to have possession of the same
o All he has to do in court is to testify as to what he did to make the object • While testimony about a perfect chain is not always the standard because it is almost
identifiable and that the object presented to him for identification in court always impossible to obtain an unbroken chain of custody, it becomes indispensable
has the characteristics he made on the object. and essential when:
o the item of real evidence is not distinctive and is not readily identifiable, or
Chain of custody in general o when its condition at the time of testing or trial is critical, or
• The third category of object evidence refers to those which are not readily o when a witness has failed to observe its uniqueness.
identifiable, were not made identifiable or cannot be made identifiable o when the evidence is susceptible to alteration, tampering, contamination
o like drops of blood or oil, drugs in powder form, fiber, grains of sand and and even substitution and exchange.
similar objects. § In other words, the exhibit's level of susceptibility to fungibility,
• Under this situation, the proponent of the evidence must establish a chain of alteration or tampering dictates the level of strictness in the
custody. application of the chain of custody rule
• The purpose of establishing a chain of custody is to ensure that the integrity and
evidentiary value of the seized items are preserved, so much so that unnecessary The procedure to be followed in the custody and handling of seized dangerous drugs
doubts as to the identity of the evidence are removed • Provided for in Sec. 21, Art. II of R.A. 9165, as amended by R.A. 10640, thus:
1. The apprehending team having initial custody and control of the dangerous
Chain of custody in drug cases (Sec. 21 of the Comprehensive Drugs Act of 2002) drugs, controlled precursors and essential chemicals,
• In the Philippines, the confiscation and seizure of drugs require a stringent specific instruments/paraphernalia and/or laboratory equipment shall, immediately
procedure to establish the chain of custody. after seizure and confiscation:
o The required procedure is embodied in Sec. 21, paragraph 1, Art. II of R.A. o conduct a physical inventory of the seized items and
9165 (Comprehensive Dangerous Drugs Act of 2002), as amended by R.A. o photograph the same in the presence of
10640. i. the accused OR the person/s from whom such items were
• The Court recognizes that a unique characteristic of narcotic substances is that they confiscated and/or seized, OR his/her representative or
are not readily identifiable; hence, in authenticating the same, a more stringent counsel, WITH:
standard than that applied to readily-identifiable objects is necessary. ii. an elected public official AND
o In drug cases, the identity of the dangerous drugs should be established iii. a representative of the National Prosecution Service OR the
beyond doubt by showing that the items offered in court were the same media
substance involved in the buy-bust operation. • who shall be required to sign the copies of the
o The chain of custody performs the function of ensuring that unnecessary inventory and be given a copy thereof
doubts concerning the identity of the evidence. o (They must also mark the evidence with their initials and signature at
• Sec. 1(b) of the Dangerous Drugs Board Regulation No. 1, Series of 2002 which this stage in the presence of apprehended violator)
implements R.A. 9165, defines "chain of custody" as follows: 2. Provided, That the physical inventory and photograph shall be conducted at:
o Chain of Custody means the duly recorded authorized movements and o the place where the search warrant is served; or
custody of seized drugs or controlled chemicals or plant sources of o at the nearest police station or
dangerous drugs or laboratory equipment of each stage, from the time of: o at the nearest office of the apprehending officer/team
 i. whichever is practicable, in case of warrantless seizures o Second, the turnover of the illegal drug seized by the apprehending officer
3. Provided, finally, That noncompliance with these requirements under justifiable to the investigating officer;
grounds, as long as: o Third, the turnover by the investigating officer of the illegal drug to the
o the integrity and forensic chemist for laboratory examination; and
o the evidentiary value of the seized items o Fourth, the turnover and submission of the marked illegal drug by the
§ are properly preserved by the apprehending officer/team forensic chemist to the court
§ shall not render void and invalid such seizures and custody over • Because of the definition of custody as defined by Sec. l(b) of the Dangerous Drugs
said items. Board Regulation No. 1, Series of 2002, the movement of the drugs from one person
4. Within twenty-four (24) hours upon the confiscation or seizure of the drugs, the to another must be duly recorded.
same shall be submitted to the PDEA Forensic Laboratory for a qualitative and o Such record shall include:
quantitative examination § the identity and signature of the person who held temporary
5. The forensic laboratory examiner is required to issue within 24 hours after the custody of the seized item,
receipt of the drugs, a certification of the forensic laboratory examination § the date and time when such transfer of custody were made in
results which shall be done under oath the course of safekeeping and use in court as evidence.
6. After the filing of the criminal case, the court shall, within 72 hours, conduct an
ocular inspection of the confiscated drugs, and through the PDEA shall within Importance of the marking of the evidence
24 hours proceed with the destruction of the same • It must be noted that "marking" is not found in R.A. 9165, as amended. It is different
o in the presence of the accused or the person from whom such drugs from the inventory-taking and photography under Sec. 21 of the said law.
were confiscated, his representative or counsel, a representative o However, long before Congress passed R.A. 9165, the Supreme Court had
from the media and the DOJ, civil society groups and any elected consistently held that failure of the authorities to immediately mark the
public official seized drugs would cast reasonable doubt on the authenticity of the corpus
7. The Dangerous Drugs Board shall then issue a sworn certification as to the fact delicti.
of destruction or burning of the substances. The certification shall be submitted • "Marking" means the placing by the apprehending officer or the poseur-buyer of
to the court. his/her initials and signature on the items seized.
o Also, to be submitted are the representative samples of the o Marking after seizure is the starting point in the custodial link
substances in the custody of the PDEA. Such samples shall be of a o Vital that the seized contraband be immediately marked because
minimum quantity as determined by the Board succeeding handlers of the specimens will use the markings as reference.
• The alleged offender or his/her representative or counsel shall be allowed to o The marking of the evidence serves to separate the marked evidence from
personally observe all of the above proceedings. His presence shall not constitute all other similar or related evidence from the time they are seized from the
an admission of guilt. accused until they are disposed of at the end of the criminal proceedings,
o However, after having been duly notified in accordance with law and said thus, preventing switching, planting or contamination of evidence
alleged offender or accused refuses or fails to appoint a representative • The marking should be made immediately and in the presence of the apprehended
within 72 hours before the actual burning or destruction of the evidence violator upon arrest.
in question, the Secretary of Justice shall appoint a member of the public o The immediate marking upon confiscation or recovery of the dangerous
attorney's office to represent the former drugs or related items is indispensable in the preservation of their
integrity and evidentiary value
Links in the chain of custody
 • Since it is called a chain, there must be links to the chain. The links are the people Effect of non-compliance with Sec. 21 of R.A. 9165, as amended
who actually handled or had custody of the object. • In case there is a failure to comply with the requirements of the law in the handling
o Each of the links in the chain must show how he received the object, how of confiscated drugs, the law, as amended by R.A. 10640, clearly requires the
he handled it to prevent substitution, and how it was transferred to authorities to show the following:
another. 1. the non-compliance must be because of justifiable grounds; and
o This is the ideal way to show the chain of custody. 2. the apprehending officer/team must have properly preserved the
• Jurisprudence identified the links that the prosecution must establish in the chain integrity and evidentiary value of the seized items.
of custody in buy-bust situation to be as follows: • As long as the above are met, the non-compliance of Sec. 21 shall not render the
o First, the seizure and marking of the confiscated drugs recovered from the seizure and custody of the seized items void and invalid.
accused;

o Failure to strictly comply with the law does not necessarily render the o From a mere recognition of the existence of DNA testing, Vallejo moved
arrest of the accused illegal or render inadmissible the items seized or towards an open use of DNA evidence in deciding cases.
confiscated from him, as long as prosecution can show the above two. • Vallejo adopted the following guidelines to be used by courts in assessing the
• Case: The blunders committed by the police officers relative to the procedure in Sec. probative value of DNA evidence:
21, R.A. No. 9165, especially on the highly irregular manner by which the seized items 1. How the samples were collected;
were handled, generates serious doubt on the integrity and evidentiary value of the 2. How they were handled;
items. 3. The possibility of contamination of the samples;
o Considering that the seized items constitute the corpus delicti of the 4. The procedure followed in analyzing the samples;
offenses charged, the prosecution should have proven with moral 5. Whether the proper standards and procedure were followed in conducting
certainty that the items confiscated during the buy-bust operation were the tests; and
actually those presented before the RTC during the hearing. 6. The qualification of the analyst who conducted the test
o Because accused’s guilt was not proven beyond reasonable doubt, he • People v. Yatar, significantly upheld the constitutionality of compulsory DNA testing
should be acquitted. (Note: not in Riano; just added this case here to help and rejected the contention that it would infringe on the constitutional right against
us phrase the answer to a bar question showing lack of compliance with self-incrimination.
chain of custody) o The case significantly and clearly recognized DNA testing and the
admissibility of its results as evidence.
Presumption of regularity does not apply • Case: even if the defendant had already passed away, biological samples could be
• The presumption of regularity of performance of official duty stands only when no obtained for the testing. Death cannot bar the conduct of DNA testing.
reason exists in the records by which to doubt the regularity of the performance of
official duty. RULE ON DNA EVIDENCE (A.M. 06-11-05-SC)
o And even in that instance the presumption of regularity will not be
 stronger than the presumption of innocence in favor of the accused. • The Rule on DNA Evidence (RDE) took effect Oct. 15, 2007
o Otherwise, a mere rule of evidence will defeat the constitutionally
enshrined right to be presumed innocent. (Note: not in Riano). In what situation does the Rule on DNA Evidence apply?
• The Rule on DNA Evidence is the primary rule to be applied whenever DNA evidence
DNA evidence is offered, used, or proposed to be offered or used as evidence in:
• In a case where the admissibility of DNA testing as a means for determining paternity 1. criminal actions;
has become the focal issue in controversy for the first time, the Supreme Court 2. civil actions; and
described DNA in the following words: 3. special proceedings (Sec. 1, RDE).
o "DNA, or deoxyribonucleic acid, a molecule that encodes the genetic • When a matter is not specifically governed by the Rule on DNA Evidence, the Rules
information in all living organisms. of Court and other pertinent provisions of law on evidence shall apply (Sec. 2, RDE).
o A person's DNA is the same in each cell and it does not change throughout
a person's lifetime; What is (a) DNA? (b) DNA profile? (c) DNA evidence?
o the DNA in a person's blood is the same as the DNA found in his saliva, a. DNA refers to deoxyribonucleic acid which is the chain of molecules found in
sweat, bone, the root and shaft of hair, earwax, mucus, urine, skin tissue every nucleated cell of the body (Sec. 3[b], RDE).
and vaginal or rectal cells. b. DNA "profile" is the genetic information derived from DNA testing of biological
o Most importantly, because of polymorphisms in human genetic structure, samples obtained from a person where such biological sample is clearly
no two individuals have the same DNA, with the notable exception of identifiable as originating from that person (Sec. 3[d], RDE).
identical twins" c. The totality of the DNA profiles, results and other genetic information directly
o SC: DNA testing is a valid means of determining paternity. generated from the DNA testing of biological samples is called "DNA evidence"
• In a landmark decision, the SC in People v. Vallejo, a rape-slay case of a 9-year old (Sec. 3[c], RDE).
girl, admitted in evidence the DNA samples of the victim which were found in the
bloodstained garments of the accused. Vaginal swabs taken from the victim were What is the significance of DNA?
also admitted and were found to show the DNA profile of the accused who was • The significance lies in the uniqueness of the totality of the DNA of a person. It is a
subsequently convicted. scientific fact that the totality of an individual's DNA is unique for the individual,
o Vallejo is considered by the Court to be the "first real breakthrough of DNA except for identical twins (Sec. 3[b], RDE).
as admissible and authoritative evidence in Philippine jurisprudence."

How may an order for a DNA testing be obtained? • The determination of the probative value of the DNA evidence rests upon sound
• A person who has a legal interest in the litigation may file an application for DNA judicial assessment taking into consideration the following matters:
testing order before the appropriate court, at any time (Sec. 4, RDE). a. The chain of custody, including how the biological samples were collected, how
• The order for a DNA testing shall not, however, be issued as a matter of course and they were handled, and the possibility of contamination of the samples;
from the mere fact that the person requesting for the testing has a legal interest in b. The DNA testing methodology, including the procedure followed in analyzing
 the litigation. the samples, the advantages and disadvantages of the procedure, and
• For the order to be issued, there must be a further showing that: compliance with the scientifically-valid standards in conducting the tests;
a. A biological sample exists that has relevance to the case; c. The forensic DNA laboratory, including its accreditation and the qualification of
b. The biological sample the analyst who conducted the test; if the laboratory is not accredited, the court
§ was not previously subjected to the DNA testing requested; or shall consider the relevant experience of the laboratory in forensic casework
§ if it was previously subjected to DNA testing, the results may and its credibility shall be properly established; and
require confirmation for good reasons; d. The reliability of the testing result (Sec. 7, RDE).
c. The DNA testing uses a scientifically-valid technique;
d. The DNA testing has the scientific potential to produce new information If a person has already been convicted under a final and executory judgment, may he still
that is relevant to the proper resolution of the case; and avail of DNA testing?
e. The existence of other factors, if any, which the court may consider as • He may. The test after his conviction is termed a "post-conviction" DNA testing. Sec.
potentially affecting the accuracy and integrity of the DNA testing (Sec. 4, 6 of the RDE allows a post-conviction DNA testing.
RDE). • It may be available to (a) the prosecution, or (b) the person convicted by a final and
• Finding that the above requirements have been complied with, the court shall now executory judgment, provided that the following requirements are met:
issue an order, if appropriate, to a. a biological sample exists;
o take biological samples from any person or crime scene evidence; and b. such sample is relevant to the case; and
o impose reasonable conditions on the testing to protect the integrity of the c. the testing would probably result in the reversal or modification of the
biological sample and the liability of the test results (Sec. 5, RDE). judgment of conviction (Sec. 6, RDE).
• Note: The court may motu proprio order a DNA testing (Sec. 4, RDE).
Is a court order required for a post DNA testing?
Is a court order always required before undertaking a DNA testing? • Sec. 6 of the RDE is clear. It may be available "without need of prior court order."
• It is not always required. The last paragraph of Sec. 4 of the RDE allows a testing
without a prior court order if done before a suit or proceeding is commenced at the What remedy is available to the convict if the results of the post DNA testing are favorable
request of any party, including law enforcement agencies. to him?
• This also means that a litigation need not exist prior to DNA testing. • If the results of the DNA testing are favorable to the convict, he may file a petition
o A court order shall be required only if there is a pending litigation, but not for a writ of habeas corpus with the court of origin.
before the litigation. • The court shall then conduct a hearing and in case the court finds, after
due hearing, that the petition is meritorious, it shall reverse or modify the
Is the order of the court granting a DNA testing appealable? What is the correct remedy? judgment of conviction and order the release of the convict, unless his
• It is not appealable and is immediately executory (Sec. 5 of the RDE) detention is justified for a lawful cause (Sec. 10, RDE).
• The remedy is a petition for certiorari under Rule 65 of the Rules of Court but under • The petition shall be filed with the court of origin as a rule. However, the
Sec. 5 "any petition for certiorari initiated therefrom shall not, in any way, stay the rule also allows the petition to be filed either with the Court of Appeals or
implementation thereof, unless a higher court issues an injunctive order" (Sec. 5, with the Supreme Court, or with any member of said courts.
RDE). § A hearing may be conducted by the latter courts or by any
member thereof or
Is there an automatic admission of the DNA evidence obtained in the testing? § instead of conducting a hearing, may instead remand the
• There is none. By the terms of Sec, 5 of the RDE, the grant of a DNA testing petition to the court of origin and issue the appropriate orders
application shall not be construed as an automatic admission into evidence of any (Sec. 10, RDE).
component of the DNA evidence that may be obtained as a result of the testing. • Note that under Sec. 10, the petition for a writ of habeas corpus may also be filed by
o This necessarily means that the court will still have to evaluate the the prosecution.
probative value of the proposed evidence before its admission.
Are the DNA profiles of a person open to public scrutiny?
 • They are not. DNA profiles and all the results or other information obtained from o During an examination in which a polygraph is used, sensors are attached
DNA testing are confidential. to the subject so that the polygraph can mechanically record the subject's
• Whoever discloses, utilizes or publishes in any form any information physiological responses to a series of questions.
concerning a DNA profile without the proper court order shall be liable for • Courts uniformly, reject the results of polygraph tests when offered in evidence for
indirect contempt of the court wherein such DNA evidence was offered, the purpose of establishing the guilt or innocence of one accused of a crime because
presented or sought to be offered and presented (Sec. 11, RDE). it has not yet attained scientific acceptance as a reliable and accurate means of
• Except upon order of the court, the DNA profiles and other results shall only be ascertaining truth or deception.
released to any of the following:
o The person from whom the sample was taken; B. DOCUMENTARY EVIDENCE
o Lawyers representing parties in the case or action where the DNA evidence
is offered and presented or sought to be offered and presented; Section 2. Documentary evidence. — Documents as evidence consist of writings, recordings,
o Lawyers of private complainants in a criminal action; photographs or any material containing letters, words, sounds, numbers, figures, symbols,
o Duly authorized law enforcement agencies; and or their equivalent, or other modes of written expression offered as proof of their contents.
o Other persons as determined by the court (Sec. 11, RDE).
• The person from whom the biological sample was taken may also request that his Photographs include still pictures, drawings, stored images, x-ray films, motion pictures or
DNA profile and all results or other information obtained from the DNA testing be videos.6
disclosed to the person designated in his request.
• This request, however, must be in writing, verified and filed with the court Rationale for Revisions (Explanatory Notes of SC on 2019 Revised Rules of Evidence)
that allowed the DNA testing (Sec. 11, RDE). Expanded definition of documentary evidence
• The trial court is mandated to preserve the DNA evidence in its totality, including all • Taken from the Federal Rules of Evidence (FRE) and Rule 1001 of the Uniform Rules of
biological samples, DNA profiles and results or other genetic information obtained Evidence (URE)
from DNA testing in accordance with Sec. 12 of the RDE. • The purpose of expanding the definition is to embrace in the broadest possible terms
every memorial that preserves written and spoken language, including recorded sounds
Paraffin tests • The inclusion of “photographs include still pictures, stored images, x-ray films, videotapes,
• Paraffin tests, in general, have been considered as inconclusive by the Court because and motion pictures” should be construed as merely exemplary, and NOT exclusive
scientific experts concur in the view that paraffin tests have proved extremely
unreliable in use. Photographs as documentary evidence
o The tests can only establish the presence or absence of nitrates or nitrites • In Sison v. People, among other cases, the SC allowed the use of photographs as
on the hand, but the tests alone cannot determine whether the source of documentary evidence because they are relevant to the issue and are verified. The
the nitrates or nitrites was the discharge of a firearm. verification need not be made by the photographer himself; it can be made by any other
• The presence of nitrates should be taken only as an indication of a possibility, or even competent witness who can testify as to its exactness and accuracy.
a probability, but not of infallibility that a person has fired a gun • Use of the word “videos” instead of “videotapes” – “Videos” is the more modern term
o since nitrates are also admittedly found in substances other than • Use of the word “drawings” – In Seiler v. Lucasfilm, the US CA for the Ninth Circuit held
gunpowder like explosives, fireworks, fertilizers, pharmaceuticals, tobacco that “drawings” were “writings” within the meaning of the best evidence rule.
and leguminous plants
o possible for one to fire a gun and yet be negative for the presence of Tranquil Salvador
nitrates as when the hands are washed before the test. o Additions, recordings, photographs, and sounds if they are offers as proof of their
• A paraffin test is not conclusive owing to several factors like wind direction, firing at contents
a hard object, using a long barrel or a low-caliber gun and profuse perspiration o Definition of photographs was adopted from Seiler v. Lucasfilm
o Enumeration is not exclusive
Polygraph tests (Lie detector tests)
Meaning of documentary evidence (as amended)
• A polygraph test operates on the principle that stress causes physiological changes
in the body which can be measured to indicate whether the subject of the • Documents, as evidence, do not exclusively refer to writings. They may refer to:
examination is telling the truth. o Recordings, photographs, or
6. The amendment in Sec. 2 expanded the definition of documentary evidence, which now includes “recordings and photographs”, as well as “sounds”, or their “equivalent.” There is also a new paragraph on the definition of “photographs.” Screenshots
could be included as evidence.

o any other material like objects as long as it contains letters, words, sounds, a. The document must be relevant;
numbers, figures, symbols or their equivalent, or b. The evidence must be authenticated;
o other modes of written expression offered as proof of their contents. c. The document must be authenticated by a competent witness; and
• Categories of documents as evidence, namely: d. The document must be formally offered in evidence.
o writings,
o recordings, Authentication of a document
o photographs; or • Every evidence, whether it be a document or an object, needs a witness. Testimonial
o any other material containing modes of written expressions. evidence provides the foundation for all types of evidence. This is a very basic rule.
• Under the first category are those instantly recognizable documents like written o In layman's term, the evidence must be "sponsored" by a witness.
contracts and wills. • To authenticate the object, the witness must have capacity to identify the object as
• Under the last category are those which are not traditionally considered as writings the very thing involved in the litigation.
but are actually objects which contain modes of written expressions. o Better still, he must have actual and personal knowledge of the exhibit he
o However, being writings or materials containing modes of written is presenting for admission.
expressions do not ipso facto make such materials documentary evidence. o This is because "a witness can only testify to those facts which he knows of
o For such writings or materials to be deemed documentary evidence, the his personal knowledge; that is, which are derived from his own
same must be offered as proof of their contents. perception" (Sec. 36, Rule 130).
o If offered for some other purpose, the writings or materials would not be
deemed documentary evidence but merely object evidence. RULES ON ELECTRONIC EVIDENCE
• When a contract is presented in court to show that it exists or simply to establish its
condition, it is not offered to prove its contents. Documents under the Rules on Electronic Evidence (REE)
o The contract, therefore, is not considered a documentary evidence, but an • Note: The Amended 2019 Rules adopted several rules and definitions from the REE.
object or real evidence. • Sec. l (h), Rule 2 of the REE defines an 'electronic document' as follows:
• Photographs as documentary evidence in the 2019 Rules include: o 'Electronic document' refers to
o still pictures, drawings, stored images, x-ray films, § information or the representation of information, data, figures,
o motion pictures or videos, (Sec. 2) symbols or other modes of written expressions, described or
o and screenshots (Explanatory Notes of the SC, 2019 Revised Rules of however represented
Evidence) • by which a right is established or an obligation
o List is NOT EXCLUSIVE. extinguished, or
 • by which a fact may be proved and affirmed,
Evidentiary concepts involved in the presentation of documentary evidence (as amended) § which is received, recorded, transmitted, stored, processed,
• To be admissible, documentary evidence, like any other evidence, must be relevant retrieved or produced electronically.
and competent. § It includes:
• It is also subject to general exclusionary rules such as the • digitally signed documents and
o rule on hearsay, • any print-out or output, readable by sight or other
o original document rule, and means, which accurately reflects the electronic data
o parol evidence rule. message or electronic document.
• It would be critical to remember that whenever a documentary evidence is involved, § For purposes of these Rules, the term 'electronic document' may
the original document rule, parol evidence rule, and hearsay rule, or any one of these be used interchangeably with 'electronic data message.’
rules may come into play. • An electronic document, also known interchangeably as electronic data message,
o Has the document been authenticated? Is it relevant? Is it the original based on the definition of the Rules, does not only refer to the information itself.
document? Is it a mere parol evidence and so must be excluded? Is it o It also refers to the representation of that information.
hearsay and, therefore, must be rejected? o Whether it be the information itself or its representation, for the
• However, where the evidence is offered as an object evidence, the best evidence document to be deemed “electronic,” it is important that it be received,
rule, original document rule, and hearsay rule find no application. recorded, transmitted, stored, processed, retrieved or produced
electronically.
Requisites for admissibility of documentary evidence • It is submitted that the rule does not absolutely require that the electronic document
• The following are the requisites for the admissibility of documentary evidence: be initially generated or produced electronically.

o A contract, for instance, prepared through the traditional written way may § Under the said provision, "Any other private document need
be converted to an electronic document if transmitted or received or later only be identified as that which it is claimed to be."
recorded electronically. • When, for instance, a document is electronically notarized, the manner of
• The rule also emphasizes that an electronic document is one that may be used for authentication under Sec. 2 of Rule 5 will not likewise apply.
any of the following purposes: o When so notarized, it is transformed into a public document and is to be
a. To establish a right; proved not in accordance with the Rules on Electronic Evidence but in
b. To extinguish an obligation; or accordance with the Rules of Court.
c. To prove or affirm a fact (Sec. 1[h], Rule 2, REE). o The tenor of Sec. 3, Rule 5 of the Rules on Electronic Evidence is
• Electronic documents are the functional equivalents of paper-based documents enlightening:
(Sec. 1 of Rule 3, REE). The provision declares: § "SEC. 3. Proof of electronically notarized document. - A
o "Whenever a rule of evidence refers to the term of writing, document, document electronically notarized in accordance with the Rules
 record, instrument, memorandum or any other form of writing, such term promulgated by the Supreme Court shall be considered as a
shall be deemed to include an electronic document as defined in these public document and proved as a notarial document under the
Rules." Rules of Court."
o Therefore, the rules on evidence in the Rules of Court, including statutes o Sec. 30 of Rule 132 of the Rules of Court provides for the manner of proving
containing rules of evidence, to be of suppletory application to the Rules notarial documents.
on Electronic Evidence in all matters not specifically covered by the latter § "Every instrument duly acknowledged or proved and certified as
(Sec. 3, Rule 1, REE). provided by law, may be presented in evidence without further
proof, the certificate of acknowledgment being prima facie
Authentication of Electronic Documents evidence of the execution of the instrument or document
• Under Sec. 1, Rule 5 of the Rules on Electronic Evidence, the person offering the involved"
document has the burden to prove its authenticity. Thus:
o "SEC. 1. Burden of proving authenticity. - The person seeking to introduce Originals under the Rules on Electronic Evidence
an electronic document in any legal proceeding has the burden of proving • (Formatting note: this part repeats under the topic Original Documents and hence,
its authenticity in the manner provided in this Rule." skippable. Just reproducing this here for a smooth rundown of the Rules on Electronic
• The manner of authentication of an electronic document is outlined under Sec. 2, Evidence in general.)
Rule 5, REE as follows: • Under Sec. 1, Rule 4 of the Rules on Electronic Evidence, the original of the electronic
o "SEC. 2. Manner of authentication. - Before any private electronic document is its printout or output readable by sight or other means, provided it is
document offered as authentic is received in evidence, its authenticity shown to reflect the data accurately
must be proved by any of the following means: o “An electronic document shall be regarded as the equivalent of an original
a. by evidence that it had been digitally signed by the person document under the Best Evidence Rule if it is a printout or output
purported to have signed the same; readable by sight or other means, shown to reflect the data accurately."
b. by evidence that other appropriate security procedures or • The copies of the printout or output readable by sight referred to in the immediately
devices as may be authorized by the Supreme Court or by law for preceding paragraph are also deemed originals where
authentication of electronic documents were applied to the o the copies were executed at or about the same time with identical
document; or contents, or
c. by other evidence showing its integrity and reliability to the o is a counterpart produced by the same impression as the original or from
satisfaction of the judge. the same matrix, or
• Notice that the aforementioned rigorous requirements for the authentication of an o by other means and which accurately reproduces the original (Sec. 2, Rule
electronic document do not apply to all electronic documents. 4, REE).
o Sec. 2 of Rule 5 will obviously apply only when the document is a private • For the court not to consider the copies mentioned in the immediately preceding
electronic document and the same is offered as an authentic document. paragraph as having the same effect as originals:
o If the electronic document is offered simply for what it is or for what it is o a genuine question as to the authenticity of the original must be raised, or
claimed to be without regard to whether or not it is authentic, Sec. 2 of that the circumstances would make it unjust or inequitable to admit the
Rule 5 finds no relevance. copy in lieu of the original (Sec. 2, Rule 4, REE).
o In such a case, the electronic document has only to be identified pursuant
to the suppletory application of Sec. 20 of Rule 132 of the Rules of Court. 1. Original Document Rule
 to prevent an overly rigid or technical application of the original document rule.
Rationale for Revisions • It allows for trial efficiency where the original is so tangential that its production
o The “Best Evidence Rule” (BER) is a misnomer because it misleadingly suggests that would add little or nothing to the reliability of the fact-finding process.
the doctrine applies to all types of evidence.
o BER only applies to documents or writings. As such, there is no requirement that Tranquil Salvador
parties introduce the best available evidence bearing on other matters that they seek o Included the phrase “or the original cannot be obtained by local judicial processes or
to prove in court. procedures;”
o The doctrine simply requires that the original be produced when the subject of o In relation to (c), present a summary under Sec. 7, Rule 130 – chart, summary, or
inquiry is the contents of a document and excludes secondary evidence except calculation
where the original is shown to be unavailable or secondary evidence is otherwise o Philippine jurisprudence providing for the summaries Compania Maritima
allowed by the rule or statute. v. Allied Free Workers
o The “Original Document Rule” is thus the more accurate or apt label for the doctrine. o When the document sought to be proved is not the controlling issued, no need to
provide the original, a photocopy would suffice
Section 3. Original document must be produced; exceptions. — When the subject of inquiry
is the contents of a document, writing, recording, photograph or other record, no evidence is Applicability of the rule (as amended)
admissible other than the original document itself, except in the following cases: 7 • The original document rule does not apply to all types of evidence.
o It does not comprehend object and testimonial evidence.
(a) When the original is lost or destroyed, or cannot be produced in court, without bad faith o It only applies when the evidence is documentary.
on the part of the offeror;8 • Also, it does not apply just because a document is offered in evidence.
o The rule only covers situations in which the subject of inquiry is the
(b) When the original is in the custody or under the control of the party against whom the contents of the document.
evidence is offered, and the latter fails to produce it after reasonable notice, or the original • Subject to certain exceptions, under the original document rule, when the subject of
cannot be obtained by local judicial processes or procedures; 9 inquiry relates to the contents of a document, no evidence shall be admissible other
than the original document itself.
(c) When the original consists of numerous accounts or other documents which cannot be • The key to the understanding of the original document rule is simply to remember
examined in court without great loss of time and the fact sought to be established from them that the rule cannot be invoked unless the contents of a writing is the subject of
is only the general result of the whole; and judicial inquiry, in which case, the best evidence is the original writing itself.
• Cases:
(d) When the original is a public record in the custody of a public officer or is recorded in a o Where the issue is only as to whether such document was actually
public office. executed, or existed, or on the circumstances relevant to or surrounding
its execution, the original document rule does not apply and even
(e) When the original is not closely-related to a controlling issue. 10 testimonial evidence is admissible.
§ Any other substitutionary evidence is, likewise, admissible
Rationale for Revision without need to account for the original
The additional exception “or the original cannot be obtained by judicial process or o Photocopies of certain documents to prove the contents thereof violate
procedure” this rule. They are mere scraps of paper.
• In Philippine National Bank v. Olalia, the SC ruled that when the original is outside § Because inquiry as to the contents of the documents is inevitable
the jurisdiction of the court, as when it is in a foreign country, secondary evidence is to prove the deficiency.
admissible.
Purpose of the rule (as amended)
The additional exception “[w]hen the original is not closely-related to a controlling issue” • Ensures that the exact contents of a document are brought before the court
• Known in the US as an exception for “collateral matter,” this amendment is intended

7. The amendment in Sec. 3 includes as a subject of inquiry, not only a document, but also a writing, recording, photograph or other record. The rule is that “no evidence is admissible other than original document itself.” Now, the exception applies if,
aside from the document itself, the “writing, recording, photograph or other record”, cannot be presented .
8. No amendment in items (c) and (d) in the exceptions, while there is only a minor amendment in item (a)
9. The amendment in item (b) includes, as an exception, a situation wherein the original of a document, writing, recording, photograph or other record cannot be obtained by judicial processes
10 . Item (e) is a new provision wherein as another exception is when the original is not closely-related to a controlling issue
 o In deeds, wills, and contracts, a slight variation in words may mean a great o The illustration merely involves an inquiry into an activity that occurred in
deal of difference in the rights and obligations of the parties. the presence of the witness. Thus, a witness may testify as to an event he
• A substantial hazard of inaccuracy exists in the human process of making a copy by perceived. The wedding ceremony is an event or a fact with an existence
handwriting or typewriting. The rule, likewise, acts as an insurance against fraud. independent of any writing.
o If a party is in the possession of the best evidence in its place, the o Thus, a witness may testify that Pedro died in his presence without
presumption naturally arises that the better evidence is withheld for presenting a death certificate. He may also testify that he traveled to Los
fraudulent purposes that its production would expose and defeat. Angeles without necessarily presenting the plane ticket and that his father
o Also protects against misleading inferences resulting from the intentional gave him a car without presenting a deed of donation.
or unintentional introduction of selected portions of a larger set of writings
Illustration No. 2
Waiver of the rule (as amended) • Same hypothetical. Counsel asks the witness if he signed any document after the
• The original document rule may be waived if not raised in the trial. wedding ceremony and opposing counsel objects that marriage contract should be
o Case: although the marriage certificate, the marriage license, and other presented as the best evidence.
pieces of documentary evidence were only photocopies, the fact that o Answer: the best evidence rule still does not apply. While it is conceded
these have been examined and admitted by the trial court, with no that a document is involved in the question and response, the inquiry
objections having been made as to their authenticity and due execution, involved the existence and execution of the marriage contract. The best
means that these documents are deemed sufficient proof of the facts evidence rule applies only when the subject of inquiry is the contents of a
contained therein. document
o Thus, a witness may be asked whether or not he sold his land in writing to
How to apply the original document rule (as amended) another, and an objection that the deed of sale is the best evidence of the
• The first step: to determine the matter inquired into. sale is improper because the testimony made no reference to the contents
• If the inquiry involves: of the deed.
o a document, and its contents are the subject of that same inquiry, the
original document rule applies and must, therefore, be complied with. Illustration No. 3
§ So long as the original is available, no other evidence can be • When counsel asks the witness what did the marriage contract contain as to the
substituted for the original because the original is the "best name of the officiating priest, the opposing counsel objected that counsel should
evidence" and not the mere copies or substitutes thereof. present the marriage contract
• Now what is to be done if, for one reason or another, the original cannot be o Answer: Yes, he should. In this illustration, the best evidence rule is
presented in evidence? properly invoked. Here, counsel is trying to prove some contents in the
o If this happens, the second step now comes into play. marriage contract through oral testimony without producing the original
• This step involves two stages: document.
1. finding an adequate legal excuse for the failure to present the original; and
2. presenting a secondary evidence allowed by the Rules of Court. Excuses for not presenting the original document (as amended)
• If the rule were to be restated into a simple formula, the rule would be: "Present the • The excuses for the non-production of the original document refer to the instances
 original, except when you can justify its unavailability in the manner provided for by when the original does not have to be produced even when the contents of the
the Rules of Court." document are the subjects of inquiry.
• These instances are those mentioned in Sec. 3, Rule 130 of the Rules of Court,
Illustrative applications of the original document rule namely:
Illustration No.1 a. When the original is lost or destroyed, or cannot be produced in court,
• Counsel wants to show that a marriage ceremony took place. When his witness says without bad faith on the part of the offeror;
that she was in the marriage ceremony and what happened there, the opposing b. When the original is in the custody or under the control of the party
counsel objects on the ground of the original document rule that the marriage against whom the evidence is offered, and the latter fails to produce it
certificate is the best evidence of the marriage. after reasonable notice, or the original cannot be obtained by local
o Answer: The best evidence rule does not apply. The subject of the inquiry judicial processes or procedures;
and response in the illustration does not even involve a document. The c. When the original consists of numerous accounts or other documents
evidence is purely testimonial. which cannot be examined in court without great loss of time and the fact

sought to be established from them is only the general result of the whole; or by mechanical or electronic re-recording, or by (4) chemical reproduction, or by (5) other
and equivalent techniques which accurately reproduce the original.12
d. When the original is a public record in the custody of a public officer or is
recorded in a public office. (c) A duplicate is admissible to the same extent as an original unless (1) a genuine question is
e. When the original is not closely-related to a controlling issue raised as to the authenticity of the original (not the duplicate), or (2) in the circumstances, it is
unjust or inequitable to admit the duplicate in lieu of the original. 13
Note: For annotations on exceptions (a), (b), (c), (d), see the annotations in Sections 5-8 of this
Rule as they are inextricably intertwined. For exception (e), as it is a new exception, see below. Rationale for Revision (Explanatory Notes, 2019 Proposed Amendments to the Revised
Rules on Evidence)
The additional exception “[w]hen the original is not closely-related to a controlling issue” • The amendment in Section 4 (a) does not modify the meaning of the existing rule
• Known in the US as an exception for “collateral matter,” this amendment is intended that “[t]he original of a document is one the contents of which are the subject of
to prevent an overly rigid or technical application of the original document rule. inquiry.”
• It allows for trial efficiency where the original is so tangential that its production • Even as amended, the term “original” does not necessarily mean the first writing,
would add little or nothing to the reliability of the fact-finding process. (Explanatory recording or photograph that was made, but rather refers to the writing, recording,
Notes of SC, 2019 Revised Rules of Evidence). or photograph that is in issue in the litigation.
• The inclusion of any output from a computer adopts Section 1, Rule 4 of the Rules on
When document is merely collaterally in issue (as amended) Electronic Evidence (REE)
• When a document is involved in the inquiry but the document is only collaterally in • The definition of “duplicate” follows Section 2, Rule 4 of the REE, which was adopted
 issue, the original document rule does not apply. from the FRE.
o A document is collaterally in issue when the purpose of introducing the • The purpose of this amendment is to eliminate best evidence objections to copies
document is not to establish its terms, but to show facts that have no made in clearly reliable ways, except where the objecting party can offer a good
reference to its contents like its existence, condition, execution or reason to support the production of the original as indicated by the new Section 4
delivery. (c).
o If a witness testifies that the victim was writing a letter when he was shot • The new Section 4 (c) is based on Section 2, Rule 4 of the REE.
by the accused, the letter is only collaterally in issue.
o If a witness testifies that he actually saw the debtor tender payment of his Tranquil Salvador
obligation to the creditor, he need not be required to produce the original o Rule 4 § 2, Electronic Evidence Rule
promissory note because payment is the focal point. § If it comes from a computer or any similar device, any printout or any
o The PN need also not be presented when the witness merely testifies to output readable by sight which presents its contents accurately is
the delivery of a deed of sale by X to Y. considered an original

