Evidence TSN 1st Exam Coverage Based on the Lectures of Atty.

Zachael Espejo THURSDAY June 20, 2013

Rule 128 section 1 defines evidence as the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. However, that However, the Rules are not the main repositories relating to evidence. Scattered in all the law are different provisions that would be construed properly as evidential rules: When we discussed the obligations and contracts as wells as sales perhaps, the Statute of Frauds which meroong common misconception. People would say that whats the statute of frauds, its 1403. Its not actually 1403 but 1403 number 2. It tells you that this type of transaction can only be proved in court of law by means of specific _ proof. Art 2199 NCC in torts in actual damages that needs to be proven actual pecuniary loss in relation to Art 2216 in MENTL damages no proof of pecuniary loss is needed. Res Ipsa Loquitor again another evidentiary rule not found in the Rules of Court, When it is present in the antecedents of the case, it actually shifts the burden of evidence. A presumption has the effect of establishing a prima facie case. Ex: Republic v. Luzon Stevedoring, the barge and the whart. Nabangaan ang wharf, kinsa ang sad-an? Therefore, the doctrine of res ipsa loquitor because there is a presumption of evidence which actually transforms the case into one where supposed to be the plaintiff must prove his allegations but now, it is the defendant who must prove the reverse.

prevailing in courts of law or equity shall not be controlling and it is the spirit and intention of this Code that the Commission and its members and the Labor Arbiters shall use every and all reasonable means to ascertain the facts in each case speedily and objectively and without regard to technicalities of law or procedure, all in the interest of due process. x x x"[1] That is why in labor cases no trial type conference, cases are decided by means of submission of position cases. Labor cases are summary. Hornales vs NLRC A hearing officer in labor cases may avail himself of all reasonable means to ascertain the facts of the case. The procedure before the labor arbiters is actually __in nature. The technicalities of law and procedure and the rules obtaining in the courts of law shall not strictly apply thereto and a hearing officer may avail himself of all reasonable means to ascertain the facts of the case. Kanlaon vs NLRC The SC said that while the NLRC and the Labor arbiters are not bound by technical rules of evidence and procedure, this should not be understood as to dispense the fundamental right to due process and the parties should be given opportunity to submit position papers. No need to conduct direct examination. Indeed, the labor arbiters and the NLRC must not, at the expense of due process, be the first to arbitrarily disregard specific provisions of the Rules which are precisely intended to assist the parties in obtaining the just, expeditious and inexpensive settlement of labor disputes. (due process here is accomplished by the submission of position papers) Fact 2 Kinds of Facts:

The law on evidence is not an exclusive list of the different evidentiary rules that we will use.

Judicial proceeding In a judicial proceeding, rule 128 section 1 specifically mentions a judicial proceeding which means that we use the law on evidence based on the rules of court in judicial proceedings primarily. As a general rule, when the proceeding is administrative or quasi-judicial in character, the rules on evidence are not strictly applied. According to the case of Samar II Electric Cooperative vs NLRC: Technical rules of evidence are not, however, strictly followed in labor cases. The Labor Code itself affirms this liberality, viz.: "Article 221. Technical Rules not binding and prior resort to amicable settlement. In any proceeding before the Commission or any of the Labor Arbiters, the rules of evidence Factum probandum Factum probans "ultimate facts" Proposition to be established Hypothetical "intermediate facts" Material evidencing the proposition Existent 1. Ultimate facts (factum probandum)principal, determinate and constitutive facts upon the existence of which the plaintiffs cause of action rests. does not refer to the details of probative matter or particulars of evidence by which these material elements are to be established proposition to be established, necessarily hypothetical Evidentiary facts (factum probans) facts which are necessary for the determination of the ultimate facts Premises upon which conclusions of ultimate facts are based. Brought forward as a reality to convince the tribunal that the factum probandum is also real

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Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo A matter of fact question of fact an issue of fact or a question of fact. Remember a question of law does not need evidence. Cano vs Chief of Philippine National Police There is a question of fact when doubt or difference arises as to the truth or falsehood of the alleged facts, and there is a question of law where the doubt or difference arises as to what the law is on a certain state of facts. Question of Fact: kinsa ang nibaril? Therefore, the tribunal acts as a fact finder. What about a question of law? There may be sets of fact but the primary question is whether or not the law applies, that is a question of law. Why is it important to distinguish between a question of fact and question of law? It has something to do with evidence. What happens if you lost in the RTC, and the issue you elevated is a question of fact, can you go to the SC? No, because the SC is not a trier of facts. What about if it is a pure question of law? Yes. Question of facts = appeal to CA Question of law = appeal to SC 1. object Mixed = CA because SC is not a trier of facts Classes of Evidence 3. Testimonial As to type: 1. Object (Real) Evidence It is the thing (res) that is the evidence. Those addressed directly to the sense of the court without the intervention of a witness, as by actual sight, hearing, taste, smell or touch. A.K.A autoptic proference. It is tangible evidence. 2. documentary

By its nature, its actually object evidence. But the object itself is not the evidence but it is what is the object evidence demonstrates. People vs Lavapie Since the physical evidence runs counter to the testimonial evidence of the prosecutions witness, conclusions as to physical evidence should prevail. Greater credence is given to physical evidence as evidence of the highest order because it speaks more eloquently than a hundred witnesses. Testimonial or documentary GSIS vs CA Testimonial evidence is easy of fabrication and there is very little room for choice between testimonial evidence and documentary evidence (Marvel Building Corporation vs. David, 94 Phil. 376 [1954]). Generally, documentary evidence prevails over testimonial evidence. So ang hierarchy kay?

Atty Espejo: pero testimonial is important because it ties documentary and object evidence together. Object or documentary evidence cannot be presented unless sponsored by a witness. Testimonial evidence has two types 1. 2. Oral made in open court before the judge Written affidavits, depositions

Note: A document can be an object evidence if the issue is not the contents but the physical evidence itself to address the senses of the court 2. Documentary Evidence documents as evidence consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents. (Rule 130 section 2) Testimonial Evidence - Oral or written assertion offered in a court as a proof of the truth of what is being stated. Anything that can be perceived by the witness. Demonstrative evidence maps, symbol, diagrams or objects that has no probative value but is use to illustrate and clarify an issue or aid a testimony. DE is evidence as evidence is not prohibited although not specifically mentioned in the rules of court. Ex. Naay nagtestify na tao, where do you live? She answers I dont know Counsel said, Im showing you a map, can you point at what area in the do you live? She pointed. It simply demonstrates. Is the map evidence? No. It does not directly prove the fact and issue of the case. Perfect example: During the concluding statements in the impeachment trial of former CJ Corona. Farinas used PPT.

So which of the above is given more credence? People vs Balleno An affidavit is not a complete reproduction of what the declarant has in mind because it is generally prepared by the administering officer and the affiant simply signs it after it has been read to him. In any case, open court declarations take precedence over written affidavits in the hierarchy of evidence. Unlike written statements, there is flexibility on the part of the questioner to adapt his questions to elicit the desired answer in order to ferret out the truth. As to whether it affirms or negates Positive evidence when a witness affirms that a fact occurs or did not occur. Ex. Question of the lawyer at direct examination, at the time collision, was the headlight of the motorcycle turned on? witness answered yes. She affirms the fact. What fact? That the headlight is on. Negative evidence when the witness avers that he did not see or know the occurrence of fact Ex. Same question was asked. She answered, no it was turned off negative evidence? No. Actually, it affirms a fact that it was not turned

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Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo on. Its not the nature of the answer whether it is positive or negative or whether he says yes or no. Because even when saying no you are actually affirming a fact. An example of negative evidence: same question asked, she answered, I did not notice. Thats negative evidence because the witness was neither affirming or negating a fact. People vs Macalaba We have time and again ruled that mere denial cannot prevail over the positive testimony of a witness. A mere denial, just like alibi, is a self-serving negative evidence which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters. As between a categorical testimony that rings of truth on one hand, and a bare denial on the other, the former is generally held to prevail. So positive prevails over negative As to materiality Material evidence when it tends to prove or disprove the fact in issue in a case So first you have to know the issue : substantive and allegations of the pleadings kelangan nay joinder of issue muna Example: Utang evidenced by promissory note. Tapos naganswer ug payment. So for the plaintiff ang material evidence is the promissory note. For defendant, ang material evidence is the receipt Immaterial evidence the offered evidential fact is directed to prove some probandum which is not proper in issue. The rule of substantive law and of pleading are what determines immateriality

Let's review a little on the Bill of Rights. In Article 3, sections 2 and 3. Section 2 talks about the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. Section 3(1) refers to the privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. And by way of sanction, that if section 2 or 3 is violated, section 2(2) provides that any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. It is known as the fruit of the poisonous tree rule. In the Rules of Court, you have the counterpart with respect to the admissibility of evidence. You can find that in Rule 130. Can you recall a rule of admissibility in Civil Procedure? In the Modes of Discovery. Rule 26. Admission of parties Sec. 5. Effect of failure to file and serve request for admission. Unless otherwise allowed by the court for good cause shown and to prevent a failure of justice, a party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present evidence on such factsThat is actually an exclusionary rule, it is deemed not competent. As to Relevancy Relevant evidence is defined as that which has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Irrelevant or unrelated are not related therefore objectionable and can properly be ruled to be excluded by the court. How do you determine whether evidence is relevant or not? Very very simple and I believe that you know the answer to this. Because all of you are blessed by God with logic. Common sense. That is the only way to determine relevancy. Proceeding from that, let us try to exercise them. Tell me, in the example I will give you, if there is relevancy. 1. There is this guy who was shot at a distance. Shot right in the middle of the forehead. From a long distance pa gyud. The main suspect is B. B is sued for the murder of A. During the presentation of evidence for the prosecution, this gun is the first piece of evidence that is presented. It was allegedly used to shoot the victim. Relevant or not? Relevant of course. 2. What about expert testimony? Which tends to prove the distance between the place where the victim was shot and the place where the gun was allegedly fired. Relevant or not? Does it, in a reasonable degree, establish the probability or improbability of the fact in issue? Not directly. What if a witness for the prosecution testifies and says that the accused is an olympic gold medalist in long range shooting? Will that be relevant? Take note that that piece of evidence is not necessarily material to the fact in issue. It may not satisfy the

FRIDAY June 21, 2013 As to admissibility Inadmissible evidence is when the offered evidence is excluded by some rule of evidence Competent evidence is when the offered evidence is not excluded by some rule of evidence The classification of evidence known as incompetent evidence is not the opposite of competent evidence. When you say incompetent evidence, it means that the evidence sought to be presented is not qualified under the rules of testimonial evidence. For example, if the witness has no knowledge whatsoever on the matters he is testifying on, then the witness is incompetent.

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo requirement of materiality, but does it advance the inquiry a little bit more in order for you to achieve your ultimate fact, which is that it was the accused who shot the victim? Yes. It may not directly prove that he was the one who shot the victim, but it may advance the inquiry that it was the accused who shot the victim. That is relevancy. What if the prosecution actually wants to prove that the accused was a gold medalist, not in the olympics, but the marathon? It's irrelevant. The easiest way to answer a question regarding relevancy is logic and common sense. That's all. As to the need to infer Direct evidence is proof of the fact directly, without an inference or presumption, and which in itself, if true, conclusively establishes that fact. It is proof that if belief establishes the truth or falsity of the fact in issue and therefore does not arise from mere presumption. Example: Who killed the victim? The accused. Why do you know? Because I saw him actually shoot the victim. Circumstantial evidence is evidence not bearing directly on the fact in dispute but on various attendant circumstances from which the judge might infer the occurrence of the fact in dispute. Example: Just like a smoking gun. What does it prove? That the gun was fired. Not necessarily that somebody was shot, but that the gun was fired. So now the witness is asked: Who killed the victim? The accused. Why do you know that? At the time of the shooting, I saw him running away from the scene of the crime and that the accused held a gun and his shirt was bloody. Of all those answers, is there a statement that says that the witness saw the accused shoot or kill the victim? No. But a combination of these circumstances would actually lead to the inference that it was indeed the accused who shot the victim. How does the Supreme Court define direct and circumstantial evidence? In the case of People v. Ramos: Direct evidence is that evidence which proves a fact in issue directly without any reasoning or inferences being drawn on the part of the factfinder. Circumstantial evidence is that evidence which indirectly proves a fact in issue. The factfinder must draw an inference or reason from circumstantial evidence. Under our Rules of Court, conviction based on circumstantial evidence is sufficient if: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. As to originality

Primary evidence is evidence which the law regards as affecting the greatest certainty of the fact in question. So if you're suing for actual damages, what's the best proof available? A receipt. If you want to prove that you own the land, what's the best evidence? Certificate of title. Secondary evidence is inferior or substitutionary evidence that which itself indicates the existence of a more original source of information. If you have a photocopy, what does it tell you? That in all probability, there's an original. For this, take note of Rule 130, section 3. It is known as the best evidence rule. Section 3. Original document must be produced; exceptions. When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself except in the following cases: (a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and (d) When the original is a public record in the custody of a public officer or is recorded in a public office. As to supporting evidence Cumulative evidence is additional evidence of the same kind or character as that already given and tends to prove the same proposition. You're presenting evidence of the same kind in cumulative evidence. Corroborative evidence is additional evidence of a different kind and character tending to prove the same point. Example: I can present my birth certificate to prove my age. I can also present my baptismal certificate to prove my age. I may also present my mother that I was born 27 years ago on this month and that day. Different types of evidence only proving one point: my age. Corroborative evidence is necessary only when there is reason to suspect that this witness bent the truth or that his observation was inaccurate. Can you convict an accused on the testimony of only one witness? Let's talk about criminal cases first. In the case of People v. Ayupan: It is well-settled that the testimony of a lone witness if found by the trial court to be positive, categorical and credible is sufficient to support a conviction. This is so, especially if the testimony bore the earmarks of truth and sincerity and was delivered

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo spontaneously, naturally and in a straightforward manner.12 Corroborative evidence is necessary only when there are reasons to suspect that the witness bent the truth, or that his or her observation was inaccurate.13 Evidence is assessed in terms of quality, not quantity. It is to be weighed, not counted. 14 Therefore, it is not uncommon to reach a conclusion of guilt on the basis of the testimony of a lone witness. In People v. Gumayao: Corroborative or cumulative evidence is not a prerequisite to the conviction of the accused. Truth is established not by the number of witnesses but by the quality of their testimonies.58 As to controversion Prima facie evidence is evidence sufficient to establish a fact and if not rebutted becomes conclusive of that fact. Examples: In bribery, the acceptance of a gift is deemed a prima facie evidence of bribery. What is the effect of being able to establish a prima facie case? It actually shifts the burden to the defendant. Rebutting evidence is that which is given by a party in the cause to explain, repel, counteract or disprove facts given in evidence on the other side. The term rebutting evidence is more particularly applied to that evidence given by the plaintiff to explain or repel the evidence given by the defendant. Conclusive evidence is that which is incontrovertible, that is to say, not open to contradiction by other evidence. Can you tell me of evidence that is conclusive? A crime is committed by a child below 9 years of age. Can you prove that that child acted with discernment? You can't. Therefore, the law already conclusively presumes that if you are below 9 years old, it is impossible for you to act with discernment. As to the tenor of testimonial evidence Character or reputation evidence is evidence attesting to ones character or moral standing in ones community. Generally, the character is legally irrelevant. However, if allowed, it must be limited to the traits and characteristics involved in the type of offense charged. Example: A neighbor who testifies that the accused is a bad neighbor. That is generally legally irrelevant. But if the traits involved are related to the case, like if I am sued for collection of sum of money and the testimony says that I am known to owe other people money, it may be allowed. Opinion evidence is evidence of what the witness thinks, believes or infers in regard to facts in dispute as distinguished from personal knowledge of facts themselves. The rules of evidence ordinarily do not permit the witnesses to testify as to opinion. Example: Why do you think the accused the accused killed the victim? Because I think he was angry at him. That's an opinion, and that is inadmissible.

