Evidence is the means, sanctioned by these rules, of ascertaining

in a judicial proceeding the truth respecting a matter of fact

May the civil service, in conducting investigation, admit

documents as evidence even if not authenticated?

Evidence (Wigmore) Any knowable fact or group of facts, not a

legal or a logical principle, and considered with a view to its being
offered before a legal tribunal for the purpose of producing a
persuasion, on the part of the tribunal, as to the truth of a
proposition, not of law or logic, on which the determination of the
tribunal is to be asked.

Yes. Civil service in conducting investigation need not follow

technical rules of evidence and may admit documents even if not
authenticated

Axioms of Wigmore on the Admissibility of Evidence

1. None but facts having rational, probative value are admissible
(Axiom of Relevancy)
2. All facts having rational, probative value are admissible, unless
specifically excluded by the rules (Axiom of Competency).

No. In naturalization case, evidence need not be formally submitted

for it to be admissible in evidence

Concept
It must not be excluded by law
It seeks judicial truth not actual truth

Yes. In Labor cases, the NLRC (in case of appeal) may admit
evidence not formally offered in the Labor Arbiter. Such does not
constitute grave abuse of discretion

Purpose:
To ascertain the truth respecting a matter of fact in a judicial
proceeding

May the NLRC validly dispense with the best evidence rule in
its discretion?

Principle of Uniformity
Sec. 2. Rules of evidence shall be the same in all courts and in all
trials and hearing
Why should the rules of evidence be applied uniformly?
So that evidence will also be interpreted uniformly in different
courts
Actual truth vs. Legal truth
Thing not proven in court
Arrived at even before
analyzing evidence

Thing proven in court

Arrived at after analyzing
evidence

Must evidence be formally submitted for it to be admissible in a

naturalization case?

May the NLRC, in its appellate jurisdiction, admit evidence not

formally offered before the Labor Arbiter?

Yes. In Labor cases, the NLRC may not apply the best evidence rule
when a photocopied document is sufficient for examination
Is personal hearing required in trying labor cases?
No. In a Labor case, mere submission of pleadings or position
papers is sufficient to reach a decision
Evidence required of administrative bodies Substantial
evidence
Proof vs. Evidence
Probative effect of evidence

Means by which a fact is proved

In general, where does the rules of evidence apply?

Who has the exclusive right to create or amend rules of

evidence? May it be vested?

In general, the rules of evidence is applied only in judicial

proceedings.

The SC has such right. The SC has no right to vest such vested
right.

Rules shall not apply to:

1. Election cases
2. Land registration
3. Cadastral
4. Naturalization
5. Insolvency proceedings
6. Other cases which the law may provide

Requisites for admissibility of evidence (axioms of evidence):

1. Relevance
2. Not excluded by the rules (Competence)

Should the rules of evidence be strictly adhered in a proceeding

before the Mayors office?
No. Being an administrative proceeding, the rules of evidence need
not be strictly adhered to in a proceeding before the municipal
Mayor.
Are admin bodies bound by the technical rules of evidence?
No. Administrative bodies are not bound by technical rules of
evidence

Evidence in Crim law vs. Evidence in Civil law

Quantum of evidence proof
Quantum of evidence
beyond reasonable doubt
preponderance of evidence
Presumed innocent until proven No presumption as to innocence
guilty
Effect of compromise
Effect of compromise no
admission of guilt
admission
Instances when presentation of evidence may be dispensed with:
1. When there is no question of fact in the case (Thus, any
party may file a motion for judgment on the pleadings)
2. When presentation of evidence is dispensed with by the
parties (by their agreement)
3. When the plaintiff fails to tender an issue
4. When the court takes judicial notice (evidence is already
within the knowledge of the court)

Test for relevance of evidence

1. It is a test of logic
2. There must be a relation between the fact in issue and
offered evidence
Relevance on credibility of witness
1. Witness must be credible, such credulity is relevant to his
testimony
2. Credibility is tested thru cross-examination
May the prosecution win on basis that the defense failed to
present a strong defense against their allegation?
No. This is based on the principle that the prosecution must win on
strength of evidence and not on the weakness of defense.
Factum probandum fact (or proposition) to be established
Factum probans material evidencing the fact (or proposition) to
be established
Eg. In a hacking case with a bolo, the factum probandum is
homicide; while, the factum probans are the elements of homicide,
to wit:
1. That a person is killed
2. That the accused killed him without any justifying circumstances
3. That the accused had the intention to kill, which is presumed
4. That the killing was not attended by any of the qualifying
circumstances of murder, or by that of parricide or infanticide
Falsus in Uno, Falsus in Omnibus (false in one, false in all)
If the testimony of a witness on a material issue is willfully false
and given with an intention to deceive, the jury may disregard all
the witness testimony.
Requisites for Falsus in uno, falsus in omnibus to apply:
1.
2.
3.

Witness must be shown to have willfully falsified the truth

Existence of prior positive statement on a material point
A subsequent testimony counters or is contrary to such
prior statement

Eg. In a homicide case of hacking with a bolo, if the witness says

that he was in the incident when, in fact, he was actually not, all his
other testimonies as a witness may be disregarded under the
principle of falsus in uno falsus in omnibus.
Alibi; Frame-up; Self-defense
Alibi-crumbles when effected by positive identification of witness
Alibi is a negative evidence
What must be established in order that alibi may prosper?
1.
2.

Presence of accused in another place at the time of

commission of offense
Physical impossibility for him to be at the scene

Frame-up and self-defense like alibi are treated similarly

Why is frame-up inherently weak?
Principle of regularity of duties of public officers
It is easily made or concocted

Why is self-defense also a weak defense?

Affirmative defense
Also easily concocted
What are the common reasons for delay in reporting of crime?
Self-preservation
Self-denial (in rape cases)
Positive vs. Negative Evidence
When witness affirms that
certain facts exist
Not a weak form of evidence
Has greater probative value
May not be corroborated
In case of contradictions, given
greater weight

When witness states that facts

does not exist
Weak form of evidence
Lesser probative value than
affirmation
Needs to be corroborated
In case of contradictions, not
given greater weight

Irrelevant not logical evidence

Incompetent evidence excluded by law
Inadmissible evidence which does not satisfy the requisites for
admissibility
Immaterial evidence which proves other facts not in issue
Admissibility vs. Credibility
Court is bound to receive (if
admissible)
Does not guaranty credibility

Worthy of belief (if credible)

How is a childs testimony treated in proceedings?

Youthfulness badge of truth
Minor inconsistensies of child
Strengthens his testimony
Exclusionary rule evidence which are product of laws or rules,
thus excluded and not admitted
Extrinsic policy evidence may not be admitted due to other
things or considerations which must be upheld that is outside the
case.
Admissibility vs. Probative value
Whether evidence is considered Whether evidence proves issue
Depends on relevance and
Depends on tendency to
competence
convince and persuade
Multiple Evidence Admissibility
Evidence may be admissible for 2 or more purposes (Eg. to prove
credibility of witness and to prove issue)
It may also be admissible for a purpose but not for other purposes
*Conditional Evidence Admissibility
Certain evidence is presented initially but it does not yet prove a
fact in issue but it may be admitted subject to the condition that its
relevance would be proved in the future. (Eg. In a case of double
sale wherein a later buyer is presented before the earlier buyers in
proving the existence of double sale)

Curative Admissibility
Court will allow inadmissible evidence to be able to counter a
previously offered evidence of an opponent which is inadmissible.
It exists when despite objection of a party, the court still admitted an
inadmissible evidence; thus, there must be an objection. (Eg. In a
case of reckless imprudence of a driver, if the prosecution is
allowed to prove the past negligence of the driver, the driver should
be allowed to show evidence of his diligence)
Corroborative evidence supplements that already given to
strengthen it
Cumulative evidence evidence of the same kind or character
Circumstantial evidence (in contrast to direct) indirectly
proves the fact in issue by making inference from other established
facts

What are the cases when evidence obtained in violation of AntiWiretapping Law is inadmissible?
In criminal, civil and administrative proceedings
What are the cases when evidence obtained in violation of AntiWiretapping Law may be admissible?
When it is sui generis in other cases such as in impeachment and
legislative investigation
What are the forms of the evidence excluded by the AntiWiretapping Law?
1.
2.
3.
4.

Recordings
Its substances, and
Its meaning
It also extends to the transcriptions

Positive evidence evidence affirms facts

Negative evidence evidence states that facts does not exist
Prima facie evidence (presumptive) evidence that establishes a
fact but not conclusive of its existence or supports a judgment until
contradictory evidence is produced in its rebuttal.
Conclusive evidence preponderant evidence that may not be
disputed and must be accepted by a court as a definitive proof of a
fact
Equiponderance (equipoise) of evidence rule it states that
where the evidence of the parties is evenly balanced, the balance of
the scale of justice shall be tilted in favor of the defendant.
Collateral matters
In general, it is a matter not relevant to the fact sought to be
established, thus, not admissible:
Exception: if it tends to establish the probability or improbability of
the fact (Eg. in proving credibility of witness)
Give some examples of collateral matter.
Fingermark, footprint, and bat left in a homicide case or the
resemblance of a child to his father in a case for legal support

In general, when is the recorded message under AntiWiretapping Law illegally obtained?
1.
2.

When obtained without consent of the parties, and

When what is recorded is a private communication

Requisites before a photo or video recording may be used as

evidence under the Anti-Photo and Video Voyeurism Act:
1.
2.
3.

The person who obtained the photo or video is a peace

officer
With written order of the court to use the record
The photo or video recording shall be used as evidence in
the civil or criminal prosecution of the crime of photo or
video voyeurism

In what instances is the photo or video recording, obtained in

violation of the requirement for admissibility under the AntiPhoto and Video Voyeurism Act, not admissible?
1.
2.
3.
4.

Judicial
Quasi-judicial
Legislative, or
Administrative hearing or investigation

Who are the persons liable under the anti-wiretapping law?

Anti-Wiretapping Law
Evidence obtained in violation of the above shall not be
admissible in: (1) judicial, (2) quasi-judicial, (3)
legislative, and (4) administrative hearing or investigation
Mere existence of such communication is inadmissible
Does not include recording of open and public
communications
Extends to recording of personal conversations
Does not include tape recording during altercation because
such is not private communication
Does not include listening to telephone extension lines for
such was excluded by legislation
A non-recorder of such information may also be held liable
if proven that he communicated the same, in any form,
whether in part or in whole
Liability extends to persons who permit the act of wiretapping

1.
2.
3.
4.

Person who participated in recording

Person who transcribed
Person who permitted wiretapping
Person who used the communication, whether in part or in
whole

Human Security Act

Law enforcers are allowed to intercept and record
communications of: (1) persons suspected, charged or
outlawed as terrorists, and (2) subversive groups who are
outlawed because of terrorism
To be allowed to intercept and record, a written order from
the CA must first be procured
Requisites for CAs written order:
1. Probable cause of commission of terrorism
2. Probable cause that evidence is in the communication
3. No other means to acquire evidence

CAs authorization shall not exceed 30 days renewable for

another 30 days

What may be the form of report or recording by the law

enforcer pursuant to Human Security Act?
Any device, whether electronic or not
Illegal Searches and Seizures
Illegal object found in the possession of a person who is
not committing a crime, thus, not committing it in
flagrante delicto, is inadmissible as evidence
Warrantless arrest cannot be justified where no crime is
being committed
Elements of Illegal Possession of Drugs:
1. Possession of prohibited drugs
2. Possession not authorized by law
3. Accused freely and consciously possessed the said
drug
There is animus possidendi in the following cases:
1. When accused was not at home but drugs were found
in his bedroom
2. When illegal drugs were found concealed in accuseds
bedroom
3. When illegal drugs were found inside the drawer in
the bedroom
There is presumption of knowledge and possession when
drugs and paraphernalia is found in house or building
occupied
Criminal intent is not necessary in illegal possession of
drugs because such is mala prohibita
Courts policy in the admission of evidence
Liberal construction of the rules of evidence so as not to frustrate
substantial justice

Judicial Notice and Admissions

No. There is no judicial notice of foreign law, except, foreign

international law.

Why do Courts take judicial notice of some matters?

Must the Court take judicial notice of international law?
So that the submission of evidence on some matters may be
dispensed with rendering an abbreviation of the trial
Matters which take judicial notice (mandatory)
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.

Existence and territorial extent of States

Political history
Forms of government
Symbols of nationality
Law of nations
Admiralty and maritime courts
Official acts of executive and judicial departments
Laws of nature
Measure of time
Geographical division

Yes. Under the principle of integration under the constitution, the

Philippine adopts the generally accepted principle of international
law as part of the laws of the land.
May MTC and MCTC take judicial notice of local ordinances?
Yes. Provided that such ordinance has already taken effect, it is
within the Courts jurisdiction and that the ordinance expressly
states judicial notice
May the RTC take judicial notice of local ordinances within its
jurisdiction?
No. In general, RTC cannot take judicial notice of such ordinance,
except when the matter is appealed to it from the lower court.

Judicial notice is discretionary when it is of:

In general, when do laws or ordinances take effect?
1.
2.
3.

Public or common knowledge

Matter is settled beyond reasonable doubt
Ought to be known by Courts or is within the Courts
jurisdiction

Memorandum or ordinances shall officially take effect after at least

15 days after publication. Otherwise, the same is not yet official.
May the CA take judicial notice of municipal ordinances?

Judicial notice, when hearing necessary:

1.
2.

When requested by a party

When decisive of a material issue

Test for notoriety

Such matter is under discretionary judicial notice of Court. (NOTE:

judicial notice of ordinances is not mandatory to RTC, CA or SC)
May there be judicial notice of the increase in rent of lease?
How about the rate of increase?

There is notoriety when:

1. It is of common knowledge (Eg. Filipinas natural shyness)
2. It is a matter settled beyond reasonable doubt, (Eg.
Discoveries in science and technical definitions) or
3. It is within the Courts jurisdiction (Eg. laws passed within
courts jurisdiction in which its proponent expressly states
that such law shall be taken with judicial notice)

There may be judicial notice of increase in rent but not its rate.

How is doubt in judicial notice resolved?

*May there be automatic judicial notice of minority?

In case of doubt in judicial notice, it shall be resolved against the

person taking the notice.

No. Hearing and submission of evidence of minority must be

submitted before the court can take judicial notice of such matter.

Is judicial notice synonymous to judicial knowledge?

Proof of foreign law

No. This is because hearing is still required when a matter is not

under mandatory or discretionary judicial notice.

May MTC and MCTC judges take notice of matters they have
acted upon as notaries public ex officio?
Yes. MTC and MCTC judges may take notice of matters they have
acted upon as notaries public ex officio.

1.
2.

An official publication thereof, or

A copy attested by the officer having the legal custody of
the record

May judicial notice be taken after trial?

Yes. Judicial notice may be taken during or after trial (or when
pending appeal)?
What is processual presumption (doctrine of processual
presumption)?
It is the presumption that, in the absence of proof, the foreign law is
the same as the law of the forum.
Is there judicial notice of foreign law?

Hix died with a will allegedly executed in accord with the

formalities of West Virginia Law. To prove the existence of said
foreign law the proponent of the will presented in evidence a
copy of said law found in a book in our National Library. The
corresponding certificate was signed by the Director of the
National Library. Has the existence of said law been properly
proved?
No. The legal requisites for proof of a written foreign law have not
been properly complied with. There was no proof that the book
referred to was an official publication of the State of West Virginia;
there was no certification of the officer having custody of the

original; finally, there was no proof that said alleged law was still in
force at the time of the execution of the will.

The admission shall not be considered as one for any other purpose
nor may the same be used against him in any other proceeding.

Proof of foreign unwritten law or custom

Effect of filing amended complaint:

1.
2.

Oral testimony of expert witnesses

Printed and published books of report of decisions of the
country involved

1.
2.

The same is not part of the record

Amended complaint supersedes the first

When is there an implied judicial admission?

To prove Chinese law, the proponents of a will presented in
evidence written answers of the Chinese Consul-General. Has
the existence of said unwritten law been proved?

When based on actionable document

When is a document actionable?

No. Firstly, because the witness should have been presented for the
purpose of confrontation and cross-examination; and secondly,
because, a Chinese Consul-General is not necessarily an expert on
the matter.

A document is actionable when an action or defense is grounded

upon such written instrument or document. These documents need
not be attached to or stated in the complaint as these are evidentiary
in nature. It must be denied or questioned under oath.

T/F. Court may take judicial notice of anything during trial.

True. During trial, the Court has the power to take judicial notice of
anything.

What is the effect of failure to answer when a motion for bill of

particulars or written interrogatories is served by the adverse
party?

T/F. After trial or while on appeal, the Court can still take
judicial notice of anything.

The contents of such interrogatories shall be deemed admitted by

the party

False. After trial or while pending appeal, the Court can only take
judicial notice of matters material to the issue

When does admission (judicial) start to be accepted?

At the pre-trial

What is the general effect of judicial admission?

*What is the purpose of pre-trial?
The person who made the admission cannot anymore contradict his
own admission.
What is the general function of judicial notice?
It serves as a waiver of proof
Requisites of Judicial Notice:
1.
2.
3.

Act of admission of fact

Made before or during trial but not when decision is
already final and executory
No form required

Elements of Judicial Admission:

1.
2.
3.

Made by a party
Made during trial
Made in any form (No prescribed form)

Nature and Purpose of Pre-trial:

1. Possibility of amicable settlement
2. Simplification of issues
3. Necessity of amendment of pleadings
4. Possibility of obtaining stipulation or admission of facts
5. Limitation of number of witnesses
6. Advisability of prelim reference of issues to commissioner
7. Propriety of rendering judgment on pleadings should a
valid ground be found to exist
8. Necessity of suspending the proceedings
9. Other matters as may aid in the prompt disposition of the
action
Are admissions during pre-trial judicial admissions?
Yes. Whether in civil or criminal case, an admission during the pretrial stage is a judicial admission.
*Must admission during pre-trial be reduced in writing?

Example of judicial admission: Admission in pleadings (in

complaint or answer)
Is there an implied admission when a party fails to particularly
deny the genuineness and due execution of a document?
Yes. A party in this case is, thereby, precluded from arguing that the
document is a forgery because the genuineness of the document has
been impliedly admitted by his failure to deny the same under oath.
Can an admission in one case be admitted in another case?
No. Under Sec 3 of Rule 26, any admission made pursuant to the
request for admission is for the purpose of the pending action only.

Yes. In criminal proceedings.

No. In civil proceedings.
Admission vs. Confession
Act, declaration or omission of
relevant fact
When person declares that he
shot for self-defense
Includes confession (broader)
Does not authorize conviction

Acknowledgement of guilt
When a person declares that he
shot someone
Included in admission (specific
type of admission)
Authorizes conviction

Admission vs. Declaration against interest

Admissible whether declarant is Declarant must be dead or
dead or alive
unable to testify
Made at anytime even after/
Made before controversy arises
during trial
Need not be against ones
Made against ones
pecuniary/moral interest
pecuniary/moral interest
Admissible only against parties
Admissible even against 3rd
persons
Not an exemption to any rule
Exemption to hearsay rule
Effects of Admission
1.
2.

Declarations made by a party may be used against him but

not in his favor
Based on notion that: no man would make any declaration
against himself, unless true

In general, a person who judicially admits a fact cannot

challenge such judicially admitted fact, what is the exception?
The exception is when there (1) palpable mistake in the admission
or (2) there was no admission made.
Classification of Admission and Confession
1.

Express admission vs. Implied admission

Positive statement or acts
Inferred from declaration or
act
Can there be an implied confession?
No. Confessions cannot be inferred. It is always express.

2.

3.