Section 4. Original of document. — Meaning of Original (as amended)

• is the document itself or any counterpart intended to have the same effect by a
(a) An “original” of a document is the document itself or any counterpart intended to have person executing or issuing it.
the same effect by a person executing or issuing it. An “original” of a photograph includes the o An “original” of a photograph includes the negative or any print therefrom.
negative or any print therefrom. If data is stored in a computer or similar device, any printout o If data is stored in a computer or similar device, any printout or other
or other output readable by sight or other means, shown to reflect the data accurately, is an output readable by sight or other means, shown to reflect the data
“original”.11 accurately, is an “original.”
• The amendment in Section 4 (a) does not modify the meaning of the existing rule
(b) A “duplicate” is a counterpart produced by the (1) same impression as the original, or from that “[t]he original of a document is one the contents of which are the subject of
the (2) same matrix, or by (3) means of photography, including enlargements and miniatures, inquiry.”
o Even as amended, the term “original” does not necessarily mean the first

11 . This item (a) is a new provision. The amendment defines what an original document is, which is the document itself or any counterpart intended to have the same effect. Also, it provides that an original of a photograph includes the negative or any
print therefrom. Further, the data stored in a computer or similar device, when printed, is also an original
12 . This item (b) is a new provision. The definition of a “duplicate” is more detailed, it pertains to a counterpart produced (i) by the same impression as the original, or (ii) from the same matrix, or (iii) by means of photography, or (iv) by mechanical or
electronic recording, (v) by chemical reproduction, or (vi) by other equivalent techniques.
13 . This item (c) is a new provision. The admissibility of a duplicate is allowed to the same extent as an original, except if (1) a genuine question is raised as to the authenticity of the original or (2) it is unjust or inequitable to admit the duplicate”

writing, recording or photograph that was made, but rather refers to the o by mechanical or electronic re-recording, or
writing, recording, or photograph that is in issue in the litigation o by chemical reproduction, or
 (Explanatory Notes of the SC, 2019 Revised Rules on Evidence) o by other equivalent techniques which accurately reproduce the original.
• Under the old rules, the following are original documents: • A duplicate is admissible to the same extent as an original. Unless:
o The original of a document is one the contents of which are the subject of o a genuine question is raised as to the authenticity of the original, or
inquiry. o in the circumstances, it is unjust or inequitable to admit the duplicate in
o When a document is in two or more copies executed at or about the same lieu of the original.
time, with identical contents, all such copies are equally regarded as
originals. Originals under the Rules on Electronic Evidence
o When an entry is repeated in the regular course of business, one being • Under Sec. 1, Rule 4 of the Rules on Electronic Evidence, the original of the electronic
copied from another at or near the time of the transaction, all the entries document is its printout or output readable by sight or other means, provided it is
are likewise equally regarded as originals. shown to reflect the data accurately
• When the rule speaks of an "original," it obviously does not refer to the original of o “An electronic document shall be regarded as the equivalent of an original
an object evidence but an original of a documentary evidence. document under the Best Evidence Rule if it is a printout or output
o In a documentary evidence, its contents are the subjects of the inquiry. readable by sight or other means, shown to reflect the data accurately."
It is not, therefore, legally accurate to speak of the original of a gun. (Note: now part of Revised Rules)
• A signed carbon copy or duplicate of a document executed at the same time as the • The copies of the printout or output readable by sight referred to in the immediately
original is known as a duplicate original and maybe introduced in evidence without preceding paragraph are also deemed originals where
accounting for the non-production of the original. o the copies were executed at or about the same time with identical
o When a document is in two or more copies executed at or about the same contents, or
time, with identical contents, all such copies are equally regarded as o is a counterpart produced by the same impression as the original or from
originals the same matrix, or
o by other means and which accurately reproduces the original (Sec. 2, Rule
Kinds of Original Documents: (Justice Singh Slides) 4, REE).
1. Documents where its contents are the subject of inquiry – still retained • For the court not to consider the copies mentioned in the immediately preceding
• When what is being questioned is the authenticity and due execution of a deed paragraph as having the same effect as originals:
of sale and there is no real issue as to its contents, the [original document] rule o a genuine question as to the authenticity of the original must be raised, or
is inapplicable. (Skunac Corporation v. Sylianteng) o that the circumstances would make it unjust or inequitable to admit the
2. Duplicate original – still retained copy in lieu of the original (Sec. 2, Rule 4, REE).
• When carbon sheets are inserted between two or more sheets of writing paper § Note: the 2019 Revised Rules on Evidence has adopted this to
so that the writing of a contract upon the outside sheet, produces a facsimile apply to all duplicates in general, electronic or not.
upon the sheets beneath, such signature being thus reproduced by the same
stroke of pen which made the surface or exposed impression, all sheets are Original printout of facsimile transmissions
regarded as duplicate originals. (Capital Shoes Factory, Ltd. v. Traveler Kids) • Is a printout of a facsimile transmission an electronic data message or electronic
3. Entry is repeated in the regular course of business, one being copied from another document?
at or near the time of the transaction, all entries are regarded as originals – still o SC: the terms "electronic data message" and "electronic document," as
retained (under the new Section 7) defined under the Electronic Commerce Act of 2000, do not include a
• A VAT invoice is the seller's best proof of the sale of goods or services to the facsimile transmission and cannot be considered as electronic evidence.
buyer, while a VAT receipt is the buyer's best evidence of the payment of goods o It is not the functional equivalent of an original under the Best Evidence
or services received from the seller. (Northern Mindanao Power Corporation v. Rule and is not admissible as electronic evidence.
CIR) • Accordingly, the congressional deliberations on the Electronic Commerce Act show
that when Congress formulated the term "electronic data message," it intended the
A duplicate is admissible as the original (Note: not in Riano) same meaning as the term "electronic record" in the Canada law which excludes
• A “duplicate” is a counterpart produced telexes or faxes, except computer-generated faxes from the term, "electronic data
o By the same impression as the original, or message."
o from the same matrix, or • With greater reason is a photocopy of such fax transmission not electronic evidence.
o by means of photography, including enlargements and miniatures, or
 • In a case, the SC explained the unacceptability of filing pleadings through fax o When the marriage certificate is lost, even a person's birth certificate may
machines. It ruled: be recognized as competent evidence of the marriage between his
o A facsimile is not a genuine and authentic pleading. It is at best an exact parents.
copy preserving all the marks of an original. It may, in fact, be a sham
pleading. Section 6. When original document is in adverse party's custody or control. — If the
o Without the original. there is no way of determining on its face whether document is in the custody or under the control of adverse party, he must have reasonable
the facsimile pleading is genuine and authentic and was originally signed notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to
by the party and his counsel. produce the document, secondary evidence may be presented as in the case of its loss.

2. Secondary Evidence Requisites for the introduction of secondary evidence when the original is in the custody or
control of the adverse party (as amended)
Section 5. When original document is unavailable. — When the original document has been • A showing that the original document is in the custody or under the control of the
lost or destroyed, or cannot be produced in court, the offeror, upon (1) proof of its execution adverse party does not ipso facto authorize the introduction of secondary evidence
or existence and (2) the cause of its unavailability (3) without bad faith on his part, may prove to prove its contents.
its contents by a (a) copy, or (b) by a recital of its contents in some authentic document, or (c) • The party who seeks to present secondary evidence must first lay the basis for its
by the testimony of witnesses in the order stated. introduction. This requires proof of the following:
a. that the original exists;
Requisites for the introduction of secondary evidence in case of loss, destruction, or b. that said document is under the custody or control of the adverse party;
unavailability of the original c. that the proponent of secondary evidence has given the adverse party
• Secondary evidence refers to evidence other than the original instrument or reasonable notice to produce the original document; and
document itself d. that the adverse party failed to produce the original document despite
o Like a copy of the original the reasonable notice or the original cannot be obtained by local judicial
• Is admissible as an exception if the original writing has been lost, destroyed or processes or procedures
cannot be produced in court without bad faith on the part of the party offering the • SC: the fact that the original of the writing is in the custody or control of the party
secondary evidence. against whom it is offered does not warrant the admission of secondary evidence.
o This exception does not only cover loss or destruction but also other o The offeror must prove that he has done all in his power to secure the best
reasons for the failure to produce the original in court even if the original evidence by giving notice to the said party to produce the document.
is not lost or destroyed, as when the original is beyond the territorial o The notice may be in the form of :
jurisdiction of the court § a motion for the production of the original, or
• Under Sec. 5 of Rule 130, secondary evidence may be admitted only by laying the § made in open court in the presence of the adverse party, or
basis for its production. Specifically, laying such basis requires compliance with the § via a subpoena duces tecum,
following: • provided that the party in custody of the original has
a. The offeror must prove the existence and execution of the original sufficient time to produce the same.
document; o When such party has the original of the writing and does not voluntarily
b. The offeror must show the cause of its unavailability such as the loss or offer to produce it or refuses to produce it, secondary evidence may be
destruction of the original; and admitted
c. The offeror must show that the unavailability was not due to his bad faith
• Based on the Rules, the presentation of secondary evidence should be in the The additional exception “or the original cannot be obtained by judicial process or
following order: procedure”
a. a copy of the original; • In Philippine National Bank v. Olalia, the SC ruled that when the original is outside
b. a recital of the contents of the document in some authentic document; or the jurisdiction of the court, as when it is in a foreign country, secondary evidence
 c. by the testimony of witnesses (Sec. 5, Rule 130, Rules of Court). is admissible (Explanatory Notes of SC, 2019 Revised Rules of Evidence).
o Accordingly, the correct order of proof is as follows: existence, execution,
loss and contents although, at the sound discretion of the court, this order Section 7. Summaries. - When the contents of documents, records, photographs, or numerous
may be changed if necessary accounts are voluminous and cannot be examined in court without great loss of time, and
• Case: While a marriage certificate is considered the primary evidence of a marital the fact sought to be established is only the general result of the whole, the contents of such
union, it is not regarded as the sole and exclusive evidence of marriage. evidence may be presented in the form of a chart, summary or calculation.

• A proper foundation for the introduction of a summary may be established through

The originals shall be available for examination or copying, or both, by the adverse party at a the testimony of:
reasonable time and place. 14 o the person responsible for the summary's preparation, or
o the person who supervised the preparation of the summary
Requisites for the introduction of secondary evidence when the original consists of
numerous accounts (as amended) Tranquil Salvador
• Under this exception, secondary evidence is admissible: o Party can still demand the original at a reasonable time and place
a. if the original consists of numerous accounts or other documents; o If refused, the Court can order
b. such accounts or documents cannot be examined in court without great
loss of time; and Section 8. Evidence admissible when original document is a public record. — When the
c. the fact sought to be established from them is only the general result of original of document is (1) in the custody of public officer or (2) is recorded in a public office,
the whole (Sec. 3[c], Rule 130, Rules of Court). its contents may be proved by a certified copy issued by the public officer in custody thereof.
• The 2019 Revised Rules added a new provision on numerous accounts, Section 7.
• The main reason for this exception lies in the determination by the court that Requisites for the introduction of secondary evidence when the original document is a public
production of the original writings and their examination in court would result in record (as amended)
great loss of time considering that the evidence desired from the voluminous • There are instances when the original of a document is a public record or is recorded
accounts is only the general result of the whole like a summary of the accounts. in a public office.
o The rule does away with the item-by-item court identification of o Public records are generally not to be removed from the places where they
voluminous exhibits which would only be burdensome and tedious for the are recorded and kept (Sec. 26, Rule 132, Rules of Court).
parties and the court o For this reason, the proof of the contents of a document, which forms part
• Under this exception, a witness may be allowed to offer: of a public record may be done by secondary evidence.
o a summary of a number of documents, or the summary itself may be § This evidence is a certified true copy of the original.
admitted, if the underlying documents are so voluminous and intricate as o This certified copy is to be issued by the public officer in custody of the
to make an examination of all of them impracticable. public records (Sec. 8, Rule 130, Amended Rules of Court).
o They may also be presented in the form of charts or calculations.
 o Note: As amended, the rules now require that the contents of such Section 9. Party who calls for document not bound to offer it. — A party who calls for the
evidence may be presented in the form of a chart, summary or production of a document and inspects the same is not obliged to offer it as evidence.
calculation.
• For example, an accountant's written summary of some 150,000 sales invoices for Effect of not offering a document in evidence after calling for its production and Inspection
goods sold by the plaintiff may be allowed under this exception despite the objection • If the party who calls for the production of a document does not offer the same in
of the defendant that the sales invoices constitute the original documents and evidence, no unfavorable inference may be drawn from such failure.
should be presented o This is because under Sec. 9 of Rule 130, a party who calls for the
• As a condition precedent to the admission of a summary of numerous documents, production of a document is not required to offer it.
the proponent must lay a proper foundation for the admission of the original
documents on which the summary is based. This means that: 3. Parol Evidence Rule
o the source documents must be shown to be original and not secondary
and Section 10. Evidence of written agreements. — When the terms of an agreement have been
o must be made accessible to the opposing party reduced to writing, it is considered as containing all the terms agreed upon and there can be,
§ so that the correctness of the summary may be tested on cross- as between the parties and their successors in interest, no evidence of such terms other than
examination or may be refuted in pleadings. the contents of the written agreement.
§ Codal as amended now states: “The originals shall be available
for examination or copying, or both, by the adverse party at a However, a party may present evidence to modify, explain or add to the terms of written
reasonable time and place” agreement if he or she puts in issue in a verified pleading: 15

14 . Sec. 7 is a new provision. It pertains to “voluminous” evidence that cannot be examined in court without great loss of time, so the contents thereof may be presented in the form of a chart, summary or calculation. Also, the “voluminous” evidence
must be available to the adverse party for examination or copying.
15 . No substantial amendment in the third paragraph of Sec. 10. Aside from the gender-based amendment, inserted was word “verified” when referring to the required pleading to “modify explain or add to the terms of a written agreement.

(a) An intrinsic ambiguity, mistake or imperfection in the written agreement; o Other evidence are barred because, as Sec. 9 of Rule 130 provides, the
(b) The failure of the written agreement to express the true intent and agreement of writing " ... is considered as containing all the terms agreed upon ... "
the parties thereto; • In American jurisprudence, when a writing is on its face incomplete, said writing is
(c) The validity of the written agreement; or only a partial integration of the agreement of the parties; hence, parol evidence is
(d) The existence of other terms agreed to by the parties or their successors in interest not barred to prove matters not covered by the writing. Parol evidence is, however,
after the execution of the written agreement. barred when the writing is a total integration of the agreement (not applicable)
o This traditional distinction between partial and total integration observed
The term "agreement" includes wills. in traditional American jurisprudence appears irrelevant to the application
of the parol evidence rule in a Philippine setting.
Contracts and the parol evidence rule • Being the final agreement, any extraneous or "parol" evidence is inadmissible for any
• Among the various evidentiary rules, it is the parol evidence rule that has direct of the following purposes:
application to the law on contracts. o modify
o The rule, however, applies only to contracts which the parties have o explain, or
decided to set forth in writing, i.e., as Sec. 10 of Rule 130 provides: "When o add to the terms of the written agreement.
the terms of an agreement have been reduced to writing." • The parol evidence rule, therefore, forbids any testimony or other evidence
o Hence, when the agreement is merely oral, the parol evidence rule should purporting to show that different terms were agreed upon by the parties, varying
not be applied. the purport of the written contract
• A contract is a "meeting of the minds" between two or more persons. o Whatever is not found in the writing is understood to have been waived
o The Civil Code does not define a contract as a document, a deed, or an and abandoned
instrument. • In general, the parol evidence rule is designed to give certainty to written
o The document, deed, or instrument is merely the tangible evidence of a transactions, preserve the reliability and protect the sanctity of written agreements.
contract. • Should the "writing" that embodies the agreement of the parties be in a particular
• The decision of the parties to reduce the agreement in written form is critical to the form?
application of the parol evidence rule. When they execute a written contract, the o Note that Sec. 9 of Rule 130 only makes reference to a "writing," not a
parol evidence rule ipso facto comes into play. public writing or a private writing.
o SC: for the parol evidence rule to apply, a written contract need not be in
Application of the parol evidence rule any particular form, or be signed by both parties. As a general rule, bills,
• The term "parol" evidence means something "oral" or verbal but, with reference to notes and other instruments of a similar nature are not subject to be varied
contracts, it means extraneous evidence or evidence aliunde (Black's Law or contradicted by parol or extrinsic evidence"
Dictionary).
o As used in the Rules of Court, the term refers not only to oral but also to Application of the rule only to parties and their successors-in-interest.
written evidence which are outside of or extraneous to the written • The parol evidence rule does not apply to persons who are not parties to a deed and
contract between the parties. do not base their claim on it
• Not all writings, however, will trigger the application of the parol evidence rule. • The rule that the terms of an agreement are to be proven only by the contents of the
o That writing must embody an agreement. writing itself refers to suits between "parties and their successors in interest."
o There is only one writing which, although not legally an agreement, is o The rule does not bind suits involving strangers to the contract and a
considered to be one for purposes of the application of the parol evidence stranger is allowed to introduce extrinsic or parol evidence against the
rule. efficacy of the writing
§ This writing is a will.
o It does not apply to receipts, for example. Application of the rule to wills
• The parol evidence rule becomes operative when the issues in the litigation are the • The parol evidence rule applies to contractual obligations. However, by the explicit
terms of a written agreement. provision of Sec. 9 of Rule 130, the term "agreement" includes wills.
• In clear-cut language, the basic question that would bring the parol evidence rule o There can, therefore, be no evidence of the terms of the will other than
into play is: "What have the parties agreed upon?" the contents of the will itself.
o The appropriate answer would be: "Look into the written agreement and • While the parol evidence rule applies to wills, an express trust concerning an
not elsewhere because only the contents of the written agreement are immovable or any interest therein may not be proved by parol evidence (Art. 1443,
admissible in evidence." Civil Code).
 • A communication is absolutely privileged when it is not actionable, even if the lawyer sues a client for his fee, either the lawyer or the client may testify as to
author has acted in bad faith. This class includes allegations or statements made by communications between them.
parties or their counsel in pleadings or motions or during the hearing of judicial and § In theory, the client has impliedly “waived” the privilege by
administrative proceedings, as well as answers given by the witness in reply to making allegations of breach of duty against lawyer.
questions propounded to them in the course of said proceedings, provided that said 4. Document attested by the lawyer
allegations or statements are relevant to the issues, and the answers are responsive o (Explanatory Notes of SC, 2019 Revised Rules on Evidence) The privilege does
to the questions propounded to said witnesses. xxx The absolute privilege remains not apply to “a communication relevant to an issue concerning an attested
regardless of the defamatory tenor and the presence of malice, if the same are document to which the lawyer is an attesting witness.”
relevant, pertinent or material to the cause in and or subject of the inquiry. (Belen o This should not really be an exception because the privilege never arises, as a
v. People, G.R. No. 211120, February 13, 2017) lawyer who acts as an attesting witness is not providing professional legal
• While Philippine law is silent on the question of whether the doctrine of absolutely services.
privileged communication extends to statements in preliminary investigations or o When an attorney serves as an attesting witness, he is not acting as a lawyer
other proceedings preparatory to trial. and the client’s obvious intent is to have him available to testify to the matter
attested.
Exceptions to the Attorney-Client Privilege (As amended) 5. Joint clients
1. Furtherance of crime or fraud o (Explanatory Notes of SC, 2019 Revised Rules on Evidence) The rationale for
o Privilege does not extend to communications where the client’s purpose is the the exception is that joint clients do not intend their communication to be
furtherance of a future intended crime or fraud, or for the purpose of confidential from each other, and typically their communications are made in
committing a crime or a tort each other’s presence.
o Accordingly, although communications made when used to further crimes are o Agreeing to joint representation means that each joint client accepts the risk
NOT privileged, the discussion of the communications in confidence with the that another joint client may later use what he or she has said to the lawyer.
lawyer AFTER the crime has been committed may still be privileged even
though the earlier ones were not Tranquil Salvador
o (Explanatory Notes of SC, 2019 Revised Rules on Evidence) The rationale for o Attorney – Client Privilege. Should be during the relationship and given in
this exception is that clients are not entitled to use lawyers to help them in confidence
pursuing unlawful or fraudulent objectives. If the privilege were to cloak such § Even if not attorney is covered, for as long as the person reasonably
activity, the result would be loss of public confidence and corruption of the believed to be licensed
profession • Subject to civil or criminal actions
§ The policy of the privilege is that of promoting the administration § Covers secretary, stenographer, clerk, and including those assisting the
of justice and it would be a perversion of the privilege to extend it attorneys (associates and paralegals)
to the client who seeks advice to aid him in carrying out an illegal § In the US, investigator is included
fraudulent scheme. This would be tantamount to participating in § For joint clients, they should not agree in writing that they do not want the
a conspiracy lawyer to testify
2. Claimants through same deceased client
o (Explanatory Notes of SC, 2019 Revised Rules on Evidence) While the attorney- (c) A physician, psychotherapist or person reasonably believed by the patient to be
client privilege survives the death of the client, there is no privilege in a will authorized to practice medicine or psychotherapy cannot in a civil case,
contest or other case between parties who both claim through that very o without the consent of the patient,
client. o be examined as to any confidential communication made for the purpose of
o This is because his communications may be essential to an accurate resolution diagnosis or treatment of the patient’s physical, mental or emotional condition,
of competing claims of succession, and the testator would presumably favor including alcohol or drug addition,
disclosure in order to dispose of his estate accordingly. o between patient and his or her physician or psychotherapist.
3. Breach of duty by lawyer or client o This privilege also applies to persons, including members of the patient’s family, who
o (Explanatory Notes of SC , 2019 Revised Rules on Evidence) If the lawyer and have participated in the diagnosis or treatment of the patient under the direction of
client become involved in a dispute between themselves concerning the the physician or psychotherapist.
services provided by the lawyer, the privilege does not apply to their dispute.
o Thus, where a client alleges a breach of duty on the part of the lawyer, i.e. A “psychotherapist” is:
professional malpractice, incompetence, or ethical violations – or where the a. A person licensed to practice medicine engaged in the diagnosis or treatment of
a mental or emotional condition, or
 b. A person licensed as a psychologist by the government while similarly engaged. capacity to help his or her patients is completely dependent upon their willingness and ability
to talk freely. Confidentiality is a condition sine qua non for a successful psychiatric treatment.
Sec. 24 (c). Physician-patient privilege (As amended) o For one to be considered a “psychotherapist,” a medical doctor need only be
• This privilege applies to a civil case, whether the patient is a party or not “licensed” to practice medicine and need not be a psychiatrist, whereas a
o Implies that the privilege cannot be claimed in a criminal case presumably psychologist must be “licensed” by the government.
because the interest of the public in criminal prosecution should be
deemed more important than the secrecy of the communication When privilege does not apply (as amended)
• It encourages free disclosure in the sickroom by preventing disclosure in the • Privilege does not apply when the PURPOSE is not for the treatment or prevention
courtroom of any disease or injury
o The patient is the person to be encouraged and he is the holder of the • The privilege does not apply to shield the commission of a crime or when the
privilege purpose is an unlawful one as to obtain narcotics or prohibited drugs in violation of
• The person against whom the privilege is claimed is law because there is no treatment involved
o physician, psychotherapist or o NOTE: Communication given in confidence regarding alcohol or drug
o person reasonably believed by the patient to be authorized to practice addiction is now privileged
medicine or psychotherapy • Where the purpose is to ask a physician to have one’s appearance disguised by
o Also applies to persons, including members of the patient’s family, who cosmetic or plastic surgery to escape apprehension, the privilege does not apply
have participated in the diagnosis or treatment of the patient under the • Privilege does not apply in a criminal case at all.
direction of the physician or psychotherapist (applies to third parties)
• The information which cannot be disclosed refers to any confidential communication Tranquil Salvador
made for the purpose of diagnosis or treatment of the patient’s physical, mental or o Doctor – Client Privilege. Limited to Civil and not to Criminal, because the latter is a
emotional condition, including alcohol or drug addition, between patient and his or matter of public interest
her physician or psychotherapist. § Extends to psychometrician, and those reasonably believe to be licensed
• It is opined that the rule does not require that the relationship between the physician to practice
and the patient be a result of a contractual relationship § Instead of advice, it includes diagnosis or treatment
o It could be the result of a quasi-contractual relationship (i.e. as when the § Should be given in confidence
patient is seriously ill and the physician treats him even if he is not in a § It extends to physical, mental, emotional, as well as drug and alcohol
condition to give his consent) addiction
• The privilege survives the death of the patient § Does it extend to third parties? Yes. It includes members of the patients
o Death does not permit the living to impair the deceased’s name by family if those who assisted, participated under the direction of the
disclosing communications held confidential by law physician
• The privileged may be waived, expressly or impliedly
o The waiver may be by a contract as in medical or life insurance (d) A minister, priest or person reasonably believed to be so cannot,
o When there is disclosure by the patient of the information, there is a o without the consent of the affected person,
waiver o be examined as to any communication or confession made to or any advice given by
o When the patient answers questions on matters which are supposedly him or her,
privileged on cross-examination o in his or her professional character,
o There could also be a waiver by operation of law or the rules o in the course of discipline enjoined by the church to which the minster or priest
§ (i.e. Rule 28, when the party examined requests for the report of belongs
the physical or mental examination)
Sec. 24 (d). Priest/minister-penitent privilege (as amended)
Psychotherapist – Patient Privilege • The person making the confession holds the privilege, and the priest or minister, or
• A person licensed to practice medicine engaged in the diagnosis or treatment of a person reasonably believed to be so, hearing the confession in his professional
mental or emotional condition, or capacity is prohibited from making a disclosure of the confession without the
• A person licensed as a psychologist by the government while similarly engaged. consent of the person confessing
• The privilege also extends not only to a confession made by the penitent
(Explanatory Notes of SC, 2019 Revised Rules on Evidence) The rationale to include this
privilege is that the psychotherapist has a special need to maintain confidentiality. His or her
 o but also to any communication or advice in his or her professional • The power of the government to withhold information from the public, the courts,
character, in the course of discipline enjoined by the church to which the and the Congress
minster or priest belongs • In Almonte v. Vasquez, the Court acknowledged that there are certain types of
o Thus, the minister or priest must be duly ordained or consecrated by his information which the government may withhold from the public like (1) military,
sect (2) diplomatic and (3) national security secrets
• EXCEPTION: o Alluding to foreign jurisprudence, it was ruled that the President and those
o The advice given is NOT as a result of the confession made in the minister’s who assist him must be free to explore alternatives in the process of
“professional character,” or in his “spiritual” capacity shaping policies and making decisions and to do so in a way many would
§ Where the penitent discussed business arrangements with the be unwilling to express except privately
priest, the privilege does not apply
Elements of Presidential Communications Privilege:
(Explanatory Notes of SC, 2019 Revised Rules on Evidence) The old provision limited the 1. The protected communication must relate to a “quintessential and non-delegable
privilege to “penitential communications” made to a minister or priest in the course of presidential power.”
discipline enjoined by the church to which the priest or minister belongs. 2. The communication must be authored or "solicited and received" by a close advisor
o As worded, it is unduly preferential to the Roman Catholic Church. of the President or the President himself. The judicial test is that an advisor must be
o The amendment expands the privilege to embrace any confidential communication in "operational proximity" with the President.
by a person to a minister or priest in his professional character as a spiritual advisor. 3. The presidential communications privilege remains a qualified privilege that may be
overcome:
Tranquil Salvador o By a showing of adequate need, such that the information sought "likely
o Penitent – Priest Privilege. contains important evidence" and
§ Should be given in confidence o By the unavailability of the information elsewhere by an appropriate
§ Extends to any communication but should be enjoined by the religious investigating authority.
denomination the person belongs to
Right to Information
(e) A public officer cannot be examined • The Constitution recognizes the right of the people to information on matters of
o during or after his or her tenure public concern and guarantees access to official records, documents, and papers
o as to communications made to him or her in official confidence, pertaining to official acts, transactions, or decisions, as well as to government
o when the court finds that the public interest would suffer by the disclosure. research data used as basis for policy development, subject to such limitations as
may be provided by law
Sec. 24 (e). Privileged communications to public officers o In Chavez v. PCGG, while the constitutional right to information includes
• Communications made to a public officer in official confidence are privileged when official information on ongoing negotiations before a final contract, such
the court finds that the disclosure would adversely affect the public interest information does not cover recognized exceptions like privilege
o It is the interest of the public that is sought to be protected by the rule information, military and diplomatic secrets and similar matters affecting
o Hence, the disclosure or non-disclosure is not dependent on the will of the national interest
officer but on the determination by a competent court o Since diplomatic negotiations enjoy a presumptive privilege against
• The privilege may not be invoked not only during the term of office of the public disclosure, a sufficient showing of the existence of a public interest is
officer but also afterward required to overcome such
• National security matters and State secrets are, of course, confidential and a court • In Neri v. Senate, the rule that for the claim of executive privilege to be invoked,
will likely uphold the privilege there must be a formal claim of the privilege, lodged by the head of the department
• 2019 amendment now includes “after his or her tenure” which has control of the matter, and that a formal and proper claim of the privilege
requires a “precise and certain reason” for preserving confidentiality, but Congress
Tranquil Salvador must not require the executive to state the reasons for the claim with such
o Public Officer-State Privilege particularity as to compel the disclosure of the information which the privilege is
§ Cannot be examined during or even after if public interest would be meant to protect
affected o This is a matter of respect for a coordinate and co-equal department
• In other words, right to information other than those involving military, diplomatic,
Executive privilege national security matters, and information on investigations of crimes by law
 enforcement agencies before the prosecution of the accused, does not also extend Family Code of the Philippines which provides that “[n]o descendant can be
to presidential conversations, correspondences, and discussions in closed-door compelled, in a criminal case, to testify against his parents and ascendants.”
cabinet meetings
Parental and filial privilege (as amended)
Privileged communications under the Rules on Electronic Evidence
• Privileged communications apply even to electronic evidence PARENTAL FILIAL
• Under Sec. 3, Rule 3 of such, the confidential character of a privileged A parent cannot be compelled to testify A child may not be compelled to testify
communication is not lost solely on the ground that it is in the form of an electronic against his child or other direct descendants against his parents or other direct
document ascendants
EXCEPTION: A person, however, may testify against his parents or children voluntarily but
EXTENT OF PRIVILEGE IN ALL INSTANCES if he refuses to do so, the rule protects him from any compulsion
• The communication shall be privileged, even in the hands of a third person who may
have obtained the information, provided that the original parties to the In criminal cases, a parent or child may be compelled to give his or her testimony when
communication took precaution to protect its confidentiality such is indispensable in a crime against that person or by one parent against the other
• (Explanatory Notes of SC, 2019 Revised Rules on Evidence) This proposal is based on Applies to both criminal and civil cases
Justice Malcom’s dissenting opinion in Barton v. Leyte Asphalt, “The rule now
announced by the Court that it makes no difference how the adversary acquired Justice Singh:
possession of the document, and that a court will take no notice of how it was • A stepmother can be compelled to testify against stepdaughter, they have no
obtained is destructive of the attorney’s privilege and constitutes an obstacle to common ancestry, privilege applies only to "direct" ascendants and descendants.
attempts at friendly compromise. • The privilege is not strictly a rule on disqualification because a descendant is not
• In the case of Uy Chico v. Union Life Assurance Society, it was held that incompetent or disqualified to testify against an ascendant. This refers to a privilege
communications made by a client to his attorney for the purpose of being not to testify, which can be invoked or waived like other privileges.
communicated to others are not privileged if they have been so communicated. But
here there is no intimation that Exh. 14 was sent by the client to the lawyer for the Tranquil Salvador
purpose of being communicated to others. o Cannot be compelled
• The SC of Georgia in the case of Southern Railway Co. v. White, held that statements o Except when such testimony is indispensable in a crime against that person
in a letter to a party’s attorney handed by the latter to the opponent’s attorney, are or by one parent against the other
confidential communications and must be excluded” o May be examined voluntarily

Tranquil Salvador SECTION 26: PRIVILEGE RELATING TO TRADE SECRETS25

o If original parties took reasonable precaution to maintain and protect its A person cannot be compelled to testify about any trade secret, unless the non-disclosure will:
confidentiality, it remains privileged even if it goes to the knowledge of third parties o conceal fraud or
o otherwise work injustice.
2. Testimonial Privilege When disclosure is directed, the court shall take such protective measure as the interest of the
owner of the trade secret and of the parties and the furtherance of justice may require.
SECTION 25: PARENTAL AND FILIAL PRIVILEGE 24
No person shall be compelled to testify against his or her parents, other direct ascendants, Rationale for revisions (Explanatory Notes of SC, 2019 Revised Rules on Evidence)
children or other direct descendants, except when such testimony is indispensable in a crime o In Air Philippines Corporation v. Pennswell, Inc, the Supreme Court held that trade
against that person or by one parent against the other. secrets are of a privileged nature, but the privilege is not absolute; the court may
compel disclosure where it is indispensable for doing justice.
Rationale for revisions (Explanatory Notes of SC, 2019 Revised Rules on Evidence) o A trade secret was defined in said case “as a plan or process, tool, mechanism or
• Use of the phrase “except when such testimony is indispensable in a crime against compound known only to its owner and those of his employees to whom it is
that person or by one parent against the other” – incorporates Article 215 of the necessary to confide.”