Expert evidence is evidence that consists in an opinion of a witness, so specie of opinion, on the matter requiring special knowledge, skill or training which he is shown to attest. Name a situation under any subject which would specifically require expert evidence. What? Art. 36 of the Family Code on psychological incapacity. Ordinary evidence is evidence which consists of the testimony of a witness who testifies facts of what he knows to be his personal knowledge; those derived from his own perception of facts and circumstances. What happens when the testimony of a witness would actually refer to facts which are not of his personal knowledge? Would that be allowed? No. It would violate the proscription under the law that only those facts which are of one's personal knowledge is allowed. That would be hearsay. Chismis. What is the latest chismis? Do you know about Jessy Mendiola and Matteo(?)? And finally as to the source of evidence it can either be intrinsic evidence or extrinsic evidence/ evidence aliunde. Importante ni sa succession. What differentiates extrinsic from intrinsic? From the word itself sayon ra timan.an. Kung muingon ka ug intrinsic naa ra sa sulod, meaning it is an information necessary for the determination of the issue that is gleaned from the document itself or from the thing itself. Now what about parole evidence or extrinsic evidence/ evidence aliunde? This refers from a source outside of the subject document. Aliunde means outsise or from another source. Youll encounter that in wills and successions and we will take it up as well when we tackle the rules on parole evidence. When the terms of agreements have been reduce into writing it is considered as all the terms read upon and it can be the contracting parties and their successors in interest, no evidence of such terms other than the context of the agreement, thats the parole evidence rule. Let us go to section 2, were done with section 1. Scope, the rules on evidence shall be the same in all court and in all trials and hearings except as otherwise provided by law or these rules. When the law says all courts, what does it mean? It means all subordinate courts because let me tell you that the SC sometimes has that uncanny propensity to disregard the rules of evidence. If you read enough evidence cases as I have you will come up with the same conclusion. From the municipal trial court up to the court of appeals, all of them are governed by the rules on evidence. Remember the main reason why the SC is not technically speaking bound by the rules on evidence. Because it is NOT A TRIER OF FACTS. Remember that the goal of evidence is to determine facts.

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo Applies to all trials and hearings? Which means that it would apply either to criminal or civil cases except as otherwise provided by law or these rules. Can you think of a proceeding in a subordinate court which are not governed strictly by the rules on evidence despite the fact that you apply it in judicial proceedings? For example under section 24 of BP 129 as amended, whenever a RTC takes cognizance of juvenile and domestic relations cases and/or agrarian cases the special rules on procedure under present laws to such cases shall continue to be applied unless subsequently amended by law or by rules of court. You have juvenile and domestic relations cases and/or agrarian cases. There is a rule administrative matter 004-7-SC aka the rules on examination of child witness. This rule shall govern the examination of child witnesses, victims of crime, accused of a crime and witnesses to crime. It shall apply to all proceedings and non-criminal proceedings involving child witnesses. What is the reason why there is a departure from a customary rule of evidence while dealing with child witnesses? In the case of PP vs. Barring Jr. Feb. 13. 2002. This rules ensures an environment that allows children to give reliable and complete evidence, minimize trauma, encourage children to testify in the proceedings and facilitate the ascertainment thereof. We will discuss more of these when we get to object evidence. Agrarian cases governed by the rules of procedure specially designed for agrarian tribunals. What other cases follow different evidentiary rules? Ill tell you examples. 1 under the rules on summary procedure. In our civil procedure weve learned that affidavits take the place of direct testimony in summary procedure. All the witness has to do is to identify the affidavits and affirm its contents, from there there is already cross-examination. In an ordinary case or case govern by ordinary procedure it is different, always Socratic, question-asnwer, question-answer. Were not allowed to use leading questions. What is a leading question? One that already suggests to the witness the answer which the lawyer wants, a question that is answerable by a mere yes or no. You were there at the scene of the crime werent you? It is actually the lawyer testifying. You killed the accused didnt you? Usually it is Where were you at the time the offense was committed? It should be who what, when, where why and how. Those are the questions you can ask. The rule of procedure for small-claims cases. In these cases the rules on evidence shall not strictly apply because no more direct examination, cross-examination, re-direct examination, re-cross examination. What else? The rule on judicial affidavits which I hate because it adds to my work as a lawyer. I hate it because I always thought of myself as a lawyer who likes cross-examination more than direct examinations. I love to cross-examine because it will test your creativity. How you trap a witness into telling something he doesnt want to say.In direct examination you can actually make a script and you can only ask questions on specific facts and you cannot ask leading questions. The SC now says, nagabuhat man diay mo ug script magbuhat na lang tau g judicial affidavit. Unsa man diay ning judicial affidavit? It is actually a script, question and answer question and answer. It speeds up the litigation because you dont have to undergo the lengthy process of direct examination but ang trabaho sa abogado nadugangan.

It maybe more work but also maybe more money. Id rather be payed less and work less than payed more and work more. Lets go to sec. 3 admissibility of evidence. Evidence is admissible when it is relevant to the issue or is not excluded by the law or by these rules. According to this rule the admissibility of evidence woukd actually depend on to key factors; Relevancy and competency. When is evidence relevant? That is answered by the first sentence of sec. 4 Evidence must have such a relation to the fact in issue as to induce belief in its existence or nonexistence. The test of relevancy is without doubt the most important principle in all of the law of evidence. Evidence having authenticity whatsoever to make existence of a fact of consequence in a tribunal more or less probable than it would be without the evidence is excluded. The rule therefore is simple. Relevant evidence maybe admissible but irrelevant evidence is never admissible. Whether a party attempt to prove a fact in a particular case is not decided by the rules on evidence, it is a question addressed to substantive law although a case is to be brought before the court. It is therefore important that an attorney understands the principle of substantive law to determine the relevancy of a particular item of evidence and to determine the admissibility or the strength of his order. Any discussion regarding relevancy shall always be refered to those who are supposed experts on evidence, one is of course John Henry Wigmore, the foremost authority in evidence cited by most authors. According to him there are two actions used to determine relevancy only those facts of rational and probative value are admissible; we call that the action of relevancy, action of competency says all facts of rational probative value are admissible unless prohibited by some specific rule or law. Add those two actions together, the action of competency and action of relevancy, what do you have? You have almost to the letter section 3, rule 128, thats why we call our evidence as a Wigmorite rule, sa ato pa ang atong rules gikuha nato kang John henry Wigmore. Action of relevancy + Action of competency = Sec. 3, Rule 128 . Then you have the word of Charles Belfort McCornick, he is actually a contemporary of Wigmore who is a former dean of North Carolina In the US McCormick is an authority in remedial law and according to him the proper question to ask whether or not something is relevant Does the evidence offer, tender desired inference more probable than it would be without the evidence?. Relevant evidence then is evidence that to some degree advances the inquiry and has a probative value and is prima facie admissible. They are actually telling us the same thing, you could see that they both have influences on our rules of evidence. Take note that in both tests forwared by Wigmore and McCormick, probative value is very prominent. What is probative value? It is a tendency of evidence to make the fact of consequence more or less probable than it would be without the evidence. This means that if a persons assessment of the probability of the consequential facts might be change by a piece of evidence in its probative value. Once evidence is submitted the trier of facts decide how much probative value he could give . This is one of my favorite cases in popular culture, can you recall a famous sportsman, I dont know if your were born already, by the name of Oriental James Simpson. Diba si OJ Simson was accused of killing his own wife and the lover of

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo the wife. Didto migawas in popular culture ang pangalan na kardashian because the lawyer was the father of Kim Kardashian. There was an issue there about whether or not a pair of gloves found in the scene of the crime should be admitted as evidence. They are proposing the presentation of demonstrative evidence. It was a pair of bloody gloves and the proposition of the prosecution that if the gloves fit the hand sof OJ Simson, he killed his wife and the lover. So the debate was whether the gloves were to be admitted or not. When you talk about whether an evidence is admissible, what is the action applicable? The action of competency. What about action of relevancy? Naa ba siyay natural probative value or does it advance the inquiry or not? Would the gloves fitting OJ Simson mean that he killed his wife? Not necessarily but the proposition of the prosecution is this ; You denied being here at the time of the commission of the offense? But why is it that naa imong gloves diri? OJ Simson was eventually asked to put the gloves on in front of the jury and in the passage of time really the gloves did not fit. My theory is 1 he grew fat, it was subject to the elements. So with that piece of demonstrative evidence the accused was acquitted just because the gloves did not fit. So relevant? Probably yes. Competent? Yes. What about the probative value? It does not mean that when the evidence is relevant or competent it is automatically believed because ADMISSIBILITY IS DIFFERENT FROM CREDIBILITY of the evidence . One does not necessarily follow the other. SO again relevancy is determined by logic or commonsense. Now take not of competency, all facts having rational probative value are admissible unless prohibited by some specific law or rules. Examples of exclusion of course is in the constitution fruit of the poisonous tree sec. 2, 3 of the bill of rights exclusionary rule shall not be admissible as evidence in any proceeding. In addition to that, rule 26, sec 5. Of RoC effect of failure to file or serve request for admission, that is also exclusionary in character because you are not allowed to present evidence on matter subject to that admission. Then you have RA 4200, Act to prohibit or penalize Wire-tapping and other related violations of the privacy of communications and for other purposes, case in point is the case of Orbanez v. CA August 4, 1994. Very simple lang man ni, ok? The case is about psychological incapacity, it is a marriage case and among the evidence presented by the respondent are 3 casette tapes of alleged telephone conversations of the petitioner and an unidentified persons. The issue is simply WON the cassette tapes are admissible, according to the SC it falls squarely to the prohibition set in RA 4200. Absent any showing that the parties to the telephone conversations allowed the recording of the same, the inadmissibility of the tapes is mandatory under RA4200. So unsa ba ang gist sa anti-wiretapping law? It is unlawful for any person not authorized by any party to a private communication to tap any wire or cable or use any device to secretly overhear, intercept or record such communication or spoken word or using a device commonly known as a Dictaphone, dictagraph, detectaphone, woky-toky or tape recorder or however otherwise described. Take note however of exceptions, Navarro v. CA August 26, 1999, the law prohibits the overhearing, intercepting or recording of private communications. The exchange between Navarro and Lingan was not private, so its tape recording was not prohibited. So when it is a public conversation you can record it. Now a new law, 6 years ago, RA 9372, march 6, 2007 human Security Act of 2007. The law on wire-tapping as been set for

the longest time already but section 7 of this law actually allows an exception to the law against wire-tapping. A police or law enforcement official or members of his team, may upon the written order of the CA listen to, intercept and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting or tracking devices or with the use of other suitable ways and means for the purpose, any communication, message, conversation discussion or spoken or written words between members of judicially declared outlawed or terrorist organization, association or group of person or any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism. This is a reaction to the US war on terror. If you know the legislative history of this law, you would actually know why the Philippines adopted a similar law with US despite that it would somehow infringe with peoples liberty. We were actually just told by US to transform or Municipal law into something like the law of US on War on Terror. Kana bitaw mga suspected terrorist in US kalit lang mangawala. Some were tortured just on the basis of wiretaps. What about here in the Philippines? Same thing, mere suspect of terrorism is enough reason to wiretap. Just a caveat as well, provided that the surveillance or recording of the communications between lawyers-clients, doctors-patient, journalist-their sources and confidential business correspondents shall not be authorized. Here is a question, what happens if you listen in my conversation precisely to look for evidence that I am involved in terrorism but you listened into something entirely different? For example if I have a mistress, evidence from the wiretapping against me shall not be admissible. We look at inadmissibility in a certain way like fruit of the poisonous tree , if it is wrongly obtained then it is inadmissible. I want you to look at section 21 of RA 9165 because in that law there is a supposed chain of custody when you are talking about drugs and drugs paraphernalia. What is the chain of custody requirement? Look at section 21, I want you to know exactly how it happens, and what would be the effect if there are lapses in the chain of custody, will that affect the admissibility or inadmissibility of evidence? People v. Eugenio September 1, 2010, Will non compliance with this provision be considered fatal for the purpose of prosecuting somebody apprehended for illegal drugs? Same thing in the case of Pp. vs. Macatingag January 19, 2009, would non-compliance with the chain of custody lead into inadmissibility. Pp. vs. Almorfe March 29, 2010 What are the types of admissibility? There is multiple admissibility and conditional admissibility and curative admissibility. Multiple admissibility- It is when a fact is offered for one purpose and it is admissible in so far as it satisfies all rules applicable to it when offered for that purpose. Its failure to satisfy some other rules which would be applicable to it offered for other purpose is not excluded. Example I want to use my birth certificate to prove marriage but I can also use it as evidence to prove who my father is. It is multiple admissibility, one piece of evidence proving more than one facts. It can also be that a similar evidence can be admissible as one form of documentary evidence and object evidence as well. May a private document be offered as both object evidence and documentary evidence? BARQ. Yes, private document may be considered both as private document and object

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo evidence. A document can also be considered as an object for purposes of the case. Object as evidence are those addressed to the senses of the court. Documentary evi consists of writings or any material in the form of letters, words, numbers, figures, symbols and other modes of written expressions. Hence, a document maybe presented as object evidence to establish a physical evidence or characteristics of paper and writings it comprise. What is the example of a doc that is can be used as both as documentary and object evidence? Marked-money. Conditional admissibility- evidence is admissible only in dependence upon other facts. It is received with the express assurance of counsel when the objection is manifested and the facts are duly presented at the most suitable opportunity before the case is closed. When a counsel wants to present evidence which appear not to be material, not to be relevant at first instance but asks the court your honor can we conditionally admit this evidence and well prove its relationship later on to the fact in issue, for example as my first witness I will introduce a medico-legal examiner , he usually testifies on the cause of death , but will that medicolegal examiner be ordinarily be able to identify who the killer is? Dili man sad, dili man pud na direct. It may not seem probative of the fact in issue which is who killed the victim but it is admissible. Curative admissibility - a principle which provides that you can actually fight fire with fire. What do I mean? Gitugtan sa huwis na mupresent ug inadmissible evidence imong kontra, ug karon para patas pwede pud ka mupresent ug similar evidence. It is the effect of the introduction of otherwise inadmissible evidence. THURSDAY June 27, 2013 -NO CLASSFRIDAY June 28 -NO CLASSTHURSDAY July 4, 2013 INSTANCES WHEN PROOF CAN BE DISPENSED WITH Why is it there are certain things that need not be proved under the law? - because of the effect of the production of certain facts or principles in the case Instances when proofs can be dispensed with: 1. Presumptions it would have the effect of providing a prima facie case which under the law if unrebettued would already be dufficient a cause of action. It would now transfer the burden of proving the contrary to the other party. 4. Judicial admissions Rule 129 Section 4. Judicial admissions. An admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. 3. matters falling within the realm of judicial notice. What is judicial notice? Judicial Notice cognizance of certain facts by the court w/o proof because they are facts, which, by common experience,

