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EVIDENCE

EVIDENCE PRE-MIDTERM 2014 - 2015

IMPORTANT ASPECTS OF THE SUBJECT:
Understanding of the subject: Evidence is only a little segment of the entire range of the rules of court.
Classification in the Rules of Court:

Civil proceedings
Criminal proceedings
Special proceedings
Evidence

EVIDENCE: Rules 128 -133 only

Very important, especially if you venture into trial practice (Bible to any right-minded litigator lawyer who makes a
living in court)
Evidence is what matters in court

DEFINITION
SEC.1 RULE 128 Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth
respecting a matter a fact.
5 IMPORTANT POINTS:
1.

It is only the MEANS It is not the end. A procedural tool, medium to ascertain truth

2.

Distinguish evidence and proof

- Laymen = same thing
- But for (us), do not equate one with the other.
- While evidence is a means, a tool, a medium; Proof refers to persuasion that is formed in the
mind of the judge resulting in the consideration of evidence. While evidence is the cause, proof is
the effect. While Proof presupposes evidence, Evidence doesnt necessarily result in proof. It
depends on the kind of evidence presented, whether admissible or sufficient enough.

It is a means SANCTIONED BY THE RULES

Not all sources of information can be considered evidence. Not all sources of information is a means to
ascertain truth.
If that source of information is not sanctioned by the rules or excluded by the rules, it cannot be used as a
means of ascertaining truth
While gossip can be a fertile source of information in showbiz and politics, somehow this could be reliable
since there are chismis which can be truer than the truth BUT since it is not sanctioned by the rules, then it
cannot be considered as evidence.
- Gossip is excluded because it is hearsay and under the rules of evidence, hearsay evidence is
excluded. It is not sanctioned because of its inherent unreliability. BUT it does not mean that it is
in reality unreliable because there is really truth in saying that when there is smoke, there is
fire. That is a fact of life but not so in contemplation of evidence.
Coerced confession = When someone confesses due to coercion, it does not exclude truthfulness. The
confession could be truthful, only that it was obtained by coercion
- Not all confessions are untruthful or truthful.
- It could be a reliable source of information but in the context of evidence, it cannot be used as
means of ascertaining truth because it is specifically excluded by the rules.
- Thats why there are rules for extra-judicial admission, a requirement for admissibility. Without
complying with the requirement, the confession, no matter how truthful it can be, cannot be
considered evidence
Evidence obtained in violation of the anti-wire tapping act
- Mr. Gocuan discussed a crime with his partner in crime. It could be a truthful conversation
between two criminals. But when the conversation was wiretapped, any wiretapped conversation
offered in evidence in court cannot be a basis of ascertaining truth because it is specifically
excluded by the rules.

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3.

EVIDENCE

Rules of evidence, by express provision of the rule, apply only to JUDICIAL PROCEEDINGS

Judicial Proceedings Proceedings before our courts

Proceedings before Legislative, executive, administrative, quasi-legislative, quasi-judicial bodies
generally not governed by the rules of evidence
Hearing of Congress in aid of legislation, or conducted by any legislative committee they have witnesses
and lawyers there appearing but these are not strictly governed by the rules of evidence because they are
not judicial proceedings
What governs administrative proceedings, non-judicial bodies? Governed by their own rules of
procedure. These types of proceedings have their own set of procedural rules designed to govern their
own proceedings.
BANTOLINO VS. COCA COLA BOTTLERS: Issue is the applicability of the rules of evidence over
proceedings with the NLRC or the Labor Arbiter. Only we call them Labor courts but in a strict sense, they
are just administrative bodies. Specifically has the duty to adjudicate labor related cases. What governs
their proceedings are the rules provided by the labor code and the implementing rules and regulations, not
the rules of court or rules of evidence.
- WON the affidavits of some of the complainants who were not subjected to cross examination can
be given consideration by the court
Coca-cola: argued before the SC that it was error on the part of the LA to give
consideration on the affidavits of some of the complainants as basis on the findings of an
E-E relationship when these affiants were not subjected to cross-examination. The rule is
basic in evidence that an affidavit is hearsay and inadmissible unless the affiant is
subjected to cross-examination.
SC: This rule applies only to judicial proceedings, not to administrative proceedings like
the NLRC
NLRC, SSS, DARAB, HLURB and all other admin bodies - look at their own rules of procedure
BUT it does not follow that all judicial proceedings are governed by the rules of evidence
- There are types of Judicial proceeding which are EXPRESSLY EXCLUDED under the rules of
Evidence found in SEC 4 of Rule 1:
Election cases
Naturalization
Land registration
Cadastral
Insolvency
- ONG CHIA VS. REPUBLIC OF THE PHILIPPINES: Involved a petition for citizenship. In support
of the petition, Ong Chia testified and presented evidence to prove the allegations in the petition.
So impressed was the public prosecutor, who represented the interest of the
government, of the testimony of Ong Chia, he manifested to the court that the state
does not intend to present controverting evidence.
Trial court granted petition of Ong Chia giving him Philippine citizenship
BUT the OSG disagreed and appealed the case to the CA. Since the state did not present
evidence during the trial below, OSG presented for the first time some documentary
evidence to controvert the evidence of Ong Chia
On the basis of these documents, CA reversed the decision of the RTC.
On appeal, Ong Chia invoked the basic fundamental principle in law that the court should
not consider the evidence unless it was formally offered invoking Section 34 Rule 132 of
the Rules of Evidence. This offer of evidence, naturally, can only occur in trial, not on
appeal because the appeal is just a review proceeding. Evidence is offered during trial so
the adverse party could object to the admission of the evidence. He decried Violation of
due process.
SC: disagreed with Ong Chia. This rule applies only to judicial proceedings which are
regular, not the one subject of this case. By express provision of the rules, naturalization
is excluded from the coverage of the Rules of Court. By the very nature of naturalization
proceedings which is strictly applied against the applicant and in favour of the state, the
principle of res judicata does not even apply.
- ONE INSTANCE when it is APPLICABLE: when it is practicable and convenient, and the
application should only be by analogy or in a suppletory character (Rule 1 Sec 4)

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4.

Purpose of evidence is to ascertain the TRUTH

Truth has 2 phases/faces?:

- Legal Truth that which the evidence says it is. Innocence and guilt are determined by evidence
not by reality
- Moral and Actual Truth when a statement coincides with what actually happened which may
not be legally true

Fact of life: In law, a guilty person may be acquitted and an innocent can be convicted
SITUATION: Mr. Erojo is prosecuted for multiple rape. After trial, the court finds that Mr. Erojo is not guilty.
Not guilty, not because he is innocent, but simply because there is not enough evidence to prove guilt.
Guilt or innocence is a matter of evidence.
SITUATION: You had an argument with a policeman one day. Policeman planted sachets of shabu in your
pocket and arrested you. He then filed a case of possession of illegal drugs against you. In the affidavit of
policeman, he alleged so and so. Prosecutor filed a case against you. The accused cannot even afford to
hire a sensible counsel. Represented by an incompetent counsel. On one hand, we have a very smart
policeman, testified in the court, assisted by a very able competent prosecutor. On the other hand, an
accused who was not even able to study college and cannot afford to hire a competent counsel. The
likelihood is that the accused will be convicted.
Trial is a contest of storytelling. The party who lies well usually wins
How are we as lawyers, come to terms with reality? You do not get to choose your clients. As lawyers, our
only concern is with the legal truth.
Trial litigation is really for those who have the intestinal fortitude to overcome guilt.
SITUATION: Mr. Erojo confessed to you, I really did rape Ms. Bonghanoy... 36 counts of rape... but I can
present in court all the leaders of a certain barangay in Jolo... I will testify and can withstand crossexamination
- You are also not supposed to be privy to any falsehood. While you are required to continue
representing your client, you are also not supposed to be privy to falsehood or allow testimonies
of falsehood which will make you privy to perjury. That is an unethical practice, a crime. But you
cannot also abandon the client.
- What will you do now? Duty to defend client vs. Duty to be faithful to the lawyers oath. If you
know that your client is guilty, you can ask your client to plead guilty. But, of course, thats the
reason your client comes to you because they dont want to plead guilty. Instead of building up
your case using falsified evidence or perjured witness, you focus your attack on the evidence of
the prosecution. If the prosecution is unable to present evidence sufficient enough to prove that
your client is guilty beyond reasonable doubt, client is acquitted. Evidence says not guilty but not
necessarily morally innocent either. Mindset should be, our client is innocent because the law
presumes them to be innocent.

5.

EVIDENCE

Respecting a Matter of Fact

Another thing which we need to remember is evidence is used to ascertain concerns about a matter of
fact. Not all issues raised in the case need presentation of evidence. For this purpose, we need to
distinguish legal and factual issues. By definition, evidence is necessary only to ascertain factual issues. If
the case does not involve any factual issues, then there is no occasion to speak of evidence.

Legal Issue
What happens if the only legal issues are left to be resolved by the court? We are taught in civil procedure the remedies of
judgment on the pleadings or summary judgment. These are the procedural remedies available to the parties in a suit when
the issues that remain to be solved are legal issues for the facts are not disputed. The facts are not disputed either because
the allegations of one party are admitted by the other party or [for] the allegations of one party, the other is estopped from
denying as when there is an implied admission. So if there are no more factual issues, what remains to be resolved are legal
issues. The parties may resort to judgment on the pleadings or summary judgment. The court would have to render
judgment without requiring trial, without requiring evidence. What the court will do there since the facts are already
established is to apply the pertinent laws. We dont need to prove legal issues because the court takes judicial notice of
existing laws.
Factual Issue

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EVIDENCE

So when is there factual issues? There is a factual issue when the allegation of one is denied by the other. Again we are
taught in civil procedure that the plaintiff in his complaint alleges his cause of action. The causes of action will have to be
laid out in the complaint. Upon the filing of the complaint, the court will issue summons to be served on the defendant, and
upon receipt, the defendant is required to file an answer. In the answer, the defendant could either admit the allegations or
deny them. Denial may be specific denial or denial in the sense that the defendant has no sufficient knowledge to form a
belief as to the truth or falsity of the allegations. If the defendant admits the allegations in the complaint, then there are no
factual issues. This dispenses with trial. This dispenses with evidence.
There are also instances when under the rules where the defendant is precluded from denying some allegations in the
complaint for failing to deny in compliance with the rules and Im referring to a case based on an actionable document.
When the complaint is based on an actionable document and you want to deny it, it must be under oath. IOW, he must not
only deny the genuineness and due execution of the document, but he must do so under oath. In which case, the answer
must be verified. What is the effect if the answer is not verified? If the answer is not verified, even if defendant denies the
allegations, even if the defendant alleges that the actionable document is a forgery (that is a specific denial). That specific
denial is not enough. Under the rules, it must be under oath. The effect of such failure to deny under oath is that the
defendant is deemed to have admitted IMPLIEDLY the genuineness and due execution of the promissory note. And therefore,
during trial, the defendant, even if he specifically denies, he is precluded from proving that the actionable document is a
forgery. This is an instance where the defendant, by estoppel, is precluded from denying the allegations of the plaintiff. So in
either of this case, there is deemed to be no factual issues. What remains to be done is to resolve the case based on the fact
already established by applying the pertinent laws.
When we talk about factual issues, facts talk about two kinds of evidence, we have factum probandum and factum probans.
Factum Probandum
Factum probandum is simply defined as the proposition sought to be proved. It is the fact in issue. Whether or not
the defendant is guilty. For example, in a prosecution for rape filed against Mr. Erojo, the factum probandum there is
whether or not Mr. Erojo committed the crime.
Factum Probans
Factum Probans simply refer to the material evidence used to establish the factum probandum. So we have the
proposition- referring to the factum probandum, we have factum probans- referring to the material evidence
necessary to establish the proposition sought to be proved.
The distinction between factum probandum and factum probans was illustrated in the case of Gomez vs. Gomez1.
This is an action to recover properties where the plaintiff seeks to declare the deeds of donation null and void on
the ground that the deeds of donation were a forgery, it was claimed that the signature of the donor as appearing in
the two deeds of donation were affixed on a blank piece of paper but the bodies of the deed were intercalated after
death of the donor. In support of allegation of forgery, the prosecution presented an NBI officer who claimed to be a
document expert who testified during trial that the signature of the donor, Consuelo, as appearing in one of these
deeds of donation was indeed affixed on a blank piece of paper but the body was just intercalated after the death.
Furthermore, the plaintiff theorized that the fact that the donors tax was paid after the death of Consuelo proves
that the donation was indeed a forgery. So it was claimed by the plaintiff that how could Consuelo have signed the
deeds of donation when the donors tax was paid after the death. So when the donors tax was paid after the death,
she could not have signed the deed of donation. That was the theory of the plaintiff. The Supreme Court applied the
concept of factum probandum and factum probans. The Supreme Court said: the factum probandum in this case as
theorized by the plaintiff is that the deeds of donations were forgeries. And the factum probans as proposed by the
plaintiif was that the donors tax was paid after the death. However even if it can be proven the donors tax was
proven to be paid after the death, it is not enough to establish the proposition that the deeds of donation were
forgeries. It does not follow that the donor did not execute the deed of donation. As it turns out, after considering all
the evidence of the parties, it turned out that the payment of donors tax was made in two instances. The initial
payment was made during the lifetime of Consuelo, but full payment was made after death. Thats how the SC
illustrated the difference in the concepts of factum probandum and factum probans.
CLASSIFICATIONS

1 G.R. No. 156284, February 6, 2007

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A.

EVIDENCE

Relevant, Material and Competent

a.

Materiality
When is evidence material? If it is directed to prove a fact in issue. If it is offered to prove a fact not in
issue, then it is not material. So how do you determine that the fact for which the evidence is offered is
material or not? This is governed by the rule of pleadings and substantive laws.
Based on the pleadings. For example, in an action for collection of money based on an actionable
document, when there is failure to deny the genuineness and due execution, the result there is there is an
implied admission on the part of the defendant. What is the effect of this implied admission? During the
trial, he can no longer prove that the promissory note is a forgery. Any evidence presented to prove forgery
may be objected to and the court may exclude it on the ground that it is immaterial. It is immaterial
because forgery is no longer an issue to the case for failure to deny by the defendant the genuineness and
due execution under oath.
A situation where materiality is determined by substantive law is for prosecution for statutory rape for
example. During the trial Mr. Erojo testified that it is true that he had sexual intercourse with a nine-year
old girl (Bop- Bop: BOY) but he claims that it was the nine year old girl who initiated it. And to refuse an
offer is an insult! In fact, the girl even enjoyed it. The testimony of Mr. Erojo to this effect which tends to
prove that the girl consented to the sexual intercourse may be objected to on the ground of materiality. In
a prosecution for statutory rape, consent is not an issue. Mere sexual intercourse with a girl below 12 years
old is already rape. Absence of consent is not an issue.
Similarly, in a prosecution for violation of BP 22, the gravamen of the offense is the mere issuance of an
unfunded check. During the trial, the accused testified that he merely issued the check as an
accommodation, as a guarantee. It was not supposed to be deposited. This is a common defense in BP 22
cases. But the Supreme Court repeatedly held that liability for BP 22 is incurred by the fact of issuing an
unfunded check regardless of the purpose for which it was issued. The purpose for which the check is
issued is not an issue in a prosecution for BP 22. And therefore any evidence tending to prove the purpose
for which the check is issued may be objected to on the ground that it is immaterial.

b.

Relevancy
When is evidence considered relevant? Do not confuse relevancy with materiality. Relevant evidence is
that evidence which has a tendency in reason to establish the probability or improbability of a fact in issue.
Generally, any evidence that throws light upon an issue is relevant. Its logical relationship to the fact in
issue. How do we determine that evidence is relevant? That it has tendency in reason to establish the
probability or improbability of a fact in issue? While materiality is governed by the pleadings and
substantive law, relevancy is governed by logic, common sense and human experience. So the question
should always be that is it logical that such evidence tends to establish the probability or improbability of a
fact in issue? Or is it consistent with common sense that this evidence will prove or disprove a fact in
issue? Or whether it is consistent with human experience that this evidence will prove or disprove a fact in
issue.
For example, in a criminal prosecution for rape filed against Mr. Erojo. Evidence is presented by Mr. Erojo
that he could not be guilty of the crime of rape because he is a very happy family man (Kuya Tristan:
True!). Is it logical to suppose that just because Mr. Erojo is a very happy married man, he could not be
guilty of the crime of rape? Is it consistent with common sense or human experience? This may be or may
not be relevant. Depends upon the appreciation of the court.
Or when Mr. Erojo is sued for compulsory recognition of filiation because he impregnated a woman and
when the baby was born, he disowned. And so during the trial, the woman exhibited to the court the boy
who perfectly looks like Mr. Erojo. So is it logical? Is it consistent with human experience or common sense
that with the boy who perfectly looks like Mr. Erojo, it is likely that he is the father? By human experience,
common sense, logic- that evidence is relevant.
Lets take up a specific case that illustrates relevancy. The case of Lopez v Heesen.2 This arose from a
shooting incident where the plaintiff, Mr. Lopez, got injured when the shooting rifle owned by Mr. Heesen

2 69 N.M. 206, 365 P. 2d 448 N.M. 1961, 22 August 1961

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EVIDENCE

suddenly went off, hitting Mr. Lopez. So Lopez theorized that it was because of the negligence of Mr.
Heesen and it was because of the defective design of the safety mechanism that caused the sudden
discharge of the shotgun. Because the safety mechanism would easily move from safety to fire position,
He sued Mr. Heesen as well as the store who sold the shotgun to Mr. Heesen. By way of defense, the
storeowner presented expert witnesses on gun-making to testify on number one, the good reputation of
the manufacturer of the specific devise used for the specific shotgun and two, the good reputation of other
manufacturers of gun using the safety mechanism similar to that involved in the case. Sears, the
storeowner claimed that by reputation, these entities- the manufacturers of the safety device and the
manufacturers of the shotgun- they have been in the business for a long while, there has never been an
occasion that their products using the security device suddenly discharged because of the defective design
in the safety mechanism. The introduction of this piece of evidence was objected to on the ground of
relevancy. It was argued that the reputation of the manufacturer of the safety device as well as the
reputation of the other gun-makers is irrelevant but the SC overruled the objection and held that the
reputation of the manufacturers of the safety device as well as the manufacturers of the gun are relevant
to the issue of whether or not the safety device of the shotgun involved is really defective. Anything that
throws light upon an issue should be admitted by the court as relevant.
On the contrary, in the case of State of Missouri v Arthur Bull 3, the Supreme Court ruled otherwise.
Arthur Bull was arrested for robbery. He was arrested 3 weeks after the occurrence of the robbery. Based
on the testimony of the sales personnel of the jewelry store, he was identified and based on the
identification, Mr. Bull was arrested. During his arrest, the police were able to recover from his possession
some dollar bills and coins. So during the trial, the prosecution presented the police who testified that
during the arrest, the police was able to recover some dollars and some coins. This was objected to on the
ground that it is irrelevant. The SC sustained the objection. It ruled that true enough, this piece of evidence
is irrelevant to prove the issue of whether or not Mr. Bull committed the robbery. This is so because it was
not established that the dollar bills recovered from the possession of Bull was the same money taken from
the vault of the jewelry story. The fact the he was in possession of some dollars does not establish his
responsibility for the crime charged. There is no logical connection between the fact that he has in his
possession the dollar bills and the issue of robbery. This illustrates a case where evidence is excluded on
the ground of irrelevancy. The Court there is of the opinion that nether logic, common sense nor human
experience support the theory of the prosecution that just because he was in possession of the dollar bills,
then he must be responsible for the robbery. Especially so that there was no evidence that the money
recovered from Bull was the same money from the jewelry store.
Now given the distinct concepts of materiality and relevancy, it is therefore possible that an evidence may
be relevant but it may still be excluded because it is immaterial. Or evidence may be material but
excluded because irrelevant.
Relevant but Immaterial
Lets illustrate. A situation where evidence is relevant but immaterial. Textbook example of this
situation is a collection for sum of money based on an actionable document. The actionable document was
appended to the complaint but in his answer the defendant failed to specifically deny under oath the
genuineness and due execution of the promissory note. During the trial the defendant presented a
document examiner testifying that the signature appearing in the promissory note is a forgery. In a
collection for sum of money, the issue there is whether or not the defendant is indebted to the plaintiff.
Whether the defendant has obligation to the plaintiff. Evidence of forgery of the PN is relevant because if
evidence is proven, then logic, common sense and human experience would tell us that probably, contrary
to the allegations of the plaintiff, the defendant owes nothing from the plaintiff. Because the PN was
appended to the complaint precisely to prove the existence of the obligation. If it is proven to be a forgery,
then it militates against the claim of the existence of the obligation sued upon. But the question is, is it
material? As discussed earlier, this evidence is not material because forgery is no longer an issue to the
case. When the defendant failed to deny under oath the genuineness and due execution of the promissory
note. So that evidence presented to prove forgery, while relevant may still be excluded by the court for its
being immaterial.
Material but Irrelevant

3 3339 S.W. 2d 783 Mo. 1960 14 November 1960

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On the other hand, in the prosecution for robbery for example. Evidence is presented that the accused is a
very poor man. The prosecution tries to prove that the accused is a very poor man to prove that he
committed the robbery. This piece of evidence is material because whether or not the accused is guilty of
the crime of robbery- this is an issue. And so the state of being poor, if this is introduced in evidence to
prove the fact the accused is guilty of robbery is material because it is directed to prove a fact which is in
issue. But the question is: is it relevant? Does it have the reasonable connection as to establish the
probability or improbability of the fact in issue? Does the state of being poor, in logic, common sense, and
human experience prove or disprove that he is guilty of robbery? To me, I would say that it is not relevant
for lack of logical connection. Ones financial condition could not be a reasonable factor in ones guilt of the
crime of robbery.
So an evidence may be material but objectionable because irrelevant or relevant but objectionable
because immaterial. IOW, for an evidence to be admissible, it must be relevant, material and the third one
now is competent.
c.

