Escolar Documentos
Profissional Documentos
Cultura Documentos
EVIDENCE
Introduction
Definition the means, sanctioned by these rules, of ascertaining in a judicial proceeding, the truth
respecting a matter of fact. (Rule 128, Sec. 1.)
Scope of applicability rules of evidence shall be the same in all courts and in all trials and hearings,
except as otherwise provided by law or these rules. (Rule 128, Sec 2.)
Notes: The Rules on Evidence apply only when there is going to be a trial. Note that there can be a
judgment on pleadings, by confession, consent and compromise etc. IN CIVIL CASES. Mere denial in
the answer in a CIVIL CASE will not present a probandum hence no need for the court to try the
case. Such general denial will be considered as an admission.
In CRIMINAL CASES, We have to wait until the accused enters a plea. This time a general
denial is allowed. If the accused enters a plea of guilty there is no probandum. However in CRIMINAL
CASES, the court could still try the case if the case involves a heinous crime.
The Rules on evidence are not self-executing. So the rule is any evidence submitted will be
admitted so long as there is no objection. This principle is only for the purpose of admissibility. It
does not mean that the court will take these irrelevant evidence in evaluating on the merits of the
case.
Evidentiary Privilege- entitles the privilege holder to withhold competent evidence and, in some
circumstances, to prevent others from revealing such evidence. The privilege is granted when the
protected interest is considered important enough to outweigh the concern with determining the
truth. The privilege holder need not be a party to the proceeding in question. Unlike a
disqualification, a privilege can be waived. Privileges are often intended to preserve confidential
relationships.
Executive Privilege- members of the executive branch of government cannot legally be forced to
disclose their confidential communications when such disclosure would adversely affect the
operations or procedures of the executive branch.
Notes: 1. In both CIVIL and CRIMINAL cases, the probandum contained in the pleadings could be
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changed in the pre-trial order. However, with respect to CRIMINAL CASES, the pre-trial order
SHOULD NOT substantially change the accusation/indictment contained in the information, otherwise
the case will be dismissed.
2. A court can validly try a fact in issue not raised in the pleadings or pre-trial order. Rule 10
provides that a fact in issue may be raised with the express or implied consent of the parties during
the trial (Amendment to conform to evidence)
3. Ascertainment of probandum does not apply in special proceedings. (i.e. If there is a
petition for probate of a will, even if there is no opposition the petitioner is still required by law to
prove that the will has been duly executed in accordance with the Civil Code)
I. Admissibility
A. Relevance
The evidence has such a relation to the fact in issue as to induce belief in its existence or non-
existence.
Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree
to establish the probability or improbability of the fact in issue. (Rule 128, Secs. 3 and 4.)
- In conclusion, relevancy is not determined by law nor the rules of court. It is determined purely by
LOGIC.
B. Competence
The evidence is not excluded by the law or the rules (Rule 128, Sec. 3.)
Do not confuse COMPETENT WITNESS from COMPETENT EVIDENCE. The COMPETENCY TEST
of evidence applies to the TESTIMONY of the qualified witness.
Since admissibility of evidence is determined by its relevance and competence, admissibility
is therefore an affair of logic and law. On the other hand, the weight to be given to such evidence
depends on judicial evaluation within the guidelines provided in Rule 133 and the jurisprudence laid
down by the court. (People vs. Turco, 2000)
Relevant evidence is one that has any value in reason as tending to prove any matter
probable in an action. Evidence is said to be material when it is directed to prove a fact in issue as
determined by the rules of substantive law and pleadings, while competent evidence is one that is
not excluded by law in a particular case. (Bautista vs. Aparece, 1995)
Any fact having rational probative value is admissible, unless some specific rule forbids its
admission- ILLUSTRATION: In an issue involving forgery, the disposition of the persons character
as to acts of honesty or dishonesty is of some rational probative value towards showing that he did
or did not do the act; it is therefore admissible, but this can only be done if the accused steps
forward first and adduces evidence of his good moral character.
Circumstantial- Indirectly proves a fact in issue through an inference which the fact finder draws
from the evidence established
Example: The testimony of the victim that he dreads the mere presence of the accused is
direct evidence that the statement was made.
It is likewise circumstantial evidence to show that this fear prevented the victim from
attacking the accused without provocation.
Cumulative v. Corroborative
Cumulative- evidence of the same kind that tends to prove the same fact
Ex. Two or more witnesses testify that they saw the event which the first witness claimed he
saw, the subsequent testimonies are cumulative
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Corroborative- evidence which tends to confirm, validate or strengthen evidence already presented.
Evidence may be of the same kind or different kind and tends to prove the same fact.
Ex. A witness claims that he saw Mr. X sign the document subject of the action. Mr. X denies
the authenticity of his signature. Evidence by a handwriting expert is corroborative.
Negative- A witness states that an event did not occur or that the facts alleged to exist did not
actually exist. (Denial)
Derivative Evidence- type of evidence that is inadmissible as proof because of the application of
the fruit of the poisonous tree doctrine, which treats the original evidence and any evidence derived
from it as tainted because of the illegal way in which it was obtained by agents of the government.
Admissibility v. Weight
- Evidence is ADMISSIBLE when it is relevant and is not excluded by any rule.
- Probative value or WEIGHT is to be determined by the court when it decides the case
MULTIPLE ADMISSIBILITY
Evidence is admissible for two or more purposes. The rule is when a fact satisfies all rules applicable
to it when offered for that purpose, its failure to satisfy some other rule which would be applicable to
it if offered for another purpose would not exclude it.
ILLUSTRATION: An extrajudicial confession may be inadmissible as against a party who did not
subscribe to it, yet such party may use said document as evidence of lack of guilt.
CONDITIONAL ADMISSIBILITY
GR: The time for determining the admissibility of a particular fact is ordinarily the time when it is
offered to the court.
Exception: When some facts depend on some other facts needed to be established first in order that
said former evidentiary facts would be admissible.
ILLUSTRATION: Mr. P files an action for recovery of ownership of a parcel of land against Mr. D. The
complaint alleges that Mr. P is the owner of the property. During the trial, Mr. P testifies and adduces
evidence that a certain O bought the property from D. The testimony of O may be allowed if it would
be shown the chain of events that led to the ownership of P of the land.
CURATIVE ADMISSIBILITY
There is curative admissibility when a party offers an inadmissible fact which is received because
there is no objection by the other party. The other party does not acquire the right to introduce in
reply to the same kind of evidence, EXCEPT whenever it is needed for removing an unfair prejudice
which might otherwise have ensued from the original evidence.
ILLUSTRATION: In an action for damages arising from a car accident, the plaintiff introduced
evidence to show that on several occasions the defendant in the past had injured pedestrians
because of his negligence. (This is inadmissible under Sec. 34 Rule 130- Prior acts as evidence).
Under the concept of Curative admissibility the court must give the party against whom the evidence
was admitted the chance to contradict or explain the alleged past acts he committed to counteract
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the prejudice which the improperly admitted evidence may have caused.
MUNICIPAL ORDINANCES
Courts are not mandated to take judicial notice of municipal ordinances unless the charter of the
concerned city provides for such judicial notice. (City of Manila vs. Garcia, 1967). But INFERIOR
COURTS sitting in the respective municipalities or cities are MANDATED to take judicial notice. The
reason is that violations of the ordinances are usually vested to the inferior court EXCLUSIVELY in
the exercise of their original jurisdiction.
IF inferior court took judicial notice and there was an appeal, such court taking the appeal should
likewise take judicial notice. (U.S. v. Blanco, 37 Phil. 126)
COURT RECORDS:
-Courts may take judicial notice of its own records of cases pending before it. (Ex. Pleadings;
period of perfecting appeals.)
-Records of preliminary investigation shall not form part of the record, however the court on its own
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initiative or that of any party may order the production of the record or any part thereof whenever
the same shall be necessary in the resolution of the case or any incident therein or shall be
introduced as evidence by the party requesting for its production.
-Courts are not authorized to take judicial notice of the contents of the record of other cases pending
or heard before them notwithstanding they are pending before the same judge.
