Escolar Documentos
Profissional Documentos
Cultura Documentos
GENERAL PROVISIONS
Evidence defined ........................................................................................................... 4 Scope.............................................................................................................................. 4 Admissibility of evidence ............................................................................................. 4 Relevancy; collateral matters ....................................................................................... 4 Sample problem............................................................................................................. 4 Rule on alibi ................................................................................................................... 5 Factum probandum v. Factum probans ...................................................................... 5 Judicial notice; when mandatory ................................................................................. 6 Judicial notice; when discretionary ............................................................................. 9 Judicial notice; when hearing necessary .................................................................... 9 Judicial admissions .................................................................................................... 11
OBJECT EVIDENCE
Object evidence ........................................................................................................... 13 Chain of custody ......................................................................................................... 13 Drug cases ................................................................................................................... 13 Documentary evidence ............................................................................................... 15 Electronic document ................................................................................................... 15 Best Evidence Rule ..................................................................................................... 15 Original Document ...................................................................................................... 16 Original Document under the Best Evidence Rule ................................................... 17 How to present secondary evidence ......................................................................... 19 Party who calls for document not bound to present it............................................. 20 Parol Evidence Rule .................................................................................................... 20 Exceptions to the Parol Evidence Rule ..................................................................... 21 Interpretation of documents ....................................................................................... 23
TESTIMONIAL EVIDENCE
Qualification of witnesses .......................................................................................... 25 Disqualification by reason of marriage ..................................................................... 27 Marital privilege ........................................................................................................... 30 Dead mans statue; Survivorship disqualification.................................................... 32 Lawyer-client privilege ................................................................................................ 35 Name of client .............................................................................................................. 35 Physician-patient privilege ......................................................................................... 37 Priest-penitent privilege.............................................................................................. 39 Public officer ................................................................................................................ 39 Parental privilege and filial privilege ......................................................................... 39
ADMISSIONS
Res inter alios acta (type 1) ........................................................................................ 44 Admission by silence .................................................................................................. 45 Confession ................................................................................................................... 46
Rule on alibi For an ailibi to prevail, the defense must establish positive, clear and satisfactory proof that it was physically impossible for the accused to have been at the scene of the crime at the time of the comision and not merely that the accused was somewhere else.
Factum probandum v. Factum probans Factum Probandum fact or proposition to be established Factum Probans facts evidencing the fact or proposition to be established
and
symbols
of
L O
Official acts if the legislative, executive, and judicial departments of government Political history of states Laws of nature Existence and territorial extent of states Geographical divisions Measure of time Admiralty and maritime courts of the world and their seals Political constitution and history of the Philippines
P L E G M A
1997 Bar Q
Give three instances when a Philippine court can take judicial notice of a foreign law. SUGGESTED ANSWER: 1. when the Philippine courts are evidently familiar with the foreign law (Moran. Vol. 5, p. 34, 1980 edition); 2. when the foreign law refers to the law of nations (Sec. 1 of Rule 129) When the matter is subject to mandatory judicial, no motion or hearing is necessary for the court to take judicial notice.
6
1
Sample problems Which of the following matters is NOT A PROPER SUBJECT of judicial notice? A. Persons have killed even without motive. B. Municipal ordinances in the municipalities where the MCTC sits. C. Teleconferencing is now a way of conducting business transactions. D. British law on succession personally known to the presiding judge. ANSWER: D. British law on succession personally known to the presiding judge. NOTES: Courts cannot take judicial notice of foreign laws. Like any other fact, they must be alleged and proved. In the absence of evidence of the law of the foreign country, Phil. Laws should be applied under the doctrine of processual presumption. PCIB v. Escolinforeign law is within the actual knowledge of the court: 1. when the law is generally well-known 2. had been ruled upon in previous cases before it 3. and none of the parties claim otherwise
Which of the following is not subject of mandatory judicial notice? A. Political history of the Philippines B. The laws of nature C. Political constitution of states D. Admiralty and maritime courts of the world
As a rule, "courts are not authorized to take judicial notice of the contents of the records of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been heard or are actually pending before the same judge." Be that as it may, Section 2, Rule 129 provides that courts may take judicial notice of matters ought to be known to judges because of their judicial functions. In this case, the Court notes that a copy of the Decision in CTA Case No. 4897 was attached to the Petition for Review filed before this Court. Significantly, respondents do not claim at all that the said Decision was fraudulent or nonexistent. Indeed, they do not even dispute the contents of the said Decision, claiming merely that the Court cannot take judicial notice thereof. (BPI Savings v. Court of Tax Appeals, G.R. No. 122480, April 12, 2000) The court can take judicial notice of a fact during or after trial; judicial may also be taken on appeal.
9
3
SUGGESTED ANSWER: The RTC may not generally take judicial notice of foreign laws (In re Estate of Johnson, G.R. No. 12767, November 16, 1918; Fluemer v. Hix, G.R. No. 32636, March 17, 1930), which must be proved like any other matter of fact (Sy Joe Lieng v. Sy Quia, G.R. No. 4718, March 19, 1910) except in a few instances, the court in the exercise of its sound judicial discretion, may take notice of foreign laws when Philippine courts are evidently familiar with them, such as the Spanish Civil Code, which had taken effect in the Philippines, and other allied legislation. (Pardo v. Republic, G.R. No. L-2248 January 23, 1950; Delgado v. Republic, G.R. No. L-2546, January .28, 1950)
10
It is settled that judicial admissions may be made: 1. in the pleadings filed by the parties; 2. in the course of the trial either by verbal or written manifestations or stipulations; or 3. in other stages of judicial proceedings, as in the pre-trial of the case.
A written statement is nonetheless competent as an admission even if it is contained in a document which is not itself effective for the purpose for which it is made, either by reason of illegality, or incompetency of party thereto, or by reason of not being signed, executed or delivered. Accordingly, contracts have been held as competent evidence of admissions, although they may be unenforceable. [Republic v. Sandiganbayan, 2003]
5
cf. Retraction of pre-trial stipulations in Criminal Proceedings. After pre-trial conference, the court shall issue an order reciting the actions taken, facts stipulated, and evidence marked. Such order shall bind the parties, limit trial to matters not disposed of, and control the course of the action during trial, unless modified by the court to prevent manifest injustice. [R 118.4]
11
12
Chain of custody While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain an unbroken chain of custody, it becomes indispensable and essential when the item of real evidence is not distinctive and not readily identifiable, or when its condition at the time of testing or trial is critical or when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible of alteration, tampering, contamination and even substitution and exchange. Drug cases The apprehending team having initial custody and control of the drugs shall immediately after seizure and confiscation: 1. physically inventory; and
13
14
1997 Bar Q When A loaned a sum of money to B, A typed a single copy of the promissory note, which they both signed A made two photo (xeroxed) copies of the promissory note, giving one copy to B and retaining the other copy. A entrusted the typewritten copy to his counsel for safekeeping. The copy with A's counsel was destroyed when the law office was burned. In an action to collect on the promissory note, which is deemed to be the "original" copy for the purpose of the "Best Evidence Rule"? Can the photocopies in the hands of the parties be considered "duplicate original copies"? SUGGESTED ANSWER: a. The copy that was signed and lost is the only "original" copy for purposes of the Best Evidence Rule. (Sec. 4 [b] of Rule 130). b. No. They are not duplicate original copies because there are
There is no reason to apply the best evidence rule when the issue does not involve the contents the document. Thus, where the issue is the execution or the existence of the document or the circumstances surrounding its execution, the Best Evidence Rule does not apply and testimonial evidence is admissible. 9 LCNP: Lost-Custody-Numerous accounts-Public record
16
8
Original Document under the Best Evidence Rule SECTION 1. Original of an Electronic Document. An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means shown to reflect the data accurately. SEC. 2. Copies as equivalent of the originals. The following copies or duplicates shall be regarded as the equivalent of the original. 1. document is in two or more copies executed at or about the same time with identical contents
17
accurately
Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if: a genuine question is raised as to the authenticity of the original; or in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original.