24 . There is a new provision on the exception to the parental and filial privilege, i.e., when the testimony is indispensable in a crime involving the concerned person or by one parent against the other
25 . This is a new section. The amendment considers as privilege the disclosure of “trade secrets”, unless the non-disclosure will conceal fraud or otherwise work injustice. When disclosure is ordered by the court, protective measures must be taken to
protect the interest of the owner of the trade secret and of the parties and the furtherance of justice may require
 o The definition was held to extend to “a secret formula or process not patented, but • The news media serve a vital role in keeping the citizenry informed about public
known only to certain individuals using it in compounding some article of trade issues, and the government should not interfere with this function by compelling
having a commercial value.” disclosure of sources.
o The Court went on to explain that a trade secret may “consist of any formula, • In the absence of a privilege, litigants may draw excessively upon journalists for
pattern, device or compilation of information that information that could be obtained by independent investigation or other means.
1) is used in one’s business, and • For journalists to be perceived as an investigative arm of the prosecutor's office or
2) gives the employer an opportunity to obtain an advantage over competitors the courts would compromise their independence and inhibit their access to news
who do not possess the information. sources
• The New Jersey Shield Law, in particular, defines the term “news media” as
Tranquil Salvador “newspapers, magazines, press associations, news agencies, wire service, radio,
o Not absolute, and patterned from Air Philippines v. Pennswell television, or other similar printed, photographic, mechanical or electronic means of
o Exception to privilege is when there is fraud or will work injustice disseminating news to the general public.”
o Should be directed by the court, and should protect the owner • Given the broad definition, and considering the phrase “electronic means of
disseminating news,” a determine of what may be deemed as “news media” may
Journalist – Source Privilege. RA 1477, as amended by RA 11458 well extend to official websites of more traditional forms of media, such as
“inquirer.net” (newspaper), “abs-cbnnews.com” (radio and television) and
Sec. 1. Without prejudice to his liability under the civil and criminal laws, any publisher, owner, “time.com” (magazine).
or duly recognized or accredited journalist, writer, reporter, contributor, opinion writer, • The inclusion of such online-based media, particularly when they are accredited
editor, columnist, manager, media practitioner and/or recognized by traditional media organizations or institutions is in consonance
o involved in the writing, editing, production, and dissemination of news for mass with the intent behind the proposed amendments, which is to ensure their relevance
circulation, of any print, broadcast, wire service organization, or electronic mass and applicability in the wake of increasing technological advancements covering
media, including cable TV and its variants, almost every aspect of human relations
o cannot be compelled to reveal the source of any news item, report or information • Thus, the Rules Committee added the phrase “or their online platforms” after radio
appearing or being reported or disseminated through said media, and television stations
o which was related in confidence to the abovementioned media practitioners
unless: Tranquil Salvador
o the court or o Journalist – Source Privilege.
o the House of Representatives or § Cannot be compelled to disclose source
o the Senate or § Except when ordered by the Court
o any committee of Congress § RA 1487
§ finds that such revelation is demanded by the security of the § Branzburg v. Hayes
State § Applies to news media
§ Does not apply to radio, tv, or online platforms
PROPOSED PROVISION § Unless, it maintains it a certified transcript within a period of 1
[Section 26. Journalist – Source Privilege. – A person engaged in, or employed by, news media year from the date of broadcast
cannot be compelled to disclose the source of any news report or information disclosed in
confidence to such person, unless the court finds that the disclosure is required by the interest Other privileged communications not found in the Rules of Court
of the state. This rule shall not apply to radio, television station or their online platforms, unless (a) Voters may not be compelled to disclose for whom they voted;
the radio, television station or their online platforms maintains and keeps open for inspection (b) Information contained in tax census returns
for a period of at least one (1) year from the date of an actual broadcast or telecast an exact (c) Bank deposits
recording, transcription, or certified written transcript of the actual broadcast or telecast.] (d) Art. 233 of the Labor Code, information and statements made at conciliation
proceedings
Note: this provision did not make it into the published 2019 Revised Rules on Evidence (e) Sec. 6 of RA 9194, amending Sec. 9 of RA 9160 (AMLA), institutions covered by the
law and its officers and employees who communicate a suspicious transaction to the
Rationale for revision (Explanatory Notes of SC, 2019 Revised Rules on Evidence) AMLC
• The arguments commonly made for granting journalists a privilege are that the
newsgathering function would be impaired if journalists could not guarantee 3. Admissions and Confessions
confidentiality to persons who supply them with information.
 Extrajudicial (made out of court or even in a
SECTION 27: ADMISSION OF A PARTY proceeding other than the one under
The act, declaration or omission of a party as to a relevant fact may be given in evidence consideration
against him. Adoptive (occurs when a person manifests
his assent to the statements of another
Admission person)
• Any statement of fact made by a party against his interest or unfavorable to the -
conclusion for which he contends or is inconsistent with the facts alleged by him The admission may be received in evidence
if it can be shown that a party adopted the
To be admissible, it must: statements as his own
1. Involve matters of fact, and not of law;
2. Be categorical and definite; Adoptive admission
3. Be knowingly and voluntarily made; and • A party may, by his words or conduct, voluntarily adopt or ratify another’s
4. Be adverse to the admitter’s interests, otherwise, it would be self-serving and statement
inadmissible • Where it appears that a party clearly and unambiguously assented to or adopted
the statements of another, evidence of those statements is admissible against him
Effects of admission • An adoptive admission is a party’s reaction to a statement or action by another
• This rule is based on the notion that no man would make any declaration against person when it is reasonable to treat the party’s reaction as an admission of
himself something stated or implied by the other person (Estrada v. Desierto)
o Unless it is true • By adoptive admission, a third person’s statement becomes the admission of the
party embracing or espousing it
Concept of admissions and confessions • Occurs when a party:
ADMISSIONS CONFESSIONS o Expressly agrees to or concurs in an oral statement made by another;
An act, declaration, or omission of a party as Declaration of an accused acknowledging o Hears a statement and later on essentially repeats it;
to a relevant fact. his guilt of the offense charged, or of any o Utters an acceptance or builds upon the assertion of another;
offense necessarily included therein. o Replies by way of rebuttal to some specific points raised by another but
It is a voluntary acknowledgement made by It is a statement by the accused that he ignores further points which he or she has heard the other make; or
a party of the existence of the truth of engaged in conduct which constitutes a o Reads and subsequently signs a written statement made by another
certain facts which are inconsistent with his crime • Ex. The alleged admissions made by Pres. Estrada when his options dwindled when,
claims in an action according to the Angara Diary, the armed forces withdrew its support from him as
Merely a statement of fact not directly Acknowledgement of guilt President and Commander-in-Chief.
involving an acknowledgement of guilt or o Thus, Executive Secretary Angara had to allegedly ask Senate President
the criminal intent to commit the offense Pimentel to advise petitioner to consider the option of “dignified exit or
with which one is charged resignation”
Generally includes confession Specific type of admission o President Estrada did not object to the suggested option but simply said
May be implied Should be a direct and positive he could never leave the country
acknowledgement of guilt o According to the Court, his silence on this and other related suggestions
can be taken as adoptive admissions by him
Classification of admissions and confessions
ADMISSIONS CONFESSIONS SECTION 28: OFFER OF COMPROMISE NOT ADMISSIBLE
Express (positive statement or act); or Express (positive acknowledgement of guilt In civil cases, an offer of compromise is not an admission of any liability, and is not admissible
and cannot be inferred) in evidence against the offeror. Neither is evidence of conduct nor statements made in
Implied (inferred from the declarations or compromise negotiations admissible, except evidence otherwise discoverable or offered for
acts of a person) another purpose, such as :
Judicial (when made in the course of a Judicial or extrajudicial for the same reasons • proving bias or prejudice of a witness,
judicial proceeding); or • negativing a contention of undue delay, or
 • proving an effort to obstruct a criminal investigation or prosecution. 26 OFFER OF OFFER OF PLEA OF GUILT OFFER TO PAY OR
COMPROMISE IN COMPROMISE IN LATER PAYMENT OF
In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed CIVIL CASES CRIMINAL CASES WITHDRAWN EXPENSES
by law to be compromised, an offer of compromised by the accused may be received in Not an admission of May be received in Not admissible “Good Samaritan
evidence as an implied admission of guilt. any liability and is evidence as an against the accused Rule”
not admissible implied admission who made the plea.
A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to a lesser offense, of guilt Not admissible in
is not admissible in evidence against the accused who made the plea of offer. Neither is any Neither is evidence Neither is an evidence as proof of
statement made in the course of plea bargaining with the prosecution, which does not result in of conduct nor unaccepted plea of civil or criminal
a plea of guilty or which results in a plea of guilty later withdrawn, admissible. 27 statements made in guilty to a lesser liability for the
compromise offense admissible injury
An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury negotiations
is not admissible in evidence as proof of civil or criminal liability for the injury. Including any
statement made in
Rationale for revision (Explanatory Notes of SC, 2019 Revised Rules on Evidence) the course of plea
• The new rule will enable lawyers and parties to negotiate more freely without bargaining with the
concern that their conduct or statements will later be received into evidence as prosecution, which
Admissions. does not result in
• The proposed rule does not exclude admissibility of an offer of compromise for all plea of guilty or
purposes. The exclusionary rule is designed to exclude the offer of compromise only withdrawn
when it is tendered as an admission of the weakness of the offering party’s claim XPN: evidence XPN: those involving
or defense, not when the purpose is otherwise. otherwise quasi-offenses
• Under the existing rule, only the actual compromise offer and those statements discoverable or (criminal
inextricably linked with the offer are protected offered for another negligence) or those
o The rule suggests some of the purposes for which evidence of an offer to purpose, such as allowed by law to
Compromise may be admitted, to wit, proving bias or prejudice of a proving bias or be compromised
witness, negativing a contention of undue delay, or proving an effort to prejudice of a
obstruct a criminal investigation or prosecution witness, negativing
• The proposed amendment relating to the admissibility of any statement made in the a contention of
course of plea bargaining with the prosecution is derived from Rule 41 of the FRE. undue delay, or
• The underlying purpose of the existing rule making a plea of guilty later withdrawn proving an effort to
or an unaccepted offer of a plea of guilty to a lesser offense inadmissible is to obstruct a criminal
encourage and protect plea discussions or bargaining, which is a vital aspect of the investigation or
criminal justice system prosecution
• To promote this objective, the amendment renders any statement made in the
course of plea discussions inadmissible against the defendant, at least where those Subsequent remedial measures
discussions fail to produce agreement or lead to pleas later withdrawn • The US Federal Rules of Evidence (FRE), prohibits the admission of subsequent
• It will allow attorneys and defendants to negotiate freely with the prosecution remedial measures when offered to prove the negligence of the defendant
without concern that, if the case ultimately goes to trial, their factual statements will • Evidence of such measures may, however, be admissible to prove some other
be received as admissions against the defendant purpose like the fact that the defendant had ownership of the hotel or control over
the same and all the fixtures therein

26 . The second sentence in the first paragraph of Sec. 28 is a new provision. The amendment provides that “evidence of conduct nor statements made in compromise negotiations” cannot be admissible, except if such evidence were “discoverable or
offered for another purpose”, such as proving bias or prejudice of a witness
27 . The second sentence in the third paragraph is a new provision. It provides that a plea bargaining with the prosecution cannot be used in evidence against the accused
 • Accordingly, the rule is based on the policy of encouraging potential defendants to • The expression if fully expressed reads: res inter alios acta alteri nocere non debet
remedy hazardous conditions without fear that their actions will be used as evidence which literally means that “things done between strangers ought not to injure those
against them who are not parties to them”
o To adopt the contrary rule would discourage owners from improving the • RATIONALE: On a principle of good faith and mutual convenience, a man’s own acts
condition causing the injury because of their fear of the evidential use of are binding upon himself and are evidence against him. So are his conduct and
such improvement to their disadvantage declarations. Yet, it would not only be rightly inconvenient, but also manifestly
unjust, that a man should be bound by the acts of mere unauthorized strangers; and
Justice Singh: if a party ought not to be bound by the acts of strangers, neither ought their acts or
Offer of Compromises conduct be used as evidence against him
A. Civil Cases • Exceptions (in relation to the first branch below):
o NOT ADMISSIBLE as admission of any liability o Admission by a co-partner or agent
o ADMISSIBLE for other purposes (e.g., to prove bias of a witness, to negate o Admission by a co-conspirator
undue delay, to prove obstruction of criminal investigation/prosecution) o Admission by privies
o Rule is NOT absolute: • The basis for admitting the above admissions is that the person making the
§ If a party denies the existence of a debt but offers to pay the same statement is under the same circumstances as the person against whom it is offered
for the purpose of buying peace and avoiding litigation, the offer
of settlement is inadmissible. Branches of res inter alios acta
§ If in the course thereof, the party making the offer admits the 1. The rule that the rights of a party cannot be prejudiced by an act, declaration, or
existence of an indebtedness combined with a proposal to settle omission of another;
the claim amicably, then, the admission is admissible to prove o Common reason and fairness demand that a man’s actions and declarations
such indebtedness. should affect him alone and should not affect others
o Has reference only to extrajudicial declarations
B. Criminal cases, EXCEPT quasi-offenses and those allowed to be compromised § Hence, statements made in open court (judicial) by a witness
o ADMISSIBLE as an implied admission of guilt implicating persons, aside from his own judicial admissions, are
o INADMISSIBLE admissible as declarations from one who has personal knowledge
§ if plea of guilt withdrawn; of the facts testified to
§ if offer of plea of guilt to lesser offense is not accepted; 2. The rule that evidence of previous conduct or similar acts at one time is not
§ if statement made during plea bargain and no plea of guilt results admissible to prove that one did or did not do the same act at another time (Sec.
or plea is later withdrawn 35, Rule 130)
o Offer made prior to the filing of the criminal complaint cannot be an implied
admission of guilt as it was not made in the context of a criminal proceeding. EXTRAJUDICIAL CONFESSIONS JUDICIAL CONFESSIONS
(San Miguel Corp. v. Kalalo) May be given in evidence against the Admissible against the declarant’s co-
o Act of pleading for forgiveness, through letters from detention, analogous to confessant but not against his co-accused accused since the latter are afforded
an attempt to compromise. Offer must be made under a consciousness of guilt, as they are deprived of the opportunity to opportunity to cross-examine
NOT merely to avoid the inconvenience of imprisonment. (People v. Nazareno) cross-examine

Tranquil Salvador If the declarant or admitter repeats in court

o In civil cases, offer of compromise is now subject to exceptions his extrajudicial admission and the other
o Not admissible if there is discussion of plea or plea of guilt later withdrawn accused is accorded the opportunity to
cross-examine the admitter, the admission
SECTION 29: ADMISSION BY A THIRD PARTY is admissible against both accused because
The rights of a party cannot be prejudiced by an act, declaration, or omission of another, then, it is transposed into a judicial
except as hereinafter provided. admission

Res inter alios acta [alteri nocere non debet] SECTION 30: ADMISSION BY CO-PARTNER OR AGENT 28

28 . The amendment in the first paragraph of Sec. 30 only clarifies the authority given to a partner or agent.
The act or declaration of a partner or agent (1) authorized by the party to make a statement • It is also necessary for the application of the exception that the proof of the agency
concerning the subject, or (2) within the scope of his or her authority AND during the existence or partnership be from a source INDEPENDENT of the declaration made by the
of the partnership or agency, may be given in evidence against such party after the partner or agent
partnership or agency is shown by evidence other than such or declaration. The same rule • The above rules also apply to joint owner, joint debtors, or other persons jointly
applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party
interested with the party.
Tranquil Salvador
Rationale for revision (Explanatory Notes of SC, 2019 Revised Rules on Evidence) o Should be ‘authorized by the party’ because there are other parties or agents acting
• The proposed addition of the phrase “authorized by the party to make a statement negligently
concerning the subject or” is explained by the ABA Paper as follows:
• FRE 801 (d)(2)(C) and FRE 801 (d)(2)(D) qualify an agent’s statement as admissible if: SECTION 31: ADMISSION BY CONSPIRATOR 29
o it is “authorized” speaking or writing or The act or declaration of a conspirator (1) in furtherance of the conspiracy and (2) during its
o if such statement relates to something that is within the scope of the agent’s existence, may be given in evidence against the co-conspirator after the conspiracy is shown
job and it is made while still employed, even though the agent was not by evidence other than such act of declaration.
authorized to speak or write.
• Under the US federal law “it has been resolved that doing an unauthorized act is Rationale for revision (Explanatory Notes of SC, 2019 Revised Rules on Evidence)
‘within the scope’ even if done negligently or in a wrongful manner.” • The SC has actually used the phrase “in furtherance of conspiracy” in a number of
o However, the agent must be currently employed when the statement is made cases. The phrase requires that the act or declaration should advance the ends of
to “safeguard against grudge statements and those with only a motive to the conspiracy rather than simply “relate” to the conspiracy
deflect liability” • The phrase “in furtherance of conspiracy” is a more precise and concrete phrase than
“relating to the conspiracy” if the intent is to require that the statement was made,
Admission by a co-partner or agent (As amended) for the purpose of advancing the conspiracy’s objectives
• An agent performs some service in representation or on behalf of his principal • The furtherance requirement provides some assurance that the statement fits
o The agent, therefore, is in legal contemplation a mere extension of the circumstantially the aims apparently motivating the conspirators, which provides
personality of the principal and unless the agent acts in his own name, the some indication that it can be trusted.
principal must comply with all the obligations which the agent may have • The requirement also expresses in evidential terms the agency theory underlying the
contracted within the scope of his authority substantive notion of conspiracy. Perhaps more important, it limits the array of out-
o Hence, whatever is said by an agent to a third person, during the course of the of-court statements that fit the exception
agency and within the scope of his actual or apparent authority, relative to
the business contemplated by the agency is, for legal purposes, also the Admission by a co-conspirator (as amended)
statement of the principal and is, therefore, admissible against said principal • A conspiracy exists when two or more persons come to an agreement concerning
• REQUISITES: the commission of a felony and decide to commit it
a. The declaration or act must have been done: o Once the conspiracy is proven, the act of one is the act of all
i. by the partner or agent authorized by the party to make a o The statement of one may be admitted against the other co-conspirators
statement concerning the subject, OR • REQUISITES:
ii. done within the scope of the partner or agent’s authority 1. The declaration or act be made or done DURING the existence of the
b. The declaration or act of the partner or agent must have been made or conspiracy
done during the existence of the partnership or agency (while the person 2. The declaration or act must relate to or in furtherance of the conspiracy; and
making the declaration was still a partner or an agent) 3. The conspiracy must be shown by evidence other than such declaration or act
c. The existence of the partnership or agency is proven by evidence other • Incriminating declarations of co-conspirators made in the absence of or without the
than the declaration or act of the partner or agent knowledge of the others after the conspiracy has come to an end is inadmissible
• Any declaration made BEFORE the partnership or agency existed, or those made o The arrest of the declaration is often found to terminate the declarant’s
AFTER (as after dissolution or liquidation), are NOT admissible against the other participation in the conspiracy so that the declarant’s post arrest statements
partners or the principal BUT remains admissible against the partner or agent making do not qualify as admissible co-conspirator statements
the declaration o But they are still binding on the declarant

29 The amendment in Sec. 31 is a minor one and a matter of style, aside from the re-numbering of the said section
 • An extrajudicial confession is binding only upon the confessant and is not o Applies to extra-judicial statements
admissible against his co-accused (hearsay)
o However, if the declarant/admitter repeats in court his extrajudicial confession SECTION 32: ADMISSION BY PRIVIES30
during trial and the other accused is accorded the opportunity to cross- Where one derives title to property from another, the latter’s act, declaration, or omission,
examine the admitter, such confession or admission is admissible against BOTH in relation to the property, is evidence against the former if done while the latter was holding
accused the title.
o The erstwhile extrajudicial confession or admission, when repeated during the
trial, is transposed into judicial admissions Admission by privies
o When the extrajudicial admission of a conspirator is confirmed at the trial, it • Privies are persons who are partakers or have an interest in any action or thing, or
ceases to be hearsay. It becomes, instead, a judicial admission, being a any relation to another
testimony of an eye-witness admissible in evidence against those he o Ex. Lessor and lessee; grantor and grantee; assignor and assignee;
implicates. executor/administrator and the estate; heir and ascendant
• Also assuming that the statement relating to the conspiracy was made by a • REQUISITES:
conspirator during the existence of the conspiracy, for the statement to be admitted, o There must be an act, declaration, or omission by a predecessor-in-interest
the extrajudicial statements of the co-conspirator must be proven by evidence other o The act, declaration, or omission of the predecessor must have occurred while
than such admission he was holding (not after) the title to the property; and
o If the only evidence of the conspiracy is the extrajudicial declaration of the o The act, declaration, or omission must be in relation to the property
declarant, the statements are not admissible against the others • Accordingly, when the former owner of the property made the declaration AFTER he
o If apart from the extrajudicial confession of the confessant, no other evidence ceased to be the owner of the property, the rule on admission by privies DOES NOT
of the alleged participation of the accused in the conspiracy was presented by apply
the prosecution, the culpability of the accused could not be sufficiently
established SETION 33: ADMISSION BY SILENCE
An act or declaration made (1) in the presence AND (2) within the hearing OR observation of
Justice Singh: a party who does or says nothing when the act or declaration is such as naturally to call for
• The exception provided under Sec. 31, Rule 130 of the Rules of Court to the rule action or comment if not true, and when proper and possible for him to do so, may be given
allowing the admission of a conspirator requires the prior establishment of the in evidence against him.
conspiracy by evidence other than the confession.
o In this case, there is a dearth of proof demonstrating the participation of Admission by silence
Salapuddin in a conspiracy to set off a bomb in the Batasan grounds and • Traditionally received as admissible evidence
thereby kill Congressman Akbar. Not one of the other persons arrested and • Usual pattern for its admissibility
subjected to custodial investigation professed that Salapuddin was involved in o Statement by a person in the presence of a party to the action, criminal or
the plan to set off a bomb in the Batasan grounds. civil
• Mere association with the principals by direct participation, without more, does not o The statement contains assertions against the party which, if untrue,
suffice. Relationship, association and companionship do not prove conspiracy. would be sufficient cause for the party to make a denial
(Salapuddin v. Court of Appeals, G.R. No. 184681, February 25, 2013) o His failure to speak against the statement is admissible as an admission
• Extrajudicial confessions are binding only on the confessant and cannot be admitted • The idea of the rule on admission by silence is that if an accusation is made, and a
against co-accused, except if there is prior establishment of the conspiracy by reasonable person would have denied the same if it were false, the failure to deny
evidence other than the confession. It must be proven that: the accusation by the person accused may be construed as an implied admission of
o The conspiracy be first proved by evidence other than the admission itself; the truth of the accusation and may be given in evidence against him
o The admission related to the common object; and o Ex. A bystander, in the presence of other people, told the police the X killed
o It has been made while the declarant was engaged in carrying out the the other man. X did not respond. Failure to respond may be used as
conspiracy evidence against him.
• Not every silence is an implied admission (i.e. person under custodial investigation)
Tranquil Salvador • REQUIREMENTS:
o Included ‘in furtherance of’ o That he heard and understood the statement;

30 The amendment in Sec. 32 is a minor one and a matter of style, as well as pertaining to the numbering of the said section. Also, it clarifies that the act, declaration or omission of the holder of title is evidence against the one deriving title therefrom
 o He was at liberty to make a denial o Evidence of collateral offenses must not be received as substantive
o The statement was about a matter affecting his rights or in which he was evidence of the offenses on trial
interested and which naturally calls for a response; • To argue that a person did or did not commit an act because he did or did not
o The fact were within his knowledge; and commit a similar thing in the past is certainly non sequitur
o The fact admitted from his silence is material to the issue • Ex. That a person contracted various debts and had not paid such debts before is not
admissible to show that the debtor did not pay his obligation in the present case.
Justice Singh: o Similarly, evidence that X was cleared of previous charge of robbery in the
• The natural instinct of man impels him to resist an unfounded claim and defend past is not admissible to prove that he could not have committed robbery
himself. It is against human nature to just remain reticent and say nothing in the face in the present
of false accusations. (People v. Castañeda)
• Silence during custodial investigation is not admission by silence as he has the right Justice Singh
to remain silent during that stage. (People v. Guillen) • Previous Conduct as evidence
o Evidence that one did a certain thing at one time is not admissible to prove
SECTION 34: CONFESSION that he did the same or similar thing at another time.
The declaration of an accused acknowledging his guilt of the offense charged, or of any offense o Prior involvement in a cash shortage in the bank's branch does not
necessarily included therein, may be given in evidence against him. conclusively prove that she is responsible for the loss of money in the new
branch. (Metrobank v. Custodio)
JUDICIAL CONFESSION EXTRAJUDICIAL CONFESSION o Evidence is not admissible when it shows, or tends to show, that the
May sustain a conviction, even without Only if corroborated with evidence of accused in a criminal case has committed a crime independent from the
proof of corpus delicti independent of the corpus delicti (Note: this is only for purposes offense for which he is on trial. A man may be a notorious criminal, and
judicial confession of conviction, not admission.) may have committed many crimes, and still be innocent of the crime
charged on trial. (People v. Pineda,)
(Formatting Note: Annotations on the need of corpus delicti for admissibility of an
extrajudicial confession is moved to Section 3, Rule 133) When evidence of similar acts or previous conduct is admissible (SKIPS-C-HUTS)
• Specific intent
4. Previous Conduct as Evidence • Knowledge
• Identity
SECTION 35: SIMILAR ACTS AS EVIDENCE • Plan
Evidence that one did or did not do a certain thing at one time is not admissible to prove that • System
he did or did not do the same or similar thing at another time; but it may be received to prove • Scheme
a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the • Habit
like. • Custom
• Usage; and
Evidence of similar conduct (second branch of Sec. 29, Rule 130) [Propensity evidence] • The like
• 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 • Evidence of similar acts may frequently become relevant, especially in actions based
act at another time.
on fraud and deceit, because it sheds light on the state of mind or knowledge of a
o A similar conduct which does not even sufficiently establish a plan or person, his motive or intent, or they may uncover a scheme, design or plan
scheme is not admissible • The admissibility of similar acts or previous conduct would depend on the purposes
o The past acts of the accused are inadmissible to prove that he acted in for which such acts or conducts are offered
conformity with such previous acts.
• The similar acts may be offered to show that they share distinctive features as the
• The rule prohibits the admission of the so-called "propensity evidence" which is
offense for which the accused is currently charged with, but the evidence cannot be
evidence that tends to show that what a person has done at one time is probative of offered to show that the accused is likely to be guilty of the charge for having
the contention that he has done a similar act at another time. committed the same or similar acts before his present indictment.
• The evidentiary rule guards the practical inconvenience of trying collateral issues and
protracting the trial and prevents surprise or other mischief prejudicial to litigants SECTION 36: UNACCEPTED OFFER
An offer in writing to pay a particular sum of money or to deliver a written instrument or Applicability of the Judicial Affidavit Rule to criminal cases
specific personal property is, if rejected without valid cause, equivalent to the actual • The Judicial Affidavit Rule shall apply to criminal cases
production and tender of the money, instrument, or property. • Note, however, that the Judicial Affidavit Rule applies to criminal cases where "the
maximum of the imposable penalty does not exceed six years"
JUDICIAL AFFIDAVIT RULE (A.M. 12-8-8-SC) o In other cases, the Rule will apply, irrespective of the penalty involved,
where the accused agrees to the use of judicial affidavits
Rationale for the Judicial Affidavit Rule • With respect to the civil aspect (ex delicto) of the criminal action, the Judicial Affidavit
• The most basic reason for the adoption of the Rule is to decongest the courts of cases Rule shall apply, irrespective of the penalty involved
and to reduce delays in the disposition of cases
• Took effect on January 1, 2013 Contents of the judicial affidavit
• Prepared in the language known to the witness.
Significance of the use of a judicial affidavit; exhibits o If the affidavit is not in English or Filipino, it shall be accompanied by a
• The judicial affidavit shall take the place of the direct testimonies of witnesses translation in either language
o The rule, therefore, modifies the existing practice in the conduct of a trial • Name, age, residence or business address, and occupation of the witness
and reception of evidence by doing away with the usual oral examination • A statement in the affidavit that the witness is answering the questions asked of him,
of a witness in a direct examination fully conscious that he does so under oath, and that he may face criminal liability
• To be attached to the judicial affidavit are the documentary or object evidence of for false testimony or perjury
the parties • Name and address of the lawyer.
o Plaintiff/Complainant: Exhibits A, B, C, and so on; o This is because the examination of the witness shall be conducted and
o Respondent/Defendant: Exhibits 1, 2, 3, and so on supervised by a lawyer
• The original document or object evidence need not be attached to the judicial • Place where the examination is being held
affidavit. • Questions asked of the witness and his answers to the questions, all consecutively
o The party or witness may keep the same in his possession after the exhibit numbered
has been identified, marked as an exhibit and authenticated. o The questions and answers shall:
o He must, however, warrant in his judicial affidavit that the copy or § Show the circumstances under which the witness acquired the
reproduction attached is a faithful copy or reproduction of the original facts upon which he testifies
• Aside from the above requirement, the party or witness is required to bring the § Elicit from him those facts which are relevant to the issues that
original document or object evidence for comparison with the attached copy, the case presents; and
reproduction or pictures, during the preliminary conference. § Identify the attached documentary and object evidence and
o In case of failure to bring the originals for comparison, the attached copy, establish their authenticity
reproduction or pictures shall not be admitted o It is evident that the questions to be asked will determine whether or not
the witness has personal knowledge of the facts upon which he testifies,
Scope of the Judicial affidavit Rule and thus, prevent the introduction into the record of mere hearsay
• (a) Actions, (b) proceedings, or (c) incidents requiring the reception of evidence testimonies
• Applies to all courts, other than the Supreme Court. It also applies to certain non- o The matters testified to should also be on matters relevant to the issues
judicial bodies. Specifically, the following: of the case.
o Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial o The affidavit also requires that the witness not merely identify the
Courts, Municipal Circuit Trial Courts and the Shari'a Circuit Courts but shall exhibits but also authenticate the same for evidentiary purposes.
not, however, apply to small claims cases; • Proof of the due execution and authenticity of a private document shall be made in
o Regional Trial Courts and Shari'a District Courts; case the document is offered as authentic.
o Sandiganbayan, Court of Tax Appeals, Court of Appeals and Shari'a o If not offered as authentic, the private document need only be identified as
Appellate Courts; that which it is claimed to be
o Investigating officers and bodies authorized by the Supreme Court to • Signed by the witness over his printed name
receive evidence, including the Integrated Bar of the Philippines; and • Contain a jurat, with the signature of the notary public who administers the oath or
o Special courts and quasi-judicial bodies, whose rules of procedure are an officer who is authorized to administer the same
subject to disapproval of the Supreme Court
Effect of non-compliance with the content requirements of the Judicial Affidavit Rule
 • Shall not be admitted by the court in evidence C and so on
• The relevant provision, however, does not absolutely bar the submission of a • In criminal cases, no further judicial affidavit, documentary or object evidence shall
compliant replacement judicial affidavit as long as the replacement shall be (1) be admitted at the trial
submitted before the hearing or trial and (2) provided further that the following o This means that even before the trial, the prosecution has to lay down on
requisites are met: the table, all its evidence - testimonial, documentary and object.
o The submission shall be allowed only once • Since the accused is already aware of the evidence of the prosecution, he has the
o The delay is for a valid reason options to submit or not to submit his judicial affidavits
o The delay would not unduly prejudice the opposing party; and o If the accused desires to be heard on his defense after receiving the judicial
o The public or private counsel responsible for the preparation and affidavits of the prosecution, the accused may submit his judicial affidavit
submission of the affidavit pays a fine of not less than P1,000.00 nor more as well as those of his witnesses, including his documentary and object
than P5,000.00, at the discretion of the court evidences marking them as Exhibits 1, 2, 3, and so on
o The submission shall be done within ten days from receipt of the affidavits
Sworn attestation of the lawyer of the prosecution with service upon the public and private prosecutor
• Shall also contain a sworn attestation at the end, executed by the lawyer who
conducted and supervised the examination, to the effect that: Effects of failure to submit the judicial affidavits and exhibits on time
o there was a faithful recording of the questions and answers in the judicial • A party who fails to submit the required judicial affidavits and exhibits on time shall
affidavit and be deemed to have waived their submission
o that there was no coaching of the witness on what to answer o The waiver would mean that a party who failed to submit the judicial
• Specifically, the sworn attestation shall attest to the following: affidavit of a particular witness:
o That he faithfully recorded or caused to be recorded the questions he • would have no direct testimony for that witness and
asked and the corresponding answers that the witness gave; and • the documentary or object evidence integrated with such
o That neither he nor any other person present or assisting him coached the affidavit could not be identified, marked as an exhibit, and
witness regarding the latter's answers authenticated.
• In effect, the exhibit could not be offered in evidence.
Effect of a false attestation by the lawyer o If the waiver extends to the required affidavits of all the witnesses of a
• A false attestation shall subject the lawyer to disciplinary action, including party because all the judicial affidavits were not filed and served, then said
disbarment party is deemed to have not presented his evidence-in-chief for his case.
• NOTE: Under A.M. No. 19-10-20-SC, failure to attach the judicial affidavit and
Effect of non-compliance with the attestation requirement documentary or object evidence will not let you present the witness on trial, unless
• Same effect as non-compliance with the content requirement there is good cause.
o “Section 6. Contents. — Every pleading stating a party’s claims or defenses
Filing and service of the judicial affidavit and exhibits; modes of service (As amended) shall, in addition to those mandated by Section 2, Rule 7, state the
• The judicial affidavits of the witnesses and the documentary or object evidence shall following:
be filed by the parties with the court and served on the adverse party, not later than o (a) Names of witnesses who will be presented to prove a party’s claim or
five days before the pre-trial or preliminary conference or the scheduled hearing, defense;
with respect to motions and incidents o (b)Summary of the witnesses’ intended testimonies, provided that the
o NOTE: Under A.M. No. 19-10-20-SC, the judicial affidavits shall be attached judicial affidavits of said witnesses shall be attached to the pleading and
to the complaint (or pleading asserting a claim or defense) filed, including form an integral part thereof. Only witnesses whose judicial affidavits are
all documentary or object evidence attached to the pleading shall be presented by the parties during trial.
• The filing of the judicial affidavit and its attached exhibits shall be done, not only Except if a party presents meritorious reasons as basis for the admission of
personally, but also by licensed courier service additional witnesses, no other witness or affidavit shall be heard or
o Service by mail is not mentioned in the Rule admitted by the court; and
• In criminal cases, the prosecution shall submit the judicial affidavits of its witnesses o (c) Documentary and object evidence in support of the allegations
not later than five days before the pre-trial. contained in the pleading”
o Copies of the judicial affidavits shall be served upon the accused.
o To be attached to the judicial affidavits are such documentary or object Remedy in case of late submission
evidence as the prosecution may have, marking them as Exhibits A, B, and
 • The failure of a party to submit a judicial affidavit on time does not mean a • The Rule integrates an element of the inquisitorial system which allows the court to
permanent waiver to submit the same. He is given another chance to do so. have an active role in the proceedings.
• The remedy is to move that the late submission of the judicial affidavit and its • Hence, the Rule clearly mandates the court to take active part in examining the
exhibits be allowed. witness to:
• In order for the court to allow late submission, the same requirements as provided o Determine the
for in non-compliance of the content requirement/ attestation requirement applies • Credibility of the witness; and
• Truth of his testimony; and
Offer of testimony in the judicial affidavit o Elicit the answer that it needs in resolving the case
• Instead of offering the oral testimony of the witness, the party using the judicial • The questions of the court shall not, therefore, be confined to mere clarificatory
affidavit of his witness in place of a direct testimony, shall questions
o Present such affidavit and
o State the purpose of the testimony contained therein Effect of failure of a witness to appear at the scheduled hearing; failure of counsel to appear
o At the start of the presentation of the witness • The court shall not consider the affidavit of any witness who does not appear in the
scheduled hearing of the case as required
Objections to testimony in the judicial affidavit; ruling of the court • If the affidavit is not considered, it is as if no judicial affidavit has been executed by
• The presentation of the judicial affidavit and the statement of the purpose of the the absent witness.
testimony contained therein will give the adverse party the opportunity to object to o Such witness, hence, shall be deemed as not having given a direct
the testimony. testimony in the trial.
• The adverse party may, on the ground of inadmissibility, move to: • It is the duty of counsel to appear at the scheduled hearing because of the adverse
o Disqualify the witness; effect of his failure to do so on a basic right of his client.
o Strike out his affidavit; or o A counsel who fails to appear without a valid cause despite notice shall be
o Strike out any of the answers found in the judicial affidavit deemed to have waived his client's right to confront by cross-
• The court is required to promptly rule on the motion of the adverse party. examination the witnesses present
o If it grants the motion, any excluded answer shall be marked by placing the
same in brackets under the initials of an authorized court personnel. When there is a need for the issuance of a subpoena
o The other party may, however, make a tender of excluded evidence under • A requesting party may avail himself of the issuance of a subpoena ad testificandum
Sec. 40, Rule 132 or duces tecum under Rule 21 of the Rules of Court if a witness unjustifiably declines
o The term "promptly," it is submitted, should be taken in its literal context to:
and akin to the word, "immediately," as used in Sec. 38 of Rule 132 of the o Execute a judicial affidavit; or
Rules of Court. o Refuses without just cause to make the relevant books, documents, or
§ It is significant to note that the qualification “unless the court desires other things under his control available for copying, authentication, and
to take a reasonable time to inform itself on the questions eventual production in court
presented,” is not found in the JA Rule • The witness referred to is
o a government employee or official, or
Appearance of the witness at the scheduled hearing o a requested witness, who is neither the witness of the adverse party nor a
• The submission of the judicial affidavit of the witness and the attached exhibits does hostile witness
not exempt the witness from appearing at the scheduled hearing. • The rules governing the issuance of a subpoena to the witness shall be the same as
o The rule still requires his appearance when taking his deposition except that the taking of a judicial affidavit shall be
• The appearance of the witness is necessary because the adverse party has the right understood to be ex parte
to cross-examine him.
o The cross-examination shall be on his judicial affidavit and on the attached Oral offer and objections to exhibits
exhibits. • A party shall immediately make an oral offer of evidence of his documentary or
o After the cross-examination, the party presenting the witness may also object exhibits, piece by piece, in their chronological order, stating the purpose or
examine him as on re-direct purposes for which he offers the particular exhibit.
• A postponement of the cross-examination would be contrary to the spirit of the rule o The offer shall be made upon the termination of the testimony of his last
because the judicial affidavits have been filed and served even before the scheduled witness
hearing.
 • It is sufficient that such exhibits are simply cited by their markings during the offers, In other words, we treat all prior statements of a witness on the stand, regardless of
the objections, and the rulings, dispensing with the description of each exhibit since their nature, as exempted from the ban of the hearsay rule.
the documentary or object exhibits form part of the judicial affidavits that describe • This is apparently based upon the rationale that when the declarant becomes a
and authenticate them witness who can be examined about the prior statement, the purpose of the hearsay
o After each piece of exhibit is offered, the adverse party shall state the legal rule is satisfied because all the ideal conditions for giving testimony are met: The
ground for his objection, if any, to its admission, and the court shall witness is under oath, subject to cross-examination, and his demeanor can be
immediately make its ruling respecting that exhibit observed by the judge.
• Under Sec. 35 of Rule 132 of the Rules of Court, documentary and object evidence • The critics of this view believe that the reliability of the statement cannot be
shall be offered after the presentation of a party's testimonial evidence. assessed, unless it is tested contemporaneously.
o Such offer shall, as a rule, be done orally. • Thus the definition of hearsay makes an out-of-court statement by an "at-trial"
witness hearsay, that is, not admissible as substantive evidence for the truth of the
5. Hearsay matter asserted therein.
• The proposed rule provides for three exceptions when an out-of-court statement
SECTION 37: HEARSAY31 may be admitted as substantive proof: (a) a prior inconsistent statement "given
Hearsay is a statement other than one made by the declarant while testifying at a trial or under oath" at "a trial, hearing or other proceeding, or in a deposition (this may be
hearing, offered to prove the truth of the facts asserted therein. A statement is (1) an oral or used both as impeaching evidence and as substantive proof; if not covered by the
written assertion or (2) a non-verbal conduct of a person, if it is intended by him or her as an exception, a prior inconsistent statement is admissible only for impeachment
assertion. Hearsay evidence is inadmissible except as otherwise provided in these Rules. purposes and not as substantive proof); (b) a prior consistent statement to rebut "an
express or implied charge against the declarant of recent fabrication or improper
A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to influence or motive;" or (c) one of the identification of a person made after
cross-examination concerning the statement, and the statement is perceiving the person.
(a) inconsistent with the declarant’s testimony, and was given under oath subject to the • The proposed rule-making prior consistent statements hearsay, unless they fall
penalty of perjury at a trial, hearing or other proceeding, or in a deposition; under the exception is a good one because they constitute "cumulative, superfluous
(b) consistent with the declarant’s testimony and is offered to rebut an express or proof". This will stop the widespread practice by many lawyers of introducing earlier
implied charge against the declarant of recent fabrication or improper influence or affidavits of witness on the stand, after making them reaffirm the truth and contents
motive; or thereof; this self-serving practice for the simple purpose of bolstering a witness'
(c) one of identification of a person made after perceiving him or her. 32 testimony has been much abused.
• The exception for an earlier out-of-court identification is a good one because of the
Rationale for revision (Explanatory Notes of SC, 2019 Revised Rules on Evidence) greater reliability, especially if made closer in time to the event in question and the
• The old provision confuses the hearsay rule with the rule limiting testimony to what later courtroom identification occurred after a significant lapse of time. It required,
witnesses can describe on the basis of firsthand knowledge. however, that the identifying party be presented and available for cross-
• The distinction is one of the form of the testimony, whether the witness purports to examination.
give the facts directly upon his own credit (though it may appear later that he was
speaking only on the faith of report from others) or whether he purports to give an Definition of Hearsay (as amended)
account of what another has told him and this is offered to evidence the truth of the • A statement other than
other’s report • One made by the declarant while testifying at a trial or hearing
• However, when it appears, either from the phrasing of his testimony or from other • Offered to prove the truth of the facts asserted therein
sources, that the witness is testifying on the basis of reports from others, though he
does not in terms testify to their statements, the distinction loses much of its Justice Singh:
significance, and courts may simply apply the label “hearsay” • Hearsay
• The definition is quite revolutionary in this jurisdiction because, based on the o Out of court statement made by witness-declarant, not made during trial
established practice, our courts and lawyers treat out-of-court statements by an "at or hearing in a case
trial witness" as non-hearsay and they are usually admitted without any objection. o Statement = oral or written assertion, or conduct intended as assertion