Exceptions: 1. In the absence of objection from the adverse party, with the knowledge of the
adverse party; or at the request or with the consent of the parties, the case is clearly referred to or
the original or part of the records of the case are actually withdrawn from the archives and admitted
as part of the record of the case then pending. (Tabuena vs. CA, 1991)
2. The other case is so closely connected or interdependent
3. When interests of the public in ascertaining the truth is of paramount importance
4. In cases seeking to determine what is reasonable exercise of discretion
5. The finality of judgment in a case
FOREIGN LAWS
In general, courts may not take judicial notice of foreign laws, EXCEPT in a few instances where, in
the exercise of sound discretion, they may take judicial notice of such foreign laws of which they are
evidently familiar. (Delgado v. Republic, L-2546, January 28, 1950; Pardo v. Republic, 85 Phil. 323)
Doctrine of Processual Presumption: Foreign law is the same as the law of the forum. It
arises if the foreign law, though properly applicable is either not alleged or if alleged is not duly
proved before a competent court.
FORMS OF ADMISSIONS:
1. Implied admissions of allegations of usury and in actionable documents if not specifically
denied under oath (Sec. 11 & 8, Rule 8)
2. Admissions in pre-trial of civil cases and criminal cases (In criminal cases the admission must
be reduced in writing and signed by accused and counsel- Sec. 4 Rule 118)
3. Implied admissions in the modes of discovery (Depositions; Interrogatories- Rule 23; Failure
to specifically deny under oath w/in 15 days a Request for Admission in a pending case- Rule
26; )
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4. Admissions in amended pleadings (Sec. 8 Rule 10) [N.B. Admissions in superseded pleadings
are extra-judicial admissions which must be proven. Dismissed pleadings are likewise
extrajudicial admissions]
5. Plea of guilt in criminal case (N.B. A withdrawn plea of guilt is inadmissible, unlike in civil
cases where a withdrawn judicial admission is considered an extrajudicial admission)
6. Admissions by counsel are generally conclusive upon a client absent any gross negligence
which deprives counsel of due process of law or there is outright deprivation of property or
liberty.
Note: Admissions in pleadings may not always be considered as judicial admissions because
there are hypothetical admissions in civil cases. (i.e. Affirmative defenses in an answer;
Motion to dismiss, where defendant admits allegations but sets up grounds such as lack of
jurisdiction etc.)
Notes: 1. It is not essential that an admission is contrary to the interest of party at the time it is
made. It is enough that it be INCONSISTENT with the position a party takes in his pleadings or at
trial.
2. Averments in pleadings not deemed admissions even if there is failure to make a specific
denial: a) Immaterial allegations; b) Conclusions and non-unltimate facts; c) Amount of unliquidated
damages.
Adoptive Admissions
A partys reaction to a statement or action by another person when it is reasonable to treat the
partys reaction as an admission of something stated or implied by the other person.
Adopted Confessions
A co-accused impliedly acquiesced in or adopted the others confession by not questioning its
truthfulness, as where it was made in his presence and he did not demonstrate against his being
implicated therein
ILLUSTRATIONS:
Footprints
A bloody foot print was found upon a floor near the dead body of a person. Upon being arrested, the
accused was taken to the house where the incident happen. Upon placing his foot over the foot print
it was found that his foot corresponded exactly to said footprint. HELD: Proof of this circumstance is
admissible, notwithstanding that no photograph of the footprint was submitted in evidence and that
the board itself upon which the footprint was made was not produced in court. (US v. Zara, 43 Phil.
308)
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Photographs
- Where deposition of subscribing witnesses to a will are taken, a photographic copy of the will may
be presented to the witnesses on their examination and they may be asked the same question with
respect to said copy as if it were the original will and testimony as to the identity of the photographic
copy shown to the witnesses is admissible in evidence.
-Photographs may be admissible upon proof of their exactness and accuracy by the photographer
himself who can testify of his personal knowledge of the correctness of the representation. (Tan It
v. Sun Insurance Office, 51 Phil. 212)
NOTES:
The photographer is not the only witness who can identify the pictures. The faithful
representation of the photograph may be proved prima facie by the testimony of those who were
present at the time it was taken, or by any other competent witness who can testify as to its
exactness and accuracy. Once proved, the court may admit it subject to impeachment as to its
accuracy.
The value of a photograph lies in its being a correct representation or reproduction of the
original, and its admissibility is determined by its accuracy in portraying the scene at the time the
picture was taken. (Sison v. People, 250 SCRA 58, 75-76)
Photocopies or xerox copies of signed documents are not duplicate originals because they
are not signed. (Mahilum v. Court of Appeals, 17 SCRA 482)
Computer printouts.
If the data are stored in a computer or similar device, any printout or other output readable
by sight, shown to reflect the data accurately, is an original. (Evidence Code of California, Added by
Stats. 1977, Sec. 1)
In a labor case, IBM Philippines, Inc., et al., v. NLRC, et al., G.R. No. 117221, prom. April
13, 1999, the Supreme Court held that computer printouts which were not signed because they are
unsigned. The Court went on further to say that its decisions, while adhering to a liberal view in the
conduct of proceedings before administrative agencies, have nonetheless consistently required some
proof of authenticity or reliability as condition for the admission of documents.
Not one of the 18 print-out copies submitted by IBM was ever signed, either by the sender or
the receiver. There is thus no guarantee that the message sent was the same message received.
Neither were the print-outs certified or authenticated by any company official who could properly
attest that these came from IBMs computer system or that the data stored in the system were not
and/or could not haved been tampered with before the same were printed out.
Ballots
- Every ballot needs to be presented in a case of election protest. Every ballot constitutes the will of
every voter.
DEMONSTRATIVE EVIDENCE
- one which or represents demonstrates the real thing. (ex. Map, diagram, photograph, or a model)
Photographs: Must faithfully represent what it depicts (Same rules apply to motion pictures and
recordings)
X-Rays: Must show location and extent of injury
Scientific tests, demonstrations by physical act and experiments: This is a matter of judicial
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discretion.
Original of a Document
1 The original of the document is one the contents of which are the subject of inquiry.
2 When a document is in two or more copies executed at or about the same time, with identical
contents, all such copies are equally regarded as originals.
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.
SOME EXAMPLES:
1. Baptismal and Marriage Certificate
- They are only evidence to prove the administration of the sacraments on the dates therein
specified
- Baptismal certificate is not conclusive proof of filiation being hearsay
2. Medical Certificate
- To prove torture inflicted by the police, the medical certificate alone without the testimony of
the examining physician is inadmissible (People v. Villagracia, 226 SCRA 398)
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3. Residence Certificate
- The place of obtaining a residence certificate and the date contained are not conclusive as to
the real residence or domicile of a person owning said certificate. (Zuellig v. Republic, 83
Phil. 768)
4. Tax declaration
- It can be used as evidence that a portion of land had been sold. (Gacos v. CA, 212 SCRA 8)
After complying with the BEST EVIDENCE RULE will the court necessarily admit the
original writing?
No. 1) The requirements of authentication of documents must be met. There must be proof of
authentication. However this applies only when the writing is a private document. 2) After
authentication, the proponent has to comply with the rule that if the original writing is not in an
official language (English or Filipino), it is his duty to give to the court a translation thereof. 3) If
there is an alteration, he must explain such alteration. He may show that the alteration was made:
a) by another,
b) without his concurrence, or
c) made with the consent of the parties affected by it, or
d) was otherwise properly or innocent made, or
e) The alteration did not change the meaning or language of the instrument.
Not much weight is given to handwriting experts. Unless, therefore, there is, in a given case,
absolute absence, or manifest dearth, or direct or circumstantial competent evidence of the
character of a questioned handwriting, much weight should not be given to characteristic similarities,
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General Rule: 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, between the parties and
their successors in interest, NO evidence (testimonial or documentary) of such terms other than the
contents of the written agreement.
Exceptions: A party may present evidence to
a. Modify,
b. Explain or
c. Add to
the terms of written agreement if he puts in issue in his pleading:
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ILLUSTRATION: The vendee can validly tell the court that the deed of sale is not really one of
sale but one or mortgage as long as he puts in issue in the pleadings, any of the matters
enumerated above. [N.B. Art. 1602, NCC presumes that a deed of sale is an equitable
mortgage when: 1] price of sale with right to purchase is unusually inadequate; 2) Vendor
remains in possession as lessee or otherwise; 3) When another instrument extending period
of redemption is executed; 4) When purchaser retains for himself a part of purchase price;
5) Vendor assumes tax; 6) Other circumstances]
ILLUSTRATION: There is a sale of a piece of land in favor of Juan dela Cruz. If you read the
document there is really nothing wrong because there is a vendor, there is a vendee and
there is an object and consideration. But it turns out that there are two persons who carry
the name Juan de la Cruz. That document is intrinsically ambiguous because we do not
know who the vendee in that sale. The defect can be remedied by the introduction of
testimonial evidence or other documentary evidence to show to the court who is the Juan
dela Cruz mentioned in the deed of sale as the vendee.