2001 Bar Q Pedro filed a complaint against Lucio for the recovery of a sum of money based on a promissory note executed by Lucio. In his complaint, Pedro alleged that although the promissory note says that it is payable within 120 days, the truth is that the note is payable immediately after 90 days but that if Pedro is willing, he may, upon request of Lucio give the latter up to 120 days to pay the note. During the hearing, Pedro testified that the truth is that the agreement between him and Lucio is for the latter to pay immediately after ninety days time. Also, since the original note was with Lucio and the latter would not surrender to Pedro the original note which Lucio kept in a place about one days trip from where he received the notice to produce the note and in spite of such notice to produce the same within six hours from receipt of such notice, Lucio failed to do so. Pedro presented a copy of the note which was executed at the same time as the original and with identical contents. Over the objection of Lucio, will Pedro be allowed to testify as to the true agreement or contents of the promissory note? Why? (2%) SUGGESTED ANSWER: Yes, the copy in the possession of Pedro is a duplicate original and with identical contents. [Sec. 4 (b) of Rule 130]. Moreover, the failure of Lucio to produce the original of the note is excusable because he was not given reasonable notice, as requirement under the Rules before secondary evidence may be presented. (Sec. 6 of Rule 130, Rules of Court)
18
10
1. The correct order of proof is as follows: existence, execution, loss, and contents. At the sound discretion of the court, this order may be changed if necessary. 2. Finally, when more than one original copy exists, it must appear that all of them have been lost, destroyed, or cannot be produced in court before secondary evidence can be given of any one. A photocopy may not be used without accounting for the other originals. [Citibank v. Efren Teodoro, G.R. No. 150905, 23 September 2003]
19
Parol Evidence Rule SEC. 9. Evidence of written agreements.When the terms of an agreement (including wills) have been reduced to writing, it is considered as containing all the terms agreed upon and there can be,
If the party who calls for the production of a document does not offer the same in evidence, no unfavourable inference may be drawn from such failure.
11
20
Failure of the written agreement to express the true intent and agreement of the parties thereto; Intrinsic ambiguity14, mistake or imperfection in the written agreement; Validity of the written agreement Existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.
V E
A total stranger to the writing is not bound by its terms and is allowed to introduce extrinsic or parol evidence against the efficacy of the writing Although parol evidence is admissible to explain the meaning of a contract, it cannot serve the purpose of incorporating into the contract additional contemporaneous conditions which are not mentioned at all in the writing unless there has been fraud or mistake. Evidence of a prior or contemporaneous verbal agreement is generally not admissible to vary, contradict or defeat the operation of a valid contract. [Ortanez v. Court of Appeals, G.R. No. 107372, 23 January 1997]
LATENT OR INTRINSIC AMBIGUITYOne where the writing upon its face appears clear, but there is some collateral matter which may be raised by extrinsic evidence making the meaning uncertain.
14 13
12
The exception obtains only where "the written contract is so ambiguous or obscure in terms that the contractual intention of the parties cannot be understood from a mere reading of the instrument. In such a case, extrinsic evidence of the subject matter of the contract, of the relations of the parties to each other, and of the facts and circumstances surrounding them when they entered into the contract may be received to enable the court to make a proper interpretation of the instrument." [Seaoil Petroleum v. Autocorp Group, G.R. No. 164326, 17 October 2008]
21
22
23
24
It is thus clear that any child, regardless of age, can be a competent witness if he can perceive, and perceiving, can make known his perception to others and of relating truthfully facts respecting which he is examined. The requirements then of a child's competency as a witness are the: (a) capacity of observation, (b) capacity of recollection, and (c) capacity of communication. In ascertaining whether a child is of sufficient intelligence according to the foregoing requirements, it is settled that the trial court is called upon to make such determination. The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record, the decision of the trial judge will not be disturbed on review unless from that which is preserved it is clear that it was erroneous. [People v. Mendoza, G.R. No. 113791, 22 Feberiary 1996] Interest in the outcome of the case, which also includes close relationship, is not a ground to disqualify a witness. Under the rules, children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully is included as an exception. To avoid confusion, no need to include this in the enumeration. Note that under the Rule on Examination of Child Witnesses: Every child is presumed qualified to be a witness.
25
17 16
15
26
If the testimony for or against the other spouse is offered during the existence of the marriage, it does not matter if the facts subject of the testimony occurred or came to knowledge of the witness-spouse before the marriage.
TAKE NOTE OF THE FF: 1. The prohibition extends not only to testimony adverse to the spouse but also to a testimony in favour of the spouse. 2. The disqualification is between husband and wife, but the rule does not preclude the wife from testifying when it involves other parties or accused. Hence, the wife could testify in the murder against the brothers who were jointly tried with husbands of the witness.
19
18
27
28
29
When the marital privileged communication rule applies, the spouse affected by the disclosure of the information or testimony may object even after the dissolution of the marriage. Information received by a spouse before the marriage, even if received confidentially, will not fall squarely with the provisions of R130.24(a); but divulging the same may be objected under R130.22 upon proper objection as long as the information sought is to be released during the marriage thru a testimony for or against the affected spouse. Where a privileged communication from one spouse to another comes into the hands of a third party, whether legally or not, without collusion and voluntary disclosure on the part of either of the spouses, the privilege is thereby extinguished and the communication, if otherwise comeptent, becomes admissible. [People v. Carlos, 1925]
30
22 21
20
31
The rule will not apply where the plaintiff is the executor or administrator as representative of the deceased or if the plaintiff is the person of unsound mind. In the instant case, the testimony excluded by the appellate court is that of the defendant (petitioner herein) to the affect that the late Juan Chuidian, (the father of private respondent Vicente Chuidian, the administrator of the estate of Juan Chuidian) and the defendant agreed in the lifetime of Juan Chuidian that the 1,500 shares of stock in E. Razon, Inc. are actually owned by the defendant unless the deceased Juan Chuidian opted to pay the same which never happened. The case was filed by the administrator of the estate of the late Juan Chuidian to recover shares of stock in E. Razon, Inc. allegedly owned by the late Juan T. Chuidian. It is clear, therefore, that the testimony of the petitioner is not within the prohibition of the rule. The case was not filed against the administrator of the estate, nor was it filed upon claims against the estate. [Razon v. IAC, G.R. No. 74306, 16 March 1992]
TAKE NOTE OF THE FOLLOWING:
24
23
1. when a counterclaim is set-up by the administrator of the estate, the case is removed from the operation of the dead mans statute. 2. since a claim or demand against the estate implies a claim adverse to the estate, a testimony beneficial to such estate should not be excluded. The rule is intended to be exclusive and does not prohibit a testimony by a mere witness to the transaction between the plaintiff and the deceased who had no interest in such transaction.
