TESTIMONIAL EVIDENCE’’

.stimonial or oral evidence is evidence elicited from the mouth of a witness as distinguished
from real and documentary evidence.
Competence means that the witness is qualified to take the stand and testify. It means that he is
fit and eligible to testify on a particular matter on a judicial proceeding.

"SEC. 21. Witnesses; their qualifications. - Except as provided in the next succeeding section,
all persons who can perceive, and perceiving, can make known their perception to others, may be
witnesses.
Religious or political belief, interest in the outcome of the case, or conviction of a crime unless
otherwise provided by law, shall not be a ground for disqualification."

The above provision supplies the basic qualifications of a witness, namely:

(a) He can perceive; and
(b) He can make known his perception to others
To these, we may add the following:
(a) He must take either an oath or an affirmation (Sec. 1, Rule 132, Rules of Court); and
(b) He must not possess any of the disqualifications imposed by law or the rules.

OATH OR AFFIRMATION
An oath is an outward pledge made under an immediate sense of responsibility to God or a
solemn appeal to the Supreme Being in attestation of the truth of some.
An affirmation is a substitute for an oath, and is a solemn and formal declaration that the witness
will tell the truth

Examination of a witness shall be done under oath or affirmation.

The willingness to take an oath or affirmation is an essential qualification of a witness
A person is not qualified if he is incapable of understanding the duty to tell the truth.

Deaf-mutes are not necessarily incompetent as witnesses. They are competent where they can:
1. Understand and appreciate sanctity of an oath;
2. Comprehend facts they are going to testify to;
3.Communicate their ideas through a qualified interpreter.

COMPETENCY of a witness has reference to the basic qualifications of a witness as his

capacity to perceive and communicate his perception to others. It also includes the absence of
any disqualifications imposed upon a witness.
CREDIBILITY of a witness refers to the believability of a witness and has nothing to do with
the law or the rules. It refers to the weight and trustworthiness or reliability of the testimony.
Factors that do not affect the competency of a witness
1. Under Sec. 21 of Rule 130, as amended, except as provided by the law and the rules, the
following factors do not, as a general rule, constitute a disqualification of a witness:
(a) religious belief;
(b) political belief;
(c) interest in the outcome of the case; or
(d) conviction of a crime, unless otherwise provided by law

"SEC. 23. Disqualification by reason of marriage. -During their marriage, neither the husband
or the wife cannot testify against the other without the consent of the affected spouse, except in a
civil case by one against the other, or in a criminal case for a crime committed by one against the
other or the latter's direct descendants or ascendants.
The rule prohibiting testimony by one spouse against the other is based on society's intent to
preserve the marriage relations and promote domestic peace.

Exceptions to the marital disqualification rule

In the following instances, a spouse may testify for or against the other even without the consent
of the latter:
(a) in a civil case by one against the other; or
(b) in a criminal case for a crime committed by one against the other, or the latter's direct
descendants or ascendants.

"SEC. 24. Disqualification by reason of privileged communication. - The following persons

cannot testify as to matters learned in confidence in the following cases:

24(a) The husband or the wife, during or after the marriage, cannot be examined without the
consent of the other as to any communication received in confidence by one from the other
during the marriage except in a civil case by one against the other, or in a criminal case for a
crime committed by one against the other or the latter's direct descendants or ascendants." –
DISQUALIFICATION OF MARITAL PREVILEGE COMMUNICATION

The application of the rule requires the presence of the following elements:
(a) there must be a valid marriage between the husband and wife;
(b) there is a communication received in confidence by one from the other; and
(c) the confidential communication was received during the marriage.
Distinctions between the marital disqualification rule and the marital privileged
communication rule
1. Section 24(a) of Rule 130 has reference to confidential communications received by one
spouse from the other during the marriage. The marital disqualification rule under Sec. 23 of
Rule 130 does not refer to confidential communications between the spouses.
2. Sec. 23 of Rule 130 includes facts, occurrences, or information even prior to the marriage
unlike Sec. 24(a) which applies only to confidential information received during the marriage.
3. The marital disqualification rule in Sec. 23 requires that the spouse for or against whom the
testimony is offered is a party to the action. This is not required in the marital privileged
communication rule in Sec. 24(a) which applies regardless of whether the spouses are parties or
not.