31 . This a new provision in Sec. 37 which defines what HEARSAY means, which essentially is a statement other than one made by the declarant while testifying at a trial or hearing. The statement may be (i) oral or written or (ii) a non-verbal conduct of a
person.
32 . This second paragraph of Sec. 37 is also a new provision. It defines what is NOT A HEARSAY STATEMENT, which is when a declarant testifies and is subject to cross-examination concerning the statement and the statement is: (i) inconsistent with
declarant’s testimony; (ii) offered to rebut an express or implied charge against the declarant; or (iii) one of identification of a person made after perceiving him or her
 • Exceptions: 1. First, there must be an out-of-court statement.
o Prior inconsistent statement under oath at a trial, hearing or other o It may be oral. It may be written. It may even be a conduct, as long as that
proceeding, or in a deposition, to impeach witness-declarant; conduct is intended by the actor as an assertion. What matters is that the
o Prior consistent statement only to rebut “an express or implied charge statement was not made by the declarant in the hearing or trial.
against the declarant of recent fabrication, or improper influence or 2. Second, that the statement made out of court is repeated and offered by the witness
motive”; in court to prove the truth of the matters asserted by the statement.
o Identification of a person made after perceiving the person
Anecdotal illustration:
Hearsay may be oral or written (As amended) HEARSAY NOT HEARSAY
• The statement may be (i) oral or written or (ii) a non-verbal conduct of a person. First element: out-of-court statement
• The rule that excludes hearsay evidence applies to both written and oral statement Jose testifies in court that his friend, Juan, wrote him saying that the latter saw a street bum
shoot the cop and not Jose’s Uncle.
Basis for excluding hearsay evidence Second element: purpose
• The rule excluding hearsay testimony rests mainly on the ground that there is no To prove that it was not Jose’s Uncle who To prove that Jose’s friend was alive on
opportunity to cross-examine the person to whom statements or writings are shot the cop but a bum August 5
attributed The judge should sustain the objection. The The declaration of Juan is not, therefore, to
• Moreover, the court is without the opportunity to test the credibility of hearsay formula is now complete. Jose's testimony is prove the truth of the matter asserted in the
statements by observing the demeanor of the person who made them hearsay. It is hearsay because the out-of- statement of Juan. We have the first
• An affidavit is merely hearsay evidence where its affiant/maker did not take the court statement of Jose's friend that "it was component but we don't have the second.
witness stand a street bum who shot the cop and not What, then, would the judge rule? Clearly, it
• While affidavits that have been notarized are public documents if they are Jose's uncle" is offered to prove the very would be, "Objection, overruled. Not
acknowledged before a notary public, these are still considered hearsay unless the matter asserted in the statement hearsay!"
affiants themselves are placed in the witness stand to testify thereon. It would be admissible as long as the fact
o The reason for this rule is that, generally, they are not prepared by the that Jose's friend was alive on August 5 is
affiants, but by another one who uses his own language in writing the relevant to an issue of the case. If the
statements, parts of which may be either omitted or misunderstood by the evidence is not allowed, it is not because of
one writing them. the hearsay rule but because it did not meet
o Moreover, the adverse party is deprived of cross-examining the affiants the standards of relevance.

When evidence is hearsay • Problems are rarely encountered as to the first component. It is easy to know
• Although hearsay evidence presupposes lack of personal knowledge of the truth of whether or not a statement offered is out of court.
the fact asserted by a witness, the purpose for which the evidence is offered is a vital • Implied from an out-of-court statement is the fact that the witness has no personal
element of hearsay evidence. knowledge of the matter testified to. It is someone outside the court and who, at
• The Supreme Court acknowledged that the ban on hearsay does not include the same time, is not in the stand who has personal knowledge of the facts.
statements which are relevant independently of whether they are true or not, like • That someone outside the court cannot be questioned. His perception cannot be
statements of a person to show, among others, his state of mind, mental condition, tested.
knowledge, belief, intention, ill-will and other emotions o His capacity to remember what he perceived cannot be accurately
• According to the US FRE, to constitute hearsay, there must be: determined.
o An out-of-court statement, oral, written or nonverbal conduct, made by o Neither can his capacity to communicate his remembered perceptions.
one other than the one made by the declarant or witness testifying at the (Note: these are requirements for the competence of witnesses)
trial; and • A witness must testify only to matters of his personal knowledge or those which are
o The out-of-court statement must be offered to prove the truth of the derived from his own perception (Note: this is the old concept of hearsay; this is
matter asserted in the out-of-court statement amended already and known now as the “concept of lack of personal knowledge,”
• In People v. DeMarco, hearsay is defined "as an out of court statement offered for not hearsay)
the truth of the matter asserted" o RATIONALE: The witness’ credibility, accuracy of perception and
recollection, can be tested before the court through cross-examination.
Specific elements of hearsay evidence:
 o Those of the out-of-court declarant cannot. The latter's statements are, • A threat against a witness may be offered in evidence to show its impact on the
therefore, unreliable. witness and where the reasonableness of a person’s conduct is an issue, an out-of-
o In the high fallutin terminology of the academe, his statements lack the court declaration may be offered to explain the person’s reactions to the declaration
"indicia" of trustworthiness. It is this lack of reliability which is the reason
for the time-honored rule excluding hearsay testimony. Out-of-court statements offered to prove mental state of the declarant
• In most hearsay problems, the first component is always present, but not the second. • As long as an out-of-court statement is offered for a non-hearsay purpose (a purpose
o It is concededly the more controversial part of the rule other than to prove the truth of the matter asserted), the statement is admissible if
o When this part is absent, i.e., the out-of-court statement is not offered to it has relevance to the matter in issue.
prove the truth of the matter asserted, it is said that the statement is o Statements relating to the state of mind of the declarant is one of those
offered for a non-hearsay purpose. admissible out-of-court statements if offered for non-hearsay purposes
o Where a statement is not offered for the truth of the matter asserted but • A popular example of an out-of-court statement offered for a non-hearsay purpose
is offered for an evidentiary purpose, not dependent on the truth of the is one which demonstrates by inference from the tenor of the statement the state
matters asserted, the statement is non-hearsay. of mind of the speaker or the declarant.
• In People v. Feria, Newspaper articles amount to 'hearsay evidence, twice removed' o Here, the significance of the statement is not whether its assertion is true
and are therefore not only inadmissible but without any probative value at all or false. Its significance rests on the mere fact that it was uttered and, by
whether objected to or not, unless offered for a purpose other than proving the truth extension, on the conclusion which may reasonably be drawn from the
of the matter asserted. statement.
o Ex. A nurse testified that her patient said that he was ‘Joseph Stalin,’ then
When evidence is NOT hearsay (as amended) that he was ‘Theodore Roosevelt,’ and after subscribing to the will, he said
• The declarant testifies at the trial or hearing and is that he was ‘Saddam Hussein’
• Subject to cross-examination concerning the statement, and o The out-of-court statement by the nurse are offered for a non-hearsay
• The statement is purpose to prove by inference through the statement that the testator, on
o (a) inconsistent with the declarant’s testimony, and was given under oath the day the will was executed, was incapacitated by reason of a mental
subject to the penalty of perjury at a trial, hearing or other proceeding, or condition. It was not to prove that the patient was indeed the persons he
in a deposition; said he was
o (b) consistent with the declarant’s testimony and is offered to rebut an • A testimony by the hearer that such statement was made is not hearsay.
express or implied charge against the declarant of recent fabrication or o Reason being that the hearer will be testifying as to his personal knowledge
improper influence or motive; or that the statement was uttered.
o (c) one of identification of a person made after perceiving him or her o He may, therefore, be cross- examined as to what he heard, when it was
heard, how it was said, and the circumstances surrounding the making of
Examples of non-hearsay evidence the statement.
• Where a statement is not offered for the truth of the contents of the conversation, o The hearer's veracity and sincerity can well be tested under a cross-
but only to show that it was made, then the statement is not hearsay examination because he will not be testifying as to the veracity of the
o Ex. A statement that is offered to show its patent falsity, so as to suggest assertion or its falsity which are totally irrelevant.
the defendant’s consciousness of guilt
• Statements relating to the state of mind of the declarant and statements relating to Out-of-court statement offered to prove its effect on the listener/hearer
the state of mind of the listener. • When the statement is not offered for the truth of the matter asserted but is offered
o Words uttered, in this regard, merely constitute circumstantial evidence of to show the mental effect of the statement on the hearer, the statement is not
an assertion and where the making of the statement is the significant fact hearsay
because it either gives rise to the inference about the declarant’s state of • The statement offered in evidence is not hearsay because it is the hearer's reaction
mind or indicates its effect on the hearer to the statement which is sought to be proved.
o The truth of the statement is not in issue here o It is his reaction to the statement that is relevant, not the truth of the
o A statement by an out-of-court declarant may be offered not for the assertion in the statement.
veracity of what is asserted but merely to impeach the declarant’s • Since the hearer is present in court, he can be cross-examined on whether or not he
credibility heard the statement accurately, believed the statement to be true, and whether or
not he really acted in conformity with his belief.
 o Ex. A cop testified that he arrested the complainant after he was fingered • An out-of-court statement introduced in court to impeach a previous witness is
(LOL!) by a witness to the felony. The testimony that the cop heard from another form of independently relevant statement, and an example of how an out-
the victim was, “This happened barely two minutes ago and that guy sitting of-court declaration may be used for a non-hearsay purpose.
there pretending to be an onlooker is the culprit.” • From the moment the witness takes his oath on the stand, even before he utters his
o The testimony is to prove that an arrest was made as a consequence of the first words on the stand, his credibility is automatically put in issue. That the
out-of-court statement's effect on the hearer. This effect was the reason credibility of a witness is always an issue in every litigation is a given.
for the arrest. This effect is relevant to justify the apprehension of the o Of course, a testimony that attacks the credibility of the witness is equally
complaining witness relevant especially when that witness claims to have personal knowledge of
the facts testified to.
Out-of-court statement offered to prove that the statement was made o Prior out-of-court declarations of that same witness inconsistent with his
• Where the statement is not offered for the truth of the matter asserted, but merely testimony on the stand are admissible not to prove the truth of what was said.
to show what was said, the statement is not hearsay
• If an extrajudicial utterance is offered, not as an assertion to prove the matter (b) consistent with the declarant’s testimony and is offered to rebut an express or
asserted but without reference to the truth of the matter asserted, the hearsay rule implied charge against the declarant of recent fabrication or improper influence or
does not apply. motive; or
• For example, in a slander case, if a prosecution witness testifies that he heard the • The proposed rule-making prior consistent statements hearsay, unless they fall
accused say that the complainant was a thief, this testimony is admissible not to under the exception is a good one because they constitute "cumulative, superfluous
prove that the complainant was really a thief, but merely to show that the accused proof". This will stop the widespread practice by many lawyers of introducing earlier
uttered those words. affidavits of witness on the stand, after making them reaffirm the truth and contents
thereof; this self-serving practice for the simple purpose of bolstering a witness'
Independently relevant statements testimony has been much abused. (Id.)
• It is doctrinal that a declarant's statement may have relevance to an issue in a case
from the mere fact that the words were spoken or written, irrespective of the truth (c) one of identification of a person made after perceiving him or her
or falsity of the assertion • The exception for an earlier out-of-court identification is a good one because of the
• They are called as such because the statements are admissible for some relevant greater reliability, especially if made closer in time to the event in question and the
reason independent of their truth or falsity. They are relevant because the later courtroom identification occurred after a significant lapse of time. It required,
statement itself is either the very fact in issue or a circumstantial evidence of a fact however, that the identifying party be presented and available for cross-
in issue. examination. (Id.)
o Their relevant to the matter in issue is not dependent on their truth or
falsity. Their relevance lies in the fact that they were said • Note: I think the new amendments mean that the rule before that as long as witness
• Ex. A witness may be asked questions concerning what the accused told him that is in trial his out-of-court statements could not be hearsay NO LONGER stands (as
other persons were involved in the conspiracy if the purpose of the testimony is not lawyers abused it).
to prove that such persons were really involved in the conspiracy but only to prove • Now, if the witness made his statement outside of trial or hearing, it is automatically
what the accused had mentioned hearsay, if offered as proof of the facts asserted therein. This is the general rule.
o If the purpose of the testimony is merely to establish the fact that the • The rule then lists exceptions which although out-of-court, will still not be considered
statement was made, the hearsay rule does not apply. Evidence as to the hearsay and hence can be admitted, because for one, the witness now testifies about
making of the statement is a primary evidence where it is relevant to the them in court, and two, they are not offered to prove facts asserted therein but:
existence of a fact o To impeach the credibility of the witness on the ground that he makes
inconsistent statements
A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to o To rebut the charge against him that he recently fabricated or had
cross-examination concerning the statement, and the statement is improper motive; and
(a) inconsistent with the declarant’s testimony, and was given under oath subject to the o To merely identify a person after he saw that person.
penalty of perjury at a trial, hearing or other proceeding, or in a deposition;
• this may be used both as impeaching evidence and as substantive proof; if not
covered by the exception, a prior inconsistent statement is admissible only for Classes of independently relevant statements
impeachment purposes and not as substantive proof (Explanatory Notes of SC, 2019 FIRST CLASS SECOND CLASS
Revised Rules on Evidence)
 a. Statements which are the very facts in a. Statements of a person showing his 9. Entries in official records
issue; and state of mind; that is, his mental 10. Commercial lists and the like
b. Statements which are circumstantial condition, knowledge, belief, 11. Learned treatises
evidence intention, ill-will and other emotions; 12. Testimony or deposition at a former proceeding
b. Statements of a person which show his
physical condition, as illness and the • It is not correct to assert that the exceptions to the hearsay rule are not hearsay.
like; • They are hearsay evidence but they are deemed admissible hearsay for certain
c. Statements of a person from which an reasons. Under appropriate circumstances, a hearsay statement may possess
inference may be made as to the state circumstantial guarantees of trustworthiness sufficient to justify non-production of
of mind of another; that is knowledge, the declarant in person
belief, motive, good or bad faith, etc. of
the latter; Exception to the hearsay rule in child abuse cases
d. Statements which may identify the • Under Sec. 28 of the Rule on Examination of a Child Witness, a hearsay statement of
date, place, and person in question; a child which under the Rules of Court, is not admissible for being hearsay because
and the facts testified to are not within his personal knowledge, may be admitted in
e. Statements showing the lack of evidence in any criminal or non-criminal proceeding.
credibility of a witness • The testimony is admissible provided the same be:
o offered in child abuse cases and
Justice Singh: Independently relevant statement o the statement made by the child is one describing any act or attempted
• Statement relating what another individual told the declarant act of child abuse.
• Admissible proof based on firsthand knowledge of what the other individual told the • Aside from the above, the following must likewise be complied with
declarant: not hearsay o (a) The proponent shall make known to the adverse party the intention to
• Inadmissible as proof of the truth of the statement of the other individual to the offer such statement and its particulars to provide him a fair opportunity
declarant to object before the hearsay statement may be admitted.
• While the testimony of a witness regarding a statement made by another person o (b) If the child is available, the court shall, upon motion of the adverse
given for the purpose of establishing the truth of the fact asserted in the statement is party, require the child to be present at the presentation of the hearsay
clearly hearsay evidence, it is otherwise if the purpose of placing the statement on statement for cross-examination by the adverse party; and
the record is merely to establish the fact that the statement, or the tenor of such o (c) When the child is unavailable (as when the child is deceased, suffers
statement, was made. Regardless of the truth or falsity of a statement, when what is from physical infirmity, mental illness, loss of memory, or because the
relevant is the fact that such statement has been made, the hearsay rule does not child will be exposed to severe psychological injury), the fact of such
apply and the statement may be shown. As a matter of fact, evidence as to the circumstance must be proved by the proponent and the hearsay
making of the statement is not secondary but primary, for the statement itself may testimony shall be admitted only if corroborated by other admissible
constitute a fact in issue or is circumstantially relevant as to the existence of such a evidence
fact. This is known as the doctrine of independently relevant statements. (Espineli • In ruling the admissibility, the court shall consider the
v. People) o Time
o Content, and
6. Exceptions To The Hearsay Rule o Circumstances surrounding the making of the statement which would
provide sufficient indicia of reliability
Exceptions (As Amended) • Certain factors are also to be considered by the court before deciding to admit the
1. Dying declarations statement like
2. Statement of decedent or person of unsound mind o The motive to lie, the general character of the declarant child, the number
3. Declaration against interest of persons who heard the statement, the spontaneity of the making of the
4. Act or declaration about pedigree statement, the timing of the making of the statement, the relationship
5. Family reputation or tradition regarding pedigree between the declarant child and the witness, the remoteness of the
6. Common reputation possibility of a faulty recollection and other circumstances surrounding
7. Part of the res gestae the statement
8. Entries in the course of business
SECTION 38: DYING DECLARATION • If the deceased made declarations before his demise, "It is the belief in impending
The declaration of a dying person, made under the consciousness of an impending death, may death and not the rapid succession of death in point of fact that renders a dying
be received in any case wherein his or her death is the subject of inquiry, as evidence of the declaration admissible. The test is whether the declarant has abandoned all hopes of
cause and surrounding circumstances of such death. survival and looked on death as certainty"
• However, even if the utterances of the victim could not be appreciated as a dying
Dying Declaration declaration, his statements may still be appreciated as part of the res gestae which
• A dying declaration is an evidence of the highest order; it is entitled to the utmost refers to spontaneous statements made immediately prior to, while a startling
credence on the premise that no person who knows of his impending death would occurrence is taking place or immediately after such occurrence.
make a careless and false accusation. At the brink of death, all thoughts on concocting o Since the statements are contemporaneous with the startling event,
lies disappear deliberation and fabrication are ruled out and, thus, deemed reliable.
o Persons aware of an impending death have been known to be genuinely
truthful in their words and extremely scrupulous in their accusations. Objections to a dying declaration
• The reasons for its admissibility is necessity and trustworthiness. • Any objection to a dying declaration may be premised on any of the requisites for its
o Necessity, because the declarant’s death renders it impossible his taking admissibility (see elements of dying declaration)
the witness stand, and it often happens that there is no other equally
satisfactory proof of the crime; allowing it, therefore, prevents a failure of 1. Consciousness of an impending death
justice • When the prosecutor attempts to introduce a dying declaration, the very first
o Trustworthiness, because the declaration is made in extremity, when the question that the defense should ask is whether or not the declarant, at the time the
party is at the point of death, when every motive to falsehood is silenced statement was made, knew or believed that he was going to die. This constitutes the
and the mind is induced by the most powerful considerations to speak the objector’s first line of defense – “consciousness of an impending death”
truth • To admit a dying declaration in evidence, it must be shown that the declarant
• The law considers the point of death as a situation so solemn and awful as creating believed, at the time the statement was made, that he was in a dying condition and
an obligation equal to that which is imposed by an oath administered in court had given up the hope of surviving
• As presently worded, the declaration of a dying person, made under the o The declarant’s belief that he is going to die soon may be shown
consciousness of an impending death, may be received in any case wherein HIS death circumstantially by the obvious fatal quality of the wound, by the
is the subject of inquiry, as evidence of the cause and surrounding circumstances of statements made to the victim by the physician that his condition is
such death hopeless, or by some other circumstances
o As long as the relevance is clear, a dying declaration may now be
introduced in a criminal or a civil action and the requirement of relevance 2. Cause and circumstances surrounding declarant’s death
is satisfied where the subject of inquiry is the death of the declarant • The requirement that a dying declaration must relate to the cause and the
himself. circumstances surrounding the declarant's death may be a source for counsel's
• The Supreme Court had long recognized the rule that dying declarations, which objection to the admission of the declaration.
exculpate or exonerate an accused, may be introduced by him and are admissible in • This requirement is an essential part of the evidentiary foundation for a dying
his favor declaration and where the statement sought to be introduced by the prosecution is
on a matter other than the cause of death of the declarant, the required foundation
Elements of a dying declaration for its admissibility cannot be laid
1. The declaration concerns the (1) cause and (2) the surrounding circumstances of
the declarant’s death; Assailing a dying declaration
2. It is made when death appears to be imminent and the declarant is under a • Although jurisprudentially considered as evidence of the highest order, it is submitted
consciousness of an impending death; that the admissibility of a dying declaration, like any admissible evidence, does not
3. The declarant would have been competent to testify had he or she survived; and create a conclusive presumption of credibility of the admitted declaration.
4. The dying declaration is offered in a case in which the subject of inquiry involves the • Like any other evidence, the declaration may be attacked in the same manner as one
declarant’s death would do to a testimony in open court.
a. Homicide, Murder, or Parricide where the declarant is the victim (People • The declarant himself may be impeached through the normal methods provided for
v. Palanas) under the rules
 witness, negativing a contention of undue delay, or proving an effort to prejudice of a
obstruct a criminal investigation or prosecution witness, negativing
• The proposed amendment relating to the admissibility of any statement made in the a contention of
course of plea bargaining with the prosecution is derived from Rule 41 of the FRE. undue delay, or
• The underlying purpose of the existing rule making a plea of guilty later withdrawn proving an effort to
or an unaccepted offer of a plea of guilty to a lesser offense inadmissible is to obstruct a criminal
encourage and protect plea discussions or bargaining, which is a vital aspect of the investigation or
criminal justice system prosecution
• To promote this objective, the amendment renders any statement made in the
course of plea discussions inadmissible against the defendant, at least where those Subsequent remedial measures
discussions fail to produce agreement or lead to pleas later withdrawn • The US Federal Rules of Evidence (FRE), prohibits the admission of subsequent
• It will allow attorneys and defendants to negotiate freely with the prosecution remedial measures when offered to prove the negligence of the defendant
without concern that, if the case ultimately goes to trial, their factual statements will • Evidence of such measures may, however, be admissible to prove some other
be received as admissions against the defendant purpose like the fact that the defendant had ownership of the hotel or control over
the same and all the fixtures therein

26 . The second sentence in the first paragraph of Sec. 28 is a new provision. The amendment provides that “evidence of conduct nor statements made in compromise negotiations” cannot be admissible, except if such evidence were “discoverable or
offered for another purpose”, such as proving bias or prejudice of a witness
27 . The second sentence in the third paragraph is a new provision. It provides that a plea bargaining with the prosecution cannot be used in evidence against the accused

• Accordingly, the rule is based on the policy of encouraging potential defendants to • The expression if fully expressed reads: res inter alios acta alteri nocere non debet
remedy hazardous conditions without fear that their actions will be used as evidence which literally means that “things done between strangers ought not to injure those
against them who are not parties to them”
o To adopt the contrary rule would discourage owners from improving the • RATIONALE: On a principle of good faith and mutual convenience, a man’s own acts
condition causing the injury because of their fear of the evidential use of are binding upon himself and are evidence against him. So are his conduct and
such improvement to their disadvantage declarations. Yet, it would not only be rightly inconvenient, but also manifestly
unjust, that a man should be bound by the acts of mere unauthorized strangers; and
Justice Singh: if a party ought not to be bound by the acts of strangers, neither ought their acts or
Offer of Compromises conduct be used as evidence against him
A. Civil Cases • Exceptions (in relation to the first branch below):
 o NOT ADMISSIBLE as admission of any liability o Admission by a co-partner or agent
o ADMISSIBLE for other purposes (e.g., to prove bias of a witness, to negate o Admission by a co-conspirator
undue delay, to prove obstruction of criminal investigation/prosecution) o Admission by privies
o Rule is NOT absolute: • The basis for admitting the above admissions is that the person making the
§ If a party denies the existence of a debt but offers to pay the same statement is under the same circumstances as the person against whom it is offered
for the purpose of buying peace and avoiding litigation, the offer
of settlement is inadmissible. Branches of res inter alios acta
§ If in the course thereof, the party making the offer admits the 1. The rule that the rights of a party cannot be prejudiced by an act, declaration, or
existence of an indebtedness combined with a proposal to settle omission of another;
the claim amicably, then, the admission is admissible to prove o Common reason and fairness demand that a man’s actions and declarations
such indebtedness. should affect him alone and should not affect others
o Has reference only to extrajudicial declarations
B. Criminal cases, EXCEPT quasi-offenses and those allowed to be compromised § Hence, statements made in open court (judicial) by a witness
o ADMISSIBLE as an implied admission of guilt implicating persons, aside from his own judicial admissions, are
o INADMISSIBLE admissible as declarations from one who has personal knowledge
§ if plea of guilt withdrawn; of the facts testified to
§ if offer of plea of guilt to lesser offense is not accepted; 2. The rule that evidence of previous conduct or similar acts at one time is not
§ if statement made during plea bargain and no plea of guilt results admissible to prove that one did or did not do the same act at another time (Sec.
or plea is later withdrawn 35, Rule 130)
o Offer made prior to the filing of the criminal complaint cannot be an implied
admission of guilt as it was not made in the context of a criminal proceeding. EXTRAJUDICIAL CONFESSIONS JUDICIAL CONFESSIONS
(San Miguel Corp. v. Kalalo) May be given in evidence against the Admissible against the declarant’s co-
o Act of pleading for forgiveness, through letters from detention, analogous to confessant but not against his co-accused accused since the latter are afforded
an attempt to compromise. Offer must be made under a consciousness of guilt, as they are deprived of the opportunity to opportunity to cross-examine
NOT merely to avoid the inconvenience of imprisonment. (People v. Nazareno) cross-examine

Tranquil Salvador If the declarant or admitter repeats in court

o In civil cases, offer of compromise is now subject to exceptions his extrajudicial admission and the other
o Not admissible if there is discussion of plea or plea of guilt later withdrawn accused is accorded the opportunity to
cross-examine the admitter, the admission
SECTION 29: ADMISSION BY A THIRD PARTY is admissible against both accused because
The rights of a party cannot be prejudiced by an act, declaration, or omission of another, then, it is transposed into a judicial
except as hereinafter provided. admission

Res inter alios acta [alteri nocere non debet] SECTION 30: ADMISSION BY CO-PARTNER OR AGENT 28

28 . The amendment in the first paragraph of Sec. 30 only clarifies the authority given to a partner or agent.
The act or declaration of a partner or agent (1) authorized by the party to make a statement • It is also necessary for the application of the exception that the proof of the agency
concerning the subject, or (2) within the scope of his or her authority AND during the existence or partnership be from a source INDEPENDENT of the declaration made by the
of the partnership or agency, may be given in evidence against such party after the partner or agent
partnership or agency is shown by evidence other than such or declaration. The same rule • The above rules also apply to joint owner, joint debtors, or other persons jointly
applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party
interested with the party.
Tranquil Salvador
Rationale for revision (Explanatory Notes of SC, 2019 Revised Rules on Evidence) o Should be ‘authorized by the party’ because there are other parties or agents acting
• The proposed addition of the phrase “authorized by the party to make a statement negligently
concerning the subject or” is explained by the ABA Paper as follows:
• FRE 801 (d)(2)(C) and FRE 801 (d)(2)(D) qualify an agent’s statement as admissible if: SECTION 31: ADMISSION BY CONSPIRATOR 29
o it is “authorized” speaking or writing or The act or declaration of a conspirator (1) in furtherance of the conspiracy and (2) during its
o if such statement relates to something that is within the scope of the agent’s existence, may be given in evidence against the co-conspirator after the conspiracy is shown
job and it is made while still employed, even though the agent was not by evidence other than such act of declaration.
authorized to speak or write.
• Under the US federal law “it has been resolved that doing an unauthorized act is Rationale for revision (Explanatory Notes of SC, 2019 Revised Rules on Evidence)
‘within the scope’ even if done negligently or in a wrongful manner.” • The SC has actually used the phrase “in furtherance of conspiracy” in a number of
o However, the agent must be currently employed when the statement is made cases. The phrase requires that the act or declaration should advance the ends of
to “safeguard against grudge statements and those with only a motive to the conspiracy rather than simply “relate” to the conspiracy
deflect liability” • The phrase “in furtherance of conspiracy” is a more precise and concrete phrase than
“relating to the conspiracy” if the intent is to require that the statement was made,
Admission by a co-partner or agent (As amended) for the purpose of advancing the conspiracy’s objectives
• An agent performs some service in representation or on behalf of his principal • The furtherance requirement provides some assurance that the statement fits
o The agent, therefore, is in legal contemplation a mere extension of the circumstantially the aims apparently motivating the conspirators, which provides
personality of the principal and unless the agent acts in his own name, the some indication that it can be trusted.
principal must comply with all the obligations which the agent may have • The requirement also expresses in evidential terms the agency theory underlying the
contracted within the scope of his authority substantive notion of conspiracy. Perhaps more important, it limits the array of out-
o Hence, whatever is said by an agent to a third person, during the course of the of-court statements that fit the exception
agency and within the scope of his actual or apparent authority, relative to
the business contemplated by the agency is, for legal purposes, also the Admission by a co-conspirator (as amended)
statement of the principal and is, therefore, admissible against said principal • A conspiracy exists when two or more persons come to an agreement concerning
• REQUISITES: the commission of a felony and decide to commit it
a. The declaration or act must have been done: o Once the conspiracy is proven, the act of one is the act of all
i. by the partner or agent authorized by the party to make a o The statement of one may be admitted against the other co-conspirators
statement concerning the subject, OR • REQUISITES:
ii. done within the scope of the partner or agent’s authority 1. The declaration or act be made or done DURING the existence of the
b. The declaration or act of the partner or agent must have been made or conspiracy
done during the existence of the partnership or agency (while the person 2. The declaration or act must relate to or in furtherance of the conspiracy; and
making the declaration was still a partner or an agent) 3. The conspiracy must be shown by evidence other than such declaration or act
c. The existence of the partnership or agency is proven by evidence other • Incriminating declarations of co-conspirators made in the absence of or without the
than the declaration or act of the partner or agent knowledge of the others after the conspiracy has come to an end is inadmissible
• Any declaration made BEFORE the partnership or agency existed, or those made o The arrest of the declaration is often found to terminate the declarant’s
AFTER (as after dissolution or liquidation), are NOT admissible against the other participation in the conspiracy so that the declarant’s post arrest statements
partners or the principal BUT remains admissible against the partner or agent making do not qualify as admissible co-conspirator statements
the declaration o But they are still binding on the declarant

29 The amendment in Sec. 31 is a minor one and a matter of style, aside from the re-numbering of the said section
 • An extrajudicial confession is binding only upon the confessant and is not o Applies to extra-judicial statements
admissible against his co-accused (hearsay)
o However, if the declarant/admitter repeats in court his extrajudicial confession SECTION 32: ADMISSION BY PRIVIES30
during trial and the other accused is accorded the opportunity to cross- Where one derives title to property from another, the latter’s act, declaration, or omission,
examine the admitter, such confession or admission is admissible against BOTH in relation to the property, is evidence against the former if done while the latter was holding
accused the title.
o The erstwhile extrajudicial confession or admission, when repeated during the
trial, is transposed into judicial admissions Admission by privies
o When the extrajudicial admission of a conspirator is confirmed at the trial, it • Privies are persons who are partakers or have an interest in any action or thing, or
ceases to be hearsay. It becomes, instead, a judicial admission, being a any relation to another
testimony of an eye-witness admissible in evidence against those he o Ex. Lessor and lessee; grantor and grantee; assignor and assignee;
implicates. executor/administrator and the estate; heir and ascendant
• Also assuming that the statement relating to the conspiracy was made by a • REQUISITES:
conspirator during the existence of the conspiracy, for the statement to be admitted, o There must be an act, declaration, or omission by a predecessor-in-interest
the extrajudicial statements of the co-conspirator must be proven by evidence other o The act, declaration, or omission of the predecessor must have occurred while
than such admission he was holding (not after) the title to the property; and
o If the only evidence of the conspiracy is the extrajudicial declaration of the o The act, declaration, or omission must be in relation to the property
declarant, the statements are not admissible against the others • Accordingly, when the former owner of the property made the declaration AFTER he
o If apart from the extrajudicial confession of the confessant, no other evidence ceased to be the owner of the property, the rule on admission by privies DOES NOT
of the alleged participation of the accused in the conspiracy was presented by apply
the prosecution, the culpability of the accused could not be sufficiently
established SETION 33: ADMISSION BY SILENCE
An act or declaration made (1) in the presence AND (2) within the hearing OR observation of
Justice Singh: a party who does or says nothing when the act or declaration is such as naturally to call for
• The exception provided under Sec. 31, Rule 130 of the Rules of Court to the rule action or comment if not true, and when proper and possible for him to do so, may be given
allowing the admission of a conspirator requires the prior establishment of the in evidence against him.
conspiracy by evidence other than the confession.
o In this case, there is a dearth of proof demonstrating the participation of Admission by silence
Salapuddin in a conspiracy to set off a bomb in the Batasan grounds and • Traditionally received as admissible evidence
thereby kill Congressman Akbar. Not one of the other persons arrested and • Usual pattern for its admissibility
subjected to custodial investigation professed that Salapuddin was involved in o Statement by a person in the presence of a party to the action, criminal or
the plan to set off a bomb in the Batasan grounds. civil
• Mere association with the principals by direct participation, without more, does not o The statement contains assertions against the party which, if untrue,
 suffice. Relationship, association and companionship do not prove conspiracy. would be sufficient cause for the party to make a denial
(Salapuddin v. Court of Appeals, G.R. No. 184681, February 25, 2013) o His failure to speak against the statement is admissible as an admission
• Extrajudicial confessions are binding only on the confessant and cannot be admitted • The idea of the rule on admission by silence is that if an accusation is made, and a
against co-accused, except if there is prior establishment of the conspiracy by reasonable person would have denied the same if it were false, the failure to deny
evidence other than the confession. It must be proven that: the accusation by the person accused may be construed as an implied admission of
o The conspiracy be first proved by evidence other than the admission itself; the truth of the accusation and may be given in evidence against him
o The admission related to the common object; and o Ex. A bystander, in the presence of other people, told the police the X killed
o It has been made while the declarant was engaged in carrying out the the other man. X did not respond. Failure to respond may be used as
conspiracy evidence against him.
• Not every silence is an implied admission (i.e. person under custodial investigation)
Tranquil Salvador • REQUIREMENTS:
o Included ‘in furtherance of’ o That he heard and understood the statement;