32
25
Sample problems
Which is NOT a requisite in order for the Dead Mans Statute to be applicable? A. the witness is a party or an assignor of a party B. the action is against an executor or administrator if an estate C. the testimony should refer to any matter of fact which occurred after the death of the deceased D. the subject matter of the action is a claim or demand against the estate of a deceased person ANSWER: C. the testimony should refer to any matter of fact which occurred after the death of the deceased
A statement made by Willard before he died to the effect that he owes Florenz a sum of money, in a suit filed by Florenz against the estate of Willard, is: A. admissible because it is a dying declaration B. admissible because it is declaration against interest
33
34
26
1.
21, CPRA lawyer shall preserve the confidence and secrets of his client even after the attorney-client relationship is terminated. 2. Where a person consults an attorney not as a lawyer but as a friend or participant in a business transaction, the consultation would not be one made in the course of professional employment or with a view to professional employment.
27
The privilege is extended to communications for the purpose of securing the services of counsel even if the counsel later refuses the professional relationship. A distinction must be made between confidential communications relating to past crimes already committed and future crimes intented to be commited by the client. If the client seeks his lawyers advice with respect to a crime that the former has heretofore committed, he is given the protection of a virtual confessional seal which the attorney-client privilege declares cannot be broken by the attorney without the clients consent. The same privileged confidentiality, however, does not attach with regard to a crime which a client intends to commit thereafter or in the future and for purposes of which he seeks the lawyers advice. [People v. Sandiganbayan, 1997]
28
35
36
Physician-patient privilege SEC. 24. Disqualification by reason of privileged communication. A person authorized to practice medicine, surgery or obstetrics29 cannot in a civil case, without the consent of the patient, be examined as to the following: 1. advice given to patient 2. treatment given to patient 3. any information acquired in attending to such patient made under the following circumstances: 1. made or acquired in a professional capacity 2. information was necessary to enable him to act in that capacity 3. information would blacken the reputation of the patient 1998 Bar Q C is the child of the spouses H and W. H sued his wife W for judicial declaration of nullity of marriage under Article 36 of the Family Code. In the trial, the following testified over the objection of W: C, H and D, a doctor of medicine who used to treat W. Rule on W's objections which are the
In the instant case, the person against whom the privilege is claimed is not one duly authorized to practice medicine, surgery or obstetrics. He is simply the patient's husband who wishes to testify on a document executed by medical practitioners. Plainly and clearly, this does not fall within the claimed prohibition. Neither can his testimony be considered a circumvention of the prohibition because his testimony cannot have the force and effect of the testimony of the physician who examined the patient and executed the report. [Krohn v. Court of Appeals, G.R. No. 108854, 14 June 1994]
37
29
38
But this privilege, as this Court notes, is intended not for the protection of public officers but for the protection of public interest (Vogel vs. Gruaz 110 U.S. 311 cited in Moran, Comments on the Rules of Court, 1980 Ed. Vol. 5, p. 211). Where there is no public interest that would be prejudiced, this invoked rule will not be applicable. The rule that a public officer cannot be examined as to communications made to him in official confidence does not apply when there is nothing to show that the public interest would suffer by the disclosure question. ... ,( Agnew vs. Agnew,'52 SD 472, cited in Martin Rules of Court of the Philippines, Third Edition, Vol. 5, p. 199). [Banco Filipino v. Monetary Board, G.R. No. 70054, 8 July 1986]
39
30
40
not an admission of any liability not admissible in evidence against the offeror Offer to pay or the payment of medical, hospital, or other expenses occasioned by an injury is not admissible as proof of civil liability for the injury
1. those involving quasi-offenses (criminal negligence) 2. those allowed by law to be compromised 3. offer to pay or the payment of medical, hospital, or other expenses occasioned by an injury is not admissible as proof of criminal liability for the injury
1998 Bar Q A was accused of having raped X. Rule on the admissibility of the following
31
1. To be an implied admission of guilt, the offer must be an offer of compromise by the accused (or his representative) . 2. An offer to compromise does not require that a criminal complaint be first held before the offer can be received in evidence against the offeror. What is required is that after committing the crime, the accused or his representative makes an offer to compromise and such offer is proved. [People v. Yparriguere, 1997] 3. It has long been held, however, that in such cases the accused is permitted to show that the offer was not made under a consciousness of guilt, but merely to avoid the inconvenience of imprisonment or for some other reason which could justify a claim by the accused that the offer to compromise was not in truth an admission of guilt or an attempt to avoid the legal consequences which would ordinarily ensue therefrom. Also, it has been held that where the accused was not present at the time the offer for monetary consideration was made (or where the accused did not take part in any of the negotiations and the effort to settle the case), such offer would not save the day for the prosectution. xxx. [People v. Godoy, 1997]
41
Sample problem
An offer to pay for the payment of medical, hospital and other expenses occasioned by an injury: A. B. C. D. is admissible as proof of civil or criminal liability for the injury is not admissible as proof of civil or criminal liability for the injury is admissible as proof of liability only in civil cases is admissible as proof of liability only in criminal cases
ANSWER: B. is not admissible as proof of civil or criminal liability for the injury
Plea of guilt SEC. 27. Offer of compromise not admissible. A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to a lesser offense, is not admissible in evidence against the accused who made the plea or offer.
42
43
The act or declaration: 1. is within the scope of authority; 2. and during the existence of the partnership or agency. 3. The partnership is shown by evidence other than such act or declaration The act or declaration: 1. relates to the conspiracy 2. was made during the existence of the conspiracy 3. The conspiracy is shown by evidence other than such act or declaration The act or declaration: 1. was made by a person while holding title to property 2. was in relation to the property 3. The statement may be received in evidence against one who derives title to property from said person.