Competence
Unlike relevancy and materiality, competency is governed by the Rules, the Constitution or the law. The
test of determining whether the evidence is competent is whether or not it is excluded by the Rules, the
Constitution or any law. If it is excluded, then it is incompetent. If it is not excluded, then it is competent
evidence. As simple as that.

B.

Positive and Negative

There is positive evidence when a witness asserts that a particular act was committed or a particular
event took place. There is negative evidence when a witness asserts that a particular act was not
committed or a particular event did not take place.
All things being equal, positive evidence has more probative value than negative evidence. A classic
example of negative evidence is alibi or denial. When the defense interposed is that at the time and date
of the alleged crime, I was 1000 km away from the crime scene. The crime was committed in Cebu but on
that day, I was in Jolo. And Science would tell us that I cannot be in different places at the same time. Or
denial: I did not owe plaintiff anything.
As between these two types of evidence, positive is more likely to be believed. Thats why husbands
should not expect to be believed by their wives because when push comes to shove, they will always find
succor under the defense of denial which is inherently weak! As between the chismis and denial, chismis is
more believable!
Now, what is the legal justification why positive is preferred over negative? According to the SC, when the
witness testifies to a negative- that a certain act was not committed or someone did not commit the act or
a certain event did not take place- that witness may only have forgotten what actually transpired. So its
possible that that act was actually performed, but simply that the witness may have forgotten. But it is
impossible for a witness to forget something that never transpired. So that when a witness says that
something took place, chances are, that witness is telling the truth. Because it is more difficult to make up
details of the event. It is convenient for a witness to say that I did not do it but difficult to invent details
of the incident. When a witness testifies to a positive, he is likely to be believed by the court. But not all
the time because there might be an alibi which is really solid. But all this being equal, positive evidence
prevails. Thats why if you read criminal cases, you would often encounter findings of the court which
would say to the effect that the denial or the alibi of the accused could not prevail over the positive
identification of the witness, especially if the witness is not shown to have ill motive to testify against the
accused. This is an oft- repeated ruling of the court. This specifies the importance of the positive evidence
over negative evidence.

C.

Direct and Circumstantial

a.

Direct
Direct evidence is that which directly proves a fact in issue without need for reference from other facts. A
classic example of a direct evidence is the testimony of an eyewitness. If the eyewitness testifies that he
saw the accused doing this or doing that. No need of inference from other facts. It establishes that the
accused did this and did that.

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b.

EVIDENCE

Circumstantial
On the other hand, circumstantial evidence is evidence that proves a fact in an indirect way because it
needs inference from other facts. IOW, circumstantial evidence presupposes the existence of established
facts. There are 3 types of circumstantial evidence:
(1) Antecedent
For example, motive and character. So if Mr. Erojo is prosecuted for rape, evidence that in the
past he has been convicted of acts of lasciviousness, child abuse, or that he was a perennial
sexual offender is circumstantial evidence that probably he is guilty of the present rape. To
establish the connection, you must first establish that he was previously convicted of these
other offenses- to establish pattern, habit, behavior.
Motive- if it was established that the accused, prior to the killing had a very violent
confrontation with the victim. From this fact, an inference can be drawn that probably, the
accused could be guilty.
(2) Contemporaneous
Typical example: opportunity and incompatibility. Opportunity: When immediately after the
killing, a witness saw Mr. Erojo running from the crime scene. The witness did not see him stab
or strangulate the victim, he was seen at the crime scene immediately after the killing. The
opportunity for him to possibly commit the crime is a circumstantial evidence contemporaneous
to the killing- not directly because no one saw him perform the act but the opportunity could be
a circumstantial evidence that he may have probably committed the crime.
Incompatibility, on the other hand, is the opposite. If Mr. Erojo is prosecuted for rape, and he
can present to the court that since birth, he has been suffering from impotency, that it is
impossible for him to get an erection, that could be a contemporaneous circumstantial evidence
rendering it impossible for him to commit the crime of rape.
(3) Subsequent
Typical example is flight and offer of marriage. Take note, offer of marriage is a circumstantial
evidence because no man in his right mind would make an offer of marriage if he did not really
have sexual intercourse with the victim.
Or when a condom is left at the crime scene. Or maybe the sperm of Mr. Erojo is found inside
the vagina of the victim. Thats subsequent circumstance. You have to prove that the sperm
found in the vagina of the victim is that of Mr. Erojos. Or that the extra small condom found in
the crime scene fits Mr. Erojos penis. Thats circumstantial. If it is proven that his is too small
for the extra small condom that is circumstantial evidence that he is not the one responsible.
Take note that for evidence to be relevant, it need not be direct evidence. Circumstantial
evidence is as relevant as a direct evidence.

D.

Object, Documentary and Testimonial

a.

Object
Object evidence is any evidence addressed to the senses of the court. It may be exhibited or it may be
demonstrated before the court. So when you filed a case for damages due to physical injuries and you
want the court to see for herself/himself the extent of the injury suffered by the plaintiff, the extent of the
injury suffered by the plaintiff, then you can present your client to the court so that the court can view the
injury.
Or just like the example earlier, if in a prosecution for rape, one of the evidence left at the crime scene is
the extra small condom, and you have to prove to the court that your client could not have raped the
victim, you can have a demonstration before the court. So when the condom does not fit, the court must
acquit!

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b.

EVIDENCE

Documentary
Documentary evidence refers to any material containing letters, figures, words, numbers, symbols or other
modes of expression offered as proof of its contents. Take note that by definition, disabuse your mind from
thinking that documentary evidence refers only to paper- based writing. Any material- it could be stone,
floor, wall, metal or even the human body could be documentary evidence. So long as it contains letters,
figures, words, symbols or other modes of written expression and offered as proof of its contents- that is
documentary evidence.
So if the issue involved in the case is identity and the identity is proved by the name tattooed on the part
of the human body. For example Mr. Erojo was accused of rape, but the only evidence that the private
complainant could remember is the complete name spelled all over the penis of Mr. Erojo- Tristan Romyr
Erojo, with love- if it is offered to prove that the penis of the rapist contains this writing, it is documentary.
Because it is not the kind of material on where the writing is found. It is the purpose for which the evidence
is offered.

c.

Testimonial
Testimonial evidence refers to reconstruction of past events by a witness made through oral testimony or
through depositions. So a witness recalls a past evidence that he claims he had witnessed and
communicate this to the court.

E.

Corroborative and Cumulative

It is not uncommon that you may have 1 or 2 or more pieces of evidence available. These evidence could be of the
same nature but which would tend to prove the same point or of a different nature tending to prove the same point.
Either cumulative or corroborative this presupposes another evidence because cumulative or corroborative
evidence is just an additional evidence. It is an addition to other evidence already offered.
If it is of the same nature as of that evidence already offered but tending to prove the same point, it is cumulative;
if of different nature but tend to prove the same pointcorroborative.

Example we have the case of murder

1. There are 5 eyewitnesses who saw the killing: you have already presented onethe 2 nd, 3rd or 5th
eyewitnesses are just cumulative. Now if the evidence is cumulativeit adds nothing to your
evidence because it is just the same. So long as your first witness is credible, you dont need to
present the other four. Because the testimony of the other four will add nothing to the testimony
of the first. Because they are of the same nature.
Corroborative on the other hand is when the additional evidence of different kind or nature from the first evidence.
This will serve to strengthen or bolster the evidence already presented because this is of different kind but, proves
the same point.

Example: case of rape

1. You only have complainant to testify that she was raped like a beast. And the testimony of the
doctor who testified that based on the examinationthe sperm found in the vagina of the victim
belongs to the suspect. Take note: the first evidence presented was the testimony of the witness,
it is testimonial. But the next additional witness, consisting of the findings of the doctor, is
scientific evidence (object); different nature but BOTH of them tending to prove the same point
the suspect raped the claimant. If you are to dispense presentation of additional evidence
dispensing of a cumulative evidence is acceptable but never corroborative evidence because
corroborative evidence strengthens the evidence already presented.

F.

Admissibility and Competency

When does evidence serve a purpose of ascertaining the truth respecting a matter of fact? It is a meanshow does it serve
the purpose? Evidence will serve the purpose of ascertaining truth respecting issues of fact when it passes through the test
of admissibility and the test of credibility. Take note: it is not enough that the evidence is admissible. Far more important
your evidence must be credible.
How do you determine that your evidence is admissible? This is governed by the test of relevancy and competency. So long
as it is relevant and so long as it is competent, it is admissible. But the fact that the evidence is already admitted does not
necessarily follow that the court will give it credence. It does not follow that the court will believe in it. It does not follow that
the court will give it consideration at all. The only thing that you achieved when your evidence passes the test of
admissibility is that your evidence may now be evaluated by the court. If it is not admitted because it is not admissible/

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excludedthe court is not even supposed to evaluate it. When it passes the test of admissibility, the court is now, under the
rules, duty bound to consider but the court is not duty bound to give it credence because the court, under the test of
credibility, has the authority to either disregard it/disbelieve it/ignore it because if the court finds that the evidence is not
credible at all. So while the admissibility is determined by the test of competency and relevancy; weight and sufficiency,
which is the province of credibility, refers to the evidence tendency to establish to persuade and convince the court. Once
the evidence is already admitted, the next test there iswhether or not these evidence already admitted is persuasive; does
it convince the court. Is it convincing to make the court believe and give it due credence?
-

Illustration: when a boyfriend is allowed to visit his girlfriend (girlfriends house). He was allowed in the living room
only, not in the bedroom. Credibility is needed for the boyfriend to enter the bedroom. Admissibility is just in the
living room not in the bedroom. Just because you are allowed here, it does not mean you are allowed there.
Simplest analogy between admissibility and credibility.

For the evidence to serve the purpose of ascertaining the truth, it must be admissible because it is both relevant and
competent, and it must also be believable. That is why a testimony of a family member or a testimony of a person or a
witness who is interested in the outcome of the case and therefore, has bias in favor or against a party, may be admitted
because mere bias and mere relationship, generally, is not a disqualification to witness. So generally, when a daughter
testifies in favor of her fatherthe presentation of the testimony of the daughter cannot be objected to on the ground that it
is inadmissible. Because so long as the testimony is relevant, there is no rule in law that disqualifies a daughter in testifying
for his father so, admissibility wise, the testimony of the daughter is admissible. But the question there iscredibility.
Because of the presence of relationship, the close relationship between the father and the daughter, creates bias on the part
of the daughter-witness in favor of the father; and that diminishes the credibility of the witness. So the court while the
witness is allowed to testify, at the end of the day, may altogether disbelieve the testimony of the daughter-witness because
it is not credible. This is how the two principles interplay in a given situation.
Competency
Is governed by the rules of court, the constitution or the law. There are various rules of exclusions, meaning, rules that
specifically excludes certain types of evidence. If any or all of these rules applythe evidence is deemed incompetent
therefore, it cannot be admitted. There are three major classifications of these so called exclusionary rules:

Under the rules of court;

Under the constitution; and
Under special laws

EXCLUSIONARY RULES UNDER THE RULES OF COURT:

Hearsay Evidence Rulewhen the evidence is hearsay, meaning when the witness testify something not
based on his/her personal knowledge but based on the personal knowledge of others who is not in the
witness stand, the testimony of the witness is inadmissible therefore, incompetent on the ground that it is
hearsay.

The Best Evidence Rulewhen the content of the writing is the issue in the case, under the best
evidence rule, the only evidence allowed to prove the contents of the writing is the original writing. So if
the contents of the promissory note is the fact in issue-- the parties dispute the actual amount stated in
the promissory note (one party says it is 1M while the other party says it is 100k). So under the best
evidence rule, to prove the contents of the promissory note, the only admissible evidence is the original
promissory note. The photocopy of the promissory note is not allowed. A witness who will testify that he
saw the promissory note and he was pretty sure that the amount reflected therein is 1M, not allowed to be
admitted as evidence. Only the original promissory note is admissible. Any evidence other than the original
is inadmissible.

Parol Evidence Rulecontemplates a situation where the parties in dispute enter into an agreement and
the agreement was reduced into writing. Under this rule, whatever is stated or reflected in the written
agreement is conclusive and binding upon the parties. The parties are not allowed to vary the terms and
conditions of the written agreement. Because whatever is stated in the written agreement is deemed to be
the final repository of the agreement. So that if the promissory note containssays that the defendant is
to pay the obligation within 30 days (the clear language of the promissory note). Either party or neither of

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the parties can testify or introduce evidence on trial that actually their agreement wasthe defendant
would pay the obligation in one year, it cannot be done. Any evidence that tends to
vary/change/supersede the terms of the written agreement is inadmissible under the best evidence rule. If
the deed says that it is a deed of absolute sale, evidence that tended to prove that the agreements
between the parties was only a real estate mortgage is not allowed because in effect it would vary the
terms of deed of sale.

Res Inter Alios Acta Rulewhich says a right of a party may not be prejudiced by the act or omission of
another. So when a suspect was convicted for the crime of rape based on his extrajudicial confession
admitting that he raped the victim but another person also took turns, such confession is not admissible
against the latter. The extrajudicial confession by the suspect-declarant may be admissible against the
declarant but not against the other suspect; the declaration of the former cannot be admitted to prejudice
the latter.

The Rule on Authenticationwhen your evidence consists of a private writing (a letter acknowledging
paternity of a child), for purposes of admissibility, the proponent must establish the genuineness and due
execution of the private document (letter). This process is called Authentication; you have to authenticate
the private document. You cannot just present the document to the court without compliance of the
requirement of authentication. You have to establish the genuineness and due execution of the private
document. Without the authentication, the evidence may be objected to and excluded by the court on the
ground that it is not duly authenticated.

Opinion Evidence Rulean opinion of a witness as a general rule is not admissible. So if one testifies
that in my opinion Mr. X is a rapist because he looks like one, it is not admissible. The reason for the rule is
that cases must be decided by facts not opinions.

Character Evidenceevidence that one did or did not do an act at one time is not admissible to prove
that the person did or did not do a similar act at another time. So if your boyfriend was proven to be loyal
to you in the past, it does not mean that he is loyal to you today and tomorrow. If you caught your
boyfriend in intimate poses with another, your boyfriend cannot invoke that-- dont believe on that chismis
I have proven my loyalty to you for the last few years. Character evidence -- that one did or did not do an
act at one time is not evidence that he/she did not do the same act at another time.

EXCLUSIONARY RULES UNDER THE CONSTITUTION (UNDER THE BILLS OF RIGHTSARTICLE III):
1.
2.
3.

Right Against Searches And Seizures (sec. 2) And Right To Privacy And Inviolability of Correspondence (sec. 3);
Custodial Rights during custodial investigation(sec. 12); and
Rights Against Self-Incrimination (sec. 17)

RIGHT AGAINST SEARCHES AND SEIZURES

GR: Any search and seizure without judicial warrant is illegal.
Any evidence obtained in violation of this rule is inadmissible for any purpose in any proceedings.
EXCEPTIONS:
1.

SEARCH INCIDENT TO A LAWFUL ARREST

Presupposes a situation where a person is lawfully arrested. The arrest must precede the search. The arrest
may be by virtue of a valid warrant or a valid warrantless arrest. The operative fact is that the arrest must be
valid for the incidental search to also be valid.

Instances where warrantless arrest may be valid (sec. 5, Rule 113):

1. Inflagrante Delicto Arrest
The arresting officer must have the personal knowledge that the person arrested has just
committed or is committing the crime or is about to commit a crimein either
circumstance, the arresting office must establish having personal knowledge of the
overt acts indicative of just committed or is committing or about to commit a crime.
The operative fact is personal knowledge of overt acts indicative of a commission of a
crime, otherwise, the arrest cannot be justified. So obviously therefore, when a person is
arrested on the basis of a tipped informationsomeone called the police seeking the
assistance that the person here is concealing a weapon and on the basis of the tipped

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3.

EVIDENCE

information, the police barged into the area and arrested the person, that cannot be
considered as inflagrante because the police or the arresting officer has no personal
knowledge that the crime has just been committed or is just being committed or is just
about to be committed. Tipped informationnot enough.
Hot Pursuit
The police or the arresting officer must have personal knowledge not of the commission
of the crime but must have personal knowledge of the facts and circumstances indicating
that the person to be arrested has committed the crime. A tipped information intandem
with some other elements could be sufficient for purposes of hot pursuit unlike
inflagrante.
Arrest of an escapee/fugitive from justice

In Search incident to a lawful arrest, the arresting officer has the right to cease any dangerous weapon, search the
body of the person to be arrested or the immediate surroundings for TWO PURPOSES:
To search for any dangerous weapon that the person arrested might use against the arresting officer.
To prevent the person arrested from destroying the evidence of the crime.
So, whatever is seized as a result, even if the seizure of the item is without a warrant, it falls under the
exception and therefore, it is admissible.
2. STOP AND FRISK
Now do not confuse the search incident to lawful arrest with the STOP AND FRISK SITUATION. These two are
different from each other, why? In search incident to lawful arrest, the arrest precedes the search; but in stop-andfrisk, the search comes first/precedes the arrest.

