EVIDENCE TRANSCRIPTION (Midterms)

Atty. Joseph Randi Torregosa

TOPIC 6: OBJECT EVIDENCE

Classification of Evidence
As to its form, evidence is classified as object, documentary, and testimonial.
What is Object Evidence?
Sec. 1 of Rule 130 provides that object evidence are those addressed to the senses
of the court. Anything which is relevant to the fact in issue may be exhibited to,
examined or observed by the court. So anything offered for the purpose of allowing
the court to view, examine or to observe is classified as object evidence.
This is distinguished from documentary evidence because documentary evidence is
evidence offered as proof of the contents of the writings or materials containing
letters, figures, symbols, words and other modes of written expressions. So what
sets object evidence from documentary is that the purpose of presenting object
evidence is merely for viewing or otherwise subjecting the thing to the senses of the
sitting judge.
So when the rules talks about examining, viewing, or exhibiting something to the
court it is not only limited to the courts sense of sight but covers all the reigns of
human senses. So when you have something which is relevant to the fact in issue
but requires the courts or the judges application of his sense of taste, example
when you offer a particular substance which you claim to be poisonous and you
want the court to taste it and indeed it was proven to be poisonous, what I am
saying is anything the purpose of which is to subject it to the courts senses for the
courts actual observation, then thats an object evidence.
Take note that an object evidence or a thing depending on the purpose may also be
considered as documentary. Like if that object contains some writings, figures,
letters, words, symbols or any other modes of written expressions and the purpose
of offering it is to prove its contents, while it may be ordinarily considered as object,
in this regard it may be considered under the rules as documentary. For example, a
book, depending on the purpose may be considered as plain object or documentary
evidence. If it is offered to prove that it exist and that it is used as a murder weapon
in the murder case then it is offered as object evidence. The prosecution may
exhibit it to the court so the court will see it for itself the condition of the book and
its capability of being a murder weapon. On the other hand if the book is offered to
prove its contents, because the subject of inquiry is the contents of the book, then
this time book was offered as documentary evidence.
Testimonial Evidence

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Testimonial evidence presupposes that someone is testifying in court. It is an

evidence produced by a witness. Now what does a witness do in the witness stand?
When a witness takes the stand and testifies, the witness is in effect reconstructing
the past events. So what the witness will actually do is that she will recall something
that she perceive in the past and will reconstruct it for the court. So testimonial
evidence is produced by a witness through his perception, recollection, and
communication. So on matter of form, evidence is either object, documentary or
testimonial.
Two Types of Object Evidence
1. Real Object Evidence
This refers to the thing itself. It is the very thing which is the subject of the case,
the thing involved in the case. Textbook example of this is a murder weapon.
When the prosecution presented the knife allegedly used in the killing, that knife
is classified as real object evidence because it is the real thing involved in the
case. But if instead of the knife itself being presented in court, what is presented
is just a photograph of the knife that photograph is not the real thing, but it is
just a replica, a representation, or a substitute of the real thing. In this Regard
the photograph of the knife is classified as demonstrative object evidence
because it merely substitutes the real thing.
Requisites for the admissibility of the real object:
a. It must be relevant to the fact in issue in the case;
b. It must be competent meaning, it must be properly authenticated;
c. Authentication must be made by a competent witness; and
d. It must be formally offered.
How do you authenticate a real object evidence?
First, what is authentication? Authentication, insofar as real object evidence is
concerned, is a process of establishing in court that the thing being presented is
the very thing that the offeror claims it to be. So if the offeror claims that the
knife is the murder weapon then authentication simply involves a process of
proving in court that indeed the one being presented now is really the one used
in the crime.
Or in an action for damages arising from medical malpractice, where your client
underwent breast augmentation procedure but in the process somehow the
doctor bungled the operation and as result in the breast of your client was
placed in a perfect state of imbalance where the left side is bigger than the right.
So your client now filed an action for damages, your real object evidence there is
no other than the breast itself. So you exhibit it to the court for the court to
observe how the complainant suffered physical damages as a result of the
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bungled medical procedure. So the process of authentication simply requires

that the proponent must prove that the breast presented is really the breast
involved in the operation.
Or when the object involved is an illegal drug, process of authentication simply
mean that the proponent, the prosecution, must prove that the kilos of shabu
now being presented before the court are the very shabu seized from the
accused. It is the process of establishing that the object presented is the very
object it is claimed to be.
For purposes of authentication, real object evidence is classified into three
types.

Readily identifiable object, typical example of this is a gun. It is readily

distinctive and identifiable because of its serial no. that makes one gun
distinctive and different from the rest of the same kind.

An object which is not readily identifiable but it can be made

identified by putting some identifying marks. So classic example of this is a
knife. So if a knife is claimed to be the murder weapon, 15 inches long and 3
inches wide fan knife is claimed to be the murder weapon that type of knife is
not readily identifiable in the sense that it looks like the same as the other.
But for purposes of authentication, this can be made identifiable. So if you
are the proponent, like the police, and the knife is offered in evidence and
claimed to be the murder weapon then the police will just have to put
identifying marks on the knife. The process there is the police will write the
initial of the officer who responded and recovered the knife alleged to be the
murder weapon. So, an object which is not readily identifiable by placing the
initials of the police who recovered it from the crime scene, that object now
becomes readily identifiable.

And the last one is not distinctive or not readily identifiable objects. By
nature it is not distinctive and difficult to make it identifiable. Textbook
examples of this type of object evidence are blood, body fluids, drugs,
poisonous substances.

So what is the rule governing the authentication of a real object evidence? Because
authentication entails identification, the identification of real object evidence
presupposes the application of the chain-of-custody requirement. Because any
object offered as evidence in court undergo certain custodial movements from the
time it was recovered from the crime scene to the time it was placed in the custody
of the custodian, then to the time it was submitted for laboratory examination and
then to the time it was offered as evidence in court. So for purposes of
authentication, the proponent has to comply with the chain-of-custody requirement.

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Chain-of-custody Requirement
It is an essential part of authentication. Since it talks of chain, then obviously it
entails some links. For purposes of authentication, all these links must be properly
accounted for. Now, the links contemplated by law refer to the persons who may
have handled or taken possession or custody of the object from the time it was
recovered up to the time it was presented in court. Now, the rule is it is not always
necessary that all the persons who have taken custody of the object be presented.
Except if the object is non-distinguishable and difficult to make identifiable. Because
if the object falls under the third category, all the persons who handled the object
must testify. Their testimony is essential and indispensable to prove the complete
observance of the chain-of-custody requirement. A common example of object
falling under the third category which requires strict compliance with the chain-ofcustody requirement is in drug cases. From the nature of drugs as nondistinguishable and difficult to be made identifiable, the legislators specifically
provided the specific rule in the authentication of illegally seized drugs. The rule is
particularly provided for in Section 21, RA 9165. This provides for the special rule
governing the seizure and custody of illegally seized drugs.
What is the rule provided for under Section 21 of RA 9165?
Any police officer who seized illegal drugs is required to immediately conduct a
physical inventory and should take photographs of the illegal drugs. Two
requirements: physical inventory and picture-taking. Both must be done in
the presence of:
1. the accused to whom the drugs were seized or any of its
representatives;
2. a representative from the DOJ;
3. a representative from the media; and
4. any elected public official.
Take note, not just any public official but must be elected. So a Barangay Tanod is
not covered.
So, the presence of the four is strictly required. But the practice is that the illegal
drugs are photographed with the aforementioned individuals. So what you will see
in evidence is a group picture with the drugs. They pose there with the drugs the
accused, the DOJ, the media and the elected public official. All of these people must
sign the inventory and each of them must be given a copy of the inventory.
When is the presence of these people required?
Is it required for them to be present from the very beginning of the search? Section
21 of RA 9165 only requires that the presence of these witnessesDOJ, media and
elected public official should be present only during the inventory meaning after the
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seizure of the illegal drugs was made. So it is not required that they should be
present at the start of the search. Neither are they required during or in the course
of the search.
Now how do you ensure that the conduct of the search is regular when the presence
of these witnesses is not required? You look at Section 8 of Rule 126 of the Rules of
Criminal Procedure. It says there that no search shall be conducted without the
presence of the actual occupant, or any of the members of his family and in the
absence thereof, two witnesses of sufficient age and discretion who are residents of
the same locality.
This is premised on the acknowledged distrust that society feels about our law
enforcement agents. Otherwise, why do we need the presence of DOJ, media and
any elected public official if we really trust our police? This is borne out of
experience in the past. The planting of evidence is really rampant maybe because
of the overzealousness of our law enforcement agents to curb drug menace,
campaign to eradicate illegal drugs. Such that before they implement the search
warrant, they really prepare something to plant in case the search yields negative
results. Because they have this thinking that if the result is negative, the person
subject of the search may sue them for illegal search. So any search will always
yield positive results because of this practice of planting evidence. Our legislators
obviously thought of this-- the problem of planting evidence by making Section 21 a
strict requirement.
To me this is a consuelo de bobo because usually the planting of evidence is made
during the search. To me if we really have an honest to goodness mechanism to
avoid the evils of policemen resorting to planting of evidence, this requirement
should be imposed before and during the search. Anyway if it is by virtue of a
search warrant, the policemen will have enough time to gather these people. And
by some operational procedure, they can also ensure the safety of these people.
Now, where do you conduct the physical inventory? And the taking of the
photograph of the seized illegal drugs as well as the marking of the seized drugs?
There are three (3) processes that the seizing officer should do:
1. The marking of the illegal drugs for purposes of identification
2. The physical inventory
3. The taking of the photographs in the presence of these people.
People vs. Sanchez
The Supreme Court made the distinction as to the venue of the physical inventory. If
the seizure of the illegal drugs is through the implementation of a search warrant,
the venue of the physical inventory and the photograph taking is the place where
the seizure was made. So it cannot be made at the police station or somewhere else
but in the very place where the search warrant was served. On the other hand, if
the seizure of the illegal drugs was not preceded by implementation of search
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warrant, in other words, no warrant was issued or available, or the seizure did not
proceed from the implementation of a search warrant? Like the seizure happened
after a buy-bust operation? In bust-buy operation, there is no warrant involved
there. According to People vs. Sanchez, if the seizure did not result from the
implementation of the search warrant like a buy bust operation, the venue of the
physical inventory and the photograph taking is either the place of the police
precinct or the nearest police station or the office of the apprehending or seizing
officer, wherever is more practicable. That is in the case of People vs. Sanchez.
People vs. Garcia
But in the subsequent case of People vs. Garcia, take note that the Supreme Court
made a slight modification in the Ruling of People vs. Sanchez, because in People
vs. Garcia, while the Supreme Court apparently quoted the ruling in Sanchez, but
strangely, the SC said that as against People vs. Sanchez, if the seizure of the illegal
drugs took place where there was no search warrant, as it resulted from a buy-bust
operation, the physical inventory and the photograph-taking must be done at the
place of seizure if practicable. So even if the seizure did not result from the
implementation of a search warrant, the inventory and the photograph should still
be done in the place of seizure if practicable.
So somehow, there is a qualifying circumstance there that that requirement should
be done only if practicable. So if not practicable, pursuant to Sanchez, the venue
may be the nearest police station or the office of the apprehending officer.
What is the result of the non-compliance of the requirement under Section
21 of RA 9165?
Inventory, photograph-taking, presence of witnesses, these requirements not
properly or duly complied with? Take note that this procedure is still part of the
chain of custody procedure. And chain of custody is a relevant part of the
authentication process. And authentication process is a requirement for
admissibility, because one of the requisites for the admissibility of a real object
evidence is that it must be competent. It is competent if it is duly authenticated. So
logically, if there is a failure to authenticate an object evidence, it results in the
evidence being inadmissible for lack of authentication because authentication is a
rule of admissibility. It is a rule of exclusion. But strangely, when it comes to failure
to comply with the Chain of Custody requirement provided for under Section 21 of
RA 9165, the SC has been consistently holding that failure to comply with the
Section 21 does not result in the illegal seizure of the seized items, nor will
it render the seized illegal drugs inadmissible. In other words, this is a
situation where a requirement for authentication is absent, and yet the evidence is
still admissible even if not properly authenticated. But this is precisely the
language of Section 21.
So what is the legal and procedural consequence of this ruling? The effect there,
procedurally, is very significant. Why?
When the evidence is illegally seized, like it is seized without a search warrant or
the warrant is void for some other reasons, the accused or the person from whom
the evidence was seized, may, before trial, file a motion to suppress the
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evidence illegally seized so that this evidence will not be used by the State or by
the prosecution against the accused during the trial. So normally, when an evidence
is seized and recovered from the accused like illegal drugs pursuant to a search
warrant or the search warrant was subsequently declared by the court, the accused
filed to quash search warrant because the search warrant is illegally issued, like it
was issued without probable cause, the court may quash the search warrant and
declare the seized items inadmissible.
So when the court declares the items inadmissible, the evidence declared
suppressed, and the State has no other evidence other than the seized items, which
are now declared suppressed by the court, the State may not effectively go forward
the case against the accused for absence of evidence. What will happen there is
that the State will withdraw its Information, because proceeding with the trial when
the only evidence that you have is already suppressed, it would be an exercise in
futility. So what will happen is the State will file a Motion to Withdraw
Information simply because the State has no goods against the accused. Now this
is the remedy before trial available to a person from whom evidence was seized
illegally.
On the other hand, under the Rules of Criminal Procedure, when the evidence of
the state after it has rested its case, and such evidence is not sufficient to overcome
presumption of innocence, because evidence presented were inadmissible under
any of the rules on exclusion, the remedy of the accused is to file demurrer to
evidence where the accused does not need to come forward with his own defense
but ? to the evidence of the state. If the court finds the demurer to evidence
meritorious then the court will dismiss the case for lack or insufficiency of evidence.
But this is available when the evidence presented by the state is either insufficient
or was excluded by the court under some rules of exclusion.
To sum up, the two remedies are:
1. Motion to suppress the evidence illegally seized
2. Demurrer to evidence
These two remedies of filing a motion to quash or suppress or the demurrer to
evidence may not be available if the evidence seized under the provisions in the
Dangerous Drugs Act were seized in violation of the requirements prescribed in
section 21. If the evidence seized from the accused without complying with sec 21,
you cannot file a motion to quash or motion to suppress the evidence because noncompliance will not render the evidence inadmissible. You cannot also file a demurer
to evidence on the ground that the evidence was seized without compliance of the
same sec 21. So the evidence may still be admissible in court. When it is formally
offered, you cannot object to its admission in violation of sec 21 because it has
nothing to do with admissibility of evidence because the evidence is admissible.
What is the effect of non-compliance of sec 21?
While it does not dwell on the matter of admissibility, it goes into the matter of
credibility. As I said earlier, there are 2 stages that evidence is required to pass
through. The first is admissibility stage. The second is the weight and sufficiency

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stage. The evidence may be admissible but it may not be sufficient or credible. It
may be disregarded by the court.
When the drugs are seized in violation of section 21, the seized drugs are
admissible, but pursuant to prevailing jurisprudence, this will result to the failure of
the prosecution to prove the guilt of the accused. IOW it will result in the
insufficiency of the evidence of the prosecution because the purpose of sec 21 is to
establish the identity of the seized drug and to establish the fact that the seized
drug offered in court for evidence are the same drugs seized from the accused. So
non-compliance of sec 21 means that the identity of the seized drugs is
not duly established. There is no sufficient evidence that the drugs being offered
in court are the very drugs recovered from the accused. The prosecution therefore
fails to prove one of the essential elements of the crime because one of such
essential elements of the crime of illegal possession or illegal sale or distribution of
illegal drugs is the identity of the drugs involved.
Non-compliance of sec 21 results to the failure of the prosecution to prove the
identity or appropriately called failure to prove the corpus delicti of the crime.
Even if you knew that the seizure of the illegal drugs was done without compliance
with sec 21, you just continue with the trial and if the prosecution has no other
evidence, you may file petition to demurer or present evidence and in the end
ask for the dismissal of the case for failure of the state to prove the guilt of
the accused.
Why is failure to comply with sec 21 not a ground to exclude the illegal
drugs?
Normally, this is a failure to authenticate an object evidence, and failure to
authenticate would normally result in inadmissibility of the object evidence, but not
when the object evidence involved is illegal drugs because under sec 21, with its
corresponding implementing rules, while failure to comply with sec21 results to
failure of the prosecution to establish corpus delicti, this does not prevent the
prosecution from introducing evidence that despite the non-compliance with sec 21,
the integrity and the evidentiary value of the illegal drugs are preserved. IOW, even
if there is failure to comply with sec 21, if the state can prove that the integrity and
evidentiary value of the illegal drugs are preserved despite the non-compliance, it
may be sufficient to convict the accused. That is why even if there is failure to
comply, the accused cannot shortcut by filing motion to suppress the seized drugs
simply because there is failure to comply with sec 21. Notwithstanding the failure,
the prosecution is still given the opportunity to prove during trial that despite noncompliance, the essential integrity and evidentiary value of the seized drugs are still
preserved. So the remedy there is to proceed with trial. If the prosecution cannot
prove that the essential integrity and evidentiary value of the seized drugs are still
preserved, then, definitely that will result to the failure to prove the guilt of the
accused and the accused will be acquitted.
Recent jurisprudence now stands the Supreme Court has maintained a little
liberality in the application of sec.21, while in the past their application was so rigid
and strict of sec.21 and violation of such would cause the acquittal of the accused,
in the recent jurisprudence the Supreme Court now adopts the substantial
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compliance rule. So that even if section 21 is not duly complied with and the
court was convinced that there was substantial compliance with the requirement
the accused may still be convicted. The evidence may still be used against the
accused. This is the ruling in the case of People vs Realita.
People vs Realita
Facts: This involves a violation of the dangerous drugs act. The seizure of the drugs
was done without compliance of section 21. No media and no DOJ and the inventory
were not strictly in accord with the rules. But the SC upheld the conviction of the
accused because the state was able to prove that the integrity and the evidentiary
value of the drugs were preserved. Now how did the prosecution prove this? The
prosecution did so by establishing a chain of custody by presenting witnesses who
accounted for the custody of the drugs at the time these were seized from the
accused up to the time they were submitted to the laboratory examination up to the
presentation in court. The prosecution established an unbroken chain of
custody of the seized items.
Held: The SC said, there is substantial compliance with the chain of custody
requirement. It would appear now that the absence of the media, elected official
and DOJ does not necessarily result in the acquittal of the accused. So the attitude
of the SC now is lenient towards prosecution consistent with the government
campaign against illegal drugs. In the past cases (del Monte, Cervantes, Rivera,
Dela Cruz, Sanchez) SC was consistent that non-compliance with sec.21 results in
failure to prove the corpus delicti and results in acquittal of the accused. The new
trend may be the substantial compliance rule. The chain of custody requirement
should not be tested in a straight jacket because the police officers operate
depending on the conditions. The requirement imposed by section 21 may not be
ideal for some situations. Examples of which are operations in the far flung areas
where there are no media representative there or in squatter areas where almost all
members of the community are involved, for that reason the police may not feel
secure in the place of the buy bust operations they would feel secure conducting
the inventory and picture taking somewhere else.
2. Demonstrative Object Evidence
Demonstrative evidence is not the real thing but a replica or a representation of the
real thing that it seeks to represent. Textbook example of which would include
photographs, diagrams, sketch, drawings, models, moving pictures, recordings. So if
you have a video of a scandal of Ralph that video recording is not the real thing but
just a representation of Ralph doing the act. Other forms are scientific evidence like
the result of Polygraph, Paraffin and the DNA test.
How do you authenticate Demonstrative evidence? It must be:
1. Relevant
2. Properly Authenticated
3. Authenticated by a Competent witness
4. Formally Offered
Same requisites for admissibility of Real Evidence the only distinction lies in the
requirement of Authentication. In Demonstrative evidence it is not required that the
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person authenticating the demonstrative evidence is the one who took or prepared
the demonstrative evidence. Unlike in the Real Object evidence where the
authenticating witness is the one who has personal knowledge of the object. So if
the evidence is the murder weapon, the person authenticating should be the person
who saw it being used in the killing. The person who can authenticate the murder
weapon is the one who saw it used by the accused in the killing. Someone who has
personal knowledge of the fact that the object evidence is the evidence verily
involved in the case.
But insofar as demonstrative evidence, this requirement is not imposed because
what is only required in demonstrative evidence is someone who is familiar with
the thing, event or person depicted in the demonstrative evidence. It is
not required that the photographer should be the one who shall
authenticate the demonstrative evidence.
State. v. Tatum
This involves a prosecution for illegal encashment of check. The public complainant
here is a citizen of the US who monthly receives checks from the government. Until
one month, his check for the month was lost. So he investigated. Eventually, he
discovered that the check was enchased by someone else. It was enchased at a
certain food store. Part of the investigation revealed the identity of the person
responsible. So a criminal case was filed against such person. During the trial, the
prosecution presented the sales lady as well as the distributor of the machine. This
Regiscope machine, this is a machine used by establishments to encash check. The
check will be fed into the regiscope machine and the regiscope machine will
photograph the check as well as the person transacting with the establishment. The
film and the printed photograph were presented in court showing the accused
appearing in the photograph. The photographs were authenticated by the sales lady
and the distributor of the machines. The sales lady testified that she could recall
that one day she had a transaction and she counter-signed the check and fed the
check inside the machine. She also recalled that the accused, depicted in the
photograph, is the person she transacted with. The other witness also testified as to
the procedure of the development of the negative film of the machine. The
admission of the pieces of evidence as well as the testimony of the witness were
objected to on the ground that the witness did not sufficiently authenticate the
photographs because they were not the one who developed the photos. This
argument was set aside by the Supreme Court because for the purpose of
authenticating the photograph it is not indispensible that the
authenticating witness should be the photographer himself. Any witness
who is competent or familiar with the person, event or thing depicted in
the photo is sufficient.
People v. Sison
In the local scene, we applied the same principle in this case. This involves a
prosecution for murder arising from an incident that occurred between the loyalist
of Aquino and Marcos loyalist. This took place at the heart of the political upheaval
that appointed Corazon Aquino to the presidency. Thereafter, the group of Marcos
loyalist held an illegal rally and in the course of the rally, known supporters of Cory
got mauled and eventually died. Some Marcos loyalist were prosecuted for the
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death of the Aquino loyalist and one of the pieces of evidence presented was a
photograph taken by the members of the Press showing the event surrounding the
murder of the victim. These photographs were authenticated by someone
who was not the photographer. The admission of the photographs were
objected to on the ground that there was no sufficient authentication because the
photographer was not presented. But the SC disagreed because for purposes of
authenticating a photograph it is not indispensable to present the
photographer. It is enough that someone familiar with the person, place or
event depicted in the photo may testify. So the ruling is for the purpose of
authenticating a photograph the testimony of the photographer is not indispensable
although it is ideal to present the latter. So if there is a video capturing Mr. Ralph
performing a sexual act then it is not indispensable that the one who took the video
should be the one to authenticate. Anyone may testify as long as long as he is
familiar with Mr. Ralph. So familiarity with the event, person or transaction
depicted in the photograph or recording is enough.