But if in that deed of sale where Juan dela Cruz is the vendee, and there is only one
Juan dela Cruz, but the property sold is simply a piece of land. There is an ambiguity what
particular land is sold as there is no description. The ambiguity is extrinsic. It arises from
the face of the document itself. Here we cannot introduce evidence aliunde. The contract is
void, which under the Rules cannot allow be corrected and converted into a valid contract.
What is the coverage of the parol evidence rule and what are the exceptions to the parol
evidence rule ?
a. Covered. Only prior and contemporaneous agreements which are deemed to have been
merged in the writing conformably to the "integration of the agreement rule." (Woodhouse v. Halili,
93 Phil. 526)
b. Not covered.
1) Subsequent agreements, notwithstanding that such agreements may have the
effect of adding to, changing, modifying, or even altogether abrogating the contract of the
parties as evidenced by the writing.
2) Collateral agreements which although oral and contemporaneous with the writing
are separate and distinct agreements. (PNB v. Seeto, 91 Phil. 756)
3) It also does not apply if the issue revolves around fraud and false representation
since they are incidental to the execution and not to the integration. (Woodhouse vs. Halili,
1953)
4) It does not apply either when third parties are involved. (Lechugas vs. CA, 1986)
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NOTES:
a. Contemporaneous agreement. A contemporaneous agreement is one entered into at the
same time as the agreement which has been reduced to writing.
ILLUSTRATION: In a deed of sale of a parcel of land covered by: TCT 12345, located in City
of Muntinlupa. There is really a land covered by TCT 12345 with same technical description
however it is not located in Muntinlupa, but in Laguna. The erroneous description will not
invalidate the contract.
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1) Under the best evidence rule, the issue is contents of a writing (Sec. 3, Rule 130, ROC) WHILE
under the parol evidence rule, there is no issue as to contents of a writing (Sec. 9, Rule 130, ROC);
2) Under the best evidence rule, secondary evidence is offered to prove the contents of a writing,
which is not allowed unless the case falls under any of the exceptions (Sec. 3, Rule 130, ROC)
WHILE under the parol evidence rule, the purpose of the offer of parol evidence is to change, vary,
modify, qualify, or contradict the terms of a complete written agreement, which is not allowed unless
the case falls under any of the exceptions. (Sec. 9, Rule 130, ROC)
Only the parties and their successors in interest, and not strangers may invoke the protection of the
parol evidence rule. (Sec. 9, Rule 130, ROC)
C. Testimonial Evidence
Qualifications of Witnesses Rule 130, Sec. 20
- Can perceive, and perceiving, can make their known perception to others.
GR: A disinterested person could be compelled to give his testimony through subpoena
Exceptions: Persons who are immune from the process of subpoena by tradition, convention or
law:
a. Ambassadors of foreign countries by virtue of treaty obligations
b. President of the Philippines or other country
Disqualifications
a. Mental incapacity or immaturity (Sec. 21, Rule 130, ROC);
b. Marriage (Sec. 22, Ibid);
c. Death or insanity of adverse party (Sec. 23, Ibid.)
d. Privileged communication (Sec. 24, Ibid.) [Applies to Rules on Electronic Evidence]
1) Marital privileged communication rule (Sec. 24 [a], Ibid.);
2) Lawyer-client privileged communication rule (Sec. 24 [b], Ibid.);
3) Doctor-patient privileged communication rule (Sec. 24 [c], Ibid.)- (N/A in criminal cases)
4) Priest-penitent privileged communication rule (Sec. 24 [d], Ibid.); and
5) Public officer privileged communication rule (Sec. 24 [e], Ibid.).
e. Parental and filial testimonial privilege rule (Sec. 25, Rule 130, ROC)
Note: Conviction of a crime does not disqualify a person from testifying but may disqualify
him from being discharged as a state witness. (Sec. 9 [e], Rule 119, ROC)
Note: This is not an exclusive enumeration of the Rules on privilege communication. Other
examples are:
a. Under Rules on Alternative dispute Resolution, information or communication given by
parties who participate in ADR is confidential
b. Information derived by editors, reporters and publishers
c. The negotiations under the Witness Protection Program (Accused discharged as state
witness)
The right to invoke this disqualification belongs to the spouse-party (Ortiz v. Arambulo, 8 Phil. 98)
against or for whom the testimony is being proferred. It may be waived
1) By a failure to interpose timely objection, or
2) By calling the other spouse as witness (Ibid., People v. Francisco, 78 Phil. 694)
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The privilege could be invoked even if the spouse is testifying in favor of the spouse-party because
damaging testimony may be elicited during the cross-examination.
d. Even if the communication is not confidential, the marital disqualification may still be invoked
e. Marital disqualification is more concerned with the consequences. If the rule is not there, perjury
and domestic disunity may result.
- Privilege protects the hallowed confidences inherent in marriage b/w husband and wife and
therefore guarantees the preservation of the marriage and further the relationship between the
spouses as it encourages the disclosure of confidential matters without fear of revelation.
CASE: A filed a complaint against husband and wife for annulment of a contract by reason of
fraud. (H&W both defendants). A subpoenaed the wife to be his hostile witness which is allowed in
civil cases. When the wife received the subpoena, the husband filed a motion in court for the
quashing of the subpoeana, on the ground that there is a violation of the rule on marital
disqualification/spousal immunity. A told the court that this is not a case where the wife will be
giving testimony as an adverse witness in favor of the plaintiff. So the rule on spousal immunity
does not apply. Ruling of the Court: Spousal immunity applies. If the wife was allowed to testify as
an adverse witness for the plaintiff, she might give testimony that he will harm her interest and that
of her husband. So that there will be a violation of the spousal immunity.
A conceded. A told the court now that if he cannot compel the wife to be an adverse witness, then
he should be allowed to get the deposition of the wife, because under the Rules of Court when the
deposition of a person is taken, it does not necessarily mean that the deponent will be used as a
witness in court, since it is only a mode of discovery. Ruling of the Court: Even if the purpose is
just to get the deposition of the wife the rule on spousal immunity applies.
CASE: A son filed a complaint against his own father for recovery of property or some assets. The
son asked her mother to testify in his favor. SC held that there will be a violation of the spousal
immunity rule.
Note: As long as there is a case INVOLVING the husband OR wife, the disqualification is absolute.
- Other representative
of a deceased person, or against a person of unsound mind,
upon a claim or demand against the estate of such deceased person or against such person of
unsound mind, cannot testify as to any matter of fact occurring BEFORE the death of such deceased
person or before such person became of unsound mind.
CASE: Mr. D approaches Mr. C to borrow P100,000 to be paid next year. Mr. C gives Mr. D the
amount. Mr. C did not require Mr. D to execute a promissory note. A day before the agreed date of
payment, Mr. D died. Mr. C went to the executor of the estate of Mr. D and claims the payment of
the debt.
In this case, Mr. C is incompetent to testify as to the transaction he had with Mr. D.
D. Privileged Communication
1. Marital Privilege Rule 130, Sec. 24 (a)
Husband or the wife, during or after the marriage, cannot be examined without the consent of the
other as to any communication received in confidence by one from the other during the marriage
- EXCEPT:
= In a civil case by one against the other, or
= In a criminal case for a crime committed by one against the other or the latter's direct
descendants or ascendants;
CASE: If the communication is made in front of the children of the husband and wife. Can the
privilege be invoked? YES, if the children are still minors.
Note: The assumption is any communication given by one spouse to the other is presumably
confidential because there is no standard given in the Rules.
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Waiver of the marital privileged communication rule: The privilege is claimable by the spouse
not called as witness, so that it its waivable only by him or her; and it is waivable by any act of such
spouse which might be considered as an express or implied consent to the disclosure of the
communication. (People v. Hayes, 140 N.Y. 484)
.
The attorney-client privilege may not be invoked to refuse to divulge the identity of the
client, EXCEPT: (1) When a strong probability exists that revealing the name would implicate that
person in the very same activity for which he sought the lawyers advice; (2) When disclosure would
open the client to liability; (3) When the name would furnish the only link that would form the chain
of testimony necessary to convict. (Regala vs. Sandiganbayan, 1996)
LAST LINK DOCTRINE: Non-privileged information, such as identity of the client is
protected if the revelation of such information would necessarily reveal the privileged information.