So, in what situations do stop-and-frisk apply:

US case of Terrythis laid down the doctrine that when an arresting officer/police is able to
observe an unusual conduct on the part of the suspect, and based on his experience, he has
reason to believe that a crime is on-goingthe arresting officer has the right to protect himself
and others within the area. And for this purpose he is allowed to carefully conduct a limited search
on the outer clothing of the suspect in search for dangerous weapon that the suspect might use
against the arresting officer. Provided that the police officer must:
Identify himself; and
Must conduct preliminary inquiry.

What is required here is probable causeenough to convince the police officer that a crime is
being committed. This principle in local setting/in our own jurisprudence was applied in the two
adding cases of:

Posadas v. CA
Police operative were conducting surveillance in a certain area when they saw
the suspect (Posadas) walking-carrying a buri bag. They then approached the
suspect but the suspect tried to flee. The police officers searched the buri bag
where they found some unlicensed firearms. Posadas was convicted, on appeal
before the SC, the accused argued that the search was illegal because there
was no search warrant and the arrest was illegal because there was no warrant
of arrest. He was not committing a crime when he was arrested by the police.
The people represented by the OSG tried to argue/justify the warrantless search
and arrest of Posadas under the doctrine of search incident to a lawful arrest.
Particularly the OSG invoked sec. 5 paragraph 8, rule 113 on In flagrante arrest,
claiming that when Posadas was arrested he was in the act of committing a
crime of illegal possession of unlicensed firearms.
But the argument was rejected by the SC saying that at the precise moment
when the police arrested Posadas, they knew nothing about the contents of the
bury bag. So insofar as the police are concerned, Posadas was not committing
any crime at all. Carrying a buri bag is not a crime. SC finally said that the
search and arrest were both legal under the stop-and-frisk. Under the
circumstances, the police has reasonable ground to believe that the crime was
committed because of the suspicious behavior of the suspect. There was
reasonable basis based on the experience of the police that something was
amiss.
Manalili v. CA

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Same principle; took its cue from Posadas. Police officers conducted surveillance
in the area in Marikina near a cemetery. When they saw the suspect walking
wobbly and with reddish eyes (characteristics of persons high in drugs-reasonable basis).
The salient distinction between stop-and frisk and In search incident to lawful arrest is that In search incident to
lawful arrest the arrest precedes the search while in stop-and frisk its the other way around.
TN: the rules of exclusion (search and seizure, privacy, incriminating, custodialthese) are limitations against the
power of the state and therefor these can only be invoked against state or states action. Can only be invoked when
the person responsible for the violation of these rights (search and seizure, privacy, incriminating, custodial) are
agents of the government particularly, those on the law enforcement.
TN: search and seizure, right to privacy, custodial investigation and right against self-incrimination are relevant only
if invoked against the government. If the acts or omissions constitutive of violation of any of the said rights are
being perpetrated by a private individual, there is no occasion to speak of any of these rights. And therefore the
rule that any evidence obtained in violation of any of these rights are inadmissible for being fruits of a poisonous
tree finds no application. The evidence is admissible if the violation is being committed by a private citizen not the
state or its agents but the person responsible may be liable criminally, civilly or administratively. But in so far as
admissibility of evidence, it is admissible because these exclusionary rules apply only to the situation where the
violation is being committed by the state or its agents. This is the consistent ruling of SC in cases of Pp v. Marti
(the ground breaking case on the matter), Pp v. Maqueda, Waterous drugs case, Pp v. Bongcarawan.
Consistently SC said the bills of rights apply only/may be invoked only against the state.
Dont be disturbed by the case of Zuluetainvolves a marital dispute which lead to the wife barging into the office
of the husband and broke/forced open the drawer/cabinet where she found some incriminating evidence against her
husbands infidelity. When the admissibility of the evidence was put in issue, the SC despite the rulings laid down in
the previous cases to the effect that the bill of rights apply only/may be invoked only against the state, in this case
ruled that the evidence is not admissible because the evidence were obtained in violation of husbands right to
privacy--inviolability of correspondence consist of love letters. The court ruled that there is a violation of the said
constitutional right even if the act was committed by a private citizen. The SC decided Zulueta unmindful of the
rulings in Marti and other related cases. The prevailing doctrine is that of Marti and other related cases.
Do not mistake the fact that while the bill of rights may be invoked only against the state, you might wonder if due
process, which is one of those rights in the bill of rights may be invoked against private citizens. And I am
particularly referring to situations involving labor proceedings, for example, dismissal cases. For dismissal to be
valid, just cause/authorized cause and due process must be complied withmay be invoked by a private citizen
against the private employer. To reconcilethere are two kinds of due process now:

the constitutional due process (under the bill of rights); and

the statutory due process (under the labor code).

So the due process that the employee may invoke against the employer (private citizen) is not the due
process under the bill of rights but the due process under the labor code.
3.

Another exception to the requirement of a judicial warrant is CONSENTED SEARCH

It is premised on the principle of waiver. Everyone has the right to object to search and seizure without a
warrant. We have the right to refuse search and seizure without the judicial warrant but this right is waivable. If
one consents to the search and seizure without warrant and that would then be a valid warrantless search and
seizure. The waiver is to be strictly construed against the state. So if the arrest was premised on the alleged
consent the prosecution must be able to prove that the person who supposedly waives his right must be aware
that that right actually exists; and that there must be clear evidence of the intention to waive the right. Mere
passive refusal to object should not be interpreted as a waiver or consent. The SC is consistent in ruling that
mere passive consent is more consistent with ones respect for authorityshould not be taken to mean that the
person involved willingly and intelligently waives the right against unreasonable search and seizure.
The right against search and seizure is personal to the individual and so, a waiver is also personal; ones right
cannot be waived by another.

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A case where the police officers raided the place of the suspect, allegedly, they the officers were allowed entry
by the house help. The state invoked consent. SC said no way, consent is personal/ waiver must be personal to
the person.

4.

Next exception, PLAIN VIEW (most abused exception)

A police officer when he has the right to be in the place where he is, may validly search and seize items which
are in plain view and its incriminating nature is immediately apparent to the arresting/seizing officers. When
someone is carrying a gun and the gun is seen by the officer in plain sight, he can be arrested on the basis of
plain view-- he is deemed to be committing a crime in the presence of the arresting officer-- can be seized
either under search incident to lawful arrest or plain view. Arrest In flagrante delicto is basically justified under
plain view.
Requisites for plain view to apply:
1.

There must be prior justification for the intrusion.

The presence of the police officer in the place must be valid; he must have the right to be in the
place where he is otherwise, plain view does not apply.

Instances where there is valid prior justification:

by virtue of a valid search warrant;

in the conduct of hot pursuit; and

legally/validly in the place.

Operative factso long as the presence of the officer in the place is valid, plain view applies.
2. The incriminating object must not be purposely sought for by the seizing officer.

The discovery of the incriminating object must be inadvertentthe police officer must not be
looking for it but just the same, by stroke of chance, discovered an incriminating object. So if the
police is purposely looking for the incriminating object, even if the presence of the officer in the
place is valid (there is prior justification), it cannot be justified under plain view. The incriminating
object found is inadmissible as evidence.
3. The incriminating nature of the evidence must be immediately apparent to the seizing officer.

If the incriminating object is concealed inside a container; the officers still have to look inside to
discover it, it is not immediately apparent.

But even if the incriminating object is inside a container but the container proclaims its contents
either because the container is transparent or the physical configuration of the content betrays
the nature of the object (the form of the firearm placed inside a sack can be conformed into) or is
apparent.
What about smell--? Maybe...

EXCLUSIONARY RULE:
WARRANTLESS ARREST
I.

IN FLAGRANTE DELICTO

Requisites
1. OVERT ACT: on part of Suspect indicating that the crime has just been committed, is being committed or is about to be
committed.
NB: The rule requires OVERT ACTS indicative of a crime. Otherwise In Flagrante will not be justified.
Amminudin Case:

In this case, the police, two days before the date of the arrest already received confidential reports that the accused
would be arriving in the port of Iloilo City on board an identified vessel M/V Wilcon, transporting drugs. The
information of the police included the identity suspect, the vessel, and the time of the arrival. Acting on the
confidential report, the police positioned themselves waiting for the vessel to arrive. True enough, when the
confidential informant identified Amminuddin, the police apprehended him and effected a warrantless arrest and as
an incident thereto, a search was effected on his body and his bag which yielded dried marijuana. He was
prosecuted and convicted and on appeal he challenged the validity of arrest and search and challenged the
admission of the dried MJ leaves.

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The state the thru Solicitor General tried to justify the validity of the search under the Search Incidental to a
Lawful Arrest. The arrest was also legal because it was done in In flagrante delicto.
The Supreme Court in this case pointed out the requirements for this to apply and that there should be overt acts
being performed by suspect before in an inflagrante case. SC said there was nothing illegal for Aminudin in
descending from the vessel and disembarking from the boat. The Police had no personal knowledge on the contents
of the bag. So for all purposes, Amminudin is just as innocent as the other passengers. No Overt Acts hence arrest
cannot be justified in In flagrante.

(ADDN) The present case presented no such urgency. From the conflicting declarations of the PC witnesses, it is clear
that they had at least two days within which they could have obtained a warrant to arrest and search Aminnudin who
was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was identified. The date of its arrival was
certain. And from the information they had received, they could have persuaded a judge that there was probable cause,
indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of
Rights was ignored altogether because the PC lieutenant who was the head of the arresting team, had determined on
his own authority that a "search warrant was not necessary." In the case at bar, the accused-appellant was not, at the
moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What
he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his
arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only
when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to
apprehension. It was the furtive finger that triggered his arrest. The Identification by the informer was the probable
cause as determined by the officers (and not a judge) that authorized them to pounce upon Aminnudin and immediately
arrest him.

People v. Mengote.
The police received an anonymous caller reporting to the police that three persons acted suspiciously along the
alley. Responding to the call, the police dispatched some of its officers to the place. When the police went to that
place, they saw Mengote who was looking from side-to-side and holding his abdomen. The police, suspecting that
the person is engaged in a criminal enterprise, swooped and arrested the accused and conducted a search incident
to the arrest and found unlicensed firearms. He was prosecuted and convicted and on appeal, he challenged the
validity of arrest and search and challenged the admission of the unlicensed firearm. The police tried to justify the
search under Search incidental to a lawful arrest; and the arrest under In flagrante arrest.
However, the Supreme Court said, The case before us is different because there was nothing to support the
arresting officers' suspicion other than Mengote's darting eyes and his hand on his abdomen. By no stretch of the
imagination could it have been inferred from these acts that an offense had just been committed, or was actually
being committed, or was at least being attempted in their presence. In short, no overt acts indicative of
commission of a crime. Hence no proper In Flagrante.
Sy Chua Case

Police received an information from a confidential informant that Chua will deliver drugs to a hotel in Baguio City.
Police waited for Chua outside the hotel. When Chua alighted from his car carrying Zest-o juice bags, he was
arrested and searched. He was found to have possessed Illegal fire arms and the box was full of illegal drugs. He
was prosecuted and convicted and on appeal he challenged the validity of the arrest and search and challenged the
admission of the things seized. Prosecution tried to justify the arrest under In Flagrante Arrest. SC said, no overt
acts on the part of Chua to warrant police to effect Warrantless arrest. Nothing illegal for Chua to alight and proceed
to the hotel with zest-o bags.

2. PERSONAL KNOWLEDGE: ON PART OF ARRESTING OFFICER OF THE OVERT ACTS INDICATIVE OF A CRIME
Hence, Mere tip is not enough to warrant in flagrante arrest. But mere tip may be justified if done under exigent
circumstances when there is no opportunity for police to secure search warrant.
Lita Ayangao Case:

SC upheld the validity of arrest and search under In Flagrante Arrest. Under circumstances, police had no
opportunity, it was not practical for police to apply for a search warrant given the sketchy information furnished
them by the informant:
No name, no exact time of arrival in a designated place, though info was received two days prior arrest, but given
the sketchy and general information, the SC said if police applied for warrant on that basis, it would appear that
such warrant will be enforced against anyone. Hence, it will not satisfy the requirement of Specy-Specy (wait for it)
Specificity. (OR Particularity) Hence given the situation, the arrest should be allowed under In Flagrante. But treat
this as an exception rather than the rule.

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NB: the requirement of Personal Knowledge applies only in a situation where arrest comes BEFORE the search. (In Flagrante
resulting to incidental search) Situation is FIRST, ARREST; THEN, SEARCH. Personal Knowledge is required.

BUT if reversed, SEARCH first then WARRANTLESS ARREST, rule is different. No Personal Knowledge needed but
PROBABLE CAUSE which warrants a warrantless search then the arrest is effected under In Flagrante. OK?

Zenaida Quebral

II.

A day before the arrest, the police received confidential information that two men and a woman were to make a
drug deal somewhere but there was no specific time. The following day, the police started their operations 7:45 am
and waited until 4:00 in the afternoon when the jeepney was spotted with the identified plate number. They
followed it until it stopped near the vicinity of a gasoline station. A tamaraw FX arrived and someone alighted,
approached the woman and in the course of their conversation, the woman handed to the passenger of Toyota
Tamaraw a white envelope. It was at this precise moment that the police swooped down and seized the envelope
and opened it which yielded illegal drugs and then arrest ensued.
He was prosecuted and convicted and on appeal he challenged the validity of arrest and search and challenged the
admission of the things seized taking cue from the ruling of the case of Aminudin. Defense was that nothing illegal
about gathering in a gasoline station, conversing and handing of envelopes; hence, no proper In Flagrante Arrest.
The Supreme Court said this is actually the reverse. There was a warrantless search subsequent to a warrantless
arrest. SC said to effect a warrantless search, personal knowledge is not required. Probable Cause is enough. And
the Probable Cause in the confidential report received from the informant corroborated with what the police
witnessed before their eyes when the transaction took place. Hence there was reasonable belief that crime was
being committed enough to effect a warrantless search.
This is not a situation of a search incident to a lawful arrest. This is more of a search preceding an arrest. For
purposes of arrest, tipped information is not enough but for purposes of search, tipped information is enough,
provided it is justified by urgency.

HOT PURSUIT

Requisites:
1.

IMMEDIACY. Offense has just been committed, immediacy in point of time. Arrest must be done immediately after
commission of crime. Take note the requirement of immediacy in point of time must be that time between
commission and apprehension NOT from knowledge of police of commission to apprehension. There must be an
unbroken chain of events.No exact time frame under law and jurisprudence. The only guiding principle is that, there
must be no appreciable length of time=IMMEDIACY. Case to case basis.

CASES WHERE NO LONGER HOT PURSUIT

Manlolo Case
SC said 19 hours from commission, no longer
PP vs Del Rosario
Robbery with Homicide. 1 day after commission, no longer
PP v Olivares
2 days from commission, no longer
PP vs ronda
3 days from ambush, no longer
Lolito go
6 days from shooting, no longer
CASES WHERE FOUND TO BE UNDER HOT PURSUIT
Padilla Case
BUT for Robin Padilla, arrest was effected less than an hour from the hit and run incident, SC said there was
immediacy; unbroken chain of events; and no appreciable interval of time from hit and run to arrest.
PP v Gerente
3 hours from killing, still hot pursuit.
PP vs Avion,
Hot pursuit no unbroken chain of events, few minutes after the killing.

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EVIDENCE

PP v Nazareno (disturbing case)

14 days (or 40??) from commission of crime of Homicide/Murder, still hot pursuit because SC said the police came
to know of the identity of the accused 14 days from the commission of the crime. But critics said this should not
take precedence because of the political undertone of this case where this happened during the martial law.
2.

PERSONAL KNOWLEDGE OF FACTS AND CIRCUMSTANCES. The arresting officer must have personal
knowledge of the facts or circumstances indicating that the offense has just been committed and the person to be
arrested committed it. SC equated this with probable cause.

Robin Padilla case still

SC affirmed conviction of Padilla and upheld validity of search and arrest and the admission of evidences. SC said it
was a case of, first an inflagrante arrest, second, hot pursuit because of immediacy and that the police had personal
knowledge of facts and circumstances that Padilla committed the crime.

PP vs Gerente

Victim was killed, murdered on an occasion of a drinking session using a hollow block. There was an eye witness
who witnessed the crime and reported it to the police. Police proceeded to the scene and found the murder weapon,
approached by the eye witness who identified the accused. Then the accused was arrested 3 hours after. Issue:
validity of the arrest. SC said hot pursuit and the police had personal knowledge of facts and circumstances
indicating that the crime has just been committed and that the person to be arrested committed it consisting of
their knowledge of dead body of the victim, murder weapon found in the scene, and the information they received
from the witness. Enough to constitute probable cause to effect hot pursuit.

PP vs Avion (Cebu Case) sensational

III.

A policeman who was at a vulcanizing shop and from there he heard a burst of gunfire and proceeded to the area
and when he got there, he saw people scampering away and a motor vehicle speeding away from the place so he
gave chase. But the vehicle turned left and he lost sight of the vehicle. So he radioed other traffic police and just
when he lost sight of the vehicle, other police officers saw the passing vehicle as described by the said policeman.
The chase continued and arrest took place. SC upheld arrest under hot pursuit. Defense argued that the policeman
who first noticed the vehicle lost sight of the vehicle when it turned left. SC said there was an unbroken chain of
event because just when he lost sight somebody else saw the same vehicle.

CHECK POINT

Galmonte v Del Villa

Searches conducted in check points are valid; provided that it is justified by the exigencies of peace and order and
that neither the motorist nor the vehicle is subjected to extensive search. Search should be limited only to visual
search (no body search and extensive search of vehicle)

**Sirs strong reservation regarding extensive searches in motor vehicles and motoristsdemanding presentation of license
and registration, etc.
PP v Venecario

Extensive search can only be resorted to when there is probable causereasonable basis to believe that the vehicle
contains instruments of a crime or that the motorist committed/was committing a crime.
Pursuant to the comelec resolution imposing gun ban, police of Davao conducted a check point in the highway.
Motorcycle with three men was approaching, and noticed the checkpoint but instead of stopping they sped up so
the police had to call them out and ordered them to return. And when they returned, asked why they sped away.
One at the middle told them they are members of Phil Army. Police officer noticed one of them is carrying a military
back pack so he asked them as to the contents of the back pack, Venecario told the officers its just --- and at the
same time passed the bag to his companion who in turn passed on the bag to the other companion and the third
man returned it to venecario. So police demanded the opening of the bag and found drugs inside, so they were
arrested. SC affirmed validity of arrest and search and admitted evidence under check points.
While the search was obviously extensive, it was justified by probable cause consisting of the fact that the accused
sped away, one had to represent himself as a member of the army, and that one of them had to misrepresent as to
the contents of the bag, and the fact that they had to pass the bag from one person to another. And they acted
uneasy. Taken as a whole, there was probable cause.

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EVIDENCE

EMERGENCY OR EXIGENT CIRCUMSTANCES

NB: No opportunity to apply for a warrant

PP v Degracia

V.

Coup de tat during the transitional government of Cory. At the height of coup de tat, military received confidential
information that a certain building in manila was used by rebels as their communication place. Surveillance was
conducted, they were fired upon by 6 men. 5 days after, they returned to the place and barged in and found several
firearms, explosives, ammunitions, and even found accused Degracia inside. SC said, warrantless arrest may be
justified under emergency and exigent situations. Since this happened during such circumstances when at the
height of coup de tat, manila was in a state of chaos and disorder. Obviously, courts were closed at that time.