24(b) An attorney or person reasonably believed by the client to be licensed to engage in the
practice of law cannot, without the consent of the client, be examined as to any communication
made by the client to him or her, or his or her advice given thereon in the course of, or with a
view to, professional employment, nor can an attorney's secretary, stenographer, or clerk, or
other persons assisting the attorney be examined, without the consent of the client and his or her
employer, concerning any fact the knowledge of which has been acquired in such capacity,
except in the following cases:
(i) Furtherance of crime or fraud
(ii) Claimants through same deceased client.
(iii) Breach of duty by lawyer or client
(iv) Document attested by the lawyer.
(v) Joint clients.

24(c) A physician. psychotherapist or person reasonably believed by the patient to be authorized

to practice medicine or psychotherapy cannot in a civil case, without the consent of the patient.
be examined as to any confidential communication made for the purpose of diagnosis or
treatment of the patient's physical, mental or emotional condition. including alcohol or drug
addiction, between the patient and his or her physician or psychotherapist. This privilege also
applies to persons, including members of the patient's family, who have participated in the
diagnosis or treatment of the patient under the direction of the physician or psychotherapist.

A "psychotherapist" is:
(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.
24(d) A minister. priest or person reasonably believed to be so cannot, without the consent of the
affected person, be examined as to any communication or confession made to or any advice
given by him or her, in his or her professional character, in the course of discipline enjoined by
the church to which the minister or priest belongs.
. The person making the confession holds the privilege, and the priest, minister, or person
reasonably believed to be so hearing the confession is prohibited from making a disclosure of the
confession without the consent of the person confessing.
Not every communication made to a minister or priest is privileged. The communication
must be made pursuant to confessions of. As clearly provided in the rule, the advice given as a
result of the confession must be made in the minister's "professional character” or in his
"spiritual" capacity.

24(e) A public officer cannot be examined during or after his or her tenure, as to
communications made to him or her in official confidence, when the court finds that the public
interest would suffer by the disclosure.
Under the above rule, communications made to a public officer in official confidence are
privileged when the court finds that the disclosure would adversely affect the public interest.

"SEC. 25. Parental and filial privilege No person shall be compelled to testify against his or
her parents, other direct ascendants, children or other direct descendants, except when such
testimony is indispensable in a crime against that person or by one parent against the other."

Under the parental privilege rule, a parent cannot be compelled to testify against his child
or other direct descendants. Under the filial privilege rule, a child may not be compelled to
testify against his parents or other direct ascendants.
A person, however, may testify against his parents or children voluntarily but if he
refuses to do so, the rule protects him from any compulsion.

"SEC. 26. Privilege relating to trade secrets. - A person cannot be compelled to testify about
any trade secret unless the non-disclosure will conceal fraud or otherwise work injustice. When
disclosure is directed. the court shall take such protective measure as the interest of the owner of
the trade secret and of the parties and the furtherance of justice may require."
"SEC. 27. Admissions of a party. The act, declaration, or omission of a party as to a relevant
fact may be given in evidence against him or her.
Admission – is an act, declaration, or omission of a party as to a relevant fact; voluntary
acknowledgement.
Confession - there is an acknowledgement of guilt.

SEC. 28. Offer of compromise not admissible. - In civil cases, an offer of compromise is not
an admission of any liability and is not admissible in evidence against the offeror. Neither is
evidence of conduct nor statements made in compromise negotiations admissible, except
evidence otherwise discoverable or offered for another purpose, such as proving bias or prejudice
of a witness. negativing a contention of undue delay or proving an effort to obstruct a criminal
investigation or prosecution.
In criminal cases, except those involving quasi offenses (criminal negligence) or those
allowed by law to be compromised, an offer of compromise by the accused may be received in
evidence as an implied admission of guilt.
A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to a lesser
offense, is not admissible in evidence against the accused who made the plea or offer. Neither is
any statement made in the course of plea bargaining with the prosecution, which does not result
in a plea of guilty or which results in a plea of guilty later withdrawn, admissible.
In case the accused withdraws his guilty plea, that plea of guilty later withdrawn is not
admissible in evidence against the accused who made the plea. The inadmissibility also applies
to any statement made in the course of plea bargaining with the prosecution as long as it does not
result in a plea of guilty or results in a plea of guilty later withdrawn. (Sec.28, Rule 130, Rules of
Court)

An offer to pay, or the payment of medical, hospital or other expenses occasioned by an

injury, is not admissible in evidence as proof of civil or criminal liability for the injury.
An offer to pay or the payment of medical, hospital, or other expenses occasioned by an
injury is not admissible in evidence as proof of civil or criminal liability for the injury (Ibid.). In
other jurisdictions, this act of rendering aid is sometimes called the "Good Samaritan rule." The
phrase is used to refer to the rendering of voluntary aid to a suffering person.