SCIENTIFIC EVIDENCE
Among the common scientific evidence, examination, and experimentation being
practiced in our country is the lie detector or polygraph test, paraffin test and the
DNA.
So what is the evidentiary value of the results of these tests insofar as our
jurisdiction is concerned?
1. POLYGRAPH AND LIE DETECTOR:
Polygraph or lie detector test is premised on the theory that when a person is lying
he is likely to exhibit physiological changes. And these physiological changes may
take the form of excessive perspiration, changes in the breathing rate, heart rate.
According to the proponents, this scientific procedure are capable of being
monitored by sensors being attached to the body of the person subject of the test.
This is commonly adopted and used by law enforcement agents and occasionally by
some politicians. When politicians start promoting their own political purposes or
their political aggrandizement at the expense of their political rivals. You would
often hear one politician alluding something to his political enemy, political enemy
denies the allegation and getting back against the other and they will now accused
each other of being liars. More often than not, they will end up challenging each
other to subject themselves into polygraph or lie detector test as if the results are
credible and acceptable in court. Although for political purposes it may be but for
evidentiary purposes it is not given credence by our court. In short, it is not reliable.

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This is already settled by the Supreme Court in a number of cases such as Pp. vs.
Carpo, et al. and Pp. vs. Adoviso. These cases involved the prosecution of the
crime of murder and both accused in these cases, in their defense, they availed of
the polygraph and lie detector test. True enough the result yielded negative. So, the
result of the polygraph or lie detector test tend to show that they were not lying and
therefore consistent with their innocence. So taking advantage or invoking the
negative result of the polygraph or lie detector test, the accused would want the
Supreme Court to reverse their conviction on the basis of the result. But his plea of
exoneration, in both cases, were rejected by the Supreme Court. Holding that the
result of the polygraph or lie detector test is not given credence in our
courts because the results of lie detector or polygraph test have not been
accepted by the scientific community as a reliable tool for ascertaining
truth or deception. So its not reliable and therefore not given credence by our
courts. But, nonetheless, this is commonly resorted to by government agents
particularly those involve in the investigation of crimes.
Now, I have a personal experience on this. Not myself. But my client who was
subjected to a lie detector or polygraph test during the investigation process of the
NBI. I supposed you heard the story of a young man whose sex video with his
girlfriend went viral in the internet. The girl there happens to be the student of USJR.
The guy there happens to be my client. Maybe we are misfits but this guy engaged
the services of our office. The theory of the NBI is that it is the guy who uploaded
the sex video taken from his cellphone. Our defense was that the cellphone got lost
2 years ago and probably found by someone and someone uploaded it in the
internet. So to validate our claim that it was not the client who uploaded the video
to the internet, the NBI dared our client to submit himself to a polygraph test or lie
detector test. Although I knew that polygraph test or lie detector test is not given
credence in our courts, I was worried that if it turns out positive, the NBI will charge
my client in court. And I dont want the publicity that may arise out of the result
because outside the NBI, the members of the press aching to know of the results of
the test. So I put my client to the corner and confirmed, and asked him honestly if
he is really the one who did it. When he said and assured me that he was not the
one who uploaded the video and I asked him repeatedly: Are you sure youre not
the one? and he repeatedly assured me that it was not him. So I took the bluff of
the NBI and submitted my client to a polygraph or lie detector test. True enough, we
were vindicated because the result yielded negative. So the NBI desist from
continuing the investigation. So insofar as our client is concerned, he is officially off
the hook. So the case was never filed in the prosecutors office.
2. PARAFFIN TEST
Paraffin test is often or commonly resorted to in cases or crimes involving firearms
like murder with the use of handgun. This is also commonly practiced and resorted
by the government agents and even the state in the prosecution of crimes. Now,
what is the evidentiary value of the result of paraffin test in our jurisdiction?
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Consistently with the cases of Pp. vs. Kahumukan, Editha vs. Pp, Pp. vs
Budohan ruled that the result of the paraffin test although admissible and
has probative value, is not conclusive. The most the court may afford
evidentiary value to paraffin test is corroborative evidence. In other words, the
result of a paraffin test may be admissible as a corroborative evidence.
Corroborative evidence presupposes the availability of other evidence. The result of
the paraffin test is already an additional to what is already available for the
prosecution or against the accused. According to the SC, the results of the paraffin
test simply establishes the fact that nitrates are present or absent in a given
subject. Thats the most it can prove because if the result is negative or no
nitrates is found in the body, in the arms, hands of the person subject of
paraffin test, the result simply proves that nitrates are absent but it does
not necessarily prove that the person did not fire the gun. Absence is not
equal to not firing. It is possible that the person fired the gun but negative in
nitrates because there are factors that may affect the presence or absence of
nitrates as the result of firing of the gun. What are these possible factors that may
affect? Some of these factors recognized by the SC, may include the fact that the
person who fired the gun washed his hands, arms, body immediately after the firing
or the one who fired the gun wore gloves or too much perspiration because nitrates
could be washed away in his arms, hands, and body of the one who is responsible of
the firing, or the wind direction or climate conditions. Because of these various
factors that may affect the presence or absence of nitrates, the SC in these cases
consistently ruled that the negative result is not conclusive that the person did not
fire the handgun.
On the other hand, the person who is found to have or positive of nitrates, the
positive result does not necessarily mean that the person fired the gun
because nitrates can be sourced out from some other sources, not necessarily a
gun. What are these possible other sources? The nitrates could come from those
who are fond of eating plants; monggos, peanuts and similar species or family,
pharmaceutical products, fertilizers, fireworks and similar other results.
o

So, a positive or negative result is not conclusive because of these

recognized considerations.

So, while admissible the result is never conclusive but it may be

considered as corroborative evidence. Corroborative evidence if taken with
another, will support a judgment of conviction. Like if a person is found positive of
nitrates and then taken together with the testimony of other witness that he is the
one who fired the gun that will be sufficient for purposes of conviction. But alone, a
positive result is never conclusive.
3. DNA (Deoxyribonucleic Acid) TESTING

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No two persons have the same DNA making everyone unique EXCEPT for identical
twins. So it is relevant if the issue is IDENTITY (e.g. identity of the killer in a murder
case, father in paternity and filiation, rapist for rape)
Although this evidentiary scientific tool has been adopted in most advanced
countries, it is relatively new in our jurisdiction. In fact our own rules on DNA took
effect only in 2007.

Tijing vs. CA
The SC opened the doors for the admissibility of the results of DNA testing in our
justice system. This involves a case of a mother whose child was kidnapped by her
employer and later on claimed by her employer as her own. For a long time the
mother has been looking for her missing child until finally she found her child in the
company and living together with her employer whom engaged her services to do
their laundry. The employer was childless and so the employer kidnapped the child
and claimed the child as their own. So when plea for the return of the child fell on
deaf ears, the mother filed a petition for habeas corpus .
Issue: Who between the two claimants is the real parent of the child.
SC Ruling: During that time, DNA Rules were not yet available in our jurisdiction.
So the SC in resolving the issue of filiation resorted in the traditional way the use
of physical comparison between the mother and the child and look for similarities. It
was later found that the child bears similarities in physical features with the motherpetitioner and so the SC ruled in the latters favor. While the SC applied the
traditional test of determining filiation in this case, it was likewise in this case that
the SC opened the doors for our courts to take a look at DNA test results as an
evidentiary tool in resolving issues such as in filiation. The SC said that for future
references, courts are encouraged to rule on the admissibility of DNA test results in
cases involving filiation.
PP vs. Vallejo
This case involves the rape and slay of a 9-year old girl where the SC admitted for
the FIRST TIME positive results of a DNA test conducted on the vaginal swabs which
were taken from the sex organ of the victim. The results of the test revealed the
DNA profiles of the accused. So in this case the SC OFFICIALLY declared that the
result of a DNA test is ADMISSIBLE in our courts.
Pp vs Yatar
This case involves the rape with homicide of a minor. The SC also OFFICIALLY ruled
that the result of the DNA test which shows that the biological samples taken from
the sexual organ of the victim containing the DNA profiles of the accused is
admissible in our jurisdiction.

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Because of these two cases, the SC finally issued an Admin. Order promulgating the
rules on DNA effective October 15, 2007.
Salient Features 3 distinct situations
a Before a case is filed in court.
Who may resort to DNA testing? ANY interested party including gov. agencies where
the results are relevant to the issue. Since no case has yet been filed, NO COURT
ORDER is necessary.
b Pending case.
Has to be with leave of court. Court order is issued only AFTER NOTICE and
HEARING either by:
1 a party having LEGAL INTERERST in the case who intends to avail of DNA
testing files a MOTION in the court where the case is pending or
2 the court MOTU PROPRIO
Is it a ministerial duty of the court to issue an order allowing the conduct of a DNA
test? What is the purpose of the hearing? The purpose of the hearing is to
determine if the requisites under the rules are present.
Some
1
2
3

of the Requisites:
EXISTENCE of biological samples
SUFFICIENCY of the existing biological samples
Samples NOT yet SUBJECTED TO PRIOR DNA testing or if so, results of the
earlier test need to be CONFIRMED
With respect to an action involving an issue on FILIATION, there is an additional
requirement NOT found in the DNA Rules but provided under jurisprudence.
If the purpose of the DNA testing is to determine the filiation of the child vis-a-vis
the putative parent, the court should conduct a hearing and during the hearing,
other than ascertaining compliance with the requisites under the DNA Rules, the
court should also determine if a PRIMA FACIE case is established by the party who
wishes to avail of the DNA test that the father is likely to be the parent. Example,
the mother or the child himself who files the petition for the availment of the DNA
test is NOT entitled to have the test conducted as a MATTER OF RIGHT. The
petitioner must first establish a prima facie case before an order is given.
Jessie Lucas vs. Jesus Lucas
Facts: Jessie is the purported child whose paternity and filiation was denied by his
putative father Jesus. And so an action to recognize illegitimate Filiation was filed by
Jessie against Jesus. Upon service of summons, the defendant or the putative father,
filed a comment asking the court to dismiss the petition on the ground that it was
premature for Jessie to ask for DNA Testing because Jessie has not yet established a
prima facie case that the respondent is likely to be the father. This is shared by the
CA, the Court of Appeals said that if we are to allow indiscriminate conduct of DNA
Testing at the instance of any party, this could be a dangerous policy where anyone
can be harassed by unfounded filiation or paternity suits. (Imagine if anyone can
run after Mr. Gonzalodo, and harass him with a potential DNA test to verify if his
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child was really his child) But if you look at the provisions of DNA Rules, theres
nothing there which requires compliance or establishment of prima facie case
before DNA Test can be authorized by the court.
Held: In this case the Supreme Court imposed additional requirement for the
conduct of DNA test in cases involving issue on paternity. So if you are the
applicant, Ms. Lao for example running after Mr. Gonzalodo, during the hearing of
the motion to allow the conduct of DNA test, Ms. Lao should be able to establish
prima facie case that Mr. Gonzalodo is likely to be the father of her child and that
the result of the DNA test will precisely confirm paternity.
How does the applicant establish prima facie case of paternity?
According to the SC in Lucas vs. Lucas, this can be established if the mother
testifies in court about her sexual relations with the putative father. Without the
mother testifying, no prima facie case can be established and therefore, DNA test
cannot be allowed by the court. Unfortunately for Jessie in this case, he was not able
to establish prima facie case of paternity. So note that you have to let them
establish first prima facie case before you can be vexed or harassed with DNA test.
Another case which highlights the importance of DNA Test is the case of PEOPLE
VS. RUFINO UMANITO. This case involves prosecution for rape; the rape of a
minor child which resulted in pregnancy and the eventual birth of the child. The trial
court convicted the accused; this was confirmed by the appellate court. But while
the case was pending before the SC, the DNA rules took effect in 2007. So the SC
made it an opportune time to test the viability of DNA rules. Particularly on the third
scenario, post-conviction DNA test.
c

The trial had already been completed and the accused convicted.

The decision has become final and executory. The accused or the prosecution in this
third scenario may resort to this so-called Post Conviction DNA Test so long as
the conditions are complied with like there are sealed biological samples, or the
integrity is preserved. If the result is consistent with the innocence of the accused,
under the rules, the court is mandated to overturn the judgment of conviction and
release the convict. So in this case, The SC applied the provisions on Post-Conviction
DNA test. Umanito was already convicted, but on appeal the SC ordered the conduct
of DNA test. Because the theory of the prosecution was that, as the result of the
rape, a child was born. In fact, in the decision, Umanito was ordered to support the
child. So the SC theorized that if Umanito is not the father of the child, then this
certainly will create reasonable doubt as to the guilt of Umanito. So the case was
remanded to the trial court for the conduct of DNA test. Unfortunately for him, the
result was positive. The result of the DNA shows that the child is 99.9% his own
child. And under the DNA rules, when the value of probability of paternity is 99.9%
or more, that results constitutes an indisputable presumption of paternity.
**Take note that the 3rd scenario, post-conviction, can only be resorted to if
the decision of the court is of conviction. If the decision of the court is
acquittal, the prosecution may not result to DNA test hoping that the DNA test will
show that the accused is guilty. So if in the prosecution for murder or rape, after
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trial the court finds the accused not guilty, the prosecution may not result to DNA
test hoping that the DNA test will show that he is the one indeed responsible for the
crime. This is not allowed, what is allowed is only a post-conviction. If the accused
is convicted, he has his last chance for the reversal of the decision by resorting to
DNA test. Obviously, Post-conviction DNA test is intended for the benefit of the
accused, not for the benefit of the complainant.
May post-conviction DNA test be resorted to after the service of the
sentence?
The post-conviction DNA test has a provision that clearly provides that it
presupposes a conviction of final judgment and executory or not yet
executed. So if the convict has already served a sentence, like sentenced for 20
years and after 20 years he was able to bump into a biological sample, postconviction can no longer be resorted to under the present wording of the DNA rules.
The point of having post-conviction DNA test is to obtain a reversal of the decision
of conviction. So if the sentence has already been fully served, there is nothing left
to reverse. Although strictly and literally applying the rules may not be a good
policy because there might be some other worthy objectives or purposes that may
be achieved by the DNA test even after the service of the sentence. One of this is
the accessory penalty when a person is convicted with a grave offense like
disqualification from holding public office or disqualification to obtain government
benefits.
If DNA testing cannot be resorted after the service of the sentence, then the
judgment of the conviction stays and all the accessory penalties will follow as a
matter of course. That would be prejudicial to the accused because the only concern
there is not only the physical confinement of the accused. There are other
consequential matters that should be looked into and which the accused can be
prevented from suffering the consequence thereof by the result of the DNA. But
obviously, the application of the post-conviction DNA test is limited only to a
situation where the convict is still serving the sentence, not fully served the
sentence. This is consistent with the other provisions in the DNA rules which
mandate the court to order the preservation of biological samples or other DNA
evidence presented during the trial. So the court is mandated, under the rules, to
cause the preservation of DNA evidence, but the period of preservation is specific.
1

CRIMINAL CASE - If it is used in a criminal case, the court is only mandated

to preserve up to the full service of the sentence. So if the sentence of the
accused has been fully served, whatever DNA evidence which may have been
presented during the trial in connection with the case may not anymore be
preserved. This is consistent with the post-conviction DNA test, that after full
service of the sentence, no more DNA testing may be allowed.

CIVIL CASE - If it is used in a civil case, the DNA evidence should be

preserved up to the time of the completion of the trial or when the decision is
rendered and the decision becomes final. If the decision becomes final, the
court is no longer bound to cause the preservation of the DNA evidence. So,
again consistent with the interpretation that DNA test may only be resorted
to at any time before the full service of the sentence of conviction.

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An order granting or allowing the conduct of DNA test is not appealable. The remedy
of the aggrieved party is to file a petition for certiorari on the ground of grave abuse
but the mere filing of the petition for certiorari does not stay the conduct of the DNA
test. The only way that the DNA test may be stayed is when the appellate court
where the petition for certiorari is filed, issues a TRO or writ of preliminary
injunction.
What is the result if the State loses a DNA evidence or biological sample?
Suppose the police in the course of investigation was able to obtain biological
samples from the body of the victim, the police subjected this to DNA test and the
test yields negative, what would prevent the police from withholding this
information when the police is bent on running after the suspect? What would
prevent the police from intentionally losing the biological sample thereby depriving
the suspect the opportunity to avail of the DNA test? So what is the rule if a
biological sample is lost and resulting in the denial of the right of the accused to
avail of the DNA test?
This is the ruling in the case of Lejano vs CA. You remember the case of Hubert
Webb. This involves complicated issues. One of the issues involved the DNA Test.
During the course of the investigation of this case, the police was able to collect
vaginal swabs from the genitalia of the victim, Carmela Visconde. Insistent on their
innocence, the accused, during the pendency of the case, moved for the conduct of
a DNA test on the vaginal swabs taken from the genitalia of the victim. This was
denied by the trial court, holding that the result of the DNA test, even if it turns out
negative, will not necessarily negate the crime because presence of spermatozoa is
not even an element of the crime of rape. Mere penetration of the penis to the labia
is enough. So whether it is positive or negative, the trial court says it is irrelevant,
so denied. When they (accused) were convicted and the case, on automatic appeal
pending before the SC, one of the assignment of errors raised by the accused was
the matter on the biological sample. Because it turned out that the prosecution
could not now present the biological samples. In short, the biological samples could
not be accounted for. So the accused argued before the Supreme Court, that this
results to the denial of due process. Had the samples been made available to the
accused, the results would have been negative. How did the SC address this issue?
The SC said, first, the loss of the biological sample or DNA evidence for that matter,
does not by itself result in the denial of due process on the part of the accused,
except if the State or the police is guilty of bad faith. In this case, the accused
failed to prove that the loss or unavailability of the DNA evidence was deliberate on
the part of the State. More importantly, the SC faulted the defense. The SC said,
when their motion to conduct the DNA test was denied by the trial court, the
accused should have pursued the matter all the way up if they were really
interested in asserting their right to conduct DNA test. But it turned out and it was
established that the defense did not anymore pursue the matter on the DNA testing.
So, the SC said, if there is anybody to blame, that would be the accused
themselves. Although it was argued there that the rules on DNA were not yet in
effect at that time. So that the policy now, insofar as the Lejano case is concerned
is the fact of the loss of biological samples or DNA evidence does not
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necessarily result in the denial of due process except if the State or the
police is guilty of bad faith. If the purpose of the loss is deliberate to deprive the
accused the opportunity to establish that he or she is not liable or guilty of the
crime, then deliberate loss or destruction of the DNA evidence could result in denial
of due process and therefore acquittal of the accused.