CONSPIRATOR
PRIVIES
The res inter alios acta rule ordains that the rights of a party cannot be prejudiced by an act, declaration, or omission of another. An extrajudicial confession is binding only upon the confessant and is not admissible against his co-accused. The reason for the rule is that, on a principle of good faith and mutual convenience, a man's own acts are binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party.(26a)
44
33
32
ANSWER: B. No, since Asiong did not make the statement during the conspiracy. Admission by silence SEC. 32. Admission by silence.REQUISITES: 1. there is an act or declaration made in the presence and within the hearing or observation of a party 2. the act or declaration is such as naturally to call for action or comment if not true, and when proper 3. the said party does or says nothing, even if possible for him to do so34
Petitioner argues that by not responding to the above letter which expressly urged them to reply if the statements therein contained are untrue, respondents in effect admitted the matters stated therein, pursuant to the rule on admission by silence in Sec. 32, Rule 130, and the disputable presumption that acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact. Petitioners argument lacks merit. One cannot prove his claim by placing the burden of proof on the other party. Indeed, "(a) man cannot make evidence for himself by writing a letter containing the statements that he wishes to prove. He does not make the letter evidence by sending it to the party against whom he wishes to prove the facts [stated therein]. He no more can impose a duty to answer a charge than he can impose a duty to pay by sending goods. Therefore a failure to answer such adverse assertions in the absence of further circumstances making an answer requisite or natural has no effect as an admission." Moreover, the rule on admission by silence applies to adverse statements in writing if the party was carrying on a mutual correspondence with the declarant. However, if there was no such mutual correspondence, the rule is relaxed on the theory that while the party would have immediately reacted by a denial if the statements were orally made in
45
34
The custodial interrogation of accused-appellant was violative of Section 12, Article III of the Constitution. The Constitution provides that "Any confession or admission obtained in violation of this section or Section 17 hereof shall be inadmissible against him." Section 17, Article III provides: "No person shall be compelled to be a witness against himself." Any confession, including a re-enactment without admonition of the right to silence and to counsel, and without counsel chosen by the accused is inadmissible in evidence. [People v. Yip Wai Ming, G.R. No. 120959, 14 November 1996] At the outset, the Court holds that the signatures of accused on the boxes, as well as on the plastic bags containing shabu, are inadmissible in evidence. A careful study of the records reveals that accused were never informed of their fundamental rights during the entire time that they were under investigation. Specifically, accused were not informed of their Miranda rights i.e. that they had the right to remain silent and to counsel and any statement they might make could be used against them, when they were made to affix their signatures on the boxes of Alpen Cereals while they were at the NAIA and again, on the plastic bags when they were already taken in custody at Camp Crame. By affixing their signatures on the boxes of Alpen Cereals and on the plastic bags, accused in effect made a tacit admission of the crime charged for mere possession of shabu is punished by law. These signatures of accused are tantamount to an uncounselled extra-judicial confession which is not sanctioned by the Bill of Rights (Section 12 [1][3], Article III, 1987 Constitution). They are, therefore, inadmissible as evidence for any admission wrung from the accused in violation of their constitutional rights is inadmissible against them. [People v. Wong Chuen Ming, G.R. Nos. 112801-11, 12 April 1996]
his presence, such prompt response can generally not be expected if the party still has to resort to a written reply. In the same manner, we also cannot assume an admission by silence on the part of Balaguer by virtue of his failure to protest or disclaim the attribution to him by the newspapers that he is the source of the articles. As explained above, the rule on admission by silence is relaxed when the statement is not made orally in ones presence or when one still has to resort to a written reply, or when there is no mutual correspondence between the parties. [Villanueva v. Balaguer, G.R. No. 180197, 23 June 2009]
46
47
Previous conduct as evidence (Res inter alios acta type 2) ............................................... 4 Character evidence............................................................................................................................... 6 Character evidence in child abuse cases ................................................................................... 7 Unaccepted offer ................................................................................................................................... 9
HEARSAY
Testimony generally confined to personal knowledge ......................................................... 9 Hearsay ....................................................................................................................................................10 Dying declaration ................................................................................................................................10 Declaration against interest ............................................................................................................14 Act or declaration about pedigree ...............................................................................................16 Family reputation ................................................................................................................................17 Common reputation ...........................................................................................................................17 Res gestae ..............................................................................................................................................17 Entries in the course of business ................................................................................................19 Entries in official records.................................................................................................................20 Commercial lists ..................................................................................................................................21 Learned treatises .................................................................................................................................21 Testimony or deposition at a former proceeding ..................................................................21 Child hearsay exception ...................................................................................................................22
OPINION
How examination to be done ..........................................................................................................31 Recording of proceedings ...............................................................................................................31 Rights and obligations of a witness ............................................................................................31 Order of examination .........................................................................................................................33 Direct examination ..............................................................................................................................33 Cross examination ..............................................................................................................................33 Re-direct examination .......................................................................................................................34 Re-cross examination........................................................................................................................34 Recalling witnesses ...........................................................................................................................35 Leading questions ..............................................................................................................................36 Impeachment of witness ..................................................................................................................37
Party may not impeach own witness ..........................................................................................37 Hostile witness .....................................................................................................................................37 How to impeach hostile witness ...................................................................................................38 Good character evidence .................................................................................................................38 Exclusion of other witnesses .........................................................................................................38 Reference to memorandum ............................................................................................................39 Part of transaction, writing, record given in evidence ........................................................39 Right to inspect writing shown to witness ...............................................................................40
AUTHENTICATION AND PROOF OF DOCUMENTS
Classes of documents.......................................................................................................................41 Public documents as evidence ..................................................................................................... 42 Irremovability of public record ......................................................................................................42 Proof of public documents ..............................................................................................................43 Proof of lack of record ......................................................................................................................44 Impeachment of judicial record..................................................................................................... 45 Proof of private documents ............................................................................................................45 Ancient documents ............................................................................................................................45 Genuineness of handwriting ..........................................................................................................46 Alterations ..............................................................................................................................................46 Documents in an unofficial language .........................................................................................47 Proof of private electronic document .........................................................................................47
OFFER AND OBJECTION
Offer of evidence .................................................................................................................................48 When to make offer ............................................................................................................................48 Objection .................................................................................................................................................48 Continuing objection .........................................................................................................................49 Ruling ....................................................................................................................................................... 49 Striking out answer ............................................................................................................................49 Tender of excluded evidence .........................................................................................................49
WEIGHT AND SUFFICIENCY OF EVIDENCE
Preponderance of evidence ............................................................................................................51 Proof beyond reasonable doubt ...................................................................................................51 Extrajudicial confession ...................................................................................................................51 Corpus delicti ........................................................................................................................................51 Circumstantial evidence ...................................................................................................................52 Substantial evidence..........................................................................................................................52 Preponderance of evidence ............................................................................................................52 Evidence on motion ...........................................................................................................................52
Rule for witnesses: [R132.11]: 1. A witness may not be impeached by evidence of particular wrongful acts; 2. But it may be shown that he was previously convicted of an offense.
may prove his good moral character which is pertinent to the moral trait involved in the offense charged
The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged.
Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved in the offense charged2.
CIVIL CASES The good or bad moral character of the offended party may
be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged.