Judicial admission vs. Extrajudicial admission

Made in the course of
Made outside of court
judicial proceeding

Corpus delicti body of the crime or offense

Elements of corpus delicti:
1. Proof of occurrence
2. Same persons criminal responsibility for the act
May corpus delicti be proven by circumstantial evidence?
Yes, but such must be compatible and convincing with the nature of
the case
Does judicial confession need corpus delicti to be sufficient for
conviction?
No. Unlike extrajudicial confession, judicial confession needs no
corpus delicti to effect a conviction
Example of corpus delicti: In drugs cases, the corpus delicti is the
illegal drugs
*Admission by silence:
Act made in the presence and within the observance of a party who
says nothing when the act is such as naturally to call for action if
not true may be given in evidence
Does all form of silence imply an admission?
No. Silence during custodial investigation is not included in the
phrase admission by silence.
Elements of silence by admission:
1.
2.
3.
4.
5.

Accused heard and understood the statement

He was at the moment in liberty to make a denial
The statement was about a matter affecting his right
The facts of the statement were within his knowledge
The fact admitted from accuseds silence is material

Can confession be judicial or extrajudicial?

Res Inter Alios Acta Rule

Yes. Confessions can be made in and outside the court.

Things done between strangers ought not to injure those who are
not parties thereto

Principle of Adoptive admission where it appears that a

party clearly and unambiguously assented to or adopted
the statement of another, evidence of those statements is
admissible against him.

2 Branches:
1. Rights of a party cannot be injured by the act of another
2. Evidence of previous conduct at one time is not admissible
to prove that a person did the same act at another time

Instances of Adoptive Admission

1.
2.
3.
4.
5.

Where a party expressly agrees to oral statement of another

Where a party hears a statement and later on essentially
repeats it
When a party utters acceptance upon assertion of another
When a party rebuts some points but ignores other points
heard from another
When a party reads and signs a written statement made by
another

Is mere extrajudicial confession of a person sufficient for

conviction?
No. To be sufficient, it must be corroborated by evidence of corpus
delicti.

T/F. Res Inter Alios Acta Rule generally applies to extrajudicial

confession.
True. Therefore, the rule cannot be invoked in judicial proceedings.
Vicarious admissions:
Are those made by a declarant authorized by the party to make the
statement, or by a servant or agent, if it concerns a matter within the
scope of the servant.
Exception to Res Inter Alios Acta Rule (1st Branch) (forms of
Vicarious admission):
1. Admission by co-partner or agent
2. Admission by co-conspirator
3. Admission by privies

NOTE: For the exception to apply, mere declaration is not

sufficient, there must be other independent evidence supporting
agency, partnership, conspiracy, or other privity of relationship. It is
either documentary or testimonial evidence.
What is the effect, with regards, admission of a plea of guilty
later withdrawn?
It is not acceptable as evidence of admission. (Same effect in case
of unaccepted plea of guilty to a lesser offense)
Is an offer to pay, in case of criminal cases, by the accused of the
victims Medical expenses an act of admission and be evidence
of guilt?
No. Such act is called Good Samaritan rule.
Good Samaritan Rule:
It states that an offer to pay or the payment of medical, hospital or
other expenses occasioned by an injury is not admissible in
evidence as proof of civil or criminal liability for the injured party.
Are subsequent remedial measures in negligence case a proof of
admission?
No, because to constitute such as an admission would discourage
establishments to improve their facilities
Propensity evidence (sameness of evidence) evidence that tends
to show that what a person has done at one time is probative of the
contention that he has done a similar act at another time.
What are the purposes wherein evidence of similar act may be
admissible?
1.
2.
3.
4.
5.
6.
7.
8.
9.

Specific intent
Knowledge
Identity
Plan
System
Scheme
Habit
Custom
Usage, and the like

When is evidence of similar acts usually relevant?

Where the action is based on fraud and deceit
May propensity evidence be used in prosecuting sexual abuse
cases?
Yes. In PP vs. Munoz, the Court admitted the fact that the accused,
had, before the rape case, impregnated his sister in law. This is one
exception to the prohibition against admission of propensity
evidence. In criminal action in which the defendant is an accused of
molestation, evidence of the defendants commission of another
offense of molestation is admissible as evidence.

Object and Documentary Evidence

What are the kinds of evidence?
1.
2.
3.
4.

Object (real or autoptic proference)

Documentary
Testimonial, and
Corroborating

Test of authentication. To authenticate the object, it must be shown

that the object is the very thing that is either the subject matter of
the lawsuit or the very one involved to prove an issue in the case.
Who shall authenticate object evidence?
Witness. This is because an object evidence cannot speak for itself
for it to be presented in the court.

Object as Evidence are those addressed to the senses of the court.

What provides for the foundation of all types of evidence?

When may an evidence be exhibited, examined or viewed by the

court?

Testimonial evidence of a witness. To be able to authenticate, a

witness must have actual and personal knowledge of the exhibit he
is presenting for admission.

Where object is relevant

May the perception of a witness be object evidence?

What is the effect to testimonial evidence of physical evidence

which bears similarity with the former?

No. This is because real or object evidence is not a verbal

description of something.

The testimony becomes worthy of belief because the testimony of

the witness is supported by object evidence.

Examples of real or object evidence:

1. Knife used to slash victims throat
2. Ring actually stolen
3. Bullet extracted from chest, or
4. Blood splattered on the wall

How is competence of object evidence tested?

Thru authentication of object evidence

May object evidence be intangible?

What is the problem in presenting object evidence that

commonly lies in showing that the object sought to be admitted
is in fact the real thing and not a mere substitute?

No. Object evidence consists of tangible things.

Laying the foundation

May a human being be a form of object evidence?

May the right against self-incrimination be invoked against

object evidence?

Yes. It may be an object evidence where for instance racial

characteristics is in issue or in a stabbing incident wherein the
absence of scar may convince the court that the witness is untrue to
his testimony.

No. The right against self-incrimination is the prohibition of the use

of physical or moral compulsion, to extort communications from a
person. It does not apply where evidence sought is object evidence.

May sole object evidence provide an end to a case?

How is object evidence classified?

Yes. Pursuant to OJ Simpson case, wherein Simpson tried the glove

used by the murderer which does not fit. In such case, Simpson was
acquitted.

1.

T/F. Object evidence is visual alone.

3.

False. It covers the entire range of human senses: seeing, hearing,

taste, smell and touch.
*In case of conflict between testimonial and object evidence,
which one should prevail?
Object evidence. It has a higher rank in the hierarchy of trustworthy
evidence over testimonial evidence.
What are the requisites for admissibility of object evidence?
1.
2.
3.
4.

Relevance
Authentication
Authenticated by competent witness, and
Formally offered in evidence

2.

Unique evidence objects that have readily identifiable

marks. Eg. 45 caliber pistol
Objects made unique objects that are made readily
identifiable. Eg. Kitchen knife with engraved initials
Non-unique objects Objects with no identifying marks
and cannot be marked. Eg. Drops of blood, drugs

What must be established in order that a non-unique object

evidence may be considered competent evidence?
Chain of custody. It refers to the link of people who actually
handled or had custody of the object. The testimony of each link
need not be presented. As long as one of the chains testifies and his
testimony negates the possibility of tampering and that the integrity
of the evidence is preserved, his testimony alone is adequate to
prove the chain of custody.
What is the purpose of chain of custody?
To guaranty integrity of physical evidence
*Discuss chain of custody in illegal drug cases.

What must the object evidence pass in order that it will not be
excluded by the Rules?

It means the duly recorded authorized movements and custody of

seized drugs or controlled chemicals or plant sources of dangerous

drugs or laboratory equipment of each stage, from the time of

seizure or confiscation to receipt in the forensic laboratory to
safekeeping to presentation in court.

They are used when involving personal injury cases to show the
location and extent of the injury.
Who may authenticate x-rays?

What is the procedure to be followed in custody and handling of

drugs?
The apprehending team after seizure shall:
1. Inventory and photograph the drugs
2. In the presence of the accused or person from whom such
is confiscated (or his representative or counsel)
3. With a representative from the (a) media, (b) DOJ, and (c)
any elected public official
4. Those in (2) and (3) shall be required to sign the copies of
the inventory and shall be given copies thereof
*Does not compliance with the requirements set forth by Sec 21
of RA 9165 regarding the procedure of chain of custody of
illegal drugs automatically render the illegal drugs inadmissible
as evidence for being incompetent?
No. Pursuant to PP vs. Rivera, non-compliance with these
requirements under justifiable circumstance, as long as the integrity
and the evidentiary value of the seized items are properly preserved
by the apprehending officer or team, shall not render void and
invalid such seizures of and custody over said items. But take note
that mere statement that the integrity and evidentiary value of the
evidence is not enough. It must be accompanied by proof.

X-ray technician or physician may testify on the competence of the

person taking it, the procedure in taking and that the x-ray picture is
showing the person involved in the case.
Is reenactment of material events by a witness a form of
demonstrative evidence?
Yes. Other demonstrative evidence are scientific tests,
demonstrations and experiments. It is used to help illustrate the
testimony of witness.
What are ephemeral electronic evidence?
These forms of communication refer to telephone conversations,
text messages, chatroom sessions, streaming audio, and other forms
of electronic communication.
Is the admission of text messages as evidence a violation of the
right to privacy of a person?
No. Such stand is unavailing for it is a form of evidence under the
Rules.
How shall a recorded telephone conversation be proven?

Is demonstrative evidence the actual thing?

No. It is not the actual thing. It only represents the real thing. Eg.
Map, diagram, photograph, model

It shall be proven in the same way as photographs, motion pictures

and tape recordings.
What is view when applied to object or scene as evidence?

What are the requisites for photograph evidence (and other

electronic evidence) to be admissible?
1.
2.

It shall be presented, displayed and shown to the court, and

It shall be identified, explained or authenticated by either
(i) the person who made the recording, or by (ii) some
other person competent to testify to the accuracy thereof

Does the rule on photographs also apply to motion pictures?

Yes. In such case, courts require detailed testimony as to the
qualification of the operator, a detailed description of the equipment
used, and the conditions under which the photograph and motion
picture is taken.
Do the Rules require that the authentication process of motion
picture or tape recording be made by a person who is actually
involved in the said recording?
No. It can be done by some other person as long as he is someone
who can testify as to its accuracy.
When may diagrams, models, and maps be used as
demonstrative evidence?
They are used when indicating relative locations or positions of
objects and persons.

It is the act of going out of the courtroom to observe places and

objects. (ocular inspection or autoptic proference)
Is view a part of the trial?
Yes. Since it is a part of the trial wherein evidence is being
admitted, the inspection, even if made inside or outside the
courtroom, must be made in the presence of the parties or at least
with previous notice to them. Thus, it is an error for the judge to go
alone on a view without the previous knowledge of the parties.
What is DNA as described by the Supreme Court?
DNA or deoxyribonucleic acid is a molecule that encodes the
genetic information in all living organisms. A persons DNA is the
same in each cell and it does not change throughout the persons
lifetime. Take note that no two individuals have the same DNA,
with the notable exception of identical twins.
Is the taking of DNA evidence a violation of the right against
self-incrimination?
No. The right against self-incrimination is the prohibition of the use
of physical or moral compulsion, to extort communications from a
person. It does not apply to DNA evidence.
*What are the Vallejo guidelines in using DNA evidence?

When may x-ray be used as a demonstrative evidence?

The following must be answered in the court to validly admit a
DNA evidence:

1.
2.
3.
4.
5.
6.

How the samples were collected

How they were handled
The possibility of contamination of the samples
The procedure followed in analyzing the samples
Whether the proper standards and procedures were
followed in conducting the tests, and
The qualification of the analyst who conducted the test

*May the lack of DNA evidence be also a means of acquitting an

accused?
Yes. Pursuant to PP vs. Janson, the accused who was charged with
rape was acquitted due to the lack of DNA evidence posing doubt in
who the malefactor was.

Petition for certiorari; however, under Sec 5, any petition for

certiorari therefrom, shall not, in any way, stay the implementation
thereof, unless a higher court issues an injunctive order.
Is there an automatic admission of DNA evidence obtained in
the testing?
No. The grant of DNA testing application shall not be construed as
an automatic admission into evidence of any component of the
DNA evidence. It means that the court will still have to evaluate the
probative value of the proposed evidence before its admission.
What are those which should be considered in weighing the
probative value of DNA evidence?

May death bar the conduct of DNA testing?

No. Pursuant to Rogelio Ong vs. Diaz, the Court held that death
cannot bar the conduct of DNA testing.

1.
2.
3.

In what actions may DNA be offered as evidence?

4.

1.
2.
3.

Criminal actions
Civil actions, and
Special proceedings

How may an order for DNA testing be obtained?

1.
2.

By filing an application before the appropriate court of a

person who has legal interest
For the order to issue, there must be showing that:
a. A biological sample exists that has relevance to the
cause
b. The biological sample (i) was not previously subjected
to DNA testing requested; or (ii) if it was previously
subjected to DNA testing, the results may require
confirmation for good reasons
c. The DNA testing uses a scientifically valid technique
d. The DNA testing has the scientific potential to
produce new information that is relevant to the proper
resolution of the case, and
e. The existence of other factors, if any, which the court
may consider as potentially affecting the accuracy and
integrity of the DNA testing

Chain of custody
DNA testing methodology
Forensic DNA laboratory (including accreditation and
qualification of analyst), and
Reliability of testing result

*If a person has already been convicted under a final and

executory judgment, may he still avail of DNA testing?
Yes. It is termed post-conviction DNA testing. It is available to the
prosecution and to the person convicted by a final and executory
judgment, provided that:
a. A biological sample exists
b. Such sample is relevant to the case, and
c. The testing would probably result in the reversal of the
judgment of conviction
Is a court order required for a post DNA testing?
No. Sec 6 RDE
What remedy is available to the convict if the results of the post
DNA testing are favorable to him?

May the Court motu proprio order a DNA testing?

Petition for writ of habeas corpus. The court shall then conduct a
hearing and in case the court finds, after due hearing, that the
petition is meritorious, it shall reverse or modify the judgment of
conviction and order the release of the convict, unless his detention
is justified for a lawful cause. Petition for writ of habeas corpus
may also be filed by the prosecution.

Yes. Sec 4, RDE

Is the DNA profile of a person open to public scrutiny?

Is a court order always required before undertaking DNA

testing?

No. Court order must first be obtained before it may be released for
the same is confidential. As exception, the following are the persons
who may obtain a copy of the results of the DNA profile:
1. The person from whom the sample was taken
2. Lawyers representing parties in the case where DNA
evidence is offered and presented or sought to be offered
and presented
3. Lawyers of private complainant in a criminal action
4. Duly authorized law enforcement agencies, and
5. Other persons as determined by the court

No. RDE allows a testing without a prior court order if done before
a suit or proceeding is commenced at the behest of any party
including law enforcement agencies. This also means that a
litigation need not exist prior to DNA testing.
Is the order of the court granting a DNA testing appealable?
No. It is not appealable and is immediately executory. RDE
provides that an order of the Court granting the DNA testing shall
be immediately executory and shall not be appealable.
What is the remedy against the court order of granting DNA
testing?

What is the offense committed by the person/s who will violate

the prohibition on public access to DNA profile?
Indirect contempt

T/F. Paraffin tests have been considered as inconclusive by the

Court.

memorandum or any other form of writing such terms are deemed

to include electronic evidence.

True. This is due to the declaration of scientific experts. The test

can only establish the presence or absence of nitrates and nitrites
and cannot alone determine whether the source of the nitrates or
nitrites was the discharge of a firearm. Thus, paraffin tests are
merely corroborative evidence.

Who has the burden of proving the authenticity of an electronic

evidence?
The person seeking to introduce the electronic evidence
How is an electronic evidence authenticated?

Is polygraph test or lie detector test results admissible as

evidence in establishing guilt or innocence of an accused in a
crime?

1.
2.

No. Courts uniformly reject the results of polygraph tests when

offered in evidence for the purpose of establishing the guilt or
innocence of an accused of a crime because it has not yet attained
scientific acceptance.

3.

By evidence that it had been digitally signed by the person

purported to have signed the same
By evidence that the appropriate security procedures or
devices as may be authorized by the Supreme Court or by
law for the authentication of electronic documents were
applied to the document or
By other evidence showing its integrity and reliability to
the satisfaction of the judge

Is documentary evidence exclusively referring to writings?

NOTE: The above only applies to electronic private documents
No. It may also refer to other material like objects as long as the
material contains letters, words, numbers, figures, symbols or other
modes of written expression and offered as proof of their contents.
What are the two categories of documentary evidence?
1.
2.

Writings (eg. contracts, wills), and

Any other material containing modes of written
expressions

How are documentary evidence defined by the Rules?

They are documents as evidence consists of writings or any material
containing letters, words, numbers, figures, symbols or other modes
of written expressions offered as proof of their contents.
What is essential for the 2nd category of documentary evidence
for it to be admitted as a documentary evidence?

*FURTHER NOTE: In Ang vs. Court of Appeals et. al, the

Supreme Court ruled that the Rules on Electronic Evidence applies
only to civil actions, quasi-judicial proceedings and administrative
proceeding, not to criminal actions.
What are the other rules which apply to electronic evidence?
1.
2.
3.

Best evidence rule

Parol evidence rule, and
Hearsay rule

What are the requisites for admissibility of documentary

evidence?
1.
2.
3.
4.

Relevance
Authentication
Authentication by competent witness, and
Document is formally offered as evidence

It must be offered as evidence for its contents

Is a contract offered as evidence to show its existence a form of
documentary evidence?
No. In such case, the contract is treated as a real or object evidence.
What is electronic evidence?
It refers to information by which a right is established or an
obligation is extinguished, or by which a fact may be proved or
affirmed, which is received, recorded, transmitted, stored,
processed, retrieved or produced electronically.
What are the purposes for which electronic evidence may be
used?
1.
2.
3.

To establish a right
To extinguish an obligation, or
To prove or affirm a fact

Is electronic evidence the functional equivalent of paper-based

documents?
Yes. Thus, whenever a rule of evidence makes reference to the
terms of a writing, a document, a record, an instrument, a

How is the theory of indivisivility applied in documentary

evidence?
The theory states that when admitting documentary evidence, it
shall be admitted as a whole and not only the parts sought to be
admitted.

Does the best evidence rule make the evidence place in the
highest of the hierarchy of evidence?

Does the best evidence rule apply when the document is merely
collaterally in issue?

No. The term best does not pertain to the degree of the evidence
probative value. More accurately, it is the original document rule or
the primary evidence rule.

No. When the document involved in the inquiry is merely

collaterally in issue, the best evidence rule does not apply. A
document is collaterally in issue when the purpose of introducing
the document is not to establish its terms but to show facts that have
no reference to its contents like its existence, condition, execution
or delivery.

What is the rule that the best evidence rule denotes?

The rule requiring the production of the original writing is the rule
that the above denotes. The theory therefore is that the copy of the
original is not as reliable as the latter because of possible inaccuracy
in the process of copying and the danger of erroneous transmission
of the original.

What is the reason or purpose of the best evidence rule?

To prevent and detect fraud
May the best evidence rule be waived?

*What are the exceptions to the best evidence rule?

Yes. The rule may be waived by failure to object.
1.
2.
3.

4.

When the original has been lost, destroyed, or cannot be

produced in court, without bad faith on the part of the
offeror
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
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
When the original is a public record in the custody of a
public officer or is recorded in a public office

When is the instance when there is no reason to apply the best

evidence rule?

*How is the best evidence rule applied?

1.
2.