TOPIC 7: BEST EVIDENCE RULE

Lets go to BEST EVIDENCE RULE. Were done with object evidence. Lets go to
DOCUMENTARY EVIDENCE. How does the rule define a document? Document has its
technical, legal meaning.
Section 2. Documentary evidence. Documents as evidence consist of writing or
any material containing letters, words, numbers, figures, symbols or other modes of
written expression offered as proof of their contents.
Sec. 2 of Rule 130 defines what a document is, or documentary evidence. A
documentary evidence consists of a writing or any material containing letters,
words, numbers, figures, symbols or other modes of written expression, and take
note this is the most important part, offered as proof of its contents. A writing or a
material containing letters, words, and so on and so forth, can only be considered
for purposes of evidence as documentary evidence if and when the writing or the
material is offered as proof of its contents. If the purpose is to prove something else
other than the contents, that writing or material even if offered in evidence cannot
be considered as documentary evidence. Probably, as object evidence like when the
purpose is to establish the existence or the condition of the material or the writing,
not the contents, that material is offered as object and not documentary and
therefore the exclusionary rules which peculiarly govern documentary evidence
cannot be made to apply. One of which is the best evidence rule because the best
evidence rule applies only to documentary evidence and does not apply to object
evidence. So thats the definition of documentary evidence.
What is meant by the Best Evidence Rule?
Sec. 3 of Rule 130 says that when the subject of inquiry is the contents of the
document, no evidence shall be admissible other than the original document itself.
The best evidence rule applies only when the subject of inquiry is the contents of a
writing or a document. Again, if the contents are not the subject of inquiry, the best
evidence rule does not apply because the writing is not a documentary evidence. If
the subject of inquiry is the contents, under the best evidence rule, the contents
can only be proved by the original writing itself. Therefore, or in other words, the
contents of a writing cannot be proved by a copy of a writing. Neither can it be
proved by the testimony of witnesses. The only admissible evidence is the original
writing itself.
Not all cases where a writing is offered in evidence that the original should be
presented. In fact, there are even instances where the presentation of the writing is
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not required. Here you can prove the fact that the proponent seeks to establish
even without presenting the writing.
When do we say that the subject of the inquiry is the contents of the
document?
To determine if the subject of the inquiry is the contents of the document, the
question involved there is: What does the document say? If this is the question that
is at issue, then certainly we can say that the contents of the document are the
subject of inquiry. How does the question what does the document say? arise?
When is this question possible? It arises when the parties disagree as to the precise
terms, wordings, figures, symbols of the writing. In other words, there is an issue as
to the accuracy of the contents of the documents. Thus, it calls for the
application of the best-evidence rule.
This is the ruling in the case of Metropolitan Bank and Trust Company vs Del
Monte Motorworks.
Facts: In this case, MBTC extended loan to defendants. As evidence of the loan, the
defendants were made to execute promissory notes in favor of the bank. When the
loan obligation fell due and the defendants failed to pay, the bank instituted an
action for recovery of sums of money. In its complaint, the bank appended a
photocopy of the duplicate original of the promissory note. In their answer,
the defendants interposed the defense that the notes are void for want of
consideration since they never received anything from the bank. During trial, the
bank only presented the photocopy of the PNs. When the case went up to the SC,
one of the errors assigned by defendants is that it was error for the trial court to
admit in evidence the photocopies of the PNs in light of the best-evidence rule. They
said the bank should have presented the original.
Ruling: SC held that the best-evidence rule applies only in a situation where the
subject of inquiry is the contents of a writing. But in this case, even in their answer,
the defendants never disputed the terms of the PN. They never alleged that the
terms found in the PNs were inaccurate. Thus, the best-evidence rule does not apply
here and the photocopy is admissible.
Instances when best-evidence rule does not apply:
1 If the purpose of presenting a writing is not to prove its contents but
only the existence, execution or delivery of the writing, that writing
is only offered as object evidence and not as documentary evidence
and thus best-evidence rule does not apply.
-

This was the ruling in the case of People vs Tandoy, where there was a
prosecution for violation of Dangerous Drugs Act in the course of a buy-bust
operation. One of the pieces of evidence offered during trial was the
photocopy of the alleged marked money used as consideration for the subject
illegal drugs. The admission of the photocopy was objected to by the defense
on the ground of best-evidence rule. Taking cue from this objection, the
defense argued that the prosecution failed to prove that there really was a

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transaction of sale and thus the accused should be acquitted. SC ruled that
the best evidence rule does not apply when the issue does not involve the
contents of the document. In this case, the issue is only whether or not there
was a transaction of sale. So obviously, the only purpose of the prosecution in
presenting the evidence was only to prove the existence of the marked
money.
-

In People vs Arceo, there was a prosecution under BP 22. During trial,

complainant only presented a photocopy of the check. Defense invoked bestevidence rule. SC brushed aside this argument, holding that the contents of
the check were never the subject of the inquiry. Precisely, in a prosecution for
violation of BP 22, the gravamen of the offense is simply the issuance and
delivery of the check and never its contents. This can always be proved by a
photocopy or even testimonies of witnesses.

2 When a document or a writing is only collateral to the fact in issue,

which is otherwise known as the "Collateral Fact Rule".
A document there is only collateral to the fact in issue, not the fact in issue but only
collateral to the fact in issue. This is illustrated in the case of Air France v.
Carrascoso.
Air France v. Carrascoso
Facts: This involves a traveller, a Filipino, a poor Filipino traveller who, fated by
ancestral destiny of being subject of discrimination when in a foreign country found
himself bumped off in his journey abroad, one of the legs of his journey. He was
bumped off in favor of a white man. I don't know why you really want to travel
abroad and subject yourself to the indignities of discrimination. So this is the plight
of a poor Filipino. So his pride bruised, he tried to assert and show this Filipino spirit,
and this resulted in a heated altercation with one of the members of the crew. Now
it happens that the altercation between Carrascoso and the crew was witnessed by
another crew member and the crew member allegedly recorded in his notebook
what he has observed during the altercation between Carrascoso and the other
crew member of the aircraft. During the trial, Carrascoso took the stand and
recounted how the altercation, the whole incident, took place. And when Carrascoso
was now trying to testify as to the altercation that ensued between him and the
crew member when he complained about being bumped off, Carrascoso made
mention that the incident was, in fact, recorded by another crew member in the
latter's notebook. But at this precise stage of the proceedings, the notebook was not
yet presented. So the other party objected to the testimony of Carrascoso making
reference to the act of recording the altercation invoking the "Best Evidence Rule".
The counsel for the airline argued that the best evidence is the notebook itself. It
cannot be proved by the mere testimony of Carrascoso. So the question there was
whether or not the invocation of Best Evidence Rule" was proper. The Supreme
Court saw it the other way.
Held: The Supreme Court said, the Best Evidence Rule" presupposes that the
contents of a document or writing are the subject of inquiry. In this case, the
contents of the document are never the subject of inquiry. As a matter of fact, the
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existence of the document there is never an issue, only collateral to the fact in
issue. The fact in issue there is about the altercation between Carrascoso and the
crew member resulting from the bumping off incident. The reference to a writing,
which is the notebook in this case, is a collateral fact but never the fact in issue and
so there is no occasion to apply the "Best Evidence Rule". That's the second
instance.
3

When the purpose of presenting a document is to prove a fact which

has independent existence from a document.

The fact in issue there has an existence independent from the document even if
that fact happens to be evidenced by writing or reduced into writing. A fact which
has existence independent from any writing, in other words, that fact exists with or
without a writing. But for one reason or another, that fact may have been reduced
into writing or evidenced by a writing. This is another instance when the "Best
Evidence Rule" does not apply. This is the ruling the case of Meyers v. U.S.
Meyers v. U.S.
Facts: The accused was prosecuted for perjury for making untruthful statements
during a senate investigation hearing. So this is an offshoot of the hearing of one of
the committees of the senate when the accused testified as a witness. In the course
of his testimony, before the committee investigation, this is an investigation
hearing, the accused allegedly made injurious, untruthful statement. And because
of this he was prosecuted and a criminal case for perjury for making untruthful
statement was filed against him in court. So during the trial, and in an effort to
substantiate the charge of perjury, one of the pieces of evidence that the state or
prosecution adduced is the testimony of a witness, take note, a testimony of a
witness who was present during the investigation hearing and heard the testimony
of the accused- the testimony being the subject of perjury case- because this
testimony alleged to be perjurious. But the defense objected to the presentation of
the witness and to his intended testimony under the Best Evidence Rule" arguing
that the best evidence is the transcript of the hearing covering the testimony of the
accused. The accused argued that the perjurious statement, the existence of the
perjurious statement cannot be proved by the testimony of the witness but by the
transcript under the Best Evidence Rule". This was rejected by the court.
Held: The court said that the "Best Evidence Rule" applies in a situation where the
contents of the writing are the subject of inquiry. In this case, the subject of inquiry
is never the contents of the transcript. There was no issue about the transcript. The
issue was whether or not the accused indeed made a perjurious statement during
the investigation hearing and this issue has its existence independent from any
writing. So that the Supreme Court said, to prove that indeed the accused made a
perjurious statement during the senate investigation hearing, not only is the
transcript the only available evidence but this fact can be proved by other evidence
other than the transcript like the testimony of the witness who may have heard the
accused making the perjurious statement during the senate investigation hearing.
So this illustrates the situation where a fact has its existence independent from any
writing because whether or not there was a transcript taken, it does not detract
from the fact that the accused made a statement during the investigation hearing.
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This is a fact independent from any writing although in this case it may have been
evidenced by a writing. But the writing itself, the contents of the writing are not the
one subject of inquiry but the fact that the writing seeks to evidence. The transcript
simply tries to or seeks to evidence the fact. But the absence of the transcript does
not negate the existence of the fact. That is the essence of this ruling.
In the same manner when you handle the case for, like marriage. One of the crucial
issues there is the existence of marriage. Now this fact of marriage has an
independent existence. It has existence independent from a marriage contract. As a
matter of fact, the rule is that the absence of a marriage contract does not mean
absence of marriage. Because marriage can be proved by evidence other than the
marriage contract. Precisely why we have witnesses. The witnesses could prove the
existence of marriage and their testimony may be sufficient even in the absence of
marriage contract itself. So to prove the fact of marriage, the marriage contract is
not indispensible. Although it is ideal, but not indispensible. So if, for one reason or
another, your client cannot present a marriage contract, don't lose hope! There are
still other pieces of evidence that you can use to prove the fact of marriage.
Similarly if you are prosecuting for murder. You are the public prosecutor. One of the
elements of murder is the fact of death. The fact of death may be proved not only
by the certificate of death, it may be proved by, because the fact of death has
existence independent from the certificate of death although, by existing rules, it
may have been evidenced or reduced into some official record but it doesn't mean
that the official record evidencing the fact of death is the only evidence to prove the
fact of death. So the fact of death even without presenting the certificate of death
may be proved by testimonies of witnesses. Or the fact of birth- may be proved by
testimony of witnesses. In fact, there are people who have no certificate of birth.
Some pet dogs are better-off than them. Do you know that some pet dogs have
their certificate of birth? They have their medical history, they also have their own
hospitals, and recently, I just learned they also have their own SPA. So sometimes, I
wish to be animal. They are better-off than humans.
4

If the genuineness and due execution of a document, and the terms

and conditions of a document are admitted by the adverse party.

There is a dispute involving document like an action for collection for sum of money
where the promissory note is the actionable document. If the terms and conditions
of promissory note are admitted by the adverse party, then there is no need to
present the original. Because if it's admitted then it is established as a fact- judicial
admission. So no need for evidence. More so, no need for the original to prove
something which has already been admitted. This is the ruling in the case of The
Consolidated Bank v. Del Monte Motor Works. The defendants in this case
failed to specifically deny the genuineness and due execution of the promissory
notes involved because their only defense was want of consideration. Supreme
Court said their failure to deny the genuineness and due execution of promissory
notes amounts to an admission- implied admission of the genuineness and due
execution of promissory note. Genuineness and due execution includes an
admission that the terms and conditions in the promissory note are true and correct,
not falsified. No need for the presentation of the original.

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Like any other exclusionary rules, objection to the admission of an

evidence under the "Best Evidence Rule" is not self-executing
mechanism. So it must be invoked timely by the party entitled to
invoke it.

So if the adverse party presents a secondary evidence in a dispute where the

subject of inquiry is the contents of a document, but the adverse party failed to
timely object to the presentation or offer of the secondary evidence like a
photocopy or a testimony of a witness, the failure to timely raise the objection
renders the otherwise objectionable piece of evidence admissible.
This was the ruling in the case of Dela Cruz v. Court of Appeals.
Facts: This involves a piece of land which was sold twice. So this was sold by the
brothers to the defendants. Subsequently, it turned out that the same vendors sold
the land to another. When they learned about the second sale, the first buyers filed
a case for reconveyance of the property. In support of their complaint, the plaintiffs
introduced in evidence a photocopy of Deed of Sale. During the trial, however, for
reason known only to the plaintiffs, the original of the Deed of Sale was not
presented, only a photocopy. The problem is, the defendants failed to object to the
admission of the photocopy when the photocopy was formally offered. So when the
case finally went all the way up to the Supreme Court, the admission of the
photocopy was assailed under the "Best Evidence Rule".
Held: The Supreme Court said, while it is true that the presentation of the
photocopy without accounting for the lost or unavailability of the original violated
the "Best Evidence Rule", the failure of the defendant to raise the objection timely
when the evidence was formally offered during the trial renders an otherwise
inadmissible evidence admissible. So "Best Evidence Rule" should be invoked timely
by the proper party.
What is an original document?
Under the best evidence rule, it is when the question is what does the document
say which requires the contents of the document. The contents of the document
and the writing may not be proved other than the original document itself.
What is the original document contemplated under the best evidence rule?
The original under the best evidence rule has its own technical meaning and to say
that the original document is the first document produced is a misnomer. Under the
best evidence rule, its not about the first, second or third document produced and
in fact the order of creation or production is irrelevant for purposes of determining
on what should be the original document to be presented. So the rules define what
are original documents for purposes of best evidence rule.
3 Classifications of Original Document
1. Contents of such Original document is subject of inquiry.

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So any document where the subject of inquiry is its contents is deemed to be

original even though it is not the first document produced.
o

It is not impossible that a photocopy is considered original as long as

the contents of the photocopy are the subject of inquiry. Because it is
possible that a photocopy is superimposed or falsified by other entries
and the falsified entry may become the subject of inquiry. So if the
entry which is the content of the photocopy is the very issue in the
case, the presentation of the photocopy containing the alleged falsified
entry is the original even though it is just a photocopy.

Example is a fax message for example facsimile copy in the ordinary

and context of the best evidence rule. Fax copy originated from a
paper-based document scanned and transmitted through telephone
line and the other end generates its own copy called that facsimile
copy. The fax transmission process presupposes 2 copies both paper
based, the original copy as sent and the original copy as received.
Suppose an issue of falsification arises because it is claimed that what
was sent is not the one received and it is common when we would
send cards through RCPI and PT&T it is not a common experience when
the sender purposely intended to send a Christmas card but what was
actually received by the addressee was something else. Card sa patay
(mass card) and a quite number of cases coz what was sent was not
actually received for one reason or another negligence or maybe
deliberate intention. This experience cannot also be discounted on
facsimile transmission there might be some irregularities and glitches
in the process. Suppose an issue arises on what really is the message
intended to be sent and what was received was a different message.
The issue on best evidence is what is the original document? There are
2 copies there the copy as sent and copy as received, but both copies
contained different entries. How do you prove falsification and how do
you prove negligence in the issue (this could be an interesting question
on which should be considered as the original) now for purposes of this
problem you cannot determine on which one is correct without
presenting both because necessarily there has to be a comparison on
what was sent and what was received. For purposes of best evidence
rule to determine the issue on what message was actually sent when
the original document is the document actually sent, meaning the first
paper based copy. Now when the issue is on what is actually received
then the original document now for purposes of the best evidence rule
is the other facsimile copy. So both may be considered originals
depending on the subject of inquiry and originally the facsimile is a
copy this is not the first and it is just the reproduction of the original.
And for purposes of determining what message was actually received,
under the first definition of an original document then it certainly is an
original and if it is available it should be presented before a secondary
evidence may be allowed.

2. When a document is in two or more copies executed at the same

time with identical contents, are all considered originals.
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Before when we prepare documents and we want it in 2 or more copies we

usually use carbon. These copies, the duplicate, triplicate and so on are copies
but under the 2nd definition that when a document is in 2 or more copies
executed at or about the same time with identical contents are all regarded as
original. So if there are 10 copies produced by use of carbon, any of the 10 may
be presented as evidence without accounting for the first produced. The last
copy may be produced and it is as good as the first copy. The only qualification
there is that it should contain the same identical contents.
PEOPLE VS HON. TAN
Facts: Prosecution for violation of the anti-graft and corrupt practices
act. Filed against the government official who was accused of procuring
for supplies or material in behalf of the government office but accused
to have falsified the receipts and it was alleged that the purchases
where ghost goods so naturally during the prosecution the trial, the
most important evidence produced were the alleged falsified receipts
the problem however was that the receipts are in 3 copies but what
was introduced during the trial is the 3rd copy. So the admission of the
triplicate was objected to on the ground of the best evidence rule. It
was argued that the first copy should have been the one presented
and without accounting of the loss or unavailability of the 1 st then the
2nd or the third is not allowed under the best evidence rule.
Held: It was objected by the SC saying that when the document is in 2
or more copies executed at or about the same time with identical
contents are regarded as originals. So the second, third is as good as
the first copy and any copy may be presented as evidence.
3. When an entry is repeated in the regular course of business, one
being copied from another at or near the time of the transaction, all
the entries are likewise equally regarded as originals.
So, a technical example of this kind of evidence is a journal. This is a commercial
document prepared by people engaged in trading business. So assuming, Mr.
Semillano, a china man, engaged in sari-sari store, by way of documenting all his
sales transaction every day, prepares three kinds of journals where the sales
clerk is supposed to record all the daily sale transactions. Three journals, one
intended for the owner, Mr. Chinese businessman Semillano, the other journal is
intended for his wife, and the third journal is for his mistress. The wife does not
trust Mr. Semillano, and so does the mistress. So the mistress is characterized by
mistrust. Everyone or everybody demands for a journal or a copy of the journal.
So, the sales clerk now, every time there is sales transaction, records all the
transactions. Transaction one, example, 20 transactions, the item purchased, the
amount, and so forth. She records it to the journal intended for Mr. Semillano,
then she repeats the same entries for the journal intended for the wife, and
repeats the same entries for the journal intended for the mistress. If an issue
arises involving the entries in the journals, the entries become subject of the
court under falsification, any of the journals may be presented in evidence
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without accounting for the other, because all the entries there, if prepared in the
regular course of business and about or in the same time are considered as
originals. So these are the classifications of original documents, as defined under
the rules of court.
So, lets go back to the instances where best evidence rule does not apply, when
the case falls under any of the exceptions to the application of best evidence rule.
What are the exceptions? When the problem or disputes falls under any of the
exceptions, the rules allow the introduction of secondary evidence.
SECONDARY EVIDENCE
So the exceptions are otherwise referred to as SECONDARY EVIDENCE, because
the exceptions allow the presentation of secondary evidence in lieu of the original.
So what are the exceptions?
Section 3. Original document must be produced; exceptions. When
the subject of inquiry is the contents of a document, no evidence shall be
admissible other than the original document itself, except in the following
cases:
(a) When the original has been lost or destroyed, or cannot be
produced in court, without bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party
against whom the evidence is offered, and the latter fails to produce it after
reasonable notice;
(c) When the original consists of numerous accounts or other
documents which cannot be examined in court without great loss of time and
the fact sought to be established from them is only the general result of the
whole; and
(d) When the original is a public record in the custody of a public
officer or is recorded in a public office
1

When the original is not available because it is lost, destroyed, or

cannot be produced in court without bad faith in the part of the
offeror.

It would be absurd to demand for the presentation of the original when the original
is not available as it cannot be produced. So the rules allow, in this instance,
introduction of secondary evidence. So what could be the secondary evidence that
may be introduced in lieu of the original? The rule also provides for the specific
type of secondary evidence, in the order stated.
a. COPY OF THE ORIGINAL
Take note of this copy, is not a copy referred to in the definition of the
original document, when the document is two or more copies, it is not the
one because, if it falls under that definition, then that copy is the original.
The copy here is ANY REPRODUCTION of the original, other than the one
defined as original. A typical example is photocopy. Some original
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document is being photocopied. I am talking about paper-based. The copy

of the original is the first preferred secondary evidence.
b. ANY RECITAL OF THE ORIGINAL IN SOME AUTHENTIC RECORDS
A textbook example of this type is, you notice a document, and youre
familiar with the ordinary birth certificate or marriage contract. Marriage
contract is really a contract, but I suppose you are also familiar with a
document procured from the local civil registrar, it only contains an
excerpt. Not necessarily the contract because it does not contain the
signature of the parties but it summarizes the entries of the marriage
contract. It is not really the marriage contract itself, its just a certification.
But all the salient or important data or entries in the marriage contract are
put in together. Now, in the absence of the marriage contract itself, that
certification containing the recital of the entries of the marriage contract
means, it might fall under this type of secondary evidence. The same is
true as regards birth certificate. A birth certificate has its unique
prescribed form. But there are instances when the birth certificate itself is
not available for whatever reason. What you procured from the local civil
registrar is only the excerpt or the certification. That is a perfect example
of a recital of the entries of the original of some authentic writing.
c. Third, in the absence of a copy and in the absence of other authentic
writing or record containing the recital of the entries, then you may resort
to TESTIMONIAL EVIDENCE. Take note, it should be in that given order.
So you have to prove, first, if you intend to present the second, you prove
the unavailability of the first. And if you intend to prove through
testimonial evidence, then you have to prove the unavailability of the first
and the second.
So, what are the conditions before the proponent may resort to secondary
evidence in case of loss, destruction, or unavailability of the original, in
the first exception?
The rules prescribe stringent conditions before secondary evidence may be
introduced. The proponent cannot just simply introduce secondary evidence without
complying with the prerequisites. The conditions are as follows:
1 the proponent must establish first the fact of execution or
existence of the original;
2 the fact of loss;
3 the contents of the original; and,
4 absence of bad faith in the part of the proponent.
Lets go to the first requisite. How do you prove that the original document is
actually existed or the genuineness of the due execution of the original document
which you have claimed that is lost, destroyed, or cannot be produced?
The Rules is specific on the rules to prove the fact of the existence and due
execution. How do you prove? The fact of existence or due execution may be proved
by the following witness:
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By the parties to the document. So if it is a contract of _____ then it

can be proved by the testimony of the ____.

By the person to whom it was acknowledged. So, a notary public

may testify and prove in court that this deed of sale was actually
executed or entered into by the parties. This is a recorded sale, of a
particular subject.

By the testimony of witnesses to the execution. Thats why most

public instruments, although it is not necessary for validity but we
have this standard spaces allotted for signatures of witnesses. The
presence of the signatures of the witnesses is not just there for
convenience or some aesthetic purposes. It comes with a practical
value when dispute arises on the due execution or existence of the
document becomes an issue, then the proponent may count on the
testimony of the witnesses. Thats the importance of the involvement
of the witnesses in the execution of the documents, although it is not
really for validity, its more for evidential reports.

By the testimony of someone who has seen the document after

its execution and he is familiar with the signatures appearing
on the document. So the fourth witness should be distinguished from
the third, because in the third, the witness there is really a witness to
the execution, meaning one who is present when the document was
executed. The fourth witness was not present or was not one of the
witnesses who signed the document. His only involvement was his
knowledge of the document after the execution but the value of his
testimony lies with the fact that he is familiar with the signatures
appearing in the document. He may be a competent witness to
establish the fact of the due execution or existence of the document
which have been lost.