The claim that the trial court also erred in not allowing the defense to prove that the deceased had a violent, quarrelsome, or provocative character cannot also deserve consideration. While good or bad moral character may be availed of as an aid to determine the probability or improbability of the commission of an offense, such is not necessary in the crime of murder where the killing is committed through treachery or premeditation. The proof of such character may only be allowed in homicide cases to show that it has produced a reasonable belief of imminent danger in the mind of the accused and a justifiable conviction that a prompt defensive action was necessary. [People v. Soliman, 1957]
Evidence of the good moral character of a witness is not admissible until such character has been impeached A witness may be impeached by the party against whom he was called: 1. by contradictory evidence 2. by evidence that his general reputation for truth, honesty, or integrity is bad, or 3. by evidence that he has made at other times statements inconsistent with his present testimony but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense. [R132.11] The unwilling or hostile witness so declared or the witness who is an adverse party may be impeached by the party presenting him in all respects as if he had been called by the adverse part, except by evidence of his bad character
2002 Bar Q D was prosecuted for homicide for allegedly beating up V to death with an iron pipe. May the prosecution introduce evidence that V had a good reputation for peacefulness and non- violence? Why? (2%) May D introduce evidence of specific violent acts by V? Why? (3%) Character evidence in child abuse cases The following are inadmissible: 1. evidence offered to prove that the alleged victim engaged in other sexual behaviour 2. evidence to prove the sexual predisposition of the victim
EXCEPTIONEvidence
of specific instances of sexual behaviour by the alleged victim is admissible to prove that a person other than the accused was the source of semen, injury or other physical evidence.
A witness may be impeached by evidence of: A. his bad moral character B. his bad reputation C. his propensity to lie
An adverse partys witness may NOT be impeached by: A. evidence that in the community where he resides, his general reputation for truth, honesty or integrity is bad B. a prior inconsistent statement C. particular instances of immoral or wrongful acts, or improper or unlawful conduct that the witness may have committed D. evidence of a prior conviction of an offense which may be proved by
Unaccepted offer SEC. 35. Unaccepted offer.An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production and tender of the money, instrument, or property.(49a) Testimony generally confined to personal knowledge SEC. 36. Testimony generally confined to personal knowledge; hearsay excluded.A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception3, except as otherwise provided in these rules. (30a)
While the testimony of a witness regarding the statement made by another person, if intended to establish the truth of the fact asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in
1. out-of-court statement; not made by the declarant in the hearing or trial 2. out-of-court statement is repeated and offered by a witness in court to prove the truth of the matters asserted by the statement.
TAKE NOTE OF THE FOLLOWING:
Evidence is hearsay when its probative value depends, in whole or in part, on the competency and credibility of some persons other than the witness by whom it is sought to produce it. If the affiants of affidavits do not take the witness stand to affirm their averments in their affidavits, such affidavits must be excluded from the judicial proceeding, being inadmissible hearsay. Dying declaration SEC. 37. Dying declaration.The declaration of a dying person4, made under the consciousness of an impending death5, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death.(31a) [1998 BAR Q] 1999 Bar Q The accused was charged with robbery and homicide. The victim
the record is merely to establish the fact that the statement was made or the tenor of such statement. [People v. Gaddi, 1998] The declarant should be competent as a witness had s/he survived. [People v. Macandog, 2001] True, Payla made no express statement showing that he was conscious of his impending death. The law, however, does not require the declarant to state explicitly a perception of the inevitability of death. The foreboding may be gleaned from surrounding circumstances. [People v. Latayda, 2004]
5 4
A dying declaration: A. is admissible only in criminal cases wherein the death of the declarant is the subject of the inquiry, as evidence of the cause
X is shot in the leg. In his mind, he believes that he will die. Thus, when the police arrive a few minutes after the shooting, he tells the police, I am in serious condition. I beg you to arrest Y. He shot me. An Information for homicide is filed against Y. Two weeks later, X gets run over by a train and dies. During trial, the prosecution calls the police officer who arrived at the scene of the shooting and offers to prove Xs statement thru the police officer. Counsel for Y objects. The court should: A. deny the police officers testimony on the ground that it is hearsay and consequently Y will not be able to cross-examine the declarant X B. admit the police officers testimony on the ground that Y made his declaration under consciousness of impending death
Y asked X, who was dying and bloodied, with a knife still planted on his back, if he (X) was the one who killed Z. X said no and pointed to B as the killer. X died. A. Xs statement is admissible as a dying declaration in a prosecution against B for the death of Z B. Xs statement is not admissible as a dying declaration in the prosecution against B for the death of Z C. Xs statement is admissible as part of res gestae ANSWER: B. Xs statement is not admissible as a dying declaration in the prosecution against B for the death of Z NOTES: Out-of-court statement was not about the cause and surrounding circumstances of the declarants death.
Which of the following is NOT REQUIRED of a declaration against interest as an exception to the hearsay rule? A. The declarant had no motive to falsify and believed such declaration to be true. B. The declarant is dead or unable to testify. C. The declaration relates to a fact against the interest of the declarant. D. At the time he made said declaration he was unaware that the same was contrary to his aforesaid interest. ANSWER: D. At the time he made said declaration he was unaware that the same was contrary to his aforesaid interest.
Act or declaration about pedigree SEC. 39. Act or declaration about pedigree7. 1. the declarant is dead or unable to testify 2. the declarant is related to the person whose pedigree8 is the subject of the inquiry by birth or marriage 3. such relationship is shown by evidence other than the declaration 4. the declaration was made ante litem motam, that is, not only before the commencement of the suit involving the subject matter of the declaration, but before any controversy has arisen. Sample problem
For pedigree evidence to be admissible: A. B. C. D. it is essential that the declarant is deceased or unable to testify it is not essential that the declarant is deceased or unable to testify it is essential only that the decalarant is deceased it is essential only that the declarant is unable to testify
7
EXAMPLE: A declaration made by Jose, already dead, prior to his death and prior to any controversy that Juan is his illegitimate son, is a declaration about pedigree.
The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree.
Family reputation SEC. 40. Family reputation or tradition regarding pedigree. The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engraving on rings, family portraits and the like,9 may be received as evidence of pedigree.(34a) Common reputation SEC. 41. Common reputation.Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty years old, or respecting marriage or moral character, may be given in evidence, Monuments and inscriptions in public places may be received as evidence of common reputation.(35) Res gestae Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material
Private letters and notes do not fall under the phrase and the like.In light of the rule of esjudem genris, the enumeration contained in the second portion of the provision is limited to objects which are commonly known as family possessions, or those articles which represent, in effect, a familys statement of its belief as to the pedigree of a person. These have been described as objects openly exhibited and well known to the family, or those which, if preserved in a family, may be regarded as giving a family tradition.[Jison v. Court of Appeals, G.R. No. 124583, 1998]
9
To prove payment of a debt, Bong testified that he heard Ambo say, as the latter was handing over money to Tessie, that it was in payment of debt. Is Bongs testimony admissible in evidence? A. Yes, since what Ambo said and did is an independently relevant statement. B. No, since what Ambo said and did was not in response to a startling occurrence. C. No, since Bongs testimony of what Ambo said and did is hearsay. D. Yes, since Ambos statement and action, subject of Bongs testimony, constitutes a verbal act. ANSWER: D. Yes, since Ambos statement and action, subject of Bongs testimony, constitutes a verbal act. NOTES: So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. [R130.42]
Section 43, Rule 130 does not apply to this case because it does not involve entries made in the course of business. Furthermore, Rayos testified on a statement of account she prepared on the basis of invoices and delivery orders which she, however, knew nothing about. She had no personal knowledge of the facts on which the accounts were based since, admittedly, she was not involved in the delivery of goods and was merely in charge of the records and documents of all accounts receivable as part of her duties as credit and collection manager. [Nestle Phil. V. FY Sons, 2006]
10
NOTES: Entries made at, or near the time of the transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. [R130.43] Entries in official records SEC. 44. Entries in official records. 1. the entry was made by a public officer, or by another person specially enjoined to do so 2. it was made by the public officer in the performance of his duties, or by such other person in the performance of a duty specially enjoined by law 3. the public officer or other person had sufficient knowledge of the facts stated by him, which must have been acquired by him personally or through official information. Entries in official records are only prima facie evidence of the facts therein stated. They are not conclusive. [People v. Gabriel, 1996]
The exception does not apply in this case. The witnesses are not dead. They are not outside the Philippines. Here, the witnesses in question are available. Only, they refused to testify. [Tan v. Court of Appeals, 1967]
11
1.