The first step is to determine the matter inquired into

If for one reason or another, the original cannot be
presented in evidence. The second step comes into play:
(1) Find an adequate legal excuse for the failure to present
the original, and (2) Presenting a secondary evidence
sanctioned by the rules of court.

NOTE: Thus, the rule is, present the original, except when you can
justify its unavailability in the manner provided for by the rules of
court

When the issue does not involve the contents of a writing

Does the phrase unavailability of the original as an exception to

the best evidence rule include those original documents which
are beyond the territorial jurisdiction of the court?

Does the contention that there is lack of consideration and the

signature in the note was not made in the personal capacity of
the respondent involve an issue with the contents of the writing?

Yes. The document need not always be lost or destroyed. Further, it

includes monuments and other immovable objects which cannot be
produced in court.

No. They are defenses which do not question the precise wordings
of the promissory note which should have paved the way for the
application of the best evidence rule.

What are the requisites before secondary evidence may be

presented in lieu of the original as exception to the best evidence
rule?

Does the best evidence rule apply to a case where the issue is the
execution or existence of a check and the circumstances of its
execution?
No. The best evidence rule does not apply in such case and
testimonial evidence should be admissible.
Does the best evidence rule apply to a case where the issue is the
reason for dishonor of a check?
Yes. Where the purpose of the prosecution is to prove the contents
of a check, more specifically the names of the drawer and endorsee,
the date and amount and the dishonor thereof, as well as the reason
for such dishonor, it is incumbent upon the prosecution to adduce in
evidence the original copy of the check to prove the contents
thereof.
*What are the requisites for the best evidence rule to apply?
1.
2.

The subject matter must involve a document, and

The subject of the inquiry is the contents of the document

1.
2.
3.

The offeror must prove the execution and existence of the

original document
The offeror must show the cause for its unavailability, and
The offeror must show that the unavailability was not due
to his bad faith

Is it necessary that an absolute loss or absolute incapability of

production of evidence be presented so the secondary evidence
may be presented in lieu of the original as an exception to the
best evidence rule?
No. A reasonable probability of its loss is sufficient like by showing
that there was a bona fide and diligent but fruitless search for the
document.
What is secondary evidence?
It refers to evidence other than the original document itself.
Does the fact that the original of the document is in the custody
of the adverse party ipso facto authorize the introduction of
secondary evidence to prove its existence?

No. Such party must first prove that he has given reasonable notice
to the adverse party and that the adverse party failed to produce the
original document despite notice.
What are the requisites before secondary evidence may be
admitted in lieu of the original in case that it is in the custody of
the adverse party?
1.
2.
3.
4.

That the original exists

That said document is under the custody and control of the
adverse party
That the proponent of the secondary evidence has given
the adverse party reasonable notice to produce the original
document, and
That the adverse party failed to produce the original
document despite the reasonable notice

What are the requisites so that secondary evidence may be

admitted in lieu of the original under the best evidence rule, in
case it consists of numerous accounts?
1.
2.
3.

If the original consists of numerous accounts or other

documents
They 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

Does the making of repeated copies of a pleading create original

copies?
Yes. When a lawyer makes exact copies of the pleading, all of
which are deemed original
Does the use of a carbon paper in making copies and also
copying the signature in a document make the produced copies
as originals?
Yes. When carbon sheets are inserted between two or more sheets
of paper with the writing and the signature on the first sheet being
reproduced in the sheets beneath by the same stroke of the pen or
writing medium, all the sheets are deemed originals.
May the term original refer to object evidence under the Rules?
No. The term original does not refer to the original of the object
evidence but an original of the documentary evidence.
What constitute as the original of an electronic evidence?
It is its printout or output readable by sight or other means. The
copies of the printout or output readable by sight are also deemed
originals where the copies were 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 other
means and which accurately reproduces the original.

What is the form/s of secondary evidence expected from a

witness in case of original document in numerous accounts?

Is a printout of a facsimile transmission an electronic data

message or electronic document?

A witness may be allowed to offer a summary of a number of

documents, or the summary itself may be admitted if the underlying
documents are so voluminous and intricate as to make an
examination of all of them impracticable. They may also be
presented in the form of charts or calculations.

No. The Electronic Commerce Act of 2000 does not include a

facsimile transmission and cannot be considered as electronic
evidence. It is not the functional equivalent of an original under the
best evidence rule and is not admissible as electronic evidence.

Why is secondary evidence allowed to be introduced as evidence

in lieu of the original under the best evidence rule in case when
the document is a public record?
This is because public records are generally not to be removed from
the places where they are recorded and kept.
*What is an original document?
a.
b.
c.

The original of a document is one the contents of which

are the subject of inquiry
When the 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
When an entry is repeated in the regular course of
business, one being copied from another at or near the time
of transaction, all the entries are likewise equally regarded
as originals

What are the requisites before a document may be considered

as an original?
1.
2.

There must be entries made and repeated in the regular

course of the business, and
The entries must be at or near the time of the transaction

What evidentiary rule has direct application to the law on

contracts?

In case of wills, can other evidence of the will be presented

which is outside of its contents?

Parol evidence rule

No. There can therefore be no evidence of the terms of the will

other than the contents of the will itself.

May parol evidence rule be applied when an agreement is

merely oral?
No. When the agreement is merely oral, the parol evidence rule
should not be applied. The decision of the parties to reduce an
agreement in written form is critical to the application of the parol
evidence rule. When they execute a written contract, the parol
evidence rule ipso facto comes into play.
What are the instances when parol evidence may be
introduced?

Is parol evidence admissible when presenting prior or

contemporaneous stipulations?
No. The traditional rules limit the inadmissibility of parol evidence
to prior or contemporaneous stipulations.
Is parol evidence admissible when presenting subsequent
agreements?
Yes. Subsequent agreements are not barred by parol evidence rule.

Parol evidence may be introduced when in issue is a written

agreement and a party puts in issue in his pleadings:
1. An intrinsic ambiguity, mistake or imperfection in the
written agreement
2. The failure of the written agreement to express the true
intent and agreement of the parties thereto
3. The validity of the written agreement, or
4. 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)

Is parol evidence admissible when there exist an intrinsic

ambiguity in the contract?

What is the general presumption of the Rules regarding written

agreement?

Is parol evidence admissible when there exist an extrinsic

ambiguity in the contract?

Under the Rules, written agreement is already considered to contain

all the things agreed upon.

No. Where the ambiguity is patent or extrinsic, parol evidence will

not be admitted even if the same is put in issue in the pleading. A
patent or extrinsic ambiguity is that which appears on the very face
of the instrument, and arises from the defective, obscure or
insensible language used.

In general, may parol evidence be admissible to explain, modify

or add to written agreements?
No. Parol evidence is inadmissible for the following purposes.

Yes. Evidence aliunde may be allowed to modify, explain, or add to

the written agreement when an intrinsic or latent ambiguity exist in
the written agreement. Intrinsic ambiguity is one which is not
apparent on the face of the document but which lies in the person or
thing that is the subject of the document or deed. On this type of
ambiguity, the document is clear on its face but matters extraneous
to the agreement create an ambiguity.

Is parol evidence admissible when there exist a mistake or

imperfection in the written agreement?

What is the purpose of parol evidence rule?

To give certainty to written transactions, to preserve the reliability
and the sanctity of written agreement
Can all forms of writing trigger the application of the parol
evidence rule?
No. Not all writings will trigger the application of the parol
evidence rule. For the rule to apply, the writing must embody the
agreement.
Did the rule specify parol evidence shall only apply to public
documents?
No. Thus, the forms of a public document cannot be contended for
the application of parol evidence rule.
May the rule on parol evidence involve third party stranger
affected by the document?
No. The rule does not bind suits involving strangers to the contract.
Thus, a total stranger to the writing is not bound by the terms of the
agreement and may freely introduce extrinsic or parol evidence
against the efficacy of the writing.

Yes. Evidence aliunde may be justified when there is a mistake or

imperfection in the written agreement.
What may be the remedy against the mistake or imperfection in
the written agreement?
Action for reformation. The contract is to be reformed because
despite the meeting of the minds of the parties as to the object and
cause of the contracts, the instrument which is supposed to embody
the agreement of the parties does not reflect their true agreement by
reason of mistake, fraud, inequitable conduct or accident.
Is an action for reformation of contract proper where the
consent of the party to a contract has been procured by means
of fraud?
No. In such case what is defective is the contract itself because of
vitiation of consent. The remedy is not to bring an action for
reformation but to file an action for annulment of the contract.
What are those forms which cannot be reformed?
1.
2.

Simple donations inter vivos, wherein no condition is

imposed
Wills, or

3.

When the agreement is void

*Best evidence rule vs. Parol evidence rule

BER
PER
Establish preference for orig doc Not concern with primacy of
over secondary evidence
evidence
Precludes admission of sec
Precludes admission of other
evidence if orig is available
evidence to prove the terms of
the documents other than the
contents of the document itself
Can be invoked by any litigant
Can be invoked only by the
in an action
parties to the doc and their
successors in interest
Applies to all forms of writings
Applies only to written
agreements
May parol evidence be waived?

In general, all documents acknowledged before a notary public

is a public document, does this include last wills and
testaments?
No. Documents acknowledged before a notary public are public
documents except last wills and testaments which are private
documents even if notarized.
Are church registries of documents public documents?
No. Church registries of births, marriages, and deaths are no longer
public writings, nor are they kept by a duly authorized public
official.
T/F. Public document is admissible without further proof of its
due execution and genuineness.

Yes. It can be waived by failure to object.

True. Public document is admissible without further proof of its due

execution and genuineness.

Is authentication limited to documentary evidence introduced

as evidence?

Do notarized documents require authentication when being

presented as evidence?

No. Not only documents but also objects introduced in evidence

need to be authenticated.

No. Notarized documents being public documents, do not require

authentication, unlike private documents.

What are the requirements for authentication of electronic

documents?

What presumption does a document acknowledged before a

notary public enjoy?

The authentication of electronic document requires any of the

following means:
1. By evidence that it had been digitally signed by the person
purported to have signed the same
2. By evidence that other appropriate security procedures or
security devices as may be authorized by the SC or by law
for authentication of electronic documents were applied to
the document, or
3. By other evidence showing its integrity and reliability to
the satisfaction of the judge.

A document acknowledged before a notary public is a public

document that enjoys the presumption of regularity

What is a document?

Sec. 23. Public documents as evidence. Documents consisting of

entries in a public records made in the performance of a duty by a
public officer are prima facie evidence of the facts therein stated.
All other public documents are evidence even against third persons
of the facts which gave rise to their execution and of the date of the
latter.

Document is defined as a deed, instrument or other duly authorized

paper by which something is proved, evidenced or set forth.
What are the classes of documentary evidence?
For the purpose of their presentation in evidence, documents are
either (1) public or (2) private.
*What are public documents?
Public documents are:
1. The written official acts, or records of the sovereign
authority, official bodies and tribunals, and public officers
whether of the Philippines, or of a foreign country;
2. Documents acknowledged before a notary public; and
3. Public records kept in the Philippines, of private
documents required by law to be entered therein.
All other writings are private

What is the prima facie evidence of the execution of a document

which is notarized by a notary public?
The certificate of acknowledgement is the prima facie evidence of
the execution of the instrument or document involved.
Define public documents as evidence

What may evidence the record of a public document?

The record of a public document may be evidenced by:
1. An official publication thereof; or
2. By a copy of a document attested by the officer having
legal custody of the record ;by the attestation of his deputy,
if the record is not kept in the Philippines; if the record is
not kept in the Philippines, the attestation must be
accompanied by a certificate that such officer has the
custody; if the office in which the record is kept is in a
foreign country, the certificate may be made by a secretary
of the embassy or legation, consul-general, vice-consul, or
consular agent, or by any officer in the foreign service of
the Philippines stationed in the foreign country in which
the record is kept, and authenticated by the seal of his
office.

Why is certification and attestation of public records required

when being presented as evidence?
The certification and attestation are required because of the general
rule on the irremovability of public records.
Why is public record, generally, cannot be removed from the
records even if it is to be used as evidence?
The reason is public policy:
Sec. 26. Irremovability of public record. Any public record, an
official copy of which is admissible in evidence, must not be
removed from the office in which it is kept, except upon order of a
court where the inspection of the record is essential to the just
determination of a pending case.
Only when may a public record not capable of being removed
from the records may be removed therefrom?
Upon order of a court where the inspection of the record is essential
to the just determination of a pending case.
*Is a notarized document by a notary public of a foreign
country a public document?
No. The Court held that a notary public in a foreign country is not
of those who can issue the certificate mentioned in Section 24 of
Rule 132 of the Rules of Court. The Court ruled that noncompliance with Section 24 of Rule 130, will render the special
power of attorney inadmissible in evidence. Not being duly
established in evidence. (Same rule if notary public notarized a
document outside of his authority)

Testimonial Evidence
What is testimonial evidence?
Testimonial or oral evidence is evidence elicited from the mouth of
a witness as distinguished from real and documentary evidence.
(Sometimes called viva voce evidence living voice or by word of
mouth)
Witness the person who gives the testimony
What does competence mean when applied to a witness?
When applied to a witness, competence means that the witness is
qualified to take the stand and testify. It means that he is fit or
eligible to testify on a particular matter in a judicial proceeding.
T/F. A witness is presumed to be competent unless otherwise
proven.
True. The witness enjoys the presumption of competence under the
rules unless rebutted by contrary evidence.
How does a party who desires to question the competence of
witness question the same?
A party who desires to question the competence of a witness must
do so by making an objection as soon as the facts tending to show
incompetency are apparent.
*Qualifications of a Witness:
1.
2.

He can perceive; and in perceiving

He can make known his perception to others:

To these we may add the following:

1. He must take either an oath or an affirmation
2. He must not possess the disqualification imposed by law or
the rules.
What is the act required by the rules to be taken by the witness
when taking the stand which is also essential to his
qualification?
The rule clearly requires that the examination of a witness in a trial
or hearing shall be done under oath or affirmation. The willingness
to take an oath or affirmation is an essential qualification of a
witness.
What does the witness oath signify?
The oath of a witness signifies that he is swearing to the Creator to
tell the truth and nothing but the truth and that if he does not, he
will later on answer for all the lies he is guilty.
Does the law require that the witness understands in detail the
importance of the oath or affirmation?
No. It is not required that the understanding of the importance of an
oath be a detailed one. It is enough that the witness understands and
believes that some earthly evil will occur to him after lying.
Ability to Perceive - it means that a witness can testify only to
those facts which he knows of his personal knowledge, ie. those
which are derived from his own perception.

Ability to Make Known the Perception of Others - the ability to

make known the perception of the witness to the court involves two
factors: (a) the ability to remember what has been perceived; and
(b) the ability to communicate the remembered perception.
*Are deaf-mutes necessarily incompetent witnesses?
Deaf-mutes are not necessarily incompetent as witnesses. They are
competent where they are: (1) can understand and appreciate the
sanctity of an oath; (2) can comprehend facts they are going to
testify to; and (3) can communicate their ideas thru a qualified
interpreter. (People v. Tuangco)
Competency of witness v. Credibility of Witness
Refers to capacity to perceive
Refers to believability of a
and communicate his perception witness
to others
Includes absence of any
Nothing to do with the law or
disqualifications imposed upon
the rules
a witness
Does not inquire to the
Inquire to the trustworthiness of
trustworthiness of witness
witness
Discuss the weight of the findings of the trial court on the
credibility of a witness
When it comes to the issue of credibility of the victim or the
prosecution witnesses, the findings of the trial courts carry great
weight and respect, and generally, the appellate courts will not
overturn the said findings. This is because trial judges enjoy the
advantage of observing the witness deportment and manner of
testifying, the furtive glance, blush of conscious shame, hesitation,
flippant or sneering tone, calmness, sigh, or the scant of full
realization of an oath all of which are useful aids for an accurate
determination of a witness honesty and sincerity.
*Other Factors that Do not Affect the Competency of a Witness:
The following factors do not constitute a disqualification of a
witness:
1. Religious belief
2. Political belief
3. Interest in the outcome of the case
4. Conviction of a crime, unless otherwise provided by law
Eg. Those who have been convicted of falsification of a
document, perjury or false testimony are disqualified from
being witness to a will.
Does the relationship of a witness with a party ipso facto render
him a biased witness?
No. The relationship of a witness with a party does not ipso facto
render him a biased witness in criminal cases where the quantum of
evidence is proof beyond reasonable doubt. (Same rule in civil
cases where the quantum of evidence needed is preponderance of
evidence)
Al was accused of raping Lourdes. Only Lourdes testified on
how the crime was perpetrated. On the other hand, the defense
presented Als wife, son and daughter to testify that Al was with
them when the alleged crime took place. The prosecution
interposed a timely objection to the testimonies on the ground
of obvious bias due to the close relationship of the witnesses

with the accused. If you were the judge, how would you rule on
the objection?

himself from abuse, neglect, cruelty, exploitation, or discrimination

because of physical or mental disability or condition.

I would overrule the objection. Interest in the outcome of the case

which also includes close relationship, is not a ground to disqualify
a witness.

What is the presumption on the competency of a child witness?

Louise is being charged with the frustrated murder of Roy . The

prosecutions lone witness, Mariter, testified to having seen
Louise prepare the poison which she later surreptitiously pour
into Roys wine glass. Louise sought the disqualification of
Mariter as witness on account of her previous conviction of
perjury. Rule on Louises contention.
The contention of Louise has no legal basis. Basic is the rule that
previous conviction is not a ground for disqualification of a witness;
unless otherwise provided by law. Mariters conviction is not
sufficient to have her disqualified to testify. Her situation is one of
the exceptions provided by law.
*What are the requisites to validly disqualify a witness due to
mental incapacity?
To be disqualified as a witness by reason of mental incapacity, the
following must concur:
1. The person must be incapable of intelligently making
known his perception to others; and
2. His incapability must exist at the time of his production for
examination.
T/F. Mental incapacity of a witness at the time of perception of
the events affect his competency as a witness.
False. Mental incapacity of a witness at the time of his perception of
the events subject of the testimony does not affect his competency
as long as he is competent at the time he is produced for
examination to make known his perception to others.
*What are the requisites to validly disqualify a witness due to
immaturity?
To be disqualified as a witness by reason of immaturity the
following must concur:
1. The mental maturity of the witness must render him
incapable of perceiving the facts respecting which he is
examined; and
2. He is incapable of relating his perception truthfully
T/F. Immaturity of a witness at the time of perception of the
events affect his competency as a witness.
False. The incompetence of the witness must exist not at the time of
his perception of the facts but at the time he is produced for
examination, and consists in his ability to intelligently make known
what he has perceived.
Child Witness - he is any person who at the time of giving
testimony is below the age of 18 years
May a person over 18 years old be sometimes considered as a
child?
Yes. In child abuse cases, a child includes one over 18 years but is
found by the court as unable to fully take care of himself or protect

Every child is presumed to be a competent witness. This is the

presumption established by the Rule on Examination of a Child
Witness.
What does a party seeking a competency examination of a child
witness present when seeking the same?
A party who seeks competency examination must present proof of
necessity of a competency examination.
Is competency examination of a child open to the public?
No. The competency examination of a child witness is not open to
the public. Only the following are allowed to attend the
examination:
1. The judge and necessary court personnel
2. The counsel for the parties
3. The guardian ad litem
4. One or more support person for the child, and
5. The defendant unless the court determines that competence
can be fully evaluated in his absence.
May the counsel of the adverse party conduct a competency
examination of a child?
No. The competency examination of the child shall be conducted
only by the judge. If the counsels of the parties desire to ask
questions, they cannot do so directly. Instead, they are allowed to
submit questions to the judge which he may ask the child in his
discretion.
May issues related to the trial be raised in the competency
examination of a child?
No. The questions shall not be related to the issues at the trial but
shall focus on the ability of the child to remember, to communicate,
to distinguish between truth and falsehood and to appreciate the
duty to testify truthfully.
When may the trial court order that the testimony of a child be
taken by live-link television?
The court may order that the testimony of the child be taken by livelink television if there is a likelihood that the child would suffer
trauma from testifying in the presence of the accused, his counsel or
the prosecutor as the case may be. The trauma must be of a kind
which would impair the completeness or truthfulness of the
testimony of the child.
*Survivorship Disqualification Rule (Dead Mans Statute)
It states that the parties or assignors of parties to a case, or persons
in whose behalf a case is prosecuted, against an executor or
administrator or other representative of a deceased person, or
against a person of unsound mind, upon a claim or demand against
the estate of such deceased person or against such person of
unsound mind, cannot testify as to any matter of fact occurring
before the death of such deceased person became of unsound mind.
To what cases does the Dead Mans Statute apply?