5 A person who is not a party, not the notary public, not a

witness to the execution, not a party familiar to the signature,
but someone who happens to be a confidante of any of the
parties.
So if after the execution of the deed of sale, Mr. Semillano confided to
Mr. Santos, my friend, I bought a condominium unit for my mistress
but be careful with condominium units (lol). So that someone, who may
have learned about the execution, of any information relayed by any of
the parties, may be a competent witness to testify the fact of due
execution and existence of the document.
So these are the probable witnesses you may present in court to prove the first
requisite the existence and due execution of the original document, which you
claim to have been lost, destroyed or cannot be produced.
Second Requisite. What is the second requisite? The second requisite is the fact
of loss. You have to prove that document did not only exist but it was actually lost.
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How do you prove the fact of loss? The rules also prescribe specific witnesses who
may prove the fact of loss. Who are they?
a. Number one, someone who is familiar with the fact of loss. Someone who
knew that the document was lost or destroyed. So if the Deed of Sale
executed by Mr. Semillano and Mr. Santos was burned by fire and the
incident was witnessed by Ralph, then Ralph may testify as to fact of the
burning of the original document, because he has personal knowledge as
to the facts and circumstances under which the document got lost.
b. Second witness is someone who conducted investigation in places where
documents or similar papers are usually or normally placed and wasnt
able to find it. So if you happen to be familiar with the safe for example,
from your family, your parents kept a steel cabinet where important
documents are kept and the document is nowhere to be found. The
witness may testify that he exerted reasonable effort to look for the
original document in the steel cabinet of his parents, where his parents
normally place documents of similar nature, that witness may qualify as a
witness to prove the fact of loss and is unable to find it despite reasonable
efforts.
c. Third witness is a witness who can testify that he made any other
investigation, not necessarily in the place where similar documents are
kept if original, but any form of investigation to find the missing document
but the effort proved futile. So any other effort to obtain, the witness who
conducted or exerted effort for this purpose may testify as to the fact of
loss.
So there are three kinds of possible witnesses to prove the fact of loss.
Third Requisite. Lets go to the third requisite. After proving the due existence and
due execution, and after proving the fact of loss, you now need to prove the
contents of the missing original. It is in the process of proving the contents of
the missing original that you may now present the secondary evidence. That is
precisely the purpose of the secondary evidence, to prove the contents, because
the contents are the subject of the requirement. Now the contents will be proved by
copy of the original, recital of the entries of the original in some authentic writing,
and testimonies of witnesses.
Fourth Requisite. And the fourth, you need to prove that the loss, destruction, or
unavailability of the original is not due to bad faith on the part of the offeror.
If these requisites are complied with, the presentation of secondary evidence may
not be objected to under the Best Evidence Rule.
**Take note, that when you account for the loss, destruction, or unavailability of the
original, meaning you want to prove the fact of loss, you have to establish that all
originals got lost or all originals got destroyed or all originals cannot be produced in
court, because it may happen that the document consist in two or more original
copies. Like copies produced by the use of carbon, supposed there are five copies,
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all are considered originals. Now, for purposes of introducing secondary evidence,
make sure that all the copies are properly accounted for. Meaning, you must prove
that all the five copies cannot be produced in court. Because if you only account for
one or two but not all, this is not sufficient compliance with the condition for
introducing secondary evidence, because there is still one or two or some original
which is presumably available. Take note that secondary may be introduced if
original is not available. This is the ruling in the case of De Vera vs. Aguilar.
De Vera vs. Aguilar
Facts: This involves a piece of land owned by Marcosa Bernabe. Marcosa had five
children, three sons and two daughters. During the lifetime of Marcosa, two of her
sons obtained a loan from a lawyer and as security for the loan, the land was
mortgaged, so a Real Estate Mortgage was constituted over the land. When the
sons failed to pay the loan, one of the daughters, who was married to an Aguilar,
redeemed the property. So when the property was redeemed by one of Marcosas
daughters, Aguilar, Marcosa sold the property to the Aguilars. I can only surmise
that the sale there had no consideration because the daughter was the one who
redeemed. But for the protection of the daughter, Marcosa executed a Deed of Sale
in favor of the daughter and her husband. When Marcosa died, the other children
now complained. They now asserted their right claiming that they are co-owners of
the same property that they inherited from their mother. Moreover, they claimed
that while Marcosa, during her lifetime, sold the property spouses Aguilar, this was
reconveyed to Marcosa during her lifetime. So other heirs of Marcosa adopted their
approach that: 1) they are still co-owners; and 2) that the property was reconveyed
by the Aguilars to Marcosa. So at the time of her death, Marcosa was the owner and
the children inherited the property, so they are co-owners. Thats their theory.
During the trial, they presented the Deed of Sale purportedly executed by Marcosa,
to prove that the property was reconveyed to Marcosa after Marcosa sold the
property to the Aguilars. One of the witnesses presented was the notary public. Now
it was established during the trial that the Deed of Sale was prepared in four to five
original copies. And unfortunately for the proponents, the other children of Marcosa,
they were only able to account for three originals leaving the other two
unaccounted for. Meaning, they were only able to prove the unavailability of the
three but unable to prove the fact of loss of the remaining two.
Held: The Supreme Court said this is fatal to the cause of the proponents. Because
of their failure to account for the loss, destruction or unavailability of all original
copies, the introduction of the secondary evidence, consisting of the photocopy,
does not satisfy the requirement of Best Evidence Rule vis--vis secondary
evidence.
Country Bankers Association vs. Lagman
Facts: The same ruling was adopted in this case of Country Bankers
Association vs. Antonio Lagman. This is a fairly recent case. There is this
Santos, (I dont know if they have any relation with Mr. Marvin Santos..lol! :p),
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engaged in the business of storing sacks of rice. So in pursuit of his business, he

applied for a permit from the National Food Authority. I think its a permit to
maintain a warehouse where he could store sacks of palay. One of the requirements
for the warehouse permit is the posting of a bond, to answer for whatever liability
the National Food Authority may be exposed to arising from the storage of the sacks
of palay. So for this purpose, Mr. Santos obtained a bond from Country Bankers, and
as security, the Country Bankers made Mr. Santos and Mr. Lagman, who was the
agent of Country Bankers to execute an indemnity agreement in favor of Country
Bankers in case Country Bankers would be made liable under the bond. Fast
forward, it turned out that the sacks of palay in the warehouse disappeared without
trace and so NFA was made liable. The bank has called, Country Bankers now turned
to Mr. Santos and Mr. Lagman for indemnity.
What was the defense of Mr. Lagman? Mr. Lagman claimed that there are actually 3
bonds issued by Country Bankers. 2 bonds were issued in 1989 where as guarantee
for obligation of Country Bankers, Mr. Santos and Mr. Lagman executed an
indemnity in favor of Country Bankers. But these 2 bonds issued in 1989 were,
allegedly according to Mr. Lagman, subsequently superseded by another bond
issued in 1990. But according to him that 1990 bond did not require the execution
of indemnity agreement. The indemnity agreement was executed only by Mr.
Lagman in so far as those 1989 bonds but not in the 1990. So premised in this
allegation, Mr. Santos claimed that he cannot be made liable in the absence of an
indemnity agreement. So, during the trial and in order to prove that there really was
in 1990 a bond that superseded the 1989 bonds, Mr. Santos presented only a
photocopy of the 1990 bond but it was established during the trial that the 1990
bond was prepared in 3 to 4 copies or 4 to 5 copies. But Mr. Lagman failed to
account for the loss, destruction or unavailability of some of the original copies of
the bond. He was only able to prove one or three copies of the original but not all.
Held: SC said that the introduction of secondary evidence was not sufficient for
failure to comply with the condition for introduction of secondary evidence and that
is the failure to account for the loss or unavailability of all the original documents.
2. When the original is in the possession of the adverse party who was
given reasonable notice to produce it but unable to produce.
Of course if the original is in the possession of the adverse party, it will be absurd to
fault you for not presenting the original. So what are the conditions before a
secondary evidence may be introduced in case the original is established to be in
the possession of the adverse party?
a. Existence and Due Execution of the original must first be established.
b. The fact that it is in the possession of the other party
c. Reasonable notice was given to the adverse party to produce it
d. Failure on the part of the adverse party to produce it despite reasonable
notice.
How do you comply with the requirement of reasonable notice?

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The giving of notice may be done in any of the following manner:

1. Avail of Rule 27: Production and Inspection of Documents. This is a mode of
discovery procedure.
2. By requesting for the issuance of Subpoena duces tecum.
3. By simple motion in court
4. By service of simple direct request of the proponent addressed to the adverse
party including the counsel of the latter which may be done during pre-trial
conference or at anytime during the proceedings.
EDSA SHANGRI-LA HOTEL VS BF CORPORATION
Facts: EDSA Shangri-la and BF entered into a construction contract where BF as the
contractor was supposed to send EDSA Shangrila progress billings as the
construction progresses. It was alleged by BF that of the 19 billings, the 14, 15, 16,
17, 18 and 19 were not paid by EDSA Shangri-la despite demands. So BF was
constrained to go to court to collect for the 14-19 progress billings. In support of
their contention, the lawyer for BF would have wanted to present the original of the
progress billings but obviously the originals were in the possession of Shangri-la
because the billings were supposed to be delivered to the other party. So how did
the counsel for BF comply with the notice requirement? He requested, in open court,
the lawyer of Shangri-la to produce the original billings. Now during the open court
hearing the lawyer undertook to refer the matter to his client. During the
subsequent hearings where the lawyer of Shangri-la was reminded about the
request fo the production of the originals, he simply told the court that he already
referred the matter to his client but until now they have no confirmation as to the
availability of the original. So in short, the lawyer declined to produce the original of
the billings which are said to be in their possession. Now during the trial, unable to
present the original, photocopies were presented. The admission was objected to
under the best evidence rule. But the SC said that this falls under the second
exception that when the original is in the possession of the adverse party who
despite reasonable notice failed to produce it in court.
Held: SC said the requirement of reasonable notice was duly complied with by the
counsel of BF when the lawyer in open court requested the lawyer of Shangri-la to
produce the original. And the failure of Shangri-la despite that request to produce
the original justified the introduction of the secondary evidence.
What happens if it is confirmed or the adverse party who has the possession of the
original fails or unable to produce the original? What do you do now? Certainly the
original cannot be produced because the adverse party whom you claimed to be in
the possession of the original refuses to produce it in court. If this happens, this
situation now falls under the first exception, meaning the original is no longer
available. It cannot be produced. So if the original cannot be produced because the
adverse party in possession of it refuses despite reasonable notice to produce it,
you go back to the first exception (loss, destruction, unavailability) so that this time
around you should now comply with the requirements prescribed for the first
exception before secondary evidence may be introduced. So go back to the
requirement of Loss, Execution, Existence, Contents and Good Faith.

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3. When the original documents consist of numerous accounts or

voluminous reports which cannot be produced in court without great loss
of time and the fact sought to be established by these numerous reports
is only the general result of the whole.
You dont need to present all the originals of numerous reports but instead you only
present the summary of those reports. So it may happen that your case involves a
truckload of documents as evidence i.e. you prosecute a crime of Estafa or theft
involving employees who misappropriated company funds for a period of several
years. So this would entail the presentation of official documents inclusive of the
period covered. So if the embezzlement or misappropriation of company funds took
place for a period of 5 years, so you can imagine the voluminous financial records in
establishing the cause of action or elements of the crime of embezzlement or
misappropriation. Under this 3rd exception, you dont need to present each and
every receipts. So numerous! Time-consuming and expensive and boring. So the
Rule allows an alternative manner of proving your case. You just present the
SUMMARY of all the transactions involved provided these 2 conditions are met:
1
2

the fact sought to be established by these numerous counts of record is just

the GENERAL result of all the documents, thats why it is called a summary
while you are only presenting the summary, make sure that the original
numerous accounts of records are MADE AVAILABLE to the ADVERSE PARTY

So that if the adverse party bothers to scrutinize each and every numerous
accounts involved they may do so at their expense. This is in compliance with due
process. So make sure its available. If you happen to present evidence under this
3rd exception, you shall manifest to the court that you are offering the summary but
for put on record the original numerous accounts of records from which the
summary is based are available for inspection or scrutiny of the adverse party. If the
adverse party fails to examine them then thats their problem. In so far as you are
concerned, presentation of the SUMMARY is compliance with the best evidence rule.
There are 3 originals. The last one is Public Document or Public Record. So if you
happen to present as your documentary evidence a Public Record, you DONT need
to SUBPOENA the custodian of the original. If you want to adduce in evidence your
marriage contract in an action for nullity of your marriage, you dont need to bother
the Local Civil Registrar to go to court and bring along with them the original
marriage contract. Instead you may resort to CERTIFIED TRUE COPY (CTC). The
Certified True Copy being an OFFICIAL RECORD, it can be identified by ANY WITNESS
not necessarily the custodian. This is an EXCEPTION to hearsay evidence rule
because being a public record, the entries are presumed to be PRIMA FACIE true. So
anyone, maybe the one who procured the CTC, your driver, your clerk, your
messenger, can testify as to the fact that they were the ones who procured the CTC
form the public office. Of course NOT as to the CONTENTS of the public records.
Electronic Evidence

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The Best Evidence Rule (BER) has a significant impact on the rules on Electronic
Evidence (EE) because for purposes of the BER an electronic document must also
comply with the requirements of BER if it is to be offered as evidence as
documentary evidence thus it is treated as an ordinary document. But as you will
know, the rules governing EE vis-a-vis the BER substantially departs from the rules
governing paper-based ordinary documents.
Whats an Electronic Document?
Interchangeably called Electronic Data Message. It is an information or a
representation of information, data, figures, symbols and other modes of written
expression described or however represented by which a right is created or
obligation extinguished or a fact established or affirmed which is received,
transmitted, recorded, stored, processed, produced electronically. The operative fact
there is ELECTRONICALLY PROCESSED/ GENERATED/ STORED/ TRANSMITTED/
RECORDED etc.
Take note that for a document to be considered electronic, ALL its processes must
be ELECTRONICALLY EFFECTED. So that if any aspect of the document is not
electronically processed as when some of the processes are manually produced,
that document cannot be considered as electronic in nature because it is no longer
electronically processed. This is the ruling in the case of NPC vs. Judge Codilla.
NaPoCor v. Judge Codilla
This involves a civil suit for damages filed by Napocor against the owner of a vessel
which rammed against one of the power barges of NPC causing severe substantial
damage. During the trial, and in support of NPCs allegation in its complaint, NPC
submitted various pieces of documentary evidence to prub among aders de ekstent
ob da dameds cossed bay de neglejens ob da dependant. Hehe. Some of these
pieces of documents were computerized but the signatures of the parties were
manually affixed. So while it is generated through the use of a computer, the
signatures were not digitally signed but manually signed. Some of these documents
consisted of communications (letters). The admission of these documents, because
photocopies were just presented , were objected to under the BER (kremmber pka?
hehe). NPC counter-argued that under the rules on EE, a photocopy is now
regarded as the functional equivalent of the original and therefore it may be
presented in evidence as if it is the original document itself.
Issue: WON the photocopy of the exhibits of these documents is the functional
equivalent of the original.
Obviously the NPC invoked the provisions on the rules on EE. That was the
misconception before, that the photocopy is now regarded as the same as the
original.

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Held: Before we shall resolve the issue on WON the photocopy may be presented
under the provisions on the EE Rule, we should first determine if the document itself
is electronic. If determined to be electronic then we apply the provisions of the EE
rule and determine if under the EE rule now a photocopy is regarded as a functional
equivalent of the original. So the Sc began by defining what an electronic
document is: it is a representation of information, data, figures which is received
and so on and so forth which is produced electronically. The SC made capital of the
fact that NOT ALL ASPECTS of these documents were electronically processed
because some of these documents wereMANUALLY signed and the presence of the
manual signatures can HARDLY make the document electronic. From this ruling it
can now be inferred that for a document to be considered as electronic, ALL THE
ASPECTS (entries, processes) of the document must be electronic in nature. Any
manual intervention takes the document out of the context of electronic document.
Since the documents objected to cannot be considered electronic, obviously being
an ordinary paper-based document, the photocopies cannot be admitted without
accounting for the original under the BER.
What are the common examples of electronic evidence?
Examples of electronic evidence -- digital images sourced out of digital cameras,
phones etc , voice messages, answering machines or evidence produced through
scanning process from an ordinary paper based document is converted into
something electronic like a picture that is scanned and made a wallpaper of a laptop
, text messages are also electronic evidence. Chatroom sessions , audio
streaming.
What is the best evidence rule in relation to electronic evidence?
Again under the best evidence rule, if the subject of the inquiry is the contents of a
document, you present the original otherwise inadmissible but the most interesting
question is what is an original electronic document? Before the rules of electronic
evidence came into existence, the traditional way of presenting electronic evidence
is by actual demonstration in courtthat these are the data contained in the
diskette for example. But this is no longer necessary with the advent of the
electronic evidence rules.
What could be the possible original electronic document?
1

If the electronic document is generated from an original paper based

document, (e.g. scanning) what is the original electronic evidence there
because you have the paper based and the data stored in your hard drive?
The original document may consist of the paper based and the digital image
resulting from the scanning is also original. If printed out, the result is
considered a functional equivalent of the original because these are outputs.

If the electronic evidence is generated from another electronic document,

(e.g. Email) the addressee receives the email and displays it on his computer,
or a printout of your email, both the display and the printout are considered

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functional equivalents of the original. So the originals there are the email
stored in the senders computer and the display plus the printout.
With advent of electronic evidence rules, you dont need to bring with you computer
to court, no need to demonstrate it. Presentation of the printout is sufficient it is
regarded as the equivalent of the original.
What happens to counterparts or copies of electronic evidence?
It may happen that the document is reproduced into several copies are the copies
also regarded as functional equivalent of the original?
Example: You wrote an email to your GF, Ralph sending an email to Giness. He also
sent copies of the email to his friends and classmates. The first electronically
produced document is the email sent to Giness. How are we to regard the other
copies? Under Sec 2 of Rule 4 (electronic), it says there that copies or
counterparts of electronic documents may be regarded as functional equivalents of
the original when the electronic document consists of two or more copies executed
about or at the same time with identical contentsALL the copies are regarded as
originals for purposes of the Best Evidence Rule. Therefore if a dispute arises
regarding its contents (email) , and the only available email that can be retrieved is
that of Mr. Uy, then it may be introduced in evidence without accounting for the
email of Ralph because all copies are considered originals.
Second, the counterpart copy may be regarded as functional equivalent of the
original when it is produced by the same impression as that of the original or
by/from the same matrix or when it is produced electronically or mechanically
produced or by any similar techniques that reproduce the original accurately. So any
reproduction of the original electronic document as long as it is produced under the
same impression from the same matrix electronically, mechanically and chemically,
provided the reproduction is accurate, reflecting the data of the original, all these
counterparts or copies are regarded as original for purposes of the best evidence
rule. So if Ralph has his sex video, he's so proud of his creation that he wants to
share it with his friend Mr. X who was a chinese businessman. If Mr. X reproduced
the video in some recordable medium like a cd, dvd, bluray, and had millions of
copies around the world, any of these copies since the copies were reproduced
under the same impression, from the same matrix or by mechanical, electronic,
chemical reproduction or any equivalent technique, are all regarded as originals.
An interesting question now is what about a photocopy of your printout?
You have an email, thats an electronic document, you print it out, Under sec 1 of
rule 4, it is the equivalent of the original because it is the printout. What happens if
your printout is reproduced by chemical, mechanical, electronic technique like
photocopying technique using a photocopying machine, how would you classify
that-- chemical, mechanical, electronic or under equivalent technique-- so any
resulting copy of the printout under sec 2 appears to be also an original. So any
copy of a printout you look at sec 2 of rule 4, should be an original, thats why when
electronic evidence rule came into being everyone was of the notion that if the
document is electronic, every copy is original, and that there was no more
distinction between original and the copy because of this provision, until the SC
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came up with MCC Industrial Sales v Sanyong Corporation a very controversial

case.
MCC Industrial Sales v Sanyong Corporation
Facts: MCC sales is engaged in the business of importing and retail of stainless
steel products in pursuit of its business it entered into a contract with Sanyong,
engaged in the trading business of steel products. As usual with any commercial
transaction the buyer , MCC sales, placed purchase orders, the purchase orders
were transmitted through facsimile transmissions (fax). Alleging breach of contract,
Sanyong filed a case against MCC sales and in support of its allegation that the
parties entered into a contract, Sanyong presented a copy of the purchase order
because it served as the contract between the parties. It so happened that the
purchase order presented was a photocopy of a facsimile copy as received by
Sanyong from MCC sales. This was objected to under the best evidence rule
because it was only a photocopy; so a question was asked there whether the
photocopy of the facsimilie may be admissible as evidence under the best evidence
rule. Of course Sanyong argued that under the electronic evidence rule, a
photocopy is a functional equivalent of the orignal.
Held: SC said that before determining whether a photocopy is admissible in
evidence it should first determine if the facsimilie copy as received by Sanyong
from MCC sales falls under the definition of electronic document and if it falls under
such then they can determine if the photocopy can be regarded as a functional
equivalent of the original. SC ruled in the negative, meaning a facsimilie copy is not
an electronic document.
SC addressed this ruling in two prongs, the obvious purpose of the electronic
commerce act and its implementing evidentiary rules, rules on electronic evidence
is to to promote paperless writing as distinguished from paper based writing. In an
ordinary facsimile transmission there are two resulting paper documents: first is the
paper based original document as sent and second is a paper based facsimile copy
as received. A facsimile transmission involves a paper based document which is
scanned and transmitted through the use of a telephone line and the data or
information is printed at the receiving end. Given the fact that a facsimile
transmission involves a paper based document, it cannot be classified as electronic
because an electronic document is supposed to be paperless writing, however the
SC made a qualification that this is only true if the facsimile is an ordinary facsimile
machine. SC made a distinction between a computer based facsimile as opposed to
an ordinary facsimile transmission.
A computer based facsimile machine is like a computer, the data is generated
electronically so an information or data is generated through a computer so there is
no involvement of a paper document there, and it is transmitted to the other end
which will now print the data. In a computer based facsimile transmission, there is
only one paper document-- the document as received, but the original document
sent is electronic, so from electronic to facsimile copy.
While an ordinary facsimile is different because the originating document is
paper based and transmitted through scanning and use of a telephone line resulting