- It is enough that the client reasonably believed that the person consulted is a lawyer.
- Communications may refer to anticipated litigations or may not refer to any litigation at all.
- Privilege does not extend to communications where the clients purpose is the furtherance of
a future intended crime or fraud
expressly or impliedly. It is impliedly waived like any other privilege rule. (Penn. Mutual Life Ins.
Co. v. Wiler, 100 Ind. 92)
- The waiver may be by a contract as in medical or life insurance
- When the patient answers questions on cross examination, there is waiver
- Under Rule 28 ROC, the court may order a party to submit to a physical or mental examination, so
long as the mental or physical condition is in dispute. The party examined may request a report of
the examination. By doing so, he waives any privilege he may have in that action regarding the
testimony of every other person who has examined him in respect of the same examination.
This privilege does not apply when the doctor is presented as an expert witness and only
hypothetical problems were presented to him. (Lim vs. CA, 1992)
N.B. There is an inconsistency between the ROC and Family Code with respect to this privilege. ROC
prevails since it took effect in 1989 and is made by the SC. While the Family Code took effect in
1989, and though substantive is procedural in character.
implicating him in a crime cannot be considered as a tacit confession of his participation in the
commission of the crime. (People vs. Alegre, 1979)
Self-serving evidence
An admission favorable to the party making it. (Lichauco v. Atlantic Gulf & Pacific Co., 84 Phil. 342)
a. Self-serving or favorable admissions made out of court not admissible: REASONS:
1) A man may be safely believed if he declares against his own interest, but not if he
advocates his interest. (Lichauco v. Atlantic Gulf & Pacific Co., 84 Phil. 342)
2) It is excluded on the same ground as any hearsay evidence, that, the lack of opportunity
for cross-examination by the adverse party. (National Development Co., v. Workmen's
Compensation Commission, 19 SCRA 865)
b. When self-serving or favorable admissions are admissible:
1) If made in open court
2) giving full opportunity to the adverse party
3) to exercise his right of cross-examination.
Second is an EXTRAJUDICIAL ADMISSION. Under this rule, the admission is admissible only if it is
against the interest of the admitter. (otherwise it is a self-serving statement)
Example: Flight is considered a disserving act, since it is prejudicial to the interest of the
accused. Flight is considered as circumstantial evidence of the guilt of the accused. BUT non-flight
cannot be used as evidence to prove his innocence, because that will be considered as an act that is
favorable to the interest of the accused.
The term, admission, on the other hand, is usually applied in criminal cases to statements of fact by
the accused which do not directly involve an acknowledgment of the guilt of the accused or of
criminal intent to commit the offense with which he is charged. (U.S. v. Corrales, 28 Phil. 365)
Admission by silence.
a. An act or declaration made
1) in the presence and
2) within the hearing or
3) observation
b. of a party who does or says nothing
c. when the act or declaration
1) is such as naturally to call for action or comment if not true, and
2) when proper and possible for him to do so,
d. may be given in evidence against him. (Sec. 32, Rule 130, ROC arrangement and numbering
supplied)
3) Where the act or declaration was made in the course of an official investigation. (People v. Tia
Fong, 98 Phil. 609)
4) When silence is upon advice of counsel. (People v. Kozlowski, 115 A.L.R. 1505)
res inter alios acta alteri nocere non debet or res inter alios acta Rule
(First Part of Rule) Statements made or matters accomplished between two parties cannot
prejudice a third party. (Blanza v. Arcangel, 21 SCRA 4)
The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except
as hereinafter provided. (Sec. 28, Rule 130, ROC)
Confessions Rule 130, Sec. 133; Rule 115 (e); Art. III, Sec. 17, 1987 Constitution
- Declaration of an accused acknowledging his guilt of the offense charged, or of any offense
necessarily included therein; may be given in evidence against him.
- Confession is evidence of high order:
1) There is no evidence of a higher quality than a confession, It represents the outward
manifestation of a man. Unless, therefore, the confession is nullified by evidence of duress, the
same is admissible as an evidence of guilt of a high quality. (People v. Garcia, 54 Phil. 329, 358)
2) If a confession be true and voluntary, the deliberate act of the accused with a full
comprehension of its significance, there is no impediment to its admission as evidence and it then
becomes evidence of a high order, since it is supported by the presumption, a very strong one, that
no person of normal mind will deliberately and knowingly confess himself to be the perpetrator of a
crime, especially if it be a serious crime, unless prompted by truth and conscience. (People v. Zea,
et al., 130 SCRA 87, 88)
Probative value of recantations: They are looked upon with disfavor as recantations are usually
secured through intimidation or for a monetary consideration. (Molina v. People, 259 SCRA 138)
General rule on admissibility of confession: A confession is admissible only against the accused
who made it and not against his co-accused, for as against the latter, the confession would be
hearsay and res inter alios acta. (People v. Talledo, 85 Phil. 533)
Exceptions: when a confession is admissible against co-accused:
1) When the confession of an accused implicating his co-accused is made judicially at a joint trial
(U.S. v. Macamay, 36 Phil. 893) or when the extrajudicial statements implicating a co-accused are
repeated in open court (People v. Ola, G.R. No. L-47147, July 3, 1987), because the co-accused as a
chance to cross-examine.
2) When the offer in evidence of an extrajudicial confession against a co-accused is not objected to.
(People v. Atienza, 86 Phil. 576)
3) When the co-accused against whom an extrajudicial confession is offered had, by his acts,
conducts and declarations adopted he confession as his own. (People v. Atienza, supra; People v.
Orencia, 47 Phil. 970)
4) Where several accused, without collusion, made extrajduicial confessions which are identical in
essential details and corroborated by other evidence, such confession is admissible against the
others. (People v. Pelonia, L-14624, July 24, 1960)
5) The confession of a conspirator is admissible against his co-conspirator provided it was made
during the existence of the conspiracy. (Sec. 30, Rule 130, ROC; People v. Ramirez, L-5875, May
15, 1953)
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6) When the recitals in the extrajudicial confession of an accused is corroborated in its important
details by other proofs in the record, it may be admitted against the other accused. (People v.
Villanueva, L-12687, July 31, 1962)
b. It also means actual commission of the crime charged. (People v. Madrid, 88 Phil. 1;
People v. Sanchez, 89 Phil. 423), or the specific fact of loss or injury. (People v. Garcia, 99 Phil.
381)
Conviction for murder proper even if victims body is not produced: In all crimes against persons in
which the death of the victim is an essential element of the offense, there must be satisfactory
evidence of the fact of death and the identity of the victim that a crime has been committed which is
what corpus delicti really means.
The failure of the prosecution to produce the body of the victim does not imply the absence of corpus
delicti for the term does not refer to the body of the murdered person. (People v. Centeno, et al.,
130 SCRA 209)
- Sec. 17, Art III No person shall be compelled to be a witness against himself.
The operative act in determining whether the right against self-incrimination has been
violated is when the police investigation is no longer a general inquiry into an unsolved crime but
has begun to focus on a particular suspect who has been taken into custody by the police to carry
out a process of interrogation that lends itself to eliciting incriminatory statements and not the
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signing by the suspect of his supposed extrajudicial confession. (People vs. Compil, 1995)
By affixing their signatures on the boxes, accused in effect made a tacit admission of the
crime charged. These signatures are tantamount to an extrajudicial confession made without the
assistance of counsel, which is not sanctioned by the Bill of Rights. (People vs. Wong Chuen Ming,
1996)
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 vs. Yip Wai
Ming, 1996)
The declaration of an accused expressly acknowledging his guilt of the offense may be given in
evidence against him and any person, otherwise competent to testify as a witness who heard the
confession is competent to testify as to the substance of what he heard if he heard and understood
it. (People vs. Maqueda, 1995)
- A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to lesser offense, is not
admissible in evidence against the accused who made the plea or offer.
The Good Samaritan Rule: An offer to pay or the payment of medical, hospital or other expenses
occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the
injury.
It has long been held that in cases of public crimes, 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 of for some other reason which would justify a claim by the accused that the offer was
not in truth an admission of his guilt or an attempt to avoid the legal consequences which would
ordinarily ensue therefrom. (People vs. Godoy, 1995)
A plea of forgiveness may be considered as analogous to an attempt to compromise.