30 The amendment in Sec. 32 is a minor one and a matter of style, as well as pertaining to the numbering of the said section. Also, it clarifies that the act, declaration or omission of the holder of title is evidence against the one deriving title therefrom

o He was at liberty to make a denial o Evidence of collateral offenses must not be received as substantive
o The statement was about a matter affecting his rights or in which he was evidence of the offenses on trial
interested and which naturally calls for a response; • To argue that a person did or did not commit an act because he did or did not
o The fact were within his knowledge; and commit a similar thing in the past is certainly non sequitur
o The fact admitted from his silence is material to the issue • Ex. That a person contracted various debts and had not paid such debts before is not
admissible to show that the debtor did not pay his obligation in the present case.
Justice Singh: o Similarly, evidence that X was cleared of previous charge of robbery in the
• The natural instinct of man impels him to resist an unfounded claim and defend past is not admissible to prove that he could not have committed robbery
himself. It is against human nature to just remain reticent and say nothing in the face in the present
of false accusations. (People v. Castañeda)
• Silence during custodial investigation is not admission by silence as he has the right Justice Singh
to remain silent during that stage. (People v. Guillen) • Previous Conduct as evidence
o Evidence that one did a certain thing at one time is not admissible to prove
SECTION 34: CONFESSION that he did the same or similar thing at another time.
The declaration of an accused acknowledging his guilt of the offense charged, or of any offense o Prior involvement in a cash shortage in the bank's branch does not
necessarily included therein, may be given in evidence against him. conclusively prove that she is responsible for the loss of money in the new
 branch. (Metrobank v. Custodio)
JUDICIAL CONFESSION EXTRAJUDICIAL CONFESSION o Evidence is not admissible when it shows, or tends to show, that the
May sustain a conviction, even without Only if corroborated with evidence of accused in a criminal case has committed a crime independent from the
proof of corpus delicti independent of the corpus delicti (Note: this is only for purposes offense for which he is on trial. A man may be a notorious criminal, and
judicial confession of conviction, not admission.) may have committed many crimes, and still be innocent of the crime
charged on trial. (People v. Pineda,)
(Formatting Note: Annotations on the need of corpus delicti for admissibility of an
extrajudicial confession is moved to Section 3, Rule 133) When evidence of similar acts or previous conduct is admissible (SKIPS-C-HUTS)
• Specific intent
4. Previous Conduct as Evidence • Knowledge
• Identity
SECTION 35: SIMILAR ACTS AS EVIDENCE • Plan
Evidence that one did or did not do a certain thing at one time is not admissible to prove that • System
he did or did not do the same or similar thing at another time; but it may be received to prove • Scheme
a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the • Habit
like. • Custom
• Usage; and
Evidence of similar conduct (second branch of Sec. 29, Rule 130) [Propensity evidence] • The like
• 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 • Evidence of similar acts may frequently become relevant, especially in actions based
act at another time.
on fraud and deceit, because it sheds light on the state of mind or knowledge of a
o A similar conduct which does not even sufficiently establish a plan or person, his motive or intent, or they may uncover a scheme, design or plan
scheme is not admissible • The admissibility of similar acts or previous conduct would depend on the purposes
o The past acts of the accused are inadmissible to prove that he acted in for which such acts or conducts are offered
conformity with such previous acts.
• The similar acts may be offered to show that they share distinctive features as the
• The rule prohibits the admission of the so-called "propensity evidence" which is
offense for which the accused is currently charged with, but the evidence cannot be
evidence that tends to show that what a person has done at one time is probative of offered to show that the accused is likely to be guilty of the charge for having
the contention that he has done a similar act at another time. committed the same or similar acts before his present indictment.
• The evidentiary rule guards the practical inconvenience of trying collateral issues and
protracting the trial and prevents surprise or other mischief prejudicial to litigants SECTION 36: UNACCEPTED OFFER
An offer in writing to pay a particular sum of money or to deliver a written instrument or Applicability of the Judicial Affidavit Rule to criminal cases
specific personal property is, if rejected without valid cause, equivalent to the actual • The Judicial Affidavit Rule shall apply to criminal cases
production and tender of the money, instrument, or property. • Note, however, that the Judicial Affidavit Rule applies to criminal cases where "the
maximum of the imposable penalty does not exceed six years"
JUDICIAL AFFIDAVIT RULE (A.M. 12-8-8-SC) o In other cases, the Rule will apply, irrespective of the penalty involved,
where the accused agrees to the use of judicial affidavits
Rationale for the Judicial Affidavit Rule • With respect to the civil aspect (ex delicto) of the criminal action, the Judicial Affidavit
• The most basic reason for the adoption of the Rule is to decongest the courts of cases Rule shall apply, irrespective of the penalty involved
and to reduce delays in the disposition of cases
• Took effect on January 1, 2013 Contents of the judicial affidavit
• Prepared in the language known to the witness.
Significance of the use of a judicial affidavit; exhibits o If the affidavit is not in English or Filipino, it shall be accompanied by a
• The judicial affidavit shall take the place of the direct testimonies of witnesses translation in either language
o The rule, therefore, modifies the existing practice in the conduct of a trial • Name, age, residence or business address, and occupation of the witness
and reception of evidence by doing away with the usual oral examination • A statement in the affidavit that the witness is answering the questions asked of him,
of a witness in a direct examination fully conscious that he does so under oath, and that he may face criminal liability
• To be attached to the judicial affidavit are the documentary or object evidence of for false testimony or perjury
the parties • Name and address of the lawyer.
o Plaintiff/Complainant: Exhibits A, B, C, and so on; o This is because the examination of the witness shall be conducted and
o Respondent/Defendant: Exhibits 1, 2, 3, and so on supervised by a lawyer
• The original document or object evidence need not be attached to the judicial • Place where the examination is being held
affidavit. • Questions asked of the witness and his answers to the questions, all consecutively
o The party or witness may keep the same in his possession after the exhibit numbered
has been identified, marked as an exhibit and authenticated. o The questions and answers shall:
o He must, however, warrant in his judicial affidavit that the copy or § Show the circumstances under which the witness acquired the
reproduction attached is a faithful copy or reproduction of the original facts upon which he testifies
• Aside from the above requirement, the party or witness is required to bring the § Elicit from him those facts which are relevant to the issues that
original document or object evidence for comparison with the attached copy, the case presents; and
reproduction or pictures, during the preliminary conference. § Identify the attached documentary and object evidence and
o In case of failure to bring the originals for comparison, the attached copy, establish their authenticity
reproduction or pictures shall not be admitted o It is evident that the questions to be asked will determine whether or not
the witness has personal knowledge of the facts upon which he testifies,
Scope of the Judicial affidavit Rule and thus, prevent the introduction into the record of mere hearsay
• (a) Actions, (b) proceedings, or (c) incidents requiring the reception of evidence testimonies
• Applies to all courts, other than the Supreme Court. It also applies to certain non- o The matters testified to should also be on matters relevant to the issues
judicial bodies. Specifically, the following: of the case.
o Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial o The affidavit also requires that the witness not merely identify the
Courts, Municipal Circuit Trial Courts and the Shari'a Circuit Courts but shall exhibits but also authenticate the same for evidentiary purposes.
not, however, apply to small claims cases; • Proof of the due execution and authenticity of a private document shall be made in
o Regional Trial Courts and Shari'a District Courts; case the document is offered as authentic.
o Sandiganbayan, Court of Tax Appeals, Court of Appeals and Shari'a o If not offered as authentic, the private document need only be identified as
Appellate Courts; that which it is claimed to be
o Investigating officers and bodies authorized by the Supreme Court to • Signed by the witness over his printed name
receive evidence, including the Integrated Bar of the Philippines; and • Contain a jurat, with the signature of the notary public who administers the oath or
o Special courts and quasi-judicial bodies, whose rules of procedure are an officer who is authorized to administer the same
subject to disapproval of the Supreme Court
Effect of non-compliance with the content requirements of the Judicial Affidavit Rule
 • Shall not be admitted by the court in evidence C and so on
• The relevant provision, however, does not absolutely bar the submission of a • In criminal cases, no further judicial affidavit, documentary or object evidence shall
compliant replacement judicial affidavit as long as the replacement shall be (1) be admitted at the trial
submitted before the hearing or trial and (2) provided further that the following o This means that even before the trial, the prosecution has to lay down on
requisites are met: the table, all its evidence - testimonial, documentary and object.
o The submission shall be allowed only once • Since the accused is already aware of the evidence of the prosecution, he has the
o The delay is for a valid reason options to submit or not to submit his judicial affidavits
o The delay would not unduly prejudice the opposing party; and o If the accused desires to be heard on his defense after receiving the judicial
o The public or private counsel responsible for the preparation and affidavits of the prosecution, the accused may submit his judicial affidavit
submission of the affidavit pays a fine of not less than P1,000.00 nor more as well as those of his witnesses, including his documentary and object
than P5,000.00, at the discretion of the court evidences marking them as Exhibits 1, 2, 3, and so on
o The submission shall be done within ten days from receipt of the affidavits
Sworn attestation of the lawyer of the prosecution with service upon the public and private prosecutor
• Shall also contain a sworn attestation at the end, executed by the lawyer who
conducted and supervised the examination, to the effect that: Effects of failure to submit the judicial affidavits and exhibits on time
o there was a faithful recording of the questions and answers in the judicial • A party who fails to submit the required judicial affidavits and exhibits on time shall
affidavit and be deemed to have waived their submission
o that there was no coaching of the witness on what to answer o The waiver would mean that a party who failed to submit the judicial
• Specifically, the sworn attestation shall attest to the following: affidavit of a particular witness:
o That he faithfully recorded or caused to be recorded the questions he • would have no direct testimony for that witness and
asked and the corresponding answers that the witness gave; and • the documentary or object evidence integrated with such
o That neither he nor any other person present or assisting him coached the affidavit could not be identified, marked as an exhibit, and
witness regarding the latter's answers authenticated.
• In effect, the exhibit could not be offered in evidence.
Effect of a false attestation by the lawyer o If the waiver extends to the required affidavits of all the witnesses of a
• A false attestation shall subject the lawyer to disciplinary action, including party because all the judicial affidavits were not filed and served, then said
disbarment party is deemed to have not presented his evidence-in-chief for his case.
• NOTE: Under A.M. No. 19-10-20-SC, failure to attach the judicial affidavit and
Effect of non-compliance with the attestation requirement documentary or object evidence will not let you present the witness on trial, unless
• Same effect as non-compliance with the content requirement there is good cause.
o “Section 6. Contents. — Every pleading stating a party’s claims or defenses
Filing and service of the judicial affidavit and exhibits; modes of service (As amended) shall, in addition to those mandated by Section 2, Rule 7, state the
• The judicial affidavits of the witnesses and the documentary or object evidence shall following:
be filed by the parties with the court and served on the adverse party, not later than o (a) Names of witnesses who will be presented to prove a party’s claim or
five days before the pre-trial or preliminary conference or the scheduled hearing, defense;
with respect to motions and incidents o (b)Summary of the witnesses’ intended testimonies, provided that the
o NOTE: Under A.M. No. 19-10-20-SC, the judicial affidavits shall be attached judicial affidavits of said witnesses shall be attached to the pleading and
to the complaint (or pleading asserting a claim or defense) filed, including form an integral part thereof. Only witnesses whose judicial affidavits are
all documentary or object evidence attached to the pleading shall be presented by the parties during trial.
 • The filing of the judicial affidavit and its attached exhibits shall be done, not only Except if a party presents meritorious reasons as basis for the admission of
personally, but also by licensed courier service additional witnesses, no other witness or affidavit shall be heard or
o Service by mail is not mentioned in the Rule admitted by the court; and
• In criminal cases, the prosecution shall submit the judicial affidavits of its witnesses o (c) Documentary and object evidence in support of the allegations
not later than five days before the pre-trial. contained in the pleading”
o Copies of the judicial affidavits shall be served upon the accused.
o To be attached to the judicial affidavits are such documentary or object Remedy in case of late submission
evidence as the prosecution may have, marking them as Exhibits A, B, and

• The failure of a party to submit a judicial affidavit on time does not mean a • The Rule integrates an element of the inquisitorial system which allows the court to
permanent waiver to submit the same. He is given another chance to do so. have an active role in the proceedings.
• The remedy is to move that the late submission of the judicial affidavit and its • Hence, the Rule clearly mandates the court to take active part in examining the
exhibits be allowed. witness to:
• In order for the court to allow late submission, the same requirements as provided o Determine the
for in non-compliance of the content requirement/ attestation requirement applies • Credibility of the witness; and
• Truth of his testimony; and
Offer of testimony in the judicial affidavit o Elicit the answer that it needs in resolving the case
• Instead of offering the oral testimony of the witness, the party using the judicial • The questions of the court shall not, therefore, be confined to mere clarificatory
affidavit of his witness in place of a direct testimony, shall questions
o Present such affidavit and
o State the purpose of the testimony contained therein Effect of failure of a witness to appear at the scheduled hearing; failure of counsel to appear
o At the start of the presentation of the witness • The court shall not consider the affidavit of any witness who does not appear in the
scheduled hearing of the case as required
Objections to testimony in the judicial affidavit; ruling of the court • If the affidavit is not considered, it is as if no judicial affidavit has been executed by
• The presentation of the judicial affidavit and the statement of the purpose of the the absent witness.
testimony contained therein will give the adverse party the opportunity to object to o Such witness, hence, shall be deemed as not having given a direct
the testimony. testimony in the trial.
• The adverse party may, on the ground of inadmissibility, move to: • It is the duty of counsel to appear at the scheduled hearing because of the adverse
o Disqualify the witness; effect of his failure to do so on a basic right of his client.
o Strike out his affidavit; or o A counsel who fails to appear without a valid cause despite notice shall be
o Strike out any of the answers found in the judicial affidavit deemed to have waived his client's right to confront by cross-
• The court is required to promptly rule on the motion of the adverse party. examination the witnesses present
 o If it grants the motion, any excluded answer shall be marked by placing the
same in brackets under the initials of an authorized court personnel. When there is a need for the issuance of a subpoena
o The other party may, however, make a tender of excluded evidence under • A requesting party may avail himself of the issuance of a subpoena ad testificandum
Sec. 40, Rule 132 or duces tecum under Rule 21 of the Rules of Court if a witness unjustifiably declines
o The term "promptly," it is submitted, should be taken in its literal context to:
and akin to the word, "immediately," as used in Sec. 38 of Rule 132 of the o Execute a judicial affidavit; or
Rules of Court. o Refuses without just cause to make the relevant books, documents, or
§ It is significant to note that the qualification “unless the court desires other things under his control available for copying, authentication, and
to take a reasonable time to inform itself on the questions eventual production in court
presented,” is not found in the JA Rule • The witness referred to is
o a government employee or official, or
Appearance of the witness at the scheduled hearing o a requested witness, who is neither the witness of the adverse party nor a
• The submission of the judicial affidavit of the witness and the attached exhibits does hostile witness
not exempt the witness from appearing at the scheduled hearing. • The rules governing the issuance of a subpoena to the witness shall be the same as
o The rule still requires his appearance when taking his deposition except that the taking of a judicial affidavit shall be
• The appearance of the witness is necessary because the adverse party has the right understood to be ex parte
to cross-examine him.
o The cross-examination shall be on his judicial affidavit and on the attached Oral offer and objections to exhibits
exhibits. • A party shall immediately make an oral offer of evidence of his documentary or
o After the cross-examination, the party presenting the witness may also object exhibits, piece by piece, in their chronological order, stating the purpose or
examine him as on re-direct purposes for which he offers the particular exhibit.
• A postponement of the cross-examination would be contrary to the spirit of the rule o The offer shall be made upon the termination of the testimony of his last
because the judicial affidavits have been filed and served even before the scheduled witness
hearing.

• It is sufficient that such exhibits are simply cited by their markings during the offers, In other words, we treat all prior statements of a witness on the stand, regardless of
the objections, and the rulings, dispensing with the description of each exhibit since their nature, as exempted from the ban of the hearsay rule.
the documentary or object exhibits form part of the judicial affidavits that describe • This is apparently based upon the rationale that when the declarant becomes a
and authenticate them witness who can be examined about the prior statement, the purpose of the hearsay
o After each piece of exhibit is offered, the adverse party shall state the legal rule is satisfied because all the ideal conditions for giving testimony are met: The
ground for his objection, if any, to its admission, and the court shall witness is under oath, subject to cross-examination, and his demeanor can be
immediately make its ruling respecting that exhibit observed by the judge.
 • Under Sec. 35 of Rule 132 of the Rules of Court, documentary and object evidence • The critics of this view believe that the reliability of the statement cannot be
shall be offered after the presentation of a party's testimonial evidence. assessed, unless it is tested contemporaneously.
o Such offer shall, as a rule, be done orally. • Thus the definition of hearsay makes an out-of-court statement by an "at-trial"
witness hearsay, that is, not admissible as substantive evidence for the truth of the
5. Hearsay matter asserted therein.
• The proposed rule provides for three exceptions when an out-of-court statement
SECTION 37: HEARSAY31 may be admitted as substantive proof: (a) a prior inconsistent statement "given
Hearsay is a statement other than one made by the declarant while testifying at a trial or under oath" at "a trial, hearing or other proceeding, or in a deposition (this may be
hearing, offered to prove the truth of the facts asserted therein. A statement is (1) an oral or used both as impeaching evidence and as substantive proof; if not covered by the
written assertion or (2) a non-verbal conduct of a person, if it is intended by him or her as an exception, a prior inconsistent statement is admissible only for impeachment
assertion. Hearsay evidence is inadmissible except as otherwise provided in these Rules. purposes and not as substantive proof); (b) a prior consistent statement to rebut "an
express or implied charge against the declarant of recent fabrication or improper
A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to influence or motive;" or (c) one of the identification of a person made after
cross-examination concerning the statement, and the statement is perceiving the person.
(a) inconsistent with the declarant’s testimony, and was given under oath subject to the • The proposed rule-making prior consistent statements hearsay, unless they fall
penalty of perjury at a trial, hearing or other proceeding, or in a deposition; under the exception is a good one because they constitute "cumulative, superfluous
(b) consistent with the declarant’s testimony and is offered to rebut an express or proof". This will stop the widespread practice by many lawyers of introducing earlier
implied charge against the declarant of recent fabrication or improper influence or affidavits of witness on the stand, after making them reaffirm the truth and contents
motive; or thereof; this self-serving practice for the simple purpose of bolstering a witness'
(c) one of identification of a person made after perceiving him or her. 32 testimony has been much abused.
• The exception for an earlier out-of-court identification is a good one because of the
Rationale for revision (Explanatory Notes of SC, 2019 Revised Rules on Evidence) greater reliability, especially if made closer in time to the event in question and the
• The old provision confuses the hearsay rule with the rule limiting testimony to what later courtroom identification occurred after a significant lapse of time. It required,
witnesses can describe on the basis of firsthand knowledge. however, that the identifying party be presented and available for cross-
• The distinction is one of the form of the testimony, whether the witness purports to examination.
give the facts directly upon his own credit (though it may appear later that he was
speaking only on the faith of report from others) or whether he purports to give an Definition of Hearsay (as amended)
account of what another has told him and this is offered to evidence the truth of the • A statement other than
other’s report • One made by the declarant while testifying at a trial or hearing
• However, when it appears, either from the phrasing of his testimony or from other • Offered to prove the truth of the facts asserted therein
sources, that the witness is testifying on the basis of reports from others, though he
does not in terms testify to their statements, the distinction loses much of its Justice Singh:
significance, and courts may simply apply the label “hearsay” • Hearsay
• The definition is quite revolutionary in this jurisdiction because, based on the o Out of court statement made by witness-declarant, not made during trial
established practice, our courts and lawyers treat out-of-court statements by an "at or hearing in a case
trial witness" as non-hearsay and they are usually admitted without any objection. o Statement = oral or written assertion, or conduct intended as assertion

31 . This a new provision in Sec. 37 which defines what HEARSAY means, which essentially is a statement other than one made by the declarant while testifying at a trial or hearing. The statement may be (i) oral or written or (ii) a non-verbal conduct of a
person.
32 . This second paragraph of Sec. 37 is also a new provision. It defines what is NOT A HEARSAY STATEMENT, which is when a declarant testifies and is subject to cross-examination concerning the statement and the statement is: (i) inconsistent with
declarant’s testimony; (ii) offered to rebut an express or implied charge against the declarant; or (iii) one of identification of a person made after perceiving him or her
 • Exceptions: 1. First, there must be an out-of-court statement.
o Prior inconsistent statement under oath at a trial, hearing or other o It may be oral. It may be written. It may even be a conduct, as long as that
proceeding, or in a deposition, to impeach witness-declarant; conduct is intended by the actor as an assertion. What matters is that the
o Prior consistent statement only to rebut “an express or implied charge statement was not made by the declarant in the hearing or trial.
against the declarant of recent fabrication, or improper influence or 2. Second, that the statement made out of court is repeated and offered by the witness
motive”; in court to prove the truth of the matters asserted by the statement.
o Identification of a person made after perceiving the person
Anecdotal illustration:
Hearsay may be oral or written (As amended) HEARSAY NOT HEARSAY
• The statement may be (i) oral or written or (ii) a non-verbal conduct of a person. First element: out-of-court statement
• The rule that excludes hearsay evidence applies to both written and oral statement Jose testifies in court that his friend, Juan, wrote him saying that the latter saw a street bum
shoot the cop and not Jose’s Uncle.
Basis for excluding hearsay evidence Second element: purpose
• The rule excluding hearsay testimony rests mainly on the ground that there is no To prove that it was not Jose’s Uncle who To prove that Jose’s friend was alive on
opportunity to cross-examine the person to whom statements or writings are shot the cop but a bum August 5
attributed The judge should sustain the objection. The The declaration of Juan is not, therefore, to
• Moreover, the court is without the opportunity to test the credibility of hearsay formula is now complete. Jose's testimony is prove the truth of the matter asserted in the
statements by observing the demeanor of the person who made them hearsay. It is hearsay because the out-of- statement of Juan. We have the first
• An affidavit is merely hearsay evidence where its affiant/maker did not take the court statement of Jose's friend that "it was component but we don't have the second.
witness stand a street bum who shot the cop and not What, then, would the judge rule? Clearly, it
• While affidavits that have been notarized are public documents if they are Jose's uncle" is offered to prove the very would be, "Objection, overruled. Not
acknowledged before a notary public, these are still considered hearsay unless the matter asserted in the statement hearsay!"
affiants themselves are placed in the witness stand to testify thereon. It would be admissible as long as the fact
o The reason for this rule is that, generally, they are not prepared by the that Jose's friend was alive on August 5 is
affiants, but by another one who uses his own language in writing the relevant to an issue of the case. If the
statements, parts of which may be either omitted or misunderstood by the evidence is not allowed, it is not because of
one writing them. the hearsay rule but because it did not meet
o Moreover, the adverse party is deprived of cross-examining the affiants the standards of relevance.

When evidence is hearsay • Problems are rarely encountered as to the first component. It is easy to know
• Although hearsay evidence presupposes lack of personal knowledge of the truth of whether or not a statement offered is out of court.
the fact asserted by a witness, the purpose for which the evidence is offered is a vital • Implied from an out-of-court statement is the fact that the witness has no personal
element of hearsay evidence. knowledge of the matter testified to. It is someone outside the court and who, at
• The Supreme Court acknowledged that the ban on hearsay does not include the same time, is not in the stand who has personal knowledge of the facts.
statements which are relevant independently of whether they are true or not, like • That someone outside the court cannot be questioned. His perception cannot be
statements of a person to show, among others, his state of mind, mental condition, tested.
knowledge, belief, intention, ill-will and other emotions o His capacity to remember what he perceived cannot be accurately
• According to the US FRE, to constitute hearsay, there must be: determined.
o An out-of-court statement, oral, written or nonverbal conduct, made by o Neither can his capacity to communicate his remembered perceptions.
one other than the one made by the declarant or witness testifying at the (Note: these are requirements for the competence of witnesses)
trial; and • A witness must testify only to matters of his personal knowledge or those which are
o The out-of-court statement must be offered to prove the truth of the derived from his own perception (Note: this is the old concept of hearsay; this is
matter asserted in the out-of-court statement amended already and known now as the “concept of lack of personal knowledge,”
• In People v. DeMarco, hearsay is defined "as an out of court statement offered for not hearsay)
the truth of the matter asserted" o RATIONALE: The witness’ credibility, accuracy of perception and
recollection, can be tested before the court through cross-examination.
Specific elements of hearsay evidence:

o Those of the out-of-court declarant cannot. The latter's statements are, • A threat against a witness may be offered in evidence to show its impact on the
therefore, unreliable. witness and where the reasonableness of a person’s conduct is an issue, an out-of-
o In the high fallutin terminology of the academe, his statements lack the court declaration may be offered to explain the person’s reactions to the declaration
"indicia" of trustworthiness. It is this lack of reliability which is the reason
for the time-honored rule excluding hearsay testimony. Out-of-court statements offered to prove mental state of the declarant
• In most hearsay problems, the first component is always present, but not the second. • As long as an out-of-court statement is offered for a non-hearsay purpose (a purpose
o It is concededly the more controversial part of the rule other than to prove the truth of the matter asserted), the statement is admissible if
o When this part is absent, i.e., the out-of-court statement is not offered to it has relevance to the matter in issue.
prove the truth of the matter asserted, it is said that the statement is o Statements relating to the state of mind of the declarant is one of those
offered for a non-hearsay purpose. admissible out-of-court statements if offered for non-hearsay purposes
o Where a statement is not offered for the truth of the matter asserted but • A popular example of an out-of-court statement offered for a non-hearsay purpose
is offered for an evidentiary purpose, not dependent on the truth of the is one which demonstrates by inference from the tenor of the statement the state
matters asserted, the statement is non-hearsay. of mind of the speaker or the declarant.
• In People v. Feria, Newspaper articles amount to 'hearsay evidence, twice removed' o Here, the significance of the statement is not whether its assertion is true
and are therefore not only inadmissible but without any probative value at all or false. Its significance rests on the mere fact that it was uttered and, by
whether objected to or not, unless offered for a purpose other than proving the truth extension, on the conclusion which may reasonably be drawn from the
of the matter asserted. statement.
o Ex. A nurse testified that her patient said that he was ‘Joseph Stalin,’ then
When evidence is NOT hearsay (as amended) that he was ‘Theodore Roosevelt,’ and after subscribing to the will, he said
• The declarant testifies at the trial or hearing and is that he was ‘Saddam Hussein’
• Subject to cross-examination concerning the statement, and o The out-of-court statement by the nurse are offered for a non-hearsay
• The statement is purpose to prove by inference through the statement that the testator, on
o (a) inconsistent with the declarant’s testimony, and was given under oath the day the will was executed, was incapacitated by reason of a mental
subject to the penalty of perjury at a trial, hearing or other proceeding, or condition. It was not to prove that the patient was indeed the persons he
in a deposition; said he was
o (b) consistent with the declarant’s testimony and is offered to rebut an • A testimony by the hearer that such statement was made is not hearsay.
express or implied charge against the declarant of recent fabrication or o Reason being that the hearer will be testifying as to his personal knowledge
improper influence or motive; or that the statement was uttered.
o (c) one of identification of a person made after perceiving him or her o He may, therefore, be cross- examined as to what he heard, when it was
heard, how it was said, and the circumstances surrounding the making of
Examples of non-hearsay evidence the statement.
• Where a statement is not offered for the truth of the contents of the conversation, o The hearer's veracity and sincerity can well be tested under a cross-
but only to show that it was made, then the statement is not hearsay examination because he will not be testifying as to the veracity of the
o Ex. A statement that is offered to show its patent falsity, so as to suggest assertion or its falsity which are totally irrelevant.
the defendant’s consciousness of guilt
• Statements relating to the state of mind of the declarant and statements relating to Out-of-court statement offered to prove its effect on the listener/hearer
the state of mind of the listener. • When the statement is not offered for the truth of the matter asserted but is offered
o Words uttered, in this regard, merely constitute circumstantial evidence of to show the mental effect of the statement on the hearer, the statement is not
an assertion and where the making of the statement is the significant fact hearsay
because it either gives rise to the inference about the declarant’s state of • The statement offered in evidence is not hearsay because it is the hearer's reaction
mind or indicates its effect on the hearer to the statement which is sought to be proved.
o The truth of the statement is not in issue here o It is his reaction to the statement that is relevant, not the truth of the
o A statement by an out-of-court declarant may be offered not for the assertion in the statement.
veracity of what is asserted but merely to impeach the declarant’s • Since the hearer is present in court, he can be cross-examined on whether or not he
credibility heard the statement accurately, believed the statement to be true, and whether or
not he really acted in conformity with his belief.

o Ex. A cop testified that he arrested the complainant after he was fingered • An out-of-court statement introduced in court to impeach a previous witness is
(LOL!) by a witness to the felony. The testimony that the cop heard from another form of independently relevant statement, and an example of how an out-
the victim was, “This happened barely two minutes ago and that guy sitting of-court declaration may be used for a non-hearsay purpose.
there pretending to be an onlooker is the culprit.” • From the moment the witness takes his oath on the stand, even before he utters his
o The testimony is to prove that an arrest was made as a consequence of the first words on the stand, his credibility is automatically put in issue. That the
out-of-court statement's effect on the hearer. This effect was the reason credibility of a witness is always an issue in every litigation is a given.
for the arrest. This effect is relevant to justify the apprehension of the o Of course, a testimony that attacks the credibility of the witness is equally
complaining witness relevant especially when that witness claims to have personal knowledge of
the facts testified to.
Out-of-court statement offered to prove that the statement was made o Prior out-of-court declarations of that same witness inconsistent with his
• Where the statement is not offered for the truth of the matter asserted, but merely testimony on the stand are admissible not to prove the truth of what was said.
to show what was said, the statement is not hearsay
• If an extrajudicial utterance is offered, not as an assertion to prove the matter (b) consistent with the declarant’s testimony and is offered to rebut an express or
asserted but without reference to the truth of the matter asserted, the hearsay rule implied charge against the declarant of recent fabrication or improper influence or
 does not apply. motive; or
• For example, in a slander case, if a prosecution witness testifies that he heard the • The proposed rule-making prior consistent statements hearsay, unless they fall
accused say that the complainant was a thief, this testimony is admissible not to under the exception is a good one because they constitute "cumulative, superfluous
prove that the complainant was really a thief, but merely to show that the accused proof". This will stop the widespread practice by many lawyers of introducing earlier
uttered those words. affidavits of witness on the stand, after making them reaffirm the truth and contents
thereof; this self-serving practice for the simple purpose of bolstering a witness'
Independently relevant statements testimony has been much abused. (Id.)
• It is doctrinal that a declarant's statement may have relevance to an issue in a case
from the mere fact that the words were spoken or written, irrespective of the truth (c) one of identification of a person made after perceiving him or her
or falsity of the assertion • The exception for an earlier out-of-court identification is a good one because of the
• They are called as such because the statements are admissible for some relevant greater reliability, especially if made closer in time to the event in question and the
reason independent of their truth or falsity. They are relevant because the later courtroom identification occurred after a significant lapse of time. It required,
statement itself is either the very fact in issue or a circumstantial evidence of a fact however, that the identifying party be presented and available for cross-
in issue. examination. (Id.)
o Their relevant to the matter in issue is not dependent on their truth or
falsity. Their relevance lies in the fact that they were said • Note: I think the new amendments mean that the rule before that as long as witness
• Ex. A witness may be asked questions concerning what the accused told him that is in trial his out-of-court statements could not be hearsay NO LONGER stands (as
other persons were involved in the conspiracy if the purpose of the testimony is not lawyers abused it).
to prove that such persons were really involved in the conspiracy but only to prove • Now, if the witness made his statement outside of trial or hearing, it is automatically
what the accused had mentioned hearsay, if offered as proof of the facts asserted therein. This is the general rule.
o If the purpose of the testimony is merely to establish the fact that the • The rule then lists exceptions which although out-of-court, will still not be considered
statement was made, the hearsay rule does not apply. Evidence as to the hearsay and hence can be admitted, because for one, the witness now testifies about
making of the statement is a primary evidence where it is relevant to the them in court, and two, they are not offered to prove facts asserted therein but:
existence of a fact o To impeach the credibility of the witness on the ground that he makes
inconsistent statements
A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to o To rebut the charge against him that he recently fabricated or had
cross-examination concerning the statement, and the statement is improper motive; and
(a) inconsistent with the declarant’s testimony, and was given under oath subject to the o To merely identify a person after he saw that person.
penalty of perjury at a trial, hearing or other proceeding, or in a deposition;
• this may be used both as impeaching evidence and as substantive proof; if not
covered by the exception, a prior inconsistent statement is admissible only for Classes of independently relevant statements
impeachment purposes and not as substantive proof (Explanatory Notes of SC, 2019 FIRST CLASS SECOND CLASS
Revised Rules on Evidence)
 a. Statements which are the very facts in a. Statements of a person showing his 9. Entries in official records
issue; and state of mind; that is, his mental 10. Commercial lists and the like
b. Statements which are circumstantial condition, knowledge, belief, 11. Learned treatises
evidence intention, ill-will and other emotions; 12. Testimony or deposition at a former proceeding
b. Statements of a person which show his
physical condition, as illness and the • It is not correct to assert that the exceptions to the hearsay rule are not hearsay.
like; • They are hearsay evidence but they are deemed admissible hearsay for certain
c. Statements of a person from which an reasons. Under appropriate circumstances, a hearsay statement may possess
inference may be made as to the state circumstantial guarantees of trustworthiness sufficient to justify non-production of
of mind of another; that is knowledge, the declarant in person
belief, motive, good or bad faith, etc. of
the latter; Exception to the hearsay rule in child abuse cases
d. Statements which may identify the • Under Sec. 28 of the Rule on Examination of a Child Witness, a hearsay statement of
date, place, and person in question; a child which under the Rules of Court, is not admissible for being hearsay because
and the facts testified to are not within his personal knowledge, may be admitted in
e. Statements showing the lack of evidence in any criminal or non-criminal proceeding.
credibility of a witness • The testimony is admissible provided the same be:
o offered in child abuse cases and
Justice Singh: Independently relevant statement o the statement made by the child is one describing any act or attempted
• Statement relating what another individual told the declarant act of child abuse.
• Admissible proof based on firsthand knowledge of what the other individual told the • Aside from the above, the following must likewise be complied with
declarant: not hearsay o (a) The proponent shall make known to the adverse party the intention to
• Inadmissible as proof of the truth of the statement of the other individual to the offer such statement and its particulars to provide him a fair opportunity
declarant to object before the hearsay statement may be admitted.
• While the testimony of a witness regarding a statement made by another person o (b) If the child is available, the court shall, upon motion of the adverse
given for the purpose of establishing the truth of the fact asserted in the statement is party, require the child to be present at the presentation of the hearsay
clearly hearsay evidence, it is otherwise if the purpose of placing the statement on statement for cross-examination by the adverse party; and
the record is merely to establish the fact that the statement, or the tenor of such o (c) When the child is unavailable (as when the child is deceased, suffers
statement, was made. Regardless of the truth or falsity of a statement, when what is from physical infirmity, mental illness, loss of memory, or because the
relevant is the fact that such statement has been made, the hearsay rule does not child will be exposed to severe psychological injury), the fact of such
apply and the statement may be shown. As a matter of fact, evidence as to the circumstance must be proved by the proponent and the hearsay
making of the statement is not secondary but primary, for the statement itself may testimony shall be admitted only if corroborated by other admissible
constitute a fact in issue or is circumstantially relevant as to the existence of such a evidence
fact. This is known as the doctrine of independently relevant statements. (Espineli • In ruling the admissibility, the court shall consider the
v. People) o Time
o Content, and
6. Exceptions To The Hearsay Rule o Circumstances surrounding the making of the statement which would
provide sufficient indicia of reliability
Exceptions (As Amended) • Certain factors are also to be considered by the court before deciding to admit the
1. Dying declarations statement like
2. Statement of decedent or person of unsound mind o The motive to lie, the general character of the declarant child, the number
3. Declaration against interest of persons who heard the statement, the spontaneity of the making of the
4. Act or declaration about pedigree statement, the timing of the making of the statement, the relationship
5. Family reputation or tradition regarding pedigree between the declarant child and the witness, the remoteness of the
6. Common reputation possibility of a faulty recollection and other circumstances surrounding
7. Part of the res gestae the statement
8. Entries in the course of business
SECTION 38: DYING DECLARATION • If the deceased made declarations before his demise, "It is the belief in impending
The declaration of a dying person, made under the consciousness of an impending death, may death and not the rapid succession of death in point of fact that renders a dying
be received in any case wherein his or her death is the subject of inquiry, as evidence of the declaration admissible. The test is whether the declarant has abandoned all hopes of
cause and surrounding circumstances of such death. survival and looked on death as certainty"
• However, even if the utterances of the victim could not be appreciated as a dying
Dying Declaration declaration, his statements may still be appreciated as part of the res gestae which
• A dying declaration is an evidence of the highest order; it is entitled to the utmost refers to spontaneous statements made immediately prior to, while a startling
credence on the premise that no person who knows of his impending death would occurrence is taking place or immediately after such occurrence.
make a careless and false accusation. At the brink of death, all thoughts on concocting o Since the statements are contemporaneous with the startling event,
lies disappear deliberation and fabrication are ruled out and, thus, deemed reliable.
o Persons aware of an impending death have been known to be genuinely
truthful in their words and extremely scrupulous in their accusations. Objections to a dying declaration
• The reasons for its admissibility is necessity and trustworthiness. • Any objection to a dying declaration may be premised on any of the requisites for its
o Necessity, because the declarant’s death renders it impossible his taking admissibility (see elements of dying declaration)
the witness stand, and it often happens that there is no other equally
satisfactory proof of the crime; allowing it, therefore, prevents a failure of 1. Consciousness of an impending death
justice • When the prosecutor attempts to introduce a dying declaration, the very first
o Trustworthiness, because the declaration is made in extremity, when the question that the defense should ask is whether or not the declarant, at the time the
party is at the point of death, when every motive to falsehood is silenced statement was made, knew or believed that he was going to die. This constitutes the
and the mind is induced by the most powerful considerations to speak the objector’s first line of defense – “consciousness of an impending death”
truth • To admit a dying declaration in evidence, it must be shown that the declarant
• The law considers the point of death as a situation so solemn and awful as creating believed, at the time the statement was made, that he was in a dying condition and
an obligation equal to that which is imposed by an oath administered in court had given up the hope of surviving
• As presently worded, the declaration of a dying person, made under the o The declarant’s belief that he is going to die soon may be shown
consciousness of an impending death, may be received in any case wherein HIS death circumstantially by the obvious fatal quality of the wound, by the
is the subject of inquiry, as evidence of the cause and surrounding circumstances of statements made to the victim by the physician that his condition is
such death hopeless, or by some other circumstances
o As long as the relevance is clear, a dying declaration may now be
introduced in a criminal or a civil action and the requirement of relevance 2. Cause and circumstances surrounding declarant’s death
is satisfied where the subject of inquiry is the death of the declarant • The requirement that a dying declaration must relate to the cause and the
himself. circumstances surrounding the declarant's death may be a source for counsel's
• The Supreme Court had long recognized the rule that dying declarations, which objection to the admission of the declaration.
exculpate or exonerate an accused, may be introduced by him and are admissible in • This requirement is an essential part of the evidentiary foundation for a dying
his favor declaration and where the statement sought to be introduced by the prosecution is
on a matter other than the cause of death of the declarant, the required foundation
Elements of a dying declaration for its admissibility cannot be laid
1. The declaration concerns the (1) cause and (2) the surrounding circumstances of
 the declarant’s death; Assailing a dying declaration
2. It is made when death appears to be imminent and the declarant is under a • Although jurisprudentially considered as evidence of the highest order, it is submitted
consciousness of an impending death; that the admissibility of a dying declaration, like any admissible evidence, does not
3. The declarant would have been competent to testify had he or she survived; and create a conclusive presumption of credibility of the admitted declaration.
4. The dying declaration is offered in a case in which the subject of inquiry involves the • Like any other evidence, the declaration may be attacked in the same manner as one
declarant’s death would do to a testimony in open court.
a. Homicide, Murder, or Parricide where the declarant is the victim (People • The declarant himself may be impeached through the normal methods provided for
v. Palanas) under the rules