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to the production of a facsimile copy. The second type, which is the ordinary
facsimile, does not fall under the definition of an electronic document.
Torres v PAGCOR (gr no 193531)
Facts: The decision in Sanyong was reiterated. In this recent case, it involves a slot
machine supervisor, an employee of PAGCOR who was accused of manipulating the
slot machine to embezzle funds. He was charged with dishonesty, serious
misconduct and fraud. After investigation, PAGCOR terminated his employment.
Aggrieved by the dismissal, Mr. Torres filed a complaint before the Civil Service
Commission (CSC). In their defense, PAGCOR argued that the filing of the complaint
with the CSC, which should be treated as an appeal, was filed out of time because
under the rules of procedure governing cases before the CSC, an appeal should be
filed within 15 days from the time the complainant received the order appealed
from. PAGCOR argued that Mr. Torres should have filed his appeal with the CSC
within 15 days from the time he received his termination letter, and true enough,
the filing of the appeal with the CSC took him 21 days, way beyond the 15 day
period. How did Torres try to wiggle out of it so he can get through the issue on
prescription? Though we said that while it is true that the appeal will start beyond
the 15-day period but within the 15-day period, he filed a letter of reconsideration
with PAGCU arguing that the filing of the letter of reconsideration tolled the running
of the prescriptive period for filing an appeal. The problem with Torres was that, the
letter of reconsideration, according to him, was filed thru FAX.
Held: The Supreme Court ruled against Mr. Torres. It said that under the Civil
Service Rules, there are only 2 rules of service of pleadings, either personal or
registered mail. Fax by facsimile filing is not allowed. Besides, according to the
Supreme Court, a facsimile copy is not an electronic document, citing the ruling of
the case MCC Sales v. SSanyong. The ruling in Torres is even worse because it didnt
make any distinction between the 2 kinds of facsimile transmissions, whether
computer-based or ordinary. It made a sweeping general statement that
facsimile copy is not an electronic document.
Another reason advanced by the Supreme Court in holding that the facsimile copy is
not an electronic document is the definition, the origin of our rule on electronic
commerce or electronic evidence. The Supreme Court said that our own electronic
commerce Act is patterned from the Model Law, adapted by the United Nations
Commission on International Trade Law or UNCITRAL.
We just copied our
electronic evidence law/rules. However according to the Supreme Court, the
definition of an electronic document, otherwise known as electronic data or
electronic data message as adopted by the Model law is that an electronic
document or an electronic data message is an information which is generated,
retrieved, produced by electronic, optical means and other electronic means
including telex or telecopy.
So by definition, an electronic document under the Model law, adopted by
UNCITRAL, is: an electronic document includes a document generated through telex
or telecopy; and telex or telecopy according to the Supreme Court, includes
facsimile. However, in the reading of our own definition of electronic document,
under the Electronic Commerce Act or the Rules of Electronic Document, it can be
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conspicuously seen that telecopy or telex, the phrase telecopy or telex was
deleted. So our own definition of electronic document is slightly different from the
definition adopted by the Model law. Taking cue from this difference, the Supreme
Court said, obviously the purpose of our Congress in enacting the electronic
commerce in defining electronic document is to exclude documents generated
through fax.
As it is now, by virtue of the Torres and Ssanyong decisions, the facsimile copy is not
considered as electronic. So if it is offered as evidence, it should be treated as an
ordinary paper-based document. So for purposes of the BER (Best Evidence Rule),
you follow the rule applicable to ordinary paper-based documents.
One of the justifications advanced by the Supreme Court in holding that a facsimile
copy is not an electronic document is the fact that the purpose of the Rules in
electronic evidence is to promote a paper-less writing and what makes a facsimile
copy not electronic is the fact that it presupposes a paper-based original document.
SCANNING PROCESS
An interesting question would be asked if an electronic document, in the sense, that
it is electronically processed but generated from a paper-based document turned
into electronic by scanning process. Scanning is different from facsimile. Scanning
process presupposes a paper-based ordinary document fed into the scanner and
then turned into electronic data. The paper-based document will be converted into
something electronic in the form of digital image. A photograph/picture of someone
scanned and turned into electronic, this time taking the form of digital image which
may be seen through display in the computer screen and if that display is further
printed out, the print-out would be a functional equivalent of the original. So if we
look at this process in relation to the decision in Ssanyong, then it can also be said
that if the process involved is scanning, which like facsimile, presupposes also an
ordinary paper-based document as the original, what will happen to the resulting
digital image as an output of the scanning process? A print-out of a digital image
generated from a paper-based document through scanning process. Again, if
measured by the parameters of the Ssanyong ruling, in the light of the justification
of the SC that Electronic Commerce Act contemplates of a paperless writing, it
would appear that if the process involved is scanning which originated from a paperbased document, then it cannot be electronic.
But the SC looked it the other way in the cases of Maliksi v Comelec and
Liwayway Vinson Chato v Comelec. Both these cases involve election protests.
Maliksi is an election protest involving the position of municipal or city mayor in
Cavite. Liwayway Vinson Chato (not sure with the name of the case. Sounds like
lang ) involves an electoral protest, the position there is that of a Representative.
Liwayway ran but lost in the election for district representative. Maliksi and Chato
both lost in their electoral bids. The opposing parties were the ones declared by the
Board of Canvassers but immediately thereafter they filed their respective electoral
protest alleging irregularities in the counting of the votes. When the matters
reached at the Comelecs level, the Comelec or the court proceeded, as part of the
election protest, to recount the votes cast during the 2010 local and national
elections which was the first ever automated elections in the country. As you will
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know, the counting was done thru the use of PCOS. But this whole electronic
electoral process still involves ordinary paper-based documents consisting of the
ballot itself. So the ballot there is paper-based to be filled up by the voters but the
paper-based ballot is to be fed into the machine. Once the ballot is fed into the
machine by the process of scanning, the data reflected on the ballot is now
captured by the machine and turned into digital form and stored in the machine. For
purposes of recount, the court conducting the recount may either use the paperbased ballot themselves or use the print-out of the digital image of the ballots
recorded in the PCOS Machine. So print-outs of the digital image of the paperbased ballots.
In both of these cases, the re-count was done exactly using the print out of the
digital image of the paper-based ballots as recorded in the PCOS machine.
Consistently in these 2 cases, the SC says that in the entire process of scanning the
paper-based ballot to capture the digital image of the paper-based ballots and being
printed out, there are actually two (2) originals involved
1

the paper-based ballots themselves (being filled out by the voters during
the election); and
2 the digital image of the paper-based ballots (as scanned and recorded in
the PCOS).
So, the SC said the print-out of the digital picture or image of the paperbased ballots are regarded as functional equivalent of the original.
You see, this process presupposes ordinary paper-based documents, the ballots, but
through scanning process it results in an electronic document in the form of the
digital image or the print-out, which is the output readable by sight. So, this could
be a slight variation from the ruling of the SC in Ssanyong where it should have
been a paperless writing. The decisions in these cases, affirming that the scanning
process is an electronic process and the resulting information or data is an
electronic document, negates the first justification advanced by the SC in the
earlier case of MCC Industrial Sales vs. Ssanyong Corporation and the subsequent
case of Torres.
How can you probably reconcile this seemingly conflicting ruling?
One way of reconciling these two decisions is perhaps to say that the decision in
Ssanyong should be circumscribed in the peculiar process involved in
Ssanyong, which is FACSIMILE process/transmission. So, it would be safe to
take the position that if the process involved is facsimile transmission, then you
may perhaps align yourself with Ssanyong and Torres rulings. Specially that in the
Torres ruling, the SC now did not bother to distinguish the two process of facsimile
transmission, while in Ssanyong the SC said that only ordinary facsimile
transmission cannot be considered electronic because the computerbased facsimile transmission may be considered electronic. But in Torres, it
appears that the SC made a sweeping conclusion that a facsimile transmission copy
is not electronic, without making any qualification. So, facsimile copy is not
electronic.

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Maybe you can advance the second justification offered by the SC that in the
definition of the model law, from which our own electronic commerce was
patterned, TELECOPY or TELEX (under which facsimile process falls), the SC in the
Ssanyong case ruled that obviously by excluding telecopy or telex in the
definition of electronic document, the intention of the framers is to
EXCLUDE facsimile transmission copy. If the process involved is scanning
process, exactly what happened in the Maliksi and Chato cases, then it is now
settled that the resulting image of the paper-based ballots and its printout is an
ELECTRONIC DOCUMENT.
How do you authenticate an electronic evidence?
Like any other evidence, an electronic evidence has also to pass the test of
AUTHENTICATION for purposes of admissibility. Authentication is another rule of
admissibility, like the best evidence rule. By the way, an electronic evidence is
not only limited to electronic document because there are also the so-called
electronic evidence offered as object evidence precisely because the purpose
is not to prove its contents but for any other purpose like the existence, conditions,
or any purpose other than as proof of the contents of the writing or material.
Authentication of ELECTRONIC Evidence
The answer is it depends on the kind of electronic evidence if it is offered as an
object or as a documentary evidence or when the electronic evidence consists
of the ephemeral electronic communication.

How do we authenticate electronic evidence?

Methods of Authentication
1 By evidence that the electronic document is ELECTRONICALLY
SIGNED by the person who purports to have signed the documents.
The one appearing in your drivers license or in your ID (asenz na! you have
evolved). DIGITAL SIGNATURE is one way of authenticating an electronic document.
2 By evidence that other SECURITY PROCEDURE AND DEVICES for
authenticating electronic documents as may be PRESCRIBED BY THE
SUPREME COURT or by LAW having applied the electronic document.
The rules contemplate of security procedures and devices for purposes of
authenticating electronic documents. However, these procedures or devices are
prescribed by the SC or by law. But up to this day, I am not aware of any procedure
promulgated by the SC or any law passed by Congress providing for security
procedures or devices in authenticating electronic documents. So, our electronics
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rules are yet to evolve in this respect. But the Rules provide that this is another way
of authenticating electronic document. Maybe in the future
3

By evidence that will ESTABLISH THE INTEGRITY and the

EVIDENTIARY VALUE of the electronic document to the satisfaction of
the Court.

So there are basically three modes of authenticating an electronic document.

What about an object electronic evidence?
An object electronic evidence as I said is when the electronic evidence is
offered not to prove its contents but for other purposes as when it is offered
for exhibition or viewing by the court like a video recording or an audio
recording. If it is offered as evidence as object, the rules of electronic
evidence provides for its own authentication requirement.
1. Witness who took the electronic evidence. So if it is a video recording
then the one who took the video.
2. Or by anyone who is familiar with the recording. The event or the
persons or transaction depicted in the electronic object evidence.
What about the so-called ephemeral electronic communication? What are
ephemeral electronic communication?
As the term suggests, ephemeral is fleeting, not lasting electronic
communication. Because the evidence of this communication is not recorded
or not retained. Specifically, this kind of communication refers to telephone
conversations. If the telephone conversation is not recorded, its ephemeral
electronic communication. Or text messages if it is not recorded if not
retained, its ephemeral. Or the so-called chat sessions?!?!?(feeling inosente
si Sirhaha)also, video streaming or audio streaming. These are ephemeral
electronic communications.
So how do you authenticate this kind of communication?
1

It may be authenticated by the witness who is one of the parties to the

communication; or

By anyone who has personal knowledge of the communication. Maybe

someone who heard the telephone conversation unless if it is due to illegal
wiretapping.

Now what happens if the evidence of these communications otherwise

ephemeral is actually recorded? How do you authenticate the
communication now?

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Under the rules, if an ephemeral electronic communication is retained or

recorded the authentication depends on the purpose of its offer.
o

If it is recorded for purposes of courts viewing such as video recording, it will

be authenticated as object electronic evidence.

But if it is recorded or retained in some documents and the document is

offered as proof of its contents, then it shall be authenticated as if it is an
electronic document. So you follow the procedure of authentication governing
electronic documents.

Now, what happens to a photocopy of a print-out of an electronic data

generated from your computers?
Like if you prepare a pleading or a motion in your computer, thats electronic
process. You have the digital image there, you print it out, the print-out is a
functional equivalent of the original of an electronic document.
What happens if the print-out is in turn reproduced by a photocopying
machine or by the so-called mechanical or chemical reproduction or any
equivalent technique?
If you look at Section 2 of Rule 4, it would appear that any subsequent
reproduction of the print-out so long as it is done mechanically, electronically,
chemically or any other equivalent technique that reproduces the document
accurately, shall be regarded as functional equivalent of the original. So
generally, a photocopy and the originalno distinction anymore. Because the
print-out is an electronic document and the reproduction of an electronic
document is also an electronic document. Except the Ssangyong case
which is peculiar to facsimile.
Take note that under the express provisions of the Electronic Evidence Rule, the
Rules of Court particularly the Rules of Evidence, applies in a suppletory character.
So, any matter not otherwise expressly governed by the Rules on Electronic
Evidence will be governed by the provisions of the Rules of Court, particularly the
Rules of Evidence, in a SUPPLETORY CHARACTER.
You will note there that not all exclusionary rules available under the Rules of Court
are specifically incorporated on the Rules of Electronic Evidence. One example is the
Secondary Evidence Rule in the Best Evidence Rule under the Rules of Court. There
is no provision under the Electronic Evidence Rule which provides for a situation
where the original, where the contents of which is the subject of inquiry, is
destroyed or cannot be produced.
What happens if your electronic document takes the form of an E-mail
(from one e-mail to another)?
These are electronic documents. What happens if the computer where the e-mail
originated was lost, and therefore, the digital image, as stored in the (drive hard..
whaaaaahhhh!! Joker sir!) hard drive cannot be retrieved? What happens if the
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computer of the recipient, which received the e-mail, is also lost or destroyed such
that the e-mail as received cannot anymore be retrieved? But the issue in the
dispute is the contents of that e-mail, how do you prove the contents of that e-mail?
If you look at the Rules of Electronic Evidence, there is no rule that specifically
addresses this scenario. If you look at the secondary evidence rule under the ROC,
we have the provision specifically addressing the issue when the document is lost,
destroyed or cannot be produced. Does it mean, therefore, that if the electronic
document cannot be produced, the contents of that electronic document can be
proved by a witness who may have seen the electronic document before it was lost?
Possible!
Applying the suppletory character rule, obviously, if the electronic document is
no longer available, like in the situation I gave you, the contents of that electronic
document (whenever it is the issue in the case) may be proved by secondary
evidence. In this case, it can be proved by a TESTIMONY OF A WITNESS who had
seen the contents of the e-mail before the hard drive or computer involved
was destroyed.

TOPIC 8: PAROL EVIDENCE

Parol evidence rule is another exclusionary rule under the ROC, which exclusively
applies to DOCUMENTARY EVIDENCE, like the best evidence rule. So, object
evidence does not talk of parole evidence. This is only peculiar to documentary
evidence.
Parol literally means oral. (But not the one youre thinking ) For purposes of
PER (Parol Evidence Rule), it is not only oral but other forms of evidence so long as it
is an evidence other than the document itself. So it could be testimony of a witness
or any other written document outside of the parameters of the written agreement
subject of the dispute. So it is not limited to a testimony of a witness.
Under Sec 9 of Rule 130, it says there that when the terms of an agreement has
been reduced to writing, it is to be considered all the terms agreed upon. And there
can be, between the parties and the successors-in-interest, no evidence of such
terms other than the writing itself. IOW, PER presupposes (like the Best Evidence
Rule) that the subject of inquiry is the terms and conditions of a written agreement.
So there is dispute as to the terms and conditions of a written agreement.
BEST EVIDENCE RULE: What does the document contain?
Under the BER, you cant prove the contents other than the original document itself.
PAROL EVIDENCE RULE: What have the parties to the written agreement agreed
upon?
If the document says its a Deed of Sale, no evidence, oral or otherwise, may be
allowed to prove that the contract is other than a deed of sale. It can only be proved
by presenting the written agreement itself and no other.

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PER is a rule of EXCLUSION. It prohibits the introduction of extraneous evidence,

written or otherwise, which would vary, alter, contradict or modify the terms of a
written agreement. The purpose is obviously to give certainty to written
agreements, to preserve its reliability and protect its integrity. This is premised on
one universal truth that mans memory is treacherous. Human memory cant be
trusted unlike a written agreement that speaks of a uniform language. In short, PER
tells us that as between a written agreement and the purpose is to prove the terms
and conditions of that written agreement, the only available evidence is the written
agreement itself and no other. When a written agreement is drawn up by the
parties, it undergoes negotiation before it is finalized and reduced into a document
signed by the parties.
So when a written agreement is drawn up by the parties to the contract. In contract
making, the contract undergoes certain process. It starts with negotiations before it
is finalized and reduced into a document signed by the parties. It is expected that
during the negotiations, parties exchange proposals and counter proposals. One
proposes, the other rejects it or accepts it. So the theory behind parol evidence rule
is that if the parties to the contract finally come up to a written agreement, all those
other matters discussed during the negotiation stage not otherwise found on the
face of the written agreement as finalized by them shall be deemed abandoned by
the parties and therefore deemed to be not included in the written agreement. The
written agreement is deemed to be the repository or memorial of the truth as to the
real agreement of the parties.
What is the distinction between the parol evidence rule(PE) and the best
evidence rule (BE)?
1

BE- establishes a rule on preference. The original is preferred over secondary.

PE- excludes and prohibits the introduction of extraneous evidence which
tend to vary, modify, alter or contradict the terms of the written agreement.

For this purpose, PE presupposes BE. Every application of the PE carries with it the
application of the BE. You cannot apply the PE without observing the BE. So in a
given situation, when the subject of inquiry is the contents of a document or writing,
oftentimes the BE and PE interplay.
Ex: The case is about a deed of sale. A transaction between Mr. Sanchez and Ms.
Lao involving an absolute sale over a piece of land denominated as Lot A. Mr.
Sanchez now claims that Lot A is being occupied by Ms. Lao. One day Sanchez
knocks on the door of Lao telling Lao that hey ms lao you are occupying my
property . But ms lao insists its my property. you may go to court if u want but
this is my property. Sanchez now is constraint to go to court and file an action to
evict lao claiming that he is the owner of lot A. during the trial and byway of
defense, lao claim that it is my lot and as far as im concerned this lot is Lot B. I
purchased this from X. there is now a dispute as to the contents of the deed of sale
of sanchez because in the deed of sanchez proving his ownership over the lot in
question which is Lot A, it says there that sanchez bought the Lot A from Y. but on
the other hand lao says this lot is B not A. During the trial now, sanchez will have
to offer in evidence the deed of sale. Under the BE, because obviously the subject of
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the inquiry is the contention of the deed which is the description of the lot in such
deed. Sanchez, to comply with the rules on BE will have to submit and offer in
evidence the original. You have now the original deed of sale. Unless Lao pleaded it
as an issue in her pleading, during the trial, Lao cannot present a witness or she
cannot testify in court that what sanchez bought from Y is not lot A but something
else. IOW, she cannot introduce evidence that will vary the entry or the data found
in the deed of sale of sanchez. That will violate the PE. To prove the terms of the
deed, the only allowable evidence is the deed of sale itself and no other witness or
no other writing or document. So you have now an original document and that
writing itself prohibits any evidence that will vary the terms that will vary the
writings itself. These two exclusionary rules interplay in the given situation.
Going back to my question. Is it possible that the document presented is not the
original? Is it possible to apply the PE even if the document presented or the written
agreement is not the original. In BE, if the original is not available, we can always
offer in evidence in lieu of the original the secondary evidence which could take the
form of the photocopy. Assuming the original is now lost and Mr. Ralph is able to
account for the loss of the original. So under the BE, Ralph can now present the
photocopy. If during the trial, lao tries to introduce witness to testify what was
bought by sanchez from Y is not lot A but something else.
Parol evidence can contemplate of secondary evidence
If during the trial, Ms. Lao tries to introduce a witness who would testify that what
was bought by Sanchez was not lot A, will parol evidence operate? The rule is, when
the law says parol evidence presupposes the best evidence rule, parol evidence will
apply as long as the best evidence rule is COMPLIED WITH. You don't have to
present the original document at all times in order to invoke parol evidence rule. You
can present secondary evidence (like photocopy) as long as the presentation of
secondary evidence is justified and he requisites for its presentation are first
complied.
A problem in parol evidence: if the secondary evidence presented is the
testimony of a witness
What happens if the secondary evidence presented is the testimony of a witness?
Note that under the rules, secondary evidence contemplates of a copy, a recital of
the contents in authentic form, and the testimony of a witness. So it would appear
that if the proponent presents the testimony of a witness, parol evidence rule may
still be invoked since it presupposes compliance with the best evidence rule. But the
problem there is, there's no written document there now. Parol evidence
contemplates a situation where there is a written agreement present, since what is
prohibited by the rules is the presentation of evidence that would tend to vary,
modify, or alter the terms of a WRITTEN agreement. So if there is no more written
agreement involved anymore because it is lost, and the secondary evidence given is
the testimony of a witness, how can the court be assured now that the testimony
accurately and exactly reflects the written agreement? That's the problem now.
That's a gray area. For purposes of our exam, you may choose your position.
Best evidence rule (BER) vs Parol evidence rule: Distinctions
1. BER is a rule of preference--the superiority of an original document over a copy;
PER presupposes the application of BER.
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2. BER covers all documents, even those that are not contracts; PER covers only
contracts
3. BER can be invoked by any party to the litigation, even if he is not party to
the contract; PER can only be invoked by and against a party to the contract. This
is based on the principle that contracts take effect only between the parties.
A case which demonstrates the parol evidence rule is Yu Tek vs Gonzales.
This involves a contract between Yu Tek and Gonzales whereby Gonzales undertook
to deliver to Yu Tek some pickles of sugar within a certain period. For failure to
deliver on time, Yu Tek was constrained to go to court to collect the amount already
paid. During the trial and by way of defense, Gonzales testified that there was no
basis for the breach of contract because his inability to deliver was due to the fact
that his sugar plantation failed to produce the necessary sugar products. This was
objected to on the ground of parol evidence rule. SC sustained this objection. In this
case, the contract simply and clearly states that Gonzales is to deliver the pickles of
sugar within a given period. There was no qualification as to the source of the sugar
to be delivered. There was no stipulation that it was to be sourced from his own
plantation. Parol evidence rule excludes the evidence of Gonzales tending to modify
the terms of the written contract.
This was objected to on the ground that under the parol evidence rule, evidence
tending to modify, alter, vary or contradict the terms of a written agreement is not
allowed. In this case the contract states that Mr. Gonzales was to deliver sugar
within a given period. There was no qualification as to the source of sugar to be
delivered, no stipulation that the sugar to be delivered by Mr. Gonzales had to be
sourced from his own sugar plantation. Parol evidence excludes the testimony of Mr.
Gonzales tending to modify the terms and conditions of the agreement.
Baluyut vs Poblete
This involves a contract of loan between Baluyut and spouses Poblete evidenced by
a Promissory note executed by Mrs. Baluyut. In the PN Baluyut promised to pay the
loan within one month and as a guarantee for the loan Baluyut executed a REM over
her property. For failure to pay the loan within the period stipulated the Pobletes
foreclosed on the mortgage. Baluyut filed an action to nullify the foreclosure as well
as to nullify the foreclosure sale of the mortgaged property. Case was dismissed and
affirmed by the CA. On motion for reconsideration she raised for the first time that
the foreclosure of the mortgage was premature because the loan was not yet due,
because contrary to the terms in the PN the loan was to mature within one year and
not one month.
This argument was rejected by the SC invoking the parole evidence rule. The PN is
clear that the loan was to be paid within one month. The testimony that the term
was one year contradicts the terms in the PN. So this illustrates the application of
the Parole evidence rule.
What are the instances where the parol evidence rule finds no application?
(EXCEPTIONS)
1