EVIDENCE IN PLAIN VIEW

NB: Practical considerations such that when the police are staring directly at the instruments of a crime, it would be
pointless to obtain a search warrant.
3 Requisites
1)

Prior and Valid justification for Intrusion: Seizing officer must have the right to be in the position to have the
view of the incriminating object. Officers presence must be legitimate.

PP vs Salangit

Police with search warrant went to house of accused to seize undetermined quantity of shabu and paraphernalia.
But in the course of search, they seized shabu, paraphernalia, and dried marijuana leaves (though not mentioned in
warrant, it was still seized). When prosecuted for possession of MJ leaves, accused questioned the legality of the
seizure and admissibility of such as evidence because there was no search warrant. SC said, seizure of MJ Leaves
was illegal and cannot be justified under Plain View Doctrine. The police officer went to search and seize for shabu
as specifically described in the warrant. Under the circumstances, it is safe to assume that the police were able to
seize the shabu ahead of the dried MJ leaves. It was the purpose of the search. The police must have known where
to find the shabu. In this case, though it wasnt clearly established as to which item was discovered first, but SC
made a reasonable presumption that shabu was first seized or discovered. Basing on this reasonable presumption,
SC said when the police already seized the shabu, they no longer had a valid justification for a subsequent search
for MJ leaves. Once the purpose of search warrant is accomplished, any further searches cannot be justified under
plain view doctrine. Reason is that after the accomplishment of the purpose, any subsequent search ceases to be
with prior valid justification.

2)

Discovery must be inadvertent: not purposely sought for by police

PP vs Musa

Buy-bust operation by police outside house of accused. When the police handed marked money, suspect went
inside to get the drugs. Upon exchange, members of the team swooped down and arrested him. Problem is when
they body-searched the accused, no marked money was found. Upon inquiry, the accused said he left the money
inside the house so they proceeded inside the house. Unable to find the money, one went to the kitchen where he
noticed a plastic bag hanging in a corner which contained drugs, hence, they were seized. It was challenged. State
justified it under plain view. SC said, the police was specifically looking for an incriminating object. Not under
evidence in plain view

3)

Illegality of object must be immediately apparent: its incriminating nature is apparent or immediately
exposed to the eye of the observer.

PP v Musa

SC said, discovery, seizure of illegal drugs cannot be in plain view not just because it was advertently discovered
but also because its incriminating nature was not immediately apparent/observed by police. This can be drawn from
the fact that when police saw the plastic bag, he even had to ask the accused as to its content, demonstrating
therefore that the illegality of contents were not apparent.
ANOTHER EXCLUSIONARY RULE:

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RIGHT TO PRIVACY
Just read zulueta case.
ANOTHER EXCLUSIONARY RULE:
ARTICLE 12 MIRANDA WARNINGS
Before the Miranda warnings came out, the usual situation in law enforcement is that the suspect is placed at a very
disadvantaged position during custodial investigation. He is usually alone, isolated and against him are experienced
investigators. More often than not they are compelled to provide evidence against themselves by admitting. Hence to
remedy the great inequality between the rights of the accused and the vast power of the state, Miranda Warning came into
being. (Miranda v Arizona)
What are the so-called Miranda Rights?
1.
2.
3.

Right to competent and independent counsel

Right to remain silent
Right to be informed of these two rights

WHEN AVAILABLE?
1.

Custodial Investigation: (CI) the typical scenario which was the original purpose. This refers to inquiry initiated
by law enforcement after the person is taken into custody or deprived of his freedom of action in any significant
way. This is the stage where the investigation is no longer characterized as a general exploratory inquiry but
focuses on a specific suspect after person is taken into custody. Operative fact: taken into custody; deprived of
freedom either arrested or voluntary. Second, there must be police interrogation.

RA 7438 Act defines rights of a person under CI. Now covers the action of the police in inviting persons suspected for
commission of a crime for questioning. Mere invitation doesnt really constitute taking into custody or depriving of
freedom but under the law, the act of inviting amounts to CI. Any confession made or obtained during police invitation
without Miranda rights being afforded to him is not admissible.
PP v del Rosario

Robbery resulting to death of the victim. One accused was the driver of the get-away tricycle and the other accused
was a look out. When the witness reported the incident to the police, the plate number was known so the police got
the name of owner of tricycle then they looked into the owner of the tricycle. Upon invitation, the owner mentioned
the name of the suspect who was later on invited and during the conference at barangay captain, he made
incriminating admissions. The admissions were later on challenged. The government argued that the admissions
made during the invitation were admissible because when the confessions were made, the accused was not placed
under custodial investigation. SC said: custodial investigation is not limited to a situation where a suspect is taken
into custody or otherwise deprived of freedom of action in any significant way. It covers the practice of the police in
showing invitation to suspects. This case, SC said since the confessions were made without counsel, inadmissible.

2.

Extrajudicial admissions made to a questioning judge: When the accused is taken into custody and was
brought to a judge who interrogated him and in response to the questions of the judge, the accused made an extra
judicial admission admitting involvement in the crime, any admission made by the suspect without being afforded
his Miranda rights are inadmissible.

Take note, this is not your typical custodial interrogation because the interrogation was not initiated by the police rather by
the judge. SC said this is covered by the Miranda warnings.
PP vs Baloloy

This involves the rape and slay of a 9 year old who was asked to borrow rice from a neighbour but never came back.
After the search, the accused came to the father and told the latter he found the dead body of a girl at the
waterfalls so they went and found the dead body of the child. The incident was reported to the barangay captain.
During the wake, the captain attended and so did the accused. Admire his guts! During the wake, somebody
brought the black rope which was found at the crime scene so the Captain asked the people as to who owned the
black rope. Maybe out of over-intelligence or sheer stupidity, accused Baloloy volunteered and said that the rope
was his. This arose suspicion so the captain asked Baloloy to have a conversation and during such, Baloloy broke
down and confessed as to committing the crime. Captain turn him over to the police. Baloloy was prosecuted and

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one of the witnesses was th Captain. When Baloloy was asked during the trial, Baloloy also confessed. Hence,
during the trial, the two confessions were introducedbefore the captain and before the judge.
The confession made before the Judge: Issue there was Won it was valid because he was not assisted by the
counsel at that time. It was also argued that confession was not covered by the Miranda warnings because the
interrogation was not made by the police and argued that it was not under custodial investigation as defined. SC
saw it the other way: SC said it is still covered because once a suspect is taken into custody, CT is deemed to start.
So when baloloy made confession while under police custody, no interrogation should have been done without
assistance of counsel. Otherwise this violates the Miranda Rights.

3. Preliminary Investigation: Instance where it is not your typical CI because here, this is before the public prosecutors
office.
PP vs Bongkiko and Col:

Brutal murder of ER who owned an apartment where the accused were the workers. When the two accused were
arrested, during the Preliminary Investigation before the Public Prosecutor, the accused Bongkiko made an ExtraJudicial Admission admitting how they planned and executed the killing. Admissibility of Admission was questioned.
State argued that it was not covered by Miranda warning because it was not under CI. SC overruled the argument of
the state. There are certain pre-trial stages critical to the trial process where a suspect is subjected to a similar
intimidating and relentless process no different from police interrogation. The purpose of the Miranda warning is to
avoid a situation where a person is forced into making incriminating statements because of an inherent intimidating
atmosphere attendant to a police custodial investigation. This intimidating, relentless, and coercive environment is
similarly obtaining in a PI proceeding where prosecutors relentlessly pursue persons who may be responsible for the
crime. So there is the same evil sought to be avoided there is therefore no reason why Miranda warning/rights
should not be made applicable to PI.

WHEN NOT AVAILABLE?

1.

Spontaneous statements given by accused not elicited by police questioning, rather given in an ordinary
manner. The purpose of the Miranda Warning is to prohibit testimonial compulsion BUT it does not prohibit the
suspect from being honest. This applies even if the suspect is taken into police custody, still not covered by Miranda
Warning.

Pablito Andan:

Rape and slay of 19 year old high school student. Evidence was gathered. Police identified the accused and arrested
him. Search for the accused was spearheaded by the mayor of the town. So when the mayor came to the station,
the accused wanted to have a conference with the mayor where he broke down and admitted to the crime. Upon
reaching SC, accused questioned the admission made with the Mayor because there was no counsel. But the SC
said not all confessions are covered by the Miranda Warnings. Miranda warning does not prohibit spontaneous
statements so long as he was not questioned by the police. In this case, the admission was not made in response to
either the police or the mayors questioning. He made it on his own volition without being asked.

2.

Any statement made before the accused is taken into police custody so long as this is made voluntarily
made. Hence, admissible.

Baloloy Case: insofar as Baloloys admission before the barangay captain. This admission was assailed by Baloloy on the
ground that he was not assisted by the counsel but SC said that when Baloloy made the verbal confession; he was not yet
taken into custody. He was not yet under CI. So not covered by Miranda warning.
3.

Only to Testimonial compulsion NOT to Object Evidence.

PP vs Baylon

Involves the killing of an elementary teacher witnessed by a pupil. When pupil was interviewed, he described the
assailant as wearing maong pants, white tee, green hanky wrapped on his neck, and hat on his head. Acting on the
description, police traced and arrested the accused. Upon his arrest, police forcible stripped him of his clothing and
these were introduced during trial to corroborate the statement of the witness. Admission of such was challenged
under Miranda Rights Violation since when these were stripped from him. Not assisted by Counsel. SC said that
Miranda Warning covers only testimonial compulsion and NOT object evidence.

PP vs Malimit

A case of robbery with homicide. Accused was arrested and interrogated by the police. He led the police to the
place where he hid the items taken from the victim. They found the wallet of the victim. These evidences were

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introduced and admission was objected to saying that when these items were recovered, he was not assisted by a
counsel. SC said, Miranda warning operate only to include the statement made by the accused NOT the wallet, i.d.,
keys because these are object evidence.

Recall the case of People v Judge Ayson. I have to discuss this with the topic in custodial investigation although this case
is appropriate for right against self- incrimination. But since we are talking about custodial investigation, I feel I should
discuss a little about the case. This involves a PAL employee who was charged with estafa and involving PAL when he
misappropriated proceeds of the PAL ticket. Parallel to the criminal case, he was subjected to administrative investigation
initiated by the management. During the administrative investigation, the respondent there, the accused in the criminal
case, allegedly made some incriminating confession or admission. The Supreme Court there had the occasion to lay down
the distinction as to when the rights against custodial investigation may be invoked in relation to the issue as to when the
right against self-incrimination may be invoked. In this case, the Judge in the criminal case excluded the confessions made
during the course of the administrative investigation. In justifying the exclusion, the trial court cited Sec. 20 of Article 4 of
the 1973 Constitution. Under the 1973 Constitution, the right against self- incrimination which is now in Sec. 17, Article 3 (of
the 1987 Constitution) is lumped together with rights in custodial investigation which is now in Sec. 12, Article 3 of the
present Constitution. Now this section which lumped together the rights in custodial investigation and the right against selfincrimination was used to justify the exclusion. The Supreme Court cracked a whip against the trial judge for obviously
misunderstanding the principle. The SC made an academic discussion to delineate between the custodial investigation rights
and right against self-incrimination. These two rights are distinct. They should not be lumped together. The rights available
during custodial investigation, or the so- called Miranda rights, is available only during custodial investigation. And custodial
investigation refers to the stage before the filing of a case either before the court or the Office of the Public Prosecutor for
purposes of preliminary investigation. When the case already transcends beyond the period starting from preliminary
investigation to trial, the right available is no longer the rights in custodial investigation but the right against selfincrimination. In this case, the SC delineated the particular stages in criminal or legal process where these rights can be
invoked.
I am pointing this ruling in Ayson to the effect that the custodial investigation which according to the SC can only be invoked
before filing of the case with the public prosecutor for purposes of preliminary investigation or filing with the court, THIS IS
NO LONGER CONTROLLING. Because recent jurisprudence will tell us that even during preliminary investigation, rights under
custodial investigation may be invoked. This was the ruling in the more recent case of People v. Bongkiko. And even if,
under the existing jurisprudence now, the case has already been filed in court, so long as the person is subjected to police
interrogation, it doesnt matter if the case is already filed in court. So the ruling in Ayson which makes it appear that the
Miranda warnings are only available before the filing of the case either with the fiscal or with the court is no longer
controlling.
ANOTHER EXCLUSIONARY RULE:
SEC 17: RIGHT AGAINST SELF INCRIMINATION
Right against Self- Incrimination
Section 17. No person shall be compelled to be a witness against himself.
The kernel of the privilege of this right against self- incrimination is the prohibition against testimonial compulsion. It does
not exclude the body as evidence if it is a material issue in the case. This right does not protect object evidence or purely
mechanical act. So lets have a rundown of the cases where the SC allowed the non- testimonial compulsion to be made
even against the will of the accused but the SC repeatedly ruled that these cases are not covered by the right against selfincrimination.
In US v Ong Sia Kong, this involves an accused who while under police detention was forced to discharge morphine from
his mouth. The admission of the morphine was objected to on the ground of violation of the right against self- incrimination
contending that he was made to produce evidence against himself. The SC made a definitive ruling that this is not covered.
It is just a mechanical act- an object evidence, not testimonial evidence. So it was in this case that the SC held that the
kernel of the privilege refers only to testimonial compulsion.
The same ruling was applied in the case of US vs. Tan Teng. This involves a prosecution of rape or acts of lasciviousness
where the victim, as a result of the molestations, was shown to be suffering from gonorrhoea and in order to affirm that the
accused was the one responsible for the sexual offense, he was forced to submit himself to a medical examination. There

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were substances discharged from his body which were subjected to a medical examination which yielded a positive result
that the accused was suffering from gonorrhoea. This was objected to on the ground of violation of the right against selfincrimination but this argument was overruled by the Supreme Court holding that the kernel of the privilege applies only to
testimonial compulsion. Not purely mechanical, not covering object evidence.
The same principle was upheld in Villaflor v Summers when a woman charged with adultery was compelled to submit
herself to pregnancy test. The objection to the admission of the evidence was grounded on the right against selfincrimination but the SC overruled. Same principle was applied there.
So also with the case of People v Vallejo, a prosecution for rape involving a young girl. During the examination, some
semen were found inside the vagina of the victim. So the accused was compelled to produce DNA samples. This was
objected to on the ground that the right against self- incrimination was violated but overruled based on the same principle.
In the case of People v Gallarde. A person arrested for committing a crime and during the arrest, he was photographed.
The photograph was presented as evidence but was objected to for violation of the right against self- incrimination.
Objection overruled based on the same principle.
In the case of People v Modejo. The accused was charged for the killing of the young girl. When the dead body of the
victim was found, it was established that her right hand or palm was tightly gripping hair strands. So when the accused was
arrested, he was compelled to produce hair samples. The introduction of the evidence was objected to under right against
self- incrimination. The objection was overruled on the same principle, the right does not cover mechanical acts or object
evidence.
HOWEVER, in the case of Beltran vs. Samson, the SC said the accused was compelled to produce a sample of his
handwriting for purposes of comparing with the document allegedly falsified by the accused. SC ruled that compelling a
person to produce his own handwriting is not a purely mechanical act. Therefore covered by the privilege of the right against
self- incrimination. THE SC said there that number one, producing a sample of your handwriting requires the intervention of
mans mental faculty. So it is not mechanical. And besides, the reason why non- testimonial compulsion is allowed is because
in these situations, the compulsion is made not to unearth undisclosed facts but merely to demonstrate physical attributes
which are easily determinable by simple observation. IOW, if the object evidence or the purely mechanical act is already
available, but what is done is merely to demonstrate some physical attributes determinable by simple observation, the right
against self- incrimination does not apply. Not when the accused is made to produce something which is not yet in existence
because that in effect is forcing him to produce evidence which may be used against him. This is exactly what happens if a
person charged with falsification is forced to produce his handwriting for purposes of comparison.
In the case of Regala v Sandiganbayan, SC made a definitive ruling that the right against self- incrimination equally
applies to documents, records and even chattels- objects! But these obviously refers to objects which are not yet in
existence, not yet available but the accused is forced to produce them. That would be covered by the right against selfincrimination. But not when you are stripped of your clothing, subjected to measurement of body parts, because these are
only determination of certain physical attributes- not protected.
With all these settled jurisprudence, take note of the very recent decision of the SC which is a breakthrough insofar as the
right against self- incrimination is concerned. Im referring to the case of People vs. Jaime dela Cruz. The accused here is
a policeman who was arrested for alleged extortion, when he got arrested, he was brought to the police precinct where he
was forced to produce urine sample for drug testing. When subjected to confirmatory test, it yielded the result of the
presence of shabu. So as a result of the positive result of the confirmatory test, he was charged, prosecuted and convicted of
illegal use of drugs prosecuted under Sec. 15, Art2 of RA 9165. The case went to the SC and one of the critical issues there is
on the admissibility of the urine sample. Both TC and CA rejected the invocation of the accused of the right against selfincrimination. The SC ruled that while it is true that in so many cases, non- testimonial compulsion was allowed and the
evidence obtained thereby admitted without violation of the right against self- incrimination but take note that in all these
cases, the pieces of evidence obtained were related to the principal cause of the arrest or the crime itself. Like in adultery,
pregnancy test. In gonorrhoea, that kind of medical test. And similar other cases.
But in this case, SC observed that we cannot see our way clear how a drug test can be relevant to the principal cause of the
arrest which was extortion. Not all mechanical acts can be dismissed as not covered by the right against self- incrimination.
The cases which consistently upholds the principle that non testimonial compulsion is not covered should be distinguished
from the case of People v dela Cruz in the sense that if the evidence obtained by non-testimonial compulsion has nothing to
do at all with the principal reason for the arrest, the principle does not apply and so therefore even if the evidence is purely
mechanical, still violates the right against self- incrimination. SO there should be a nexus between the reason of the arrest
and the obtention of the non-testimonial evidence.

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When may right against self- incrimination be invoked?