are of universal knowledge among intelligent persons w/in a country or community Manifesta probatione non indigent - Manifest things require no proof. It is a rule in the law evidence that it allows a fact to be introduced as evidence. If the truth of that fact is so notorious and well-known that it cannot be forfeited. It is a cognizance of certain facts by the courts without proof because they are facts which by common experience are of universal knowledge among intelligent persons in a country or community. So the latin maxim that is applicale there is manifesta probatione non indigent which means manifest things require no proof. (CHIONGBIAN-OLIVA vs Republic of the Philippines ) What is the purpose why the court allows judicial notice? A situation where its no longer requiring any proof: 1. Convenience 2. Expediency Requisites of Judicial notice Matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of jurisdiction of the court. The power of taking judicial notice is to be exercised by courts with caution. Care must be taken that the requisite notoriety exists and every reasonable doubt on the subject should be promptly resolved in the negative. What is Common Knowledge The concept of "facts of common knowledge" in the context of judicial notice has been explained as those facts that are "so commonly known in the community as to make it unprofitable to require proof , and so certainly known to as to make it indisputable among reasonable men." Moreover, "though usually facts of 'common knowledge' will be generally known throughout the country, it is sufficient as a basis for judicial notice that they be known in the local community where the trial court sits." Certainly, the fact of petitioner Saludo being the duly elected representative of Southern Leyte at the time could be properly taken judicial notice of by the court a quo, the same being a matter of common knowledge in the community where it sits. ( Saludo vs American Express International) The phrase is uprofitable to require proof. Knowledge is so widespread that hey need not prove anymore. Types of Judicial Notice 1. Mandatory (purpose = convenience and expediency) it would be superfluous, inconvenient and expensive both to the parties and court to require proof in the ordinary way of facts which are already proved to the courts. Insistence sometimes of judicial notice may lead to absurd results. 2. Permissive/Discretionary 3. When hearing is necessary Rule 129 Section 1. Judicial notice, when mandatory. A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo Philippines, the official acts of legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. (1a) Example: the laws of nature do we really have to prove the laws of nature? Can you recall the (dolphy?) doctrine. Example is dolphy is brushing his teeth sayo sa buntag, brush siya saiyang teeth paghuman naglimogmog syempre iyang iluwa sa bintana. Timing niagi si panchito or si babalu. So pagluwa ni dolphy, naigo si dolphy or si babalu. I can relate that to jet um....( ) where something falls out of the building then the family would be liable for damages. In a case for example, do you have to prove that kung naay mahulog na malaigo jud na siya ug tao? Do you have to prove therefore that there is such a thing as the law on gravity? That matter falls on 9.8 m/s(squared). I dont think you should because that is the law of nature. If the court would require you to prove it then it would produce absurd results. existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, we are not talking about a law of a certain nation. Like, is jaywalking allowed in (certain country). We are not talking about specific laws of nations. What we are talking about is international law itself. Ex. Constitution Article II Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. Like: universal human rights How may international law be part of domestic law? 1. doctrine of incorporation based on Art. II, Section 2. 2. doctrine of transformation there has to be legislative act. Example: Human Security Act. Elements where an IL becomes generally accepted even if not enacted into local or municipal law 1. establish continued practice 2. opinion juris Other example of IL principle = pacta sun servanda treaties have obligatory force and effect. What about foreign law? Can the court take judicial notice of a foreign law here in Philippines? No. the existence of a foreign law per se is not within the mandatory judicial notice. Now, the Court should take judicial notice of historical events of international interest not local interest Example: OBAMA was elected president, can court here take judicial notice? Yes, because it is of international interest. the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, o requirement here is proprierty, it must be of national knowledge and significance. In other words, it must be historical to the whole country and not just to a single town or locality. We dont have to present a historian to prove the existence of a national event. A judge must be aware of the history. Judges are not required to know

the history of Vietnam, he is only required to know the historical event of international significance. Municipal Board vs Agustin There are facts, indeed of which courts should take judicial cognizance. These facts refer to a variety of subjects legislative, political, historical, commercial, scientific, and artificial in addition to a wide range of matters, arising in the ordinary course of nature or the general current of human events. The matter of judicial notice is ever expanding and will surely keep pace with advance of the sciences and the arts. But, a matter to be judicially cognizable must be wellestablished or autoritatively settled, or of common or general knowledge. Obviously, courts should take notice of whatever is or should be generally known because judges should not be more ignorant than the rest of mankind. Assuming without deciding that courts may take notice of the existence of the Sakdalista organization at one time or another, as matter of contemporary social and political history, the date of its organization or the time of its birth for the purposes of the application of the Election Law cannot be said to be of public knowledge. This information is not available from printed books, records or current literature. And though the judge himself or some other persons may known exactly when the Sakdalista Party came of public knowledge. A matter may be personally known to the judge and yet not be a matter of judicial knowledge and, vice versa, a matter may not be actually known to an individual judge and, nevertheless, be a proper subject of judicial cognizance. If courts may take judicial notice of the organization of the Sakdalista Party, they may and should take equal notice of the dates of the organization of all the other component political organizations. In the present case, where priority of organization is a material element for purposes of political representation on the board of inspectors, this fact must be proved and satisfactorily established. the official acts of legislative, executive and judicial departments of the Philippines, Legislative acts = laws WON they are abrogated or are still good laws, report of senate committees, congressional debates. Traditionally speaking, if you are a municipal court judge you are required to take judicial notice of ordinances enacted in said municipality. With respect to RTC, they are required to tale judicial notice when they are required by a specific law or in case of an appeal before the RTC where the lower court took judicial notice of an ordinance. So its derivative judicial notice. Impeachment trial = legislative department? Yes it is still acting as legislative department. Uy vs Contreras Respondent judge did not do any better. His total unawareness of the Local Government Code of 1991, more specifically on the provisions on the Katarungang pambarangay, is distressing. He should have taken judicial notice thereof, ever mindful that under Section 1, Rule 129 of the Rules of Court, courts are mandatorily required to take judicial notice of "the official acts of the legislative, executive and judicial departments of the Philippines." We have ruled that a judge is called upon to exhibit more than just a cursory acquaintance with the statutes and procedural rules. 21 He should have applied the revised katarungang pambarangay law under the Local Government Code of 1991. Had he done so, this petition would not have reached us and

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo taken valuable attention and time which could have been devoted to more important cases. Q: can we take judicial notice of corona impeachment? Grey area Chavez vs PEA In this case, the court takes judicial notice of reports of the Senate Committee on Government Corporations and Public Enterprises, and the Committee on Accountability of Public Officers and Investigations. Executive official acts = president and alter egos like Admin Orders, Department orders, proclamation etc. Debates of camara- the records of these debates are actually taken judicial notice. What about foreign laws? It would be impossible. Therefore, the existence of a foreign law is always a matter of fact. As a general rule, courts should not take judicial notice of foreign laws. It should be proved. Foreign laws may be admitted without proof by a court if it is subject to a judicial admission. The parties already speak of its existence and therefore it need not be proved. It is covered by sec 4 on judicial admissions. What if theres really no proof as to the existence of the law but the issues dealt with a particular foreign law is important in the case because it is precisely how the case is going to be resolved. Ex. Existence of divorce. If a foreign spouse validly obtain divorce abroad. What if the court is not sure whether that country allows divorce. How resolve? Apply processual presumption(?).. that the laws of the Philippines are the same as the laws of that country. Are there laws that are not written? Yes. Theres a lot. In that situation, apply rule 130 sec 46. Condon v. Comelec Aug 10, 2012 The petitioner is the winning vice mayoralty candidate in La union. A petition for quo warranto was filed against her on the ground that she is a dual citizen. Now theres already a law, RA 9225 which deals with dual citizen. In fact if you are a dual citizen, you are reverted to natural born status. One thing that you need to remember is the fact that if you are running a for a position, you are required to submit a document renouncing your foreign citizenship. Condon said she doesnt have to because in Australia where she used to be a dual citizen by virtue of her marriage to her husband, in Australian citizenship law 1948, that would be enough already that I filed there already. The filing of declaration in autralia shall be enough that she renounced her Australian citizenship. That mere act of running for the position is an implied renounciation of his foreign citizenship. SC ruled: Foreign laws are not a matter of judicial notice. Like any other fact, they must be alleged and proven. 29 The petitioner failed to prove the Australian Citizenship Act of 1948 through any of the above methods.1wphi1 As uniformly observed by the RTC and COMELEC, the petitioner failed to show proof of the existence of the law during trial. Also, the letter issued by the Australian government showing that petitioner already renounced her Australian citizenship was unauthenticated hence, the courts a quo acted judiciously in disregarding the same. We are bound to arrive at a similar conclusion even if we were to admit as competent evidence the said letter in view of the photocopy of a Certificate of Authentication issued by Consular Section of the Philippine Embassy in Canberra, Australia attached to the petitioners motion for reconsideration.

Official acts of the executive departments: proclamation, Executive Orders, Presidential Decreed. These are all subjects of mandatory judicial notice.

1 0 Presidential

People vs Casido Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded and proved by the person pardoned, because the courts take no notice thereof; while amnesty by Proclamation of the Chief Executive with the concurrence of Congress, and it is a public act of which the courts should take judicial notice. Pardon is granted to one after conviction; while amnesty is granted to classes of persons or communities who may be guilty of political offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction. Pardon looks forward and relieves the offender from the consequences of an offense of which he has been convicted, that is, it abolishes or forgives the punishment, and for that reason it does nor work the restoration of the rights to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon, and it in no case exempts the culprit from the payment of the civil indemnity imposed upon him by the sentence (article 36, Revised Penal Code). While amnesty looks backward and abolishes and puts into oblivion the offense itself, it so overlooks and obliterates the offense with which he is charged that the person released by amnesty stands before the law precisely as though he had committed no offense. How about acts of the LTFRB acting in its legislative rate fixing capacity or quasi judicial capacity? Can court take judicial notice of this? Yes under the alter ego doctrine Pardon = can we take judicial notice of pardon? No, you have to plead it. how about amnesty? Yes

Judicial department of the Philippines, when we talk about this we are talking about the Supreme Court, diba? Because judicial power is vested in one Supreme Court and in such other courts as may be provided by law (Art. VIII, Sec.1, 1987 Constitution.)

Now, other than cases decided by the SC, which a court should take judicial notice of, are there other acts of the SC, that judges should take judicial notice of? The Rules of Court. The rules of court should be taken judicial notice of by courts, its an official act of the SC. Now, what about cases decided by the CA, RTC, MTC, should courts take judicial notice? General rule: NO, its only cases decided by the SC which courts must take judicial notice of, but there are exceptions. And when the court takes judicial notice of a judgment or a decision of the SC, which constitutes our jurisprudence, the court should only take judicial notice of the principle/s involved, not the facts of the case. The court should not take judicial notice of a case for the purpose of applying it entirely to a particular case because the facts are the same (NO); when the court takes judicial notice of the principles in

jurisprudence, it shall not take judicial notice of applicability, because the applicability of a particular principle of law will have to go through a determination of facts, unless of course its a pure question of law; diba if you recall the distinction between a question of fact and a question of law. Supreme Court issuances (Sienna Realty Corp v Galang, May 13, 2004); these are also subject of judicial notice. Lets go to the decision of lower courts. These are not given judicial notice, while courts are required to take judicial notice of the decision of appellate collegiate courts, but not of decisions of coordinate courts not even the decisions or the facts involved in another case tried by the same court itself, unless the parties introduce the same in evidence if doing so is convenient. So if I am an RTC I cannot take judicial notice of the records of another RTC or an MTC. Now, in private practice, you will learn later on when you become lawyers that its possible that in one court you have more than one case between the same parties, but for different things and most of the time, these cases are interrelated. Now, heres a story that Ill tell you: Naa usa ka babayi, negosyante. Naay usa ka empleyado niya, ahente niya, karon, the empleyado wants to establish a business that would competes with the owner, katong iyahang employer, so what she does would be to destroy the reputation of the employer, preparatory for her making the same business, so ni-compete siya, kintahay, parehas sila namaligya silag chicharon, chicharon lang para sayon na example, and the employer is the best chicharon maker, but in order to destroy the reputation and get the business of that employer, I have to say that shes sick with cholera or tuberculosis, which of course is not true. Now, having heard that, she files a case against the employee for slander, kay gidaotan nimo akong reputation, so I file a case of slander against you. In the meantime while the case is going on, let us suppose, that the employer found out that the employee while she was still employed by the employer, have established a competing chicharon business, while receiving salary from the employer, the original chicharon maker. So two cases already, theres a case for slander and a case under Article 316 of the RPC, other forms of swindling, which tells you that, if you receive compensation for work that you did not do, you can be held liable for deceit. So there are two cases pending before the same court. Now, would the court in the first case for slander, be allowed to take judicial notice of the evidence and records of the other case to prove the motive of the accused in the second case; na gidaotan niya because she wants to establish a competing business, can a court take judicial notice? As a general rule NO; Judicial Knowledge is different from Judicial Notice. Theres a big difference between the two. So, a court cannot, thats the general rule, but in one case that Ive assigned to you the case of Espanol v Formoso: Courts are not authorized to take judicial notice of the contents of the records of other cases, even when such case have been tried and pending at the same court. However, a court may take judicial notice of the authenticity of its own records. Mura bitaw, theres a case pending before this court and then theres another case which is also pending in this court involving the same parties, for example. Now if I want to present in evidence a certain order of the court in one case for the other case, should we still prove that, that record

1 1 is authentic? Dili na, because that is already part of judicial

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo notice, its an official act, so, the courts may take judicial notice of the authenticity of their own records (Republic v CA, - permissible judicial notice of the records in the same court; also the case of Occidental Land Transportation Co v CA, March 19, 1993)

The Laws of Nature: The best example that I can give you to illustrate judicial notice of the laws of nature is a case that happened a long, long time ago, in 1857. Its a case made famous because of the lawyer involved, one of the best reputed lawyers in all of human history: Abraham Lincoln. Now, its public knowledge that Abraham Lincoln was a good prime authority even before he became a politician and became the president of the United States and issued the now infamous Gettysburg address and the emancipation proclamation, which freed the slaves from the bondage of slavery, thats the reason why he was killed. He was actually known to be a very good lawyer. So what happened in this case was, in Illinois there was three guys who were drinking and after they drank they got into a brawl with one another. So, according to accounts, as an act of revenge, one of those drinkers who were involved in the brawl had struck one of the other drinkers with a metal slug shot, its a form of a gun, hit him with it and killed him. And according to eyewitness accounts, the witness being 150 feet away from the scene of the crime, nay positive identification, that it was one of those drinkers, Armstrong, who really shot the other one and by virtue of that testimony, that was the evidence that hey presented to prove that e was guilty of homicide. Here comes, in the middle of the trial, Abraham Lincoln, whose number one piece of evidence is what is known as a farmers almanac (shows, among other things, the position of the moon at the given night in question.) So, for example the date is January 14, 18 something, something, whats the position of the moon at that time? Was the moon, full moon? Half moon? Or at a particular time has the moon already set? Does the moon set like the sun? According to this case it does, yes the moon sets. So, according to the witnesses testimony, he said that the moon was high in the sky, so despite the fact that he was 150 feet away, he could still see clearly and identify who shot the victim and he said it was Armstrong. So by virtue of the almanac, Lincoln presented it and said that at that particular hour at that particular night, the moon was not really high in the sky but the moon has already set. So what did the judge do? Right there and then, the judge ruled that the accused should be acquitted for lack of evidence. Why? Because the court took judicial notice of the laws of nature, not he almanac, but it was an inference that was taken by the use of the almanac, that its impossible for a witness to see clearly and identify the assailant from a distance of 150 feet under a setting moon. So, naga-set diay ang moon. And because of that Armstrong was acquitted. Isa pa gravity, part of the laws of nature. Its also part of the laws of nature that if get shot in the head youll die. That if you are going to be pricked, youll bleed. Thats laws of nature.

In one interesting case, the case of People v Meneses, March 26, 1998, the Supreme Court somehow applied the almanac case of Abraham Lincoln, in here the SC took judicial notice of the laws of nature such as in the instant case, that around 3 oclock in the morning during the Christmas season it is quite dark and that daylight comes rather late at this time of year. Nowhere in the description of the crime scene by witness SP03 Mendoza in his testimony was it established that there was light or illumination of any sort by which the witness could see. Now, the court took judicial notice, ngit-ngit pa man nang panahona na, kung walay suga around, its dark. So, that judicial notice of the laws of nature. Heres another weird case, Gabriel v CA, heres the testimony of the witness: Lawyer: At that particular time when the incidence took place, what happened? (ig-ana man na sa court diba? Youre not allowed to lead. All questions must be must be answerable by a specific fact, it should not be answerable by yes or no) Witness: When I stepped out of my house, I heard a loud crash of two vehicles colliding. Lawyer: Then after that what happened? Witness: Then two vehicles collided. Dont you find that testimony funny? I heard the sounds of collision and then I saw the collision. Isnt it that the sound is caused by the collision? Its not like thunder and lightning. That when lightning strikes you would expect that theres going to be thunder a little bit later. Its not like that. So nadungog niya na nag-bangga, pagka-human kay nagbangga. Diba? So its weird. So, what did the SC say: Courts take judicial notice of the laws of nature and if the testimony of the witness was true, that would rate as one of the greatest scientific revelation But since courts are obliged to take judicial notice of the laws of nature, the courts prefers to side with that notice. So, theres direct testimony, but the SC is saying we are overruling that testimony by applying judicial notice, but actually the court is not applying judicial notice. The court is applying what? Common sense. No need to apply judicial notice, just apply logic and common sense.