o For instance, the objector may show that prior to the admitted • Benham criticized the Dead Man’s Statute as “blind and brainless’ because in seeking
declaration, the declarant had previously made a statement inconsistent to avoid injustice to the dead, it may cause injustice to the living
with his supposedly 'dying declaration.' • If a survivor has rendered services, furnished goods or lent money to a man whom
o The objecting counsel may also demonstrate that the declarant has no he trusted, without an outside witness or admissible written evidence, he is helpless
personal knowledge of the identity of the assailant. if the other dies and the representative of his estate declines to pay
o It may also be pointed out that the declarant would not have been a • The survivor’s mouth may even be closed in an action arising from a fatal automobile
competent witness even if he had survived. Competence is affected collision, or in a suit upon a note or an account which the survivor paid in cash
where the declarant had no opportunity to see the assailant. The without taking a receipt.
declaration must identify the assailant; otherwise, it loses its significance • The problem is that the survivor’s disqualification is more likely to balk the honest
• Courts have to apply to dying declarations the same rules applied in testing the than the dishonest survivor
credibility of testimony of a witness in court. No law allows them to use a different • One who would not balk at perjury will hardly hesitate at suborning a third person,
criterion. who would not be disqualified to swear to the false story
• One may even question the competency of the declarant himself who, like any other • Many states have swept away the disqualification entirely and their evidence rules
witness, may also be impeached. If the declarant is incompetent under the rules if he now permit the survivor to testify without restriction
were to appear in court and in person, he would also be incompetent as a dying • In order, however, to minimize the danger of injustice to the decedent’s estate, their
declarant. rules render admissible any writings of the deceased or evidence of oral statements
o A dying declaration, as an exception to the hearsay rule, is not meant to made by him, which would ordinarily be excluded as hearsay
confer competency on an otherwise incompetent witness. • Following the lead of these states, the Sub-Committee decided to recommend the
• (1) The credibility or trustworthiness of those who have allegedly heard or taken proposed rule allowing the survivor to testify but admitting hearsay evidence of the
down the dying declaration AND (2) the form and manner by which the declaration deceased
 was taken are vital points to be considered by an objector who desires to water down
the effects of a dying declaration. DEAD MAN’S STATUTE
o Where it is shown that the persons from the prosecution were the ones • Applies only to a civil case or a special proceeding over the estate of a deceased or
who squeezed out the dying declaration from the lips of a weakened insane person
declarant through questions calculated to bring out a desired response, a • ELEMENTS: [OLD RULE]
conscientious counsel may bring this matter up in court. o The suit is upon a claim by the plaintiff against the estate of said deceased or
person of unsound mind;
SECTION 39: STATEMENT OF DECEDENT OR PERSON OF UNSOUND MIND 33 o The defendant in the case is the executor or administrator or a
In an action against an executor or administrator or other representative of a deceased representative of the deceased or the person of unsound mind;
person, or against a person of unsound mind, o The witness is the plaintiff, or an assignor of that party, or a person in whose
• upon a claim or demand against the estate of such deceased person or against such behalf the case is prosecuted; and
person of unsound mind, o The subject of the testimony is as to any matter of fact occurring before the
• where a party or assignor of a party or a person in whose behalf a case is prosecuted death of such deceased person or before such person became of unsound
testifies on a matter of fact occurring before the death of the deceased person or mind
before the person became of unsound mind, • Requisites for statement of decedent or person of unsound mind to be admitted
Any statement of the deceased or the person of unsound mind, may be received in evidence as an exception to hearsay rule:
if the statement was made upon the personal knowledge of the deceased or the person of o The statement of decedent or person of unsound mind was presented in a
unsound mind at a time when the matter had been recently perceived by him or her and while civil action or special proceeding upon a claim by the plaintiff against the
his or her recollection was clear. estate of said deceased or person of unsound mind;
• Such statement, however, is inadmissible if made under circumstances indicating its § The defendant in the case is the executor or administrator or a
lack of trustworthiness.34 representative of the deceased or the person of unsound mind;
§ The witness is the plaintiff, or an assignor of that party, or a
Rationale for revisions (Explanatory Notes of SC, 2019 Revised Rules on Evidence) person in whose behalf the case is prosecuted; and

33 . This is a new section regarding the statement of a decedent or person of unsound mind
34 . The amendment requires, among others, that any statement that will be used in an action against an executor, administrator or other representative of a deceased person or of an unsound mind, should be based on the statement of the deceased or
the person of unsound mind made upon the personal knowledge of the latter at a time when the matter had been recently perceived by him/her and while his/her recollection was clear

o In such suit, the plaintiff testifies as to any matter of fact occurring before the o Thus, offering the testimony of a so-called "disinterested witness" is not a
death of such deceased person or before such person became of unsound transgression of the rule since the prohibition extends only to the party or his
mind assignor or the person in whose behalf the case is prosecuted.
o The statement of the deceased or person of unsound mind was made • The exception of the witness testifying "on any matter of fact occurring before the
 § upon his or her personal knowledge death of such deceased person or before such person became of unsound mind."
§ when the matter had been recently perceived by him or her and o Hence, if the subject of the testimony is on some other matter, the witness
§ while his or her recollection was still clear may testify on such matter as when the subject of the testimony is on a fact
o Such statement was not made under circumstances indicating its lack of which transpired after the death of such person.
trustworthiness • Also, witnesses who testify on the basis of their knowledge of a transaction, not
based on their dealings with the deceased, are not barred.
OLD RULE ILLUSTRATIVE EXAMPLE NEW RULE o As the Court ruled: "The dead man's statute does not operate to close the
Mr. C is disqualified to Mr. D approaches Mr. C to Mr. C may now testify mouth of a witness as to any matter of fact coming to his knowledge in any
testify regarding his claim borrow P100,000 to be paid against the estate regarding other way than through personal dealings with the deceased person, or
against the estate. exactly a year after. Without a matter of fact occurring communication made by the deceased to the witness"
any hesitation, Mr. C gives before the death of the • The survivorship disqualification rule is intended to benefit the estate of the
However, if the claim is not Mr. D the amount and does deceased person or before deceased or the insane person; hence, this protection may be waived by
one against the estate, then not require Mr. D to execute the person became of o (a) failing to object to the testimony, or
Mr. C is qualified to testify. a promissory note. A day unsound mind – in this case o (b) cross-examining the witness on the prohibited testimony
before the agreed payment, on the loan, before Mr. D
Mr. D died. Mr. C then goes died. However, the executor Justice Singh:
to the executor and claims of Mr. D is not precluded • Under the Dead Man's Statute Rule, "[i]f one party to the alleged transaction is
against the estate. from presenting in evidence precluded from testifying by death, insanity, or other mental disabilities, the other
statements made upon the party is not entitled to the undue advantage of giving his own uncontradicted and
personal knowledge of D unexplained account of the transaction." Thus, the alleged admission of the
regarding the loan before he deceased xxx cannot be used as evidence against [him] as the latter would be unable
died. to contradict or disprove the same. (Garcia v. Vda. de Caparas, G.R. No. 180843, April
17, 2013)
How to apply the rule (OLD RULE)
• The rule contemplates a suit against the estate, its administrator or executor and not Tranquil Salvador
a suit filed by the administrator or executor of the estate o Old Sec. 23, but as a disqualification
o A defendant, who opposes the suit filed by the administrator to recover o ‘Dead Man’s Statute’ is now an exception to the hearsay rule
alleged shares of stock belonging to the deceased, is not barred from o Relates to trustworthiness and reliability
testifying as to his transaction with the deceased with respect to the shares o Should have personal knowledge of what the person perceived and
o Also, when a counterclaim is set up by the administrator of the estate, the § Samson case still applies
case is removed from the operation of the "dead man's statute."
o The plaintiff may testify to occurrences before the death of the deceased to SECTION 40: DECLARATION AGAINST INTEREST
defeat the counterclaim which is not brought against the representative of The declaration made by a person deceased or unable to testify against the interest of the
the estate but by the said representative declarant, if the fact asserted in the declaration was at the time it was made so far contrary to
• The rule does not apply when the action brought is not "against" the estate, or not the declarant’s own interest that a reasonable person in his or her position would not have
upon a claim or demand "against" the estate. This claim, from the tenor of the rule made the declaration unless he or she believed it to be true, may be received in evidence
is, by its nature, civil, not criminal, because the estate itself cannot be criminally against himself or herself or his or her successors in interest and against third persons.
liable. • A statement tending to expose the declarant to criminal liability and offered to
• The rule is obviously intended to be exclusive and does not prohibit a testimony: exculpate the accused is not admissible unless corroborating circumstances clearly
o by a mere witness to the transaction between the plaintiff and the deceased indicate the trustworthiness of the statement. 35
and who has no interest in such transaction.

35 . The new provision specifies that if the statement will expose the declarant to criminal liability and offered to exculpate the accused, then this is not admissible in evidence
 3. Depositions may be taken before a notary public or before any person authorized to o The court may also order that persons attending the trial shall not enter or
administer oaths leave the courtroom DURING the testimony of the child
4. In a criminal case, either party may utilize the testimony of a witness who is
deceased, out of the country, unavailable or unable to testify despite the exercise Facilitator and Interpreter
of due diligence, even if the testimony was one used in another case or proceeding, • When a child does not understand the English or Filipino language, or is unable to
judicial or administrative, provided the said proceeding involved the same parties communicate in said languages due to his developmental level, fear, shyness,
and subject matter and the adverse party had the opportunity to cross-examine disability, or other similar reason,
the witness o An interpreter whom the child can understand and who can understand the
5. The judicial affidavit shall take the place of direct testimonies of witnesses child may be appointed by the court, motu proprio or upon motion, to
interpret for the child
Oath or affirmation o Being another witness in the same case or a member of the family of the child
is NOT in itself a disqualification
OATH AFFIRMATION § Such a person may be an interpreter if he is the only one who
Outward pledge made under an immediate Substitute for an oath, and is a solemn and can serve as interpreter
sense of responsibility to God or a solemn formal declaration that the witness will tell § If the interpreter is also a witness, he shall testify ahead of the
appeal to the Supreme Being in attestation the truth child
of the truth of some statement • If the court determines that the child is unable to understand or respond to
questions asked, the court may, motu proprio or upon motion, appoint a facilitator
• The witness must take either an oath or affirmation, but the option to do so is given o The facilitator may be a child psychologist, psychiatrist, social worker,
to the witness and not to the court guidance counselor, teacher, religious leader, parent or relative
• Where the witness refuses to take an oath or give any affirmation, the testimony
may be barred Right to be accompanied
• A child testifying at a judicial proceeding or making a deposition shall have the right
RULE ON EXAMINATION OF A CHILD WITNESS to be accompanied by one or two persons of his own choosing to provide him
emotional support
Examination of a child witness o Said support persons shall remain within the view of the child during his
• The examination of a child witness presented in a hearing or any proceeding shall be testimony
done in open court o One of the support persons may even accompany the child to the witness
o The answer of the witness shall be given ORALLY, unless the witness is: stand and the court may also allow the support person to hold the hands of
§ Incapacitated to speak, or the child or to take other appropriate steps to provide emotional support to
§ The question calls for a different mode of answer the child in the course of the proceedings but the court shall instruct the
• The examination in this situation refers to the child already testifying in court (Note support persons not to prompt, sway or influence the child during his
the difference of when it is a competency examination) testimony
• When the child is testifying, the court may exclude the public and persons who do • The support person may be another witness
not have a direct interest in the case, including members of the press o But the court shall disqualify him if it could be sufficiently established that the
o The order shall be made if the court determines on the record that to testify attendance of such support person would pose a substantial risk of
in open court would: influencing or affecting the content of the testimony of the child
§ cause psychological harm to him, o If the support person who is also a witness is allowed by the court, he shall
§ hinder the ascertainment of truth, or testify ahead of the child
§ result in his inability to effectively communicate due to
embarrassment, fear or timidity Live-link television
o The court may also motu proprio exclude the public from the courtroom if the • An application may be made for the testimony of the child to be taken in a room
evidence to be produced during trial is of such character as to be offensive to outside the courtroom and be televised to the courtroom by live-link television
decency or public morals o The application may be made – at least 5 days before the trial date by:
o The court may also, on motion of the accused, exclude the public from trial, § The prosecutor
§ except court personnel and the counsel of the parties § Counsel, or
§ Guardian ad litem
 • The court may order that the testimony of the child be taken by live-link television if The (1) entire proceedings of a trial or hearing, including the (2) questions propounded to a
there is a substantial likelihood that the child would suffer trauma from testifying witness and his answers thereto, the (3) statements made by the judge or any of the parties,
in the presence of the accused, his counsel, or the prosecutor as the case may be counsel, or witnesses with reference to the case, shall be recorded by means of shorthand or
o The trauma should be of a kind which would impair the completeness or stenotype or by other means of recording found suitable by the court.
truthfulness of the testimony of the child
• If the child is testifying by live-link television and it is necessary to identify the A transcript of the record of the proceedings made by the official stenographer, stenotypist or
accused at trial, the court may: recorder and certified as correct by him shall be deemed prima facie a correct statement of
o Allow the child to enter the courtroom for the limited purpose of identifying such proceedings. (2a)
the accused; or
o Allow the child to identify the accused by observing his image on a television Record of proceedings
monitor • MATTERS RECORDED:
• The testimony of the child shall be preserved on videotape, digital disc, or other o Entire proceedings of the trial or hearing
similar devices which shall be made part of the court record and be subject to a o Questions propounded to a witness and his answers
protective order o Statements made by the judge, any of the parties or any of the counsels or
• To shield the child from the accused, the court may allow the child to testify in such witnesses
a manner that the child cannot see the accused by testifying through one-way • The recording may be by short hand, stenotype, or any means of recording found
mirrors, and other devices suitable by the court
• The official stenographer, stenotypist or recorded SHALL make a transcript of record
Records of child examinations of the proceedings AND SHALL be certified by him as correct
• Kept confidential and under seal o The transcript so prepared and certified shall be deemed prima facie a correct
• Except upon written request and order of the court, a record shall only be released statement of such proceedings
to the following:
o Members of the court staff for administrative use; SECTION 3: RIGHTS AND OBLIGATIONS OF A WITNESS
o The prosecuting attorney; A witness must answer questions, although his answer may tend to establish a claim against
o Defense counsel; him. However, it is the right of a witness:
o Guardian ad litem;
o Agents of investigating law enforcement agencies; and (1) To be protected from irrelevant, improper, or insulting questions, and from harsh or
o Other persons as determined by the court insulting demeanor;
• Whoever publishes or causes to be published in any format the name, address,
telephone number, school, or other identifying information of (2) Not to be detained longer than the interests of justice require;
o a child who is or is alleged to be a victim or accused of a crime or a witness
thereof, or (3) Not to be examined except only as to matters pertinent to the issue;
o an immediate family of the child
§ shall be liable to the contempt power of the court (4) Not to give an answer which will tend to subject him to a penalty for an offense unless
• Where a youthful offender has been charged before any city, or provincial otherwise provided by law; or
prosecutor or any municipal judge and the charges have been dropped, all the
records of the case shall be considered privileged and may not be disclosed directly (5) Not to give an answer which will tend to degrade his reputation, unless it to be the very
or indirectly to anyone for any purpose whatsoever fact at issue or to a fact from which the fact in issue would be presumed.
o If he is charged and acquitted or the case is dismissed, the records are also • But a witness must answer to the fact of his previous final conviction for an offense.
privileged, as a rule
• The youthful offender, who fails to acknowledge the case against him or to recite Rights and obligations of a witness
any fact related thereto in response to any inquiry made to him for any purpose, • GR: A witness has an obligation to answer questions, although his answer may tend
SHALL NOT be held under any provision of law to be guilty of perjury or of to establish a claim against him
concealment or misrepresentation o XPN: Not to give an answer which will tend to subject him to a penalty for an
offense (Right against self-incrimination)
SECTION 2: PROCEEDINGS TO BE RECORDED o To be protected from irrelevant, improper, or insulting questions, and from
harsh or insulting demeanor;
 o Not to be examined except only as to matters pertinent to the issue; • It is information which counsel wants the court to hear
o Not to be detained longer than the interest of justice requires; and • PURPOSE: to elicit facts about the client’s cause of action or defense
o Not to give an answer which will tend to degrade his reputation, unless it be • This examination is now dispensed and a judicial affidavit is now presented, for civil
the very fact at issue or to a fact which the fact in issue would be presumed cases and criminal cases with penalty of imprisonment not exceeding 6 years,
• Counsel must always come to the aid of his witnesses being subjected to according to the Judicial Affidavit Rule.
intimidation, harassment and embarrassment
o Such acts are objectionable and a timely objection should be raised SECTION 6: CROSS-EXAMINATION; ITS PURPOSE AND EXTENT
Upon the termination of the direct examination, the witness may be cross-examined by the
Justice Singh: adverse party on any relevant matter, with sufficient fullness and freedom
• A witness need not worry that the oral examination might subject him or her to • to test his or her
badgering by adverse counsel. The trial court’s duty is to protect every witness o accuracy and truthfulness and
against oppressive behavior of an examiner and this is especially true where the o freedom from interest or bias,
witness is of advanced age. (Lee v. Court of Appeals) o or the reverse, and
• to elicit all important facts bearing upon the issue.
Right against self-incrimination
• Not to give an answer which will tend to subject him to a penalty for an offense, Rationale for revisions (Explanatory Notes of SC, 2019 Revised Rules of Evidence)
unless otherwise provide by law • The additional word “on any relevant matter” is intended to make explicit or
o RA 6981 (Witness Protection, Security and Benefit Act), provides that a clarify that cross-examination, following the English rule, may probe into any
witness admitted into the witness protection program CANNOT refuse to subject relevant to the issues in the case, even if not covered by the direct
testify or give evidence or produce books, documents, records, or writings examination
necessary for the prosecution of the offense or offenses for which he has been • In Capitol Subdivision v. Negros Occidental, the SC categorically held that cross-
admitted on the ground of the right against self-incrimination examination may go beyond the scope of the direct and that, by doing so, the
• If the witness is the ACCUSED, he may totally refuse to take the stand party is not making the witness his own
• A mere witness CANNOT altogether refuse to take the stand • The English rule or the wide-open rule encourages the search for truth by letting
o Before he refuses to answer, he must wait for the incriminating question the parties bring to light at the outset all the witness knows, while the American
rule or the scope-of-direct rule encourages the proponent to control the
Right not to give an answer that will tend to degrade his reputation witness to reveal only part of the truth and prevents the adversary from setting
• He must answer the question, if the degrading answer: things right
o Is the very fact in issue; or • The wide-open rule is easy to administer while the scope-of-direct rule is a
o Refers to a fact from which the fact in issue would be presumed troublesome and perhaps unworkable because of its imprecision
• BUT a witness must answer to the fact of his previous final conviction for an offense
o Except a youthful offender (see Child Witness Rule) Purpose
1. To bring out facts favorable to counsel’s client not established by the direct
SECTION 4: ORDER IN THE EXAMINATION OF AN INDIVIDUAL WITNESS testimony; and
The order in which the individual witness may be examined is as follows; 2. To enable counsel to impeach or to impair the credibility of the witness
(a) Direct examination by the proponent;
(b) Cross-examination by the opponent; Extent (As amended)
(c) Re-direct examination by the proponent; • GR: The cross-examiner is not confined to the matters stated by the witness in the
(d) Re-cross-examination by the opponent. direct examination; hence, has wide latitude in asking his questions.
o In other words, the cross-examiner may ask on any matter relevant
SECTION 5: DIRECT EXAMINATION o This is because the rule allows questions designed to test the accuracy and
Direct examination is the examination-in-chief of a witness by the party presenting him on truthfulness of the witness, his freedom from interest or bias, or the reverse,
the facts relevant to the issue. and to elicit all important facts bearing upon the issue
• XPN:
Direct examination o Unwilling or a hostile witness;
• It is actually a procedure for obtaining information from one’s own witness in an o Where the witness examines is an accused
orderly fashion
Justice Singh • The adverse party may question the witness on
• Shift from the American Rule, the Scope-of-Direct Rule, which limits cross- o Matters stated in his re-direct examination, and also on
examination to matters taken up in the direct examination or anything connected o Such matters as may be allowed by the court in its discretion
therewith, to the English Rule, or the Wide Open Rule, which permits cross on any
relevant matter. SECTION 9: RECALLING WITNESS
After the examination of a witness by both sides has been concluded, the witness cannot be
Death or absence of a witness recalled without leave of the court. The court will grant or withhold leave in its discretion, as
• Case: If the witness dies BEFORE his cross-examination is over, his testimony on the the interests of justice may require.
direct may be stricken out only with respect to the testimony not covered by the
cross-examination Recalling a witness
• The absence of the witness is NOT enough to warrant striking out his testimony for • If a witness has been examined by both sides, the witness CANNOT be recalled
failure to appear for further cross-examination where without leave of court
o The witness has already been sufficiently cross-examined, and • Recalling a witness is a matter of judicial discretion
o The matter on which the cross-examination is sought is not in controversy • In the exercise of its discretion, the court shall be guided by the interest of justice
• Case: If the witness was NOT cross-examined
o Because of causes attributed to the cross-examining party AND SECTION 10: LEADING AND MISLEADING QUESTIONS
o The witness had always made himself available for cross-examination, A question which suggests to the witness the answer which the examining party desires is a
o The direct testimony of the witness shall remain in the record and cannot be leading question. It is NOT allowed, except:
ordered stricken off because the cross-examiner is deemed to have waived (a) On cross examination;
the right to cross-examine the witness (b) On preliminary matters;
(c) When there is a difficulty is getting direct and intelligible answers from a witness
Tranquil Salvador who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute;
o Expanded the scope of cross-examination (d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an officer, director, or managing agent of a
SECTION 7: RE-DIRECT EXAMINATION; ITS PURPOSE AND EXTENT public or private corporation or of a partnership or association which is an adverse
After the cross-examination of the witness has been concluded, he or she may be re-examined party.
by the party calling him or her, to explain or supplement his or her answers given during the
cross-examination. A misleading question is one which assumes as true a fact not yet testified to by the witness,
• On re-direct-examination, questions on matters not dealt with during the cross- or contrary to that which he or she has previously stated. It is NOT allowed.
examination, may be allowed by the court in its discretion.
Leading questions
Purpose and extent • One that is framed in such a way that the question indicates to the witness the
1. Re-examine the same witness to explain or supplement his answers given during the answer desired by the party asking the question
cross-examination • Leading questions are NOT appropriate in direct and re-direct examinations
2. Elicit testimony to correct or repel any wrong impression or inferences that may have particularly when the witness is asked to testify about a major element of the cause
been created in the cross-examination of action or defense
3. It may also be an opportunity to rehabilitate a witness whose credibility has been o Leading questions are allowed in cross and re-cross examinations
damaged o In fact, leading questions are the types of questions that should be employed
4. In its discretion, the court may even allow questions on matters not touched in the in a cross-examination
cross-examination • Such questions enable the counsel to get the witness to agree with his client’s
version of the facts
SECTION 8: RE-CROSS EXAMINATION • Most lawyers will agree that a “why” question should not be asked in cross-
Upon the conclusion of the re-direct examination, the adverse party may re-cross-examine the examination
witness on matters stated in his or her re-direct examination, and also on such other matters o This kind of question allows a witness to explain his or her position, emphasize
as may be allowed by the court in its discretion. key points of harmful testimony and control the pace and scope of the
examination
Re-cross examination o It invites the witnesses to deliver an unwanted “lecture” in the courtroom
 o Short and leading questions will help control the witness A witness may be impeached by the party against whom he or she was called, (1) by
contradictory evidence, (2) by evidence that his or her general reputation for truth, honestly,
When leading questions allowed in a direct examination or integrity is bad, or (3) by evidence that he or she has made at other times statements
1. Preliminary matters; inconsistent with his or her present, testimony, but not by evidence of particular wrongful
2. Witness is ignorant, or a child of tender years, or is feeble-minded or a deaf mute acts, except that it may be shown by the examination of the witness, or the record of the
AND there is difficulty in getting direct and intelligible answers from such witness; judgment, that he or she has been convicted of an offense.
3. Hostile witness; or
4. Witness is an adverse party, or an officer, director, or managing agent of a Impeachment of a witness
corporation, partnership or association which is an adverse party • Impeachment is basically a technique employed usually as part of the cross-
examination to discredit a witness by attacking his credibility
Leading questions to a child witness • Destroying credibility is vital because it is linked with a witness’ ability and willingness
• The court may allow leading questions in ALL stages of examination of a child under to tell the truth
the condition that the same will further the interest of justice
• Modification of Sec. 10 (c) of the Rules of Court How to impeach a witness
• By contradictory evidence
Justice Singh: • By evidence that his general reputation for truth, honesty, or integrity is bad; or
• A child of tender years may be asked leading questions under Section 10(c), Rule 132 • By evidence that he has made at other times statements inconsistent with his
of the Rules of Court. present testimony
• Section 20 of the 2000 Rule on Examination of a Child Witness also provides that the
court may allow leading questions in all stages of examination of a child if the same When a witness cannot be impeached
will further the interests of justice. • A witness cannot be impeached by evidence of particular wrongful acts
• This rule was formulated to allow children to give reliable and complete evidence, o XPN: Evidence of his conviction of an offense as disclosed by his examination
minimize trauma to children, encourage them to testify in legal proceedings and or the record of the judgment
facilitate the ascertainment of truth. (People v. Ilogon) • An unwilling or hostile witness so declared by the court or the witness who is an
adverse party can be impeached by the party calling him BUT he cannot be
EXAMPLE REASON WHY LEADING PROPER QUESTION impeached by evidence of his bad character
Q: While the plaintiff and the Examiner obviously wants What have you
defendant were engaged in the witness to directly testify observed, if any, while Impeachment by contradictory evidence
the conversation on the date that money was delivered by the plaintiff and the • One basic rule in impeaching a witness through contradictory evidence is the
and time you mentioned, did the defendant to the plaintiff defendant were engaged observance of fairness
you see the defendant deliver in his presence in a conversation? o Fairness demands that the impeaching matter be raised in the cross-
P50,000.00 to the plaintiff? examination of the witness sought to be impeached by allowing him to admit
Q: While you were in the park It suggests the next event What happened, if any, or deny a matter to be used as the basis for impeachment by contradictory
with your children, the police which the witness should while you and your evidence
officers arrived to arrest you, is testify to children were in the • Normally, the basis of this mode of impeachment is a declaration made by the
that true? park? witness in his direct testimony
o The cross-examiner’s intention is to show to the court that there were
Misleading questions allegations made by the witness that do not correspond to the real facts of
• Assumes as true a fact not yet testified to by the witness, or contrary to that which the case
he has previously stated • This mode may also be used to contradict conclusions made by expert witnesses
• It is not allowed in ANY type of examination during their testimonies
o Usually, the adverse party may also call another expert to testify to a contrary
Q: You testified that you and the accused No previous testimony from the witness conclusion
were in a car bound for Baguio City. How that he was driving the car. The question • Ex. Witness A testifies that he saw the accused shoot the victim. But the defense has
fast were you driving? assumes a fact not yet in evidence. information that Witness A attended the wedding of Witness B. Thus, on cross,
Witness A answered that he was indeed present, and denied attending the wedding.
SECTION 11: IMPEACHMENT OF ADVERSE PARTY’S WITNESS
 Defense now has the chance to prove the contrary by a contradictory evidence by • SITUATION: The case is a criminal prosecution for robbery. The defense is presenting
calling Witness B or any other witness. its evidence-in-chief and calls its first witness to impeach the primary witness of the
prosecution. The defense counsel asks a series of questions to show specific
Impeachment by prior inconsistent statements instances of misconduct of the prosecution witness. Witness states that “accused
• Prior inconsistent statements are statements made by a witness on an earlier stole his wallet months ago, and accused stole his neighbor’s carabao”
occasion which contradict the statements he later made during the trial o Is this line of questioning objectionable? Certainly, it is. A witness cannot be
• In other words, they are statements that he has made at other times statements impeached by evidence of particular wrongful acts.
inconsistent with his present testimony (Sec. 14, Rule 132) o He can, nevertheless, be impeached as to his bad reputation for truth, honesty
• These inconsistent statements are admissible to impeach the credibility of the or integrity. In response to the question of counsel as to reputation, the
witness making them witness answers that “accused has bad reputation to be a liar.”
• Impeachment by a prior inconsistent statement is the most commonly used method § This line of questioning does not violate the rules on
because of its simplicity and the impact it makes when properly used impeachment.
§ This is not an impeachment by evidence of specific wrongful
Note: Under the 2019 Revised Rules of Evidence, “prior inconsistent statement under oath at a conduct which is barred, but an impeachment by evidence of bad
trial, hearing or other proceeding, or in a deposition” is admissible to impeach the credibility of reputation.
the witness-declarant. Although this may ordinarily qualify as hearsay evidence because it is an • There is, however, a particular wrongful act that is admissible under the same section
out-of-court statement, this is specifically provided in the new hearsay rule as “not hearsay.” – his prior conviction of an offense
o BUT SEE: Section 12 for qualifications.
Impeachment by showing bad reputation • This prior conviction is shown through either of two ways:
• When a witness testifies, he puts his credibility at issue because the weight of his o By his examination (i.e., cross-examination)
testimony depends upon his credibility o By presenting the record of his prior conviction
o One way to impair his credibility is by showing a not so pleasing reputation • Examining another witness to elicit from his lips the prior conviction of another
o Hence, the prevailing rule allows his impeachment by evidence that he has a witness is NOT the correct procedure, unless the witness is one who is competent
bad general reputation (like an official custodian of records) to present in court the record of conviction
• Evidence of bad reputation for the purpose of impeachment should refer ONLY to
the following specific aspects: (HIT) Justice Singh:
o For truth • Under a rule permitting the impeachment of an adverse witness, although the calling
o For honesty; or party does not vouch for the witness’ veracity, he is nonetheless bound by his
o For integrity testimony if it is not contradicted or remains unrebutted.
• Thus it would be improper for a witness to be impeached because of his reputation • A party who calls his adversary as a witness is, therefore, not bound by the latter’s
for being troublesome and abrasive testimony only in the sense that he may contradict him by introducing other
• But a witness may be impeached by the testimony of his neighbor who testifies that evidence to prove a state of facts contrary to what the witness testifies on.
such witness has a reputation for telling lies. Such neighbor may be cross-examined • A rule that provides that the party calling an adverse witness shall not be bound by
as to the biases he knows that the witness has. his testimony does not mean that such testimony may not be given its proper weight,
but merely that the calling party shall not be precluded from rebutting his testimony
No impeachment by evidence of bad character but by bad reputation or from impeaching him. (Gaw v. Chua)
CHARACTER REPUTATION
Made up of things an individual actually is What people think an individual is and what SECTION 12: IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME 54
and does they say about him For the purpose of impeaching a witness, evidence that he or she has been convicted by final
judgment of a crime shall be admitted if
No impeachment by evidence of particular wrongful acts (a) the crime was punishable by a penalty in excess of one year; OR
(b) the crime involved moral turpitude, regardless of the penalty.