Generally it may be invoked in criminal, civil and administrative proceedings. But the proper time to invoke differs depending
on the nature of the case and depending on the person invoking it.
CRIMINAL CASE
The party invoking is the accused himself. The right may be invoked right away. The moment he is called to take the witness
stand. The accused need not wait for the specific incriminating question to be asked. The obvious reason there is because in
the criminal case, the only reason why the State will call the accused to the witness stand is to incriminate him. He may
altogether refuse to comply with the subpoena. He does not run the risk of being held in contempt for disobeying a
subpoena.
The rule is different if the person served with a subpoena to testify in the criminal case is not the accused but an ordinary
witness including the private complainant because the private complainant is only considered as a witness in a criminal
case. The rule is that witness may only invoke right against self- incrimination when the specific incriminating question is
being asked. IOW, an ordinary witness may not refuse to comply with the subpoena. The witness served with the subpoena
is duty-bound to appear before the court and take the witness stand.
CIVIL and ADMINISTATIVE CASES
The general rule is that the parties or ordinary witnesses, have no right to disobey a subpoena. They have no right to refuse
altogether to take the witness stand. They can only invoke the right against self- incrimination if a specific incriminating
question is being asked while they are taking the stand.
Well recognized exception is when the administrative or the civil proceeding is penal in nature because it imposes some
penalty. Here, apply the rule available in criminal proceeding. Meaning, a party may altogether take the stand. This was the
ruling in the cases of Pascual v Board of Medical Examiners, Cabal v Kapunan and Rosete v Lim.
Cabal v Kapunan involves an administrative complaint against a member of the military. He was accused of graft and
corruption, unexplained wealth and gross misconduct before the Office of the Secretary of National Defense. So this is an
administrative proceeding. During the hearing, the complainant moved that their first witness be the respondent himself. Of
course, the respondent objected invoking the right against self- incrimination because he was the respondent in the case. He
was overruled because he was only subjected to an administrative proceeding and in administrative proceedings, the
respondent has no right to refuse to take the stand but only to refuse to answer if an incriminating question is asked. The
matter went all the way up to the SC and SC sustained the respondent. The SC said that while as a general rule the
respondent in an administrative proceeding may not refuse altogether to take the witness stand but as an exception is that
he may do so when the administrative proceeding is penal in nature. It partakes of a criminal proceeding. The SC took note
that while it is an administrative proceeding, it is criminal in nature in the sense that whenever he is found guilty, he stands
the risk of his property being forfeited and be dismissed from service. He may not be forced to take the witness stand. Like
an accused in the criminal case.
A similar principle was applied in the similar case of Pascual v Board of Medical Examiners involving a doctor who was
charged with malpractice. During the hearing before the Board, the complainant manifested that the first witness is the
respondent himself. He objected, invoking the right against self- incrimination but he was overruled. When the case went all
the way up to the SC. The SC ruled in his favour and said that while this is an administrative proceeding it however partakes
of the nature of a criminal proceeding because whenever the respondent is found administratively liable, he stands the risk
of his license being revoked- a property. He may not be compelled to take the witness stand. He can invoke his right against
self- incrimination right away.
In Cabal v Kapunan and Pascual v Board, take note that the proceeding was administrative but partook the nature of
criminal.
In Rosete v Lim, the case was civil. There was a case for annulment of document and recovery of property filed by the
plaintiff against the defendant. Parallel to the civil case, there were also criminal complaints for estafa and violation of BP 22
filed by the plaintiff against the defendants arising from the same transactions subject matter of the civil case. In relation to
the civil case, the plaintiff manifested their intention to serve notice to take the deposition of the defendant. Deposition
taking is sort of testimony taking. You will be examined and your testimony taken during the deposition. The defendants
objected on the ground that the taking of the deposition would compel them to provide evidence against themselves. And
this evidence would be used by the plaintiff against them in the related criminal case. This time around, the SC ruled that in

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civil or administrative proceeding, the defendant may not refuse to take the stand altogether. The general rule is that they
may only invoke the right against self- incrimination when the specific incriminating question is asked. But if the civil or
administrative proceeding is penal in nature, the rule applicable is the same in a criminal case. This is the innovation
introduced in Rosete v Lim. Used to be, before this case, this rule applies only to administrative. Silent as to civil.
However, in this case of Rosete v Lim, the SC said, this is a civil proceeding but it is not penal in nature. And so, the
defendant may not refuse altogether to take the deposition taking. So they were compelled to comply with the subpoena
without prejudice in invoking their right against self- incrimination when there are specific incriminating question.
Sir: I have a problem in this ruling because this civil case, if the defendant lost in the case, they stand to lose their property.
So I could not understand why the SC said its not penal in nature when in Cabal and Pascual, the danger of losing one's
license which is a property right makes the case tainted with the character of a criminal or penal proceeding. But in this
case, the relief prayed for by the plaintiff is the annulment of certain documents of sale. Recovery of ownership! So
obviously if the defendant lost in the case, they would be divested of their property. So, I dont know now how to determine
that the proceeding- civil or administrative- is deemed to be penal in nature. When do you say its penal? Because in Cabal
and Pascual, its because of the imposable penalty. And also, I find it so hard to think of an administrative case when there is
no penalty. If termination of employment, obviously its penal. But if its just suspension, not so penal? Anyway, I go back
again to the basic reality of practice that its always a case to case basis. Lets wait for another case for the SC to decide.
The questions today may be the answers of tomorrow.

SPECIAL LAWS
Lets go to Exclusionary Rules under Special Laws. This is the third classification of the Rules of Exclusion. There are some
legislative acts that have evidentiary impact insofar as competency of evidence is concerned.
A.

RA 4200 (Anti Wiretapping Act)

Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication
or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear,
intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or
dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described:
It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding
sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies
thereof, of any communication or spoken word secured either before or after the effective date of this Act in the
manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the
contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to
any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal
investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition.
Section 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning
of the same or any part thereof, or any information therein contained obtained or secured by any person in violation
of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or
administrative hearing or investigation.

This makes unlawful for any person who without the consent of the parties to any private communication or spoken
word by tapping wire or cable or by using devices commonly known as Dictaphone, dictagraph, walkie talkie, or
tape recorder- however described. Thats Anti Wiretapping.
In the case of Gaanan v Court of Appeals, the SC was burdened with the duty to interpret the provisions of the
Anti- Wiretapping Act insofar as to the issue of what kind of devices or arrangements contemplated by law as to
make the offender liable. The specific device involved in this case is a telephone extension wire. This is a Cebu
setting. We have this Cebu lawyer, Atty. Tito Pintor whose client was a teacher in Don Bosco Technological School
who filed a criminal case with the Office of Provincial Prosecutor against a lawyer for direct assault. During the
pendency of the case with the public prosecutor, the parties were trying to negotiate for a possible settlement. One

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day, Atty. Pintor and his client (a certain Montebon) agreed on some proposals that they want conveyed on the
accused. So Atty. Pintor called up Atty. Lacunico, the respondent there, and made some proposals for settlement. In
the course of the telephone negotiation, Atty. Lacunico called another lawyer, Atty. Gaanan, and asked him to come
into his house and get involved in the negotiation. So in the process, when Atty. Pintor called Atty. Lacunico to
further discuss the terms of the settlement, Atty. Gaanan listened to the negotiation using the extension line. The
parties supposedly agreed for the delivery of the money because Atty. Pintor proposed while Atty. Lacunico
accepted to give P8000 as the compromise amount. Unknown to Atty. Pintor, Atty. Lacunico and Atty. Gaanan
decided to entrap Atty. Pintor and so they brought the matter to the police authorities, and so they set up an
entrapment operation. So Atty. Lacunico insisted that it should be Atty. Pintor who will receive the P8000 and true
enough, they met in a restaurant, and when Atty. Pintor received the P8000, he was arrested by the police. Upon
the arrest of Atty. Pintor, the complainant Atty. Lacunico filed a case for bribery against Atty. Pintor. He claimed that
he was forced to deliver the amount extorted by Atty. Pintor as consideration of the withdrawal of the direct assault
case filed against him. In support of the complaint, Atty. Gaanan executed his affidavit and exactly narrating how he
was able to overhear the telephone conversation between Atty. Pintor and Atty. Lacunico. He disclosed there that he
was using an extension telephone line. On this basis of the affidavit filed by Atty. Gaanan, he got sued for violation
of the Anti -Wiretapping Act. Obviously, he overheard the conversation without the consent of Atty. Pintor on the
other line. The consent was only given by one of the parties to the conversation, Atty. Lacunico. The pivotal issue
raised is whether or not Atty. Gaanan is liable under the Wiretapping Act provisions and corollary issue is whether or
not the telephone extension line one of those device or arrangement specifically under the law as to make him
liable. The SC said that the conversation between Atty. Pintor and Atty. Lacunico was private. But under the
provisions of the Anti- Wiretapping act, the manner of commission should be:
1.
2.

Tapping a telephone line or wire- there must be physical interruption, or

Using a device or arrangement of the same kind enumerated under the law. Meaning those of the
same category as Dictaphone, dictagraph, detectaphone, walkie talkie, and tape recorder.

So the SC said, under the first mode of commission, by tapping a wire or cable, this is not the case insofar as the
telephone line is concerned. Because what is obviously contemplated by law as wiretapping is something which is
not normally expected by a party using a telephone. It refers to devices, the purpose of which is to tap
communication. Telephone extension line does not fall under this category because nowadays, telephone extension
line is a fact of life. One using telephone with one on the other side should reasonably presume that someone else
is listening or overhearing the conversation because of a party line. It cannot be considered as Wiretapping.
Second, an extension line cannot be said to be of the same category as dictagraph, Dictaphone, walkie talkie or
tape recorder because obviously the purpose of these devices is really to intercept communication. Of course, this
is not the purpose for which an extension line is installed. So on these two counts, the SC said Atty. Gaanan did not
violate the provisions of the Anti- Wiretapping Law.
In the case of Ramirez vs. Court of Appeals, the issue is whether or not a party to the conversation may be held
liable under the provisions of the Anti- Wiretapping Act. In this case, Ramirez, during her meeting with a friend
(used to be a friend, ironically shes a friend), she claimed that she was being maltreated, humiliated, and
embarrassed by a certain Garcia. She felt aggrieved that she filed a case against Garcia for humiliating her in her
office. In support of her complaint for damages, she produced a transcript of the conversation between Garcia and
Ramirez and these transcripts were lifted from the tape recording made by Ramirez in the course of the incident. On
the basis of this disclosure and admission, Ramirez ended up being sued for violation of the Anti- Wiretapping Act
for recording the conversation without the consent of the other party. Her defense is that she cannot be held liable
because she was a party to the communication. She claims that what is being contemplated by-law is a situation
where a third party, not a party to the conversation, overhears, intercepts or secretly records a private
conversation. But this argument was rejected by the SC holding that by a plain reading of the provisions of the law,
it is clear that the lawmakers intended to punish ANY person who violated the provision. The law does not make any
distinction nor qualification as to the person whether he would be a party to the conversation or a third party.
Ramirez was covered even if she was a party to the private communication, secretly recorded.
Another interesting issue involving the Anti- Wiretapping Act is when is a conversation deemed private. This eludes
definitive ruling of the Court. We only have collateral discussion on the matter. Not really head on as to what
constitutes private communication. WE have cases to guide us.
In People v Navarro, this involves the story of two radio reporters who following the report that a certain
entertainment bar would offer a striptease show, nude dancers, went to that bar and when they went inside,
drinking beer, a scantily clad dancer appeared on stage and began to perform a striptease act. It was at this

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juncture that one of the reporters, getting excited, took out his camera and started taking pictures of the sexy
dancer. When he was noticed by the floor manager and the security guard, the floor manager wanted to know why
he was taking pictures of the girl dancing on the stage. But the reporter, with some air of arrogance, told the
manager that he should leave him alone because its his job to take pictures. This resulted in a heated altercation
and when the reporter who took those pictures noticed that the security guard attempted to pull out his gun, he
hurriedly left the bar and his two companions followed suit. They proceeded to a nearby police station to report the
incident and have it recorded in the police blotter. But a few minutes after, the floor manager and the security
guard followed them there at the police station. And when the floor manager and the policeman who was there at
that time talked about 15 minutes, the policeman, Police officer Navarro, turned hostile against the reporters. And
so a heated altercation ensued between Navarro and the reporter who took those pictures. But in the process, the
other reporter intervened, trying to pacify Navarro and his companion. Unfortunately for the other reporter, Navarro
now turned his venom against him. So Navarro and the second reporter engaged in a very heated altercation that
resulted in Navarro striking the other reporter with a gun and fist blow. The other reporter fell to the ground.
Eventually he died in the hospital because of the incident. Unknown to Navarro, the other reporter who took the
picture secretly recorded the confrontation between Navarro and the other companion, the deceased. So during the
trial, one of the pieces of evidence presented against Navarro was the tape recorded conversation. This was
objected to by Navarro on the ground that it was obtained without his knowledge and consent in violation of the
Anti- Wiretapping Act. His permission was never obtained by the reporter. Of course the SC rebutted Navarro
holding that the confrontation between him and the deceased was not covered by the provisions of the AntiWiretapping Act because it was not a private conversation.
The SC never justified the finding that it is not a private conversation. Maybe because we can only surmise that its
because the confrontation took place in the presence of some other people. Maybe the SC deemed it too clear to
elaborate. It simply said its not private. But as to why, their Honours never bothered to explain.
However, in Gaanan v CA, although not the issue raised in the case, the SC made a discussion about the nature of
a private communication as distinguished from a conversation which is not private. In this case, the SC said that the
conversation between Atty. Pintor and Atty. Lacunico is private in the sense that the words uttered were between a
person and another person as distinguished from words uttered between a speaker and the public. So if the words
or the communication is uttered between one person to another, not between a speaker and public, its deemed
private. The SC went on to say that if Atty. Pintor only knew that someone else was listening to the conversation, he
would not have proceeded with the telephone conversation. So, taking cue from this discussion of the SC, it may be
safe to say that a conversation is private when it is not intended to be heard by someone who is not supposed to be
part of the conversation. The number of parties to the conversation may not be relevant. There could be 5, 10
people in the room conversing- the conversation may be private if the words are spoken for the purpose of the
consumption of those who are present. Not intended for just anyone else. Like a speaker talking to the public
because the words spoken there are without regard as to who are listening.
Notwithstanding the provisions of the Anti- Wiretapping Act, a private conversation or any form of communication
may be intercepted or recorded without violating Anti- Wiretapping Act under the parameters set out pursuant to
the provisions of the Human Security Act.
Human Security Act
SEC. 7. Surveillance of Suspects and Interception and Recording of Communications. The provisions of Republic
Act No. 4200 (Anti-wire Tapping Law) to the contrary notwithstanding, a police or law enforcement official and the
members of his team may, upon a written order of the Court of Appeals, listen to, intercept and record, with the
use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking
devices, or with the use of any other suitable ways and means for that purpose, any communication, message,
conversation, discussion, or spoken or written words between members of a judicially declared and outlawed
terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of
terrorism or conspiracy to commit terrorism.
Provided, That surveillance, interception and recording of communications between lawyers and clients, doctors
and patients, journalists and their sources and confidential business correspondence shall not be authorized.
SEC. 15. Evidentiary Value of Deposited Materials. Any listened to, intercepted, and recorded communications,
messages, conversations, discussions, or spoken or written words, or any part or parts thereof, or any information
or fact contained therein, including their existence, content, substance, purport, effect, or meaning, which have

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been secured in violation of the pertinent provisions of this Act, shall absolutely not be admissible and usable as
evidence against anybody in any judicial, quasi-judicial, legislative, or administrative investigation, inquiry,
proceeding, or hearing.

EXCEPTION TO ANTI-WIRE TAPPING ACT: HUMAN SECURITY ACT

law allows legalized wire tapping but subject to strict limitations

STRICT LIMITATIONS: In connection to terrorism, or conspiracy to commit terrorism

Conversations between judicially declared outlawed terrorist organization, associations or groups of

persons or any person charged with or suspected of crime of terrorism or conspiracy to commit one
Terrorism When someone commits any of the acts mentioned. Mutiny, piracy, kidnapping,
serious illegal detention, murder, crime involving destruction and by committing any of these
crimes, the suspect or suspects created a state of widespread panic or extraordinary fear among
the populace in order to compel or coerce the government in giving in to unlawful demands

This can only be allowed upon application by authorized law enforcement agencies and upon order issued
by the appropriate authorized division of the CA
Period is limited to that specified in the order which is not more than 30 days, renewable with a nonextendible period of 30 days
Curious provision of this act: While wire-tapping, surveillance and interception of communications as
contemplated under the act is allowed, the laws expressly require that the person subject of the legalized
wire-tapping surveillance should be informed of the activities being done in the vicinity. The law also
requires that upon termination of the legalized surveillance, he should also be informed about it.
The framers of this law were trying to balance authority and liberty (allowed to conduct
surveillance but notify the person subject to it)

By express provision of the law, there are certain communications that CANNOT BE INTERCEPTED even by
authority of the appropriate division of the CA
1.
2.
3.
4.

Lawyers and their clients

Doctors and their patients
Journalists and their sources
Business correspondence

*Reservations of SIR: The purpose is the confidentiality of the correspondence between these parties, but your legal
ethics and even the rules of evidence will tell us that there is a limitation to privileged communication rule.
Not all communications between these individuals are privileged or confidential. Only legitimate communication are
protected by the privileged communication rule. When the lawyer and his client conspire to commit a crime, cannot be
protected under the privileged communication rule.
By expressly excluding, what could prevent lawyers-terrorists from conspiring terrorism with their clients? Maybe
the framers believed that lawyers are not capable of being terrorists.

COMPARE the evidentiary clause in the ANTI-WIRE TAPPING ACT (AWTA) and that of the HUMAN SECURITY ACT

Under wire-tapping, any evidence obtained in violation of the provisions of the anti-wire tapping act is
inadmissible in evidence. Obviously inadmissible if it is adduced against the person whose communication was
intercepted, overheard or recorded in violation of the AWTA
o
SITUATION: If the person is discussing a crime with another. This was secretly intercepted and overheard
in violation of AWTA, the person whose communication or conversation was recorded, if prosecuted for the
crime which relates to the conversation being recorded, that recorded conversation may not be used
against him. But the law itself requires, that the evidence obtained may be used against the persons
responsible for the illegal wire-tapping for purposes of prosecution under the AWTA. Any person who
secretly recorded a private conversation without the consent of the parties may be prosecuted under the

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provisions of the AWTA and in order to support the charge, the evidence, the illegally recorded
conversation may be used against him, the responsible party
Inadmissible against the party whose communication was illegally intercepted BUT admissible
against the party responsible for the illegal interception.

Human security: The language there is so categorical that it says any person. Does not make any qualification
insofar as the violator of the law or the victim because the evidence will be used against the victim or it could be
used against the violator. Whether used against the person whose right was violated or it was used against the
violator, the rules say it is inadmissible. Maybe the intention of the framers there is to make it inadmissible
against any party regardless of whether he is the victim or he is the offender.

Wire-tapping act obviously refers to spoken words so, audio, oral. Precisely the devises enumerated there refer to
devices that could intercept, record oral communication. Video is not contemplated there.

Reason: at the time this law was crafted, video was still in the realm of impossibility.

Recent law: ANTI-PHOTO OR VIDEO VOYEURISM ACT (Anti-Peeping Tom Law)

Inspired by Dr. Hayden Kho and Katrina Halili sex video

WHAT ARE THE ACTS PUNISHED:

1.

It makes unlawful for any person who takes a photo or video of any person or group of persons engaged in sexual
act or acts similar to a sexual act

2.

Taking of an image capturing the image of a persons private part [specific private parts refer to the naked genitals
or the undergarment-clad genitals (woman wearing underwear), pubic hair, buttocks, female breast] without the
consent of the person concerned and under circumstances where there is reasonable expectation of privacy

Qualifying circumstances are WITHOUT CONSENT and REASONABLE EXPECTATION OF PRIVACY

TAKE NOTE: FEMALE BREAST only

TEST OF REASONABLE EXPECTATION OF PRIVACY

o
Subjective There is reasonable expectation of privacy if the person believes that he can disrobe in
privacy without being concerned that the image of his private parts would be captured
o
Objective If under the circumstances, any reasonable person would believe that his private parts would
not be exposed to the public

In the absence of reasonable expectation of privacy, no violation.

Even if the person concerned consented to the taking of the video of his private part, a violation of this act may still
be committed if the person/offender reproduces the image or sells, peddles or publishes because these are
separate acts to be punished
o
Making, capturing, reproduction/copying, selling or distribution and publication
o
Consent to the taking is NOT consent to the reproduction/copying, selling or distribution and publication
o
To avoid liability, there has to be consent to EACH ACT.

What is the EVIDENTIARY RULE?

Evidence obtained in violation of this act is INADMISSIBLE

SITUATION: If Dr. Hayden Kho, being a doctor, will be administratively charged with immorality or gross misconduct,
had it happened this time when this law took effect, evidence of their sex video would not have been admissible

EXCEPTION TO THE LAW:

o
Only for the purpose of convicting or prosecuting the offender of the law or
o
Preventing the commission or the violation of this law

IOW, it may be admissible against the law violator but before it can be used, proper application
must be filed and there must be a court order allowing the use of the evidence. Upon court
satisfaction that it is necessary to convict or prosecute or to solve the crime under this law or to
prevent the commission or the violation of this act.