1 2 People v Pacabes, June 24, 1985, the SC took judicial notice of

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo the natural reticence of people to become witnesses, especially in a criminal case. Pag maka-dungog na ang mga Pilipino na naay criminal case, pag naay mahitabo na incident usisuron, kanang kusog maki-usyoso ba, mag-miron jud perminti, problem is pag ipa-testify naka, ay wala ko dili ko gusto, how many times did that happen already? I have a case where you know, in the beginning when I was still interviewing the witnesses for possible evidence in the case, they were so, so, you know, they volunteered to help out, invoking there own sense of justice, para sa hustisya attorney! Pag tawagon na nimo, kulba man oi di nalang ko. That happened and the SC took judicial notice of that in the case of Pacabes.

Ok, so that would take care of Section 1 for now. Lets go to Section 2: Judicial Notice; when discretionary.

Judicial notice here is discretionary, because by its very nature it depends wholly on the judgment of the court. So unless a matter falls within Section 1, no party can compel a judge to take judicial notice of such a fact, judicial notice under Section 2 therefore, is totally discretionary and you cannot compel it by mandamus, if you are going to remedies, diba? For Section 1, you can compel a court to take judicial notice if the court does not take judicial notice of matters falling within Section 1.

Saludo v American Express International, Inc., April 19, 2006, the court took judicial notice of the fact that the petitioner of this case, Saludo, is the duly-elected representative of Southern Leyte, and that can be taken judicial notice of the court because it is a matter of common knowledge in the community where the court sits. So its ok, it falls within the discretion of the court. You cannot force the court, and its wholly dependent upon the wisdom and judgment of the court.

Geographical Divisions:

There are a lot of cases that would deal with judicial notice of geographical divisions, example: People v Sevilleno, also the case of Chiongbian v Republic, where the court took judicial notice that Palamban, Cebu is actually classified as highly urbanized. All of the barangays of the City of Cebu, including Palamban are considered urban.

Banatao v Dabbay, September 23, 1918, where the court takes judicial notice rivers, they also take judicial notice of their nature, is it navigable in character, yes or no?

Now, thats a good case to explain the proper use of discretionary judicial notice. But a good case to explain an improper use of discretionary judicial notice is the case of State Prosecutors v Muro September 19, 1994, the judge in this case dismissed cases against Mrs. Imelda Marcos for violation of Central Bank Circular No. 960 Central Bank Foreign Exchange Restrictions. The dismissal was based solely on newspaper reports concerning the announcements of the president of the Philippines of the lifting of all foreign exchange restrictions as embodied in the said circulars. So when the judge heard about it he immediately dismissed the cases against Mrs. Marcos, because according to him the announcement of the president had the effect of repealing the CB Circular 960 and all foreign exchange restrictions. So everything has been lifted. And because, diba, if a law is passed and it is favorable to the accused, give it retroactive effect. That was the contention of the judge. But the question in this case is WON the judge was correct in taking discretionary judicial notice of the repeal of CB Circular 960 on

the basis of an announcement made by the president. According to the SC that is improper. Matters of judicial notice have 3 requisites: 1) Matter of common general knowledge; 2) It must be authoritatively settled; and 3) known to be within the limits of the jurisdiction of the court. Judicial notice is not equivalent to judicial knowledge. The mere personal knowledge of the judge is not the judicial knowledge of the court, and he is not authorized to make his individual knowledge of the fact, not generally or professionally know the basis of his action. Judicial notice cannot be taken of a statute before it becomes effective. Announcement palang gani wala pa nag take effect. A law not yet in force and hence still not in existence cannot be of common knowledge capable of unquestionable demonstration. So that is a very important case as far as I am concerned. It is one of the cases na naa sa transcriptions ni Dean Inigo; also in reviewers of San Beda, ADM, UP.

1 3 knowledge? Or were you just told that your birthday was

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo September 29, 1989? Ms. Centina: I was told sir. Sir Espejo: You were told. And therefore when I ask you about your age, youre actually talking to me and revealing to me a fact that is not of your own personal knowledge, and therefore that is hearsay! Thank you Miss Centina for your kind cooperation.

Lets go to Section 3. Judicial notice; when hearing necessary.

Nobody knows exactly, out of personal knowledge that we were born on a particular day, at a particular time, at a particular year. We were just told, thats hearsay. But its part of the exception to the hearsay rule on the ground that it actually refers to family tradition or reputation regarding pedigree, which we will go to later on with Rule 130. Now, also Ill give you a statement, assume that youre the judge and tell me, by examining me if you can take judicial notice of such fact. Ok? Look at me, I know its not a fairly good sight, but look at me. And then tell me if you can take judicial notice.

I want you to read the case of Land Bank v Wycoco. Here the matter in question is the valuation of property and how do you do it in the context of Section 3? Give the valuation of the property, you just take judicial notice? Remember, the court may take judicial notice, on its own initiative or if a party requests but there is that phrase that the court should allow the other party an opportunity to be heard. So thats judicial notice when hearing necessary. So what the court should do would be to announce its intention to take judicial notice of said particular fact and that the parties will argue whether the court should really take judicial notice of the fact. For me its weird, because there is already Section 2, diba? If I were the judge Ill just automatically take judicial notice for as long as I can justify based on the 3 requisites ( supra.) Not too may cases decided under Section 3.

Sir Espejo: I am 25 years old. Can you take judicial notice?

Or let us assume that your in court and then age of a particular party, whether the victim or the accused, is important, can you ask a court to take judicial notice of the age of that particular party and dispense with the need of presenting evidence as to that partys age? Can the court take judicial notice therefore of appearance to prove age?

Sir Espejo: Ok you look like your 12, so youre probably 12, Im taking judicial notice. Can the court do that? Answer: No.

Lets go to the next topic. Calls Ms. Centina. Sir Espejo: How old are you? Ms. Centina: 23 Sir Espejo: 23, when were you born? Ms. Centina: Sepember 29, 1989 Sir Espejo: Hapit na iya birthdaySo thats your birthday? Are you sure? How are you sure? Why are you sure, where you there when you were born? Can you remember that when you got out of your mothers womb and then cried your first uha in the world, that it was September 29, 1989 na at that time it was really September 29? Are you sure? Ms. Centina: yes Sir! Sir Espejo: How sure are you? Mao na akong pangutana, can you prove that as a fact, is it a matter of your persona;

Sir Espejo: Why? Number 1 reason is very, very simple. That when you examine the appearance of a person youre no longer taking judicial notice. What youre doing is actually Autoptic Proference. You are already examining a person as object evidence, right? So when you ask as court to look out how a person looks and then ask the court to take judicial notice, the court is no longer taking judicial notice the court is already examining; using its own senses to come up with a possible conclusion. So, courts cannot, therefore, take judicial notice of appearance, because it is repugnant, the process is repugnant to judicial notice and second, the court, cannot take judicial notice of age.

Now, why is age an issue? Diba age doesnt matter, when youre in love as Hayden Kho and Vicky Belo? Now, remember that in your criminal law, age can be appreciated in a variety of ways. For example, age can be appreciated as an

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo exempting circumstance, because a person below 9 years of age and a person over 9 but below 15 who acted without discernment are exempt from criminal liability. So 9-15 without discernment, exempt, below 9, whether or not, you know, acting with discernment, because you know, a child under 9 years of age is conclusively presumed to have no discernment or to have acted without discernment. Can you recall that case where the SC ruled that a childe under 9 years of age is incapable of contributory negligence (Karkow Marketing case?) Age can also be appreciated not only as an exempting circumstance but also as a mitigating circumstance. Diba? A persons criminal liability is mitigated if he committed the act below the age of 18. Ok? It can also be appreciated as an aggravating circumstance. If a crime is committed with the aid of persons under 15 years of age, the penalty is aggravated. Also, if the act be committed with insult or disregard of the respect due the offended party by reason of his age, the crime is also aggravated. Diba? And then finally, and more importantly age can be used as a qualifying circumstance. Qualifying circumstance, because age of the offended party is a qualifying circumstance in the crime of rape under RA 8353 for qualified if the victim is under 18 and the offender is a relative or if the victim is a child below 7 years old. Or as an element of the crime itself, like for example, sexual intercourse with an offended party who is under 12 years old, even if the victim consents, thats statutory rape. If you could recall that ws the conviction of former Congressman Romy Jalosjos. He didnt know that the person he was having intercourse with was below 12. Just imagine, how could you not know? Diba? God, you have a weird defense, if you ask me, kay nag consent man gud. Ok, so lets try to summarize. If the victim is below 18, rape is qualified only if the offender is a relative of the victim. Now what if, below 18, but above 12 and the he is not a relative? What is the crime committed? And then the victim consents, what is the crime committed? It is only seduction. Diba? Dili siya rape, its only seduction. If below 12 ang victim rape is committed even if the victim consents and in this situation age is an indispensible element of the offense. Ok? And then below 7, rape is always qualified and deservedly so. People who have sexual intercourse with children below seven years old deserve to die, you can quote me on that! (Japet: I AGREE!) Now, so it is important. And in relation to appearance in evidence, we are to remember that when the court examines the appearance of a person the court actually does not take judicial notice because it is conducting Autoptic Proference. The court is exercising its own senses. For example there is a woman, look to be mature already, can I exercise my sense of touch, sense of smell, my sense of sight, that is what the court is doing, the court is no longer taking judicial notice, the court is actually doing Autoptic Proference. Now, for example the victim is presented, ok, and the court is asked to take judicial notice that the age of the victim by the appearance is actually below 12. Rape of a childe below 12, can a court take judicial notice of that? Ok, answer, NO, ok. Whats the rule with respect to rape and age as evidence? In the case of People v Gorgonio Villarama Alias Baby, court decision in the rape of minors invariably state that in order to justify the imposition of death penalty, there must be independent evidence showing the age of the victim, testimonies of the victims age given by the prosecution witnesses or the lack of denial of the accused or even his admission thereof on the witness stand is not sufficient. Even if admitted, not sufficient. The court has held that to justify

the imposition of the death penalty for rape against a child below 7, the minority of the victim must be proved with equal certainty and clarity as the crime itself. The failure to sufficiently establish the victims age with factual certainty and beyond reasonable doubt is fatal and consequently bars conviction for rape in its qualified form. So its ok to convict rape only, but when you want o convict for qualified rape, the court cannot take judicial notice of age, it as to be clearly proven. So, now, if you are going to be prosecutors or private prosecutors in the future, how do you prove age either as an element of the crime or as a qualifying circumstance? That is answered by the case of People v Pruna, October 2002. 1. The best evidence to prove the age of the offended party is an original or a certified true copy of the certificate of life birth of such party; 2. In the absence of a birth certificate, similar authentic document such as baptismal certificate, school records, which show the date of the birth of the victim, would suffice to prove age; 3. If a certificate of live birth, or other authentic record is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victims mother, or a member of the family, either by affinity or consanguinity, who is qualified to testify on matters respecting pedigree, such as the exact age or date of birth of the offended party (pursuant to Sec 40, Rule 130, Rules of Court) shall be sufficient under the following circumstance: (Now, diri ka magkatalo sa circumstances, because testimony, when clear and credible, of the mother or other qualified family will not be used to prove a specific age, what do I mean? Because here) - If the victim is alleged to be below 3 years of age, (what is sought to be proved) you can only prove that she is less than 7 years old; (by way of testimony) - If the victim is alleged to be below 7 years of age, (what is sought to be proved) you can only prove that she is less than 12 years old; - If the victim is alleged to be below 12 years of age, (what is sought to be proved) you can only prove that she is less than 18 years old; 4. In the absence of a certificate of live birth, any other authentic document or the testimony of the victims mother or relatives concerning the victims age, the complainants testimony will suffice provided that it is expressly and clearly admitted by the accused (kung gi-admit wala tay mahimo) 5. It is the prosecution who has the burden of proving the age of the offended party, the failure of the accused to object to the testimonial evidence regarding age shall not be taken against him.

1 4 committed

So, it actually is quite funny noh, specially the example that I gave you ealier. You really do not know when you were born. So I admire youre classmate here in saying that shes sure that I was born September 29, 1989 I admire you, but legally speaking, thats incorrect. Nobody knows. But if I ask

you for example whats your gender? That one, you can kuan, always prove, because you can use Autoptic Proference. Diba its your own personal knowledge. But if I ask you about your date of birth, you dont know.

1 5 that bars a party from taking a position inconsistent with one

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo taken in an earlier proceeding. Riano also distinguishes between a judicial admission and an ordinary evidentiary admission. According to Riano, citing American Jurisprudence, an ordinary evidentiary admission is "merely a statement of assertion or concession made for some independent purpose," and it may be controverted or explained by the party who made it. "A judicial admission is conclusive, unless the court allows it to be withdrawn; ordinary evidentiary admissions, in contrast, may be controverted or explained by the party." An ordinary evidentiary admission is not really used by our Supreme Court, but lets give Dean Riano the benefit of the doubt. Now what are the sources of judicial admissions? According to the Supreme Court in Binarao v. Plus Builders: A party may make judicial admissions in: (a) the pleadings, (b) during the trial, either by verbal or written manifestations or stipulations, or (c) in other stages of the judicial proceeding We already know what an actionable document is. It is a document upon which the cause of action or defense is founded upon. Now how do you contest an actionable document? You can only do it under oath. We are familiar with the principle that a reply is an optional pleading, but you have to make a distinction when the reply is founded on an actionable document. Because in that situation it becomes mandatory for you to file a reply. Under oath, you have to deny the due execution and genuineness of the actionable document. What happens if you do not deny an actionable document under oath? It operates as an admission. That is also a judicial admission which may not be expressly made in a pleading but is made by reason of inaction. It has the effect of an automatic admission. The case at point there, both for Evidence and for Civil Procedure would be Casent Realty v. PhilBanking Corporation: Since respondent failed to file a Reply, in effect, respondent admitted the genuineness and due execution of said documents. This judicial admission should have been considered by the appellate court in resolving the demurrer to evidence. In Rule 8 Section 11 Allegations not specifically denied deemed admitted. Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath. Also in pre-trial, that is where the parties can make admission by themselves or through their lawyers. In Criminal procedure as well, the parties may enter into stipulation of facts. When we go later on to what is known as the Fule doctrine, which somehow qualifies the admissions made during pre-trial

Another question, which I think can fall under the category, hearsay, the answer noh, do you really know that your mother is your mother? That you are really related? Do you really know that your father is your father? You did not see yourself come out of your mothers womb. So, your knowledge about your family relations is actually hearsay, because its what you were told. Diba? Thats why I still do not discount the fact that, you know, I may be related to Piolo Pascual.