54 . Sec. 12 is a new provision. The amendment provides that impeaching a witness through evidence of conviction by final judgment is admitted provided the penalty imposed is imprisonment of more than one year or the crime involved moral turpitude,
regardless of the penalty. If the conviction has been the subject of an amnesty or annulment of conviction, then evidence of prior conviction cannot be used
However, evidence of a conviction is not admissible if the conviction has been the subject of • By way of exception to the general rule, if the witness is unwilling or hostile, the party
o an amnesty or calling him may be ALLOWED by the court to impeach the witness
o annulment of conviction. • Whether or not a witness is hostile is addressed to the judicial evaluation and the
declaration shall be made ONLY if the court is satisfied that the witness:
Rationale for revision (Explanatory Notes of SC, 2019 Revised Rules on Evidence) o possesses an interest adverse to the party calling him or
• Instead of adopting the qualification under Rule 609 (a) (1) of the FRE allowing o there is adequate showing that the reluctance of the witness is unjustified,
impeachment “if the crime was punishable by death or imprisonment in excess of or
one year,” the Sub-Committee deleted “death” because of the abolition of death o that he misled the party into calling him as a witness
penalty in our jurisdiction.
• Instead of adopting the provision in Rule 609 (a) (2) of the FRE, allowing Impeaching own witness
impeachment if the crime “involved dishonesty or false statement, regardless of the • The unwilling or hostile witness so declared; or the witness who is an adverse party
punishment,” the Sub-Committee opted to substitute the qualification “(b) [if] the may be impeached by the party presenting him in all respects
crime involved moral turpitude, regardless of the penalty” considering that “moral o XPN: The witness may not be impeached by evidence of his bad character
turpitude” has a settled meaning in our law and conviction of such a crime has an • He may also be impeached and cross-examined by the adverse party
unquestionable bearing on honesty, veracity and integrity. o But such cross-examination must only be on the subject matter of his
• Amnesty or annulment of conviction absolves one from committing the crime examination-in-chief
altogether.
o The committee replaced the initial suggestion of absolute pardon because SECTION 14: HOW WITNESS IMPEACHED BY EVIDENCE OF INCONSISTENT STATEMENTS
absolute pardon does not erase conviction Before a witness can be impeached by evidence that he or she has made at other times
statements inconsistent with his or her present testimony, the statements
SECTION 13: PARTY MAY NOT IMPEACH HIS OWN WITNESS • must be related to him or her, with the circumstances of the times and places and
Except with respect to witnesses referred to in paragraphs (d) and (e) of Section 10 of this Rule, the persons present, and
the party producing a witness is not allowed to impeach his or her credibility. • he or she must be asked whether he or she made such statements, and if so,
allowed to explain them.
A witness may be considered as unwilling or hostile only if so declared by the court upon • If the statements be in writing they must be shown to the witness before any
adequate showing of his or her adverse interest, unjustified reluctance to testify, or his or her question is put to him or her concerning them.
having misled the party into calling him or her to the witness stand.
Impeachment by prior inconsistent statements
The unwilling or hostile witness so declared, or the witness who is an adverse party, may be • Effectively impeaching a witness by prior inconsistent statements requires laying the
impeached by the party presenting him or her in all respects as if he or she had been called by proper foundation for the impeachment (“laying the predicate”)
the adverse party, except by evidence of his or her bad character. • ELEMENTS:
• He or she may also be impeached and cross-examined by the adverse party, but such a. The alleged statements must be related to the witness including the
cross-examination must only be on the subject matter of his or her examination-in- circumstances of the times and places and the persons present
chief. § 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
Guideposts in impeaching a witness them if he admits making those statements
• GR: The impeachment of a witness is to be done by the party AGAINST whom the § Note: when he admits the prior inconsistent statement, the next
witness is called thing to do is to ask him to explain
o XPN: If the witness is unwilling or hostile; or the witness is an adverse party • It happens sometimes that the prior inconsistent statement is in writing
or is an officer, director, or managing agent of a corporation, partnership or o The process of laying the predicate is fundamentally the same as when the
association which is an adverse party prior statement is oral
• It is also improper for the party calling the witness to present evidence of the good o But if the statement be in writing, it must be shown to the witness before any
character of his OWN witness question is put to him concerning it
o The same is allowed only if the character of the witness has been impeached • The underlying purpose for laying the predicate is to allow the witness to admit or
(Note: Remember this is incorporated now in Character Evidence) deny the prior statement and afford him an opportunity to explain the same.
• Non-compliance with the foundational elements for this mode of impeachment
Unwilling or hostile witness will be a ground for an objection based on "improper impeachment."
 o Over a timely objection, extrinsic evidence of a prior inconsistent statement qualify under this exemption because they are allowed to testify to opinions or
without the required foundation is not admissible inferences based on facts or data made known at the hearing
• Ex. The case is one for murder. The witness was interviewed by the police ten • The last proposed exemption relating to “a person authorized by statute to be
minutes after the incident. In her signed statement, she claimed that she did not present” is intended to allow for possible future exemptions that may be granted by
actually see the accused fire the shot that killed the victim, but in her direct law.
examination, she testified that she saw him fire once at the victim. • The express prohibition on witnesses from conversing with one another “directly or
o Counsel will now ask that the statement be marked as an exhibit including the through intermediaries” is simply designed to emphasize that an indirect
name and signature of witness. Then counsel will call the attention of the circumvention of the rule is not allowed; allowing witnesses to converse with one
witness to the relevant paragraph of her signed statement. The reading of the another “through intermediaries would undercut the order of sequestration and
prior inconsistent statement must be verbatim, not a mere summary, as: In thwart its purpose”
paragraph 13 of this “Sinumpaang Salaysay,” you stated, and I quote…”
Exclusion and separation of witnesses (As amended)
[Section 15. Evidence of good character of witness. — Evidence of the good character of a • The judge may exclude a witness who, at the time of exclusion, is not under
witness is not admissible until such character has been impeached.] examination so that he may not hear the testimony of other witnesses
• The judge may cause the witnesses to be kept separate and be prevented form
Tranquil conversing with one another, directly or through intermediaries, until all shall have
o Incorporated in Section 55, Rule 130 been examined

SECTION 15: EXCLUSION AND SEPARATION OF WITNESSES When exclusion not allowed (As amended)
The court, motu proprio or upon motion, shall order witnesses excluded so that they cannot 1. A party who is a natural person
hear the testimony of other witnesses. 55 2. A duly designated representative of a juridical entity which is a party to the case
• This rule does not authorize exclusion of (a) a party who is a natural person, (b) a duly 3. A party whose presence is essential to the presentation of the party’s cause
designated representative of a juridical entity which is a party to the case, (c) a person 4. A person authorized by a statute to be present
whose presence is essential to the presentation of the party’s cause, or (d) a person
authorized by a statute to be present. 56 Tranquil Salvador
o Witnesses may be excluded or separated
The court may also cause witnesses to be kept separate and to be prevented from conversing
with one another, directly or through intermediaries, until all shall have been examined. 57 SECTION 16. WHEN WITNESS MAY REFER TO MEMORANDUM
A witness may be allowed to refresh his or her memory respecting a fact, by anything written
Rationale for revisions (Explanatory Notes of SC, 2019 Revised Rules on Evidence) or recorded by himself or under his or her direction at the time when the fact occurred, or
• The rationale in exempting from exclusion a party who is a natural person is based immediately thereafter, or at any other time when the fact was fresh in his or her memory and
upon considerations of fundamental fairness, and in criminal cases, exclusion would knew that the same was correctly written or recorded;
raise constitutional issues relating to confrontation and effective assistance of • but in such case the writing or record must be produced and may be inspected by
counsel the adverse party, who may, if he or she chooses, cross examine the witness upon it,
• The proposed exemption of a “duly designated representative of a judicial entity and may read it in evidence.
which is a party to the case” is designated to extend parity of treatment to parties • So, also, a witness may testify from such writing or record, though he or she retain
who are not natural persons no recollection of the particular facts, if he or she is able to swear that the writing
• The proposed third open-ended exemption relates to “a person whose presence is or record correctly stated the transaction when made;
essential to the presentation of the party’s cause.” This is, of course, addressed to o but such evidence must be received with caution.
the discretion of the judge
• Examples are the agent of a party who handled the transaction or one who When the witness may refer to a memorandum
committed the act causing injury for which recovery is sought. Experts may likewise • During his testimony, in order to refresh his memory, a witness may refer to a

55 . The amendment in the first sentence of Sec. 15 allows the judge to exclude a witness, motu proprio or upon motion
56 . The second sentence of Sec. 15 is a new provision. The amendment provides the grounds for not authorizing the exclusion of a witness who is: (a) a natural person, (b) a person duly designated representative of a juridical entity party to the case, (c)
one whose presence is essential to the presentation of the party’s cause, or (d) a person authorized by statute to be present at the trial or hearing.
57 . The second paragraph of Sec. 15 allows the court to keep separate the witnesses and prevent them to converse with one another, directly or through intermediaries, until all shall have been examined
 o Memorandum or to
o Anything written or recorded by himself, or Rationale for Revisions (Explanatory Notes of SC, 2019 Rules on Evidence)
o Written or recorded by someone acting under his direction • The inclusion of Section 19 (c) is to implement treaties or conventions to which the
• Such memorandum should be written Philippines is a party.
o At the time the fact occurred or • An example is the Convention Abolishing the Requirement of Legalization for Foreign
o Immediately thereafter or Public Documents ("Apostille Convention")
o At any time when the event or fact was fresh in his memory o effective on May 14, 2019.
• It is necessary too that the witness affirm that the fact was correctly written or • In substance, the Convention abolishes the requirement of consularization
recorded (diplomatic or consular legalization) for foreign public documents.
• Also the memorandum must be produced and may be inspected by the adverse
party and the latter may cross-examine the witness upon it Article I of the Convention provides as follows:
• The witness may testify from the memorandum, writing, or record, although he has • "The present Convention shall apply to public documents which have been
no more recollection of the facts written therein executed in the territory of one Contracting State and which have to be produced
o as long as he swears that the memorandum, writing, or record correctly in the territory of another Contracting State. For the purposes of the present
stated the fact or transaction when the recording was made Convention, the following are deemed to be public documents:
o This type of evidence MUST, however, be received with caution a) documents emanating from an authority or an official connected with
the courts or tribunals of the State, including those emanating from a
SECTION 17: WHEN PART OF TRANSACTION, WRITING, OR RECORD GIVEN IN EVIDENCE, THE public prosecutor, a clerk of a court or a process-server ("huissier de
REMAINDER, THE REMAINDER ADMISSIBLE justice");
When part of an act, declaration, conversation, writing or record is given in evidence by one b) administrative documents;
party, the whole of the same subject may be inquired into by the other, and c) notarial acts;
• when a detached act, declaration, conversation, writing or record is given in d) official certificates which are placed on documents signed by persons in
evidence, any other act, declaration, conversation, writing or record necessary to their private capacity, such as official certificates recording the
its understanding may also be given in evidence. registration of a document or the fact, that it was in existence on a certain
date and official and notarial authentications of signatures.
SECTION 18: RIGHT TO RESPECT WRITING SHOWN TO WITNESS • However, the present Convention shall not apply: .
Whenever a writing is shown to a witness, it may be inspected by the adverse party. a) to documents executed by diplomatic or consular agents;
b) to administrative documents dealing directly with commercial or customs
B. AUTHENTICATION AND PROOF OF DOCUMENTS operations."

Section 19. Classes of Documents. — For the purpose of their presentation in evidence, Article 2 states:
documents are either public or private. • Each Contracting State shall exempt from legalization documents to which the
present Convention applies and which have to be produced in its territory.
Public documents are: • For the purposes of the present Convention, legalization means only the
(a) The written official acts, or records of the official acts of the sovereign authority, formality by which the diplomatic or consular agents of the country in
official bodies and tribunals, and public officers, whether of the Philippines, or of a which the document has to be produced certify:
foreign country; § the authenticity of the signature,
(b) Documents acknowledged before a notary public except last wills and testaments; § the capacity in which the person signing the document has acted
and and,
(c) Documents that are considered public documents under treaties and conventions § where appropriate, the identity of the seal or stamp which it
which are in force between the Philippines and the country of source; 58 and bears.
(d) Public records, kept in the Philippines, of private documents required by law to be • (Not from Apostille Convention anymore:) The Department of Foreign Affairs (DFA)
entered therein. will no longer issue Authentication Certificates from 14 May 2019. Instead, the DFA
will affix an Apostille to documents for use abroad as proof of authentication for
All other writings are private. use in Apostille-contracting parties.

58 . The amendment in the second paragraph of Sec. 19, involves the insertion of item (c) wherein treaties and conventions which are in force between the Philippines and the country of source being considered are also considered as public documents
 • After authentication by the DFA, there is no more need for authentication Importance of knowing whether a document is public or private; proof of notarial documents
(legalization) by the concerned Foreign Embassies or Consulates General • The nature of documents as either public or private determines how they may be
if the country or territory of destination of the authenticated document is presented as evidence in court.
already a member of the Apostille Convention. o A public document is admissible in court without further proof of its due
• Public documents executed in Apostille-contracting countries and execution and authenticity.
territories (except for Austria, Finland, Germany and Greece) to be used in o In contrast, a private document, because it lacks the official or sovereign
the Philippines no longer have to be authenticated by the Philippine character of a public document, or the solemnities prescribed by law,
Embassy or Consulate General once Apostillized (Source: dfa.gov.ph; requires authentication in the manner allowed by law or the Rules of Court
added this for easy understanding). before its acceptance as evidence in court
• Documents consisting of entries in public records made in the performance of a duty
Tranquil Salvador by a public officer are prima facie evidence of the facts stated therein
o Apostille Convention took into effect May 14, 2019 o Thus, the chemistry report of a public officer, showing a positive result of
§ Thus, it applies to international conventions the Philippines is a signatory a paraffin test, is a public document.
§ Art. 1 of the Convention, documents from courts, clerks, process servers, § It is admissible in evidence without further proof of its due
notarial documents, those signed in private capacity execution and genuineness.
§ The person who made the report, need not be presented in
Authentication and Proof of Documents (Rule 132) court to identify, describe and testify how the report was
• Unless a document is considered self-authenticating, it will not be admitted in conducted.
evidence without a prior authentication. o Also, the picture seat plan, prepared by officers of the Civil Service
• Operates on the implied legal presumption that objects and documents presented Commission in implementing a government examination, is a public
in evidence are, as a rule, counterfeit. document.
o An evidence presented in court is not presumed authentic. • Before the admission of a private document in evidence that is offered as authentic,
o It is, therefore, incumbent upon the proponent of the evidence to prove its due execution and authenticity must be proved (Sec. 20, Rule 132).
its authenticity.
§ Except: public documents. Public documents are: (as amended)
• Not only objects but also documents introduced in evidence need to be a. The written official acts, or records of the official acts of the sovereign authority,
authenticated. official bodies and tribunals, and public officers, whether of the Philippines, or of a
o It is the preliminary step in showing the admissibility of an evidence. foreign country;
b. Documents acknowledged before a notary public except last wills and testaments;
Concept of a document and
• The Philippine Supreme Court has defined a document as a "deed, instrument or c. Documents that are considered public documents under treaties and conventions
other duly authorized paper by which something is proved, evidenced or set forth. which are in force between the Philippines and the country of source
o Note: 2019 Revised Codal now includes photographs and sound recordings, d. Public records, kept in the Philippines, of private documents required by law to be
among others, as documentary evidence. entered therein.
o However, for documents to be considered as documentary evidence, it • All other writings are private.
must be "offered as proof of their contents" (Sec. 2, Rule 130). • The written official acts and records of the official acts of the sovereign authority do
o If the document is not offered for that purpose, the document is a mere not refer only to those of the Philippines.
object evidence as when the purpose is merely to prove its existence. o They also refer to those of a foreign country.
§ Hence, not every document is to be received as a documentary • Documents acknowledged before a notary public are public documents
evidence. o except last wills and testaments which are private documents even if
notarized.
Public and private documents o Assumed to be included in this class of public documents are those
• Documents may either be public or private. This classification is for the purpose of acknowledged before an officer, other than a notary public, authorized to
their presentation in evidence. administer oaths.
o SEC.19. Classes of documents. – For the purpose of their presentation in • The inclusion of Section 19 (c) by the Revised Rules is to implement treaties or
evidence, documents are either public or private. conventions to which the Philippines is a party.
 o An example is the Convention Abolishing the Requirement of Legalization Section 20. Proof of private document. — Before any private document offered as authentic
for Foreign Public Documents ("Apostille Convention") effective on May is received in evidence, its due execution and authenticity must be proved by any of the
14, 2019. following means:
o In substance, the Convention abolishes the requirement of consularization (a) By anyone who saw the document executed or written;
(diplomatic or consular legalization) for foreign public documents. (b) By evidence of the genuineness of the signature or handwriting of the maker; or
o Note: for more annotations on Apostille Convention, see Rationale for (c) By other evidence showing its due execution and authenticity. 59
Revisions under Section 19.
• In the case of a public record of a private document required by law to be entered in Any other private document need only be identified as that which it is claimed to be.
a public record, the public document does not refer to the private document itself
o but the public record of that private document. Rationale for Revisions (Explanatory Notes of SC, 2019 Rules on Evidence)
• The addition of the words "by any of the following means" is intended merely to
Last wills and testaments indicate that there are a number of ways of proving due execution and authenticity
• Last wills and testaments must undergo an authentication process even if they are of a private document to the satisfaction of the judge.
notarized as required by Art. 806 of the Civil Code. • This is akin to Sec. 2, Rule 5 of the REE on allowing the authentication of electronic
o The Rules of Court (Sec. 19[b], Rule 132), while declaring that the term evidence by “other evidence showing its integrity and reliability to the satisfaction
"public document" includes one acknowledged before a notary public, of the judge.”
nevertheless, expressly excludes last wills and testaments. • Justice Regalado cited the following settled modes of authenticating a private
• Besides, substantive law provides that no will shall pass either real or personal document under American jurisprudence:
property unless proved and allowed in the proper court (Art. 838, Civil Code). o Doctrine of self-authentication, that is, where the facts, in the writing could
o The same substantive rule is echoed in Sec. 1 of Rule 75. only have been known by the writer, and
o The rule of authentication by the adverse party, that is, where the reply of
Registration of contracts the adverse party refers to and affirms the sending to him and his receipt of
• Where a contract is required by law to be registered, the same must be, as a rule, the letter in question, a copy of which the proponent is offering as evidence
in a public instrument.
o Certain contracts must be in writing or in a public instrument in order to Proof of a private document (as amended)
be valid. • The Rules do not give a specific definition of a private document except by providing
• Examples: that " ... All other writings are private".
o A donation of an immovable (Art. 749, Civil Code); o Private documents are those that do not fall under any of the
o A donation of a movable with a value exceeding five thousand pesos (Art. enumerations in Sec. 19, Rule 132 of the Rules of Court
748, ibid.); • Sec. 20 of Rule 132 provides: Before any private document offered as authentic is
o A partnership where immovable property or real rights are contributed received in evidence, its due execution and authenticity must be proved by any of
(Art. 1771, ibid.). the following means:
a. By anyone who saw the document executed or written;
Church registries b. By evidence of the genuineness of the signature or handwriting of the
• Church registries of births, marriages, and deaths made subsequent to the maker; or
promulgation of General Orders No. 68, promulgated on December 18, 1889, and c. By other evidence showing its due execution and authenticity.
the passage of Act No. 190, enacted on August 7, 1901, are no longer public writings, o Any other private document need only be Identified as that which it is
nor are they kept by duly authorized public officials. claimed to be.
o They are private writings and their authenticity must, therefore, be
proved, as are all other private writings in accordance with the Rules of When authentication of a private document is required (as amended)
Evidence. • Where the private document is offered in evidence as authentic, there is a need to
prove its due execution and authenticity.

59 . The amendment in Sec.20 pertains to a third means to prove the due execution and authenticity of a private document, i.e., by “other evidence showing its due execution and authenticity”, aside from by anyone who saw it being executed or proving
the genuineness of the signature or handwriting of the maker
 o It is considered offered as authentic when it is offered to prove that the
document was truly executed by the person purported to have made the When authentication of private documents is not required
same • The requirement of authentication of a private document is excused in some
o When the witness wants to show that the deed was indeed executed by instances, specifically:
his brother, the process of authentication required by Sec. 20 must be a. when the document is an ancient one within the context of Sec. 21, Rule
complied with 132 of the Rules of Court;
• If the document or writing is not offered as authentic, it only needs to be identified b. when the genuineness and authenticity of an actionable document have
as that which it is claimed to be not been specifically denied under oath by the adverse party under Sec. 8
o As when the only purpose is for the offeror to show that a certain piece of of Rule 8 of the Rules of Court;
document exists. c. when the genuineness and authenticity of the document have been
o When a witness says: "I found this document in the drawer of my table," admitted under Sec. 4 of Rule 129; or
the document only needs identification and not authentication. d. when the document is not being offered as authentic as implied from Sec.
• Sec. 20 recognizes three ways of proving the due execution and genuineness of a 20, Rule 132 of the Rules of Court, which requires authentication only
private instrument. when the document is offered as 'authentic'
o One way is to rely on the personal knowledge of a witness.
§ the witness attests to the genuineness of the document because Ancient documents
it was executed or signed in his presence, he personally • A private document is considered ancient when it is:
witnessed the execution or writing of the document. o more than 30 years old,
o The second mode does not require that the document be executed in the o is produced from a custody in which it would naturally be found if
presence of the witness. genuine, and
§ Here, the witness testifies or shows evidence that the signature o is unblemished by any alterations or circumstances of suspicion (Sec. 21,
or handwriting of the maker is genuine Rule 132)
§ See Section 22 for ways to prove handwriting • When a document is ancient pursuant to the descriptions in Sec. 21 of Rule 132,
o The addition of the third mode, "by any of the following means," is evidence of its authenticity need not be given, i.e., there is no need to prove its
intended merely to indicate that there are a number of other ways of genuineness and due execution.
proving due execution and authenticity of a private document to the o This means that there is no necessity for observance of the authentication
satisfaction of the judge, like: process under Sec. 20 such as the testimony of a person who saw the
§ Doctrine of self-authentication, that is, where the facts, in the document executed or by one who will show evidence of the genuineness
writing could only have been known by the writer, and of the handwriting of the maker of the document.
§ The rule of authentication by the adverse party, that is, where o It must, however, be established first that the document is ancient and that
the reply of the adverse party refers to and affirms the sending it has the characteristics of a document so provided under Sec. 21.
to him and his receipt of the letter in question, a copy of which
the proponent is offering as evidence (Justice Regalado in Section 22. How genuineness of handwriting proved. — The handwriting of a person may be
Explanatory Notes of SC, 2019 Revised Rules on Evidence) proved by any witness who believes it to be the handwriting of such person because he has
• Authentication of a private document does not require a seal. There shall be no seen the person write, or has seen writing purporting to be his upon which the witness has
difference between sealed and unsealed private documents insofar as their acted or been charged, and has thus acquired knowledge of the handwriting of such person.
admissibility as evidence is concerned. Evidence respecting the handwriting may also be given by a comparison, made by the witness
or the court, with writings admitted or treated as genuine by the party against whom the
Authentication of both the original and a photocopy of the original evidence is offered, or proved to be genuine to the satisfaction of the judge.
• While it is a basic rule of evidence that the original copy prevails over a mere
photocopy, there is no harm if in a case, both the original and a photocopy thereof How to prove genuineness of a handwriting
are authenticated, identified and offered in evidence by the party proponent • Sec. 22 of Rule 132 does not require expert testimony to prove the handwriting of
a person.
Section 21. When evidence of authenticity of private document not necessary. — Where a • It may be proven by any witness who believes it to be the handwriting of a person
private document is more than thirty years old, is produced from the custody in which it would because:
naturally be found if genuine, and is unblemished by any alterations or circumstances of a. he has seen the person write; or
suspicion, no other evidence of its authenticity need be given.
 b. he has seen writing purporting to be his upon which the witness has acted or her deputy, and accompanied, if the record is not kept in the Philippines, with a certificate
or been charged, and has thus acquired knowledge of the handwriting of that such officer has the custody.
such person; or
c. by a comparison made by the witness or the court, with writings: If the office in which the record is kept is in a foreign country, which is a contracting party to a
o admitted or treated as genuine by the party against whom the treaty or convention to which the Philippines is also a party, or considered a public document
document is offered, or under such treaty or convention pursuant to paragraph (c) of Section 19 hereof, the certificate
o proved to be genuine to the satisfaction of the judge or its equivalent shall be in the form prescribed by such treaty or convention subject to
reciprocity granted to public documents originating from the Philippines. 60
Section 23. Public documents as evidence. — Documents consisting of entries in public
records made in the performance of a duty by a public officer are prima facie evidence of the For documents originating from a foreign country which is not a contracting party to a treaty
facts therein stated. All other public documents are evidence, even against a third person, of or convention referred to in the next preceding sentence, the certificate may be made by a
the fact which gave rise to their execution and of the date of the latter. secretary of the embassy or legation, consul general, consul, vice-consul, or consular agent or
by any officer in the foreign service of the Philippines stationed in the foreign country in
Public documents as evidence which the record is kept, and authenticated by the seal of his office. 61
• Under Sec. 23 of Rule 132, when a public officer, in the performance of his duty,
makes an entry in the public record, the document of such entry is deemed prima A document that is accompanied by a certificate or its equivalent may be presented in
facie evidence of the fact stated in the entry. evidence without further proof, the certificate or its equivalent being prima facie evidence of
• However, in the case of other public documents, (not entries in public records) the the due execution and genuineness of the document involved. The certificate shall not be
facts stated therein only constitute evidence of: required when a treaty or convention between a foreign country and the Philippines has
o the fact that gave rise to the execution of such documents and abolished the requirement, or has exempted the document itself from this formality. 62
o of the date of the execution of the same. (Note: Codal broken down in Annotations)
o "SEC. 23 … All other public documents are evidence, even against a third
person, of the fact which gave rise to their execution and of the date of Rationale for Revisions (Explanatory Notes of SC, 2019 Rules on Evidence)
the latter." • The amendments are envisioned to distinguish between public documents (e.g.,
• Case: SC considered the entries made by a government forensic chemist in a official records) that emanate from countries that are signatories or parties to
chemistry report as prima facie evidence of the facts stated therein. treaties or conventions to which the PH is a party and countries that are not
• Case: The CENRO and Regional Technical Director, FMS-DENR, certifications do not signatories or parties to such treaties or conventions.
fall within the class of public documents contemplated in the first sentence of • For example, the Apostille Convention provides:
Section 23 of Rule 132. o Article 4: The certificate referred to in the first paragraph of Article 3 shall be placed
o The certifications do not reflect “entries in public records made in the on the document itself or on an "allonge"; it shall be in the form of the model
annexed to the present Convention.
performance of a duty by a public officer,” such as entries made by the Civil
o It may, however, be drawn up in the official language of the authority which issues
Registrar in the books of registries, or by a ship captain in the ship’s it. The standard terms appearing therein may be in a second language also. The title
logbook. "Apostille (Convention de La Haye du 5octobre 1961)" shall be in the French
o The certifications are not the certified copies or authenticated language.
reproductions of original official records in the legal custody of a o Article 5: The certificate shall be issued at the request of the person who has signed
government office. The certifications are not even records of public the document or of any bearer.
documents (Note: not in Riano). o When properly filled in, it will certify the authenticity of the signature, the capacity
in which the person signing the document has acted and, where appropriate, the
Section 24. Proof of official record. — The record of public documents referred to in paragraph identity of the seal or stamp which the document bears.
o The signature, seal and stamp on the certificate are exempt from all certification.
(a) of Section 19, when admissible for any purpose, may be evidenced by an official publication
thereof or by a copy attested by the officer having the legal custody of the record, or by his

60 . The amendment in the second paragraph of Sec. 24 provides that the certificate or its equivalent needed with respect to a record kept in a foreign country, which is a contracting party to a treaty or convention to which the Philippines is also a party or
the record is considered a public document under such treaty or convention, shall be in the form prescribed under such treaty or convention, subject to reciprocity granted to public documents originating from the Philippines
61 . The preliminary sentence in the third paragraph of Sec. 24 refers to documents originating from a foreign country which is not a contracting to a treaty or convention involving the Philippines, in which case the certificate may be made by a secretary
of the embassy or legation, consul general, consul, vice-consul or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, authenticated by the seal of th e office
62 . The fourth paragraph of Sec. 24 is a new provision. The amendment pertains to a document already accompanied by a certificate or its equivalent which needs no more proof, since the certificate or its equivalent is prima facie evidence of its due
execution and genuineness. Also, a certificate is no longer required if the treaty or convention between the Philippines and a foreign country has abolished such requirement or exempted the document itself from such formality.
 • The requirement of reciprocity is necessary as there might be contracting parties § Important: Read Articles 1-5 of the Apostille Convention above
that do not accord the same treatment to public documents originating from the as outlined in Rationale for Revisions.
Philippines § Also, see Annex of Apostille Convention for the form of the
• The last sentence is envisioned to cover a situation where the treaty or convention Certificate
does not require the certificate or equivalent document. o The certificate shall not be required when a treaty or convention between
• For example, Art. 3 of the Apostle Convention provides: a foreign country and the Philippines:
o The only formality that may be required in order to certify the authenticity of the § has abolished the requirement, or
signature, the capacity in which the person signing the document has acted and, § has exempted the document itself from this formality
where appropriate, the identity of the seal or stamp which it bears, is the addition
• For documents originating from a foreign country which is not a contracting party to
of the certificate described in Article 4, issued by the competent authority of the
a treaty or convention referred to in the next preceding sentence
State from which the document emanates.
o However, the formality mentioned in the preceding paragraph cannot be required o the certificate may be made by a secretary of the embassy or legation,
when either the laws, regulations, or practice in force in the State where the consul general, consul, vice-consul, or consular agent or by any officer in
document is produced or an agreement between two or more Contracting States the foreign service of the Philippines stationed in the foreign country in
have abolished or simplified it, or exempt the document itself from legalization which the record is kept
• DFA: In countries and territories which are not Apostille-contracting parties, the § and authenticated by the seal of his office.
previous process of authentication applies. • A document that is accompanied by a certificate or its equivalent may be presented
o Documents still have to be authenticated by the Philippine Embassy or in evidence without further proof, the certificate or its equivalent being prima facie
Consulate General before they can be used in the Philippines. Also, there evidence of the due execution and genuineness of the document involved.
is still a need for authentication (legalization) by the concerned Foreign • Note: basically, to prove official records, check first where the record is kept.
Embassies or Consulates General if the country of destination of the o If the record is in PH, you need (official publication) OR (copy of the
authenticated document is not yet a member of the Apostille Convention document + attestation).
(Source: dfa.gov.ph; for easy understanding). o If the record is in a foreign country, you need (official publication) OR
(copy + attestation + certificate)
Tranquil Salvador § To know the correct form of this certificate, check if the such
o Official Record with Certificate (Prima facie evidence of the due execution) foreign country is a member of the Apostille Convention. 63
• If a member, follow the form stated in the Apostille
Proof of official record (as amended) Convention
• While a public document does not require the authentication imposed upon a o See Arts. 4-5, also see Annex of the Apostille
private document, there is a necessity for showing to the court that indeed a record Convention for the Certificate form.
of the official acts of official bodies, tribunals or of public officers exists. • If it is not a member, the certificate should be made
• The record of a public document may be evidenced by: by a Sec. of embassy, consul, etc. + authenticated by
a. An official publication thereof; or seal.
b. A copy of the document attested by the officer having legal custody of the o So if you present a copy of an official record,
record or by the attestation of his deputy found in a non-Apostille country, you would
§ if the record is not kept in the Philippines, the attestation must need:
be accompanied with a certificate that such officer has the o (copy + attestation + certificate made by
custody; consul, etc. + authentication by seal)
• If the office in which the record is kept is: in a foreign country, which is a contracting
party to a treaty or convention to which the Philippines is also a party, or considered Section 25. What attestation of copy must state. — Whenever a copy of a document or record
a public document under such treaty or convention pursuant to paragraph (c) of is attested for the purpose of evidence, the attestation must state, in substance, that the copy
Section 19 hereof, is a correct copy of the original, or a specific part thereof, as the case may be. The attestation
o the certificate or its equivalent shall be in the form prescribed by such must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a
treaty or convention subject to reciprocity granted to public documents court having a seal, under the seal of such court.
originating from the Philippines.
Attestation of a copy

63 . Most countries are members. For full list: https://www.hcch.net/en/instruments/conventions/status-table/?cid=41

 • The attestation referred to in the preceding number must state, in substance, that
the copy is a correct copy of the original, or a specific part thereof, as the case may Section 27. Public record of a private document. — An authorized public record of a private
be. document may be proved by the original record, or by a copy thereof, attested by the legal
• The attestation must be under: custodian of the record, with an appropriate certificate that such officer has the custody.
o the official seal of the attesting officer, if there be any, or
o if he be the clerk of a court having a seal, under the seal of such court Public record of a private document
• A public record of a private document may be proved by any of the following:
Proof of foreign laws; doctrine of processual presumption (presumed-identity) 1. By the original record; or
• To prove a foreign law, the party invoking it must present a copy thereof and comply 2. By a copy thereof, attested by the legal custodian of the record, with an
with Secs. 24 and 25 of Rule 132 appropriate certificate that such officer has the custody
• Where a foreign law is not pleaded or, even if pleaded, is not proven, the § Copy + Attestation + Certificate
presumption is that the foreign law is the same as Philippine law in accordance with
the doctrine of processual presumption Section 28. Proof of lack of record. — A written statement signed by an officer having the
• Case: a special power of attorney executed and acknowledged before a notary public custody of an official record or by his deputy that after diligent search no record or entry of a
of the state of Washington, USA, authorizing the son of the principal to file in the specified tenor is found to exist in the records of his office, accompanied by a certificate as
Philippines a suit does not comply with Sec. 24 of the RoC. above provided, is admissible as evidence that the records of his office contain no such record
o SC: a notary public in a foreign country is not one of those who can issue or entry.
the certificate mentioned in Sec. 24 of Rule 132 of the Rules of Court. Not
being duly established in evidence, the special power of attorney cannot Proof of lack of record
be used by the son to file a suit in representation of his father • A litigation does not always involve evidence of the existence of a record.
o The failure to have the special power of attorney authenticated, according Sometimes, the issue centers on the absence of an official record. How then may
to the Court, is not a mere technicality but a question of jurisdiction. the absence of a record be proven?
o Proof of lack of record of a document consists of a written statement
Foreign judgments; divorces signed by the officer having custody of an official record or by his deputy.
• Before a foreign judgment is given presumptive evidentiary value, the document § The written statement must contain the following matters:
must first be presented and admitted in evidence. a. there has been a diligent search of the record;
o A divorce obtained abroad is proven by the divorce decree itself. b. that despite the diligent search, no record of entry of a
§ The best evidence of a judgment is the judgment itself. specified tenor is found to exist in the records of his
§ The decree purports to be a written act or record of an act of an office.
official body or tribunal of a foreign country. § The written statement must be accompanied by a certificate
• Under Sees. 24 and 25 of Rule 132, on the other hand, a writing or document may that such officer has the custody of official records.
be proven as a public or official record of a foreign country by either (1) an official
publication or (2) a copy thereof attested by the officer having legal custody of the Section 29. How judicial record impeached. — Any judicial record may be impeached by
document. evidence of: (a) want of jurisdiction in the court or judicial officer, (b) collusion between the
o If the record is not kept in the Philippines, such copy must be (a) parties, or (c) fraud in the party offering the record, in respect to the proceedings.
accompanied by a certificate issued by the proper diplomatic or consular
officer in the Philippine foreign service stationed in the foreign country in Impeachment of judicial record
which the record is kept. • A judicial record refers to the record of judicial proceedings.
o Note: Remember the amendments in Section 24. o It does not only include official entries or files or the official acts of a
judicial officer
Section 26. Irremovability of public record. — Any public record, an official copy of which is o but also the judgment of the court
admissible in evidence, must not be removed from the office in which it is kept, except upon • Sec. 29 of Rule 132 authorizes the impeachment of any judicial record if there be
order of a court where the inspection of the record is essential to the just determination of a evidence of the existence of any of the following grounds:
pending case. a. lack of jurisdiction in the court or judicial officer;
b. collusion between the parties; or
• The certificate and attestation are required because of the general rule on the c. fraud in the party offering the record, in respect to the proceedings.
"irremovability of public records" embodied in Sec. 26 of Rule 132.
Section 30. Proof of notarial documents. — Every instrument duly acknowledged or proved • Because the rule provides that a document written in an unofficial language shall not
and certified as provided by law, may be presented in evidence without further proof, the be admitted as evidence, it must be accompanied by a translation into English or
certificate of acknowledgment being prima facie evidence of the execution of the instrument Filipino.
or document involved. o To avoid interruption of court proceedings, attorneys are required to have
such translation prepared before trial.
Proof of notarial documents
• The notarial seal converts a document from a private to a public document C. OFFER AND OBJECTION
• A notarized document is entitled to full faith and credit upon its face.
o Courts, administrative agencies and the public at large must be able to rely SECTION 34: OFFER OF EVIDENCE
upon the acknowledgment executed by a notary public The court shall consider no evidence which has not been formally offered. The purpose for
• The above rule presupposes that the document was notarized by a person duly which the evidence is offered must be specified.
authorized to perform notarial functions.
o Without such authority, the private document does not become a public Importance of offer of evidence
document. • An evidence must be formally offered. Under the Rules of Court, the court shall
consider no evidence which has not been formally offered
Section 31. Alteration in document, how to explain. — The party producing a document as • The offer of evidence is necessary because it is the duty of the court to rest its
genuine which has been altered and appears to have been altered after its execution, in a findings of fact and judgment only and strictly upon the evidence offered by the
part material to the question in dispute, must account for the alteration. He may show that parties
the alteration was made by another, without his concurrence, or was made with the consent • The appellate court will have difficulty reviewing documents not previously
of the parties affected by it, or was otherwise properly or innocent made, or that the alteration scrutinized by the court below.
did not change the meaning or language of the instrument. If he fails to do that, the document o The pertinent provisions of the Revised Rules of Court, on the inclusion on
shall not be admissible in evidence. appeal of documentary evidence or exhibits in the records, cannot be
stretched as to include such pleadings or documents not offered at the
Explaining alterations in a document hearing of the case
• The party producing the document as genuine but which bears alterations after its
execution has the duty to account for any alteration found in a document purported Marking of a document; not a formal offer
to be genuine. • A document, or any article for that matter, is not evidence when it is simply marked
• For such purpose, he may show any of the following: for identification
a. that the alteration was made by another without his concurrence; or o It must be formally offered, and the opposing counsel given an opportunity
b. that the alteration was made with the consent of the parties affected by to object to it or cross-examine the witness called upon to prove or identify
it; it
c. that the alteration was otherwise properly or innocently made; or ·
d. that the alteration did not in any way change the meaning or language of IDENTIFICATION OF DOCUMENTARY EVID FORMER OFFER AS AN EXHIBIT
the instrument. Done in the course of trial and accompanied Done only when the party rests its case
• Failure to do any of the above will make the document inadmissible in evidence. by the marking of the evidence as an exhibit