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DOCUMENTARY STAMP TAX (DST)

Another rule of exclusion provided for under the rules of the Internal Revenue Code (most hated and despised law). The law
declares certain documents to be taxable documents.

Section 201: These documents are INADMISSIBLE in evidence UNLESS the DST is paid

WHAT ARE THESE COMMONLY KNOWN DOCUMENTS?

Originally issued certificate of stocks

Insurance policies
Lease contracts
Deeds of conveyance of real property
Special powers of attorney

Inadmissible unless DST is affixed to the document, duly signed and tax paid
Case of GABUCAN: SC said, the inadmissible character of the taxable document, which is not compliant with the DST law,
is coterminous with its being non-compliant with the DST law. IOW, the moment it complies with the DST, it becomes
admissible.

The court should allow the proponent of a taxable document the opportunity to comply.

In one case, SC rebuffed Trial court for disapproving a will on the ground that the acknowledgment portion of the notarial will
did not comply with DST law. SC said, the trial court instead of disapproving the will, should have allowed the proponent to
comply with the law. And maybe when despite given the opportunity to comply, the proponent remains bullheaded, that the
petition may be dismissed or adverse sanctions may be imposed.
The worst scenario if you failed to comply with the DST law is that your evidence which is considered as taxable document
may not be admitted by the court but the court will allow you to comply. It is the failure to comply with the order that entails
the harsher consequences. In reality, not so many judges and lawyers take serious consideration of this law.

BANK SECRECY DEPOSIT

IN OUR JURISDICTION, 2 STATUTES GOVERNING CONFIDENTIALITY OF BANK DEPOSITS:
1.

RA 1405 law of general application in a sense that it declares all bank deposits regardless of whether it is
domestic or foreign as confidential. Confidential in a sense that its disclosure or inquiry into it is prohibited subject
to certain exceptions.
o
EXCEPTIONS:

Consent of depositor

Impeachment

When deposit subject of litigation

Court order in cases of bribery/dereliction of duty

Authority by the Monetary Board in cases of Unexplained wealth

2.

RA 8426 special law which declares foreign currency deposit as absolutely confidential.
o
Only ONE EXCEPTION: written consent of depositor

CORONA CASE: Impeachment trial of then CJ Corona. Senate Impeachment Court issued subpoena to PSB
commanding it to disclose some foreign currency deposits allegedly owned by CJ Corona. PSB scrambled to get the
TRO from the SC. SC issued the TRO upholding the secrecy, the absolute confidentiality of the foreign currency
deposits. SC said, under the law, there is only one exception which is not obtaining in this case.

GOOD ISSUE in the recently held hearing in the Senate Committee presided by Koko Pimentel in relation to the senate
inquiry into the allegation of corruption of the VP. When the VP was reported to amass substantial properties including a vast

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track of land in Batangas. The VP through his lawyers, the property, the ownership of which was imputed to him was actually
owned by a certain Tony Tiu. Following this information, Senate summoned Tiu.

Senator Trillanes asked Tony Tiu about the details of the bank account in a local bank, where massive
withdrawals were made around the time that the Senate Inquiry was initiated.
Upon advise of counsel, Tiu invoked the Bank Secrecy Act and refused to answer the question of Senator
Trillanes. Trillanes shut his mouth up believing that Tiu was indeed entitled to invoke that Bank Secrecy Act.
But one of the staff of Pimentel came forward and informed the members of the committee that Tiu cannot
invoke the bank secrecy act. The prohibition to disclose details of the bank deposit is imposed only on bank
officers and employees but not on the depositor himself. So it was claimed that he was not the party to invoke
Bank Secrecy Deposit.
Although Tiu was proven to be bullheaded, he really did not answer the question but the committee tried to get
around the provision invoked by Tiu.

GOOD QUESTION: Whether the depositor can invoke the secrecy of bank deposit in an investigation proceeding. Because
Section 3 or 4 of that law imposes the obligation not to impose on the bank employees or bank officers. The bank depositor
is not prevented from disclosing under this provision.

Although setting that aside, there is another ground that any person can invoke in order to prevent testifying or
to avoid making disclosure of the bank deposit which is the right against self-incrimination

RAPE SHIELD RULE

Provided for under RA 8505 assistance and protection for rape victims

Evidentiary clause called RAPE SHIELD RULE. Under this rule, in a prosecution for rape, evidence of the victims
other sexual conduct or opinion of the victims sexual conduct or the victims reputation is inadmissible in
evidence.
o
EXCEPT as to the extent that the court finds that the evidence is RELEVANT AND MATERIAL

SIR: To me, this provision serves only a decorative purpose since this has no practical effect. This is superfluous because
even without this provision, any evidence which is irrelevant and immaterial is really INADMISSIBLE. It is Consuelo de bobo
to the rape victim.

SEXUAL ABUSE SHIELD RULE

Applies only to CRIMINAL, (not civil), prosecution for alleged child sexual abuse. Under this rule, the following evidences are
considered INADMISSIBLE:
1.
2.

Evidence offered to prove that the victim engaged in other sexual behaviour
Evidence offered to prove the Victims sexual predisposition

EXCEPTION: evidence of a specific sexual instance insofar as the victim is concerned, may be admissible in evidence if
offered to prove that a person other than the accused is responsible or owner of the semen, responsible for the injury, or
other physical evidence. So if the purpose of the evidence is to prove that the accused is not the one responsible for the
alleged sexual abuse, evidence of the complainants or the victims sexual conduct or specific instances of sexual conduct is
admissible

JUDICIAL NOTICE/JUDICIAL ADMISSION/PRESUMPTIONS

In the beginning of the discussion, we emphasized that evidence is necessary if there are issues of facts, evidence is
necessary in order to establish probability or improbability of the fact in issue. BUT there are instances where evidence is no
longer necessary, evidence is dispensed with and yet a factual issue or a fact is deemed established.
There are INSTANCES where EVIDENCE IS NO LONGER NECESSARY but a fact is deemed established

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1.
2.
3.

EVIDENCE

A fact is taken JUDICIAL NOTICE

A fact is JUDICIAL ADMITTED by a party
A fact is PRESUMED BY LAW

JUDICIAL NOTICE:
There are matters which the court should know or ought to know by reason of their judicial functions. Matters that come with
the territory by virtue of the function of the court, these are matters that are ought to be known by the court or judge even if
in actuality, the judge may be completely ignorant.
2 FORMS OR MATTERS that may be given judicial notice:
1.

MANDATORY MATTERS
Several items there, if the fact falls under this enumeration, the Court has no choice but to take judicial
notice even without hearing

10 MATTERS:
i. Existence of states and the extent of their territories
ii. Political history and constitution of states and Symbols of nationality
iii. Admiralty and maritime courts of the world and their official seals
iv. Law of nations
v. Political constitution and history of the Philippines
vi. Official acts of the Legislative, Executive, and Judicial Departments of the Philippines
vii. Law of nature
viii. Measure of time
ix. Geographical division

The burden lies with the court to take judicial notice

How does the court or the judge suppose to supply himself of the matter specifically taken judicial notice when in
reality, the court or the judge is not aware of the matter?

Evidence is not required. If the court is confronted with a factual issue that is proper for judicial notice, the
court will have to resort to any possible source of INFORMATION. Not evidence but information. Research
material, literature on the subject. Judge will have to do his homework and make research. That is how the
court discharges the burden of applying the judicial notice rule

ATIENZA VS. BOARD OF MEDICINE: SC exactly applied judicial notice there. This involved an action for damages filed by a
patient and her husband after a major surgery gone awry. The patient was supposed to undergo a surgical operation of her
non-functional kidney but for one reason or another, it was the right functioning kidney which was removed. The surgeon
was sued for malpractice, medical negligence. To support the claim of negligence, the plaintiff presented photocopies of
certain documents consisting of request for x-ray which contains the marginal notes or interpretation of the radiologist. This
was offered in evidence. The problem there was that only photocopies were offered. Photocopies were objected to by the
respondent under the best evidence rule.
SC: Overruled the objection ruling that best evidence rule does not apply. The purpose of offering the document as evidence
is to establish the exact anatomical location of the kidneys before and during the surgery. The photocopies or even the
original of these documents are not even necessary to prove that fact because the anatomical location of the kidneys is a
matter that the court should take judicial notice. Laws of nature, science, biology, the composition of a living organism
including the human body, the court is supposed to know where to find them. No need for evidence, the kidney is supposed
to be there.

More recent case: DR. DILLANA VS. REBECCA BIONG: This involves a vehicular accident involving a doctor whose
vehicle was hit behind by another vehicle and as a result of which, the doctor claimed that she suffered a whiplash
injury. This is an injury that one suffers when she is hit from behind. So the moral lesson there is dont ever get hit from
behind.

Case of Dr. Lelia de Llano v. Rebecca Biong

o
SC admitted its being non-expert in the field of medicine. The justices refuse to take judicial notice that
whiplash injuries are caused by vehicular accidents. Dr. Llana failed to present the expert witness who prepared
the medical report instead, took matters in her own hands and testified but SC said while Dr. Llana himself

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maybe a surgeon and an expert but she was not presented as an expert but an ordinary witnessbeing an
ordinary witness she is not competent to dwell on the expert medical report prepared by another surgeon.
2.

DISCRETIONARY MATTERS
o

Three matters that the court may or may not take Judicial Notice:

Matters which are of public knowledge;

Matters which are capable of unquestionable demonstration; and

Matters which ought to be known to judges by reason of their judicial function.

What are example of these matters that the court may on its discretion take judicial notice-

Pp v. Cabigquez-- This involves prosecution for robbery and rape.

The accused robbed and raped the owner of the sari-sari store. He was charged with, being
prosecuted and convicted of rape and robbery after trial. Other than the criminal liability the
court also adjudged him civilly liable for the value of the items illegally taken. On appeal,
aside from questioning his criminal liability, the accused also question the award of P10,000
pesos representing the value of the items subject of the robbery. The items consisted of soap,
canned goods, sugar, coffee, milk and cigarettescommon items that can be found in a sarisari store. The accused argued that it was error for the trial court to award P10,000 pesos
because the private complainant failed to prove the actual value of the items takenactual
damages. But SC sustained the findings of the trial court, saying that the value of the
common goods which can be ordinarily found in the sari-sari store may be taken judicial
notice by the court for being matters of public knowledge and matters capable of
unquestionable demonstration. The common goods have commonly known prices; common
knowledge.

Matter of culture in the community is usually taken judicial notice by the court; human behavior
normally taken judicial notice by the courtfor example rape cases where the SC would not fail to
include in the decision that no woman, specially a provincial lass, would come forward to complain of
rape and subject herself to the wagging tongue of the public if her story breaks; or common reticence
of witnesses from coming forward immediately upon witnessing a violent crimecourt will normally
take judicial notice especially witnesses who would come months or years from the time of the
incident that they have claimed to have witnessed. The defense would usually discredit the testimony
of Johnny-came-late witnesses as planted witness. But the SC would always brush this aside and rule
that the court would take judicial notice of common reticence eye witnessesmatter of human
experience; matter of culture prevailing in the community.

Third, matters which the court may take Judicial Notice by reason of their judicial function:

Records of the caseof the same case. Jurisprudence has it that the court may not take judicial notice
of another case, even if that other case is filed in the same court and being heard by the same judge.
Not all of the court records may be taken judicial notice of, only the records of the same case. So
whatever judicial notice taken by the court on a particular record should be in so far as that particular
case is concerned. If the court takes judicial notice and on the basis of that judicial notice makes a
finding of factthat finding of fact must only pertain to that case where that record is part of, not the
records in another case.

Differentiated against Rule 132, section 34

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.
o

To reconcile; cases:

Natividad Candido v.CAthis involves a piece of land which was owned

by Candido but tenanted by the defendanttenancy relationship exists.
Alleging that the defendant terminated the tenancy relationship and at the
same time failed to pay the rentals in terms of numbers of sacks of palay,
the plaintiff-owner filed a case on court to collect the unpaid rentals. Upon
order of the court the matter was referred to the department of agrarian
reform to fix the value of the monthly rental and, it is alleged that during
the confrontation with the department of agrarian reform, the monthly
rental was fixed in such a number of palay. In the verified complaint, the
plaintiff also alleges the supposedly agreed monthly rental. And the

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affidavit attached to the complaint, she also alleged the supposedly agreed
monthly rentals. The problem however, was that the affidavit was not
formally offered during the trial. The court dismissed the complaint on the
ground that the plaintiff failed to offer sufficient evidence to prove the
actual or the value or the amount of the agreed rentalfailure to prove
cause of action. The plaintiff however orders the court to take judicial
notice of her affidavit and her verified complaint, because in her complaint,
she claims that she already fixed the amount of monthly rental; and
similarly she also alleged in her affidavit the actual amount of the agreed
monthly rental. But the SC rejected the argument saying--it is clear that
under the rules, the court may not take or may not consider evidence not
formally offered. So, for failure to formally offer the affidavit which specified
the amount of the monthly rental, the SC affirms the dismissal of the
complaint. The court refused to take judicial notice of the affidavit, even if,
the affidavit was physically attached to the records. So, physical submission
of the affidavit and the fact that it forms part of the record of the case is
not enough for the court to consider it as evidence.

In BPI v. CAThe SC looked at the problem in a different way. This involves

a claim for refund filed by BPI Savings Bank against the BIR. It appears that
for the taxable year 1989- BPI over-withheld its income covered with taxes.
In taxation, the taxpayer, who made overpayment of tax, could either ask
for a tax refund or claim it as tax credit in the succeeding taxable. Initially,
BPI chose to claim it as a tax credit to be applied to its liability in the
succeeding year 1990. However, it turned out that in 1990, BPI incurred a
net lossso, there was no tax to speak of. So, BPI demanded for tax refund
but BIR refused to act. BPI was compelled to go to the court of tax appeals,
where the trial was held. BPI presented evidence that it did not credit the
refundable amount to taxable year 1990 because it incurred net loss, no
tax liability. The case goes all the way up to SC; issuewhether or not BPI
was entitled to the refund of the overpaid corporate tax in 1989. SC ruled in
favor of BPI. The court said that there was enough evidence presented
during the trial below. The argument of BIR was that BPI failed to prove that
it did not credit the claimed refundable amount to its 1990 tax liability. SC
disagreed saying that BPI presented enough evidencepresented as
witness the officers and employees of the bank who testified that for 1990
a net loss was incurred and the overpaid amount in 1989 was not credited
to the 1990 taxable year. The SC also took note of the decision of the CTA
where the CTA made the definitive factual finding that in 1990 BPI incurred
a net loss. The fact that the BPI did incur a net loss in 1990 was a factual
issue in the case but SC said that CTA already made a finding that BPI
indeed incurred a net loss. BIR, on the other hand, urged the court not to
take judicial notice of the CTA decision. The SC rebuffed by holding that
there are matters that are ought to be known to judges by reason of the
judicial functionone of these is the records of the case. The copy of the
CTA decision was attached to the petition for review filed by the BPI with
the SC, it is part of the recordsSC took judicial notice of the document
even if it was not formally offered.

Rule 132, section 34 vs. Judicial Notice; application:

SIR: The requirement that evidence must be formally offered is more

applied and strictly demanded if the evidence is necessary to prove a
partys cause of action or defense.if the evidence is necessary to prove
issues raised in the main case. The rule that it must be offered is nonnegotiable.

But if the evidence, which forms part of the case, is used for certain
incidents other than the merits of the casethe rule on judicial notice may
be liberally applied. And therefore the court may take judicial notice even if
the evidence was not formally offered.

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Again, evidence in relation to the main case and evidence in relation to

matters incidents to the main case.

Case for collection of money is filed, 1M. Upon filling the

complaint, the court issues summons which was subsequently
served on the defendant. Under the ROC, upon service of
summons, the defendant is required to file his answer to the
complaint; failure to file the answer within the 15-day period
entitles the plaintiff to move to declare the defendant in default.
How to prove that the summons was in fact issued by the court
the summon itself. How to prove that the summons has been
served upon the defendantthe sheriffs return; sheriff will make a
report which will become part of the record of the case. Included
as part of the records of the case are the copy of the summons
and the copy of the sheriffs report. 15 days have lapsed,
defendant never bothered to file an answer and so now you may
file a motion to declare defendant in defaultthis is an incidence
to the main case. Even if the plaintiff-complainant does not
formally offer in evidence the copy of the summon and the copy of
the sheriffs return/report or the entire records showing that no
answer was filledthe court may rule or declare the defendant in
default because the court may take judicial notice of the records of
the case. This illustrates a situation where the rule that evidence
should be formally offered unless otherwise the court may not
consider it gives way to the rules on judicial notice. This has been
the practice, mere incidence not so strict on formal offer. Formal
offer as a matter of practice required only with adverse
consequences for non-compliance in relation to the main case. So
if the promissory note (the plaintiffs actionable document) that is
attached to the complaint is not formally offered by the plaintiff
after trial, the court may not take judicial notice of the promissory
note. The more appropriate rule to apply is Rule 132, section 34
the court may not take judicial notice because the law requires
formal offer of evidence. So, incidence like injunctions,
attachmentsrequirements of formal offer is not strictly imposed
or observed. Maybe one of the practical distinctions that we can
draw because there is really no clear cut distinction between
judicial notice and requirement of formal offer. Jurisprudence has
yet to mature on the matter. (Atty. Ts opinion)

QUESTION: Conversation between a lawyer and the clientwhen does privileged communication apply?
When the client committed a crimefor example she killed her boyfriend, who was just attempting to rape her, and
after killing her boyfriend, she consulted a lawyer and poured out all her frustrations and in the process confessed
to the lawyer that she really did it. The lawyer, under the privilege communication rule, may not be examined on
the confession made by the client.
While on the other handa frustrated client consults her lawyer that out of frustration she intends to kill her
boyfriend. Now, can the lawyer go to the police and report the conversation he had with his client (to prevent the
commission of the crime)?
In the former situation, privilege communication applies. But not in the latter situationthe rule is privilege
communication rule applies only in respect to PAST CRIMES because that is precisely the reason why the client
consults a lawyer; but if a client intends to commit a crime he/she is not supposed to consult a lawyer because it
should be a professional engagement. A professional engagement presupposes a legitimate purpose. Any
communication conveyed by the client to a lawyer respecting a present or future crime is not covered by privilege
communication and therefore the lawyer can always disclose without violating the privilege communication rule.

JUDICIAL ADMISSION

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The second instance where evidence may be dispensed with and yet a fact is deemed established or the truth of a
factual issue is deemed establishedwhen there is Judicial Admission. Definition (Rule 129, section 4)
Section 4. Judicial admissions. An admission, verbal or written, made by the party in the course of the
proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it
was made through palpable mistake or that no such admission was made. (2a)

Form: written or verbal;

It should be made by a party to the case;
It should be made in the proceedings of the same case.
o
Not just any court proceeding, but proceeding of the same case

How is Judicial Admission made? What are the possible instances where a Judicial Admission is made?
1.

2.

3.
4.

5.

Judicial Admission may be made in the pleadings filed with the court;

So any allegations there, made in the pleading filed by the partys lawyer are deemed judicial
admissions and are binding and conclusive upon the party.
Any oral manifestations made by the lawyer in the course of a court proceeding;

In the hearing, the lawyer makes some manifestationsthese are deemed judicial admissions and are
binding upon the client.
Any admissions made by the client/party himself in the course of the proceeding;

So, if the party/client testifiesany admissions made is a judicial admissions.