SEC. 49. Opinion of expert witness.The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence.(43a)12
IHMI: SEC.
EXPERT WITNESS:
2.
50. Opinion of ordinary witnesses.The opinion of a witness for which proper basis is given, may be received in evidence regarding:
I
Identity of a person Handwriting Mental sanity of a person witness may also testify on his Impressions of the emotion, behavior, condition or appearance of a person.
whom he knowledge
has
adequate
Expert opinions are not ordinarily conclusive. They are generally regarded as purely advisory in character. [Bacalso v. Padigos]
12
Sample problem
In a case, the prosecutor asked the medical expert the question, Assuming that the assailant was behind the deceased before he attacked him, would you say that treachery attended the killing? Is this hypothetical question permissible? A. No, since it asks for his legal opinion. B. Yes, but conditionally, subject to subsequent proof that the assailant was indeed behind the deceased at that time. C. Yes, since hypothetical questions may be asked of an expert witness. D. No, since the medical expert has no personal knowledge of the fact. ANSWER: A. No, since it asks for his legal opinion.
Burden of evidence: Duty of a party to go forward with evidence to overthrow any prima facie presumption against him.
EVIDENCE 26
13
EVIDENCE 27
EVIDENCE 29
EVIDENCE 30
EVIDENCE 32
EVIDENCE 33
Re-direct examination SEC. 7. Re-direct examination; its purpose and extent.After the cross-examination of the witness has been concluded, he may be reexamined by the party calling him, to explain or supplement his answers given during the cross-examination. On re-direct examination, questions on matters not dealt with during the crossexamination, may be allowed by the court in its discretion.(12) Re-cross examination SEC.8. Re-cross-examination.Upon the conclusion of the re-direct examination, the adverse party may re-cross-examine the witness on matters stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion.(13)
EVIDENCE 34
The discretion to recall a witness is not properly invoked or exercisable by an applicants mere general statement that there is a need to recall a witness. in the interest of justice or in order to to afford a party full opportunity to present his case or that, as here, there seems to be many points and questions that should have been asked in the earlier interrogation. To regard expressed generalities such as these as sufficient ground for recall of witnesses would make the recall of a witness no longer discretionary but ministerial. Something more than bare assertion of the need to propound additional questions is essential before a Courts discretion may rightfully be exercised to grant or deny recall. There must be a satisfactory showing of some concrete, substantial ground for the recall. There must be a satisfactory showing on the movants part, for instance, that particularly identified material points were not covered in the cross-examination, or that particularly described vital documents were not presented to the witness whose recall is prayed for, or that the cross-examination was conducted in so inept a manner as to result in a virtual absence thereof. [People v. Rivera, 1991]
14
EVIDENCE 35
15 16
See Rule on Examination of Child Witness. Note R25.6 written interrogatories: Unless thereafter allowed by the court for good cause shown to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal.
EVIDENCE 36
SEC. 13. How witness impeached by evidence of inconsistent statements.Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, 1. the statements must be related to him, with the circumstances of the times and places and the persons present, and 2. he must be asked whether he made such statements, and if so, allowed to explain them. 3. If the statements be in writing they must be shown to the witness before any question is put to him concerning them.(16)
EVIDENCE 37
18
EVIDENCE 38
Part of transaction, writing, record given in evidence SEC. 17. When part of transaction, writing or record given in evidence, the remainder admissible.When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the same subject may be inquired into by the
EVIDENCE 39
EVIDENCE 40
Public records, kept in the Philippines, of private documents required by law to be entered therein20 Documents Acknowledged before a notary public except last wills and testaments Written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country other writings are private.(20a)21
The public document does not refer to the private document itself but to the public record of that private document . 21 It is well-settled that Church registries of births, marriages, and deaths made subsequent to the promulgation of General Orders No. 68 amd the passage of Act No. 190 are no longer public writings, nor are they kept by duly authorized public officials. They are private writings and their authenticity must therefore be proved as are all other private writings in accorance with the rules of evidence. [Llemos v. Llemos, 2007]
EVIDENCE 41
20
Irremovability of public record SEC. 26. Irremovability of public record.Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept, except upon order of a court where the inspection of the record is essential to the just determination of a pending case.(27a)
EVIDENCE 42
SEC. 25. What attestation of copy must state.Whenever a copy of a document or record is attested for the purpose of evidence: the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. the attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court.(26a) Sec. 3, Rule 5, REEA document electronically notarized in accordance with the rules promulgated by the Supreme Court shall be considered as a public document and proved as a notarial document under the Rules of Court
24 23
22
If the record is not kept in the Philippines Accompanied, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office
EVIDENCE 43
Proof of lack of record SEC. 28. Proof of lack of record.A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his officeaccompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry.(29) 2003 Bar Q X was charged with robbery. On the strength of a warrant of arrest issued by the court, X was arrested by police operatives. They seized from his person a handgun. A charge for illegal possession of firearm was also filed against him. In a press conference called by the police, X admitted that he had robbed the victim of jewelry valued at P500, 000.00. The robbery and illegal possession of firearm cases were tried jointly. The prosecution presented in evidence a newspaper clipping of the report to the reporter who was present during the press conference stating that X admitted the robbery. It likewise presented a certification of the PNP Firearms and Explosive Office attesting that the accused had no license to carry any firearm. The certifying officer,
EVIDENCE 44
Impeachment of judicial record SEC. 29. How judicial record impeached.Any judicial record may be impeached by evidence of: a. want of jurisdiction in the court or judicial officer b. collusion between the parties c. fraud in the party offering the record, in respect to the proceedings Proof of private documents SEC. 20. Proof of private document.Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: a. anyone who saw the document executed or written; or b. evidence of the genuineness of the signature or handwriting of the maker. Any other private document need only be identified as that which it is claimed to be. Ancient documents SEC. 21. When evidence of authenticity of private document not necessary.No other evidence of its authenticity need be given in case of ancient documents
EVIDENCE 45
Genuineness of handwriting SEC. 22. How genuineness of handwriting proved. 1. May be proven by any witness who believes it to be the handwriting of a person because: he has seen the person write; or he has seen writing purporting to be the persons upon which he has acted or has been charged; and has thus acquired knowledge of the handwriting of such person 2. by a comparison made by the witness or the court with writings admitted or treated as genuine by the party against whom the document is offered or proved to be genuine to the satisfaction of the judge R130.50: The opinion of a witness for which proper basis is given may be received in evidence regarding: a handwriting which he has sufficient familiarity Alterations SEC. 31. Alterations in document, how to explain. The party producing a document as genuine which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, must account for the alteration. If he fails to do that, the document shall not be admissible in evidence. How to account for alteration: 1. alteration was made by another without his concurrence 2. alteration was made with the consent of the parties affected by it 3. alteration was properly or innocently made