FRIDAY July 5, 2013 Let's go to Rule 129 Section 4 relating to Judicial Admissions. Section 4. Judicial admissions. An admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. It what is known as an admission in judicio. It is a delivery, clear and unequivocal statement by a party about a concrete fact within the party's knowledge. It must be deliberate because the admission will not bind the party making the supposed admission if it was made by mistake. It must be clear and unequivocal and must not admit of two or more interpretations. A judicial admission is a formal concession in the pleadings or stipulations by a party or counsel that is binding on the party making them. Although a judicial admission is not itself evidence, it has the effect of withdrawing a fact from contention. If an admission is made, what happens? It is no longer litigated upon. It no longer needs to be proven. Latin maxim applicable - Confessio facta in judicio omni probatione major est. Confession made in a trial is stronger than any proof. In the book of Riano, there is a distinction made between judicial admission and judicial estoppel. They are actually two different principles. When you talk about a judicial admission, by definition, it's made in the proceedings in the same case. Judicial admission results where a party makes a statement of fact which conclusively disproves a right of recovery or defense currently asserted. When you talk about judicial estoppel, it's related to what you've learned in Civil Procedure. Remember the principle that you are not allowed to change your theory for the first time on appeal. So matters not raised in the court of origin or the court a quo, there should be no derogation there. Because except for certain defenses, di na ka pwede magchange ug theory. You are already estopped. That is the concept of a judicial estoppel. It's a rule of justice based on sound policy

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo in a criminal case. By way of review, you make judicial admissions when you file your initiatory or responsive pleadings. You also make it during pre-trial, because precisely that is one of the objectives of pre-trial. In trial, it's also possible that a witness on the witness stand may admit. In fact, when a party's testimony is offered to prove certain facts, the opposing party may even stipulate as to the testimony. And in that situation, the testimony is dispensed with. It can also be done by motions or manifestations. Remember when we talked about pleadings, they are always written. A judicial admission can be made verbally or in writing. What is the effect of making a judicial admission? It withdraws a fact from contention. When it is properly made, clearly and unequivocally, it becomes conclusive upon the parties making them. In Santiago v. Delos Santos: "It is a familiar doctrine," according to Justice J.B.L. Reyes in Joe's Radio & Electrical Supply v. Alto Electronics Corp., "that an admission made in the pleadings cannot be controverted by the party making such admission and are conclusive as to him, and that all proofs submitted by him contrary thereto or inconsistent therewith, should be ignored, whether objection is interposed by the party or not ... A good case which deals with the interplay of the concept of judicial admission and the concept of intervention in Rule 19, kindly read the case of Alfelor v. Halasan. In this case, there were two wives of the deceased. The first wife wants to intervene in a settlement filed by the second wife. So ginaquestion sa second wife and personality sa first wife to intervene. But in doing so, the second wife admitted that the prospective intervenor is the first wife of the deceased. That's an admission. And therefore, for being one of possible heirs allowed, was allowed to intervene in the settlement case. (from the case) Likewise, when called to testify, Teresita admitted several times that she knew that her late husband had been previously married to another. To the Courts mind, this admission constitutes a "deliberate, clear and unequivocal" statement; made as it was in the course of judicial proceedings, such statement qualifies as a judicial admission. A party who judicially admits a fact cannot later challenge that fact as judicial admissions are a waiver of proof; production of evidence is dispensed with. A judicial admission also removes an admitted fact from the field of controversy. Consequently, an admission made in the pleadings cannot be controverted by the party making such admission and are conclusive as to such party, and all proofs to the contrary or inconsistent therewith should be ignored, whether objection is interposed by the party or not. The allegations, statements or admissions contained in a pleading are conclusive as against the pleader. A party cannot subsequently take a position contrary of or inconsistent with what was pleaded. One very important requisite regarding section 4 is that it

should be made case. So what happens if the admission was made not in the same case, but made in a different case? What is the effect? Isn't it that it is still a judicial admission? For the purpose of the case where the judicial admission is proposed to be used, it's not a judicial admission. It's considered and extrajudicial admission that must be proved as a fact like any other fact. That's the ruling of the Supreme Court in the case of Republic Glass Corporation v. Qua: To constitute judicial admission, the admission must be made in the same case in which it is offered. If made in another case or in another court, the fact of such admission must be proved as in the case of any other fact, although if made in a judicial proceeding it is entitled to greater weight. Again, in Civil Procedure, we learned about amendments. Rule 10 Section 8. Effect of amended pleadings. An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader, and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived. What happens if you had admissions in your pleading then you amended such pleading? What happens to the admission? It ceases to be a judicial admission. That is the hard and fast rule here. But they are still considered as extrajudicial admissions. Admissions which must be proven. The main difference of a judicial admission and an extrajudicial admission is that when we talk about a judicial admission, it no longer requires proof. But if you amend your pleading wherein you had made admissions there, those become extrajudicial admissions. Exceptions: found in Rule 129 section 4 itself. 1. If it is made through palpable mistake what is a synonym from palpable? Obvious. Obvious mistake. Also: noticeable, easily perceived and glaring, shows that there was really no admission. Obvious to all sides. Under the Old Rules, this was the only exception. 2. That no such admission was made - it can either mean two things. First, that the admission really had never been made at all. Simple as that. That's from jurisprudence: Palma Development Corporation v. Municipality of Malangas: Judicial admissions made by parties in the pleadings, in the course of the trial, or in other proceedings in the same case are conclusive. No further evidence is required to prove them. Moreover, they cannot be contradicted unless it is shown that they have been made through palpable mistake, or that they have not been made at all. To my mind, a specie of this exception comes from the case of Atilio v. CA: "For instance, if a party invokes an 'admission'

1 6 in the course of the proceedings in the same

by an adverse party, but cites the admission 'out of context', then the one making the admission may show that he made no 'such' admission, or that his admission was taken out of context or not in the sense in which the admission was made. Kindly read that case of Atilio. Also, if you want a more showbiz case to illustrate, read the case of Aguenza v. Metrobank. Why showbiz? Because the lawyer here perceived to have made a judicial admission was no less than Atty. Megastar Francis Pangilinan. You have the case of Heirs of Cunahap v. Heirs of Regana. This case was about the admissions of the parties during pretrial. What's the rule here? The admissions of parties made during pre-trial, and is already embodied in the pre-trial order, are binding and conclusive on them, unless there is a clear showing that the admission was made through palpable mistake. The petitioners are therefore estopped from claiming that the property occupied by them is not the property titled to the respondents.

1 7 under section 1 of the rule shall be approved by the court. So

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo it actually reinforced the Fule doctrine and the Rule 118. Section 4 of the 1985 rules regarding pre-trial agreement. King v. Pp, I assigned the case read it. In the case of Fule vs CA the SC did not take cognizance of the admission, in King there was such favor considered by the court. San Pedro vs. Lee May 28, 2004 tell you how to contradict a judicial admission. Rule 130. Sec. 1- Object as evidence. We are now talking one of a specific kind of evidence provided under the rules of court . Again by way of review , we call it real evidence because it has a reference to a res or a thing and it is the thing or object that is addressed to the senses of the court. Some author would call it autoptic proference a term coined by Wigmore himself. So when you talk about autoptic, auto and optic or looking to ones own eyes. Auto means self and optic pertains to the eyes. Word autopsy actually came from the same thing with autoptic. When an autoptic evidence is presented in a trial, then the fact finding body decides the weight of evidence that will be accorded to said thing. In this class of evidence, the ascertainment of controverted fact was made through demonstration involving the direct use of the senses of the deciding magistrate. In Calde vs CA June 27, 1994, the supreme court quoted wigmore that there are 3 sources from which the court may acquire knowledge for the making of its decision; circumstantial evidence, testimonial evidence and real evidence or autoptic proference. The SC in that case actually gives a Paras kind of lecture or explanation as to the difference of this kinds of evidence. According to Wigmore, autoptic proference describe a evidential datum that the decision makers would perceived with one of their 5 senses. The term is synonymous with the term evidential datum according to Wigmore. Review, when we were talking about the different classes of evidence we noted that object evidence is evidence of the highest order, Pp vs. (Lala Py) because a thing or real evidence speak more eloquently than a hundred witness. Also we discussed yesterday regarding appearance as evidence and then judicial notice and we noted that when the court is asked to take judicial notice of a fact that may be deduced from appearance of a person then the court is not making judicial notice but the court is exercising autoptic preference or examination. Let us talk about another author Moran, the only treaties like writing when it comes to remedial law in the Phil. According to him, there are three types of object evidence. 1. That consist of exhibition or production of the object inside the court room, which happens most of the time in crim cases when the police man or custodian of the evidence will bring for example the gun used to shoot the victim. Your talking about the object or the means to perpetrate the crime. 2. Another object evidence is that which consist of the inspection of the evidence outside the court room, by means of ocular inspection or even by means of mode of discovery like physical or mental examination e.g in an action for annulment by psychological incapacity. 3. That object evidence consist of experimentation. SO 3 ka klase ha na object evidence. Now for me, the best example for experimentation is the case of OJ Simpson. OJ

Of course, you are a party to a case, you appear through counsel right? Question, what if your counsel made admissions in your behalf when you are not around or despite not consulting you? What is the effect? When the admission made by counsel be binding upon the client? And What happens in that situation? Actually the stipulation of facts or admission made by the counsel on behalf of the client is binding upon the latter. Now lets go to how that affects admission made during pretrial in criminal cases. The so-called Fule doctrine or the case of Fule vs CA. under the 1985 Rules of Procedure in section 4 of Rule 118- Pre-trial agreement must be signed, no agreement or admissions entered into a pre-trial agreement may be used against the accused unless reduce into writing or signed by him and his counsel. So what is the effect if during a pre-trial in a criminal case the accused made admissions but the pre-trial order was not signed by the accused? Remember the rule in the case of Fule vs CA that the omission of the signature of the accused and his counsel as mandatorily required by the law rendered stipulations and admission of facts inadmissible in evidence. So what will happen? Let us suppose the prosecution tries to prove his case only by means of that admission? Diba if it is already admitted then why do I have to present any evidence? So the prosecution in this case of Fule relied on just a judicial admission but later on the Supreme Court said that it is inadmissible because it is not signed by the party or his counsel. That SC said that it is the fault of the prosecution, what it should have done is to present evidence to establish the elements of the crime instead of relying solely on the admission of the accused or the stipulation of facts. Without the said evidence independent of the admission, the guilt of the accused cannot be deemed established beyond reasonable doubt. How does the Fule doctrine embodied in the 2000 Rule of Procedure? It is now in Rule 118, Sec. 2 regarding pre-trial agreement- All agreements or admissions made or entered during a pre-trial conference shall be reduce ito writing and signed by the accused and counsel otherwise they cannot be used against the accused. The agreements referred into

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo accused of killing his wife, the gloves was presented as evidence, OJ had an alibi that he was home. WON the pair of bloody gloves belong to OJ Simpson, because if it belongs to him it proves his presence in the place of the crime. If the gloves would fit it would amount to self-incrimination, prosecution prevailed the gloves was worn. The gloves did not fit. So Lipay kayo si OJ Simpson, then it lead to the acquittal of OJ Simpson. It is demonstrative evidence, object evidence in the form of experimentation. In the phil., we have quit a lot of example regarding object evidence consists in experimentation. But in the Phil. Law, it is always subject for mention because we have that right against selfincrimination. Remember the doctrine here regarding the right against selfincrimination, the right only covers compulsion to confess but excludes purely mechanical acts . When you talk about confess when I am going to do something, Am I exercising my intelligence? because when I am exercising my intelligence that is covered by the right against selfincrimination but when I am performing a purely mechanical act then that it not covered, that is also the reason why youve seen in CSI when they get swabs to test your saliva to examine DNA. That is purely mechanical act. The Phil. Is already getting more and more CSi, because bag.o na pud atong approach when it comes to this type of object evidence, the best person to discuss this is my professor in DNA and forensic evidence Prof. Ng a doctor, lawyer and crime scene investigator. Pp v Malimit Nov. 14, 1996 the SC ruled that the right against self-incrimination excludes object evidence. In this case the accused wanted to exclude certain physical evidence found in his possession e.g cedula, i.d, keys and according to him the admission of these evidences violates his right against self-incrimination. The SC guaranteed under our constitution finds no application in this type of situation. According to justice Holmes, the right against selfincrimination is the prohibition of physical or moral compulsion to extort communication from the accused. It is simply a prohibition against legal process to extract from the accused lips and against his will admissions of his guilt. It does not apply where the evidence sought to be included is not an incriminating statement but and object evidence. So this is also the basis why it will not apply to DNA evidence. What happens lets say when a woman gets rape? If the woman is willing nay kanang ginatawag na rape kit. The pubic hair will be examined and if there is an alien pubic hair. In all probability there is cross implantation. It is possible that the pubic hair coming from the rapist kay nabilin sa babae and that can be used to test for DNA. Pp. v Yakar May 19, 2004 SC ruled the kernel of the right is not against all compulsion but only against testimonial compulsion. The right against selfincrimination is simply a prohibition against a legal process of extracting from the a ccused own lips the admission of his guilt, it does not apply where the evidence sought to be included is not testimonial incriminatory but part of the object evidence. Hence, a person may be compelled to submit to finger printing, photographing, paraffin, blood testing and DNA as there is no testimonial compulsion involved. According to Wigmore object evidence like any other evidence must pass the test of admissibility and relevancy, thus if the object is excluded by the law or the rules such as the fruit of the poisonous tree then the same shall not be admissible. Likewise autoptic proference must also be relevant and it is relevant only if it makes the fact more

probable than in the Object evidence itself does not establish the factum probandum and there is no factum probandum provable solely by object evidence, meaning your cause of action or final proposition cannot be proved simply by presenting object evidence. Do you agree with me? What if the gun has finger prints ? Will that not prove the guilt? Of course not. If for example there is a picture of me stabbing somebody? Not automatically because there has to be a process known as authentication. It has to be authenticated or the photographer has to be presented. The photographer must testify has to how he got the picture. Kinahanglan na ingon-ana. Remember while it is the weakest among the classes of evidence, diba the hierarchy is object, documentary then testimonial among testimonial naa pa jud siyay kaugalingon na hierarchy. Now, even if pinakaweak ang testimonial it is still very important because no object evidence or no documentary evidence can ever be presented without without testimonial evidence. Object evidence and documentary evidence do not present themselves, as such it must be sponsored by the witness. You cannot put a gun in the witness stand and testify. So object evidence must be presented together with or must be supported with propositions and in the ultimate analysis it must be proven to have a logical relationship with the ultimate fact in issue. 2 cases, Pp v Reyes Sept 2, 1994 and Pp v Agulay Sept. 26, 2008. Pp. v Reyes- marked money is object evidence because that is the consideration for the purchase of the drugs, and that is relevant to the fact in issue in a buy-bust operation (consummation of the sale of illegal drugs. Same thing in the case of Pp. v Agulay payment of the marked-money and delivery of the illegal drugs must be proven in prosecution of cases in dangerous drugs act by a buy-bust operation. Interesting case on how crafty lawyer can be, what are the evidences presented in court when you prosecute based on a buy-bust operation? Diba ang markedmoney ug the dangerous drugs itself. In the case of Pp. v William june 15, 1992 the evidence that was presented would be the drugs (marijuana), of course the prosecution cannot prove itself if the marijuana is nor presented as evidence. What did the counsel for the accused did? That marijuana should not be admitted in evidence because it is beyond the commerce of men.

1 8 absence of such autoptic proference.

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo THURSDAY July 11, 2013 Part 1 of 2 Section 2. Documentary evidence. Documents as evidence consist of writing or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents. (n) So based on the definition of Documentary Evidence, there are actually 2 types of Documentary Evidence: 1. Writings 2. Any material containing letters, words, numbers, figures, symbols or other modes of written expression However to qualify as documentary evidence it has to be offered as proof of their contents. If the writing or material is not offered as proof of its contents but as proof of something else e.g. the execution of that material or its existence, then that is no longer documentary but object evidence. If there is no issue as to what the document contains, then the evidence qualifies as object evidence. May evidence be submitted and admitted as both object and documentary evidence? Yes. Under the principle of multiple admissibility of evidence a single piece of evidence may be admitted as documentary and object evidence. Note: Secure a copy of rules on DNA and Electronic Evidence (to be discussed as we go on) Just remember however that with respect to e-documents it says in rule 3 section 1 of the rule that whenever a rule of evidence refers to a term writing, record, instrument, document, memorandum or any other form of writing such term shall be deemed to include an e-document as defined in the rules of court. Therefore any reference to the term document under the Rules of Court including those under Rule 130 shall be deemed to include e-document. Let us now go to the Admissibility of Documentary Evidence. First like any other evidence, documentary evidence must be relevant and *** by any other evidence. Same with any other evidence. There is that basic requirement of relevancy and materiality rule. Second it is always subject to the exclusionary rule. What are the basic requisites for the admissibility of documentary evidence? 1. It must be relevant 2. because documentary evidence will not present itself, it has to be sponsored by a witness, therefore it must go through the process of authenticatikon or it must be authenticated by a competent witness 3. Document must be formally offered in evidence to be admissible. Because when we go to the proper rule, in Rule 132 it says there that the court shall not evidence that has not been formally offered Let us now go to the Best Evidence Rule:

1 9 consider any

Section 3. Original document must be produced ; exceptions. When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: (a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and (d) When the original is a public record in the custody of a public officer or is recorded in a public office. (2a) First, if the fact in issue in the case relates to the contents of the document, you cannot prove that fact unless you present the original of the document itself. That is the best evidence rule. But if it is of course subject to the exceptions under subsections a, b, c and d of Section 3. It is a common misconception due to the phraseology of Section 3 that it relates to the hierarchy of evidence and that it relates to the superiority of one evidence over the other. But no, that is not what the best evidence rule is all about. More accurately it is that original document rule for the primary evidence rule which dispenses as a general rule with substitutional or secondary proof. That is why the best evidence rule is actually a misnomer. The rule is not intended to mean that weaker evidence will be substituted by stronger evidence. It simply requires the presentation of original documents. Question is why we have to present the original, when in fact technology allows us to make legible copies? Very Simple - Because the law does not trust us! Why? *Sir Sake relates the cutting class incident. E.g. He cuts class, for him to be able to present something to the prefect of discipline, he photocopies his old medical certificate and an excuse letter made by his mom earlier when he was really sick, changed the date, photocopied and passed it off as a true copy of the original. If a high school student can do that, what more people who has a greater predisposition to do the same? The underlying purpose of the best evidence rule is the prevention of fraud or mistake in the *** of the contents of a writing. If you are in possession of evidence, why would you submit a mere photocopy? Why not submit the original? Because you are withholding the original, the presumption arises that they photocopy may not be the same as the original. But then the purpose again is the prevention of fraud. Read the case of: Lee v. People, October 19, 2004 and Consolidated Bank v. Motor Works, July29, 2005.