This rule applies only to a civil case or special proceeding

Elements of Dead Mans Statute:
1.
2.
3.
4.

The defendant in the case is the executor or administrator

or the representative of the deceased or the person of
unsound mind;
The suit is upon a claim by the plaintiff against the estate
of said deceased person or person of unsound mind
The witness is the plaintiff, or an assignor of that party, or
a person in whose behalf the case is prosecuted; and
The subject of the testimony is as to any matter of fact
occurring before the death of such deceased person or
before such person became of unsound mind.

Maximo filed an action against Pedro, the administrator of the

estate of the deceased Juan, for the recovery of a car which is
part of the latters estate. During the trial, Maximo presented
witness Mariano who testified that he was present when
Maximo and Juan agreed that the latter would pay a rental of
P20K for the use of Maximos car for one month after which
Juan should immediately return the car to Maximo. Pedro
objected to the admission of Marianos testimony. If you were
the judge, would you sustain Pedros objection? Why?
The objection of Pedro should be sustained. The testimony is
admissible because the witness is not disqualified to testify. Those
disqualified under the Dead Mans Statute or the Survivorship
Disqualification Rule are parties or assignors of parties to a case, or
persons in whose behalf a case is prosecuted. The witness is not one
of those enumerated under the rules.

Yes. It also extends to both criminal and civil cases because the rule
does not distinguish.
Does the Spousal Immunity Rule require that the spouse
claiming the privilege against the testimony of the other be
validly married?
Yes. In order that the husband or wife may claim the privilege, it is
essential that they be validly married. If they are not, there is no
privilege.
For the Spousal Immunity Rule to apply, is it necessary that the
subject of the testimony came to the witness-spouse during the
marriage?
No. If the testimony for or against the other spouse is offered during
the existence of the marriage, it does not matter if the facts subject
of the testimony occurred or came to the knowledge of the witnessspouse before the marriage. The affected spouse may still invoke
the rule by objecting to the testimony as long as the testimony is
offered during the marriage.
Is the privilege waivable? How?
Yes. The Spousal Immunity Rule is waivable. The testimony is
prohibited only over the objection of the affected spouse or the
spouse against whom the testimony is offered.
In Spousal Immunity Rule, who has the right to object to the
competency of the testimony of the witness spouse?
It is the latter spouse who has the right to object to the competency
of the spouse-witness.

T/F. The Surviving Parties Rule bars Maria from testifying for
the claimant as to what the deceased Jose had said to her, in a
claim filed by Pedro against the estate of Jose.

Does the Spousal Immunity Rule also extend to production of

documents by the witness-spouse?

False. The rule bars only a party plaintiff, or his assignor or a

person in whose behalf a case is prosecuted. Maria is merely a
witness and is not one of those enumerated as barred from
testifying.

Yes. The testimony covered by the marital disqualification rule not

only consists of utterances by the witness-spouse against the
affected spouse but also the production of documents against the
latter.

*Marital Disqualification Rule (Spousal Immunity Rule)

Exception to the Marital Disqualification Rule

It means that during marriage, neither the husband nor the wife may
testify for or against the other without the consent of the affected
spouse, except in a civil case by one against the other, or in a
criminal case for a crime committed by one against the other or the
latters direct descendants or ascendants.

In the following instances, a spouse may testify for or against the

other even without the consent of the latter:
1. In a civil case by one against the other; or
2. In a criminal case for a crime committed by one against the
other, or the latters direct descendants or ascendants

The Spousal Immunity Rule is based on what intent of society?

Is the exception to the Marital Disqualification Rule limited to

injuries which amount to physical wrong?

The rule is based on societys intent to preserve the marriage

relations and promote domestic peace.
Does the prohibition under the Spousal Immunity Rule extend
to both testimony which is adverse or for the affected spouse?
Yes. The prohibition extends not only to a testimony adverse to the
spouse but also to a testimony in favor of a spouse.
Does the Spousal Immunity Rule apply to both criminal and
civil cases?

No. In Cargill v. State, it is stated that the rule that the injury must
amount to a physical wrong upon the person is too narrow. The
better rule is that, when an offense directly attacks or directly and
virtually impairs the conjugal relations, it comes within the
exception of the statute.
T/F. A witness-spouse can validly testify against the other in a
civil case even if the civil case is instituted by a third person
against the latter spouse.
False. In order for a spouse to be allowed to testify against the other
in a civil case, the case must be a civil case by one against the other.

T/F. A witness-spouse can validly testify against the other in a

criminal case provided that the criminal act is committed
against the witness-spouse only and to no other third person.
False. The rule is different in a criminal case. In a criminal case, the
privilege of one to testify against the other is not confined to crimes
committed by one against the other, but covers crimes committed
by one against the direct descendants or ascendants of the latter like
the latters children or parents. However, crimes committed against
a spouses collateral relatives like uncles, aunties, cousins or
nephews and nieces are not covered by the exception because they
are neither direct descendants nor ascendants.
May a spouse testify in a trial where a spouse is a co-accused?
Yes. In People v. Quidato, Jr., the court ruled in the affirmative but
likewise held that the testimony of the wife in reference to her
husband must be disregarded since the husband timely objected
thereto under the marital disqualification rule. (So nag-apply din sa
huli ang disqualification )
Leticia was estranged from her husband Paul for more than a
year due to his suspicion that she was having an affair with
Manuel, their neighbor. She was temporarily living with her
sister in Pasig City.
For unknown reasons, the house of Leticias sister was burned,
killing the latter. Leticia survived. She saw her husband in the
vicinity during the incident. Later, he was charged with Arson
in an Information filed with the RTC.
During the trial, the prosecutor called Leticia to the witness
stand and offered her testimony to prove that her husband
committed arson.
Can Leticia testify over the objection of her husband on the
ground of marital privilege?
Leticia cannot testify. Sec 22 of Rule 130 bars her testimony
without the consent of the husband during the marriage. The
separation of the spouses has not operated to terminate their
marriage.
*Marital Privileged Communications - it means that the husband
or wife, during or after the marriage, cannot be examined without
the consent of the other as to any communication received in
confidence by one from the other during the marriage except in a
civil case by one against the other, or in a criminal case for a crime
committed by one against the other or the latters direct descendants
or ascendants.
What are the requirements for the application of the Marital
Privilege Communication Rule?
The application of the rule requires the presence of the following
elements:
1. There must be a valid marriage between the husband and
wife;
2. There is a communication received in confidence by one
from the other; and
3. The confidential communication was received during the
marriage.
XYZ, an alien, was criminally charged of promoting and
facilitating child prostitution and other sexual abuses under RA
7610. The principal witness against him was a Filipina wife,
ABC. Earlier, she had complained that XYZs hotel was being

used as a center for sex tourism and child trafficking. The

defense counsel for XYZ objected to the testimony of ABC at
the trial of the child prostitution case and the introduction of
the affidavits she executed against her husband as a violation of
espousal confidentiality and marital privilege rule. It turned out
that DEF, the minor daughter of ABC by her first husband who
was a Filipino, was molested by XYZ earlier. Thus, ABC had
filed for legal separation from XYZ since last year.
May the court admit the testimony and affidavits of the wife,
ABC, against her husband, XYZ, in the criminal case involving
child prostitution?
If the testimony and affidavit of the wife are evidence of the case
against her husband for child prostitution involving her daughter,
the evidence is admissible. The marital privilege communication
rule under Sec 24 of Rule 130 as well as the marital disqualification
rule under Sec 22 of Rule 130 do not apply to and cannot be
invoked in a criminal case committed by a spouse against the direct
descendants of the other.
A crime committed by the husband against the daughter of his wife
is considered a crime committed against the wife and directly
attacks or vitally impairs the marital relations.
*Marital Disqualification Rule v. Marital Privilege Rule
Includes facts, occurrences or
Refer to confidential
information even prior to the
communication between
marriage
husband and wife during
marriage
The spouse affected by the
The spouse affected by the
disclosure of facts can no longer disclosure of the information
invoke the rule once the
may object even after the
marriage is dissolved
dissolution of marriage
Requires that the spouse for or
Applies whether the spouse is a
against whom the testimony is
party or not
offered is a party to the action
C is the child of the spouses H and W. H sued his wife for
judicial declaration of nullity of marriage under Art 36 of the
Family Code. In the trial, the following testified over the
objection of W: C, H and D, a doctor of medicine who used to
treat W. Rule on Ws objection that H cannot testify against her
because of the rule on marital privilege.
The objection should be overruled. The rule invoked by W, i.e., the
rule on marital privilege, does not apply to a civil case by one
against the other. The suit between the spouses is a civil case
against the other.

*Attorney-Client Privilege - An attorney cannot, without the

consent of his client, be examined as to any communication made
by the client to him, or his advice given thereon in the course of, or
with a view to, professional employment, nor can attoneys
secretary, stenographer, or clerk be examined, without the consent
of his client and his employer, concerning any fact the knowledge
of which has been acquired in such capacity.
*Requisites of Attorney-Client Privilege
1.
2.
3.

Communication by client to attorney

Communication given in confidence
Communication given in the course of employment or with
a view to professional employment

Does the privilege communication apply even if the counsel

refuses the professional relationship?
Yes. The privilege is extended to communications made for the
purpose of securing the services of counsel even if counsel later
refuses the professional relationship.
May there be an instance when the attorney-client privilege
may be invoked against a non-lawyer?
Yes. There is authority to support the theory that it is enough if he
reasonably believes that the person consulted is a lawyer, although
in fact he is not as in the case of a detective pretending to be a
lawyer.
Is there an attorney-client relationship when a person asks a
lawyer a question as a friend?
No. When a person consults an attorney not as a lawyer but merely
as a friend, or a participant in a business transaction, the
consultation would not be one made in the course of a professional
employment or with a view to professional employment as required
by the rules, and if proven to be so, would not be within the ambit
of the privilege.
Is there a required form for the communication between
attorney and client for the privilege to apply?
No. The communication may be oral or written but is deemed to
extend to other forms of conduct like physical demonstration as
long as they are intended to be confidential.
Does the privilege extend to future acts of crime intended to be
done by client?
No. It is commonly acknowledged that the privilege does not extend
to communications where the clients purpose is the furtherance of a
future intended crime or fraud.
Last-link doctrine Non-privileged information, such as the
identity of the client, is protected if the revelation of such
information would necessarily reveal privileged information.
Does the privilege apply when the communication of
confidential information was made before the lawyers
secretary?
Yes. The statements of the client need not have been made to the
attorney in person. Those made to the attorneys secretary, clerk or
stenographer for transmission to the attorney for the purpose of the

professional relationship or with a view to such relationship or

those knowledge acquired by such employees in such capacity are
covered by the privilege.
What must be the character of the communication between the
attorney and client for the privilege to apply?
Before the statements of the client and the advice of the attorney be
deemed as privileged, the same should have been intended as
confidential.
Does the privilege apply in suits between attorney and the
client?
No. The weight of authority supports the view that when the client
and attorney become embroiled in a controversy between
themselves, as in an action filed for payment of attorneys fees or
for damages against the negligence of the attorney, the privilege is
removed from the attorneys lips.
Who can invoke the attorney-client privileged communication?
In relation to the attorney, the privilege is owned by the client. It is
he who can invoke the privilege. If the client waives the privilege,
no one else, including the attorney can invoke it.
Does the privilege communication between attorney and client
survive the death of the client?
Yes. The protection of the privilege will generally survive the death
of the client. However, there had been cases where the privilege
was not made to apply in cases involving the validity or
interpretation of the clients will. Where there is an attack on the
validity of the will, communications made to the attorney on the
drawing of the will, while confidential during the lifetime of the
client are not intended to require secrecy after his death.
A tugboat owned by Speedy Port Service, Inc. (SPS) sank in
Manila Bay while helping tow another vessel, drowning 5 of the
crew in the resulting shipwreck. At the maritime board inquiry,
the 4 survivors testified. SPS engaged Atty. Ely to defend
against potential claims and to due the company owning the
other vessel for the damages to the tug. He also interviewed
other persons, in some instances making memoranda. The heirs
of the 5 victims filed an action for damages against SPS.
Plaintiffs counsel sent written interrogatories to Ely, asking
whether statements of witnesses were obtained; if written copies
were to be furnished; if oral, the exact provisions were to be set
forth in detail. Ely refused to comply, arguing that the
documents and information asked are privileged
communication. Is the contention tenable? Explain.
No. The contention is not tenable. The documents and information
sought to be disclosed are not privileged. They are evidentiary
matters which will eventually be disclosed during the trial. What is
privileged under the rules is (a) the communication made by the
client to the attorney, or (b) the advice given by the attorney, in the
course of, or with the view to professional employment. The
information sought is neither a communication by the client to the
attorney nor is it an advice by the attorney to his client.
*Physician-Patient Privilege - A person authorized to practice
medicine, surgery or obstetrics cannot in a civil case, without the
consent of the patient, be examined as to any advice or treatment
given by him or any information which he may have acquired in

attending such patient in a professional capacity, which information

was necessary to enable him to act in that capacity, and which
would blacken the reputation of the patient.
Does the physician-patient privilege apply to criminal cases?
No. The privilege applies to a civil case, whether the patient is a
party or not. Further, the rule implies that the privilege cannot be
claimed in a criminal case because the interest of the public in
criminal prosecution should be deemed important than the secrecy
of the communication.
What is the rationale for the privilege communication between
physician and patient?
The rationale for the privilege is to encourage the patient to freely
disclose all the matters which may aid in the diagnosis in the
treatment of a disease or an injury.
The privileged communication between physician and patient
can be claim by whom?
The patient is the one who may claim the privilege against the
physician.
What are the forms of information which the physician cannot
disclose with regard to his patient?
The information which cannot be disclosed refers to:
a. Any advice given to the client
b. Any treatment given to the client; and
c. Any information acquired in attending such patient
provided that the advice, treatment or information was
made or acquired in a professional capacity and was
necessary to enable him to act in the capacity; and
d. That the information sought to be disclosed would tend to
blacken the reputation of the patient.
Must there be a contractual relationship between physician and
patient for the privilege communication to be invoked?

The physician is acting in a professional capacity when he attends

to the patient for either curative or preventive treatment.
Is the privileged communication between physician and patient
waivable?
Yes. The privilege may be waived by the patient. (1) When there is
disclosure by the patient of the information, there is, necessarily, a
waiver. (2) There could also be a waiver by operation of the law or
the rules. Under the rules, the Court, in which the action is pending
may, in its discretion, order a party to submit to a physical or mental
examination.
C is the child of the spouses H and W. H sued his wife for
judicial declaration of nullity of marriage under Art 36 of the
Family Code. In the trial, the following testified over the
objection of W: C, H and D, a doctor of medicine who used to
treat W. Rule on Ws objection that D cannot testify against her
because of the doctrine of privilege communication.
D cannot testify over the objection of W where the subject of the
testimony is the advice or treatment given by him or any
information which he may have acquired in attending to W in his
professional capacity.
Priest/Minister-Penitent Privilege Communication - A minister
or priest cannot, without the consent of the person making the
confession, be examined as to any confession made to or any advice
given to him in his professional character in the course of discipline
enjoined by the church to which the priest or minister or priest
belongs.
Who has the power to invoke the privileged communication
between priest and penitent?
The person making the confession (penitent) holds the privilege and
the priest or minister hearing the confession in his professional
capacity is prohibited from making a disclosure of the confession
without the consent of the person confessing.

No. It is opined that the rule does not require that the relationship
between the physician and the patient be result of a contractual
relationship. It could be the result of a quasi-contractual relationship
as when the patient is seriously ill and the physician treats him even
if he is not in the condition to give his consent as in this situation
described in Art 2167 of the Civil Code.

Are all confessions made to the minister under the scope of the
privilege?

Does the privilege communication between physician and

patient apply to autopsies?

Privileged Communications to Public Officers - A public officer

cannot be examined during his term of office or afterwards, as to
communications made to him in official confidence, when the court
finds that the public interest would suffer by the disclosure.

No. The results of autopsies may not be deemed covered by the

privilege because autopsies are not intended for treatment.
Does the privilege communication between physician and
patient survive the patients death?
Yes. The privilege survives the death of the patient. Thus, in
Gonzales vs. CA, the SC, prevented the disclosure of medical
findings that would tend to blacken the reputation of the patient
even after his death.
It is a general rule that for the privilege to apply, the physician
must have been acting in his professional capacity, when is the
physician acting in his professional capacity?

No. Not every confession made to the minister or priest is

privileged. The communication must be made pursuant to
confessions of sins.

What is sought to be protected by the privileged

Communications to public officers?
It is the interest of the public which is sought to be protected by the
rule.
*Executive privilege; Presidential Communications Privilege This is the power of the government to withhold information from
the public, the Courts, and the Congress. Here the Court
acknowledged that there are certain types of information which the
government may withhold from the public like military, diplomatic
and national security secrets.

3.
*What are the matters in which the executive privilege applies?
1.
2.
3.

Military
Diplomatic, and
Other National Security matters

Does the executive privilege extend to department heads and

secretaries called by Congress?
No. Since Congress has the authority to inquire into the operations
of the executive branch, it would be incongruous to hold that the
power of inquiry does not extend to executive officials who are the
most familiar with and informed on executive operations. When
Congress exercises its powers of judicial inquiry, the department
heads are not exempt by the mere fact that they are department
heads. Accordingly, only one executive official may be exempt
from the power of inquiry of Congress the President upon whom
the executive power is vested and is beyond the reach of Congress
except thru the power of impeachment.
T/F. Appearance of Department heads in the question hour is
mandatory and not merely discretionary on their part.
False. Appearances of Department heads in the question hour is
discretionary on their part.
Can the department heads make use of the executive privilege
to evade from the inquiries of Congress?
No. Privilege communication cannot be applied to appearances of
department heads in inquiries in aid of legislation and congress is
not bound to respect the refusal of the department heads in such
inquiry, unless a valid claim of privilege is subsequently made by
the President herself or by the Executive Secretary.
Are the offers made during international commercial
transactions subject to the executive privilege?
Yes. The Court reiterated what it held in previous cases that the
information on inter-government exchanges prior to the conclusion
of treaties and executive agreements may be subject to reasonable
safeguards for the sake of national interest. The Court then declared
that by applying the principles it had previously adopted, the Court
held that while the final text of JPEPA may not be left perpetually
confidential since there is a need to discuss the same before it is
approved, the offers exchanged by the parties during the
negotiations continue to be privileged even after the JPEPA is
published. Disclosing these exchanges could impair the ability of
the Philippines to deal not only with Japan but with other foreign
governments in future negotiations. Reminding the parties of what
it had declared in Chavez vs. PCGG, that while the constitutional
right to information on on-going negotiations before a final
contract, such information does not cover recognized exceptions
like privilege communication, military and diplomatic secrets and
similar matters affecting national interest.
Elements of Presidential Communications Privilege:
1.
2.