EVIDENCE 46
EVIDENCE 49
EVIDENCE 50
1. proof of occurrence of a certain event 2. some persons criminal responsibility for the act
EVIDENCE 51
EVIDENCE 52
ELECTRONIC EVIDENCE
EVIDENCE 53
ELECTRONIC EVIDENCE
(d) Computer refers to any single or interconnected device or apparatus, which, by electronic, electro-mechanical or magnetic impulse, or by other means with the same function, can receive, record, transmit, store, process, correlate, analyze, project, retrieve and/or produce information, data, text, graphics, figures, voice, video, symbols or other modes of expression or perform any one or more of these functions. (e) Digital Signature refers to an electronic signature consisting of a transformation of an electronic document or an electronic data message using an asymmetric or public cryptosystem such that a person having the initial untransformed electronic document and the signers public key can accurately determine: (i) whether the transformation was created using the private key that corresponds to the signers public key; and, (ii) whether the initial electronic document had been altered after the transformation was made. (f) Digitally signed refers to an electronic document or electronic data message bearing a digital signature verified by the public key listed in a certificate. (g) Electronic data message refers to information generated, sent, received or stored by electronic, optical or similar means. (h) Electronic document refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these
EVIDENCE 54
ELECTRONIC EVIDENCE
Rules, the term electronic document may interchangeably with electronic data message.28
28
be
used
As rightly pointed out in defendant Wallems Reply to the Comment of Plaintiff, the Xerox copies do not constitute the electronic evidence defined in Section 1 of Rule 2 of the Rules on Electronic Evidence. The information in those Xerox or photocopies was not received, recorded, retrieved or produced electronically. Moreover, such electronic evidence must be authenticated (Sections 1 and 2, Rule 5, Rules on Electronic Evidence), which the plaintiff failed to do. Finally, the required Affidavit to prove the admissibility and evidentiary weight of the alleged electronic evidence (Sec. 1, Rule 9, Ibid) was not executed, much less presented in evidence. An "electronic document" refers to information or the representation of information, data, figures, symbols or other models of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any printout, readable by sight or other means which accurately reflects the electronic data message or electronic document. The rules use the word "information" to define an electronic document received, recorded, transmitted, stored, processed, retrieved or produced electronically. This would suggest that an electronic document is relevant only in terms of the information contained therein, similar to any other document which is presented in evidence as proof of its contents. However, what differentiates an electronic document from a paper-based document is the manner by which the information is processed; clearly, the information contained in an electronic document is received, recorded, transmitted, stored, processed, retrieved or produced electronically. A perusal of the information contained in the photocopies submitted by petitioner will reveal that not all of the contents therein, such as the signatures of the persons who purportedly signed the documents, may be recorded or produced electronically. By no stretch of the imagination can a persons signature affixed manually be considered as information electronically received, recorded, transmitted, stored, processed, retrieved or produced. Hence, the argument of petitioner that since these paper printouts were produced through an electronic process, then these photocopies are electronic documents as defined in the Rules on Electronic Evidence is obviously an erroneous, if not preposterous, interpretation of the law. Having thus declared that the offered photocopies are not tantamount to electronic documents, it is consequential that the same may not be considered as the functional equivalent of their original as decreed in the law. [NPC v. Codilla, G.R. No. 170491, 3 April 2007]
EVIDENCE 55
ELECTRONIC EVIDENCE
(i) Electronic key refers to a secret code which secures and defends sensitive information that crosses over public channels into a form decipherable only with a matching electronic key. (j) Electronic signature refers to any distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedure employed or adopted by a person and executed or adopted by such person with the intention of authenticating, signing or approving an electronic data message or electronic document. For purposes of these Rules, an electronic signature includes digital signatures. (k) Ephemeral electronic communication refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained. (l) Information and Communication System refers to a system for generating, sending, receiving, storing or otherwise processing electronic data messages or electronic documents and includes the computer system or other similar devices by or in which data are recorded or stored and any procedure related to the recording or storage of electronic data messages or electronic documents. (m) Key Pair in an asymmetric cryptosystem refers to the private key and its mathematically related public key such that the latter can verify the digital signature that the former creates. (n) Private Key refers to the key of a key pair used to create a digital signature. (o) Public Key refers to the key of a key pair used to verify a digital signature.
EVIDENCE 56
ELECTRONIC EVIDENCE
SEC. 2. Construction. These Rules shall be liberally construed to assist the parties in obtaining a just, expeditious, and inexpensive determination of cases. The interpretation of these Rules shall also take into consideration the international origin of Republic Act No. 8792, otherwise known as the Electronic Commerce Act. RULE 3 ELECTRONIC DOCUMENTS SECTION 1. Electronic Documents as functional equivalent of paper-based documents. Whenever a rule of evidence refers to the term writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules. SEC. 2. Admissibility. An electronic document is admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by these Rules. SEC. 3. Privileged communication. The confidential character of a privileged communication is not lost solely on the ground that it is in the form of an electronic document.
EVIDENCE 57
ELECTRONIC EVIDENCE
RULE 4 BEST EVIDENCE RULE SECTION 1. Original of an Electronic Document. An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately.29 SEC. 2. Copies as equivalent of the originals. When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original, such
Petitioner contends that the photocopies of the pro forma invoices presented by respondent Ssangyong to prove the perfection of their supposed contract of sale are inadmissible in evidence and do not fall within the ambit of R.A. No. 8792, because the law merely admits as the best evidence the original fax transmittal. On the other hand, respondent posits that, from a reading of the law and the Rules on Electronic Evidence, the original facsimile transmittal of the pro forma invoice is admissible in evidence since it is an electronic document and, therefore, the best evidence under the law and the Rules. Respondent further claims that the photocopies of these fax transmittals (specificallyST2POSTS0401-1 and ST2-POSTS0401-2) are admissible under the Rules on Evidence because the respondent sufficiently explained the non-production of the original fax transmittals. We conclude that the terms "electronic data message" and "electronic document," as defined under the Electronic Commerce Act of 2000, do not include a facsimile transmission. Accordingly, a facsimile transmission cannot be considered as electronic evidence. It is not the functional equivalent of an original under the Best Evidence Rule and is not admissible as electronic evidence. Since a facsimile transmission is not an "electronic data message" or an "electronic document," and cannot be considered as electronic evidence by the Court, with greater reason is a photocopy of such a fax transmission not electronic evidence. In the present case, therefore, Pro Forma Invoice Nos. ST2POSTS0401-1 and ST2-POSTS0401-2 (Exhibits "E" and "F"), which are mere photocopies of the original fax transmittals, are not electronic evidence, contrary to the position of both the trial and the appellate courts. [MCC v. Ssangyong, G.R. No. 170633, 17 October 2007.