In the following cases, the court was able to make a scholarly discussion of the evolution of the best evidence rule. Why has it found its way into our rules of court? What are the basic requisites for the application of the best evidence rule: 1. The subject matter of the case must involve a document 2. The subject of inquiry is the content of the document itself. Stated otherwise the rule applies only when the purpose is to establish the terms of the writing. When the evidence introduced concerns an external fact of the writing, like existence, execution or delivery without the reference to the terms of the document, then the best evidence rule cannot be invoked. When the rule is not applicable, in the case of Lee v. People, October 19, 2004, the SC ruled that the rule does not apply to: 1. Proof of facts collateral to the issues such as nature, appearance, condition of physical objects you are actually talking about object evidence 2. Evidence relating to a matter which does not come from the foundation of the cause of action or? evidence? 3. When a party uses a document to prove the existence of an intended fact as to which the writing was merely collated or incidental. The last one tells that the rule shall not apply when the document is merely collateral in issue. It is not really material to the case or the issue in the case. So the document is involved but merely collaterally in issue, the best evidence rule does not apply. Again, when is it considered collateral in issue? It is collateral in issue when the purpose of producing the document is not to establish the terms of the document but to show the condition, existence or delivery of a paper. Also read the case of CIR v. Angtex, March 31, 2005. We are talking about what would be the best evidence when it comes to investigating tax cases. So kindly look at that case. Like any other rule, the best evidence rule can be waived. When is it waived? It is waived when the party fails to object. When the requisites of the application of the best evidence rule are present Meaning subject matter involves a document, and the subject of inquiry are the contents of the document, the party who wants to present it, must present the original document and not merely a copy of the same. NO other evidence can be substituted for the original. If that is the general rule, when do we apply exceptions in Rule 130 Section 3, subsections a to d? Very simply, you apply the exceptions when the party can find legal justification for the unavailability of the original. It must be legally justified for you to present mere secondary/substitutionary evidence in lieu of the original document. Hence, the best evidence rule is that the original must be presented as a general rule unless the party can justify the unavailability in the manner provided in the rules of court. If the party can justify, the original can be dispensed with by the presentation of the copy.

2 0 How do you justify? This is where you have to lay down the
Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo basis of admission of the copy in lieu of the original. Let us go to the different justifications of the unavailability of the original. (a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and (d) When the original is a public record in the custody of a public officer or is recorded in a public office. (2a) First, the loss, destruction and the unavailability of the original under Subsection (a) actually have 3 sub exceptions loss destruction and unavailability. Do the rules of court define Loss? NO, actually it is found in the New Civil Code which states that a thing is lost when it perishes, goes out of commerce or disappears in such a way that its existence is unknown or cannot be recovered. There are no other provisions of law that defines loss, but that is how the law defines law. For our case, you can apply that to documents,. When the document is perishes, goes out of commerce, then that is considered lost under the first exception. Now Destruction, does the law define destruction? No, there is no definition as to destruction, so let us check jurisprudence to know when the thing is considered destroyed. Destruction is the obliteration of the document such as by tearing, shredding or burning it. It can also include acts of alteration that would render the contents of document unintelligible for the purposes of offering it in evidence. (This is an actual case) Naay isa ka tawo nag bilin ug will. Ang usa ka anak wala naapil, sa iyang kasuko ni kuha siya ug pentelpen ug gikurisan ang will. Fortunately the notary public kept a copy, so the copy was the one used for probate. What about unavailability? It can be legal or physical unavailability. When you talk about the physical unavailability, it refers to cases where the original consists of inscriptions on immovable objects such as monuments or gravestones. Legal unavailability refer to instances when the document is beyond the territorial jurisdiction of the court. Let us discuss first Physical unavailability, and for this purpose let me tell you a principle not all documents are in paper and not all paper with content are documents. E.g. Money it is paper but is it documentary evidence? Are there terms stated in the paperbill? None. What about not all documents are on paper? E.g. gravestones. If the subject of inquiry can be found in the lapida, then that is the documentary evidence even if it is not on paper the name of the deceased his birthdate and the date of his death. Can we use the lapida as evidence? Circumstantially yes, though the best evidence would be the death certificate. Now that principle that not all documents are on paper, reminds me of a case where A lent B money and the B did not pay, so what did A do is that he kept on asking B to pay. Sa pagkulit ni A, nasuko si B, so B got a ***

and wrote I promise to pay A the amount of so and so on a certain date.. and the court said that is a legal tender because there was a promise to pay. So the court held that the filing of a collection case is premature because the period within which B is to pay has not yet lapsed as written on the ***. What about legal unavailability? It simply means that the certain document is out of the coercive jurisdiction of the court. The document exists but it is in a place where the court cannot compel the individual to present it in court. E.g. the original document is in U.S., so can the Philippine court subpoena? No. So when it is lost, destroyed or unavailable, rule 130 section 5 applies: Section 5. When original document is unavailable . When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. (4a) Production of secondary evidence requires compliance of the ff: 1. The offeror msut prove the existence of the original before presenting a copy. You need to prove to the satisfaction of the court that the original exists or was executed. 2. The offeror must show the cause of its unavailability whether it was lost, destroyed or otherwise unavailable and 3. Finally the offeror must show that the unavailability was without bad faith on his part. That is the case of Citibank v. ***, September 23, 2003. One thing that you have to remember based on jurisprudence is that when there are several originals to a document, e.g. a deed of sale. When a deed is notarized, there are at least 4 originals, 1 copy for the buyer, 1 copy for the seller, 1 copy for the notarial file and one more copy for submission to the court. So what happens if they need a copy, they may photocopy it for their own file. What happens if the copy of the seller, buyer and the notary were destroyed, so because of that they would present a photocopy that they have , can that copy be used as a substitute of the original? The answer is not yet, because all originals must be accounted for before secondary evidence may be presented. You cannot dispense with the original because an original copy still exists. That is the case of Dela Cruz v. CA, October 21, 1998 and subsequent cases decided by the SC. That is the rule of thumb here, all originals must be accounted for. What will happen if there is really no more original? You accounted for all the originals and all were destroyed or otherwise unavailable for presentation in the case, what will happen? Then it will be now the duty of the party who seeks to introduce secondary evidence to prove the former existence of the document. What he needs to do is as follows: 1. 2. 3. 4. Prove Prove Prove Prove the existence its execution its loss its contents.

2 1 Can you recall of any situation under the law, where there is a
Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo recital of the contents of a document in some other authentic document? Can you? Can you recall? Naa ba, naa kaya? If you ask me Im reminded of what weve learned in civil procedures; When you plead an actionable document, diba pwede nimo i-attach or you can actually lay down the contents of that actionable document in your pleading itself. So its a recital of the contents of an actionable document in the pleading. Pwede diba? But Im not quite sure if this is what the law say, but talking about a recital, thats a recital of the contents of a document in some other authentic document. And, finally by the testimony of witnesses; thats the time when parole evidence may be, testimonial evidence may be introduced in the absence, of course, of the copy of the original or the recital of its contents.

So, (in the course of the trial, evidence) shall be presented, all duplicates and counterparts must be accounted for and no excuse for the non-production of the original document itself can be regarded as established until all its parts are unavailable.

Lets go to the second one, when the original is in the custody or under the control of the person against whom the evidence is offered (adverse party). The mere fact that the original document is in the custody or under the control of the adverse party does not ipso facto authorize the introduction of secondary evidence to prove its contents, the party who seeks to present secondary evidence must lay the basis or the foundation for its introduction, subject to the following requisites: 1) That the original Exists; 2) That the said document is in the custody or under the control of the adverse party; 3) That the proponent of secondary evidence has given the adverse party reasonable notice to produce the original document; and 4) That the adverse party fails to produce the original document despite reasonable notice. Now, were talking her about; I have a photocopy, Im going to use it as evidence, but the problem is, the original is in the possession and under the control f the adverse party. So, naturally he wont give me evidence that Im going to use, and therefore, what I need to do is to apply this and these requisites if I want the original to be produced. I must give him an opportunity to present or bring with him the original document; produce it in court, after reasonable notice. It is only if the adverse party will not produce the original document in court that I may now resort to the presentation of secondary or substitution evidence. Ok? So. Tagaan og tsansa, kung dili siya muku-an, dili niya buhaton, then thats the only time, Ill present maybe a photocopy. So, what happens when all those requisites are already present? Then, you may now apply section 5 as if the original document is not

The offeror may now prove the contents of the document in the following order, that is under Section 5, rule 130: by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated.

Part 2 of 2

available, diba? That would be the effect. So, you can now present substitution.

2 2 resign ko. Why? Because of politics, I hate politics, dili jud ko,
Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo thats the worst thing for me, politics. You are just doing you job pulitikahun pa jud ka sa uban, because you know, they seem to be affected with the reforms you are making, sounds familiar? Yes, kinda familiar. Anyway, so we issue receipts, kung mukolekta mi, ug kana bitaw bayad sa utang, kay diba part of the benefits of membership, kay maka-utang ka sa cooperative. And then you have you have to pay amortizations. So everytime we collect, we issue receipts in triplicate. First copy going to the, katong ngabayad; second copy will go to the, unsay tawag ana? Will go to accounting; third copy will be kept sa booklet so that it will be sorted out later on, checked later on. Now what we realized is that it was not really a foolproof thing, these three originals, because carbon copy sayon lang kayo dayaon. Im not giving you tips on how, kanang mangawat bitaw, Im not but this is how they did it: So mo-collect ko karon sa imuha, ako tong collector, mu-collect ko sa imuha, syempre para dili magduda ang collector you have to put in his copy the correct amount, correct amount, and then diba the presumption is pag imuhang isuwat na mag reflect na sa second and third copies because of the carbon paper. So what our collectors do, para makapangawat lang jud, mabulsa nila ilang gi-kolekta, instead na carbon ang ibutang sa first, after sa first copy ang ibutang karton, its a piece of cardboard, so that whatever they write in the first copy, it will not be transferred to the second and third copies. So paghatag karon sa resibo, lakaw, and then didto na nila sulatan ang second copy, so that it can be reflected in the third one. So, as far as the record of the cooperative is concerned ang gibayad ing-ani lang na amount, gamay kayo, but if you confirm, if you do borrower confirmation, dili mag-jive. Kay kuntahay nibayad P9,000 ang imong ibutang P900 or any other amount depende sa panginahanglan sa collector. So what did I do? I had to, I had to examine that, I had to investigate that and I found out, that was a rampant practice, that we are losing hundreds of thousands in terms of receivables because of that. So, I had to go to the borrower and then, pangutan-on nako: pila na imong nabayad? Patan-aw sa imong resibo. I have to compare, diba? Kay walay naga-abot sa amoa, gagmay kayo ang naga-abot sa amo. So whats that? Thats Estafa through falsification. I have to file a lot of cases. You just imagine unsa ang daya, because of that original, original thing, sayon lang gihapon dayaon, ang carbon paper sayon lang kayo dayaon, ok? So, going back no; its just something you need to look out for, because you may be employed as a corporate lawyer, that may be one of your first jobs when you pass the BAR examinations. So, I investigated and found out that these collectors earn more than I did, because of their diskarte.

Now, Im just wondering with the Judicial affidavit rule (JAR) how this would come into play. I have, for example, with me only photocopies, thats all I have, because all the originals are in the custody and under he control of the adverse party. Remember that cannot, when you go by the JAR, you cannot testify if you have not previously executed a judicial affidavit. And during the presentation of the witness via his judicial affidavit, he need to be able to identify the originals. In fact, courts in Davao City are actually quite strict in requiring that, always when you testify, based on the judicial affidavit, all originals must be present. Now problem, what if naa gyud kay original document that was never turned over to you, it is in the control and custody of the adverse party. This is how you attack it, you must give them proof. But I dont know, actually, in practice how its going to fit. Remember ha, a submission of the complaint or filing the complaint, filing of an answer and then suppose walay reply. Then what happens? It is duty of the plaintiff to move ex parte that the case be set for pre-trial, ok? And under the JAR, all judicial affidavits must be in, 5 days before the pre-trial. So, when do you cause the production of those original documents? You now have to apply, what? A mode of Discovery: Production and Inspection of documents, thats the only way to make sense with it. because otherwise, you will not be allowed to present, kay wala kay original, diba? So, just food for thought for you, because eventually, we will be talking about JAR in the context of Rule 132. Because it actually changes everything, If you ask me, It changes everything they have now the JAR which, to my mind is evidentiary in purpose, it changes the presentation of evidence, but it doesnt say which part of the rules on evidence are amended by the JAR by implication. So we are actually at a cross roads here. We are learning the old rules but we are to expect that by next year, perhaps, we have the new rules on civil procedures and we have new rules on evidence. Arent you scared? When you take the BAR unsa kaya ang mga pangutana? Ako. Im scared also, why? As a professor I have to be prepared. I have to preempt jurisprudence here, just so you will be guided accordingly. If I dont prepare on that then I would be remiss on my duties as professor. Kahilakon na jud ko ana. But anyway we will try to cover that whenever we could.

Ok, so lets go to the next one: When the original consists of numerous accounts secondary evidence may be presented if: 1) The original consists numerous accounts and other documents. And a good example of this would be books of accounts, receipts and similar documents. Receipts, pinakagwapo nga kuan; diba ang mga resibo issued in triplicate. Especially when I was in, when I was employed as counsel, the chief legal officer of King Cooperative, have you heard of that? I worked there for like two years. The first year or so as legal officer, meaning employed, fulltime and then the second year as legal retainer. They took me back after I resigned. So, re-

Anyway, so the original consist of numerous accounts or documents, those documents cannot be examined in court without great loss of time and the facts sought to be established from them is only the general result of the whole. Imagine a case where your documentary evidence mga resibo ing-ani ka baga, I had a case like that; had ha had, no longer, kay gi-undangan nako. Ing-ani ka baga ang evidence that the judge had the occasion to apply Rule 32, whats Rule 32? Trial by Commissioner. But because of the voluminous number of documents that we needed to present, because were talking here about a case for estafa. Were saying that this group spent money that they had no authority to spend, ok? And

then when they spent it, actually it was for there own personal benefit. They were the old officers of a ceratn organization and the my clients are the new officers, so theyre going after the money that was misappropriated, mao nay nahitabo. So, ing-ani kabaga, pagkita sa judge, lets do it trial by commissioner, lets appoint CPAs so that they will be the ones to look at that, audit it. trial by commissioner went on for about 4 years, on the 5 th year, they do not come up with a unanimous report, which required the judge to, ok lets just do regular trial. That was the time I withdrew as counsel. Because youre wasting my time. I wish I could tell that to the judge, that you just wasted 4 years of my life, diba? Nag trial by commissioner na ta, mubalik pa ta sa regular rules? And I had 10 witnesses, they wanted me to make judicial affidavits for ten witnesses, submit it within, you know, how many days, it cannot be done. So, I told my clients, I dont think were going anywhere here, so I withdrew. They allowed me to withdraw from the case, why? Private lawyer ka, youre a private prosecutor, you are required to follow JAR, if you are a prosecutor, theres a loose application of the rule. But come next year, beginning of next year prosecutors are already required to submit judicial affidavits. So that was strategy to help the client. So that in the meantime they dont have to submit judicial affidavits. Strategy, dont tell anybody that it came from me. But it was purely strategy. Kay kung akoy pabuhaton, wala, madugay ang kaso, because I have to make judicial affidavit for 10 witnesses. Fiscal no need, because ang prosecutor doesnt have to comply with JAR right now, ok. So why is it that the law allow this noh, kaning, the presentation of secondary evidence, rather than ask you to present voluminous documents, simple: Judicial economy and expediency. Para paspas, para dili na kahinanglan. But that is actually a very dangerous proposition, what if its very, very important (these original documents)? So you just come up with a summary or something that will summarize all of this documents and then thats it? is that what the law is saying? NO. because according to the SC in the case of Atlas Consolidated Mining and Development Corporation v. CIR, June 8 2007, there are actually guidelines. There are guidelines that govern the presentation of voluminous documents and long accounts pursuant to Sec. 3 (c), Rule 130 of the Rules of Court. So the party who desires to present as evidence voluminous evidence must after motion and approval of the court, present: a) a summary contained among others a chronological listing of the numbers, dates and amounts covered by the invoices and receipts and the amounts paid, then b) a certification of an independent CPA attesting to the correctness of the contents of the summary after making an examination, evaluation and audit of the voluminous receipts and invoices. It is enough that the receipts, invoices, vouchers or other documents covering the said amounts to be introduced in evidence must be pre marked by the party concerned and submitted to the court in order to be made accessible to the adverse party who desires to check and verify the correctness of the summary and CPA certification. So read that case, because thats the only case that I can tell you that applies (c) and there, Makita nimo kung unsa ang requirements of the law, requirements by the supreme court.