Document is not a written agreement (not a contract)

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If the document is not a contract Parol evidence does not apply and therefore the
any extraneous evidence may be allowed to modify, alter, contradict and vary the
entries or data found in the writing of the written document.
Cruz vs CA
Salonga filed a complaint for collection of sums of money against Cruz alleging that
Cruz obtained a loan from him evidenced by an ACKNOWLEDGEMENT RECEIPT
signed by Cruz acknowledging the receipt of 35,000. During the trial Cruz testified
that the amount was actually not a loan because it was an agreement where
Salonga was to purchase from Cruz his fish products from his fishpond and to
sublease the fishpond. So Cruz explained that the amount which he received was
actually Salongas payment for his obligation arising from their agreement. This was
objected to by Salonga invoking the Parol evidence rule because the receipt does
not contain any such agreement as to the fish products and the subleasing of the
fishpond. So according to salonga it would vary the contents of the receipt.
SC held that the Parol evidence rule does not apply because the receipt is not a
contract, it is not a written agreement. So in this case the SC made a distintion
between a Written Agreement and a mere Statement of Facts. A receipt only
contains statements of facts and does not contain a written agreement. So the
testimony of Cruz was allowed by the SC.
2

When at least one party to the suit is not a party to the contract.

Parol evidence rule operates only between parties to a contract based on the
principle that a contract only takes effect between the parties. Parol evidence rule
cannot be invoked against a stranger to a contract. When at least one party to the
suit is not a party to the contract subject matter of the suit Parol Rule evidence does
not apply.
Lechugas vs CA
Victoria Lechugas purchased a property from its previous owner but the property
was being occupied by the defendants. Lechugas presented the deed of sale of Lot
A. Lot A was being occupied by the defendants. By way of defense the defendants
called to testify the former owner of Lot A from which Lechugas bought the land in
her testimony she told the court that it was true that she sold a lot to Victoria
Lechugas but the lot that she sold was Lot B. Not lot A as appearing in the deed of
sale.
The lot that she sold to Lechugas was lot B not lot A as appearing in the deed of
sale. The testimony of the witness was objected to on the ground of parol evidence
rule because it obviously contradicts the deed of sale of Victoria Lechugas.
SC overruled the objection holding that parol evidence rule operate between parties
to a written agreement. It cannot invoke against a stranger. In this case the
defendants are not parties to the deed of sale between Lechugas and the previous
owner. Therefore, Ms. Lechugas cannot invoke the parol evidence rule against the
defendants to prohibit the defendants from introducing parol evidence to contradict,

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explain, or modify the terms of the deed of sale because the defendants are not
parties to the deed of sale.
So the rule is when at least one of the parties in a suit is not a party to the written
agreement subject of the case and does not base a claim under the contract or
assert a right originating in the written agreement, parol evidence rule does not
apply.
Gaje vs. Dalisay (what a perfect match made in heaven)
This is the story of 2 Desiderios. The Desiderio father (Sr.) and the Desiderio son
(Jr.). During the lifetime of Desiderio Sr., he acquired 2 pieces of land but in the
corresponding deed of sale, the name reflected as the buyer was not the Sr. but the
Jr. So the Jr. was made to appear as the buyer of the properties. So after the
purchase, as he was really the real actual buyer, the Sr. took possession of the
property and continued to enjoy it exercising his act of ownership. When the Sr.
eventually died, his wife, Patricia Dalisay, acted as the administratrix of the estate
of Desiderio Sr. For his part, the Jr. as he appears to be owner of the property, he
sold the property to Mr. Gaje. When Patricia learned about the sale, she filed a case
in court to nullify the sale between Desiderio Jr. and Mr. Gaje contending that
Desiderio Jr. had no right to sell the properties because it belongs to the estate of
Desiderio Sr. The wife testified as to the fact that the true owner of the property or
the true buyer of the property was his late husband. But this was objected to by
Desiderio Jr. under the parol evidence rule because in the deed of sale, the name
reflected as the buyer is his name and any testimony tending to establish that the
owner is other than him violates parol evidence rule.
SC disagree with Mr. Desiderio Jr. saying that parol evidence rule operates only
between parties to the contract, strangers to the contract cannot invoke PER neither
PER can be invoke against strangers. In this case, Patricia is obviously not a party to
the deed of sale between Desiderio Jr. and Mr. Gaje. So PER does not apply and the
testimony of Patricia was admitted.
Heirs of Pacres v. Heirs of Ygona
This is a local case involving a property Kinasang-an Pablo originally owned by
Pastor Pacres. When he died, the property was inherited by his six children. Four of
them sold their undivided shares on the said property to Cecilia Ygoa. Another
portion of the property was also sold to Mr. Hilario Ramirez. The remaining two,
Mario and Vineranda, refused to dispose their respective shares. There are actually
a number of cases that the parties got involved with but let us limit ourselves to the
last case that Mario and Vineranda filed against Cecilia Ygoa. They file a case for
specific performance against Cecilia alleging that when their siblings, the 4 of them,
sold their respective shares and interest in the property left by their father to Cecilia
Ygoa, Ygoa agreed with the sellers, their siblings that other than paying the
purchase price she would also cause the survey of the entire lot, pay the present
and the past real estate taxes, and deliver the separate titles of representing the
respective shares of the heirs including Mario and Veneranda who did not sell their
own respective shares. The problem was, in the deed of sale, executed by the four
selling heirs and Cecilia Ygona, there was nothing mentioned about the additional
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conditions (the survey of the lot, the payment of the real estate taxes, the delivery
of the separate titles). The deed of sale was a plain deed of sale not containing this
alleged additional obligations of Cecilia Ygona. But during the trial, Mario,
Veneranda and the heirs tried to prove the existence of these additional obligations
not found in the deed of sale. Now, the question there is: Can the heirs of Mario and
Veneranda prove the existence of these additional conditions when these conditions
are not found on the deed of sale and under the parole evidence rule, no evidence
may be allowed to contradict, modify and explain or put something to vary the
terms of the written agreement. The written agreement there being the deed of
sale. In their effort to get their way through, Mario et. al argued that the parole
evidence rule does not apply to them because they are not parties to the contract
between Cecilia Ygona and the four of their siblings, the four heirs of their father
who sold their shares to Cecilia Ygona. How did the Supreme Court resolve this
issue, when truly they are not parties to the contract. As a matter of fact, they did
not sell their shares. The Supreme Court said, general rule is, under 1311 of the
Civil Code, contracts take effect only between parties. However, if the contract
contains a stipulation in favor of a third party, that third party may ask for its
enforcement. The Supreme Court went on to say that, a non-party who is a
beneficiary of a stipulation pour autrui is deemed to be a party to the contract even
if literally, they are not signatories to a written agreement.
Therefore, they are bound to the contract, and therefore, they are covered by the
parole evidence rule. Moreover, the Supreme Court further said that in order to
prevent the operation of the parole evidence rule, it must be shown that at least
one of the parties in a suit is not a party to the written agreement subject of the
case and does not base a claim under the written agreement or assert a right
originating from the written agreement. The SC said, the beneficiary of a stipulation
pour atrui precisely bases a claim under a written agreement or assert a right
originating from a written agreement. Therefore, Mario et al are covered by the
Parole Evidence Rule.
3

If the extraneous evidence does not contradict, does not vary, does
not alter, or does not modify the terms of a written agreement but
proves the existence of a prior or contemporaneous oral agreement.

The parole evidence rule operates to prohibit the introduction of extraneous

evidence that would vary, alter, modify, or contradict the terms of a written
agreement. So not all extraneous evidence are prohibited, so that if the extraneous
evidence does not contradict, does not vary, does not alter, or does not modify the
terms of a written agreement but proves the existence of a prior or
contemporaneous oral agreement, that extraneous evidence is not prohibited under
the parole evidence rule. This is the ruling in the case of Robles vs. de Zarraga
Hermanos.
Robles vs. de Zarraga Hermanos
This involves an Hacienda Nahalinan, owned by Zacharias Robles, Sr. and his wife,
Anastacia dela Rama. When Zacharias died, the estate of Zacharias Sr. including the
Hacienda Nahalinan was administered by his widow, Anastacia Robles. During the
administration of Anastacia, Anastacia leased Hacienda Nahalinan to one of their
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children, Zacharias, Jr. . As a consequence of the lease, Zacharias Jr. made or

introduced substantial improvements on the hacienda (structures, houses, farming
implements and farming animals). The period of the years was for six (6) years. But
three (3) years into the lease contract, de Zarraga Hermanos expressed his interest
to purchase Hacienda Nahalinan and the estate of Zacharias Robles Sr. The problem
however was that the lease contract in favor of Zacharias Jr. is still in force and yet
to expire three (3) years after. So there was still an unused portion of the lease
contract, so they had a problem on how to convince Zacharias Jr. to give up the
remaining period of the lease. It was alleged that in order to sweeten the deal, de
Zarraga Hermanos agreed to compensate Mr. Zacharias Robles, Jr. for the value of
the improvements that Zacarias Jr. introduced on the Hacienda Nahalinan. And so,
fast forward, the transaction went through.
Fast forward, the transaction went through. So the heirs of Zacharias, including
Zach Junior, executed a deed of conveyance in favor of Hermanos conveying the
Hacienda Nahalinan and all properties that the heirs inherited from their parents.
After the transaction, it was alleged that Hermanos refused to compensate Zach, Jr.
for the value of the improvements introduced. So he was constrained to go to court
to compel Hermanos to pay for the promised compensation. The testimony of Jach
Jr. as to the alleged existence of the agreement to compensate him was objected by
Hermanos under the Parol Evidence Rule since the Deed did not contain any
condition or any stipulation as to the obligation of Hermanos to compensate
Zacharias Jr. of the value of the improvements.
SC: the Parol evidence rule only prohibits the introduction of extraneous evidence
that tends to vary, alter, modify, or contradict the terms of the written agreement,
but NOT the existence of a prior or contemporaneous oral agreement which are
independent from or not inconsistent with the written agreement even if it deals
with the same subject. It is not covered by Parol Evidence Rule. The written
agreement involved the purchase of Hacienda Nahalinan, and did not include the
purchase of the improvements introduced by Zach, Jr. so the agreement as to the
obligation to compensate Jr. is actually an independent contemporaneous
agreement independent and not inconsistent with the Deed of Sale of the Hacienda.
This is otherwise referred to as the Collateral Agreement Rule.
Amoncio vs. Benedicto
This involves property owned by Spouses Amoncio. They leased this property to
Garcia and Benedicto. But Mr. Garcia terminated the lease contract. Benedicto
proceeded. However, during the existence of the contract, it was alleged that
Benedicto occupied a portion of the property not covered by the agreement and
occupied that portion by Garcia. During trial, Benedicto tried to prove that if there is
anyone obligated to pay, it was the Spouses. Apart from the lease contract, they
entered into an agreement whereby Benedicto would construct 5 buildings on the
lot, 1 for Garcia, 2 for Benedicto, and 2 for the Spouses Amoncio. The Amoncio
Spousses did not pay. The testimony was objected under Parol Evidence Rule since
this agreement is not stipulated in the lease contract.
Applying the Collateral Agreement rule, SC said that the parol evidence rule only
prohibits the introduction of extraneous evidence that tends to vary, alter, modify,
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or contradict the terms of the written agreement, but NOT the existence of a prior or
contemporaneous oral agreement which are independent from or not inconsistent
with the written agreement even if it deals with the same subject. The
contemporaneous agreement was about the construction of the Buildings in the
property, and being independent form the lease contract and not inconsistent with
the lease contract. So it is not covered by the Rule. Take note that the Collateral Fact
Rule is not provided under the Exceptions under the Parol Evidence Rule, but it is an
instance where the Rule does not apply.
4

Like any other evidentiary exclusionary rule, Parol Evidence Rule is

not a self-executing mechanism. It must be invoked timely by the
party entitled to exercise the right to invoke.

So if parol evidence is introduced to vary the conditions of a written agreement but

the adverse party failed to object on time, the evidence otherwise inadmissible
becomes admissible. On appeal, invocation of the Rule is not allowed. If offered by a
witness, it must be objected when the testimony is being uttered on the stand.
5

Parol Evidence does not apply when the situation falls under the
exceptions provided under the rules of Court. The Rules of Court
provides for 4 exceptions.

Parol evidence may be allowed to add, modify, explain the terms the written
agreement provided that the party pleads it as an issue in his pleading. It
presupposes proper raising of the issue in the pleading.
In other words, the exception presupposes that the exceptions are properly pleaded
in the pleading. It must be raised as an issue in the pleading.
What are these exceptions? The party must raise it in the pleading:
1 An intrinsic ambiguity, mistake or imperfection in the written agreement.
2 The failure of the written agreement to reflect the true intent and agreement
of the parties.
3 The validity of the written agreement.
4 The existence of other agreement entered into by the parties and their
successors-in-interest after the execution of the written agreement.
There are 4 exceptions. The common denominator of these exceptions is that these
must be properly pleaded as an issue in the pleading. So that if the defendant
intends to invoke any of these exceptions, the defendant must plead these
exceptions in his/her answer by way of defense. Otherwise, the general rule applies
and therefore any evidence may be objected to under this rule.
1. INTRINSIC ambiguity, mistake or imperfection in the written agreement.
If there is mistake or imperfection in the document or in the written agreement. The
mistake or imperfection must be intrinsic. Whats intrinsic? An ambiguity that
cannot be determined on the face of the document. If you look at the document, it
causes no dispute, it causes no issue. But if taken along with evidence other than
the writing itself, an ambiguity arises. If it is EXTRINSIC, obvious on the face of the
document, that is not an exception to the parole evidence rule.
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Pallanca vs. Wilson & company

Pallanca, as owner of his company, entered into a contract with Wilson & company
for the purchase of a Mico distillery machine. Obviously Pallanca and his company
was engaged in the business of manufacturing wine. In their contract, it was
stipulated that the distillering machine has a capacity of 6,000 litres per day. So in
accordance with the contract the machine was delivered to Pallancas company.
Unfortunately for Mr. Pallanca, the machine proved to be deficient. At least,
according to him. Because it did not produce the expected 6,000 liters of finished
products daily. So alleging breach of contract, Pallanca went to court. By way of
defense, Wilson & company said that the 6,000 capacity stipulated in the contract
does not refer to production capacity. In other words, the 6,000 liters capacity does
not refer to the finished product. But it refers to capacity to work, capacity to treat.
In other words, the 6,000 litres there refers to raw materials, not to finished product.
But if you look at the wordings of the contract, it only said there, 6,000 liters per
day capacity, without specifying whether that capacity refers to working capacity or
production capacity/producing capacity. This is a typical example of an intrinsic
ambiguity because looking at the face of the document, it seems like there is no
problem. Theres nothing wrong with 6,000 litres capacity, but in truth and in fact,
there was really a big problem. So how did the Supreme Court resolve this issue?
The Supreme Court first consulted the dictionary and the dictionary says that the
term capacity usually refers to the capacity to treat or the capacity to work, rather
than capacity to produce. Second, it was established that the purchase price for the
machine was only 10,000, but the price of a machine of the same purpose which
has a producing capacity of 6,000 litres per day ranges from 35,000 45,000. Too
expensive. So the Supreme Court said, your 10,000 distillering machine could not
be referring to the 6,000 producing capacity. Otherwise, 10,000 would not be
enough. The prevailing market price of these kinds of distillering machine is already
worth 35,000 45,000. So the Supreme Court said, its really 6,000 working
capacity.
2. The failure of the written agreement to reflect the true intention of the
parties.
Enriquez vs. Ramos
It involves a contract for the purchase of 20 parcels of land between Ramos as the
buyer and Enriquez as the seller. Ramos intended to develop these pieces of land
into a subdivision. In accordance with their agreement, Ramos only paid partial or a
portion of the purchase price. To guarantee the payment of the balance, Ramos
executed a real estate mortgage over the same parcels of land in favor of Enriquez.
When Mr. Ramos failed to pay the balance, Enriquez instituted a foreclosure sale to
foreclose all the real estate mortgage. By way of defense, Ramos in his answer
alleged that it was premature for Enriquez to institute the foreclosure sale because
his obligation to pay the balance of the purchase price had not yet ripened because
it was conditioned upon construction by Mr. Enriquez of roads on the property
subject of the sale. (Its the usual conditions that a buyer of the property who
intends to develop the property into a subdivision to provide roads and access
before the property would be sold to interested buyers.)The introduction of that
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evidence was objected to on the ground of parole evidence rule because the deed
of sale with real estate mortgage does not incorporate that condition pertaining to
the construction of the roads.
The deed of sale with real estate mortgage does not incorporate that condition
pertaining to the construction of the roads. But it was explained that actually Mr.
Ramos insisted to have the condition included in the deed of sale but the lawyer for
Enriquez dissuaded her explaining to her that anyway it is already covered by the
existing ordinance of Quezon City which is deemed part of the contract.
RULING:
SC said this is one of the exceptions to the parole evidence rule when the party to
the contract pleads as an issue in his pleading the failure of the written agreement
to reflect the true intention of the parties. In this case, Ramos duly pleaded it an as
issue in the answer that his obligation to pay the balance of the purchase price is
conditioned upon the construction of the road.
LASEDECO v. Garcia
This involves a contract for the purchase of two tractors. The seller LASEDECO and
the buyer Garcia. The purchase was for a term and for failure by Garcia to pay the
balance of the purchase price an action to collect the balance was instituted. Garcia
claimed by way of defense that the action is premature because the period to pay
has been extended. At that time, LASEDECO was under rehabilitation. They claimed
that they requested the manager of the board of liquidators for the extension of the
period to pay and a grace period was granted to Garcia within which the latter has
to pay the balance of the purchase price. In support of this allegation, Garcia
submitted a copy of the letter from the Manager of the Board of Liquidators stating
that the request for extension for the payment of the balance is granted. In their
reply to the answer by Garcia, LASEDECO alleged that the grace period is
conditioned upon the ability of Garcia to make a substantial down payment and
failure to make a substantial down payment would render the grace period as not
being granted. But this was not found in the letter written by the Manager of the
Board. During the trial, LASEDECO in order to prove the condition presented the
manager himself and the lawyer who prepared the letter. But this was allowed
under the parole evidence rule.
RULING:
The SC said that this is an exception to the parole evidence rule because LASEDECO
duly pleaded as an issue in its reply that the letter containing the grace period is
subject to a condition that Garcia has to make a substantial down payment. In short,
it was properly pleaded by LASEDECO that the letter fails to reflect the true
intention of the parties.
3. When a party properly pleads in his pleading the validity of a written
agreement.
This is a situation where the validity of the written agreement is put in issue. If the
party challenging the validity of the written agreement pleads it as an issue in the
pleading then he can introduce parole evidence to vary, contradict, modify the
terms of the written agreement.
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Heirs of Policronio Oreta v. Liberato Oreta