The protected communications must relate to a

quintessential and non-delegable presidential power;
The communication must be authored or solicited and
received by a close advisor of the President or the
President himself; and

The presidential communications privilege remains a

qualified privilege that may be overcome by a showing of
adequate need, such that the information sought likely
contains important evidence and by an appropriate
investigating authority.

*Parental and Filial Privilege - Under the former rule, a parent

cannot be compelled to testify against his child or direct
descendants. Under the latter rule, a child may not be compelled to
testify against his parents or direct ascendants.
What is the rule under the family code that supports the filial
privileged communication rule?
Under the Family Code, No descendant shall be compelled, in a
criminal case, to testify against his parents and grandparents. The
exceptions are:
1. When such testimony is indispensable in a crime
committed against said descendant; or
2. In a crime committed by one parent against the other
C is the child of the spouses H and W. H sued his wife for
judicial declaration of nullity of marriage under Art 36 of the
Family Code. In the trial, the following testified over the
objection of W: C, H and D, a doctor of medicine who used to
treat W. Rule on Ws objection that C cannot testify against her
because of the doctrine of parental privilege.
The contention is not tenable. W cannot invoke the privilege which
belongs to the child. C may testify if he wants to although he may
not be compelled to do so. (Privilege is for C to invoke)
Other privileges not mentioned in the Rules:
1. Editors may not be compelled to disclose the source of the
published news;
2. Voters may not be compelled to disclose for whom they
voted for;
3. Trade secrets;
4. Information contained in tax census returns; and
5. Bank deposits (others are)
6. Information at conciliation proceedings
7. Communication of suspicious transactions to AMLC

What are the testimonies which need not be necessarily given in

open court?
1.
2.
3.
4.

Testimonies in Summary procedure

Testimonies in civil cases
Depositions made before a notary public
Testimonies of a party in behalf of another

Oath it is an outward pledge made under an immediate sense of

responsibility to God in attestation of the truth on some statement.

May a witness-accused refuse to take the witness stand?

Yes. If the witness is the accused, he may totally refuse to take the
witness stand. Unlike a mere witness who cannot altogether refuse
to take the stand. Before he refuses to answer, he must wait for the
incriminating question.
What must the counsel do in case a witness is subjected to
intimidation, harassment and embarrassment?
Raise a timely objection on the question

Affirmation it is a substitute for an oath and is a solemn and

formal declaration that the witness will tell the truth.
What is the effect of failure to take an oath or give an
affirmation?

Where shall the examination of a child witness be presented

during his delivery of his testimony?

The testimony of the witness may be barred

In open court, unless:

1. The witness is incapacitated; or
2. The question calls for a different mode of answering

In general, the answer of the witness to questions shall be

answered orally, what are the exceptions?

When may the public be excluded from observing the act of

testifying of a child witness?

1.
2.

The witness is incapacitated; or

The question calls for a different mode of answering

After the accused himself had testified in his defense in a

murder case, the trial judge, over the objection of the fiscal,
allowed the defense counsel to file and merely submit the
affidavits of the other witnesses of the accused in lieu of their
direct testimony but subject still to cross-examination by the
prosecution. The fiscal thus filed with the SC a petition for
certiorari and prohibition to nullify the order of the trial court
judge allowing such a procedure. Should said petition be
granted?
Yes. The petition should be granted. The provisions of the Rules
require that the examination of the witnesses shall be done in open
court and their answers be given orally, not in writing, unless the
exceptions mentioned therein apply, to wit: (a) the witness is
incapacitated to speak, or (b) the questions calls for a different
mode of answer. None of the exceptions apply to the case under
consideration. The court, therefore, acted in excess of jurisdiction
amounting to lack of jurisdiction when it allowed the presentation
of the affidavits without an oral examination of the witness.
NOTE: Rule here is slightly modified at present due to the judicial
affidavit rule
Rights of Witness
1.
2.
3.
4.
5.

Not to give testimony that will subject him to penalty

To be protected from harsh questions
To be examined on matters pertinent to issue
Not to be detained longer than the Judge required
Not to give degrading testimonies to his reputation

May a witness under the witness protection program refuse to

testify on the ground of his right against self-incrimination?
No. A witness admitted into the witness protection program cannot
refuse to testify or to give evidence or produce books, documents,
records, or writings necessary for the prosecution of the offense or
offenses for which he has been admitted on the ground of the right
against self-incrimination.

The order shall be made if the court determines on the record that
1. To testify in open court would cause psychological harm to
him, hinder the ascertainment of truth, or result in his
inability to effectively communicate due to
embarrassment, fear or timidity
2. When the evidence to be produced during trial is of such a
character as to be offensive to decency or public morals
When may the child be accompanied by an interpreter?
Upon motion or motu proprio, when:
1. The child does not understand English or Filipino, or
2. Unable to communicate said language due to his
developmental level, fear shyness, disability or other
similar reason
In general, reports regarding a child shall be confidential and
kept under seal. Except upon written request and order of the
court, a record shall be released to the following:
1. Members of the court staff
2. Prosecuting attorney
3. Defense counsel
4. Guardian ad litem
5. Agents of investigating law enforcement agencies; and
6. Other persons as determined by the court
What shall be the liability of a person who publishes or cause
the publication of the information of an alleged child witness?
Liability to the contempt power of court (indirect contempt)
May a child be held liable for perjury?
No. The youthful offender who fails to acknowledge the case
against him or to recite any fact related thereto in response to any
inquiry made to him for any purpose, shall not be held under any
provision of law guilty of perjury or of concealment or
misrepresentation.
Direct-examination examination in chief of a witness by the
party presenting him on the facts relevant to the issue.

Cross-examination This is the examination of a witness by the

adverse party after said witness has given his testimony on direct
examination.
Cross-examination has 2 basic purposes:
1. To bring out facts favorable to counsels client not
established by the direct testimony, and
2. To enable counsel to impeach or to impair the credibility of
the witness
Re-direct examination This examination is conducted after the
cross-examination of the witness.

3.
4.

When the witness is hostile witness, or

When the witness is an adverse party, or when a witness is
an officer, director, managing agent of a corporation,
partnership, or association which is an adverse party.

T/F. Leading questions are not allowed when examining a child

witness.
False. The court may allow leading questions in all stages of
examination of a child under the condition that the same will further
the interest of justice.

Re-cross examination This is the examination conducted upon

the conclusion of the re-direct examination.

The case is a collection case. The defendant contends that the

debt has been paid. He calls a witness to testify to the fact of
payment.

Will the death of the witness before the end of his crossexamination have the effect of the striking out of all his
testimony?

Q: While the plaintiff and the defendant were engaged in a

conversation on the date and time you mentioned, did you see
the defendant deliver P50K to the plaintiff?

No. If the witness dies before his cross-examination is over, his

testimony on the direct may be stricken out only with respect to the
testimony not covered by the cross-examination.

Is the question objectionable?

Does the absence of a witness for furtherance of his cross

examination warrant the striking out of all his testimony?
No. The absence of the witness is not enough to warrant striking out
his testimony for failure to appear for further cross-examination
where the witness has already been sufficiently cross-examined, and
the matter on which cross-examination is sought is not in
controversy.

Yes. The question is objectionable on the ground that it is leading.

Here, the examiner obviously wants the witness to directly testify
that money was delivered by the defendant to the plaintiff in his
presence. The question could have been properly framed in this
manner. What have you observed, if any, while the plaintiff and the
defendant were engaged in a conversation?
Misleading questions - A misleading question is one which
assumes as true a fact not yet testified to by the witness, or contrary
to that which he has previously stated. It is not allowed in any type
of examination.

May recalling of a witness be made even without leave of court?

No. If the witness has been examined by both sides, the witness
cannot be recalled without leave of court. Recalling a witness is a
matter of judicial discretion.
Leading questions - A leading question is one that is framed in
such a way that the question indicates to the witness the answer
desired by the party asking the question. In the words of Sec 10
Rule 132, it is a question which suggests to the witness the answer
which the examining party desires. (Question indicating an answer)
T/F. Leading question is generally allowed in direct and redirect examination.
False. Leading questions are not appropriate in direct and re-direct
examinations particularly when the witness is asked to testify about
a major element of the cause of action or defense.
T/F. Leading questions are allowed in cross and re-cross
examination.
True. Leading questions are allowed in cross and re-cross
examinations.
*What are the instances when leading questions may be allowed
in direct or re-direct examination?
1.
2.

On preliminary matters
When the witness is ignorant, or a child of tender years, or
is feeble-minded, or a deaf-mute and there is difficulty in
getting direct and intelligible answers from such witness

Counsel: You testified that you and the accused were in a car
bound for Baguio City. How fast were you driving?
Is the question objectionable?
Yes. This question is objectionable as misleading where there was
no previous testimony from the witness that he was driving the car.
The question assumes a fact not yet in evidence.
Impeachment of a witness it is basically a technique employed
usually as part of the cross-examination to discredit a witness by
attacking his credibility.
Guidelines in impeaching a witness:
1. The impeachment of a witness is to be done by the party
against whom the witness is called;
2. Subject to certain exceptions, the party producing the
witness is barred from impeaching his own witness.
3. By exception to the immediately preceding rule, if the
witness is unwilling or hostile, the party calling him may
be allowed by the court to impeach the witness. A party
may also be allowed to impeach his own witness when
said witness is an adverse party or is an officer, director, or
managing agent of a corporation, partnership, or
association which is an adverse party.
4. It is improper for the party calling the witness to present
evidence of the good character of his own witness. The
same is allowed only if the character of the witness has
been impeached.
*What are the modes of impeaching a witness?

A witness may be impeached thru the following modes:

1. By contradictory evidence;
2. By evidence that his general reputation for truth, honesty
and integrity is bad; or
3. By evidence that he has made at other times statements
inconsistent with his present testimony. (Laying the
predicate)
Illustration of Impeachment by contradictory evidence
Witness A testifies on direct that he was barely 5 meters away from
where the accused D fired a shot at the victim, V. The defense
counsel has reliable information that at the time the shooting took
place, Witness A was standing as a witness in a wedding of his
friend, Witness B in a place a hundred miles away. The defense
counsel now asks:
Q: You testified that you were present when D shot V, is that right?
A: Perfectly right, Sir!
Q: Isnt it true that at the time of the alleged shouting of V by D,
you were in a wedding of your friend miles and miles away?
A: That isnt true sir, absolutely not.
Because Witness A denied his being in a friends wedding at the
time of the incident, the defense counsel now has the chance to
prove the contrary by contradictory evidence. He can do so by
calling Witness B or any other witness to testify on the whereabouts
of Witness B on the relevant date and time. An expert witness may
likewise be contradicted by presenting another expert with contrary
opinions.
Illustration of Impeachment by prior inconsistent statements
The case is a robbery case. The accused has Oriental features and is
five feet and three inches tall. The prosecution witness is one who
allegedly saw the culprit come out of the crime scene.
Q: Mr. A, you testified on direct examination that the man you saw
come out of the burglarized store had Oriental features and was a
little over five feet tall. Is that correct?
A: Yes, Sir.
Q: Are you certain of your description of the man?
A: Very certain, Sir.
Q: And when was this?
A: On February 15, 2005, around 9:30 in the evening. That was the
date and time of the burglary.
Q: Do you recall having seen SPO4 Morales outside the burglarized
store at around 10:00 of the same day and night.
A: I do, Sir. He spoke to me that night and asked me what I saw.
Q: And that was only ten minutes from the time you saw the man. Is
that correct?
A: That is correct, Sir.
Q: And at that time, everything was still fresh in your mind, right?
A: Youre absolutely right, Sir.
Q: Do you recall telling SPO4 Morales that you cannot give an
accurate description of the man who came out of the burglarized
store because he was wearing bonnet over his face, had a pair of
gloves on and was wearing dark long sleeves.
At this point the witness gets boxed in, and his credibility starts
crumbling no matter how he responds to the question asking him to
affirm or to deny the prior inconsistent statement. (Same rule as
when the prior statement is made in writing)

What are the aspects in which the bad reputation of a witness

for purposes of his impeachment may refer to?
Evidence of bad reputation for the purpose of impeachment should
refer only to the following aspects:
1. For truth
2. For Honesty, or
3. For integrity
These are aspects of a persons reputation that are relevant to his
credibility. Thus, it would be improper for a witness to be
impeached because of his reputation for being troublesome and
abrasive.
Illustration of Impeachment by showing bad reputation
Mr. W is called by the prosecution to testify that it was indeed the
accused who picked the pocket of the victim when the latter
incidentally tripped by the sidewalk. The defense later presents Mr.
D, a neighbor of Mr. W for 30 years, who testifies that Mr. W has a
reputation in the community for telling lies. The testimony of Mr. D
is an impeaching testimony to discredit Mr. W. Mr. D, who has
testified on the reputation of Mr. W, may be cross-examined like
any witness. He may be asked on cross-examination about the
extent of his familiarity with the witness who is being impeached,
together with any prejudice and biases he may have against the
witness or his stake and interest in the case.
May the party calling a witness present evidence of good
character of the said witness?
No. The party calling a witness, cannot initiate proof of the said
witness good character. This is because a witness is presumed to be
truthful and of good character, the party presenting him does not
have to prove he is good because he is presumed to be one. It is
only after his character has been attacked, can he prove his being
good. He must first be discredited before his reputation or character
can be bolstered.
T/F. A witness-accused cannot present evidence of his good
moral unless impeached by the adverse party.
False. The rule that bars evidence of the good character of the
witness who has not yet been impeached has reference only to a
mere witness. It does not refer to an accused in a criminal case. In a
criminal case, the accused may prove his good moral character
relevant to the offense charged even before his character is attacked.
The defense counsel asks a series of questions to show specific
instances of misconduct of the prosecution witness:
Q: Do you know the prosecution witness?
A: I do
Q: How did you come to know him?
A: 2 years ago, he robbed me of my wallet at gun point.
Q: Was the incident the first time you know the prosecution
witness?
A: No, Sir.
Q: Why do you say so?
A: Prior to my being robbed by him, he stole the carabao of my
neighbor.
Is this line of questioning objectionable?

Yes, it is. A witness cannot be impeached by evidence of particular

wrongful acts. Just as a witness cannot testify on specific acts of
misconduct committed by the witness being impeached, the latter
cannot also be examined on particular wrongful acts done by him.
To do so would be against the tenor of Sec 11 Rule 132.
What is the exception to the rule that a witness cannot be
impeached by evidence of his particular wrongful act?
There is a particular wrongful act that is admissible in evidence
his prior conviction of an offense. This prior conviction of the
witness is shown thru either of 2 ways: (a) by his examination, i.e.,
by cross-examining him, or (b) by presenting the record of his prior
conviction.
What is the Rule on Exclusion and Separation of Witnesses?
The judge may exclude a witness who at the time of exclusion is not
under examination so that he may not hear the testimony of other
witnesses. The judge may cause the witnesses to be kept separate
and to be prevented from conversing with one another until all shall
have been examined.

Under the sexual abuse shield rule under the Rule on Examination
of a Child Witness, the following are not admissible in any criminal
proceeding involving alleged sexual child abuse:
1. Evidence offered to prove that the alleged victim engaged
in other sexual behavior, and
2. Evidence offered to prove the sexual predisposition of the
alleged victim.
Exception: Evidence of specific instances of sexual behavior by the
alleged victim is admissible to prove that a person other than the
accused was the source of semen, injury, or other physical evidence.
Is evidence of specific instances of sexual behavior of the child
absolutely inadmissible as evidence?
No. Evidence of specific instances of sexual behavior by the alleged
victim is admissible to prove that a person other than the accused
was the source of semen, injury, or other physical evidence.
In general, the opinion of the witness is not admissible as
evidence, what are the exceptions?
1.

Character is the aggregate of the moral qualities which belong to

and distinguish an individual person; the general result of ones
distinguishing attributes.
Is character evidence admissible as evidence?
No. Character evidence is, as a rule, not admissible.
May the prosecution prove the bad moral character of the
accused in its main evidence?
No. In a criminal case, the prosecution cannot prove the bad moral
character of the accused in its evidence-in-chief (direct
examination). It can only do so in rebuttal.
When may the accused prove his good moral character in a
case?
The accused may prove his good moral character when pertinent to
the moral trait involved in the offense charge.
Is the accused prohibited from proving his good moral
character as evidence?
No. While the prosecution if forbidden to present evidence of the
bad moral character of the accused, unless in rebuttal, the general
rule against propensity evidence does not apply to the accused who
is allowed to offer evidence of his good character.
May the good or bad moral character of the offended party be
proved by the accused?
Yes. The good or bad moral character of the offended party may be
proved by the accused if it tends to establish in any reasonable
degree the probability or improbability of the offense charged. This
rule applies only to criminal cases and not to administrative cases.
What are the inadmissible evidence against the abused child
under the Rule on Examination of a Child Witness?

2.

When opinion of an expert regarding his special

knowledge, skill or training; or
When opinion of an ordinary witness regarding:
a. Identity of person about whom he has adequate
knowledge
b. Handwriting with which he has sufficient familiarity,
and
c. Mental sanity of a person with whom he is sufficiently
acquainted

The witness may also testify on his impressions of the emotion,

behavior, condition or appearance of a person.
Dencio barged into the house of Marcela, tied her to a chair and
robbed her of assorted pieces of jewelry and money. Dencio
then brought Candida, Marcelas maid, to a bedroom where he
raped her. Marcela could hear Candida crying and pleading:
Huwag! Maawa ka sa akin! After raping Candida, Dencio fled
from the house with the loot. Candida then untied Marcela and
rushed to the police station about a kilometer away and told
Police Officer Roberto Maawa that Dencio had barged into the
house of Marcela, tied the latter to a chair and robbed her of
jewelry and money. Candida also related to the police officer
that despite her pleas, Dencio had raped her. The policeman
noticed that Candida was hysterical and on the verge of a
collapse. Dencio was charged with robbery with rape. During
trial, Candida can no longer be located. If the police officer will
testify that he noticed Candida to be hysterical and on the verge
of collapse, would such testimony be considered as opinion,
hence, inadmissible?
No. The testimony would be admissible even if it would be an
opinion. The opinion of an ordinary witness is admissible when
such testimony refers to his impressions of the emotion, behavior,
condition or appearance of a person.

Hearsay Evidence
What is the first hand knowledge rule?
Opinion Evidence
In general, the opinion of the witness is not admissible as
evidence, what are the exceptions?

It states that a witness can testify only on those matters to which he

has personal knowledge
What is the result of non-objection to hearsay evidence?

1.
When opinion of an expert regarding his special
knowledge, skill or training; or
2.
When opinion of an ordinary witness regarding:
a. Identity of person about whom he has adequate knowledge
b. Handwriting with which he has sufficient familiarity, and
c. Mental sanity of a person with whom he is sufficiently
acquainted
The witness may also testify on his impressions of the emotion,
behavior, condition or appearance of a person.
Why is opinion evidence generally not allowed?
Because the witness should testify on what he perceived and it is for
the court to give an opinion on such perception
Dencio barged into the house of Marcela, tied her to a chair and
robbed her of assorted pieces of jewelry and money. Dencio
then brought Candida, Marcelas maid, to a bedroom where he
raped her. Marcela could hear Candida crying and pleading:
Huwag! Maawa ka sa akin! After raping Candida, Dencio fled
from the house with the loot. Candida then untied Marcela and
rushed to the police station about a kilometer away and told
Police Officer Roberto Maawa that Dencio had barged into the
house of Marcela, tied the latter to a chair and robbed her of
jewelry and money. Candida also related to the police officer
that despite her pleas, Dencio had raped her. The policeman
noticed that Candida was hysterical and on the verge of a
collapse. Dencio was charged with robbery with rape. During
trial, Candida can no longer be located. If the police officer will
testify that he noticed Candida to be hysterical and on the verge
of collapse, would such testimony be considered as opinion,
hence, inadmissible?
No. The testimony would be admissible even if it would be an
opinion. The opinion of an ordinary witness is admissible when
such testimony refers to his impressions of the emotion, behavior,
condition or appearance of a person.
Is the court bound to accept expert opinion during trial?
No. Upon its discretion, the Court may call other expert witnesses.
In examining an expert, hypothetical data must be presented to the
witness and said witness shall give his opinion on it. The said data
must be hypothetical and not the actual case.
Hearsay Rule

Hearsay evidence if not objected to is admissible as evidence.