2 3 states: When the original of the document is in the custody of

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo a public officer or is recorded in a public office, its contents may be proved by certified copy issued by the public officer in custody thereof. That is now the procedure noh.

Next: Original document is in public record and the governing rule for this exception is found on Rule 130, section 7 and it states When the original is a public record in the custody of a public officer or is recorded in a public office. Section 7. Evidence admissible when original document is a public record. When the original of document is in the custody of public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. That is now the procedure, everything that you need from a public office that keeps records, you will be given certified true copies and not original copies. For example, a birth certificate. Will you be given a copy of your birth certificate since 19kopong2x? No. I do keep an original copy of my own birth certificate (1977) and you know what dili dawaton by government offices, why? Because they require NSOcertified true copies, dapat coming from NSO; thats what the law says. Remember also that there is such a principle called irremovability of public records. In Section 26, Rule 132: Section 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) Thus, where the orig docu is a public record, the secondary evidence allowed is a certified true copy issued by the public officer in custody thereof. So, remember that! Birth cert., maybe even Land titles, register of deeds, certificates of marriage. In practice, I had the occasion to be introduced to a document known as CENOMA (Cert of No marriage). I have a friend who works for the city govt, who is actually married. And when he attempted to get a CENOMA, he was issued a CENOMA and that he has no previous marriage and that he was single. Actually, there was a discrepancy only. Impt case Citibank vs Sabeniano (Oct.12,2006) This actually summarizes about Best evidence rule. If you have time, read this case. Now in this case there was a discussion here about the impeachment of Pres. Estrada. I remember the principle involved, it was said that Estrada was deemed to have vacated and the evidence used was the so-called Angara diary or the diary of Sen. Angara w/c testifies to the state of mind of Pres. Estrada na gikapoy na siya, he wants to retire, he wants to leave but he never used the word resigned. But that was used by the SC to interpret Estradas state of mind and that he was abandoning his post. And that legitimize the ascent of Pres. Arroyo.

Next, original document is a public record. The governing rule for this exception can be found in Rule 130, Sec. 7 and it

But the bad thing about it is that the SC did not use the physical of that diary but only a copy thereof that was published in the court. The SC used a secondary evidence rather than the orig copy. So the question is, how about the best evidence rule that says to use orig copy and why was it allowed by the court to use a newspaper article rather than the actual Angara diary. According to SC: "Production of the original may be dispensed with, in the trial court's discretion, whenever in the case in hand the opponent does not bona fide dispute the contents of the document and no other useful purpose will be served by requiring production. Precisely, youre being questioned so there was an objection. Because the SC tries to justify something that they know is not reasonable. Remember, why the SC can get away with that? You being a law student who is more on theory rather than actual practice why is it sometimes we can read the courts decision run counter to law or rules. Because the SC is the final court; no more further courts. Right now, I believe at least the jurisdictions are doing well. Before, when I was a law student, oh my God! wala diri wala didto; New doctrines were created; watak kaayo. For example, doctrine of last clear chance. Do you know that as early as 1987 the SC has already declared that doctrine does not apply anymore in Phil jurisdiction. A year after they came up w/ a decision applying such doctrine. Right now, its kinda improving. The Sereno SC is producing a lot of good decisions. So, read the cases I assigned you. Take note of: Section 8. Party who calls for document not bound to offer it . A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence. Pending your study of Rule of Electronic Evidence, take note of Rule 4 thereof. Impt. Sections are 1 and 2. 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. Section 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 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

2 4 (b) in the circumstances it would be unjust or inequitable to

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo admit the copy in lieu of the original. Lets go to Section 4 as our last topic for tonight. Rule 130 Section 4. Original of document. (a) The original of the document is one the contents of which are the subject of inquiry. (b) 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. (c) 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. The original of the document is one the contents of which are the subject of inquiry. As layman, we refer to the first one where copies are merely reproduced. However, based on the rules of court that is not the case. Under which, there are instances where subsequent documents/copies are regarded as original. Example, newspaper. Newspaper reporter who types story. It is published later on and will be circulated; hence newspaper of general circulation. For that purpose, what is the original? The one typed by the author or the articles published and circulated? It depends on the fact and issue. If the issue itself is the subject of inquiry the original is the one prepared or typed by the author. But if the issue is to be established is whether it is libelous or not then the published story as appearing in the published newspaper. 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. Best ex. Again the example I gave you re: receipts. Triplicate receipts are considered originals. All docs or sheets are considered originals. 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. Best Ex for this? Who is an accountant here? Fabian Please enlighten the class about the so-called books of original entry. What is that? Ani nalang, what is a journal? What is a ledger? A journal- first thing you right on your transactions, etc.

Ledger- it where you compile everything, your journals. Is it correct to assume that whatever there is in the ledger, it came first from the journal? Yes. So that is the best example here, ledger and journal. Requisites: 1. an entry is repeated in the regular course of business 2. one being copied from another at or near the time of the transaction

2 5 relevant to their contractual obligations. That is the rule of

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo

For review: BQ 1994, 1997 and 2001. Maybe I can send you some of my digital copies.

FRIDAY July 12, 2013 -NO CLASS-

THURSDAY July 18, 2013 Part 1 of 2 We are going now to the Parol Evidence Rule: Section 9. Evidence of written agreements. When the terms of an agreement 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 of such terms other than the contents of the written agreement. However, a party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading: (a) An intrinsic ambiguity, mistake or imperfection in the written agreement; (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. The term "agreement" includes wills. (7a) Imagine the situation where there are parties to a contract, prior to their meeting of the minds in order to constitute a contract, what happened was that they discussed the terms, and then finally when they reduced into writing what they have agreed upon, then that written agreement would be the repository of all the terms and conditions that may be

integration, or the waiver after integration. IN other words when the parties already reduced their agreement into writing, any condition, stipulation or term not included in the writing is deemed waived after integration and that is actually what the Parol Evidence Rule is all about. The rule simply says that if you want to prove the terms of an agreement, you are bound with what is written in the agreement and you are not allowed to present parol evidence, evidence aliunde or extrinsic evidence to modify the terms of the agreement. Therefore as a general rule, if the subject of inquiry are terms of such agreement, there can be no evidence of such terms other than the agreement itself. Now why do we call it the parol evidence rule, because parol, oral, evidence aliunde or extrinsic evidence cannot be admitted to modify, explain or add to the terms of the agreement already written. Because Parol evidence rule is a rule of integration it gives primacy upon whatever the contractual relations would be and considers again as a sole repository of the terms and conditions, it is integrated there. When the agreement has been already reduced into writing, no extrinsic evidence may be presented to supplement, reduce, or modify the terms. Why the law does not allow us to present extrinsic evidence, parol or oral evidence to prove the terms of a written agreement? That is because the law does not trust us! If we are allowed to go against the mandate of the parol evidence rule, then there would be no permanence into contracts. Why would we enter into written agreements when it can be easily modified? It is actually based on the doctrine of hierarchy of events. If you can recall, documentary evidence prevails over parol or oral evidence because testimonial evidence is prone to fabrication and theres actually a little room for choice between testimonial and documentary evidence.generally documentary prevails over testamentary evidence. That is the primary basis of the parol evidence rule. The second basis of parol evidence rule, is again the onset of waiver after integration. When a jural act is embodied in a single document, all other utterances of the parties on that topic are legally immaterial for the purpose of determining what are the terms of the act. Whatever is not included there is deemed to have been waived. Third, it is based on the principle of comparative accuracy of written documents over all others which are only based on fleeting memory. So it is written, so it shall be done. Imagine at the time when the Ten Commandments was written on a stone. That is considered the sole repository. It is better to rely on whatever that is written than to rely on anything that rest only on a fleeting memory. Fourth it is based on the belief that parol evidence is most susceptible to fabrication. Everything is written already, then you say something that would modify what is written, what is the proof that what you would testify is really true and not merely fabricated? It is a sound policy of the law to give stability to written agreements and to remove the temptation of perjury. To what does the Parol evidence rule apply? In order for the rule to apply there must be an agreement. As understood, an agreement is a contract where there is a meeting of the minds between the parties, and such was already reduced writing, thus already covered by the rule. It may apply to any agreement. How do we differentiate parol evidence rule from the statute of frauds? The parol evidence apply to any kind of agreement while the statute of frauds apply only to those enumerated under Art. 1403 of the NCC. Parol evidence practically apply to any agreement including wills. Peculiarly, a will is not an agreement. Therefore when the law says that the term agreement includes wills, a will by legal fiction may be considered as an agreement for the limited purpose of the application of the Parol evidence Rule. Why are wills included in the application of the Parol Evidence Rule? That is because the dangers sought to be avoided by requiring the application of the Parol Evidence Rule also exist in the making of wills, and much more that the testator can no longer object to attempts to vary his testamentary will. The will is also

considered as a repository of the testamentary intent of the testator. That is the case of Azuela v. CA, April 12, 2006. Furthermore, the parol evidence rule in order to apply does not require that the agreement be embodied in a public document or to be in any particular form or that it be signed by both parties. That is the ruling in Inciong v. CA June 26, 1996. The SC said that the Parol Evidence Rule does not specify that the agreement be in a public document what is important is that the agreement be reduced in writing, as the rule is in fact founded in the long standing principle that what is written is much more reliable than that which rely on the mere fleeting memory only. For parol evidence rule to apply the document need not be in a particular form or signed by both parties. When we talk about parol evidence, I often relate it with oral evidence. That is because, what would vary the terms of a written agreement? That would be most likely be oral or testimonial evidence in court. Now let us go to the exceptions. Every rule is not absolute. Section 9 of Rule 130 provides: However, a party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading: (a) An intrinsic ambiguity, mistake or imperfection in the written agreement; (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. First we have, (a) An intrinsic ambiguity, mistake or imperfection in the written agreement. In order to make use of this exception, the party who wants to present extrinsic evidence, must put in issue in his pleading either intrinsic ambiguity,mistake or imperfection in the written agreement. There are actually two types of ambiguity: 1. Patent or Extrinsic ambiguity 2. Latent or Intrinsic ambiguity What is patent ambiguity? That is the ambiguity which is apparent in the face of the document to anyone using it. Would that be curable by parol evidence? Traditionally under American jurisprudence for extrinsic ambiguities, parol evidence is admissible to prove only what has been written, not what was intended by the parties to be reduced in writing. In Philippine Law, it is clear that a patent ambiguity cannot be cured by Parol Evidence. E.g. In a will, I give to Maja by way of legacy something. What is that something are we talking about? So it is really, no description exists, because something can be anything and therefore it is a patent ambiguity, therefore you cannot present parol evidence to prove that something means a car or something else. The case at pt here is Murillo v. CA, May 21, 1992 where the SC ruled that Parol Evidence is not admissible to identify the property where the description is so vague as to amount to no description at all. Parol Evidence is not permitted to supply a description but only to apply a description. The situation is different when there is a mere imperfect description. A mere

2 6 imperfect description does not vitiate. That is applicable when

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo there is a mere mistaken description. What about Latent or intrinsic ambiguity. It is where the wording on the face of the document is intelligible but may apply equally to two different things or subject matters. As where a legacy is given to my niece Maja and the testator is shown to have to nieces by the name of Maja.by way of exception a latent or intrinsic ambiguity may be explained by Parol Evidence for as the ambiguity is brought about by circumstances extraneous to the document, the document must be explained from those circumstances. Case at pt is Palanca v. Fred Wilson and Company, 37 Phil 506, here the SC held that the word capacity is susceptible to different interpretations. What about mistake? Problem with mistake is that a lot of provisions of the law mentions of a mistake. But what kind of mistake are we talking about here? There is of course mistake as a ground for reformation of a contract, BPI v. Fidelity Insurance, October 19, 1927, the SC had the initial occasion what are the requisites of mistake to justify reformation: 1. it should be a mistake of fact 2. mistake be proved by clear and convincing evidence 3. mistake be common to the parties. The rule is that the mistake must be mutual. IN order to determine what is mistake from the pt of view of the Parol Evidence Rule as an exception from the same, read the case of Magellan Manufacturing v. CA, August 22, 1991. The Court held that Mistake contemplated as exception to the Parol Evidence Rule is one that is a mistake of fact mutual to the parties. The revised rules on evidence that the exception of the Parol Evidence Rule must be brought in issue in the pleadings such that if not raised in the complaint or answer, a party cannot later on be permitted to introduce rule evidence. In other words the exceptions to the Parol Evidence Rule is subject to a waiver if there is failure to bring it to issue. What about imperfection? It simply means that the writing is incomplete, and does not express the whole agreement of the parties, failure of the parties to lay down all the terms and conditions of the agreement. Next, The failure of the written agreement to express the true intent and agreement of the parties thereto; The SC held that this exception apply when the written contract is so ambiguous or obscure in terms that the contractual intention of the parties cannot be understood from mere reading of the instrument. In that case, extrinsic evidence of the facts and circumstances surrounding the contract may be received to enable the court to make a proper interpretation of the instrument. Where the instrument is clear without any ambiguity, mistake, imperfection, obscurity or doubt on the terms thereof, this exception does not apply. A reading of the jurisprudence will reveal that the second exception may be related to the first exception. Now can you recall of instances where the written agreement as it appears on paper does not express the true agreement between the parties? E.g. equitable mortgage. In the case of an equitable mortgage, the intention of the parties was never to enter into a contract of sale but that of a loan with mortgage with the intention of a property to be a collateral. That is one example where the written agreement does not express the real agreement of the parties. If you raise that the written agreement provides for

sale but the intention was really that of a loan, then you may present parol evidence. IF the document does not express the true intention of the parties, the remedy is reformation. Note that you cannot apply reformation to wills, because a will is an agreement only for the purpose of the Parol Evidence Rule. The third exception is (c) The validity of the written agreement. Here the party seeks to present oral evidence that the contract is invalid or it is of suspect invalidity. He must raise the invalidity of the contract in his pleading. E.g. A for example sells his land to B for 1m, after meeting of the minds, they immediately drafted a deed of absolute sale and signed. The deed provides that the 1m has already been received, however it turns out that B did not yet pay and did not come back to pay the 1m despite the fact that A already turned over the TCT and the deed. Without paying B caused the transfer of the title to his name. Is the contract valid? If you look at the contract under Art. 1409, here there is no consideration to speak of, but the contract says that the object was already paid. So as an exception to the Parol Evidence Rule, you may raise as an issue, the validity of the written agreement and then later on in court you may present parol or extrinsic evidence. Another is forgery which affects the validity of an agreement. Aloria v. Clemente, Feb. 28, 2006, rememeber that forgery can be considered as an exception to the Parol Evidence Rule under subsection C. but the SC said that forgery may not be presumed but must be proved by clear and convincing evidence by the one who alleges the forgery. What about fraud? If fraud was employed when the parties entered into the contract, would that cause the contract to become void ab initio? E.g. consent of the party was obtained thru fraud? That is only voidable. Bo v. Cantiveros, September 29, 1919, evidence to establish fraud is permitted as an exception to the Parol Evidence Rule and under Section 25 of the Code of Civil Procedure reinforced under Woodhouse v. Halili, July 31, 1953.