The property owned by the X-father during his lifetime and one of his meeting with
his children, it was agreed upon the suggestion of one of his children who was then
a judge that in order to lessen the probable estate tax in case of his death, some of
his property should be conveyed to his children during his lifetime. Thereafter, the
X-father died and the wife now acted as the admisnistratix of the estate. In the
inventory of the properties of the late X-father, the properties which were sold to
Policronio were included in the inventory and so the children of the latter after
having found the deed of sale executed by their grandfather (X-father) in favor of
their father absolutely conveying the four parcels of land in favor of their father and
now they wanted to claim the said property for themselves. A case was filed by the
heirs of Policarnio against the remaining heirs of their grandfather (X-father). During
the trial, the heirs of the X-father testified that the Deed of sale conveying the four
parcels of land to Policronio was simulated. No consideration because it was only
intended to lessen estate taxes. The testimony was objected to under the parole
evidence rule because the deed of sale does not say that it was only intended to
lessen the estate tax. The deed of sale appears regular in its face.
RULING:
But this was rejected by the SC. The SC said that this is one of the exceptions of the
parole evidence rule when the party pleads as an issue in the pleading the validity
of the written agreement. In this case, the heirs of the father pleaded it in their
complaint that the deed of sale executed by their father in favor of Policronio was
simulated or fictitious because it was only for the purpose of lessening estate tax.
There was no consideration.
4. When it is pleaded as an issue that another agreement was entered
into by the parties or their successors-in-interest subsequent to the
execution of the written agreement
This is illustrated in the case of Canuto vs. Mariano.
CANUTO vs. MARIANO
In Canuto vs. Mariano, the seller sold their properties to the buyer with the right to
repurchase within one year. But before the one year period to repurchase expired,
the seller approached the buyer that she may be given an extension or a grace
period in which to exercise her right to repurchase. Before the expiration of the
extended or grace period, the seller now offered to pay but the buyer refused to
accept. The seller was given a run around, under threat of being ejected from the
property; she went to court to compel the buyer to accept the payment of the
repurchase price and to execute a deed of reconveyance. It was pleaded in the
complaint that she was granted an extension period in which she can exercise her
right to repurchase but the buyer refused. The testimony of the plaintiff as to the
existence of the extended period or the grace period was objected to because it was
not stated in the deed of sale with the right to repurchase. It only says there the
period to repurchase but the alleged grace period is not stated. (Invoking the parol
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evidence rule, that the testimony as regards the grace period by which the parol
evidence rule.)? This was objected by the SC, holding that this case is one of the
exceptions to parol evidence rule, that is the existence of when it is pleaded as an
issue in the pleading the existence of another agreement entered into by the parties
or by the successor of interest after the execution of the written agreement. The
agreement between them as to the grace period was entered into and executed
after the execution of the deed of sale. These are the four exceptions.
PAROL EVIDENCE RULE under the STATUTE OF FRAUD
Now, parol evidence rule, the one that we had just discussed, is provided for under
the rules of court, Sec 9 Rule 130. But there is another parol evidence rule which
is found in the provisions of the civil code. Im referring to the provisions governing
statute of fraud, article 1403 of the civil code. It also talks about parol evidence
rule. Is it the same with the parol evidence rule we talked about under the rules of
court? Under the statute of fraud, Art 1403, there are certain kinds of contracts
enumerated under Art 1403, which cannot be proved by oral testimony for purposes
of enforceability. IOW, these contracts, the existence of these contracts cannot be
proved by oral testimony or by testimony of the witness. It can only be proved by
the written contract itself. If not the contract itself, the kind of certain written
memorandum to prove its existence but never a testimony of the witness. What are
these specific contracts?
1

2
3

4
5
6

an agreement that by its term, it shall not to be performed within

one year from its execution. So if a contract entered into between A and B
provides in its provisions that it cannot be performed or the obligations
cannot be performed earlier than one year from its execution, that cannot be
proved by testimony of a witness, it can only be proved by a written evidence
either, the contract itself or a written memorandum signed by the parties.
a special promise to answer for the debt, obligation, or miscarriage
of another. OW known as the contract of guaranty or surety. It cannot be
proved by oral testimony.
an agreement made in consideration of marriage except a mutual
promise to marry. Kinds of these agreements include donatio propter
nuptias or marriage settlement, these are kinds of contracts made in
consideration of marriage and cannot be proved by parol evidence.
Sale of personal properties or chattel at the purchase price of not
less than P500.00 cannot be proved by parol evidence.
Lease of real property for a period of more than one year or sale of
real property, cannot be proved by parol evidence.
And the last one, representation as to the credit of another. When one
certifies as to the credit another party or third party, this cannot be proved by
parol evidence.

Art. 1403. The following contracts are unenforceable, unless they are ratified:
(1) Those entered into in the name of another person by one who has been given
no authority or legal representation, or who has acted beyond his powers;
(2) Those that do not comply with the Statute of Frauds as set forth in this number.
In the following cases an agreement hereafter made shall be unenforceable by
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action, unless the same, or some note or memorandum, thereof, be in writing, and
subscribed by the party charged, or by his agent; evidence, therefore, of the
agreement cannot be received without the writing, or a secondary evidence of its
contents:
(a) An agreement that by its terms is not to be performed within a year from the
making thereof;
(b) A special promise to answer for the debt, default, or miscarriage of another;
(c) An agreement made in consideration of marriage, other than a mutual promise
to marry;
(d) An agreement for the sale of goods, chattels or things in action, at a price not
less than five hundred pesos, unless the buyer accept and receive part of such
goods and chattels, or the evidences, or some of them, of such things in action or
pay at the time some part of the purchase money; but when a sale is made by
auction and entry is made by the auctioneer in his sales book, at the time of the
sale, of the amount and kind of property sold, terms of sale, price, names of the
purchasers and person on whose account the sale is made, it is a sufficient
memorandum;
(e) An agreement of the leasing for a longer period than one year, or for the sale of
real property or of an interest therein;
(f) A representation as to the credit of a third person.
In any of these contracts, under 1403 prohibits introduction of parol evidence to
prove their existence. The parol evidence contemplated under 1403 refers to oral,
so this is the kind of parol evidence which strictly consist of oral testimony of a
witness, because 1403 allows written memorandum. So testimony of a witness may
not be allowed to prove the existence of any of these contracts. The question is,
under parol evidence rule in the rules of court, there are exceptions.
1

One exception where parol evidence may be allowed to explain, add or

modify the terms of the written agreement provided that these exceptions
are raised as an issue in the pleadings. What happens if the contract is
alleged to have failed to express the true intentions of the parties? What
happens if the contract is a real estate mortgage and the other party claims
that the true intention of the parties is deed of sale. Under the rules of court,
if this is properly pleaded as an issue, parol evidence, written or oral, may be
introduced to prove that indeed the true intention is a deed of sale and not
mortgage, because it falls under the exception. But under 1403, this cannot
be done, because in 1403, the only exception in there is when the contract is
partially executed or wholly executed. The exceptions provided under the
rules of court are not found under 1403. So if the document appears to be a
real estate mortgage but one of the parties claim that the true intention and
that agreement does not reflect the true intention of the parties because
what was truly agreed upon by the parties was an absolute sale , we have a
problem because an absolute sale is covered under statute of fraud. So even
if it is pleaded as an issue, parol evidence cannot be allowed not because
under the rules of court but because under the statute of fraud.

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The Statute of Frauds is substantive law. So the rule is if the contract is alleged to
have failed to express the true intention of the parties and this is duly pleaded as an
issue, parol evidence may be introduced except if the parol evidence consists of a
contract covered by the Statute of Fraudsthis is the opinion of Paras in his book.
Note: It must be properly pleaded. The must be allegations.

TOPIC 9: TESTIMONIAL EVIDENCE

The Third Form of Evidence is Testimonial Evidence. It is loosely defined as an
evidence lifted from the mouth of the witness. It presupposes testifying in court by a
person called a witness. But strictly, testimonial evidence consist of a witness
perception of past events recollected and communicated to the court. In other
words, testimonial evidence is a reconstruction of past events made by a witness. It
is not accurate to say that testimonial evidence is lifted from the mouth of the
witness because testimonial evidence does not only come in the form of oral
testimony. It may take any other form not necessarily in oral form. Sec. 1 Rule 132.
Examination to be done in open court. The examination of witnesses presented in
a trial or hearing shall be done in open court, and under oath or affirmation. Unless
the witness is incapacitated to speak, or the question calls for a different mode of
answer, the answers of the witness shall be given orally. (1a)
GR: A witness must testify orally
Exc.: 1. When the question calls for a different mode of answer, i.e. The witness is
asked to re-enact a crime or demonstrate an act. It may not require oral testimony
but body language, i.e. When a rape victim is asked to demonstrate how the rape
was done or the stabbing incident was actually committed. A re-enactment which
entails body movements.

2
3

If a witness is a deaf-mute, a witness may testify in sign language.

In cases where testimony is reduced to affidavit like cases governed by
summary procedure. Very recently now in the effectivity of the judicial
affidavit, in almost all of the cases, the testimony of witnesses in direct
examination is required to be in affidavit form. So in judicial affidavit, the
other party will only cross-examine the witness so instead of the traditional
direct examination where you ask the question and the witness answers, the
proceeding now is cut in half because the usual direct examination is now
reduced to the introduction of judicial affidavit.

So in any of these instances, the witness testifies in court but not necessarily in oral
form. Not just any Tom, Dick and Harry can be a witness because the Rules provides
for the qualifications to be a witness.

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QUALIFICATIONS TO BE A WITNESS
1
Perception. A witness is someone who CAN PERCEIVE. So the capacity to
perceive. Perception means that the witness is capable of observation and the
observation comes from his perception through his senses. He must have personal
knowledge through his entire range of human senses so long as the information is
relevant to the fact in issue. Again, the witness must be testifying based on
personal knowledge because under hearsay rules, a witness testifying on facts not
based on his own personal knowledge knowledge is not competent to be a witness
nor testify in a particular fact. So precisely that is the reason why as a qualification
of a witness his ability to perceive presupposes his capacity to observe through
personal knowledge through his senses.
2
Memory and Communication. In perceiving, a witness must be able to
recollect what he has perceived and communicate the perception that he
recollected. He must be able to recall what he perceived and must be able to
communicate what he had perceived and recollected. Perception-MemoryCommunication.
3
Formal Requirement. A witness must take an oath or affirmation. This
formal requirement is needed in order that a witness is compelled to tell the truth. It
is not enough that the witness is capable of perception, recollection and
communication but the witness must be able to appreciate the need for truth. So
the requirement of oath or affirmation is actually a Sword of Damocles hanging over
the witness head that in case he falsely testifies, he/she may be subjected to
adverse consequences. If it is an oath, the possible adverse consequence there is
that he might be charged or prosecuted with perjury or false testimony. Another
possible consequence there is guilt of conscience based on the theory that the oath
requires God and involves consciousness of an Almighty Being. So he may be
punished not necessarily by human justice but under a divine law.
So someone, instead of taking an oath, may take an affirmation not necessarily
involving God. Here there is also that possibility of being subjected to punishment
upon testifying falsely. Again this signifies the importance of a witness telling the
truth.
4
No Disqualification. Equally important is that the witness must not possess
any of the disqualifications imposed by law. So even if the witness possesses all the
qualifications but he has disqualifications, still he may be disqualified from testifying
in a case.
Lets go to the various disqualifications of a person from testifying in a
particular case:
1. Disqualification by reason of marriage
This is a qualification attached to the relationship between parties, otherwise known
as Spousal Immunity or Marital Disqualification Rule. It says that neither the

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husband nor the wife may testify for or against the other without the consent of the
affected spouse during marriage.
EXCEPT: In family cases, in a civil case by one against the other or in a ?communal?
offense committed by one against the other or the latters ascendants or direct
descendants.
For this disqualification to apply, the following requisites must be established:
a. Spouses are legally married.
Therefore, this disqualification does not contemplate an illicit
relationship, otherwise, to apply marital disqualification rule to
illegitimate relationship would encourage immorality. So this is
applied only to spouses who are legally married.
However, even if the spouses are legitimately married, if the
relations between the spouses is already strained, this marital
disqualification rule does not apply, notwithstanding the fact that
they are legally married.
The reason there is obvious. The purpose of marital disqualification
is to:
Preserve marital relations and domestic peace
o If a spouse is allowed to testify against the other, that
would create a strained relationship between the two.
o If the husband is the accused in a criminal case and
the primary witness of the prosecution is the wife, that
would create hostile relationship between the H and W.
To prevent perjury
o The law recognizes that human capacity for love
cannot be underestimated. It is based on the reality
that a spouse may go out of his way to lie in order to
save or protect his loved one or her loved one. Thats
why under this marital disqualification rule, neither
may testify in favour of the other because there is an
inherent danger that the witnessing spouse would
perjure himself for the love of the other. Love could be
blind or a worse bastard at times.
But when there is no longer a marital relation to preserve, the reason for the rule
ceases to exist and therefore, the law on disqualification of spouses may no longer
be invoked.

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This is the ruling in Alvarez vs. Ramirez.

This involves a prosecution for Arson against Maximo Alvarez who was believed to
have set on fire the house of the sister in law and during the time of the arson, his
wife was alleged to have been staying in the house of his sister in law. During the
trial, the prosecution presented the wife of Alvarez as witness. So the testimony of
the wife and the presentation of the wife were objected to under the marital
disqualification rule.
The SC overruled the objection since the purpose of the marital disqualification rule
is to promote marital relations and preserve domestic peace which is no longer
possible in this case since it was established that 6 months before the arson was
committed, Alvarez and his wife were not in speaking terms already. Their relations
were already strained and they were already separated de facto. There is already an
insinuation that Mr Alvarez set the house on fire to purposely injure the wife who
was said to be staying in the house of his sister in law. So what marital relationship
is there to preserve? Take note that this came out 3x in the bar exam.
b. The witness spouse may or may not be a party to the case where
the testimony is sought to be given.
Take note that we are talking here about a witness spouse and a party spouse. In
marital disqualification, we have the witness spouse and the party spouse. The
witness spouse may or may not be a party to the case. But the other spouse for
whom or against whom the testimony is given should be a party to the case.
So the marital disqualification rule does not apply in a situation where the witness
spouse testifies in the case where the other spouse is not a party. As the rule is
expressly worded, neither H and W may testify for or against the other spouse
without the consent of the affected spouse! The use of affected spouse there
refers to the fact that the other spouse is a party precisely the testimony of the
witness spouse is offered for or against.
Take note of the distinction.
c. The testimony of the witness spouse is sought to be introduced
during the existence of the marriage.
So marital disqualification rule is coterminous with the existence of the marriage.
Where the marriage is dissolved by death or other reason, this disqualification rule
does not apply.
Who may invoke or object?

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Of course, the party or the spouse who is a party to the case against whom the
testimony is offered. The holder of the privilege is the affected spouse. The
disqualification is imposed against the witness spouse.
2nd Disqualification: By reason of mental incapacity or immaturity. So one
who is labouring under mental incapacity or insanity, or immaturity may
not qualify as a witness.
Insanity. Only if the insanity exists at the time the testimony is sought to be
presented. If the insanity existed at the time the perception of the event, but
ceases at the time of taking the stand, by regaining his sanity, or state of
lucid interval, the witness may still be qualified to act as one. But what is the
EFFECT? It affects only the credibility of the testimony
Immaturity. This refers to witnesses with no capacity to perceive or have
difficulty in communicating the perception to others.Children of Tender Years
are a classic example. But under the Rules of Examination of Child Witnesses,
it is presumed that child witnesses are competent to testify. So this rule
applies only when after the competency hearing, immaturity is proven. So the
onus probandi lies with the one alleging immaturity of the child witness
3rd Disqualification: Dead Mans Statute/ Survivorship Disqualification Rule
The purpose is two-fold:
1

To prevent false claims and perjury

Contemplates a situation when two parties of the transaction and one
of them died, and a dispute arises out of the transaction, the surviving
party, in a case field against the estate of the deceased, may not
testify on that transaction, since the dead party cannot rebut that
testimony. He is at great temptation to falsify his testimony.

To level the playing field

The other party being deceased is not around to testify, or air his side
of the story. So the surviving party may not also do so.
REQUISITES to invoke the rule:
i It can only be invoked in Civil cases or Special Proceedings
ii It only applies in a dispute where the defendant is the
administrator or representative of the person deceased/insane.
The defendant must be sued in a Representative Capacity.

Requisites for Application of Dead Man's Statute

1. It only applies in a dispute where the defendant is the administrator or
representative of the person deceased or the defendant is an insane
prson. The defendant in a suit must be a defendant in his representative
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capacity and not in his personal capacity.

Guerrero vs. St. Claire.
During Guerrero's lifetime and in anticipation of his death, he conveyed his estate to
his children. Part of the estate is a piece of land which the father gave to his son
Andres. When the father died, Andres took possession of the property and for some
time he entrusted the possession thereof to his sister Christina. Andres died
survived now by his heirs. Christina continued to enjoy the property earlier
entrusted to her. After some years, the children of andres were surprised when a
certain Manuel told them that the property was already in his name. They
discovered that it was sold by Christina to Manuel. In turn, Manuel sold it to his
relatives, and his relatives sold it to St. Claire. When the children of Andres realized
this, they filed a suit for recovery. During trial, heirs of Andres tried to prove that the
transaction between Christina and Manuel was actuallly a mortgage and not a sale.
This fact was sought to be established by Christina's children. This was objected to
by the defendants under the dead man's statute.
SC said that the dead man's statute does not apply here. It only applies where the
defending party is a defendant in his representative capacity. So that if the
defendant is sued in his personal capacity, the rule does not apply. In this case, the
Guerrero and St. Claire were sued in their idividual capacity as buyers and not as
representatives of the deceased. Thus, the witnesses are qualified to testify as to
the transaction that took place before the death of the parties.
2. Dead man's statute applies only in a suit invoving a claim against the
estate. It does not apply when it is the estate that is the initiating or
complaining party. The rule contemplates a situation where it is the estate
that is under attack.
Tongco vs Benzon
This involves a land owned by spouses. During the lifetime of husband, he caused
the registration of the property in his name and the name of his spouse. But the
husband died. Shortly after his death, the wife caused the amendment of the title to
reflect only her name so that it would become her exclusive property. When the
administrator of the husband's estate learned this, he filed a suit to recover the
property. During the trial, the wife testified that actually the property belongs
exclusively to her. This was objected to by the administrator invoking dead man's
statute.
SC said the rule does not apply n this case because it presupposes that it is the
estate which is the defending party. It will not apply when the estate is the claimant,
and in this case, the suit was initiated by the administrator of the estate.
The same ruling was applied in the case of Razon vs IAC.
A certain Juan was an officer of a corporation of which Razon is a majority
stockholder. Juan purchased some stocks from the corporation. But since Juan had
no sufficient funds, Razon advanced them to Juan. To guarantee the payment, Juan
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delivered the possession of the certificates of stock to Razon. Juan died, and his son
wanted to take possession of the certificates. When refused, a suit was filed for their
recovery. During trial, Razon testified as to his agreement with Juan. This testimony
was objected to under dead man's statute. But this was rejected by SC, holding that
it only applies when the estate is the defending party and not when it is the
claimant.
3. It is the party, assignor of the party, and the person in whose behalf the
case is prosecuted who are disqualified as witnesses for the operation of
the rule. The rule expressly enumerates only these witnesses who are
disqualified.
If the witness does not fall under any of these, that witness is not disqualified even
if it involves a claim against the estate and even if it seeks to establish a fact
occurring prior to the death of the deceased.
This is again the ruling in Guerrero vs St. Claire. Note that the witnesses were
never the parties nor persons in whose behalf the case is prosecuted. They were
children of Christina.
Note: in the case of Lichauco vs Atlantic Gulf, Richard Fitzsimmons is the
president of Atlantic Gulf. During the lifetime of Fitzsimmons, and by virtue of his
position as a high ranking officer, he was entitled to avail of cash advances. In other
words, utang from the corporation. So, throughout his employment, he made some
cash advances. These are considered loan. When Fitzsimmons died, settlement of
his intestate estate was instituted, where the company entered as one of the
claimants Fitzsimmons. The company claimed that at the time of his death, he owed
money to the corporation. In support of this claim, the company presented its chief
accountant of the assistant accountant to testify about the cash advances made by
Fitzsimmons during his lifetime while officer of the corporation. But the testimony of
these witnesses was objected to under the Dead Mans Statute because it is the
claim against the estate of Fitzsimmons who is now deceased.
Held: SC REJECTED the plea for disqualification holding that Dead Mans Statute
disqualifies only the PLAINTIFF, THE ASSIGNOR OF THE PLAINTIFF, OR THE
PERSON IN WHOSE BEHALF THE ACTION IS INTITUTED AGAINST THE
ESTATE OF THE DECEASED. But in this case the witnesses who were sought to be
disqualified are mere officers of the corporation, they are not the plaintiff, not the
assignor of the plaintiff, and not persons in whose behalf the action is instituted. So,
in short, under Lichauco Doctrine, if the plaintiff is a CORPORATION, naturally since
the corporation has no natural existence whereby it speaks through its officers,
Dead Mans Statute does not apply. Because the corporation has a distinct and
separate personality from its officers and stockholders. Even if the plaintiff is a
corporation, SPEAKING THROUGH ITS OFFICERS, these officers, acting as
witnesses, may not be disqualified because strictly speaking they are not
plaintiff, the assignor of the plaintiff, or persons in whose behalf the
action is instituted.
There are important Doctrines relating to Dead Mans Statute. Lets have a rundown
of these doctrines.