EVIDENCE 58
29
ELECTRONIC EVIDENCE
copies or duplicates shall be regarded as the equivalent of the original. Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if: (a) a genuine question is raised as to the authenticity of the original; or (b) in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original. RULE 5 AUTHENTICATION OF ELECTRONIC DOCUMENTS
SECTION 1. Burden of proving authenticity. The person seeking to introduce an electronic document in any legal proceeding has the burden of proving its authenticity in the manner provided in this Rule. SEC. 2. Manner of authentication. Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means: (a) by evidence that it had been digitally signed by the person purported to have signed the same; (b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or (c) by other evidence showing its integrity and reliability to the satisfaction of the judge.30
30
Aznar claims that his testimony complies with par. (c), i.e., it constitutes the "other evidence showing integrity and reliability of Exh. "G" to the satisfaction of the judge." The Court is not convinced. Aznars testimony that the person from Ingtan Agency merely handed him the computer print-out and that he thereafter asked said person to sign the same cannot be considered as sufficient to show said print-outs integrity and reliability. As correctly pointed out by Judge Marcos
EVIDENCE 59
ELECTRONIC EVIDENCE
SEC. 3. Proof of electronically notarized document. A document electronically notarized in accordance with the rules promulgated by the Supreme Court shall be considered as a public document and proved as a notarial document under the Rules of Court.31 RULE 6 ELECTRONIC SIGNATURES SECTION 1. Electronic signature. An electronic signature or a digital signature authenticated in the manner prescribed hereunder is admissible in evidence as the functional equivalent of the signature of a person on a written document. SEC. 2. Authentication of electronic signatures. An electronic signature may be authenticated in any of the following manner: (a) By evidence that a method or process was utilized to establish a digital signature and verify the same; (b) By any other means provided by law; or (c) By any other means satisfactory to the judge as establishing the genuineness of the electronic signature.
in his May 29, 1998 Decision, Exh. "G" does not show on its face that it was issued by Ingtan Agency as Aznar merely mentioned in passing how he was able to secure the print-out from the agency; Aznar also failed to show the specific business address of the source of the computer print-out because while the name of Ingtan Agency was mentioned by Aznar, its business address was not reflected in the print-out. Indeed, Aznar failed to demonstrate how the information reflected on the print-out was generated and how the said information could be relied upon as true. [Aznar v. Citibank, G.R. No. 170491, 16 April 2009] 31 Sec. 30, Rule 132
EVIDENCE 60
ELECTRONIC EVIDENCE
SEC. 3. Disputable presumptions relating to electronic signatures. Upon the authentication of an electronic signature, it shall be presumed that: (a) The electronic signature is that of the person to whom it correlates; (b) The electronic signature was affixed by that person with the intention of authenticating or approving the electronic document to which it is related or to indicate such persons consent to the transaction embodied therein; and (c) The methods or processes utilized to affix or verify the electronic signature operated without error or fault. SEC. 4. Disputable presumptions relating to digital signatures. Upon the authentication of a digital signature, it shall be presumed, in addition to those mentioned in the immediately preceding section, that: (a) The information contained in a certificate is correct; (b) The digital signature was created during the operational period of a certificate; (c) No cause exists to render a certificate invalid or revocable; (d) The message associated with a digital signature has not been altered from the time it was signed; and, (e) A certificate had been issued by the certification authority indicated therein. RULE 7 EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS SECTION 1. Factors for assessing evidentiary weight. In assessing the evidentiary weight of an electronic document, the following factors may be considered:
EVIDENCE 61
ELECTRONIC EVIDENCE
(a) The reliability of the manner or method in which it was generated, stored or communicated, including but not limited to input and output procedures, controls, tests and checks for accuracy and reliability of the electronic data message or document, in the light of all the circumstances as well as any relevant agreement; The reliability of the manner in which its originator was identified; The integrity of the information and communication system in which it is recorded or stored, including but not limited to the hardware and computer programs or software used as well as programming errors; The familiarity of the witness or the person who made the entry with the communication and information system; The nature and quality of the information which went into the communication and information system upon which the electronic data message or electronic document was based; or Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or electronic data message.
(b)
(c)
(d) (e)
(f)
SEC. 2. Integrity of an information and communication system. In any dispute involving the integrity of the information and communication system in which an electronic document or electronic data message is recorded or stored, the court may consider, among others, the following factors: (a) Whether the information and communication system or other similar device was operated in a manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system;
EVIDENCE 62
ELECTRONIC EVIDENCE
(b) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it; or Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using it.
(c)
EVIDENCE 63
ELECTRONIC EVIDENCE
RULE 8 BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE SECTION 1. Inapplicability of the hearsay rule. A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule on hearsay evidence. SEC. 2. Overcoming the presumption. The presumption provided for in Section 1 of this Rule may be overcome by evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof.
EVIDENCE 64
ELECTRONIC EVIDENCE
RULE 9 METHOD OF PROOF SECTION 1. Affidavit evidence. All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein. SEC. 2. Cross-examination of deponent. The affiant shall be made to affirm the contents of the affidavit in open court and may be cross-examined as a matter of right by the adverse party. RULE 10 EXAMINATION OF WITNESSES SECTION 1. Electronic testimony. After summarily hearing the parties pursuant to Rule 9 of these Rules, the court may authorize the presentation of testimonial evidence by electronic means. Before so authorizing, the court shall determine the necessity for such presentation and prescribe terms and conditions as may be necessary under the circumstances, including the protection of the rights of the parties and witnesses concerned. SEC. 2. Transcript of electronic testimony. When examination of a witness is done electronically, the entire proceedings, including the questions and answers, shall be transcribed by a stenographer, stenotypist or other recorder authorized for the purpose, who shall certify as correct the transcript done by him. The transcript should reflect the fact that the proceedings, either in whole or in part, had been electronically recorded. SEC. 3. Storage of electronic evidence. The electronic evidence and recording thereof as well as the stenographic notes shall form part of the record of the case. Such transcript and recording shall be deemed prima facie evidence of such proceedings. RULE 11
EVIDENCE 65
ELECTRONIC EVIDENCE
AUDIO, PHOTOGRAPHIC, VIDEO, AND EPHEMERAL EVIDENCE SECTION 1. Audio, video and similar evidence. Audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof . SEC.2. Ephemeral electronic communications. Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted. A recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately preceding section. If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 shall apply.
EVIDENCE 66
ELECTRONIC EVIDENCE
RULE 12 EFFECTIVITY SECTION 1. Applicability to pending cases. These Rules shall apply to cases pending after their effectivity. SEC. 2. Effectivity. These Rules shall take effect on the first day of August 2001 following their publication before the 20th of July 2001 in two newspapers of general circulation in the Philippines
EVIDENCE 67