Admissions made in the course of the deposition proceeding; and

TN: deposition proceeding is deemed to be part of the court proceeding even if it is not done inside
the courtroom; even if it is not conducted by the judge but, it is still considered as part of the judicial
proceeding in the chief caseany admissions made is a judicial admission.
Any admission made in the answer filed in reply to a request for Judicial Admission-- Rule 26, ROC.

One of the modes of discovery, where one party may request admission from the other partyany
answer filed or made by the other party is deemed a judicial admission in so far as that case is
concerned.

*these are possible ways that a judicial admission is made.

What about if a party presents a witness during the trial and the witness makes admissions, are the admissions made be
considered as judicial admissions, binding and conclusive upon the party calling him as witness?
The rule is explicit that judicial admission is one made by a party, not a witness. Any admission made by a witness may not
be considered judicial admission in its strict sense.
But does it mean therefore, that the admission made by the witness, which is adverse to the interest of the party calling him
not binding on the party calling him as witness? What happens if you present your witness but, for one reason or another,
the witness turns his back on you and makes adverse admissionsadmissions which are contrary to your interest? Will that
not bind you? Can you turn around and tell the court to ignore what the witness has said?
No, it cannot be, under Rule 130, section 12you cannot impeach your own witness. When a party presents a
witness, he is deemed to have vouched for the integrity and honesty of the witness. So when a witness is presented, it
carries with it the undertaking that-- your honor this witness is credible and honest. The way to discredit a damaging
statement (taken against you as his proponent) made by a witness; remedy provided by the rulesis you can make the
court declare the witness a hostile witness. And the moment the witness is declared a hostile witness, you can discredit the
witness testimony. How to get the court to declare your witness a hostile? Satisfy to the court that the witness: has adverse
interest; or the witness is unwilling to cooperate; or the witness has misled you into calling him as your witness (this is the
more appropriate instance for the situation given earlier).
JUDICIAL ADMISSIONS are made; effects:
1.

When the judicial admission is madeevidence is dispensed with and therefore, formal offer is not required, the fact is
nonetheless established;
a. So when the plaintiff says that the defendant owed me 1M, the defendant in his answer says, yes I admit that I
owe plaintiff 1Mthere is no need for presentation of evidence to prove the existence of the 1M obligation. The
fact that defendant owed plaintiff 1M, is deemed established without need for evidence. But there are
exceptions (even if there is judicial admission, formal offer or presentation of evidence, is still required):

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EVIDENCE

In case of deposition-- a deposition taking is not conducted by the judge; conducted outside the
courtroom but part of the court proceedings. The deposition taking partakes of a nature of a court
proceedingthere is a presiding officer called as the deposition officer; the witness called the
deponent; and the lawyers of both parties participate in the proceeding. The deponent is directed into
direct examination and will also be subjected to a cross-examination by the adverse party. But the
significant difference between the deposition taking and the court proceedingthe deposition officer
has no authority to rule on the objections, especially substantial objections and evidentiary objections,
but only to note the objections and proceed with the deposition taking. Under Rule 23, section 6 and 8
it is specifically required that the records of the deposition taking must be formally offered as
evidence before it can be considered by the court. The purpose for this is to allow the parties to make
objections to the evidence presented during the deposition taking. As a matter of fact, the records of
the deposition taking are initially submitted to the court sealed and if the party decides to use the
records of the deposition taking, the parties are required to file a formal motion for the opening of the
records and if it wants to formally offer the records taken during the deposition taking. So, it is not
automatic that the court might consider. In the first place the party who caused the deposition-taking
is not required to offer the records taken during the deposition taking because the deposition taking
may result in some adverse facts so the party calling would naturally not introduce the records taken
during the deposition taking as his evidence in the case.

Rule 116, section 3when an accused pleads guilty to a capital offense, the court is required to
conduct an inquiry to determine the voluntariness of the guilty plea and full comprehension of the
consequences of the guilty plea; and shall require the prosecution to prove the guilt of the accused
and the accused may be allowed to present his evidence. So when the accused during the
arraignment, pleads guiltyis judicial admission made by a party in the course of the proceedings of
the same case. By definition, it is a judicial admission but, by express provision of the rulesthat
judicial admission is not enough to establish the guilt of the accused even if the accused already
declares that he is guilty, it is not sufficient to establish the fact of his guilt. The court shall still require
the prosecution to prove the guilt of the accused. It is not unlikely that a person who is charged with
crime who himself declares guilty may be acquitted for failure of the state to prove his guilt.

When the judicial admission isbinding and conclusive upon the party making the admission who cannot controvert it.
a. This is the ruling in cases Santos v. Lumbao and Sps. Binarao v. Plus Builders Inc.. Both of these cases
apply the principleJudicial Admission is binding and conclusive upon the admitter.

Santos v. Lumbaothis involves two parcels of land owned by its previous owner, who sold her
shares in the property at the time when the property was still at the state of co-ownership. Allegedly
she sold her share to the buyers but despite the sale, the buyers were not able to cause the transfer of
the title in their names because according to the seller, the co-owners have not yet partitioned the
property. So, the buyers were not able to secure the title in their names until the seller die and was
survived by the heirs. When the buyer demanded for the partition, the heirs now claim that the seller
did not sell/convey the property to the buyers. The buyers were constrained to file an action to compel
the heirs to deliver the title for purposes of protecting their interests. One of the pieces of evidence
presented by the plaintiff was the deed of sale, purportedly executed by the prior owner-seller in favor
of the plaintiffs. It appears that in these documents, some(2) of the heirs even signed as witnesses.
Upon being served with summons, the defendants including the two heirs-witnesses filed their answer
and in their answer they admitted they signed as witnesses. However, during trial, they denied having
signed as witnesses in the deed of salethey now disclaim and challenge the genuineness and the
due execution of the deed of conveyance. One of the critical issues raised in the casewhether or not
the admission made by the defendants in their answer is binding upon them. The SC said, citing the
principle of judicial admissionthey cannot anymore controvert it because their allegations in their
answer serves as judicial admissions, binding and conclusive upon them having made the admission.

Sps. Binarao v. Plus Builders Inc.-- . Plus Builders Inc. is engaged in realty business, developing
some subdivision projects. One of the customers were Sps. Binarao, they bought a unit in installment.
For failing to pay the purchase price in full, the developer was constrained to file a case against the
spouse to claim the unpaid balance of the purchase price. In their answer the spouses admitted that
they already paid the partial but they still have remaining balance. In other words, in their answer,
they admitted the existence of the unpaid balance. But during trial the spouses now claim that they
have no more pending obligation/liability to the plaintiff. The SC said that they already made a judicial

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admission when they admitted in their answer the existence of the unpaid balance and, under the
rules of judicial admissionthey cannot now be heard to say otherwise because the admission is
binding and conclusive.
3.

What are instances where a party, who made an admission, may controvert the judicial admission (despite its conclusive
nature)made:
a. The party who made the judicial admission may controvert the admission byproving that the admission was
made through palpable mistake.

It must be justified that there was a mistake and the mistake is palpablecase to case basis.
b. The party who supposedly made the judicial admission may prove that no such admission was made.

The phrase, no admission was made may include a scenario where an admission was in
fact made but the admission was taken out of contextmeans that, not in the sense that the
admission was made to appear

ATILLO vs. LHUILLIER

Facts
Atillo is the majority stockholder of AmanCorp (AC/corp). In pursuit of its
business, it obtained a corporate loan from Metrobank. Subsequently Atillo
entered into Memorandum agreement with Lhuillier whereby Lhullier purchased
shares of stocks from AC making Lhullier a stockholder. In need for cash, the
Corp made another Memorandum Agreement between Atillo and Lhuillier
whereby Lhuillier undertook to infuse fresh capital to the corporation and by
way of supplemental memo agreement, the parties agreed that Atillo may
dispose of his property. In the supplemental memo agreement, it was agreed
that Atillo may freely dispose the property, which he mortgaged in favor of
metrobank, but since this property is mortgaged, he cannot dispose without
settling the obligation of Amancor with Metrobank. So, in accordance with the
supplemental agreement, the parties further agree that Atillo should assume
the obligation of Amancor and pay metrobank and in turn Amancor will just
have to repay Atillo in the amount of 300K, which Atillo made as payment of
obligation to Amancor. As advancing payment or assuming obligation, Amancor
owes 300k to Atillo. Incidentally Atillo owed some amount to the corporation.
So, applying the principle of compensation, the 300k owed by corp to Atillo and
the amount less than 200k, which Atillo owed to the corp. However, the
corporation still owed Atillo a certain amount. When this obligation of Amancor
was not paid, Atillo went to court to file an action to collect against Amancor
and including Mr. Lhuillier. After trial, the court ruled in favor of Atillo holding
Amancor liable to pay the amount but exonerated Lhuillier from any liability.
Atillo appealed contending that Lhuillier should be held solidarily liable with
Amancor. Atillo made a citation in Lhuillers answer where Lhuillier made an
admission of facts to the effect. Lhuillier alleged in his answer that in all the
subject dealings, it was between Atillo and Lhuillier personal without the
participation to Amancor. In this 3.11 paragraph, Lhuiller admitted that in all
these subject dealings, it was a personal transaction between him and Atillo.
The corporation has nothing to do with the transaction, meaning from this
admission, Atillo concluded that Lhuillier himself admitted or assumed personal
obligation under these transactions. Therefore he should be held solidarily liable
with the Corporation.
ISSUE:
WON there was judicial admission made by Lhuillier that is binding and
conclusive upon him.
RULING:
Supreme Court said, there is no basis to say that Lhuillier made a judicial
admission that he assumed personal liability to pay the obligation under the
transaction. That it is true that paragraph 3.11 made an admission that all of
the dealings are between Lhuillier and Atillo without the participation of the
Corpo, this admission should be understood in relation to other positions with

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other paragraphs. By an examination done to the entire body of the answer of

Lhuillier, it can be clearly gleaned that that admission on personal liability refers
to the transaction between Atillo and Lhuillier involving the purchase of the
sales of stocks, IOW the 1st memo agreement.
But in so far as the 2nd memorandum of agreement and the supplemental
memorandum of agreement containing the assumption by Atillo of the
corporate liability of Amancor with Metrobank, this was specifically denied by
Lhuilier in his answer. In the other paragraphs, he expressly denied that he has
nothing to do with this obligation because it was the corporate loan of Amancor.
So the SC in the end said that the alleged admission made by Lhuillier was
taken out of context by Atillo because while there was such an admission, such
admission refers to another transaction and not the transaction sued upon by
Atillo where he sued or tried to collect the corporate obligation of Amancorp.
Lhuillier is exonerated from personal liability.
So were done with Atillo?
Thats one of the instances where a judicial admission may be controverted by proving that while an admission was made, it
was taken out of context. This is similar to a situation where no admission was made.
3. CONCLUSIVE NATURE. Whatever evidence that a party may submit contrary to or inconsistent with the judicial
admission, even if objected to or not by the adverse party, should not be considered by the court. That is consistent with the
conclusive nature of a judicial admission insofar as the admitter is concerned. So if you already made an admission during
the trial, the court is precluded from considering evidence contrary to such admission.
ELAYDA VS CA
Involves a petition for collection of sums of money. In her complaint, she alleges that the defendants owed her 90,000 and
despite demands, defendants failed to pay. During trial, while admitting that they were indeed indebted, they however
introduced evidence that they already paid. Such payment was in fact more than the alleged obligation sued upon by
Elayda. Upon realizing this defect, Elayda belatedly presented a document, which was a statement of her accountant, that
contrary to the allegations in her complaint the total was supposedly 186,000. Issue: WON the evidence belatedly presented
by Elayda to prove total obligation may be admitted. SC said, Elayda already made a judicial admission in her complaint and
that the admission there is only 90,000. Hence, it doesnt matter whether Elayda was actually able to prove the 186,000
debt during appeal because the rule is: any evidence that the admitter may submit to the court, contrary to or inconsistent
with the judicial admission should not be considered by the court even if such evidence is objected to or not by the adverse
party.
SIR: The problem with this doctrine however, is that it doesnt take into consideration Rule 10 Sec 5 on rule on amendment
to conform to evidence. Sec 5 of that rule says that when issues not raised in the pleadings are tried by the parties, the court
shall allow the amendment of the complaint to conform to the evidence presented. If no objection is raised, the court shall
allow an amendment. If there is an objection raised by adverse party, court may still allow an amendment provided it is
established that the other party would not be prejudiced and the substantial interest of justice would be served thereby. To
emphasize policy favouring amendment, the rule even says that failure to amend does not affect trial of the issue based on
the evidence presented. For all intents and purposes, amendment is deemed made.
Rule 10 therefore promotes the policy that evidence should prevail over mere allegations in the pleadings because it allows
presentation of evidence even if these will prove something not otherwise alleged in the pleading.
Hence, under Elayda ruling, it is the allegation that prevails over the evidence. But under Rule 10 sec 5, it is the evidence
which prevails over the allegation. So had the elayda case been decided under rule 10 sec 5, Elayda would have been
allowed to collect 186,000.
AZOLA FARMS CASE

The company embarked on a certain project and in order to finance the project, the corporation represented by
Yuseco, its president obtained a loan from Manila Savings Bank. The loan application was approved but instead of
releasing the proceeds of the loan at once, the bank released the proceeds in a staggered manner. Initial releases

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were delivered to the corporation but information reached the bank that Yuseco diverted proceeds to purposes
other than the project indicated in the loan. So bank withheld the subsequent proceeds and this resulted in the
collapse of the project. Blaming the collapse of the project to the bank, Azola farms and Yuseco filed a complaint for
damages against the bank. Obviously in the allegations of the complaint, both Yuseco and the bank did not question
the validity of the loan. Their only complaint was that due to bad faith of the bank in refusing to release subsequent
proceeds, the corporation suffered damages.
However during the trial, one witness of the bank testified and in the course of testimony, some facts were
disclosed and admitted which led Yuseco to believe that the transactions were null. So the company now, changed
their tack and started questioning the validity of the loan agreement, collateral agreements, etc which transactions
they never questioned at the time of the filing of the original complaint. So taking cue from the evidence during
trial, Azolla farms now moved for the amendment of the complaint and assails validity of transactions.

SC cited Rule 10 Sec 5 and ruled that such amendment should be allowed to conform to evidences presented.
Hence, as of now, we have Elayda doctrine on one hand and Azolla Farms on the other. Contradictory procedural
policies. In Elayda case, there seems to be an absolute tenor that the rule is directed to the courts to not consider any
contrary evidence.
EXCEPTIONS: Palpable mistake

For our purposes, adopt one which will serve the purposes of your client.

Example of palpable mistake: too broad, no specific sample found by SIR. If push comes to shove, blame the lawyer...
hahaha
*Rule of merisi: negligence of the lawyer is binding on the client

DISTINCTIONS BETWEEN JUDICIAL AND EXTRA-JUDICIAL ADMISSIONS

SECTION 4, RULE 129 JUDICIAL ADMISSION
SECTION 26, RULE 130 EXTRAJUDICIAL ADMISSION the act, declaration or omission of a party may be received in
evidence against him
1.

Judicial admission is always made in the course of the court proceedings and it must be in the same case.
Extrajudicial may take the form of an admission made outside of the court proceedings or if made in the course of
the court proceeding but in another case.

2.

Judicial admission, as a general rule, dispenses with the requirement of formal offer EXCEPT for two
instances, 1) DEPOSITION and 2) PLEA OF GUILTY TO A CAPITAL OFFENSE. Extrajudicial admission requires
presentation and formal offer, otherwise it may not be admitted by the court EXCEPT: there is a kind of admission
made in the course of a proceeding in a court which may not be used as an extrajudicial admission in relation to
another case:
Admission made pursuant to a request for admission under Section 3 Rule 26: Admission
made pursuant to this rule is ONLY admissible for purposes of the same case where the request for
admission is made. It is not admissible for any other purpose or for any other proceedings. ONLY kind
of judicial admission which cannot be made as an extrajudicial admission.

3.

Judicial admission as a general rule, cannot be controverted because it is conclusive. Extrajudicial is always
disputable and thus can be controverted.

PRESUMPTIONS
Presumptions are inferences drawn on established facts. This is the third instance where a fact is deemed established even
without introduction of evidence.

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BUT unlike judicial notice and judicial admission where evidence is totally dispensed with, in PRESUMPTION, evidence is not
totally dispensed with because evidence is still required. Evidence is only dispensed with in relation to the fact presumed
in law BUT evidence is required to prove the fact from which the presumption is based. Presumptions proceeds from an
established fact. That fact should be proved by evidence. The fact from which the presumption proceeds must be duly
established by evidence. You cannot invoke a presumption on the basis of another presumption

ANGELES VS. MALAYA: This is a dispute over the properties of the deceased. The wife and the alleged legitimate
daughter scrambled for the piece of the estate. The daughter who claims to be the only legitimate daughter asked
the court that she be appointed as the administrator of the estate of her deceased father. This was protested by the
wife.
Issue: WON the daughter who claims to be the legitimate daughter is really the legitimate daughter of the deceased
as to be entitled to the issuance of the letters of administration.
The daughter relied on the presumption that a child born during the existence of a valid marriage is presumed to be
legitimate. And taking cue from this presumption of law, she did not deem it necessary to prove that she is
legitimate. The problem however was that, she failed to prove the fact of marriage between her mother and the
deceased. She only made capital of the fact that her mother and the deceased during their lifetime were cohabiting
with each other and holding themselves to the public as husband and wife. We also have that presumption in law
that if a man and a woman report themselves as husband and wife, the presumption is that they are legally
married.
SC: It is not enough to invoke the presumption of legitimacy. That presumption can only arise if the fact of marriage
is duly established, which unfortunately here, was not complied with. Presumption must proceed from established
facts and not on the basis of another presumption.

2 KINDS OF PRESUMPTIONS IN LAW:

1.

CONCLUSIVE It is something that cannot be controverted. The rules do not allow contrary evidence to
controvert the fact presumed if the presumption is conclusive.

2 KINDS of Conclusive Presumptions:

i.

ESTOPPEL if a party by act, declaration or omission intentionally or deliberately misled another

to believe that a particular fact is true and to rely on such belief. That party cannot, in any
litigation that may arise from the act, omission or declaration be permitted to falsify.

ii.

IOW, If a party, says something, does something, intentionally making another to believe
that a certain fact is true and to make that other person to act on the basis of that belief,
that person may not later on be heard to disown or take a contrary position if a litigation
arises out of his act, declaration or omission
Example: Mr. Erojo and Ms. Tamayo had their good times together, and in the process, a
child was born. Ms. Tamayo now demands that Mr. Erojo support the child. Mr. Erojo, ever
arrogant and irresponsible, did not only refuse to give support but denies paternity of the
child. Ms. Tamayo was constrained to raise the child all by herself. It turned out that the
child was Manny Pacquiao, became a multi-billionaire and in one of his championship
fights, he got knocked-out and died leaving a massive fortune. Can Erojo now claim to be
an heir of Manny Pacquiao and share in the estate left by the deceased? That is exactly
the essence of estoppel.
It is based on fairness. It is an equitable principle.
Another example: When the city government serves a notice of tax assessment on you
because you are believed to be an owner of a certain piece of land. You sent a letter to
the city treasurer/assessor that you cannot collect real estate tax from me because I am
not the owner. But 10 years later, the government expropriated the property. The
property is now so valuable that the just compensation amounts to millions, you cannot
be heard to claim just compensation because you now claim to be the owner. Thats
conclusive presumption that you are not the owner because you misled another to
believe that you are not.