However, even if admitted, it has no probative value.
When is evidence hearsay
The element of purpose had long been recognized in this
jurisdiction. The SC admitted unsigned statement of accounts not to
prove the truth of its entries but for the purpose of showing the
possessors good faith in making improvements on the property, and
to show that such improvements were made pursuant to a verbal
contract that the leased property will eventually be sold to her.
The SC acknowledged that the ban on hearsay evidence does not
include statements which are relevant independently of whether
they are true or not, like statements of a person to show, among
others, his state of mind, mental condition, knowledge, belief,
intention, ill-will and other emotions.
What is a statement as defined by the Federal Rules?
It is either an oral or written assertion or a nonverbal conduct
intended by the person as an assertion.
Specific elements of hearsay evidence (As enumerated by the
Federal Rules)
To constitute hearsay therefore, there must be:
1. An out of court statement, oral, written or non-verbal
conduct, made by one other than the one made by the
declarant or witness testifying at the trial; and
2. The out of court statement must be offered to prove the
truth of the matter asserted in the out of court statement.
What is the test for hearsay evidence?
The test is a test of purpose of statement in connection with the 2nd
element, that is, the out of court statement must be offered to prove
the truth of the matter asserted in the out of court statement for the
statement to become hearsay.
Why is hearsay evidence excluded by the rules?
1.
2.
3.
4.

Denies the accused right to confrontation

Speaker may misperceive, err into calling, falsify or
misunderstood the truth
Depreciates the truth
Opportune fraud

What is the rule on hearsay evidence?

What is double hearsay rule?
A witness can testify only to those facts which he knows of his
personal knowledge; that is, which are derived from his own
perception, except as otherwise provided in the rules.

It is when a hearsay statement offered as evidence contains another

hearsay statement.

What is the basis for excluding hearsay evidence?

What is multiple hearsay rule?

The rule excluding hearsay testimony rests mainly on the ground

that there is no opportunity to cross-examine the outside declarant.

It is when a hearsay statement offered as evidence contains another

hearsay statement which contains another hearsay statement.

What is a negative hearsay (hearsay by silence or evidence of

non-complaint)?
It is the testimony by an in-court witness regarding the conduct or
silence by other individuals outside of court. It can be sustained if,
for instance, it will be used to prove that the product of a
manufacturer is not defective due to the fact that no complaints
were received from other buyers.
When is an out of court statement offered to prove a nonhearsay matter?
When the out of court statement is not offered to prove the truth of
the matter asserted, it is said that the statement is offered for a nonhearsay purpose. If it is offered to prove the truth of the statement, it
is hearsay because it is offered to prove a hearsay purpose.

aside and said, They had no Idea I am Saddam Hussein. When I

served him supper, he said, Those fools! They didnt realize they
just met Alexander the Great!
Court: Objection overruled!
Are the statements of the testator to prove the truth of the
assertions therein?
No. Certainly not. Obviously, out of court statements of the testator
are not offered to prove that he is Joseph Stalin, Theodore
Roosevelt, Saddam Hussein and Alexander the Great rolled into
one. They are offered for a non-hearsay purpose i.e., to prove by
inference thru the statement that the testator on the day the will was
executed, was incapacitated by reason of a mental condition. From
experience we know that a persons state of mind may be revealed
by his actions or by what he says. The declarants words or conduct
constitute circumstantial evidence of his state of mind.

Is hearsay evidence limited to out of court statements?

No. It may be written, oral, in silence or thru actions.
May an erroneously admitted hearsay evidence become the
basis of a decision?
No. Hearsay evidence may be admitted; however, it does not have
sufficient probative value.
What is consent evidence?
It is evidence not objected to in court.
Hearsay evidence vs. Opinion evidence
Not based on ones personal
Based on personal knowledge of
perception but based on
the witness based on his skill,
knowledge of others
training or experience
Examples of Non-Hearsay Evidence:
1.
2.

Where a statement is not offered for the truth of the

contents of the conversation, but only to show that it was
made, then the statement is not hearsay.
Statements relating to the state of mind of the declarant
and statements relating to the state of mind of the listener.

Out-of-court statements offered to prove mental state of the

declarant
Let us assume we have a special proceeding in court. Lets say it
is the probate of a testators will. Some heirs who felt aggrieved
by the dispositions in the will have raised the issue of the
testators sanity. The will was purportedly executed on January
3 of the previous year. A witness for the oppositor is on the
witness stand to testify on the testators alleged incapacity.
Q: How long have you known the testator?
A: For 20 years by the time he died, Sir.
Q: On January 3, 2008, what did you hear the testator say, if
any?
Objection your honor! Hearsay! (Opposing Counsel objects)
Court: Not so fast Panero. Witness may answer.
A: In the morning of January 3, he said, I am Joseph Stalin. At
around 12 high noon, he told me, I am Theodore Roosevelt.
Right after the subscribing witnesses to his left, he brushed me

Out-of-court statement offered to prove its effect on the

listener/hearer
The accused is a police officer who chanced upon the crime
scene and arrested the complaining witness after he was
fingered by a witness to the felony. He is on the stand to testify
on the circumstances surrounding the arrest.
Q: Sir, what were you doing on such and such place?
A: I was on a routine patrol.
Q: What happened on such and such date on such and such
time?
A: I saw people milling around something in the corner of ABC
and XYZ Sts.
Q: What if any did you do?
A: I got out of my patrol car to see what was happening.
Q: What if any did you see?
A: I saw a man lying face downward on the side of the street
with blood all over his back.
Q: What happened next?
A: A man whispered to me. This happened two minutes ago and
that guy sitting there pretending to be an onlooker is the culprit.
Objection! Hearsay!
Court: Objection overruled!
Does the hearsay rule apply?
No. The testimony, This happened barely two minutes ago and that
guy sitting there pretending to be an onlooker is the culprit, is not
offered to prove that (a) the incident occurred two minutes ago, or
(b) that the guy sitting and pretending to be an onlooker was the
culprit. The testimony was offered to prove that an arrest was made
as a consequence of the out of court statements effect on the hearer.
This effect was the reason for the arrest. This effect is relevant to
justify the apprehension of the complaining witness. Words offered
to prove the effect on the hearer are admissible when they are
offered to show their effect on one whose conduct is at issue.
Out-of-court statement offered to prove that the statement was
made
Prosecutor: What did you hear the witness say?
Defense: Objection, question calls for hearsay testimony!
Court: Not so fast! Witness may answer.
Witness: The accused said while pointing to the victim: You are
a thief! You stole my money! You are a liar!

Court: Objection overruled!

Is the testimony of the witness excludable as hearsay?
No. It is not. The testimony is not a hearsay. It is not offered to
prove that the complaining witness is a thief or a liar. It is offered to
prove the tenor of the statement, i.e., that the statement was made.
What is significant is the making of the statement. Beyond the mere
fact that the words were uttered, the statement proves nothing as to
its averments because the out of court declarations relevance is
independent of the truth of its assertions.
Independently relevant (relative) statements It states that a
declarants statement may have relevance to an issue in a case from
the mere fact that the words were spoken or written, irrespective of
the truth or falsity of the assertion. It is not hearsay and is therefore
not barred by the hearsay evidence rule.
A witness may be asked questions concerning what the accused
told him that other persons were involved in the conspiracy if the
purpose of the testimony is not to prove that such persons were
really involved in the conspiracy but only to prove what the
accused had mentioned. (PP vs. Cusi, Jr)
Newspaper accounts of an incident are hearsay if offered to prove
the truth of the accounts but are not hearsay if offered for a
purpose other than the truth of the matter asserted. The
newspaper account is admissible only to prove that there was a
publication and merely the tenor of the news, but not its truth.
(Feria vs. CA)
Classification of independently relevant statements under
Disierto vs. Estrada
First class:
1. Those statements which are the very facts in issue, and
2. Those statements which are circumstantial evidence of the
fact in issue.
Second class:
1. Statements of a person showing his state of mind, that is,
his mental condition, knowledge, belief, intention, ill-will
and other emotions;
2. Statements of a person which shows his physical
condition, as illness and the like;
3. Statements of a person from which an inference may be
made as to the state of mind of another, that is, knowledge,
belief, motive, good or bad faith, etc. of the latter.
4. Statements which may identify the date, place and person
in question, and
5. Statements showing the lack of credibility of a witness.
The prosecution presented in evidence a newspaper clipping of
the report to the reporter who was present during the press
conference stating that X admitted the robbery. Is the
newspaper clipping admissible against X?
The newspaper clipping is admissible as non-hearsay if offered for
the purpose of showing that the statement of X was made to a
reporter regardless of the truth or falsity of the statement. The
admissibility depends now on whether the fact that the statement
was made is relevant to the case. If it is relevant, it is admissible as
an independent relevant statement (a non-hearsay declaration). It
would be hearsay if offered to prove the truth that X was the robber.

*Exceptions to the Hearsay Rule:

1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.

Dying declarations
Declaration against interest
Act or declaration against pedigree
Family reputation or tradition regarding pedigree
Common reputation
Part of the res gestae
Entries in the course of business
Entries in official records
Commercial lists and the like
Learned treatises
Testimony or deposition at a former trial

*Dying declarations The declaration of a dying person, made

under the consciousness of an impending death, may be received in
any case wherein his death is the subject of inquiry, as evidence of
the cause and surrounding circumstances of such death.
What are the reasons for the admissibility of dying
declarations?
1.

2.

Necessity Because the declarants death renders it

impossible his taking the witness stand, and it often
happens that there is no other equally satisfactory proof of
the crime; allowing it, therefore, prevents a failure of
justice.
Trustworthiness - Because the declaration is made in
extremity, when the party is at the point of death and when
every motive to falsehood is silenced and the mind is
induced by the most powerful considerations to speak the
truth.

The dying declaration exception was not available in rape,

abortion, kidnapping, burglary cases or any civil case.
As long as the relevance is clear, a dying declaration may now be
introduced in a criminal or civil action and the relevance is
satisfied where the subject of inquiry is the death of the declarant
himself.
Under the rules, it is evident that a mere consciousness of death is
not enough because everyone of us, at one time or another has
become conscious of death. The kind of death of which the
declarant should be conscious of is a death that is impending. The
declarant must be conscious that death is near and certain, that
death is near at hand, and what is said must have been spoken in
the hush of its impending presence.
The declarants belief that he is going to die soon may be shown
circumstantially by the obvious fatal quality of the wound, by the
statements made to the victim by the physician that his condition
is hopeless, or by some other circumstances. (PP vs. Silang Cruz)
If the declarants statement is made under consciousness of an
impending death, a subsequent belief in recovery before his
actual death does not bar admissibility of his statement. (PP vs.
Black)
The early case of US vs. Antipolo affirms that dying declarations
are admissible in favor of the defendant as well as against him.
Thus, a dying declaration which avers that the firearm that
injured the declarant was not discharged on purpose but only
accidentally, is admissible to prove the innocence of the accused.

Suppose that a man collapses on your front door, blood oozing

from his back where a knife is prominently planted. You rush to
help him and you notice, the poor, hapless guy is your next door
neighbor, Candido. You have long wanted to ask him whether or
not he had something to do with the death of Calixto, another
neighbor six months ago. As he lay dying in your arms, you ask
him the question and in a weak voice, he whispers: It was not
me it was Frank Santos. In a couple of seconds he dies.
a. Is Candidos statement admissible as a dying declaration
against Frank Santos for the death of another neighbor?
No. This is because the declaration was neither about the cause nor
the circumstances of the declarants death. It is not admissible
because the subject of the inquiry is the death of someone else.
b. What if instead of pointing to Frank, Candido declared that:
Joaquin stabbed me! Haltingly and between gasps, he states he
and Joaquin had been robbing tourists in the area for the past
12 months, that a couple of hours ago they robbed a tourist of
his money worth P5K, that there was an argument between
them while dividing the loot, and that as a consequence,
Joaquin stabbed him in the back. Despite his weakened state, he
also states that he and Joaquin were also responsible for
robbing the convenient store at the street corner the day before.
Would the other declarations other than Joaquin stabbed me!
be admissible as dying declaration?

Assailing a Dying Declaration

Although jurisprudentially considered as evidence of the highest
order, it is submitted that the admissibility of a dying declaration,
like any admissible evidence, does not create a conclusive
presumption of credibility of the admitted declaration.
The declarant himself may be impeached thru the normal
methods provided for under the rules. For instance, the objector
may show that prior to the admitted declaration, the declarant had
previously made a statement inconsistent with his supposedly
dying declaration.
Courts have to apply to dying declarations the same rules applied
in testing the credibility of testimony of a witness in court. No law
allows them to use a different criterion. One may even question
the competency of the declarant himself who, like any other
witness, may also be impeached. If the declarant is incompetent
under the rules if he were to appear in Court and in person, he
would also be incompetent as a dying declarant. Thus, if a court
would adjudge him incompetent because of his insanity if he were
alive, there is no reason to consider him sane as a dying
declarant.
Res gestae Things done
Res Gestae under the Rules of Court

No. While the inclusion of the declaration that he was stabbed

because of an argument while dividing the loot, may be argued to
be part of the circumstances surrounding the declarants death, other
portions of the declaration like the admission that he and Joaquin
had been robbing tourists in the past and that they recently robbed a
convenient store, do not come within the purview of the exception.
They are distinct matters to the killing.
*Elements of Dying Declaration
1.
2.
3.
4.
5.
6.

That the declaration is one made by a dying person

That the declaration was made by such dying person under
a consciousness of his imminent death;
That the declaration refers to the cause and circumstances
surrounding the death of the declarant and not of anyone
else;
That the declaration is offered in a case where the
declarants death is the subject of the inquiry;
The declarant is competent as a witness had he survived
The declarant should have died.

Fallen by a bullet upon being fired at, Santos before expiring

told Romero, a passerby who came to his rescue, I was shot by
Pablo, our neighbor.
May Romeros testimony on what was told him by Santos be
offered and admitted in evidence in the separate civil action for
damages brought by the heirs against Pablo Cruz?
Yes. The statement is admissible. A dying declaration, as in the facts
in the case at bar, may be offered in a civil case provided that the
cause and circumstances of the death of the declarant are the
subjects of the inquiry.
Rationale for the Admissibility of a Dying Declaration - No
person who knows of his impending death would make a careless or
false accusation. A dying declaration is entitled to the highest
respect.

*Part of the Res Gestae Statements made by a person while a

startling occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances thereof, may
be given in evidence as part of the res gestae. So also, statements
accompanying an equivocal act material to the issue, and giving it a
legal significance, may be received as part of the res gestae.
We will observe that the use of res gestae in the Philippines is
limited to two matters: (1) spontaneous statement, and (2) verbal
acts.
Other parts of res gestae:
1.
2.
3.

Presents sense of impression when vehicle is running at a

high speed and is swerving, the witness may have the
impression that the driver is drunk
Declaration of present state of mind statement describes
declarants present state of mind
Present physical condition declaration of pain as
described by witness

*Spontaneous Statements
Spontaneous statements (spontaneous exclamations or excited
utterances) to be admitted in evidence must have the following
characteristic:
1. That there is a startling event or occurrence taking place;
2. That while the event is taking place or immediately prior
to or subsequent thereto, a statement has been made;
3. The statements were made before the declarant had the
time to contrive or devise a falsehood;
4. That the statement relates to the circumstances of the
startling event or occurrence, or that the statements must
concern the occurrence in question and its immediate
attending circumstances.

The justification for the excited utterance exception is that a

spontaneous declaration of an individual who has recently
suffered an overpowering and shocking experience is likely to be
truthful.
A declaration by a deceased person concerning the circumstances
of his death may not be considered a dying declaration if it cannot
be established that he uttered his statement while conscious of his
impending death but the utterance of the victim made immediately
after sustaining injuries may be considered the incident speaking
thru the victim. While it may not qualify as a dying declaration, it
may nonetheless be admitted in evidence as part of the res gestae.
A declaration made spontaneously after a startling occurrence is
deemed a part of the res gestae when (1) the principal act, the res
gestae, is a startling occurrence; (2) the statements were made
before the declarant had time to contrive or devise; and (3) the
statements concern the occurrence in question and its
immediately attending circumstances.
Dencio barged into the house of Marcela, tied her to a chair and
robbed her of assorted pieces of jewelry and money. Dencio
then brought Candida, Marcelas maid, to a bedroom where he
raped her. Marcela could hear Candida crying and leading:
Huwag! Maawa ka sa akin! After raping Candida, Dencio fled
from the house with the loot. Candida then untied Marcela and
rushed to the police station about a kilometer away and told
police Officer Roberto Maawa that Dencio had barged into the
house of Marcela, tied the latter to a chair and robbed her of
jewelry and money. Candida also related to the police that
despite her pleas, Dencio had raped her. The policeman noticed
that Candida was hysterical and on the verge of collapse.
Dencio was charged with robbery with rape. During the trial,
Candida can no longer be located.
If the prosecution presents Police Officer Roberto Maawa to
testify on what Candida had told him, would such testimony of
the policeman be hearsay?
The testimony would be hearsay if offered to prove the truth of the
statement of Candida, but an admissible hearsay as an exception to
the hearsay rule. Under the Rules of Court, statements made by a
person while a startling occurrence is taking place or immediately
prior or subsequent thereto with respect to the circumstances
thereof, may be given in evidence as part of res gestae. The
statements made by Candida to the Police Officer fall within the res
gestae rule.
If the statement of Candida is offered merely to prove the tenor of
the statement, i.e. what Candida told the Police Officer without
regard to whether the statement is true or not, it may be considered
as an independently relevant statement and, thus, not hearsay.
*Verbal Acts
They are statement accompanying an equivocal act material to the
issue and giving it a legal significance.
To be admissible under this category, the following requisites must
be present:
1. The principal act to be characterized must be equivocal;
2. The equivocal act must be material to the issue;
3. The statement must accompany the equivocal act; and
4. The statement gives a legal significance to the equivocal
act.
Entries in the Course of Business (Business Records Rule)

Entries made at, or near the time of the transactions to which they
refer, by a person deceased, or unable to testify, who was in position
to know the facts therein stated, may be received as prima facie
evidence, if such person made the entries in his professional
capacity or in the performance of duty or in the ordinary or regular
course of business or duty.
This is commonly encountered in breach of contract suits and suits
of collection of a sum of money.
Elements of Business Records Rule
1.
2.
3.
4.
5.

Entries were made at, or near the time of the transactions

referred to;
Such entries were made in the regular course of business;
The person making the entries was in the position to know
the facts stated in the entries.
The person making the entries did so in his professional
capacity, or in the performance of duty and in the regular
course of business; and
The person making the entry is now dead or unable to
testify.