(People vs. De Guzman, 1996)
An offer to compromise does not require that a criminal complaint be first filed before the offer
can be received as evidence against the offeror. (People vs. Yparriguirre, 1997)
Theory of the hearsay rule: When a human utterance is offered as evidence of the truth of the
fact asserted in it, the credit of the assertor becomes the basis of inference, and therefore the
assertion can be received as evidence only when made on the witness stand, subject to the test of
cross-examination.
have been made is relevant. The hearsay rule does not apply, and the statements are admissible as
evidence. Evidence as to the making of such statement is not secondary but primary, for the
statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of
such a fact.
- Independent relevant statements are hearsay in character but not legal hearsay, hence they are
not considered as exceptions to the hearsay rule.
Illustration: A was drinking with his buddies. A told them that: My neighbor is a thief. Later on As
neighbor was charged with theft. Prosecution calls as his witness one of the drinking buddies. The
drinking buddy testifies in court saying: The accused is a thief because I heard A says so. [THIS IS
HEARSAY EVIDENCE]
Now, supposing the neighbor filed a libel case against A. The drinking buddy serves as a
witness for the plaintiff, and says: I heard A said that the plaintiff is a thief.. [Now this time this is
not hearsay, because the FACT IN ISSUE is whether or not the utterances were made by a particular
person, regardless of the truth or falsity of the statement]
2. Exceptions
2.1 Dying Declaration Rule 130, Sec. 37
- Declaration was made under the consciousness of an impending death
- Declaration refers to cause and surrounding circumstances of the death of the declarant
- Declaration may be received in any case wherein declarants death is the subject of inquiry (In one
case. The husband was shot and wife was stabbed. The wife died instantly. The husband was
brought to the hospital and made a statement that it was X who stab her wife. The husband then
died. The statement is not a dying declaration because it pertains to the wife)
- The declarant must be competent as a witness (What if declarant is proved to be a congenital liar?
Still this exception may apply, because he is not disqualified from testifying in court if he were alive)
- The declarant actually died, otherwise, the declaration may be admitted as part of the res gestae
and not as a dying declaration
APPLICABILITY: Both Civil and Criminal. [Criminal: Only those which involve death, homicide,
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Victim need not state that he has lost all hope of recovery. It is sufficient that circumstances
are such as to inevitably lead to the conclusion that at the time the declaration was made, the
declarant would not expect to survive the injury from which he actually died.
The degree and seriousness of the wounds and the fact that death supervened thereafter
constitute substantial evidence of the victim's consciousness of his impending death. (People v.
Tanaman, et al., G.R. No. 71768, July 28, 1987)
Dying declaration has weight even if declarant did not die immediately after his
declaration: The fact that the declarant died four (4) hours after his statement does not diminish
the probative value of the dying declaration since it is not indispensable that the a declarant expires
immediately thereafter.
It is the belief of impending death and not the rapid succession of death that renders the
dying declaration admissible. (People v. Bautista, G.R. No. 111149, prom. September 5, 1997)
Mere gesture of dying victim inconclusive: The gesture of a dying woman in pointing to a
direction, when asked for the identity of her assailant, is too vague to be given such probative value
in determining the culpability of the accused.
REASON: Unlike an oral or a written declaration, a simple gesture of the hand
unaccompanied by words, is open to various interpretations by the witness who testifies to its
existence. Thus, the evidence comes to the court couched in the witness' second hand perception
and possibly, imbued with his personal meanings and biases. This is what makes hearsay evidence
objectionable. The second hand evidence is placed before the court without the benefit of cross-
examination by the party against whom it is brought, nor of any other means of assessing the
competence and credibility of the source. (People v. Ola, G.R. No. L-47147, July 3, 1987)
CASE: The crime charged is rape with homicide. The victim before death tells to the police
investigator/doctor: I was raped. [This is not a dying declaration, because the statement has
nothing to do with the cause and circumstances surrounding the death. But this may be admitted as
part of res gestae]
Time when statements made: DYING DECLARATION- statements must be made after the injury has
been inflicted upon the applicant.
RES GESTAE- in so far as startling occurrence is concerned, the statements
could be made prior or simultaneous with or after the startling occurrence.
PEOPLE vs. CLOUD (265 SCRA 472) Concept of independently relevant statements and res
gestae applied simultaneously. [N.B. dying declaration may likewise be applied
simultaneously with independently relevant statement]
Josephine Aguilar was at the emergency room of a hospital to have some stitches removed from her
daughters head when she saw a boy being carried by a man, followed by an old woman who was
shouting hysterically. The boys face was swollen and bruised and his body covered with dry blood.
The old woman, apparently the boys grandmother, cried and repeatedly screamed. Pinatay siya ng
sariling ama!. The old woman told the people inside the emergency room that the boys father had
beaten him up, tied his hands, and stabbed him.
Ruling of SC: Insofar as the statements of Rufina Alconyes(old woman) are concerned, they are
admissible as part of the res gestae, they having been caused by and did result from the startling, if
not gruesome, occurrence that she witnessed; and these were shortly thereafter uttered by her with
spontaneity, without prior opportunity to contrive the same.
The report made thereof by Josephine Aguilar is not hearsay since she was actually there
and personally heard the statements of Alconyes which she recounted in court. Her account of said
statements of Alconyes are admissible under the doctrine of independently relevant statements, with
respect to the tenor and not the truth thereof, since independent of the truth or falsity of the same
they are relevant to the issue on the cause of the death of the victim.
REQUISITES:
a. The declaration is made by
1) a person deceased, or
2) unable to testify [i.e. in foreign country or physical/mental impairments]
b. against the interest of the declarant, [declarant MUST KNOW that it is against his interest]
c. if the fact asserted in the declaration
1) was at the time it was made
2) so far contrary to declarant's own interest,
3) that a reasonable man in his position
a) would not have made the declaration
b) unless he believed it to be true. (Sec. 38, Rule 130, ROC)
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Inability to testify = either dead, mentally incapacitated or physically incompetent. Mere absence
from the jurisdiction does not make him ipso facto unavailable. Fuentes vs. CA (1996)
2.7 Entries in the Course of Business Rule 130, Sec. 42; Rule 8, REE
When made: Entries made at, or near the time of transactions to which they refer
By whom made: by a person deceased, or unable to testify, who was in a position to know the facts
therein stated,
Treatment of such evidence: 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.
Rule 8, Section 1. Hearsay rule exception: 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.
Rule 8, Section 2. This presumption 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.
2. In civil cases
- Evidence of the moral character of a party in a civil case is admissible only when pertinent to the
issue of character involved in the case.
- Witness = Evidence of his/her good character is not admissible until such character has been
impeached.
While evidence of another crime is, as a rule, not admissible in a prosecution for robbery; it
is admissible when it is otherwise relevant, as when it tends to identify defendant as the perpetrator
and tends to show is presence at the scene of the crime or in the vicinity of the crime at the time
charged, or when it is evidence of a circumstance connected with the crime. (People vs. Irang,
1937)
Good or bad moral character of the victim is not necessary in a crime of murder where the
killing is committed through treachery or premeditation. (People vs. Soliman, 1957)
prove that a ballot is marked, an inspection of the ballot itself being sufficient. ((Punzalan v.
Commission on Elections, et al., G.R. No. 126669)
Illustration of going forward with the evidence: For example after the existence of a debt has been
proven by the creditor the burden of proving payment devolves upon the debtor. Where the debtor
introduces evidence of payment, the burden of going forward with the evidence - as distinct from the
general burden of proof- shifts to the creditor who is then under the duty of producing evidence to
show non-payment. (Jimenez, et al, v. NLRC, et al., G.R. No,. 116960, prom. April 2, 1996)
In short, the burden of going forward is the burden of producing evidence.
BURDEN OF EVIDENCE- the duty resting upon a party, by means of evidence, to create or meet a
prima facie case.
Illustration: Plaintiff files a complaint for recovery of a defaulted loan. Defendant files an answer with
a negative defense, denying the existence of the loan. [ At the start, the plaintiff has the burden of
hlp2009 Page 34 9/26/201734
proof and also burden of evidence, he should go to trial and present evidence to show that he has a
cause of action. If he has introduced enough proof that he has a cause of action, the burden of
evidence will now be shifted to the defendant. If defendant presents enough evidence to prove his
negative defense then the burden of evidence is shifted again to the plaintiff on rebuttal evidence.]