Effects of admissions
Under Sec. 27, Rule 130, the act, declaration, or omission of a party as to a relevant fact
may be given in evidence against him or her. This rule is based on the notion that no man would
make any declaration against himself, unless it is true.
Classification of admissions and confessions
1. An admission may be express or implied. An express admission is a positive statement or act.
An implied admission is one which may be inferred from the declarations or acts of a person.
A confession CANNOT be implied. It must be a positive acknowledgement of guilt and cannot
be inferred.
2. An admission may be judicial or extrajudicial. An admission is judicial when made in the
course of a judicial proceeding. An admission is extrajudicial when made out of court or even in
a proceeding other than the one under. A confession MAY BE ALSO judicial or extrajudicial for
the same reasons

SEC. 29. Admission by third-party. - The rights of a party cannot be prejudiced by an act,
declaration, or omission of another, except as hereinafter provided.

SEC. 30. Admission by co-partner or agent. The act or declaration of a partner or agent
authorized by the party to make a statement concerning the subject. or within the scope of his or
her authority, and during the existence of the partnership or agency, may be given in evidence
against such party after the partnership or agency is shown by evidence other than such act or
declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other
person jointly interested with the party.
Hence, whatever is said by an agent to a third person, during the course of the 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 statement of the principal and is, therefore, admissible
against said principal
However, not every declaration or act made or done by a partner or agent is admissible
against the other partners or the principal. For the admission of a co-partner or agent to be
admissible, the following requisites must concur:
(a) The declaration or act of the partner or agent must have been made or done within the scope
of his authority;
(b) The declaration or act of the partner or agent must have been made or done during the
existence of the partnership or agency (while the person making the declaration was still a
partner or an agent); and
(c) The existence of the partnership or agency is proven by evidence other than the declaration or
act of the partner or agent
SEC. 31. Admission by conspirator. -The act or declaration of a conspirator in furtherance of
the conspiracy and during its existence, may be given in evidence against the co-conspirator after
the conspiracy is shown by evidence other than such act or declaration.

A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. Once the conspiracy is proven, the act of one is
the act of all. The statement, therefore, of one may be admitted against the other co-conspirators
as an exception to the rule on res inter alios acta.

SEC. 32. Admission by privies. Where one derives title to property from another, the latter's
act, declaration, or omission of the latter, while holding the title, in relation to the property, is
evidence against the former if done while the latter was holding the title.

“Privies" are persons who are partakers or have an interest in any action or thing, or any relation
to another.
Accordingly, when the former owner of the property made the declaration after he ceased
to be the owner of the property, the rule on admission by privies does not apply. What applies is
the general rule that the rights of a party cannot be prejudiced by an act, declaration, or omission
of another.

SEC. 33. Admission by silence. An act or declaration made in the presence and within the
hearing or observation of a party who does or says nothing when the act or declaration is such as
naturally to call for action or comment if not true, and when proper and possible for him or her to
do so, may be given in evidence against him or her.

Admission by silence has been traditionally received, even in common law, as admissible
evidence. The usual pattern for its admissibility involves a statement by a person in the presence
of a party to the action, criminal or civil. The statement contains assertions against the party
which, if untrue, would-be sufficient cause for the party to make a denial. His failure to speak
against the statement is admissible as an admission.
For silence to be deemed an admission, it is necessary that:
(a) he heard and understood the statement;
(b) he was at liberty to make a denial;
(c) the statement was about a matter affecting his rights or in which he was interested, and which
naturally calls for a response;
(d) the facts were within his knowledge; and
(e) the fact admitted from his silence is material to the issue
SEC. 34. Confession. The declaration of an accused acknowledging his or her guilt of the
offense charged, or of any offense necessarily included therein, may be given in evidence against
him or her.

SEC. 35. Similar acts as evidence. Evidence that one did or did not do a certain thing at one
time is not admissible to prove that he or she did or did not do the same or a similar thing at
another time; but it may be received to prove a specific intent or knowledge, identity, plan
system, scheme, habit, custom or usage, and the like.
Under Sec. 35 of Rule 130, although the accused has previously been charged with and
convicted of similar offenses, the trial court commits an error if it considers such circumstance
for the purpose of showing that he was likely to commit the crimes charged in the indictment.
Evidence of collateral offenses must not be received as substantive evidence of the offenses on
trial

SEC. 36. Unaccepted offer. - An offer in writing to pay a particular sum of money or to deliver
a written instrument or specific personal property is, if rejected without valid cause, equivalent to
the actual production and tender of the money, instrument, or property."