The Rules on electronic evidenced also expressly exempt business

records from the hearsay rule.
It has been held that entries in the payroll, being entries in the
ordinary course of business enjoy the presumption of regularity
under Sec 43 of Rule 130 of the Rules of Court.
*Declarations Against Interest
The declaration made by a person, deceased or unable to testify,
against the interest of the declarant, if the fact asserted in the
declaration was at the time it was made so far contrary to
declarants own interest, that a reasonable man in his position would
not have made the declaration unless he believed it to be true, may
be received against himself or in his successors in interest and
against third persons.
The declaration contemplated by Rule 130 is a declaration against
interest. If the declaration is favorable to the interest of the
declarant, it is a mere self-serving statement and does not fall as
an exception to the hearsay rule.
Note that the declaration against interest made by the deceased,
or by one unable to testify, is admissible even against the
declarants successor in interest or third persons.
Admission vs. Declaration against interest
Admissible whether declarant is Declarant must be dead or
dead or alive
unable to testify
Made at anytime even after or
Made before controversy arises
during trial
Need not be against ones
Made against ones
pecuniary/moral interest
pecuniary/moral interest
Admissible only against parties
Admissible even against 3rd
persons
Not an exemption to any rule
Exemption to hearsay rule
Declaration About Pedigree
The act or declaration of a person deceased, or unable to testify, in
respect to the pedigree of another person related to him by birth or

marriage, may be received in evidence where it occurred before the

controversy, and relationship between the two persons is shown by
evidence other than such act or declaration. The word pedigree
includes relationship, family, genealogy, birth, marriage, death, the
dates when and the places where these facts occurred, and the
names of the relatives. It embraces also facts of family history
intimately connected with pedigree.
Elements of Declaration About Pedigree
1.
2.
3.
4.

The declarant is dead, or unable to testify;

That the declarant is related by birth or marriage to the
person whose pedigree is in issue;
The declaration was made before the controversy; and
The relationship between the two persons is shown by
evidence other than such act or declaration.

The declaration of Jose, already dead, prior to his death and prior
to any controversy, that Juan is illegitimate son, is a declaration
about pedigree. Similarly, a statement from a mother while
leaving, that her daughters Maria and Pedra were sired by the
same father is admissible.
Be it noted that the declaration about pedigree may be received in
evidence if the relationship is shown by evidence other than the
declaration.
Family Relation or Tradition Regarding Pedigree
The reputation or tradition existing in a family previous to a
controversy, in respect to the pedigree of any one of its members,
may be received in evidence if the witness testifying be also a
member of the family, either by consanguinity or affinity. Entries in
family bibles or family books or charts, engraving or rings, family
portraits and the like, may be received as evidence of pedigree.
Common Reputation (Ancient document)
Common reputation existing previous to the controversy, respecting
facts of public or general interest more than thirty years old, or
respecting marriage or moral character, may be given in evidence.
Monuments and inscriptions in public places may be received as
evidence of common reputation.
Entries in Official Records
Entries made in official records made in the performance of his duty
by a public officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law, are prima facie
evidence of the facts therein stated.
Commercial Lists and the Like
Evidence of statements of matters of interest to persons engaged in
an occupation contained in a list, register, periodical, or other
published compilation is admissible as tending to prove the truth of
any relevant matter so stated if that compilation is published for use
of persons engaged in that occupation and is generally used and
relied upon by them therein.
Learned Treatises
A published treatise, periodical or pamphlet on a subject of history,
law, science or art is admissible as tending to prove the truth of a
matter stated therein if the court takes judicial notice, or if a witness

expert on the subject testifies, that the writer of the statement in the
treatise, periodical or pamphlet is recognized in his profession, or
calling as expert in the subject.
Testimony or Deposition at a Former Proceeding
The testimony or deposition of a witness diseased or unable to
testify, given in a former case or proceeding, judicial or
administrative, involving the same parties and subject matter, may
be given in evidence against the adverse party who had the
opportunity to cross-examine him.
Exception to the Hearsay Rule Under the Rule on Examination
of a Child Witness
A statement made by a child, in child abuse cases, describing any
act or attempted act of child abuse, not otherwise admissible under
the hearsay rule, may be admitted in evidence in any criminal or
non-criminal proceeding, although before such hearsay statement
may be admitted, certain requisites must concur:
1. The proponent shall make known to the adverse party the
intention to offer such statement and its particulars to
provide him a fair opportunity to object;
2. If the child is available, the court shall, upon motion of the
adverse party, require the child to be present at the
presentation of the hearsay statement for crossexamination of the adverse party;
3. When the child is unavailable (as when the child is
diseased, suffers from physical infirmity, mental illness,
loss of memory, or because the child will be exposed to
severe psychological injury), the fact of such circumstance
must be proved by the proponent and the hearsay
testimony shall be admitted only if corroborated by other
admissible evidence. (Sec. 28, Rule on Examination of a
Child Witness)

Burden of Proof, Quantum of Evidence and Presumptions

Test for Determining where Burden of Proof Lies

A Burden of Proof and Burden of Evidence

The burden of proof rests with the party who wants to establish a
legal right in his favor.

Burden of Proof
Where Burden of Proof is Fixed
(Onus probandi) Refers to the obligation of a party to the litigation
to perform to the court that he is entitled to relief
Burden of proof is the duty of a party to present evidence on the
facts in issue necessary to establish his claim or defense by the
amount of evidence required by law.
It is a basic rule that he who alleges must prove what is alleged.
(Nikko Hotel Manila Garden v. Reyes)
Sec 1 of Rule 131, is the duty of a party to present evidence not
only to establish a claim but also a defense.
In suits against a common carrier, the passenger plaintiff does not
have the burden of proving the defendant carriers negligence since
common carriers are presumed to have been at fault, or to have
acted negligently in case of death of or injuries to passengers (Art
1756, Civil Code). On the contrary, under the same provision, the
defendant has the burden of proof to show that it had observed the
extraordinary diligence required by law. The plaintiff has to show
however, the existence of a contract and the breach of the contract
of carriage. (Calalas v. CA)
The burden of proof that a debt was contracted lies with the
creditor-plaintiff. Ei incumbit probation qui dicit, non qui negat he
who asserts, not he who denies, must prove. If the defendant admits
the debt but defends by alleging that it has already been paid,
waived or otherwise extinguished, he has the burden to prove the
extinguishment of the alleged obligation.
In an eminent domain case, the local government that seeks to
expropriate private property has the burden of proving to show the
existence of compliance with the elements for the valid exercise of
the right of eminent domain. This is because the burden of proof is
on the party making the allegations.
In termination cases, the burden of proof rests upon the employer to
show that the dismissal is for a valid and just cause. Failure to do so
would necessarily mean that the dismissal was not justified, and,
therefore, was illegal.
In Mobile Protective & Detective Agency v. Ompad, the Court held
that should an employer interpose the defense of resignation, it is
still incumbent upon respondent company to prove that the
employee voluntarily resigned.
In disbarment proceedings, the burden of proof rests upon the
complainant, and for the court to exercise its disciplinary powers,
the case against the respondent must be established by clear,
convincing and satisfactory proof. Indeed, considering the serious
consequences of the disbarment or suspension of a member of the
Bar, the Supreme Court has consistently held that clearly
preponderant evidence is necessary to justify an imposition of the
administrative penalty.
In an accident insurance, the insureds beneficiary has the burden of
proof in demonstrating that the cause of death is due to the covered
peril.

The burden of proof is fixed by the pleadings. The claim of the

plaintiff which he must prove, is spelled out in his complaint. The
defendants defenses which he must likewise prove are to be found
in his answer to the complaint. The burdens of proof of both parties
do not shift during the course of the trial.
Burden of Evidence
To illustrate: In insurance cases, where a risk is excepted by the
terms of a policy, loss from such a risk constitutes a defense which
the insurer may urge, since it has not assumed that risk, and from
this it follows that an insurer seeking to defeat a claim has the
burden of proving that the loss comes within the purview of the
exception or limitation set-up. If a proof is made of a loss
apparently within a contract of insurance, the burden is upon the
insurer to prove that the loss arose from a cause of loss which is
expected or for which it is not liable, or from a cause which limits
its liability. Consequently, it is sufficient for the insured to prove the
fact of damage or loss. Once the insured makes out a prima facie
case in his favor, the duty or burden of evidence shifts to the insurer
to controvert the insureds prima facie case. It is only when the
insurer has sufficiently proven that the damage or loss was caused
by an excepted risk that the burden of evidence shift back to the
insured who is then under a duty of producing evidence to show
why such excepted risk does not release petitioner from any
liability.
Distinguish burden of proof and burden of evidence
Obligation of a party to present
Duty of the party to go forward
evidence on the facts in issue
with the evidence to overthrow
necessary to establish his claim
any prima facie presumption
or defense by the amount of
against him. (Shifts)
evidence required by law (Sec 1
Rule 130). (Does not shift)
Equipoise Rule or Equiponderance Doctrine
The equipoise doctrine is based on the principle that no one shall be
deprived of life, liberty or property without due process of law. (Sec
1, Art III, Constitution)
The doctrine refers to a situation where the evidence of the parties
are evenly balanced or there is doubt on which side the evidence
preponderates. In this case the decision should be against the party
with the burden of proof is on the plaintiff and the evidence does
not suggest that the scale of justice should weigh in his favor the
court should render a verdict for the defendant.
In a criminal case, the equipoise rule provides that where the
evidence is evenly balanced, the constitutional presumption of
innocence tilts the scales in favor of the accused.
In labor cases, if doubt exists between the evidence presented by the
employer and the employee, the scales of justice must be tilted in
favor of the latter.
Doctrine of In Dubio Pro Reo It states that when moral certainty
hangs on the balance, the scale shall tilt in favor of the accused

B Quantum of Evidence - is the amount of evidence needed; the

quality of proof is how reliable such evidence should be considered
Preponderance of Evidence
It means the greater or superior weight of evidence. It is the
evidence that is more convincing and more credible than the one
offered by the adverse party.
In determining whether or not there is preponderance of
evidence, the court may consider the following:
1. All the facts and circumstances of the case;
2. The witnesses manner of testifying, their intelligence,
their means and opportunity of knowing the facts to which
they are testifying, the nature of the facts to which they
testify, the probability or improbability of their testimony;
3. The witnesses interest or want of interest, and also their
personal credibility so far as the same may ultimately
appear in the trial;
4. The number of witnesses, although it does not mean that
preponderance is necessarily with the greater number.
To persuade by the preponderance of evidence is not to take the
evidence quantitatively but qualitatively
Proof Beyond Reasonable Doubt
It does not mean such a degree of proof as, excluding possibility of
error, produces absolute certainty. Moral certainty only is required,
or that degree of proof which produces conviction in an
unprejudiced mind.
Well-entrenched in jurisprudence is the rule that the conviction of
the accused must rest, not on the weakness of the defense, but on
the strength of the prosecution. The burden is on the prosecution to
prove guilt beyond reasonable doubt, not on the accused to prove
his innocence.
Moral certainty is that degree of proof which produces conviction
in an unprejudiced mind.
Reasonable doubt is the standard of evidence required to validate a
criminal conviction in most adversarial legal systems.

In a petition for a writ of amparo, the parties shall establish their

claims by substantial evidence. (Sec 17, Rule on the Writ of
Amparo)
Effect of Failure to Prove Administrative Liability on the
Criminal Case
In Paredes v. CA, the accused argued that as his liability in the
administrative case against him was not established by substantial
evidence, so will his criminal case necessarily fall, demanding as it
does, a heavier quantum of proof, i.e., proof beyond reasonable
doubt. To this argument the SC declared:
The petition must fail.
It is indeed a fundamental principle that administrative cases are
independent from criminal actions for the same act or omission.
Thus, an absolution from a criminal charge is not a bar to an
administrative prosecution, or vice versa. One thing is
administrative liability; quite another thing is the criminal liability
for the same act.
Criminal and administrative proceedings may involve similar
operative facts; but each requires a different quantum of evidence.
Thus considering the difference in the quantum of evidence, as well
as the procedure followed and the sanctions imposed in criminal
and administrative proceedings, the findings and conclusions in one
should not necessarily be binding in the other. Notably, the evidence
presented in the administrative case may not necessarily be the
same evidence to be presented in the criminal cases. The
prosecution is certainly not precluded from adducing additional
evidence to discharge the burden of proof required in the criminal
cases.
Conversely we have also ruled that the dismissal of the criminal
case is not per se a bar to administrative sanctions. To paraphrase,
dismissal of the criminal case does not foreclose administrative
action involving the same facts.
Clear and Convincing Evidence
Evidence is clear and convincing if it produces in the mind of the
trier of fact a firm belief or conviction as to the allegations sought to
be established.

Substantial Evidence
It is that amount of relevant evidence which a reasonable mind
might accept as adequate to justify a conclusion. It applies to
administrative cases filed before administrative and quasi-judicial
bodies.
Distinguish preponderance of evidence from substantial
evidence
Applies to civil cases
Applies to cases before
administrative and quasi-judicial
bodies
Superior weight of evidence
Evidence which a reasonable
mind might accept as adequate
to support a conclusion
Quantum of Evidence in Petition for a Writ of Amparo

An extradition proceeding being sui generis, the standard of proof

required in granting or denying bail can neither be the proof beyond
reasonable doubt in criminal cases nor the standard of proof of
preponderance of evidence in civil cases. While administrative in
character, the standard of substantial evidence used in
administrative cases cannot likewise apply given the object of
extradition law which is to prevent the prospective extradite from
fleeing our jurisdiction. In his separate opinion in Purganan, Chief
Justice Puno proposed that a new standard which he termed clear
and convincing evidence should be used in granting bail in
extradition cases. According to him, this standard should be lower
than proof beyond reasonable doubt but higher than preponderance
of evidence. The potential extradite must prove by clear and
convincing evidence that he is not a flight risk and will abide with
all the orders and processes of the extradition court.
Some Jurisprudential Pronouncements on Clear and
Convincing Evidence

Although the decision may seem so erroneous as to raise doubts

concerning a judges integrity, absent extrinsic evidence, the
decision itself would be insufficient to establish a case against the
judge.

unless the contrary is proven (Art 1354, Civil Code). The

presumption involved has a definite legal effect.

Bare allegations of bias and partiality of the judge are not enough in
the absence of clear and convincing evidence to overcome the
presumption that the judge will undertake his noble role to dispense
justice according to law and evidence and without fear or favor.

Presumption of law or presumption juris is an assumption

which the law requires to be made from a set of facts.

Forgery cannot be presumed; hence, it was incumbent upon

petitioner to prove it. Forgery should be proved by clear and
convincing evidence, and whoever alleges it has the burden of
proving the same.
The presumption of regularity in the performance of official duties
will stand if the defense failed to present clear and convincing
evidence that the police officers did not properly perform their duty
or that they were inspired by an improper motive.

Kinds of Presumptions

Presumption of fact or presumption hominis it is when the

assumption is made from the facts without any direction or positive
requirement of law.
The presumption that an accused is innocent of the crime charged
until the contrary is proven is a presumption of law embodied in the
Constitution.
In case of death or injuries of passengers, common carriers are
presumed to have been at fault or to have acted negligently.
Effect of a Presumption

Evidentiary Weight of Electronic Evidence

In assessing the evidentiary weight of electronic evidence, certain
factors may be considered, like:
1. The reliability of the manner in which it was generated,
stored or communicated;
2. The reliability of the manner in which its originator was
identified;
3. The integrity of the information and communication
system;
4. The familiarity of the witness or the person who made the
entry with the communication and information system;
5. The nature and quality of the information which went into
the communication and information system; and
6. Other factors which the Court may consider (Sec 1, Rule 7,
Rules on Electronic Evidence)
Concept of Presumptions
A presumption is an assumption of fact resulting from a rule of law
which requires such fact to be assumed from another fact or group
of facts found or otherwise established in the action. A presumption
is not evidence.
Example: D is the debtor of C, creditor for P1M payable in 12
equal monthly installments. If evidence is introduced that the
installment payment for December has been paid by the creditor, a
presumption arises that previous installments have been paid. This
is because under the law, the receipt of a later installment of a debt,
without reservation as to prior installments, shall give rise to the
presumption that such installments have been paid. (Art 1176, Civil
Code)
Inference Distinguished from a Presumption
Factual conclusion that can
Mandated by law and
rationally be drawn from other
establishes a legal relation
facts
between or among the facts
Thus, if X proposes marriage to Y, it may be inferred that X is in
love with Y. This is a mere inference and has in fact no legal effect.
There are no legal relations established by the mere fact that one is
in love. On the other hand, if X enters into a contract of sale of a car
with Y, there arises a presumption that the contract was entered into
with a sufficient cause or consideration and although the cause is
not stated in the contract, it is presumed that it exists and is lawful,

A party in whose favor the legal presumption exists may rely on and
invoke such legal presumption to establish a fact in issue.
Principle of cumulative evidence it states that when the evidence
being presented are similar in nature and kind, the Court, upon its
discretion, may order the suspension of presentation of evidence
and give the counsel the caveat of deciding which among his
numerous evidence should be presented.
Presumptions Under the Rules of Court
A presumption may either be:
1. Conclusive (presumption juris et de jure) it is when the
presumption becomes irrebuttable upon the presentation of
the evidence and any evidence tending to rebut the
presumption is not admissible
or
2. Disputable or rebuttable (presumption juris tantum) it is
when the presumption may be contradicted or overcome
by other evidence.
Conclusive Presumptions Under the Rules of Court
1.

2.

Estoppel in pais or estoppel by conduct whenever a party

has, by his own declaration, or omission, intentionally or
deliberately led another to believe a particular thing is true,
and to act upon such belief, he cannot, in any litigation
arising out of such declaration, act or omission, be
permitted to falsify it.
The tenant is not permitted to deny the title of his landlord
at the time of the commencement of the relation of
landlord and tenant between them.

Conclusive presumption is based on the doctrine of estoppel

Estoppel
In relation to the party to be estopped, the essential elements are:
1. Conduct amounting to false representation or concealment
of material facts; or at least calculated to convey the
impression that the facts are otherwise than, and
inconsistent with, those which the party subsequently
attempts to assert;

2.
3.

Intent, or at least, expectation, that this conduct shall be

acted upon by, or at least influence, the other party, and
Knowledge, actual or constructive, of the real facts.

In relation to the party claiming the estoppel, the essential

elements are:
1. Lack of knowledge and of the means of knowledge of the
truth as to the facts in question;
2. Reliance, in good faith, upon the conduct or statements of
the party to be estopped;
3. Action or inaction based thereon of such character as to
change the position or status of the party claiming the
estoppel, to his injury, detriment or prejudice.
Disputable Presumptions
A significant example of disputable presumption under the Rules of
Court is the presumption that official duty has been regularly
performed. This presumption has been consistently recognized by
jurisprudence in favor of police officers. Thus: Settled is the rule
that in cases involving violations of the Dangerous Drugs Act,
credence is given to prosecution witnesses who are police officers
for they are presumed to have performed their duties in the regular
manner, unless there is evidence to the contrary suggesting illmotive on the part of the police officers or deviation from the
regular performance of their duties.

Art 164 of the Family Code is clear. A child who is conceived or

born during the marriage of his parents is legitimate. The law
requires that every reasonable presumption be made in favor of
legitimacy.
The so-called tender-age presumption under Art 213 of the Family
Code may be overcome only by compelling evidence of the
mothers unfitness. The mother is declared unsuitable to have
custody of her children in one or more of the following instances:
neglect, abandonment, unemployment, immorality, habitual
drunkenness, drug addiction, maltreatment of the child, insanity, or
affliction with a communicable disease. Here, the mother was not
shown to be unsuitable or grossly incapable of caring for her minor
child. All told, no compelling reason has been adduced to wrench
the child from the mothers custody.
The law presumes that there is fraud of creditors when:
1. There is alienation of property by gratuitous title by the
debtor who has not reserved sufficient property to pay his
debts contracted before such alienation; or
2. There is alienation of property by onerous title made by a
debtor against whom some judgment has been rendered in
any instance or some writ of attachment has been issued.
From the tenor of the law, the decision or attachment need
not refer to the property alienated and need not have been
obtained by the party seeking rescission.