Can the accused in a criminal/civil case before presenting his own evidence ascertain
conditionally or provisionally whether the evidence presented by the prosecution is
enough to convict him?
Yes. In a criminal/civil case, the accused(defendant/plaintiff) can easily determine the sentiment of
the court concerning the quantum of evidence presented by the prosecution(defendant/plaintiff) by
simply filing a demurrer to evidence with leave of court.
Example: In an information for illegal possession of firearms, the information will contain an
averment that the accused does not have a license to possess the firearm[negative averment].
* In this case, the negative averment is an essential part of the commission of the crime, hence
this must be proven.
Presumption- an inference as to the existence or non-existence of a fact which courts are permitted
to draw from the proof of other facts.
CLASSIFICATIONS
1. PRESUMPTION JURIS OR OF LAW- a deduction which the law expressly directs to be made
from particular facts
-Must be made whenever the facts appear which furnish the basis for the inference
-Reduced to fixed rules and form part of the system of jurisprudence
2. PRESUMPTION HOMINIS OR OF FACT- a deduction which reason draws from facts proved
without an express direction from the law to that effect
-Discretionary on the court
-Derived from circumstances of a particular case through common experience of mankind
2.1 Conclusive
2.1.1. Whenever a party by his own declaration, act, omission, has led another
1 to believe a particular thing to be true AND
2 to act upon such belief,
he cannot in any litigation arising out of such declaration, act or omission be permitted to falsify it.
(Estoppel)
2.1.2. The TENANT is not permitted to deny the title of his landlord at the time of the
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Note: There is also a conclusive presumption under the Rule 39, which is a public policy principle of
res judicata (a judgment is conclusive upon the title to the thing or upon the political or legal
condition of a person, {judgment in rem or in personam})
2.2 Disputable
CLASSIFICATIONS:
1. Presumption of innocence (Presumption of good faith)
2. Presumption of regularity of official and judicial acts
3. Presumption of regularity of private transactions
- Person is innocent of a crime or wrong;
- Unlawful act is done with an unlawful intent;
- Person intends the ordinary consequences of his voluntary act;
- Person takes ordinary care of his concerns;
- Evidence willfully suppressed would be adverse if produced
ELEMENTS:
a. The suppression is wilful. (Sec. 3-e, Rule 131, ROC) continue
b. The suppression is not in the exercise of a privilege.
c. The evidence suppressed is not merely corroborative.
d. The evidence is at the disposal only of the suppressing party.
NOTES: Instances where adverse presumption from suppression of evidence does not apply:
a. If the evidence is at the disposal of both parties. (People v. Ducay, 225 SCRA 1)
b. The suppression was not willful.
c. The suppressed evidence is merely corroborative or cumulative.
d. The suppression is an exercise of a privilege. (People v. Navaja, 220 SCRA 624)
absence of 5 years.
= The following shall be considered dead for all purposes including the division of the estate among
the heirs:
= Person on board a vessel lost during a sea voyage, or an aircraft with is missing, who has not
been heard of for 4 years since the loss of the vessel or aircraft;
= Member of the armed forces who has taken part in armed hostilities, and has been missing for 4
years;
= Person who has been in danger of death under other circumstances and whose existence has not
been known for four years;
= Spouse, of a married person absent for 4 consecutive years, may contract a subsequent marriage
if he or she has well-founded belief that the absent spouse is already death; 2 years in case of
disappearance, where there is a danger of death the circumstances hereinabove provided. Before
marrying again, the spouse present must institute a summary proceedings as provided in the Family
Code and in the rules for declaration of presumptive death of the absentee, without prejudice to the
effect of reappearance of the absent spouse.
- Acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or
fact;
- Things have happened according to the ordinary course of nature and ordinary nature habits of life;
- Persons acting as copartners have entered into a contract of co-partnership;
- A man and woman deporting themselves as husband and wife have entered into a lawful contract
of marriage;
- Property acquired by a man and a woman who are capacitated to marry each other and who live
exclusively with each other as husband and wife without the benefit of marriage or under void
marriage, has been obtained by their joint efforts, work or industry.
- In cases of cohabitation by a man and a woman who are not capacitated to marry each other and
who have acquire properly through their actual joint contribution of money, property or industry,
such contributions and their corresponding shares including joint deposits of money and evidences of
credit are equal.
- If the marriage is terminated and the mother contracted another marriage within three hundred
days after such termination of the former marriage, these rules shall govern in the absence of proof
to the contrary:
- A child born before 180 days after the solemnization of the subsequent marriage is considered to
have been conceived during such marriage, even though it is born within the 300 days after the
termination of the former marriage.
- A child born after 180 days following the celebration of the subsequent marriage is considered to
have been conceived during such marriage, even though it be born within the 300 days after the
termination of the former marriage.
- A thing once proved to exist continues as long as is usual with things of the nature
- The law has been obeyed;
- A printed or published book, purporting to be printed or published by public authority, was so
printed or published;
- A printed or published book, purporting contain reports of cases adjudged in tribunals of the
country where the book is published, contains correct reports of such cases;
- A trustee or other person whose duty it was to convey real property to a particular person has
actually conveyed it to him when such presumption is necessary to perfect the title of such person or
his successor in interest;
- Except for purposes of succession, when 2 persons perish in the same calamity, and it is not shown
who died first, and there are no particular circumstances from which it can be inferred, the
survivorship is determined from the probabilities resulting from the strength and the age of the
sexes, according to the following rules:
= Both < 15: older survived;
= Both > 60: younger survived;
= One <15; other >60: <15 survived;
= Both >15, <60 and the sex be different, the male is deemed to have survived, if the sex be the
same, the older;
= One < 15 or >, and the other between those ages, the latter is deemed to have survived.
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- That if there is a doubt, as between two or more persons who are called to succeed each other, as
to which of them died first, whoever alleges the death of one prior to the other, shall prove the
same; in the absence of proof, they shall be considered to have died at the same time. (5a)
The presumption that evidence not produced or willfully suppressed is adverse to the party,
will not apply if the evidence is at the disposal of both the defense and the prosecution and if the
evidence is merely conclusive. (People vs. Padiernos, 1976)
Note: The Rules apply to Summary Procedure but in a modified form, since in Summary Procedure
the testimonies of the witnesses, (in civil cases) will be reduced into writing in the form of affidavit.
Hence, there is no direct, cross, re-cross or re-direct examination.
Affiant is not allowed in Summary Procedure to embody hearsay testimony.
In criminal cases under Summary Procedure, the affidavits of the witnesses take the place of
the direct examination. There is cross examination
VOIR DIRE- preliminary examination of witnesses for the purpose of establishing whether or not a
witness really is qualified as such. (Likewise done in examination of a child witness, but it is only the
judge who can ask questions, plaintiff and defendant can write their questions and give it to the
judge)
Note: Ordinary witnesses are not allowed to be examined in a narrative form, except a child witness.
A. Examination of Witnesses
1. How done Rule 132, Sec. 1
open court
under oath or affirmation
- Mode of answering
General Rule: oral
Exception:
o Witness is incapacitated to speak or
o Question calls for a different mode of answer
Rights of a witness:
2.1 To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting
demeanor;
2.2 Not to be detained longer than the interests of justice require;
2.3 Not to be examined except only as to matters pertinent to the issue;
2.4 Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise
provided by law; or
2.5 Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at
issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the
fact of his previous final conviction for an offense.
Case: Supposing a witness refused to answer because he feels the question is incriminatory.
However, the court directs the witness to give an answer and the witness obeys the order of the
court. Later on the answer turns out to be incriminatory and later on the witness was indicted for the
commission of this offense, can his testimony in court be given in evidence against him in the form
of an admission?
NO, because the witnsess has initially objected and he gave the answer only in compliance with
an order of the court. According to some decisions that could be treated as a compelled testimony
hlp2009 Page 38 9/26/201738
given under duress and therefore could not be used against the witness.
3. When there is a difficulty is getting direct and intelligible answers from a witness who is
ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute;
4. Of an unwilling or hostile witness; or
o A witness may be considered as unwilling or hostile only if so declared by the court upon
adequate showing of his -
adverse interest,
unjustified reluctance to testify, or
his having misled the party into calling him to the witness stand.
6. Of a witness who is an adverse party or an officer, director, or managing agent of a public or
private corporation or of a partnership or association which is an adverse party.
When the answer is derived from a leading question the evidence has no probative value at
all even if there is no objection to a leading question.