2 7 upon maturity. So were actually talking about novation here.

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo When you talk about novation, its actually one of the causes for the extinguishment of obligations, because the old obligation is novated by the fact that the parties have changed their juridical relations. And therefore, the original agreement no longer stands, so thats what you need to remember here in this exception. The parties cannot be bound by the rule of waiver after integration for agreements that they have not agreed upon, or agreements they have yet to agree upon in the future. Because, its possible that it would happen. The parties could not possibly look into the future and see that maybe a month from now we will change our minds so we will put it there already, you cant. So, what is guaranteed however under section 9, the exceptions thereto would be the admissibility of the evidence never its credibility. Now let me try to illustrate that by giving example again: I entered into a contract with B that for the amount of P5,000 I will already own his car, an old Toyota Corolla/Vios. That is, of course, an agreement that is not quite fair, because there is no commutativeness in the agreement. Lets try to suppose the reverse, that tinuod gyud na gibaligya niya na barato sa ako ang iyang Auto and the we reduced it into writing, why would he want to sell to me his car for a very, very low price? Because let us suppose he was my client he cannot pay me my attorneys fees that he owes me. Suppose later on the client will prove or attempt to prove by parol/extrinsic evidence that the consideration is not P5,000 but it was actually P500,000. Wouldnt that be unfair to me? But is it admissible under the exception to section 9? YES, its admissible because, he will suppose that it was actually an oral agreement entered into after the execution of the written agreement. Its admissible and he may even say that there is a novation of the original agreement, which changed the consideration already. So, thats an objective novation. So, is it admissible in evidence if he proves that there was a subsequent oral agreement entered into later on? YES, its admissible in fact the law does not say that if it is admissible that the testimony is credible. Its one thing to say that evidence is admissible, but will it be believed by the court? Its a different story. Now, what do we need to remember here, because somehow this changes the ball game. We had before quite a steadfast rule in saying that you are not allowed to change, vary, modify, add or explain to the terms of a written agreement. But now were talking about somewhat a very easy exception, you dont have to prove any intrinsic ambiguity, mistake, imperfection or failure of parties to integrate in their agreement all terms that they have intended. So, now its as easy as saying: actually after we wrote that contract, we entered into a different one. So its a very loose exception. So we need to figure out what agreements are actually allowed to modify, explain or add to the terms of a written agreement. Lets look at this: what would be covered therefore by the parol evidence rule as a general rule only prior and contemporaneous agreements which are deemed to have been merged in the writing, conformably to the integration of the agreement rule or the parol evidence rule. So anything before or at the same time as the written agreement those are deemed waived you are not allowed to prove that or to change that by parol or extrinsic evidence. Now, what therefore would be part of the exceptions:

Part 2 of 2 Sir talks about fuel to mileage ratio. What is considered a warranty? For me to be considered liable for damages? In your law on sales. It depends. If I was an expert in cars and I sell it that can be considered a warranty but if I am not an expert it cannot be considered a warranty. Next, the existence of other terms agreed to by the parties or their successors and interest after the execution of the written agreement. Now, what kind of agreements are these? The exemption simply says that there are other terms, if we have other agreements after we have entered into the written agreement that is actually an exemption to the parole evidence rule in more ways than one. Later on we will learn. So these are subsequent agreements; subsequent oral agreements are not covered by, or considered as exceptions to the parole evidence rule. Now, for example, B borrowed money from A, for this B signed a promissory note in favor of A. The maturity date was fixed on July 3, 1995. When July 3 came B did not pay, thus A sues B for payment on the due account. His defense is that the amount is not yet due, because after the execution of the promissory note, A agreed to extend the period of payment to December 3, 1995. But B claimed that this agreement was reached by them only verbally so the question is: can you actually prove that by parol evidence that there was such an extension? Yes, here B can actually testify to the court on the subsequent oral agreement that he had made with A, the extension resulted in the novation of their previously agreed

1) Subsequent agreements, notwithstanding that such agreements have the effect of adding to, changing, modifying or even altogether abrogating the contract of the parties as evidence by the agreement. 2) Collateral agreements (Oral and Contemporaneous). These are agreements that are normally entered into and contemporaneous with the writing, which can be considered as separate and distinct agreements or side agreements or in legal contemplation: Contemporaneous oral agreements. 3) All other agreements whether prior and contemporaneous, subsequent or collateral, if the issue revolves around fraud and false representation, since they are incidental to the execution only and not the integration of the terms (Woodhouse v Halili) 4) All other agreements, whether prior and contemporaneous, subsequent or collateral, when third parties who are not privy thereto are involved. So, therefore if you want to produce or to present parol or extrinsic evidence to add, change, modify the terms of the written agreement, you can actually do so, if your claim is theres a third party involved. A third party who is not a party to the agreement (Lechugas v CA, August 6, 1986) Now lets go back to contemporaneous oral agreements or those collateral agreements. Remember, when talking about these agreements, there has to be that requisite that they are separate and distinct from the written agreement. If the subject matter of the written agreement is different from that of the contemporaneous or oral agreement, then the contemporaneous oral agreement is a separate and distinct agreement and therefore provable by parol evidence rule. Our contract, for example Im the principal youre the contractor and our agreement would be for carpentry work and I want you to make a tool shed. So youre supposed to construct the toolshed in my house. But, Ill tell the panday, I also need shelves inside my house. So the agreement is build me a toolshed at my backyard and by the way build me also shelves. So contemporaneous with the written agreement which was for building construction of a toolshed. Can proof therefore be introduced that in addition to the tool shed I also wanted to have shelves built. Pwede, its a contemporaneous oral agreement the subject is considered separate and distinct from the subject matter of the original agreement, the written agreement which is for the building of a toolshed. Now, what happens if the two agreements refer to the same subject matter? Lets go to the same example: a contemporaneous oral agreement with the same subject matter as the building of the toolshed, maybe it would refer to the quality of the toolshed. So, instead of getting a toolshed worth P50,000, Im asking him to build a toolshed worth P100,000. So, subject matter is the same, but the question is: in order for it to be proved by parol evidence or to be susceptible to extrinsic or parol evidence it must be separable from the original agreement. Now, will that be separable? The original price is in writing P50,000 and now based on the same subject matter the consideration is different, P100,00 already. Separable or not? Its not separable, what were referring to something that is written, this is the specification and then later on you say that we have the same subject matter but different specification, thats not separable from

2 8 the original document therefore if it is not separable then it

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo cannot be provable by parol evidence. But if it is, then its provable by parol evidence. Take note however that there is an agreement whether it is prior, contemporaneous, subsequent and so on that can never be proven by parol evidence and that is an express trust concerning deed of property. Now, in jurisprudence there are examples of collateral agreements which can be proved by parol evidence. For example an agreement of reconveyance, it is a distinct agreement separate from the sale itself although the two agreements are usually contained in one and the same document (Reano v Kilayko) Inducements and representations which led to the execution of an agreement,they may be proven by parol evidence, because they do not vary the terms of the agreement. it occurs during the policitation stage, preparatory stage of the contract. Parol evidence is admissible to prove an independent and collateral agreement which constitutes and inducement to the making of the sale or part of the consideration thereof. For example, let me tell you a story based on real life. Heres a lawyer who teaches law as a lawschool in Davao City. He was approached by a different lawschool to teach law there also. The agreement was simply, ok this is your salary and all and then the inducement is if you sign with us not only will you be able to choose your own schedule you will also be given this and that and this and that. Whats in writing? Only the licit employment agreement but the collateral inducements that led that lawyer to sign are they included? So the question is: can they be proved, those inducements, can they be proved the independent collateral inducements? They can be proved by parol evidence. A condition precedent not stipulated in writing is provable by oral evidence, reason? Before the happening of the condition there is no written agreement yet to which the parol evidence rule will apply. Example: conditional sale. Whats the usual condition for a deed of conditional sale, which suspends the efficacy of the obligation to give. Usually full payment of the purchase price, so for example, until there is full payment of the purchase price will there be deed of absolute sale to talk about? NO. therefore even if that condition precedent is not stipulated in writing, it is still provable by parol or oral evidence. And many more. Important thing to remember: Given what you already know about the parol evidence rule and what I presume you remember regarding the best evidence rule. How doyou distinguish between the two? Favorite Bar Examination question, not necessarily in that form i.e. distinguishing between the parol evidence rule and the best evidence rule. But sometimes the Bar Examination question may test your knowledge of the differences between the parol evidence rule and the best evidence rule. Question: A reference to a certain document and what is asked is whether or not certain evidence is admissible or not. So put into application whatever it is that you know about

parol evidence rule and the best evidence rule, because these refer to documentary evidence. So as aba mas tama na iapply nimo? parol evidence rule or the best evidence rule or both? Now lets try to look at the distinctions: Under the parol evidence rule what is the issue? Subject of inquiry? Contents of a written document or contents of a document or a writing not necessarily an agreement. What about the parol evidence rule? Whats the subject of inquiry here? No issue as to contents but, its against an attempt to vary, precisely what the agreement contains. Its and the terms and conditions, so there is no issue with respect o the contents of the writing.

2 9 testimony of whatever is written. Because there would be

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo a possibility that both parole and best evidence will be applied at the same time. Theres a possibility. In fact, if a case calls for substitutionary proof, I will object to that based on best evidence rule. Diba? Dili man siya original of the docu; its not that best evidence. Then if theres testimony to explain, add, modify of that substitutionary documentary evidence w/c consists of , I can object to that based on parole evidence rule. So pwede nimo iapply ang duha. But are you trying to stop the same thing? Youre not. When I objected based on best evidence, I objected on the presentation of photocopy. When I objected based on parole evidence, I objected to extrinsic evidence sought to be introduced to modify, add to the written agreement. See the beauty? Mind you, they have a triplet or a cousin, w/c is STATUTE OF FRAUDS (a1403[2]) PAROLE FRAUDS EVIDENCE DISTINGUISHED FROM STATUTE OF

But a good question will try to make you remember the distinctions and apply the distinctions. For example, you have reference to a document and the question is whether said evidence is admissible or not, so now you will call the application of the parole and best evidence rule. Because this refers to documentary evidence, so asa mas tama i-apply nimo? Best evidence? Parole evidence? Or both? Now, let us try to look at the distinctions. 1. Under the best evidence rule, what is the issue? Whats the subject of inquiry? The contents of a written document or contents of a document or a writing, not necessarily a document. What about the parole evidence rule? Whats the subject of inquiry? Unsa man? Contents ba? NO! Its against an attempt to vary precisely the agreement contains; the terms and conditions. Theres no issue with respect to the contents. 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). Youre talking about the ability of a party to introduce substitutionary and secondary proof rather than the original; you want an inferior type of evidencesecondary or substitutionary. 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) (and to be bookish about it) 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)

Statute of frauds talks about unenforceability. What do you mean by enforceability? Ma prove ba nimo or dili? Can you enforce it without writing or memorandum of a written contract; thats the Statute of frauds. The Statute of Frauds requires that certain agreements be proved by writing or by some note or memorandum thereof in order to be enforceable. On the other hand, the Parole Evidence Rule has nothing to do with the manner of proving agreements. Its object is to prohibit alteration, change, modification, variation or contradiction of the terms of a written agreement by parol evidence. Big difference between the 2, although somehow the effect is the same. The effect is you cannot prove it through testimony in court but the aims of these rules are actually different. But remember, it can be waived Santiago vs CA (aug.21, 1997). Another case, by way of example, lets supposed theres a supervisory employee to a security agency. The supervisory employee entered into a contract of employment with the security agency. This is the deal. Youre daily wage is actually 400/day. Thats already 12k/month. But as a favor to the ee, in your contract, will just put there 200php as a tax shelter. When you talk about tax shelter, you make it appear on paper that this is your base salary or wage, when in fact its above; para gamay lang ang tax bayaran and dako ang take home pay. Things went sour and the supervisory employee was illegally dismissed; w/o notice, hearing and cause. What will the ee do? He will now go to NLRC, before the labor arbiter, fill out a form claiming for backwages and separation pay in lieu of reinstatement. Ibutang sa complaint sheet, how much is the monthly salary? Ibutang sa ee, 400/day because thats reality. Now, during the proceedings, the position paper of er says that the 400pesos salary has no basis in document because as stated in the employment contract its only 200 and its against the parole evidence rule to prove otherwise. If youre the labor arbiter, will you grant the objection? Will you grant the position paper? Will you deny the information? Sige daw? Why will you not apply parole evidence rule? The answer is very simple. The only thing that I want you to

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To my mind, these distinctions appear that in your books, but to me the main distinction is.. what? its directed against (dili jud madunggan ang word ) If you look at the best evidence rule, what does it bar? Presentation of documentary evidence primarily in substitution of an original documentary evidence. What about parole evidence, what does it bar? More often than not, it bars testimonial or oral evidence. In best evidence, its paper for paper because its possible to prove by testimony. What about in parole evidence? Mostly, its

remember is that when you are a tribunal or an agency, you may disregard the parole evidence rule; theyre not strictly bound. And the labor arbiters and NLRC are not strictly bound by the rules. To my mind, its not correct because among all the specialized agencies (quasi-judicial agencies in the Phil gov) you have to remember that the NLRC, DOLE, they are the one who employs a lot of agreement. Employment contract should not be covered by rules of integration, it should. Remember labstan? Bawal ang side agreements. Thats how technical it is. What else? You have CBA w/c is very impt between ER and collective bargaining unit. Hence, rules of evidence are disregarded in labor tribunals. In labor practice, youre not even required to present originals. How many cases I handled that theres no notice to ee about his disciplinary action w/c may result to suspension or termination; there must be an opportunity to be heard. Walay notices. And then theres a position paper by the opponent na nay notice. Ingon pud ako client na wala man jud, igo lang ko gipahawa that day. So, there was a forged notice. Then, if labor tribunals not bound by the rules, pwede mag gamit ug spurious documents. Right now the focus is more on the change of the judicial system. Why daghan delays? Kasi of the ability of the lawyers. Under the best evidence rule, daghan dapat buhaton, you can do that but it takes time. Right now, with the changes in the judicial system with the judicial affidavit. Under said rule, if you want party to testify on a document, the original must be attached in the affidavit. What if nasa control sa opposing? What you should do based on what you learned? Diba reasonable opportunity to produce it? Pero the problem is, sa new rule, 5 days lang to call for production and inspection of document lisud mangitag panahon! My suggestion is, before implementing the life-changing rules, try to see as well how will it affect rules of evidence. Dapat daghan pa i-consider kay malibog ang students and teachers. Tapos na explain nila ang concern na akong gi raise? Wala. It can only be solved over time not by life changing decisions. Parole evidence rule will not apply if one of the parties is NOT a party/privy to the document/written docu in question. Parole evidence rule does not apply, and may not properly be invoked by either party to the litigation against the other, where at least one of the parties to the suit is not a party or privy of a party to the written instrument in question and does not base a claim on the instrument or assert a right originating in the instrument of the relation established thereby. When the agreement is presented to prove existence not as documentary but as real evidence imong presentation. Lets supposed, you want to prove the existence of docu, can you actually present parole evidence? Yes! Impt cases: 1. Qua Chee Gan vs Law Union and Rock Insurace: Dec 17, 1955 Market developers vs IAC: sept. 8, 1989 Impt because you can actually prove novation through parole evidence. I usually ask this case on

3 0 my exams pero dili nani mugawas kay gi ingon nako.

Evidence TSN 1st Exam Coverage Based on the Lectures of Atty. Zachael Espejo For your consumption nalang ni. Chismis time about Glee! FRIDAY July 19, 2013 -NO CLASS-

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