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Doctrines relating to Dead Mans Statute

1. When the plaintiff or the claimant is a CORPORATION, there is no way
that a Dead Mans Statute can be invoked. (Lichauco Doctrine)
2. If the witness testifies that the transaction entered into by the
deceased during his lifetime, but SIGNED BY AN AGENT, and the agent
is still alive during the suit, Dead Mans Statute does not apply.
As I said, one of the purpose of Dead Mans Statute is to level the playing field
because the deceased is no longer there to give his own account of the
transaction. So that if the transaction in question was entered into by
the deceased THROUGH AN AGENT, and the agent is still alive at the
time of the suit, the presence of the agent guarantees the protection of
the deceased because the agent can always testify to rebut the testimonies of
the surviving party to the transaction in court. So, the reason for the
disqualification seized. This is the ruling in the case of Goni vs. CA.
Goni vs. CA
Goni involves the sale of three (3) haciendas originally owned by Tabacalera.
Tabacalera sold the three haciendas to a certain Villanueva. But since Villanueva
had no enough money to pay the purchase price in full, Villanueva proposed to
Tabacalera that she be allowed to sell one of the haciendas to a certain Villegas.
So, the purchase of the sale between Villegas would be used to pay the full
payment of the purchase price. Tabacalera agreed to the proposal but demanded
that someone has to stand as guarantor. For this purpose, another V, Mr. Vicente,
came into the picture as guarantor of Villegas. Apparently, and maybe because
in consideration of Mr. Vicentes agreeing to act as a guarantor that made the
transaction possible, Villanueva sold some fields (or portion) in one of the three
haciendas to Mr. Vicente. And this transaction was evidenced by the Contract to
Sell entered into between Vicente and Villanueva, acting through his agent, Mr.
Goni. So, the contract was signed by Goni as agent of Villanueva.
Fast forward, when Villanueva died, his administrator included in his estate the
rice fields which Villanueva already sold to Mr. Vicente. So, Mr. Vicente filed an
action to recover the property, which has become part of the estate of
Villanueva. During the trial, Vicente testified of the fact that the rice field was
sold to him by Villanueva during Villanuevas lifetime or while she was still alive.
Mr. Vicente was sought to be disqualified under the Parol Evidence Rule because
Villanueva is now deceased.
Held: This was rejected by the SC holding that it is obvious that the transaction
being disputed now and the subject matter of the testimony of Vicente is a
transaction entered into by Villanueva and Vicente, where Villanueva was
represented by an agent, Mr. Goni, and Goni is still alive. So that if the purpose
of the Dead Mans Statute is to level the playing field and to protect the estate
from fraudulent claims, these objective can be served by the presence of the
agent who can always testify about the legal transaction. The agent, Mr. Goni,
can verify or rebut whatever testimony Mr. Vicente would give during trial in
connection with the transaction. So, there is no danger that the estate can be
made liable to pay fraudulent claims. In other words, the evil sought to be
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avoided by the Dead Mans Statute, as a rule of disqualification, is not present

because the estate was said to be amply protected by the presence of the agent
who has personally aware of the transaction in question, so it is as if Villanueva
is still alive.
There is no danger that the estate can be made liable to pay fraudulent claims.
In other words, the evil sought to be avoided by the Dead Mans Statute, as a
rule of disqualification, is not present because the estate was said to be amply
protected by the presence of the agent who was personally aware of the
principals investment. In effect, it is as if Villanueva is still alive.
Second Principle, Dead Mans Statute applies if the defending party is the estate,
not when the Estate is the complainant. What happens if the estate is sued as a
defendant and the estate interposes a counterclaim against the plaintiff? So here,
the estate is the defending party but in its answer interposes a counterclaim against
the plaintiff. Now during trial, the defendant would testify against the plaintiff.
Insofar as the counterclaim is concerned, Dead Mans Statute does not apply
because in a way, it is now the estate who is acting as the plaintiff/complainant and
not the defendant. This should be viewed under the rule that the Dead Mans
Statute only applies when the estate is the defendant in the case. This is the ruling
in the case of Goni (enye) v. CA.
Goni (enye) v. CA
Vicente filed a suit against the estate of Villanueva but the estate thru Goni as the
administrator, interposed a counterclaim against Vicente for accounting. This is
because all this time, Vicente was alleged to have enjoyed some of the ricefields
located in the hacienda. During the trial, as a matter of defense, Vicente had to
testify about the transaction that occurred before the death of Villanueva. Now,
under the Dead Mans Statute, Vicente cannot be prevent from doing so because
insofar as the counterclaim is concerned, the Estate is the complainant/plaintiff.
Next Principle. Dead Mans Statute may be ruled out, either by failure to timely
object or by cross-examining the witness as to matters, subject of the
disqualification rule. Even if all requisites for the application of the Dead Mans
Statute is met but for example, the lawyer of the defendant estate cross-examines
the witness, who is supposedly disqualified, as to the matters pertaining supposedly
covered by the Dead Man Statute, any objection invoking such exclusion is deemed
waived. Piece of advice, if you certainly believe that the witness is disqualified then
do not cross-examine.
DISQUALIFICATION BY REASON OF PRIVILEGED COMMUNICATION
Under Sec. 24, Rule 130
SEC. 24. Disqualification by reason of privileged communication. The
following persons cannot testify as to matters learned in confidence in the following
cases:
1. Privileged communication between spouses
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2.
3.
4.
5.

Privileged communication between a lawyer and a client

Privileged communication between the physician and the patient
Privileged communication between the Priest/Minister and the penitent
Public Officials

The two-fold purpose behind this disqualification rule (Privileged Communication) is

to:
1 Encourage the free flow of information- this is in order enable one party
to effectively perform his duties and obligations, or profession for that matter.
2 Preserve and protect confidential information
There are general principles common to all of these kinds of Privileged
Communication:
1 The holder of the privilege is the party whose interest is sought to be
protected by the Privileged Commnunication Rule
Insofar as the Marital Disqualification Rule, who is the holder of the
privilege?
The spouse sought to be protected in the martial disqualification rule is the spouse
who is the source of the information because hes the one providing the confidential
information and its him who is sought to be protected under this rule. SO, not the
recipient spouse!
The holder of this privilege is the spouse who gave the information.
So generally, the disqualification is imposed on the recipient spouse. The recipient
may not be examined as to any communication given by the giver of the
information (the other spouse). So even if the recipient is willing to disclose the info
but the informing spouse objects, the recipient spouse may not be examined
because the spouse who is the giver of the information is the holder of the privilege.
What about if the holder spouse dies?
One of the general principles governing privileged communication is that this
privilege survives the death of the parties. Even if the holder spouse dies, this
privilege may still be invoked.
So what happens if the source of the info dies and the recipient spouse is called to
the stand to disclose information she might have received from the husband during
the husband?
While this privilege is personal to the holder, the law likewise recognizes instances
when the privilege is invoked by persons authorized in behalf of the
holder. What are these instances?
1. In case the holder dies, this privilege may be invoked by his or her
administrator or the representative of his or her estate.
2. In case the holder is incapacitated or becomes insane, he cannot be expected
to invoke it by himself, so the holder may be represented by his guardian who
may invoke the privilege.

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3. If the holder is alive and not incapacitated but the holder is not physically
present during the time when the information is sought to be disclosed. (Its
possible that without the Hs knowledge, the wife is presented as witness in
another case and there the wife was directed by subpoena to divulge the
information.)
a. The rules allow in this instance the court to invoke in lieu of the absent
spouse.
b. The rules allow the receiving spouse to invoke the privilege of the
holder, provided that the holder is still alive and it is not sure that the
voter has waived the privilege.
c. If it can be established that the holder waived the privilege, neither the
court nor recipient spouse may invoke in behalf of the holder.
Thats the first principle.
Second, as I said earlier, the privileged communication rule survives the death of
the parties.
Even if the source or the client or the patient dies, the recipient of the information
may not be examined without the consent of the representative. The reason is that
the privileged communication rule is intended to protect the privileged nature of the
communication and this confidential nature of the communication does not cease
simply because the parties to the communication died.
How do you distinguish privileged communication rule between the
spouses and the marital disqualification rule?
Do not confuse one with the other. These are the distinctions between the two.
1. Under Marital Disqualification, the disqualification attaches to the fact of
relationship, the fact that one is married to another and this marital
disqualification rule applies regardless of the testimony of the witnessing
spouse. The witness spouse may be asked to testify to any information,
confidential or not. But because he or she is married to the party spouse, he
is disqualified by reason alone of the marriage.
In privileged communication rule with the spouses, the spouse witness is not
disqualified from testifying but rather he is disqualified from disclosing the
confidential info. In other words, the disqualification is not imposed on the
fact of marriage alone but attached to the nature of the communication.
So even if the communication is not confidential, that spouse may be asked
to disclose the information provided it will not violate the marital
disqualification rule.
So it is possible that the communication is not confidential and therefore the
privileged communication may not be invoked. However, the witnessing
spouse may be disqualified from testifying because he is disqualified under
the marital disqualification rule.

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2. Marital disqualification rule subsists so long as the marriage subsists. So as

long as the spouses are married, neither of them are qualified to testify for or
against the other.
In privileged communication rule, even if the marriage is dissolved by death
or any other legal ground, the spouse may not be examined as to any
confidential communication that the witness spouse may have received from
the other spouse during the marriage because privileged communication rule
survives the death of both parties.
3. In marital disqualification, the witness spouse may or may not be a party to
the case where he is called to testify but the other spouse for or against
whom the testimony is offered must be a party to the case where the witness
is called to testify.
In privileged communication rule, it doesnt matter whether or not the
communicating spouse is a party or the recipient/witness spouse is a party.
What matters is that a privileged communication is to be illicited from the
witness spouse.
So these are the differences between Marital Disqualification Rule and the Privileged
Communication Rule between spouses.
These are the distinctions between Marital DQ Rule (MDQ) from Priviledged
Communication Rule (PCR) between spouses.
Next requisite. Information is given confidentially.
So not all communication between spouses given and received during the marriage
are covered. Only CONFIDENTIALLY-GIVEN information is covered.
What happens if the otherwise confidential information between spouses
FALLS TO THE HANDS OF ANOTHER LEGALLY OR ILLEGALLY?
As when the communication in the form of a letter from one spouse to the other
falls into the hands of a third party whether it was stolen or found somewhere else
not authorized by the source of the information. This is answered in the case of PP
vs. Carlos.
PP. vs. Carlos
This involves a prosecution for murder agianst Mr. Carlos. This case traced its
umbillical cord to the medical condition of the accused wife. Before the incident
that led to the filing of the case took place, the wife of the accused was a patient of
the victim who was a doctor. From time to time the wife paid the doctor a visit to
seek medical advice or attendance. But it was claimed later that the doctor took
advantage of the wife. From the language of the accused, the doctor RAVAGED his
wife. When the doctor now sent his bill for his professional fees and the spouses
couldnt pay or were unwilling to pay, they complained which eventually resulted in
the violent incident where the husband killed the doctor, obviously out of jealousy.
The husband was prosecuted for murder and was convicted by the trial court. When
the case was appealed to the SC, one of the issues raised there was:

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ISSUE: WON the crime committed by the husband was murder or homicide only
Arguing for murder, the state made use of the letter sent by the wife to the husband
prior to the incident where the wife expressed her reservation as to the violent
tendencies or propensity of the husband. The wife was referring to the husbands
reaction to what the doctor did to the wife. Because of this letter, the state argued
that the killing of the doctor by the husband was premeditated. For his part the
accused argued that this piece of evidence consisting of the letter of the wife sent
to the husband is confidential and cannot therefore be introduced as evidence
without the consent of the wife.
Held: SC rejected this argument holding that when confidential information
between spouses fall to the hands of third persons, legally or illegally, that
otherwise confidential information ceases to be confidential and therefore the third
party who may be in possession of that info. may testify in court as to that
information. So even if obtained legally or illegally, so long as the information
comes into the possession of someone else that is no longer covered by the
priviledged-communication. Take note of that. Moral lesson there is if you have
confidential information from your spouse, guard it with your life because it may be
used against you.
Last requisite is the information be given or received during the marriage.
Take note, during the marriage, and the disclosure of the information is sought
either during or after the marriage.
Privileged-communication bet. a Lawyer and his Client
Under section 24, it says that the laywer cannot, without the consent of his client,
be examined as to any information given to him by his client or any advice given by
him to his client in the view of professional engagement.
Requisites
1 Communication must consist of information relayed by a client to the
lawyer and/or the advice given by the lawyer to a client
If the information is not given by a client or the advice is not given to a client, this
does not apply. This is the ruling in the case of US vs.
US vs. Anna Louisa Gordon Nikkar
Conspiracy to possess and traffic cocaine, with several accused. One accused,
Brenda Marcian, pleaded guilty and turned state witness against co-accused Louisa.
She testified that there were two meetings held between lawyer of Louisa where the
lawyer advised Marcian to abscond to Argentina, and instructed Louisa and those
present to perjure themselves, denying that they had any knowledge of the cocaine,
and that they were just present to attend a party. This was sought to be excluded
under the Lawyer-Client Relationship. SC: Marcian is not the client of Atty. Esconsa
but was just present during the meeting.

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2nd Requisite: Information or Advice must be given confidentially. It must

be intended for only both their purposes.
Uy Chico vs. Union Life
Recovery of proceeds of insurance policies covering goods or stocks. Business
owned by the father, and upon his death, the two sons took over the business.
During this time, property insurance policies were procured for the inventory. The
goods were lost by fire, and a claim for proceeds was filed. OTOH, insofar as the
estate of the father, settlement proceedings by administrator, but in the inventory
of the estate, the insurance proceeds were included as part of the estate. It turned
out that the lawyer for the son who filed to file for collection, was authorized to
compromise with the Insurance Company, so the son delivered the policies to the
lawyer who in turn delivered it to the administrator. It was compromised at the
price. Dissatisfied, the son disclaimed involvement in the compromise. Insurance
Company, by way of defense tried to introduce of lawyer. Testimony was introduced
to prove that the lawyer entrusted the authority to compromise to the administrator
and that was pursuant to the instructions of the son. It was objected to, under the
privileged communication rule. SC: the privilege only covers info that is confidential
to both of them. But the info for the purpose of relaying such info to a third party,
removes it from the rule. The lawyer only acted as a messenger. The intended
recipient was precisely the third person, the administrator.
What happens if it falls into the hands of third party?
Barton vs. Leyte Asphalt
Letter coming from the client, which the client sent to his lawyer, but somehow,
ended in the possession of the adverse party, which was presented in court.
Objected to under the Lawyer-Client Privileged Communication rule. SC: consistent
from Carlos doctrine, if it falls into the hands of a third party whether LEGALLY or
ILLEGALLY, removes it from the protection of the rule. That third party may disclose
that information in court.
But for one reason or another, this letter entered into the possession of the adverse
party. Now the adverse party presented this letter as evidence in court. This was
objected to under the lawyer-client privileged communication rule. But the SC
consistent with People vs. Carlos ruled that when a communication otherwise
privileged falls into the hands of a 3rd person legally or illegally, this information
ceases to be confidential and therefore any 3rd party who is now in possession of
that information may disclose that information in court.
Lets go to the third requisite.

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3rd Requisite: The information or advice given must be made in the course
of, or with a view to, professional employment respecting a past act or
crime.
The information must be received or the advice must be given in the course of the
engagement as lawyer, or if not consummated, even in instances where the
lawyers services were sought to be engaged by the client but for one reason or
another, the engagement did not push through. But in the course of the
conversation, any information given is covered. So it is not a defense that the
engagement did not materialize because it covers information given even if it is
only with a view to professional engagement. So when a client knocks at your door
and shares with you a legal problem, and for one reason or another, you declined
your services, any information you obtained is already covered.
And take note, it must be respecting a past crime or wrongdoing, because if it
involves a future or a present crime, this cannot be protected by the privilege. This
is the ruling in the case of
People vs. Sandiganbayan
Facts: The accused there was the former provincial attorney and became the
provincial governor and then eventually the Congressman of Agusan. Im referring
to congressman Ceferino Paredes. During his stint as a powerful government official,
Paredes applied for and was granted a free patent covering a vast track of land.
Unfortunately for him, the free patent was cancelled by the court at the instance of
the Bureau of Lands because it turned out that Paredes made material
misrepresentations in his application for free patent. It was later discovered that the
land was the future site of a public school, so the free patent was cancelled. As an
offshoot of this case, an old nemesis of Paredes filed a case for falsification or
perjury. The perjury was the misrepresentations Paredes made in the application for
free patent. The complaint was filed before the Municipal Trial Court. But before
Paredes could be arraigned, the case was dismissed on the ground of prescription.
Not contented, the complainant filed another case against Paredes, this time on the
ground of the provisions of the Anti-Graft and Corrupt Practices Act alleging that
Paredes illegally used his influence when he applied for and was granted a free
patent. So a complaint was then pending before the Tanodbayan, now the
Ombudsman for preliminary investigation. By way of defense, Paredes and his
lawyer, Atty. Sansaet, advanced the argument that he cannot anymore be
prosecuted for violation of the provisions of the Anti-Graft and Corrupt Practices Act
because the filing of perjury case and the subsequent dismissal constitutes double
jeopardy. And one of the requisites of double jeopardy is that the accused must
have been arraigned. But the perjury case was dismissed even before Paredes could
be arraigned. And so the lawyer of Paredes falsified a notice of arraignment to make
it appear that he was arraigned in the perjury case and after arraignment, the case
was dismissed. But unfortunately for Paredes this was discovered by the
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complainant. And so another case was filed against Paredes, this time, together with
Atty. Sansaet, because he was the one who presented the falsified notice of
arraignment before the Ombudsman. Atty. Sansaet admitted that he falsified the
records, and so when the case was filed with the Sandiganbayan, the government
took advantage of the admission of Atty. Sansaet and offered to make him a state
witness against his client. The Sandiganbayan disqualified Atty. Sansaet from being
a state witness on the ground of the lawyer-client privileged communication rule.
The SC ruled that privileged communication between lawyer and client are intended
for legitimate purposes, to protect confidential information. Then end result is
promotion of justice.
The Supreme Court ruled:
1. All privileged communication rules are intended for legitimate purposes- end
result is promotion of justice. If the use of privileged communication rule will instead
promote fraud or injustice, this cannot be sanctioned by law. The rule cannot be an
instrument of fraud or injustice.
2. One of the requisites of the rule is that the information/advice must be given in
the course of professional employment. How can it be professional if it involves a
crime?
Paredes argued that the rule applies only to matters relating to past events or
crimes and the matter of falsification of the documents took place in the past. SC
rejected this line of argument. The rule only applies to past crimes, it cannot cover
future crimes. The reckoning point to determine whether the engagement was in
connection with the past crime is the time when the communication was relayed or
given. If the client discusses his intention to commit a future crime or the fact that
he is presently committing a crime, that information cannot be covered by the
privilege. The lawyer may disclose such information. However, if the client discusses
crimes he committed in the past, that information cannot be disclosed by the
lawyer.
When Paredes and his client discussed about falsifying the document, they were in
effect doing a present act or at least a future act of falsification. This exchange of
information between them cannot be privileged communication. The reckoning
point is the time when the communication was relayed, not the time when the
lawyer is asked to disclose the information because obviously it will always involve
the past.
Joint defense or Common defense Rule
Now, there is an instance that even in the absence of lawyer-client relationship, the
rule may still be invoked. This is when the joint defense or common defense rule
applies. Under this principle, when a client who is a party to the case communicates
to a lawyer representing another party to the case in connection with a joint
defense, whatever information relayed to that lawyer (not his own lawyer) is
covered by the privileged communication rule.

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US vs McPartlin
Congressman McPartlin, in conspiracy with other public officers, rigged the bidding
in order that Ingram Company would get the contract. Certain persons were
charged, including McPartlin, the president of Ingram and a certain Mr. Benton. This
Mr. Benton was the one who was so involved in the negotiations and in the course of
these negotiations, he kept a diary. Mr Benton prepared a diary where he recorded
the time of the meeting, the persons present, the gists of the matters taken up, etc.
It turned out that in his diaries, Mr. Ingram and Mr. Mcpartlin were prominently
figured and involved in the conspiracy. So, to all the accused, the testimony of Mr.
Benton, because it was Mr. Benton now testified for the state against his own coconspirators. So to all the defense, the testimony of Benton and his diaries were so
dangling evidence against them. And so it was their common interest to discredit
Me. Benton. So it was a common understanding among the accused to destroy and
discredit the testimony of Mr. Benton. For this purpose, they held meetings. The
lawyers were there and all the accused were there. And in some of these meetings,
the lawyer of Mr. Ingram hired an investigator to interview Mr. Mcpartlin. In the
course of the interview, Mr. Mcpartlin made some statements which turn out to be
favorable to Mr. Ingram. And so, during trial, Mr. Ingram tried to prove the
statements made by Mr. McPartlin in the course of the interview conducted by the
investigator hired by the lawyer for Mr. Ingram. This was objected to under the
Lawyer-Client Privileged Communication Rule. But Mr. Ingram argued that there can
be no lawyer-client privileged communication rule because Mr. Mcpartlin conveyed
the information to the investigator hired by the lawyer of Mr. Ingram. Mr. Mcpartlin is
not a client of the lawyer for Mr. Ingram. So there is no lawyer-client relationship so
this is not covered by the privilege. But this argument was rejected by the SC
holding that while technically, there is no lawyer client relationship,
between Mr. mcpartlin and the lawyer of Mr. Ingram, but because of the
so-called common defense rule, or joint defense privilege, the lawyer of
the other client, or the other accused is deemed to be the lawyer of Mr.
Mcpartlin for that same common purpose. This is to encourage full defense of
the parties to the litigation. So how can they be united in their common stand if
communication is not protected by the privilege? So in this respect, all of them were
treated as one and all of them were treated to be represented by one and the same
counsel. It is as if the lawyer for one represents all the other accused.
Now it was also further argued that this communication, the information relayed by
Mr. Mcpartlin is not covered because Mr. Mcpartlin conveyed this information not to
a lawyer but to an investigator hired by the lawyer of Mr. Ingram. Again, this was
rejected by the SC holding that even if the information was relayed to the
investigator, the investigator was an agent of the lawyer. Because was
simply hired by the lawyer. So any information relayed by Mr. McPartlin to
the investigator amounts to an information relayed by Mr. Mcpartlin to the
himself.
Take note of these requisites.
Take note also of the ruling in Regala vs. Sandiganbayan where the SC said that
the identity of the client is not privileged. It would be absurd to make the identity of
the client privileged when one of the requisites to this privilege is the existence of
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the relationship and how can you establish the relationship without identifying the
client? It makes sense. But the SC in this case said that as a general rule, it is not
privileged except when the identity of the client will incriminate the client to an
activity for which the services of the lawyer was engaged. So when the client
engages your services, because of want to enter into transactions where he could
conceal his identity, in other words, he purposely seeks your services to conceal his
identity in that activity, and if a suit arises out of this activity, the disclosure of the
identity of that client will result in the incrimination of your client, that is already
covered. But this will not be so in any other transactions.
Since we ran out of time, you just take care of the remaining topics but not
including Admissions and hearsay.
---end--God bless and good luck!

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