Misleading questions
1 Those that assume as true a fact not yet testified to by the witness, or contrary to that which he
has previously stated.
2 Not allowed.
Scope of judges participation at trial : A judge who presides at a trial is not a mere referee. He
must actively participate therein by directing counsel to the facts in dispute, by asking clarifying
questions, and by showing an interest in a fast a fair trial. (Clarin v. Yatco, 56 O.G. 7042, Nov. 14,
1960)
He can interrogate witnesses to elicit the truth, to obtain clarification, or to test their
credibility. (People v Moreno, 83 Phil. 286)
However, this power must be exercised by the court sparingly and judiciously. (People v.
Ferrer, 44 O.G. 112). Of course, the judge cannot curtail counsel's right to interrogate witnesses.
(People v. Bedia, 83 Phil. 909)
There is no prohibition against the judge conducting the examination of the witness. The
counsel may object to the questions propounded by the judge.
But this power should be exercised with caution. When the evidence already presented on one point
is sufficient and the party merely seeks to present cumulative evidence which cannot produce
additional persuasive effect or that he is not sure of what the other witnesses would testify, the court
may in its sound discretion stop the introduction of such further evidence. (People v. Reyes, et al.,
133 SCRA 51)
Role of attorney during presentation of evidence: An attorney has a dual role to perform
relative to proving the truth respecting a matter of fact.
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He must ensure that all evidence supporting the material allegations, whether raised in the
pleadings or not are admitted by the court. His other role is to block the admission of evidence
supporting his opponents' material allegations whether raised in the pleadings or not.
In order to perform this dual role the attorney should ensure that the evidence he offers are
admissible in accordance with the Rules of Court and those of his opponent are properly objected to
for being inadmissible
6. Impeachment of Witnesses
6.1. Impeachment of Adverse Partys Witness Rule 132, Sec. 11
- How done:
by contradictory evidence;
by evidence that his general reputation for truth, honesty or integrity is bad; or
by evidence that he has made at other times statements inconsistent with his present testimony.
- Evidence of particular wrongful acts is not allowed 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.
Laying the foundation or laying the basis- refers to a situation where an evidence which is
otherwise incompetent will be introduced in evidence because it falls under the exceptions to that
rule on exclusion.
Example: If a party desires to introduce secondary or substitutionary evidence he must first
lay the foundation or lay the basis. He must first proved that there was a writing duly executed and
that the original has been lost or destroyed.
- BUT in such case the writing or record must be produced and may be inspected by the adverse
party, who may, if he chooses, cross examine the witness upon it, and may read it in evidence.
What is the consequence of giving in evidence a part of an act, declaration, conversation, writing or
record? (Rule 132, Section 17) [RULE OF COMPLETENESS]
- The whole of the same subject may be inquired into by the other, and when a detached act,
declaration, conversation, writing or record is given in evidence, any other act, declaration,
conversation, writing or record necessary to its understanding may also be given in evidence.
Child witness
I. Definition (4(a))
Any person who at the time of giving testimony is < 18 years.
In child abuse cases: a child includes one over eighteen (18) years but is found by the court as
unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation,
or discrimination because of a physical or mental disability or condition.
II. Competency of a Child Witness: Every child is presumed qualified to be a witness. To rebut the
presumption of competence enjoyed by a child, the burden of proof lies on the party challenging
his competence. (6, 6(b))
Competency exam
A. When conducted-
- Motu proprio or on motion of a party, when it finds that substantial doubt exists
regarding the ability of the child to perceive, remember, communicate, distinguish
truth from falsehood, or appreciate the duty to tell the truth in court. (6)
- A party seeking a competency examination must present proof of necessity of
competency examination. The age of the child by itself is not a sufficient basis for a
competency examination. (6(a))
B. Who are allowed to attend-
- The judge and necessary court personnel;
- The counsel for the parties;
- The guardian ad litem;
- Support person/s for the child; and
- The defendant, unless the court determines that competence can be fully evaluated
in his absence.
(6(c))
C. How conducted-
- By whom conducted: by the judge, counsel for the parties, however, can submit
questions to the judge that he may, in his discretion, ask the child. (6(d))
- Questions asked: appropriate to the age and developmental level of the child; shall
not be related to the issues at trial; and shall focus on the ability of the child to
remember, communicate, distinguish between truth and falsehood, and appreciate
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III. Testifying
A. Oath: Before testifying, a child shall take an oath or affirmation to tell the truth. (7)
B. Examination
1. How conducted
General Rule: open court, 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. (8)
Exception/s:
a) Exclusion of the public
- Why made:
To protect the right to privacy of the child or
If the court determines on the record that requiring the child to testify in open
court would cause psychological harm to him, hinder the ascertainment of truth,
or result in his inability to effectively communicate due to embarrassment, fear,
or timidity.
- In making its order, the court shall consider the developmental level of the child, the
nature of the crime, the nature of his testimony regarding the crime, his relationship
to the accused and to persons attending the trial, his desires, and the interests of his
parents or legal guardian.
- The court may, motu proprio, exclude the public from the courtroom if the evidence
to be produced during trial is of such character as to be offensive to decency or
public morals.
- The court may also, on motion of the accused, exclude the public from trial, except
court personnel and the counsel of the parties.
(23)
b) The court may order that persons attending the trial shall not enter or leave the
courtroom during the testimony of the child. (24)
c) Motion by party who presents a child witness or the guardian ad litem of such child
witness may, however, move the court to allow him to testify in the manner provided in
this Rule (8):
The judge may question the child in chambers, or in some comfortable place other
than the courtroom, in the presence of the support person, guardian ad litem,
prosecutor, and counsel for the parties. The questions of the judge shall not be
related to the issues at trial but to the feelings of the child about testifying in the
courtroom.
The judge may exclude any person, including the accused, whose presence or
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How done:
where testimony is taken: in a room separate from the courtroom
who are present:
o guardian ad litem;
o one or both of his support persons;
o the facilitator
o and interpreter, if any;
o a court officer appointed by the court;
o persons necessary to operate the closed-circuit television equipment; and
o other persons whose presence are determined by the court to be necessary
to the welfare and well-being of the child;
- The judge, prosecutor, accused, and counsel for the parties shall be in the
courtroom. The testimony of the child shall be transmitted by live-link television
into the courtroom for viewing and hearing by the judge, prosecutor, counsel for
the parties, accused, victim, and the public unless excluded.
- If it is necessary for the child to identify the accused at trial, the court may allow
the child to enter the courtroom for the limited purpose of identifying the
accused, or the court may allow the child to identify the accused by observing
the image of the latter on a television monitor.
- The court may set other conditions and limitations on the taking of the testimony
that it finds just and appropriate, taking into consideration the best interests of
the child.
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- The testimony of the child shall be preserved on videotape, digital disc, or other
similar devices which shall be made part of the court record and shall be subject
to a protective order as provided in section 31(b).
ii. Screens, one-way mirrors, and other devices to shield child from accused. (26)
Who may apply for an order that the chair of the child or that a screen or other
device be placed in the courtroom in such a manner that the child cannot see the
accused while testifying:
1 prosecutor or
2 guardian ad litem (consultation with prosecutor or counsel as in application for
use of live-link TV. also required)
If the court grants an application to shield the child from the accused while testifying
in the courtroom, the courtroom shall be arranged to enable the accused to view the
child.
When allowed:If the court finds that the child will not be able to testify in open court
at trial, it shall issue an order that the deposition of the child be taken and preserved
by videotape.
Deposition-taking:
Who are present
o Judge who shall preside at the videotaped deposition of a child;
o Prosecutor;
o defense counsel;
o Guardian ad litem;
o Accused, provided that, if the order of the court is based on evidence that the
child is unable to testify in the physical presence of the accused, the court may
direct the latter to be excluded from the room in which the deposition is
conducted. In case of exclusion of the accused, the court shall order that the
testimony of the child be taken by live-link television in accordance with
section 25 of this Rule. If the accused is excluded from the deposition, it is not
necessary that the child be able to view an image of the accused.
o Other persons whose presence is determined by the court to be necessary to
the welfare and well-being of the child;
o Support person/s, the facilitator and interpreter, if any;
o Court stenographer; and
o Persons necessary to operate the videotape equipment.
Objections to testimony or evidence; rights of the accused
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The child may be allowed to testify from a place other than the witness chair.