Section 32. Seal. — There shall be no difference between sealed and unsealed private When formal offer of evidence is not required
documents insofar as their admissibility as evidence is concerned. • A formal offer of evidence is not required in certain cases:
o In a summary proceeding, because it is a proceeding where there is no full-
Section 33. Documentary evidence in an unofficial language. — Documents written in an blown trial
unofficial language shall not be admitted as evidence, unless accompanied with a translation o Documents judicially admitted or taken judicial notice of;
into English or Filipino. To avoid interruption of proceedings, parties or their attorneys are o Documents, affidavits, and depositions used in rendering a summary
directed to have such translation prepared before trial. judgment;
o Documents or affidavits used in deciding quasi-judicial or administrative
Proof of documents in an unofficial language cases
 o Lost objects previously marked, identified, described in the record, and
testified to by witnesses who had been subjects of cross-examination in When evidence is to be offered
respect to said objects • The offer is made ORALLY
• In the interest of substantial justice, the Supreme Court has, on occasion, allowed o TESTIMONY OF THE WITNESS: At the time the witness is called to testify
the admission of evidence not formally offered, provided that two essential o DOCUMENTARY AND OBJECT EVIDENCE: After the presentation of a
conditions must concur: party’s testimonial evidence
o The evidence must have been duly identified by testimony duly recorded; • The Supreme Court ruled that a party is not deemed to have waived objection to
and admissibility of documents by his failure to object to the same when they were
o The same must have been incorporated in the records of the case marked, identified and then introduced during the trial.
o This is because objection to documentary evidence must be made at the
When evidence is offered by petitioner but not by respondent time it is formally offered (which is done when the party rests its case) and
• In one case, certain delivery receipts and sales invoices did not form part of not earlier
respondent's formal offer of evidence but the same formed part of petitioner's Justice Singh:
formal offer of evidence. • The trial court is bound to consider only the testimonial evidence presented and
• Petitioner insisted that since the said documents did not form part of the evidence exclude the documents not offered.
formally offered by respondent, the trial court and the Court of Appeals had no legal • Documents which may have been identified and marked as exhibits during pre-trial
basis to award interest and damages in his favor. or trial but which were not formally offered in evidence cannot in any manner be
• The Supreme Court held that no error could be ascribed to the lower courts because treated as evidence.
the delivery receipts and sales invoices were, nevertheless, formally offered by o Neither can such unrecognized proof be assigned any evidentiary weight
petitioner in evidence. Hence, the documents may be considered by the courts and value.
below • It must be stressed that there is a significant distinction between identification of
documentary evidence and its formal offer.
How an offer of evidence is made o The former is done in the course of the pre-trial, and trial is accompanied
• When a party makes a formal offer of his evidence, he must state: by the marking of the evidence as an exhibit;
o the nature or substance of the evidence, and o while the latter is done only when the party rests its case.
o the specific purpose for which the evidence is offered o The mere fact that a particular document is identified and marked as an
• The court shall consider the evidence solely for the purpose for which it is offered, exhibit does not mean that it has already been offered as part of the
not for any other purpose evidence.
• The rule on formal offer of evidence is not a trivial matter.
SECTION 35: WHEN TO MAKE OFFER64 o Failure to make a formal offer within a considerable period of time shall be
All evidence must be offered orally. deemed a waiver to submit it.
o Consequently, any evidence that has not been offered shall be excluded
The offer of the testimony of a witness in evidence must be made at the time the witness is and rejected. (Heirs of Pasag v. Spouses Parocha)
called to testify. 65
Tranquil Salvador
The offer of documentary and object evidence shall be made after the presentation of a party’s o It should now be made oral
testimonial evidence.66 o If failure to make offer, immediately make an offer of testimonial evidence
(jurisprudence)
Rationale for revisions (Explanatory Notes of SC, 2019 Revised Rules on Evidence)
• The Rules Committee removed written offer altogether, in accordance with the offer SECTION 36: OBJECTION
of evidence under the Revised Guidelines for Continuous Trial of Criminal Cases, Objection to offer of evidence must be made orally immediately after the offer is made.
which states that “the offer of evidence, the comment/objection thereto, and the
court ruling thereto shall be made orally”

64 . The amendment in Sec. 35, for one, requires all evidence to be offered ORALLY.
65 . Also, the amendment gives emphasis on when testimonial evidence should be offered, which is at the time the witness is called to testify.
66 . As to documentary or object evidence, the offer should be made after presentation of a party’s testimonial evidence.
Objection to the testimony of a witness for lack of a formal offer must be made as soon as the • The rule, however, does not impose a general or an absolute ban on general
witness begins to testify. objections
• Objection to a question propounded in the course of the oral examination of a o There is no compelling need to specify the ground, if the ground for
witness must be made as soon as the grounds therefor become reasonably apparent. exclusion should have been obvious to the judge or to counsel
o There are cases where the incompetency of the evidence is so palpable
The grounds for objections must be specified. that a mere general objection is deemed sufficient, and where the portion
of the evidence objected to is clearly pointed out and its illegality is
Rationale for revisions (Explanatory Notes of SC, 2019 Revised Rules on Evidence) apparent on its face, then the objection must be allowed
• This amendment incorporates the ruling in Catuira v. Court of Appeals, a case where
the prosecution failed to offer in evidence the testimony of a complaining witness Examples of general and specific objections
upon calling her to testify and that the offer was made only after her testimony and GENERAL SPECIFIC
after the accused had moved that the testimony be stricken off the record. Evidence is • Question calls for a hearsay
• The Supreme Court held that the procedural error or defect was waived when • incompetent; answer
accused did not object to the testimony when it was not first offered upon calling • Inadmissible; • Witness cannot testify on a
the complainant. • Incompetent, Irrelevant, and privileged communication
Immaterial • The question calls for a conclusion
Objections; purposes of objections • Improper • The question is beyond the scope
1. To keep out inadmissible evidence that would cause harm to a client's cause. The of the direct examination (Note: in
rules on evidence are not self-operating and, hence, must be invoked by way of an the 2019 Rules, scope of cross-
objection; examination is not limited now to
2. To protect the record, i.e., to present the issue of inadmissibility of the offered direct examination)
evidence in a way that if the trial court rules erroneously, the error can be relied upon • Impeachment is proper
as a ground for a future appeal;
3. To protect a witness from being embarrassed on the stand or from being harassed by Formal and substantive objections
the adverse counsel; FORMAL SUBSTANTIVE
4. To expose the adversary's unfair tactics like his consistently asking obviously leading One directed against the alleged defect in One made and directed against the very
questions; the formulation of the question nature of the evidence, i.e., it is inadmissible
5. To give the trial court an opportunity to correct its own errors and, at the same time, either because it is irrelevant or
warn the court that a ruling adverse to the objector may supply a reason to invoke a incompetent or both
higher court's appellate jurisdiction; and
Ex. Ambiguous questions; leading and Ex. Parol; not the best evidence (original
6. To avoid a waiver of the inadmissibility of an otherwise inadmissible evidence.
misleading questions; repetitious questions; document as amended); hearsay; privileged
multiple questions; argumentative communication; not authenticated;
General and specific objections
questions opinion; res inter alios acta
• An objection must point out the specific ground of the objection and, if it does not
do so, no error is committed in overruling it Objections must be timely (as amended)
o An objector must be explicit as to the legal ground he invokes. He cannot
• Aside from the requirement that an objection must state the specific ground relied
simply manifest that he is interposing an objection.
upon, it is also necessary that the objection be timely
o He has to precisely state the exclusionary rule that would justify his
• In order to be timely, therefore, the objection must be made at the earliest
opposition to the proffered evidence
opportunity
• Rule 132 does not tell us how specific an objection must be.
o Objection to the evidence must be made immediately after the offer is
o Practical reasons, however, tell us that the objection must be specific
made;
enough to adequately inform the court the rule on evidence or of
o Objection to the testimony of a witness for lack of a formal offer must be
substantive law that authorizes the exclusion of the evidence.
made as soon as the witness begins to testify.
• The rule is that a specific objection is always preferred over a general objection o An objection to a question propounded in the course of the oral
o The rule on specificity is dictated largely by the need to allow the court to
examination of the witness shall be made as soon as the grounds therefor
intelligently rule on the objection and give the other party an opportunity
shall become reasonably apparent
to withdraw the evidence or correct an error in his presentation
 • The rules, therefore, make the offer of evidence the frame of reference for a timely objection, it being sufficient for the adverse party to record his or her continuing objection to
objection. such class of questions.
o Hence, it is to be assumed that an objection to the evidence before it is
offered is premature and no adverse inference may be had against a party Repetition of objections
who does not object to the evidence before it is offered. • It shall not be necessary to repeat an objection when it becomes reasonably
• Should a witness answer the question before the adverse party had the apparent, while the witness is being examined,
opportunity to voice fully its objection to the same, and such objection is found to o that he is asked questions which are of the same class as those to which
be meritorious, the court shall sustain the objection and order the answer given to an objection has already been made,
be stricken off the record o whether such objection was sustained or overruled.
• Instead of repeating the objection, it is sufficient for the objection to be recorded as
Waiver of objections; belated objections a 'continuing objection' to such class of objectionable questions
• It is a rule of evidence that any objection against the admission of any piece of
evidence must be made at the proper time, and that, if not so made, it will be SECTION 38: RULING
understood to have been waived. The ruling of the court must be given immediately after the objection is made, unless the
o The proper time to make a protest or an objection is when, from the court desires to take a reasonable time to inform itself on the question presented; but the
question addressed to the witness, or from the answer thereto, or from ruling shall always be made during the trial and at such time as will give the party against
presentation of the proof, the inadmissibility of the evidence is, or may be, whom it is made an opportunity to meet the situation presented by the ruling.
inferred
• Ex. Even assuming ex gratia argumenti that certain documents are inadmissible for The reason for sustaining or overruling an objection need not be stated. However, if the
being hearsay, the same may be admitted on account of failure to object thereto objection is based on two or more grounds, a ruling sustaining the objection on one or some
• Where a continuing objection had been interposed on prohibited testimony, the of them must specify the ground or grounds relied upon.
objection is deemed waived where the objecting counsel cross-examined the
witness on the very matters subject of the prohibition Rulings on objections
• The ruling of the court must be given immediately after the objection is made except
Extent of waiver for failure to object when the court desires to take a reasonable time to inform itself on the question
• The evidence becomes admissible but the waiver involves no admission that the presented.
evidence possesses the weight attributed to it by the offering party. o However, the court must give its ruling:
• A waiver should not be construed as an admission that the evidence is credible. It • during the trial and
does not also mean that the non-objecting party waives his right to present • at such time as will give a party an opportunity to meet the
controverting evidence. situation presented by the ruling
o It only involves waiver of objection to two matters, namely, the relevance • In Lopez v. Valdez, The Supreme Court, speaking through Justice Moreland, held that
and the competence of the evidence (requisites for admissibility). the words, "the objection will be taken into consideration," is prejudicial to the
• The rule of waiver by failure to object applies also to the admission of documentary interests of a litigant since it deprives the party against whom the ruling was made
evidence. an opportunity to meet the situation presented by the ruling. The Court considered
o Failure to object waives an objection that there was an irregularity in the the act of the trial court as reversible error having resulted in serious prejudice to
taking of an affidavit or deposition, that the document is not what it the substantial rights of the objecting party.
purports to be on its face, or that it is not relevant. • In People v. Singh, the Supreme Court ruled: "If as a result of the failure of the trial
o Ex. Introducing a note in evidence without objection dispenses with the court to promptly rule upon a motion to strike a confession from the record, the
necessity of proving the signatures on the note, or of its execution accused has been deprived of the opportunity to present evidence in rebuttal of such
• Although hearsay evidence may be admitted without objection by the adverse confession, that fact should be brought to the attention of the trial court through the
party's counsel, it is, nonetheless, without probative value. appropriate motions."
• When a counsel asks a question and the other objects, the court rules on the
SECTION 37: WHEN REPETITION OF OBJECTION UNNECESSARY objection by either sustaining or overruling the objection
When it becomes reasonably apparent in the course of the examination of a witness that the o SUSTAINED: The judge considers the question as improper and the witness
question being propounded are of the same class as those to which objection has been made, will not be allowed to answer the question; i.e., exclusion of evidence
whether such objection was sustained or overruled, it shall not be necessary to repeat the o OVERRULED: The question is proper and the witness will be allowed to
answer
 • The ruling of the court sustaining or overruling the objection need not be stated
except if the objection is based on two or more grounds Tranquil Salvador
o In such a case, a ruling sustaining the objection must specify the ground or o Make a motion to strike out if witness answered before objection
grounds relied upon o If there is no question, move to strike out

SECTION 39: STRIKING OUT ANSWER SECTION 40: TENDER OF EXCLUDED EVIDENCE
Should a witness answer the question If documents or things offered in evidence are excluded by the court, the offeror may have
o before the adverse party had the opportunity to voice fully its objection to the the same attached to or made part of the record.
same, or • If the evidence excluded is oral, the offeror may state for the record
• where a question is not objectionable, but the answer is not responsive, or o the name and other personal circumstances of the witness and
• where a witness testifies without a question being posed or testifies beyond limits o the substance of the proposed testimony.
set by the court, or
• when the witness does a narration instead of answering the question, and Reason for tender of excluded evidence (offer of proof)
such objection is found to be meritorious, the court shall sustain the objection and order such 1. To allow the court to know the nature of the testimony or the documentary evidence
answer, testimony or narration to be stricken off the record. 67 and convince the trial judge to permit the evidence or testimony
2. Even if he is not convinced to reverse his earlier ruling, the tender is made to create
On proper motion, the court may also order the striking out of answers which are and preserve a record for appeal
incompetent, irrelevant or otherwise improper.
How tender is done
Striking out an answer or testimony (as amended) • Where the evidence involved is documentary or object evidence, the tender is made
• A motion to strike may be availed of in the following: by having the document or object attached to or made part of the record
o When the answer is premature o It is a common practice, in almost all jurisdictions, for the offering counsel
o When the answer of the witness is irrelevant, incompetent, or otherwise to produce, describe, identify the object or document, and in case of the
improper, latter, to state the contents of the document that is sought to be admitted
o When the question is not objectionable but answer is unresponsive; where the substance of the same is not apparent on its face.
o Where a witness testifies without a question being posed or testifies • Reading the substance of the document is an accepted way of
beyond limits set by the court stating its contents for the record in states which recognize a
o When the witness does a narration instead of answering the question tender.
o When the witness becomes unavailable for cross-examination through no • A disclosure of the contents of the document is necessary in
fault of the cross-examining party; or order to aid the court in determining its competence and
o When the testimony was allowed conditionally and the condition for its relevance.
admissibility was not fulfilled o The next step is to state the purpose for which the object or document
• Consider this example where the grounds for objection are not manifested by the sought to be attached is offered, and to ask that it be marked for
question. The witness is examined by the prosecutor. The case is one for homicide identification and have it attached to the record.
and the information says the crime was committed in Town A. The witness is • If the evidence excluded is testimonial, the offeror may state for the record the name
presented to testify that he knows that it was indeed the accused who killed the and other personal circumstances of the witness and the substance of the proposed
victim must be made as soon as he is called to the stand and before his examination testimony
begins, provided his disqualification is then known o There are two traditional methods of making the tender
• An objection to a witness’ disqualification in general must be made as soon as he is • The first is where the counsel tells the court what the proposed
called to the stand and before his examination begins, provided his disqualification testimony will be. This is the method prescribed in the Rules of
is then known Court.
o A husband accused of robbery, for instance, can object the moment his • The second method is by using the question and answer form.
wife is called by the prosecution to testify against him without his consent o The first method has the advantage of brevity and efficiency but it does
on the basis of Sec. 22 or Sec. 24(a) of Rule 130. not create as clear a record as the second method.

67 . The amendment in Sec. 39 provides that (a) should a witness answer the question before being objected to, or (b) where a question is not objectionable but the answer is not responsive, or (c) where a witness testifies without questions being posed
or testifies beyond the limits set by the court, or (d) when the witness does a narration instead of answering the question, the court shall sustain the objection and order such answer, testimony or narration to be stricken off the record
 o Whichever method is to be used lies in the discretion of the trial court. • All the facts and circumstances of the case,
• The offer must make reference to the details of the excluded testimony or excluded • the witnesses' manner of testifying,
document. • their intelligence,
• An erroneous way of making an offer of excluded testimony is to make a mere • their means and opportunity of knowing the facts to which there are testifying,
general offer of proof (tender of excluded evidence) without producing the witness • the nature of the facts to which they testify,
or stating the evidence whereby the fact in issue is to be proved • the probability or improbability of their testimony,
• their interest or want of interest, and also
Objections to tender of excluded evidence • their personal credibility so far as the same may legitimately appear upon the trial.
• The rules are silent on the issue but there is no cogent reason to disallow the • The court may also consider the number of witnesses, though the preponderance is
objection not necessarily with the greater number.
• If the document tendered is not described or identified, its substance stated in vague
and general terms or when the purpose for which it is offered is not declared, then Preponderance of evidence
the evidence has to be objected to. • Applies in civil cases
• If the testimony tendered is in the form of a conclusion and, thus, fails to disclose • Preponderance of evidence is the weight credit, and value of the aggregate
sufficient information to enable the court and the other party to determine its evidence on either side
admissibility, the same may, likewise, be the target of an objection. o is usually considered to be synonymous with the term “greater weight
• To have a contrary rule and confer immunity from objection to such type of evidence of the evidence” or “greater weight of the credible evidence.”
would be to grant a favored status to evidence initially excluded by the trial court. o means probability of the truth
• Preponderance of evidence means that the evidence adduced by one side is, as
Formal offer of evidence and formal offer of proof a whole, superior to or has greater weight than that of the other.
FORMAL OFFER OF EVIDENCE FORMAL OFFER OF PROOF o It is evidence which is more convincing to the court as worthy of
Refers either to the offer of the testimony of The process by which a proponent of an belief than that which is offered in opposition thereto
a witness prior to the latter's testimony, or excluded evidence tenders the same. • In determining whether or not there is preponderance of evidence, the court
the offer of the documentary and object may consider the factors in Sec. 1, Rule 133, Rules of Court
evidence after a party has presented his If what has been excluded is testimonial
testimonial evidence. Loosely, it has been evidence, the tender is made by stating for Section 2. Proof beyond reasonable doubt. — In a criminal case, the accused is entitled to an
referred to as formal offer of exhibits where the record the name and other personal acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt
object and documentary evidences are to be circumstances of the proposed witness and does not mean such a degree of proof, excluding possibility of error, produces absolute
offered. the substance of his proposed testimony. certainty. Moral certainty only is required, or that degree of proof which produces conviction
in an unprejudiced mind.
If the evidence excluded is documentary or
of things, the offer of proof is made by Proof beyond reasonable doubt
having the same attached to or made a part • In criminal cases, the burden of proof as to the guilt of the accused lies with the
of the record prosecution because of the presumption that the accused is presumed innocent
until the contrary is proven
Additional evidence after case is rested o The State must prove beyond reasonable doubt, all the elements of
• The Rules of Court does not prohibit a party from requesting the court to allow it to the crime charged and the complicity or participation of the accused
present additional evidence even after it has rested its case • Proof beyond reasonable doubt is the degree of proof that, after investigation
of the whole record, produces moral certainty in an unprejudiced mind of the
accused's culpability
RULE 133 o does not mean such a degree of proof that excludes all possibility of
Weight and Sufficiency of Evidence error. Only moral certainty is required.
o Sec. 2 of Rule 133 provides for the quantum of evidence required in
Section 1. Preponderance of evidence, how determined. — In civil cases, the party having criminal cases
burden of proof must establish his case by a preponderance of evidence. In determining where • Corollary thereto, the evidence of the prosecution must stand on its own
the preponderance or superior weight of evidence on the issues involved lies, the court may strength and not rely on the weakness of the evidence of the defense.
consider
Section 3. Extrajudicial confession, not sufficient ground for conviction. — An extrajudicial Extrajudicial confession vis-à-vis Custodial Investigation
confession made by an accused, shall not be sufficient ground for conviction, unless • Any extrajudicial confession made be a person arrested, detained, or under
corroborated by evidence of corpus delicti. custodial investigation shall be
o In writing and
JUDICIAL CONFESSION EXTRAJUDICIAL CONFESSION o Signed by such person in the presence of his counsel, or
May sustain a conviction, even without Only if corroborated with evidence of o In the counsel’s absence
proof of corpus delicti independent of the corpus delicti (Note: this is only for purposes § upon a valid waiver, and
judicial confession of conviction, not admission.) § In the presence of any of the parents, older brothers and sisters,
his spouse, the municipal mayor, the municipal judge, district
Corpus delicti school supervisor, or priest or minister of the gospel as chosen
• is the “body of the crime” or the offense by him;
• It means the actual commission of the crime and someone criminally responsible o Otherwise, such extrajudicial confession shall be inadmissible as evidence
therefor in any proceeding
• It is the substance of the crime; the fact that a crime has actually been committed • The above is not applicable if before custodial investigation
o Ex. If the accused talks to a person in a private meeting with, for instance,
Elements of Corpus delicti a municipal mayor spontaneously, fully and voluntarily confessing to his
1. Proof of the occurrence of a certain event commission of a crime, the constitutional requirements in a custodial
o i.e. man has died; or building has been burned investigation do not apply
2. Some person’s criminal responsibility for the act • Admissions under custodial investigation without the assistance of counsel are
barred as evidence
Proof • A suspect’s [extrajudicial] confession, whether verbal or non-verbal, when taken
• May be proved by circumstantial evidence but such proof must be convincing and without the assistance of counsel or without a valid waiver of such assistance
compatible with the nature of the case regardless of the absence of such coercion, or the fact that it had been voluntarily
• Zapanta v. People: the Court has ruled that even a single witness’ uncorroborated given, is inadmissible in evidence, even if such confession were gospel truth
testimony, if credible, may suffice to prove the corpus delicti and warrant a
conviction for the offense charged Section 4. Circumstantial evidence, when sufficient. — Circumstantial evidence is sufficient
for conviction if:
Examples of Corpus delicti
(a) There is more than one circumstance;
Narcotics The rule seeks to settle definitively whether the object evidence subjected (b) The facts from which the inferences are derived are proven; and
(illegal to laboratory examination and presented in court is the same object (c) The combination of all the circumstances is such as to produce a conviction beyond
possession of allegedly seized from the accused reasonable doubt.
drugs)
Theft Corpus delicti has two elements: (1) properly was lost by the owner; and Inferences cannot be based on other inferences. 68
(2) it was lost by felonious taking.
Direct and circumstantial evidence
May be proven by testimonial evidence and whatever documentary
evidence is on record Direct Evidence Circumstantial or Indirect Evidence
Illegal The accused’s lack of license or permit to possess or carry the firearm, as proves a fact without the need to make an evidence which indirectly proves a fact in
possession of possession itself is not prohibited by law inference from another fact issue through an inference which the fact
firearms finder draws from the evidence established
Murder or It is not necessary to recover the body or show where it can be found. When the court does not have to make an When the evidence is circumstantial, a fact
Homicide inference from one fact to arrive at a is established by making an inference from
It is enough that the death and the criminal agency causing it be proven conclusion, the evidence is direct. a previously established fact. In other
words, in this type of evidence, the court

68 . The amendment in the second paragraph of Sec. 4, which is a new provision, stresses that inferences cannot be based on other inferences.
 uses a fact from which an assumption is Cumulative Evidence and Corroborative Evidence
drawn. Cumulative Evidence Corroborative Evidence
Examples: Examples: Evidence of the same kind and character as Evidence that is supplementary to that
• the testimony of a prosecution • when the fingerprints of the accused that already given which tends to prove the already given tending to strengthen or
witness claiming that he personally are found in a crime scene of murder, same proposition confirm it. It is additional evidence of a
saw the accused when the latter drew such prints constitute circumstantial different character to the same fact or
and fired his pistol at the victim, evidence that he was in the same point.
without the latter's provocation scene. For example, when a witness testifies that Examples:
• when a witness, in a prosecution for • the testimony of the victim that he he saw the event testified to and two other • the findings of the crime laboratory
arson, testifies that he was only a few dreads the mere presence of the witnesses testify having seen the same that the gun bears only the
feet away, behind a bush, when he accused is direct evidence that the event which the first witness claimed he fingerprints of the accused
saw the accused set the nipa hut of statement was made. However, it is saw, the subsequent testimonies constitute corroborates the testimony of W.
the offended party on fire. also circumstantial evidence to show cumulative evidence. • Evidence by a handwriting expert,
• When a witness affirms that the bus that this fear could have prevented who did not witness the act, that the
driver rammed a car on the opposite the victim from attacking the accused signature is indeed that of Mr. X
lane, and that he saw what happened without provocation corroborates the testimony of a
because he was seated as a passenger witness
right behind the driver Corroborative testimony is not always required.
• the original of a deed of sale is a direct • SC: the testimony of a single prosecution witness, where credible and positive, is
evidence of the terms of the sufficient to prove beyond reasonable doubt the guilt of the accused. There is no law
agreement of the parties which requires that the testimony of a single witness has to be corroborated, except
where expressly mandated in determining the value and credibility of evidence.
Conviction by circumstantial evidence Witnesses are to be weighed, not numbered
• Even in the absence of direct evidence, conviction can be had if the established • Under the Rule on Examination of a Child Witness, corroboration shall not be
circumstances constitute an unbroken chain, consistent with each other and to the required of a testimony of a child. His testimony, if credible by itself, shall be sufficient
hypotheses that the accused is guilty, to the exclusion of all other hypothesis that to support a finding of fact, conclusion or judgment subject to the standard of proof
he is not. required in criminal and non-criminal cases (Sec. 22, Rule on Examination of a Child
o The rules on evidence allow a trial court to rely on circumstantial evidence Witness)
to support its conclusion of guilt.
• Circumstantial evidence is the rule of evidence that applies when no witness saw Sec. 5. Weight to be given opinion of expert witness, how determined. - In any case where
the commission of a crime. the opinion of an expert witness is received in evidence, the court has a wide latitude of
• In a criminal case, circumstantial evidence may be sufficient for conviction provided discretion in determining the weight to be given to such opinion, and for that purpose may
the following requisites concur: consider the following:69
o There is more than one circumstance; (a) Whether the opinion is based upon sufficient facts or data;
o The facts from which the inferences are derived are proven; and (b) Whether it is the product of reliable principles and methods;
o The combination of all the circumstances is such as to produce a conviction (c) Whether the witness has applied the principles and methods reliably to the facts of
beyond reasonable doubt the case; and
• The above circumstances must constitute an unbroken chain that inexorably leads (d) Such other factors as the court may deem helpful to make such determination 70
to one fair conclusion: the accused committed the crime to the exclusion of all others
• In the appreciation of circumstantial evidence, the rule is that the circumstances Rationale for revision (Explanatory Notes of SC, 2019 Revised Rules on Evidence)
must be proved, and not presumed. • J. Maambong pointed out the general conditions for the admissibility of the opinion
o Inferences cannot be based on other inferences. of an expert witness under Rule 702 of the FRE, in response to Daubert v. Merrell
Pharmaceuticals, Inc. to wit: (1) the testimony is sufficiently based upon reliable facts

69 . Sec. 5 is a new provision. The amendment provides, among others, that the court has a wide latitude of discretion in determining the weight to be given to the opinion of an expert witness
70 . Also, the court, in exercising such discretion, may consider the following: (a) whether the opinion is based on sufficient facts or data; (b) whether the opinion is the product of reliable principles and methods; (c) whether the witness has applied the
principles and methods reliably to the facts of the case; and (d) such other helpful factors
 or date, (2) the testimony is the product of reliable principles and methods, and (3) o Dismissal of the criminal case does not foreclose administrative action
the witness has applied the principles and methods reliably to the facts of the case involving the same facts
• The Sub-Committee decided to insert this provision, providing how the court shall
determine the weight to be given to the opinion of an expert witness that is received Clear and convincing evidence
in evidence, adopting for the purpose, mutatis mutandis, the abovementioned • Evidence is clear and convincing if it produces in the mind of the trier of fact a firm
belief or conviction as to allegations sought to be established.
Tranquil Salvador o It is intermediate, being more than preponderance, but not to the extent
o Based on the case of Daubert v. Merrell Pharmaceuticals of such certainty as is required beyond reasonable doubt as in criminal
o Factors to consider cases (Black's Law Dictionary)
§ Should be based on sufficient facts • The Court, in Government of Hongkong Special Administrative Region v. Olalia, Jr.
§ There is a reliable method said:
§ Application of principles and methods reliably to the facts of the case o An extradition proceeding being sui generis, the standard of proof required
§ Such other facts helpful in granting or denying bail can neither be the proof beyond reasonable
o Listing should be helpful than definitive doubt in criminal cases nor the standard of proof of preponderance of
evidence in civil cases.
Section 6. Substantial evidence. — In cases filed before administrative or quasi-judicial o In his separate opinion in Purganan, then Associate Justice, now Chief
bodies, a fact may be deemed established if it is supported by substantial evidence, or that Justice Reynato S. Puno, proposed that a new standard which he termed
amount of relevant evidence which a reasonable mind might accept as adequate to justify a 'clear and convincing evidence' should be used in granting bail in
conclusion. extradition cases.
o According to him, this standard should be lower than proof beyond
Substantial evidence reasonable doubt but higher than preponderance of evidence. The
• Substantial evidence refers to such relevant evidence which a reasonable mind might potential extraditee must prove by 'clear and convincing evidence' that he
accept as adequate to support a conclusion. is not a flight risk and will abide with all the orders and processes of the
o understood to be more than just a scintilla or such amount of relevant extradition court.
evidence which a reasonable mind might accept as adequate to justify a
conclusion Summary of Evidentiary Values (not in Riano)
• In administrative cases or quasi-judicial proceedings, the quantum of evidence Rank Evidentiary Value Applicability Definition
required is that of substantial evidence. 1st; Proof beyond Criminal cases That degree of proof, which, excluding
o It does not require evidence that is overwhelming or even preponderant. Hardest reasonable doubt the possibility of error, produces moral
• Applicable in: to prove certainty
o Cases in NLRC like claims for workmen's compensation 2nd Clear and Bail in produces in the mind of the trier of fact
§ However, the employee has the burden to present substantial convincing extradition cases, a firm belief or conviction as to
among others
evidence or such relevant evidence which a reasonable mind evidence allegations sought to be established
might accept as adequate to justify a conclusion, showing a 3rd Preponderance of Civil Cases evidence which is more convincing to
reasonable connection between the conditions of his work and Evidence the court as worthy of belief than that
his illness, or that the risk of contracting the same was increased which is offered in opposition thereto
by his working conditions. 4th; Substantial Administrative such amount of relevant evidence which
o In agrarian cases, all that is required is mere substantial evidence. easiest evidence and quasi- a reasonable mind might accept as
• In a petition for a writ of amparo, the parties shall establish their claims by to prove judicial Cases adequate to support a conclusion
substantial evidence (Sec. 17, The Rule on the Writ of Amparo)
Evidentiary weight of electronic evidence !
Effect on the criminal case of failure to prove administrative liability • In assessing the evidentiary weight of electronic evidence, certain factors may be
• Administrative cases are independent from criminal actions for the same act or considered, like:
omission. Thus, an absolution from a criminal charge is not a bar to an administrative o The reliability of the manner in which it was generated, stored or
prosecution, or vice versa. communicated;
o Criminal and administrative proceedings may involve similar operative o The reliability of the manner in which its originator was identified;
facts; but each requires a different quantum of evidence. o The integrity of the information and communication system;
 o The familiarity of the witness or the person who made the entry with the • If such may prevent failure or delay of justice, Court may make appropriate order to
communication and information system; take deposition
o The nature and quality of the information which went into the o Deposition shall be admissible in evidence in any action subsequently
communication and information system; and brought involving the same subject matter
o Other factors which the court may consider. (Sec. 1, Rule 7, Rules on
Electronic Evidence). Section 2. Contents of petition. — The petition shall be entitled in the name of the petitioner
• All matters relating to the admissibility and evidentiary weight of an electronic and shall show:
document may be established by an affidavit stating facts of direct personal (a) that the petitioner expects to be a party to an action in a court of the Philippines but
knowledge of the affiant or based on authentic records. is presently unable to bring it or cause it to be brought;
o The affidavit must affirmatively show the competence of the affiant to (b) the subject matter of the expected action and his or her interest therein;
testify on the matters contained therein (Sec. 1, Rule 9, Rules on Electronic (c) the facts which he or she desires to establish by the proposed testimony and his or
Evidence). her reasons for desiring to perpetuate it;
o The affiant shall be made to affirm the contents of the affidavit in open (d) the names or a description of the persons he or she expects will be adverse parties
court and may be cross-examined as a matter of right by the adverse party and their addresses so far as known; and
(Sec. 2, Rule 9, Rules on Electronic Evidence). (e) the names and addresses of the persons to be examined and the substance of the
testimony which he or she expects to elicit from each, and shall ask for an order
Section 7. Power of the court to stop further evidence. — The court may stop the introduction authorizing the petitioner to take the depositions of the persons to be examined
of further testimony upon any particular point when the evidence upon it is already so full named in the petition for the purpose of perpetuating their testimony.
that more witnesses to the same point cannot be reasonably expected to be additionally
persuasive. But this power should be exercised with caution. Section 3. Notice and service. — The petitioner shall thereafter serve a notice upon each
person named in the petition as an expected adverse party, together with a copy of a petition,
Section 8. Evidence on motion. — When a motion is based on facts not appearing of record stating that the petitioner will apply to the court, at a time and place named therein, for the
the court may hear the matter on affidavits or depositions presented by the respective parties, order described in the petition. At least twenty (20) days before the date of hearing the notice
but the court may direct that the matter be heard wholly or partly on oral testimony or shall be served in the manner provided for service of summons.
depositions.
Section 4. Order of examination. — If the court is satisfied that the perpetuation of the
RULE 134 testimony may prevent a failure or delay of justice, it shall make an order designating or
Perpetuation of Testimony describing the persons whose deposition may be taken and specifying the subject matter of
the examination, and whether the depositions shall be taken upon oral examination or written
Section 1. Petition. — A person who desires to perpetuate interrogatories. The depositions may then be taken in accordance with Rule 24 before the
• his or her own testimony or hearing.
• that of another person
o regarding any matter that may be cognizable in any court of the Section 5. Reference to court. — For the purpose of applying Rule 24 to depositions for
Philippines, perpetuating testimony, each reference therein to the court in which the action is pending
o may file a verified petition in the court of the province of the residence of shall be deemed to refer to the court in which the petition for such deposition was filed.
any expected adverse party.
Section 6. Use of deposition. — If a deposition to perpetuate testimony is taken under this
Formatting Note: Annotations below taken from Notes on Civil Procedure (Riano) rule, or if, although not so taken, it would be admissible in evidence, it may be used in any
action involving the same subject matter subsequently brought in accordance with the
Depositions before action provisions of Sections 4 and 5 of Rule 24.
• Availed of when a person desires to perpetuate his own testimony or that of another
person regarding any matter that may be cognizable in any court of the Philippines Section 7. Depositions pending appeal. — If an appeal has been taken from a judgment of
the Regional Trial Court or before the taking of an appeal if the time therefor has not expired,
Perpetuation of testimony before action the Regional Trial Court in which the judgment was rendered may allow the taking of
• Done by filing a verified petition in the place of the residence of any expected depositions of witnesses to perpetuate their testimony for use in the event of further
adverse party proceedings in the said court.
• Notices shall be sent in accordance with the Rules
 • In such case the party who desires to perpetuate the testimony may make a motion
in the said Regional Trial Court for leave to take the depositions, upon the same
notice and service thereof as if the action was pending therein.
• The motion shall show
(a) the name and the addresses of the persons to be examined and the
substance of the testimony which he expects to elicit from each; and
(b) the reason for perpetuating their testimony.
• If the court finds that the perpetuation of the testimony is proper to avoid a failure
or delay of justice, it may make an order allowing the depositions to be taken, and
thereupon the depositions may be taken and used in the same manner and under
the same conditions as are prescribed in these rules for depositions taken in actions
pending in the Regional Trial Court.

Depositions pending appeal

• The court in which the judgment was rendered may allow the taking of depositions
of witnesses to perpetuate their testimony for use in the event of further
proceedings in said court
• The party who desires to perpetuate the testimony may make a motion in said court
for leave to take the depositions
o Notice and service shall be made in the same manner as if the action is
pending
• The motion shall state:
o Names and addresses of the persons to be examined;
o Substance of the testimony he expects to elicit from each of the person to
o be examined; and
o Reason for perpetuating their testimony
• Deposition shall be allowed if proper to avoid a failure or delay of justice
o May be taken and used in the same manner and under the same conditions
prescribed for depositions taken in pending actions