Examples of Disputable Presumptions

In a case, the SC applied the presumption that the 2 deceased have
entered into a lawful contract of marriage. Several circumstances
gave rise to the presumption that a valid marriage existed between
them. Their cohabitation of more than 50 years cannot be doubted.
Their family and friends knew them to be married. Their reputed
status as husband and wife was such that even the original petition
for letters of administration filed referred to them as spouses.
When a mail matter is sent by registered mail, there exists a
presumption that it was received in the regular course of mail. The
facts to be proved in order to raise the presumption are: (a) that the
letter was properly addressed with postage prepaid; and (b) that it
was mailed. While a mailed letter is deemed received by the
addressee in the ordinary course of mail, this is still merely a
disputable presumption subject to controversion, and direct denial
of the receipt thereof shifts the burden upon the party favored by the
presumption to prove that the mailed letter was indeed received by
the addressee.
Every statute has in its favor the presumption of constitutionality.
This presumption is rooted in the doctrine of separation of powers
which enjoins upon the three coordinate departments of the
Government a becoming courtesy for each others acts. The theory
is that every law, being the joint act of the Legislature and the
Executive, has passed careful scrutiny to ensure that it is in accord
with the fundamental law. This Court, however, may declare a law,
or portions thereof, unconstitutional, where a petitioner has shown a
clear and unequivocal breach of the Constitution, not merely a
doubtful or argumentative one.
The absence of the logbook where marriage licenses are recorded is
not conclusive proof of non-issuance of marriage license. It can also
mean that the logbook just cannot be found. In the absence of
showing of diligent efforts to search for the said logbook, it cannot
easily be accepted that absence of the same also means nonexistence or falsity of entries therein.

There is no presumption of compensability of an ailment as held in

GSIS v. Nonoy.
This case originated from a claim for compensation, income and
hospitalization benefits filed by the respondent before the petitioner
due to Rheumatic Heart Disease and Pulmonary Tuberculosis
Minimal. The GSIS as affirmed by the Employees Compensation
Commission, ruled that Rheumatic Heart Disease is not a
compensable ailment under PD 626, as amended; that the
respondent failed to prove by substantial evidence that the risk of
contracting the said ailment had been increased by his working
conditions; and, that respondent failed to show any causal relation
between his ailment and his working conditions.
Respondent appealed to the CA which held that the claim is
meritorious and directed the payment of the same.
Tackling the issue of whether or not the respondent is entitled to
compensation benefits under existing law due to the condition of
Rheumatic Heart Disease, the SC reversed the ruling of CA. The
reversal was prompted by the failure of the facts to show that the
respondent discharged his burden of proof, under the measure of
substantial evidence, that his working conditions increased the risk
of contracting Rheumatic Heart Disease. In particular, said the
Court, the records show no medical information establishing the
etiology of Rheumatic Heart Disease that would enable this Court
to evaluate whether there is causal relation between the
respondents employment and his illness.
Under Art 1602 of the Civil Code, a contract shall be presumed to
be an equitable mortgage in any of the following cases:
1. When the price of a sale with the right to repurchase is
unusually inadequate;
2. When the vendor remains in possession as lessee or
otherwise;
3. When upon or after the expiration of the right to
repurchase another instrument extending the period of
redemption or granting a new period is executed;
4. When the purchaser retains for himself a part of the
purchase price;

5.
6.

When the vendor binds himself to pay the taxes on the

thing sold;
In any other case where it may be fairly inferred that the
real intention of the parties is that the transaction shall
secure the payment of a debt or the performance of any
other obligation.

The settled rule is that in the absence of satisfactory explanation,

one found in possession of and who used a forged document is the
forger and therefore guilty of falsification. If a person had in his
possession a falsified document and he made use of it (uttered it),
taking advantage of it and profiting thereby, the clear presumption
is that he is the material author of the falsification. (Maliwat v. CA)
It is disputably presumed that a driver was negligent if he had been
found guilty of reckless driving or violating traffic regulations at
least twice within the next preceding 2 months. (Art 2184, Civil
Code)
The doctrine of res ipsa loquitur (the thing speaks for itself) also
establishes a presumption of negligence against the defendant and
furnishes a substitute for a specific proof of negligence. The
doctrine can be invoked only when under the circumstances, direct
evidence is absent and not readily available. For the doctrine to
apply, the following must be satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur
in the absence of someones negligence;
2. It is caused by an instrumentality within the exclusive
control of the defendant or defendants, and
3. The possibility of contributing conduct which would make
the plaintiff responsible is eliminated.
State the rules in presumptive deaths
2 Kinds of Presumed Death
1.

Ordinary presumption because of ordinary absence

a. Disappears under normal condition - A person not
heard of for 7 years is presumed dead for all purposes
except for succession.
b. Presumed dead for purpose of succession after 10
years
c. Presumed dead for purpose of succession after 5 years
in case he disappeared after the age of 75

2.

Extraordinary presumption because of extraordinary or

qualified absence
a. Great probability of death of person because of (i) lost
of vessel or airplane and has not been heard of for 4
years, (ii) taking part in war and has been missing for
4 years, and (iii) danger of death under other
circumstances and has been lost for 4 years
b. In circumstance (ii) and (iii) the death is presumed to
have happened on the day of disappearance but the
actual division of the inheritance shall take place only
after 4 years.

Absence of Presumption of Legitimacy or Illegitimacy

There is no presumption of legitimacy or illegitimacy of a child
born after 300 days following the dissolution of the marriage or the
separation of the spouses. Whoever alleges the legitimacy or
illegitimacy of such child must prove his allegation.

Offer of Evidence and Trial Objections

*Sec. 34. Offer of evidence. The court shall consider no evidence
which has not been formally offered. The purpose for which the
evidence is offered must be specified.
Sec. 35. When to make offer. As regards the testimony of a
witness, the offer must be made at the time the witness is called to
testify.
Documentary and object evidence shall be offered after the
presentation of a partys testimonial evidence. Such offer shall be
done orally unless allowed by the court to be done in writing.
Sec. 36. Objection. Objection to evidence offered orally must be
made immediately after the offer is made.
Objection to a question propounded on the course of the oral
examination of a witness shall be made as soon as the grounds
therefore shall reasonably become reasonably apparent.
An offer of evidence in writing shall be objected to within 3 days
after notice of the offer unless a different period is allowed by the
court.
In any case, the grounds for the objection must be specified.
Sec. 37. When repetition of objection unnecessary. When it
becomes reasonably apparent in the course of the examination of
the witness that the question being propounded are of the same class
as those to which objection has been made, whether such objection
was sustained or overruled, it shall not be necessary to repeat the
objection, it being sufficient for the adverse party to record his
continuing objection to such class of questions.
Sec. 38. Ruling. The ruling of the court must be given
immediately after the objection is made, unless the court desires to
take a reasonable time to inform itself on the question presented;
but the ruling shall always be made during the trial and at such time
as will give the party against whom it is made an opportunity to
meet the situation presented by the ruling.
The reason for sustaining or overruling an objection need not be
stated. However, if the objection is based on one or some of them
must specify the ground nor grounds relied upon.
Sec. 39. Striking out an answer. Should a witness answer the
question before the adverse party had the opportunity to voice fully
its objection to the same, and such objection is found to be
meritorious, the court shall sustain the objection and order the
answer given to be stricken off the record.
On proper motion, the court may also order the striking out of
answers which are incompetent, irrelevant or otherwise improper.

it is the only means by which the CTA may ascertain and verify the
truth of the claims of the BIR.
A document, or any article for that matter, is not evidence when it is
simply marked for identification; it must be formally offered, and
the opposing counsel given an opportunity to object to it or crossexamine the witness called upon to prove or identify it.
There is a distinction between identification of a documentary
evidence and its formal offer as an exhibit. The first is done in the
course of the trial and is accompanied by the marking of the
evidence as an exhibit, while the second is done only when the
party rests its case.
When Formal Offer of Evidence is not Required
Formal offer of evidence is not required in certain cases:
1. In a summary proceeding because it is a proceeding where
there is no full-blown trial;
2. Documents judicially admitted or taken judicial notice of;
3. Documents, affidavits, and depositions used in rendering a
summary judgment;
4. Documents and affidavits used in deciding quasi-judicial
or administrative cases; and
5. Lost objects previously marked, identified, described in the
record, and testified to by the witness who had been the
subject of cross-examination in respect to said objects.
There were instances however, when the Court allowed the
admission of evidence not formally offered as in People v. Napat-a,
where evidence not formally offered was held to be allowable
provided certain requirements are present;
a. The evidence must have been duly identified by testimony
duly recorded; and
b. The same must have been incorporated in the records of
the case.
In one case, certain delivery receipts and invoices did not form part
of respondents formal offer of evidence but the same formed part
of petitioners formal offer of evidence. Petitioner insist that since
the said documents did not form part of the evidence formally
offered by respondent, the trial court and the CA had no legal basis
to award interest and damages in his favor. The Court held that no
error could be ascribed to the lower courts because the delivery
receipts and the sales invoices were nevertheless formally offered
by the petitioner in evidence. Hence, the documents may be
considered by the courts below.

There is a need for a formal offer of evidence because without such

offer, the court cannot determine whether the evidence is admissible
or not.

X and Y were charged of murder. Upon application of the

prosecution, Y was discharged from the information to be
utilized as a state witness. The prosecutor presented Y as a
witness but forgot to state the purpose of his testimony much
less offer it in evidence. Y testified that he and X conspired to
kill the victim but it was X who actually shot the victim. The
testimony of Y was the only material evidence establishing the
guilt of X. Y was thoroughly examined by the defense counsel.
After the prosecution rested its case, the defense filed a motion
for demurer to evidence based on the ground that the testimony
of Y should be excluded because its purpose is not initially
stated and it was not formally offered in evidence. Rule on the
motion for demurrer.

While the CTA is not strictly governed by the technical rules of

evidence, the presentation of the BIR evidence is not a mere
procedural technicality which may be disregarded considering that

While under the Rules of Court, the Court shall not consider
evidence which has not been formally offered, this is true only
when the failure to offer an evidence has been objected to. The

*Sec. 40. Tender of excluded evidence. If documents or things

offered in evidence are excluded by the court, the offeror may have
the same attached to or made part of the record. If the evidence
excluded is oral, the offeror may state for the record the name and
other personal circumstances of the witness and the substance of the
proposed testimony.
Importance of Offer of Evidence

failure to object to the omission of the prosecutor and the crossexamination of the witness by the adverse party, taken together,
constitute a waiver of the defect.

Purposes of Objections
1.

When evidence is offered

As regards the testimony of the witness, the offer is to be made at
the time the witness is called to testify.
As regards documentary and object evidence, they are offered after
the presentation of the partys testimonial evidence. The offer is
orally made unless allowed by the court to be in writing.
Objections to a documentary evidence shall be made after it is
offered and the offer of such evidence shall be made after the
presentation of a partys testimonial evidence.

2.

3.
4.
5.

A party is not deemed to have waived objection to admissibility of

documents by his failure to object to the same when they were
marked, identified and then introduced during the trial, because
objection to documentary evidence must be made at the time it is
formally offered and not earlier.
The mere fact that a document is marked as an exhibit does not
mean that it has thereby already been offered as part of the evidence
of the party. However, where the accused fails to object to the
admissibility of certain terms during their formal offer, he is
deemed to have waived his right against their admissibility.
Atty. Felipe Malang was the counsel for the plaintiff in an
action to collect the alleged purchase price of a tractor. For his
principal defense, the defendant alleged that the true
transaction between the parties was only a lease of the tractor,
not a sale thereof, and therefore, the defendant, being a mere
lessee, was not liable for the alleged purchase price.
In the course of the trial, Atty. Malang asked his witnesses to
identify certain documents which he marked as: Exhibit A, the
delivery receipt signed by the defendant acknowledging delivery
of the tractor; Exhibits B, B-1, B-2 and B-3, duplicates of
official receipts issued by the plaintiff in favor of the defendant
acknowledging payments by the defendant of various sums of
money; and Exibit C, the demand letter Atty. Malang sent to the
defendant. After all of his witnesses had completed their
respective testimony, Atty. Malang made an offer of his
documentary evidence as follows:
ATTY
Your Honor, I am now ready to make an
MALANG:
offer of my documentary evidence
COURT:
Proceed, Mr Counsel
ATTY.
I offer in evidence Exhibits A, B-1, B-2, BMALANG:
3, and C, Your Honor
COURT:
Counsel, do you have anything to say to
the offer of documentary evidence made
by the plaintiff?
Did Atty. Malang commit any error in the manner by which he
made an offer of the documentary evidence made by the
plaintiff? Reasons.
Yes. Atty. Malang committed errors in the manner by which he
offered his documentary evidence.
Under the rules, when a party makes a formal offer of his evidence,
he must state the nature or the substance of the evidence, and the
specific purpose for which the evidence is offered. Atty. Malang
failed to do all these.

6.

First, objections are made to keep out inadmissible

evidence that would cause harm to a clients cause. The
rules of evidence are not self-operating and hence, must be
invoked by way of an objection;
Objections are interposed to protect the record, i.e., to
present the issue of inadmissibility of the offered evidence
in a way that if the trial court rules erroneously, the error
can be relied upon as a ground for a future appeal;
Objections may be made to protect a witness from being
embarrassed on the stand or from being harassed by the
adverse counsel;
Objections are interjected to expose the adversarys unfair
tactics like his consistently asking oblivious leading
questions;
Objections may be made to give the trial court an
opportunity to correct its own errors and at the same time
warn the court that a ruling adverse to the objector may
supply a reason to invoke a higher courts appellate
jurisdiction, and
Objections are made to avoid a waiver of the
inadmissibility of an otherwise inadmissible evidence.

General and Specific Objections

The last paragraph of Sec. 36, Rule 132 provides the grounds for
the objection must be specified. The objection therefore, must be
specific. Hence, an objector must be explicit as to the legal ground
he invokes. He cannot simply manifest that he is interposing and
objecting. He has to precisely state the exclusionary rule that would
justify his opposition to the proffered evidence.
Formal and Substantive Objections
A formal objection is one directed to the alleged defect in the
formulation of the question. Examples of defectively formulated
questions: ambiguous questions; leading and misleading questions;
multiple questions; argumentative questions.
A substantive objection are objections made and directed against the
very nature of the evidence, i.e., it is inadmissible either because it
is irrelevant or incompetent or both. Examples: parol; not the best
evidence; hearsay; privileged communication; not authenticated;
opinion; res inter alios acta.
Objections Must Be Timely
In order to be timely, the objection must be, made at the earliest
opportunity. What the earliest opportunity means depends upon the
manner the evidence is offered.
a. If the evidence is offered orally, objection to the evidence
must be made immediately after the offer is made.
b. An objection to a question propounded in the course of the
oral examination of the witness shall be made as soon as
the grounds therefore shall become reasonably apparent.
c. An offer of evidence in writing shall be objected to within
3 days after notice of the offer unless a different period is
allowed by the court.
When to Use a Motion to Strike
1.
2.

When the answer is premature

When the answer of the witness is irrelevant, incompetent
or otherwise improper

3.
4.
5.

When the answer is unresponsive

When the witness becomes unavailable for examination
thru no fault of the examining party, or
When the testimony was allowed conditionally and the
condition for its admissibility was not fulfilled

Consider this example where the grounds for objection are not
manifested by the question. The witness is examined by the
prosecutor. The case is one for homicide and the information says
the crime was committed in Town A. The witness is presented to
testify that he knows that it was indeed the accused who killed the
victim.
Q:
A:
Q:
A:
Q:
A:
Q:
A:

Do you know the victim?

Yes, Sir.
Do you also know the accused?
I do, Sir.
Where were you on the date and time when the killing of the
victim happened?
I was in Town B, Sir
How do you know it was the accused who killed the victim?
A witness to the killing told me a day after the incident
Opposing Counsel: I object, Your Honor! Hearsay! I move to
strike out the answer and to disqualify the witness from
testifying on the details of the incident. It is obvious that he is
incompetent for lack of personal knowledge.

Waiver of objections, Belated objections

The rule is that evidence not objected may be deemed admitted and
may be validly considered by the court in arriving at its judgment.
This is true even if by its nature, the evidence is inadmissible and
would have surely been rejected if it had been challenged at the
proper time.
Where a continuing objection had been interposed on prohibited
testimony, the objection is deemed waived where the objecting
counsel cross-examined the witness on the very matters subject of
the prohibition. Also, the acceptance of an incompetent witness in a
civil suit, as well as the allowance of improper questions that may
be put to him while on the stand, is a matter within the discretion of
the opposing litigant who may assert his right by timely objection
or he may waive it. Failure to object operates as a waiver. Once
admitted, the testimony is in the case for what it is worth, and the
judge has no power to disregard it for the sole reason that it could
have been excluded if objected to, nor can he strike it out on his
own motion.
What is a continuing objection?
It is an objection to certain questions or testimony during a trial
which has been "over-ruled" by the judge, but the attorney who
made the objection announces he/she is "continuing" the objection
to all other questions on the same topic or with the same legal
impropriety in the opinion of the attorney. Thus a "continuing"
objection does not require an objection every time the same
question or same subject is introduced.
In a complaint for a sum of money filed before the MM
Regional Trial Court, plaintiff did not mention or even just hint
at any demand for payment made on defendant before
commencing suit. During the trial, plaintiff duly offered Exh. A
in evidence for the stated purpose of proving the making of
extrajudicial demand on defendant to pay said sum of money
within 10 days from receipt, addressed to and served on

defendant some two months before suit was begun. Without

objection from defendant, the court admitted Exh. A in
evidence. Was the admission of evidence correct?
Yes. The admission of evidence was correct. There was no objection
when Exh. A was offered in evidence. It could have been objected
to on the ground that it is not related to an issue raised in the
pleadings. However, it is a basic rule that inadmissibility of an
evidence may be waived.
Rulings on Objections
The object of the court must be given immediately after the
objection is made except when the court desires to take a reasonable
time to inform itself on the question presented. However, the court
must give its ruling during the trial and at such time as will give a
party an opportunity to meet the situation presented by the ruling.
Distinguish formal offer of evidence from offer of proof
Refers either to the offer of
Process by which a proponent of
testimony of a witness prior to
an excluded evidence tenders
the latters testimony, or the
the same. If what has been
offer of the documentary and
excluded is testimonial
object evidence after a party has evidence, the tender is made by
presented his testimonial
stating for the record the name
evidence
and other personal
circumstances of the proposed
witness and the substance of his
proposed testimony. If the
evidence excluded is
documentary or of things, the
offer of proof is made by having
the same attached to or made
part of the record
Evidence on Motion When a motion is based on facts not
appearing of record the court may hear the matter on affidavits or
depositions presented by the respective parties, but the court may
direct that the matter be wholly or partially on oral testimony or
depositions.
English Exchequer Rule - pursuant to which "a trial court's error
as to the admission of evidence was presumed to have caused
prejudice and therefore, almost automatically required a new trial.
Harmless error rule - In dealing with evidence improperly
admitted in trial, its damaging quality and its impact to the
substantive rights of the litigant should be examined. If the impact
is slight and insignificant, the error should be disregarded as it will
not overcome the weight of the properly admitted evidence against
the prejudiced party.