The witness chair or other place from which the child testifies may be turned to
facilitate his testimony but the opposing party and his counsel must have a frontal or
profile view of the child during the testimony of the child. The witness chair or other
place from which the child testifies may also be rearranged to allow the child to see
the opposing party and his counsel, if he chooses to look at them, without turning his
body or leaving the witness stand.
Accommodations for the child under this section need not be supported by a finding
of trauma to the child.
2. Before admitting such evidence, the court must conduct a hearing in chambers
and afford the child, his guardian ad litem, the parties, and their counsel a right to
attend and be heard. The motion and the record of the hearing must be sealed and
remain under seal and protected by a protective order set forth in section 31(b).
The child shall not be required to testify at the hearing in chambers except with his
consent.
1. Classes of Documents
1.1 Public Documents Rule 132, Sec. 19
1.1.1-A Written official acts of the sovereign authority, official bodies and tribunals, and public
officers, whether of the Philippines or of a foreign country;
- How Proven = Rule 132, Sec. 23
- Documents consisting of entries in public records made in the performance of a duty by a public
officer are prima facie evidence of the facts therein stated. All other public documents are evidence,
even against a third person of the fact which gave rise to their execution and of the date of the
latter.
1.1.1-B 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.
- How Proven = Rule 132, Sec. 24
- The record may be evidenced by: (1) an official publication thereof; (2) a copy attested by the
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officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not
kept in the Philippines, with a certificate that such officer has the custody.
If the record 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.
1.1.3 Public Records (kept in the Philippines) of Private Documents required by law to be entered
therein
- How Proven = Sec. 27
- Such may be proved by the original record, or a copy thereof, attested by the legal custodian of
the record, with an appropriate certificate that such officer has the custody.
- Proof of Lack of Record = Sec. 28
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
office, accompanied by a certificate that such officer has the custody, is admissible to prove that the
records of his office contain no such record or entry.
If all requisites have been met, no other evidence of its authenticity is required.
between the parties; or (c) fraud in the party offering the record, in respect to the proceedings.
3. Alterations Rule 132, Sec. 31
- 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. Failure to do so would result in the inadmissibility of evidence.
- He may show that the alteration was made
f) by another,
g) without his concurrence, or
h) made with the consent of the parties affected by it, or
i) was otherwise properly or innocent made, or
j) The alteration did not change the meaning or language of the instrument.
= Objection to a question propounded in the course of the oral examination of a witness shall be
made as soon as the grounds therefore shall become reasonably apparent.
- Documentary Evidence = shall be objected to within 3 days after notice of the offer unless a
different period is allowed by the court.
Kinds of Objection
1. General or broadside- does not go beyond declaring the evidence as immaterial, incompetent,
irrelevant, or inadmissible. Does not specify the grounds
2. Specific- States the ground
res ipsa loquitur (The thing speaks for itself)- A procedural device which presumes that the
person is negligent, when he is in control of an instrumentality causing an injury in the absence of
some explanation by him.
Falsus in uno, falsus in omnibus (False in one thing, false in everything)- If the testimony of
the witness on a material issue is willfully false and given with an intention to deceive, court may
disregard all the witness testimony. (Not a mandatory rule of evidence)
- It deals only with the weight of evidence and not a positive rule of law
- The witnesses false or exaggerated statements on other matters shall not preclude the
acceptance of such evidence as is relieved from any sign of falsehood
- The court may accept and reject portions of the witness testimony depending on the
inherent credibility thereof.
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*May the court stop the introduction of further testimony? YES upon any particular point when the
evidence upon it is already so full that more witnesses to the same point cannot be reasonably
expected to be additionally persuasive; this power should be exercised with caution. (Rule 133,
Section 6)
*How will the court dispose of a motion which is based on facts not appearing of record? Court may
hear the matter on
- Affidavits or
- Depositions
presented by the respective parties but the court may direct that the matter be heard wholly or
partly on oral testimony or depositions. (Rule 133, Section 7)
CIVIL CASES:
Application for preliminary attachment/injunction
Motion to dismiss founded on certain facts which are not solely predicated on absence of
jurisdiction or failure to state a COA, i.e. it is predicated on the ground of payment
(Same with Criminal Case, evidence taken up during hearing made part automatically of records of
the case)
Cases covered.
All civil actions and proceedings, as well as quasi-judicial and administrative cases. (R1, 2)
Includes digitally signed documents and any printout or output, readable by sight or other means,
which accurately reflects the electronic data message or electronic document. For purposes of these
Rules, the term electronic document may be used interchangeably with electronic data message.
Confidential character of a privileged communication is not lost solely on the ground that it is in the
form of an electronic document. (R3, 3)
Hearsay rule exception: 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. (R8, 1)
This presumption 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.
(R8, 2)
hlp2009 Page 58 9/26/201758
How are matters relating to the admissibility and evidentiary weight of an electronic
document established? (R9)
o 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.
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.
If ephemeral, audio, photographic and video evidence are recorded or embodied in an electronic
document, then the provisions authentication electronic documents apply. (R11, 2)
(a) "Biological sample" means any organic material originating from a person's body, even if found
in inanimate objects, that is susceptible to DNA testing. This includes blood, saliva and other body
fluids, tissues, hairs and bones;
(b) "DNA" means deoxyribonucleic acid, which is the chain of molecules found in every nucleated
cell of the body. The totality of an individual's DNA is unique for the individual, except identical
twins;
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(c) "DNA evidence" constitutes the totality of the DNA profiles, results and other genetic
information directly generated from DNA testing of biological samples;
(d) "DNA profile" means genetic information derived from DNA testing of a biological sample
obtained from a person, which biological sample is clearly identifiable as originating from that
person;
(e) "DNA testing" means verified and credible scientific methods which include the extraction of
DNA from biological samples, the generation of DNA profiles and the comparison of the information
obtained from the DNA testing of biological samples for the purpose of determining, with reasonable
certainty, whether or not the DNA obtained from two or more distinct biological samples originates
from the same person (direct identification) or if the biological samples originate from related
persons (kinship analysis); and
(f) "Probability of Parentage" means the numerical estimate for the likelihood of parentage of a
putative parent compared with the probability of a random match of two unrelated individuals in a
given population.
Application for DNA Testing Order. The appropriate court may, at any time, either motu proprio
or on application of any person who has a legal interest in the matter in litigation, order a DNA
testing. Such order shall issue after due hearing and notice to the parties upon a showing of the
following:
(a) A biological sample exists that is relevant to the case;
(b) The biological sample:
(i) was not previously subjected to the type of DNA testing now requested; or
(ii) was previously subjected to DNA testing, but the results may require confirmation for
good reasons;
(c) The DNA testing uses a scientifically valid technique;
(d) The DNA testing has the scientific potential to produce new information that is relevant to the
proper resolution of the case; and chan robles virtual law library
(e) The existence of other factors, if any, which the court may consider as potentially affecting the
accuracy or integrity of the DNA testing.
This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any
party, including law enforcement agencies, before a suit or proceeding is commenced.
An order granting the DNA testing shall be immediately executory and shall not be appealable.
Petition for certiorari shall not stay the implementation of order unless a higher court issues an
injunctive order.
Post-conviction DNA testing may be available, without need of prior court order, to the prosecution
or any person convicted by final and executory judgment provided that
(a) a biological sample exists,
(b) such sample is relevant to the case, and
(c) the testing would probably result in the reversal or modification of the judgment of conviction.
institution and the qualification of the analyst who conducted the tests. If the laboratory is not
accredited, the relevant experience of the laboratory in forensic casework and credibility shall be
properly established; and
(d) The reliability of the testing result
A similar petition may be filed either in the Court of Appeals or the Supreme Court, or with any
member of said courts, which may conduct a hearing thereon or remand the petition to the court of
origin and issue the appropriate orders.
Indirect Contempt- to those who publishes or disclose the DNA results without proper court order
Preservation of DNA Evidence. The trial court shall preserve the DNA evidence in its totality,
including all biological samples, DNA profiles and results or other genetic information obtained from
DNA testing. For this purpose, the court may order the appropriate government agency to preserve
hlp2009 Page 61 9/26/201761
(b) In all other cases, until such time as the decision in the case where the DNA evidence was
introduced has become final and executory. chan robles virtual law library
Physical destruction of a biological sample before the expiration of the periods set forth
above, provided that:
(a) There is a court order or
(b) The person from whom the DNA sample was obtained has consented in writing to the disposal of
the DNA evidence.