Conclusive presumption that a TENANT CANNOT DENY THE TITLE OF THE LANDLORD

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2.

EVIDENCE

You cannot enter into a contract of lease with someone and during the existence of the
lease contract, question the title of the landlord, refuse to pay your rental because the
landlord is not the owner. As a tenant, you are conclusively precluded from questioning
the title of your landlord.
COMMON PROBLEM: You may have a client who leased a property from someone and
during the existence of the lease contract, third party comes forward and tells your client
that you leased your property from an imposter. What do you do now? To whom shall I
give the rental now?
If you look at the rule on presumption which is conclusive, your client is not
supposed to defeat the right of the landlord from collecting the monthly rental
because insofar as the tenant is concerned, he is conclusively precluded, bound
by the lease contract. He cannot be heard to say that I will not pay the rental
because based on my information you are not the owner. BUT in practice, this is
not usually followed because if you have to be lawyering for the tenant, you are
inclined to be conservative about it. Usual and common advise will be to advise
your client to either file an interpleader or consign the rental payment to
the court. That is the normal and common practice.
SIR: but I have reservations as to the validity of this practice insofar as this evidentiary
rule is concerned because by consigning the monthly rental to the court or filing an
interpleader, the tenant is in effect questioning the title of the landlord. On the other
hand, as the lawyer of the tenant, you also want to avoid the situation where your client
will be made to pay twice. Whoever wins in the case gets to claim the rentals... rather
than continuing to pay rentals to your landlords... you stand the risk of being sued by the
real owner for back rentals. Payment to the wrong person is no payment at all. But this is
corrosive to the essence of the conclusive presumption between tenant and the landlord.
But what may be in law may not always be in practice.

DISPUTABLE PRESUMPTIONS the presumption is enough to support a finding of fact UNLESS overcome by a
contrary evidence.
COMMON AND INTERESTING ONES:
A.

AN UNLAWFUL ACT IS PRESUMED TO HAVE BEEN DONE WITH AN UNLAWFUL PURPOSE

If you claim that your act was prompted by the most innocent of reasons/intentions, then it is your
burden to prove that. Your failure to prove would mean that the presumption stands.
IF Mr. Erojo fondles the breast of Ms. Tamayo. The presumption there is that it was done with malicious
intent. It is his burden to show that it was done in jest, as a joke or maybe he just did it as a brotherly
touch.

B.

EVERY PERSON IS PRESUMED TO INTEND THE NATURAL CONSEQUENCE OF HIS VOLUNTARY ACT
IF Erojo shot a person using a gun, the presumption there is that he really intended to harm that
someone. If he claims that he was only joking or that he only intended to scare the victim, then it is
his burden to do that. If he cannot prove it sufficiently, then the presumption stands.

C.

EVERY PERSON IS PRESUMED TO TAKE CARE OF HIS ORDINARY CONCERNS

Every person is presumed to be careful, prudent, not tanga.
Situation: Clients signed some documents but which documents are adverse to them. Signed some
receipts but now claimed that no payment was made. Their ready answer will be they just signed
because they trust the other party or without reading it because they were in a hurry BUT these kind
of excuses will never stand in court because of this presumption.

JESUSA REYES VS. BPI: Jesusa Reyes was a depositor. One day, she went to her bank to avail of a
bank promo. She opened an ATM account. She claimed that on that day, she brought P100,000 cash
intended to be her initial deposit. But together with her cash, she also intended to withdraw from her
existing account, another P100,000 and deposit the P200,000 to her newly opened ATM account. Her
intention was to deposit P200,000. Pursuant to the bank practice, Reyes approached the teller and
informed the teller of her purpose. The teller took the liberty of preparing the withdrawal slips. In the
withdrawal slip that was prepared by the teller, the amount indicated was P200,000 and beside that
figure, Reyes signed as depositor. Days after, she discovered that the amount reflected in her ATM
account was only P100,000. She complained to the bank. The bank conducted their own internal

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investigation and claimed that only P100,000 was actually deposited on that day, the amount that was
withdrawn from her existing account.
Issue: WON Reyes deposited the amount of P200,000?
SC: When Reyes signed the withdrawal slip, it was impossible for her not to notice the figure
of P200,000. She signed it beside the figure. From this premise, if it were the intention of
Reyes to only withdraw P100,000 from her existing account because she claimed that she
had with her at the time, the other P100,000, then why is it that she did not call the attention
of the teller that P200,000 was not the amount she intended to withdraw? But Reyes excuse
was that she signed it without bothering to scrutinize the document. Everyone is presumed to
take care of her ordinary concerns. A person who transacts with a bank is expected to
scrutinize every detail on the document that she is signing. It is impossible for her not to
notice the P200,000, and if she indeed noticed the P200,000, the fact that she did not
complain reasonably establishes that the intention of Reyes was really to withdraw P200,000.
It just so happened that the existing account could not accommodate the P200,000 amount
reflected in the withdrawal slip. So, her failure to complain despite presumed knowledge that
she knew that the P200,000 figure on the withdrawal slip was taken against her.
D.

THINGS HAPPEN IN ACCORDANCE WITH THE ORDINARY COURSE OF THINGS OR ORDINARY HABITS
OF LIFE
ROMMEL ATIENZA VS. BOARD OF MEDICINE: Functioning kidney was the one removed instead of
the non-functioning. One of the issues there was the admissibility of the photocopies of the request for
x-ray which contained marginal notes on the interpretation of the x-ray results. The respondent
objected to the admission of the photocopies under the best evidence rule and claimed that the
admission of these photocopies violated the right to due process
SC: He could not claim violation of due process because even if this piece of evidence was to
be ignored/excluded, it is immaterial because the purpose for which these photocopies were
present is to establish the exact anatomical location of the kidneys before and during the
surgery. Everything is presumed to happen in accordance with ordinary course of things or
ordinary habits of life. Kidneys are found in the place that they are supposed to be.

E.

EVIDENCE WILLFULLY SUPPRESSED WILL BE ADVERSE IF PRESENTED

If you dispense presenting an evidence in your disposal and you offered no explanation on why you
are dispensing with this kind of evidence when the presentation of such evidence would have been
favourable to you, that carries with it the presumption that had that evidence been presented, it would
have been adverse to you.
Example: You claim to be injured. Normally, your best evidence to present the existence and extent
of the injury is the medical certificate. BUT without any explanation, you did not present the medical
certificate, that will be taken against you. The presumption would show that the medical certificate
would have shown that no injury or only a little injury was sustained.

NOT APPLICABLE IN CERTAIN CIRCUMSTANCES

1. If the non-presentation of the evidence is not willful, not maliciously resorted to.
Because the presumption arises when there is willful withholding of evidence

Willful no justification for the withholding

If the withholding is justified by certain rules or certain rights, it cannot be deemed

to be willful.

BLUECROSS CASE: The complaint of a patient for collection of insurance proceeds

from an insurance company. The insurance company denied payment claiming that
the illness was a pre-existing ailment which is an exception to the coverage. They
claim that they could not release because it is not covered. The insurance company
tried but failed to secure the medical record of the patient. They would have wanted
the medical record to prove that the ailment suffered by the patient was an
excepted risk. BUT the physician who attended to the patient, refused. Privileged
communication between physician and patient. The insurance company argued that
there was wilful suppression of the medical record. Had the medical record been
presented, the company would have been able to prove that the ailment was an
excepted risk and therefore not covered.
SC: The rule that evidence willfully suppressed will be adverse if presented
will NOT apply if the non-production is pursuant to an exercise of the
partys right. In this case, the patient simply exercised the right afforded
under the rules which is the confidentiality of any information in the course

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of the employment between her and her physician. It was justified under
existing law so that it cannot be considered as willful suppression. One who
exercised the right should not suffer the consequence of the exercise of the
right.
2.Evidence supposedly suppressed is equally available to the adverse party.

One party refuses to present it for one reason or another. The adverse party has
equal access to the same evidence. That other party cannot fault the adverse party
for not presenting the evidence and accuse him of willful suppression of evidence
when he himself is equally able to present but he did not present.

PEOPLE VS. PADIERNOS: Involving the killing of the wife of her husband (abusive
policeman). One of the pieces of evidence involved there, which was the subject of
contention in relation to the presumption of suppression, is the affidavit of the
witness which was not presented by the prosecution. The defense argued that the
affidavit of that witness would have been adverse to the prosecution had the
prosecution presented that affidavit
SC: If you believe that it is adverse to the prosecution, then you should
have presented it yourself. It is equally available to the defense, but the
defense did not bother to lift a finger to produce the evidence. No
presumption of willful suppression can be availed of.
F.

A PERSON CAUGHT IN POSSESSION OF A THING WHICH WAS RECENTLY TAKEN FROM THE DOING OF
A WRONGFUL ACT IS PRESUMED TO BE THE TAKER AND THE DOER OF THE WHOLE THING.
If one is in possession of a stolen property, a property which was stolen in the course of a robbery with
homicide, the presumption there is that the one in possession is the robber and at the same time the
killer, taker and the doer of the whole thing
This presumption often collides with another presumption which is the presumption of ownership

G.

THE PERSON IN POSSESSION OF PROPERTY IN THE CONCEPT OF OWNER AND IS PRESUMED TO BE

THE OWNER AND MAY NOT BE REQUIRED TO PROVE HIS TITLE
It is incumbent to the adverse party to prove otherwise. But in the meantime, he cannot be dispossessed from
his property. So a common problematic situation is where someone is confronted by police on the basis of the
allegation that the property in possession of that someone is a stolen property. A common scenario here is a
carnapped vehicle. You drive, you are too proud and happy after you pass the bar, your first achievement is to
buy a second hand car. While you are driving your car in Osmea blvd., some crazy policemen ask you to pull
over and confront you with an accusation that this car is a hot car. You are now confronted with the interplay of
two presumptions here. The presumption that you are the carnapper or you are the owner. Of course, you will
be willing to cast your blood defending your right to be presumed to be the owner but in the presence of
intimidating and coercive faces of policemen, who would refuse to turn over the vehicle to the policemen. This
would end up in a situation where the poor driver surrenders the possession of the vehicle.

This is another instance where what maybe is in the law may not be in practice. Because as between these two
presumptions, obviously the presumption should be ownership and this question has long been resolved by the court in the
CASE OF GOMEZ VS EDU. SC said a person in possession of property acquired in good faith is presumed to be the owner.
He cannot be disturbed in his possession and he cannot be compelled to produce or prove his title. Anybody who claims
otherwise should go to court and ask appropriate relief but in the meantime, the possessor must be respected of his
possession. When someone happens to buy a vehicle which happens to be a carnapped vehicle, she purchases in good faith
but the police seized it from her. But the reality is the reverse. What is bad about this is once you surrender the property to
the police, chances are you will never recover it, even if you get a court order. Because the remedy there is to file an action
for replevin. You can satisfy the judge and convince the court to issue replevin. But chances are that replevin will be an
empty victory for you because the vehicle cannot be found anymore. The police will say that they already returned it to the
owner. The owner somewhere, the record says, is in Basilan or Sulu. Your vehicle only costs you 200,000 would you risk your
life there?
I will also not encourage you to resist and disobey the police. Because what can you expect from the police. They are
expected to be police. They are just doing the police work. Their justification is the presumption that they have reason to
believe that this property is stolen. Because they have a complete record that it is a stolen property and you cannot charge
them with misfeasance or malfeasance on that basis because of this presumption. Otherwise, they will say how can we have
effective law enforcement if on the face of the situation wherein we are confronted with an evidence of a crime, we will just

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let it go? Do you expect us to go to court and look for you after 5 months or 3 months? The evidence of the crime is there
staring at us. Law enforcement. So this is the balancing between liberty and security. Crime prevention and prosecution.
There has always been a conflict like that.
Take note also that if the possessor of the stolen property cannot offer an explanation as to how he came into possession of
the item the presumption applies and enough to convict the possessor for robbery or theft. Presumption is sufficient to
support a finding of fact unless controverted. So we have the case of People vs Acejo and People vs Newman. Where
robbers were arrested and during the arrest stolen items are recovered in their possession. The ID, some personal effects,
the watch. The SC convicted them. Because of the presumption. They were not able to offer justifiable explanation as to how
they came into possession of the items. The case of Pil-ey. Involving the theft of carabao.
H.

THREE PRESUMPTIONS REGARDING DEATH:

1. Presumption of Death
Civil Code: Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be
presumed dead for all purposes, except for those of succession.
RULE 131: Sec.3 The absentee shall not be considered dead for the purpose of opening his succession till after an absence
of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that
his succession may be opened.
The following shall be considered dead for all purposes including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aircraft which is missing, who has not been
heard of for four years since the loss of the vessel or aircraft;
(2) A member of the armed forces who has taken part in armed hostilities, and has been missing for four
years;
(3) A person who has been in danger of death under other circumstances and whose existence has not
been known for four years;
(4) If a married person has been absent for four consecutive years, the spouse present may contract a
subsequent marriage if he or she has well-founded belief that the absent spouse is already dead. In case
of disappearance, where there is a danger of death the circumstances hereinabove provided, an absence
of only two years shall be sufficient for the purpose of contracting a subsequent marriage. However, in any
case, before marrying again, the spouse present must institute a summary proceedings as provided in the
Family Code and in the rules for declaration of presumptive death of the absentee, without prejudice to
the effect of reappearance of the absent spouse.
There are instances where the fact of death may not be sufficiently proved by evidence. But for some purposes, it is
necessary to establish the fact of death. The ideal scenario is to present the dead body. But there are situations where it
cannot be found. It will be difficult to establish the fact of death without the body. It is because of this difficulty that the law
presumed fact of death under certain conditions. This presumption arises from the mere absence of the person and there is
no certainty that the absentee is still alive. Rights could be prejudiced without proof that someone who disappeared is
already dead. Everything will be in suspended animation. The heirs will be waiting. Without the presumption of death,
without the body of the decedent, you will be prejudiced waiting until kingdom come. You cannot open succession, cannot
claim the estate that you are supposed to inherit without the body. So because of this, the law makes it prudent to provide
for some presumptions of death.
Ordinarily, under normal situations, instances where the disappearance is not characterized/with danger of death. Absence
of 7 years or more or after seven years. How do you interpret that? Seven years and 1 day. But this is for purposes other
than succession because for purposes of succession, the law requires 10 years of disappearance. But if the absentee
disappeared when he was 75 years old, the waiting period is shorter, its 5 years.
The rule is different if the absentee disappeared under circumstances involving danger of death. The requirement is only 4
years. Shorter waiting period because of the likelihood that the disappearing person really perished in that incident or
calamity.

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Except for purposes of remarriage. The need for remarriage is more urgent and compelling than the need for fortune or
property. The need for the flesh is more compelling than your hunger for food (LOL). The law even recognizes that. You only
have to wait for 2 years. It is based on reality.
Take note that the presumption apply only when there is really no evidence sufficient to prove that the absentee really died.
So that if there is a preponderance of evidence of the fact that the absentee really died, you dont have to wait any longer .
EASTERN SHIPPING LINES VS LUCERO AND VICTORIA SHIPPING VS WCC. Lucero, Captain of the vessel but because
of typhoon ruby, it capsized and all the crew including lucero perished. He is supposed to return to the Philippines from HK.
Of course the ship owner/employer already declared lucero and all the crew dead. In fact they already collected claims for
insurance. But the wife of lucero made it difficult for the employer. She insisted to be entitled to collect monthly allotment
representing the salary of her husband because as of now, her husband is still alive because of the presumption of death,
the waiting period has not yet arrived. SC is not kind to her. Under the circumstances, there is a preponderance of evidence
that her husband died, perished when the boat capsized. You dont apply the presumption in the presence of evidence of the
fact of death. Circumstance is such that can be reasonably inferred that Lucero really died.
Same principle was applied in VICTORIA SHIPPING, when a crew member was asleep, suddenly jumped off overboard
when he was suddenly awoken by the fire that engulf the vessel. He was seen jumping off but never seen again. The only
heir, the father, filed a claim for death benefit. But the employer refused to pay contending that as of now we still have to
wait for years because he is not yet presumed dead. The presumption requires a waiting period. SC disagreed and held that
under the circumstances there is a preponderance of evidence that the crew really died. These 2 cases illustrate that when
there is preponderance of evidence of the fact of death, the presumption does not apply. These are two incompatible legal
provisions.
2. Presumption of Survivorship
RULE 131: (jj) That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle,
or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred,
the survivorship is determined from the probabilities resulting from the strength and the age of the sexes, according to the
following rules:
1. If both were under the age of fifteen years, the older is deemed to have survived;
2. If both were above the age sixty, the younger is deemed to have survived;
3. If one is under fifteen and the other above sixty, the former is deemed to have survived;
4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived, if
the sex be the same, the older;
5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have
survived.
There are instances wherein it is necessary to determine who between 2 people died first or died later. Both of them died,
only that one died first and other later. If 2 people perish in the same calamity, and there are no circumstances from which it
can be inferred as to who died first. Survivorship can be determined on the basis of probability arising from strength and
age.
a. if both are below 15, the older is deemed to have survived. Meaning the older died later.
b. if both are above 60, the younger is deemed to have survived. Meaning older died ahead
c. if one is below 15 and the other is above 60, the younger is deemed to have survived. The older died ahead
d. if one is either below 15 or above 60 but the other is between the age of 15-60 (16 to 59), those in between survived
e. if both are between the ages of between the ages of 15-60, and of different sex ( this law should be amended, sir believed
that women are stronger than men ), male is presumed to have survived. If of the same sex, the older is deemed to have
survived.

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Take note that this rule on survivorship applies to all cases other than succession. So if the issue is on succession, do not
apply this. The applicable rule is the presumption of simultaneity of death.

3. Presumption of Simultaneity of death

RULE 131: (kk) That if there is a doubt, as between two or more persons who are called to succeed each other, as to which of
them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, they shall
be considered to have died at the same time. (5a)
If two or more persons called to succession died, he who alleges the death of one prior to the other must prove. In the
absence of evidence, they are presumed to have died at the same time. Therefore, no transmission of rights took place.
Inheritance only takes place if the one is alive and the other died. If they die together, both are relinquishing and no one is
receiving. Therefore, no recipient of a right.
So these are the most common. There are many. Its just a matter of reading. Just familiarize yourselves.
Section 3. Disputable presumptions. The following
presumptions are satisfactory if uncontradicted, but
may be contradicted and overcome by other evidence:
(a) That a person is innocent of crime or wrong;
(b) That an unlawful act was done with an unlawful
intent;
(c) That a person intends the ordinary consequences of
his voluntary act;
(d) That a person takes ordinary care of his concerns;
(e) That evidence willfully suppressed would be
adverse if produced;
(f) That money paid by one to another was due to the
latter;
(g) That a thing delivered by one to another belonged
to the latter;
(h) That an obligation delivered up to the debtor has
been paid;
(i) That prior rents or installments had been paid when
a receipt for the later one is produced;
(j) That a person found in possession of a thing taken in
the doing of a recent wrongful act is the taker and the
doer of the whole act; otherwise, that things which a
person possess, or exercises acts of ownership over,
are owned by him;
(k) That a person in possession of an order on himself
for the payment of the money, or the delivery of
anything, has paid the money or delivered the thing
accordingly;
(l) That a person acting in a public office was regularly
appointed or elected to it;
(m) That official duty has been regularly performed;
(n) That a court, or judge acting as such, whether in
the Philippines or elsewhere, was acting in the lawful
exercise of jurisdiction;
(o) That all the matters within an issue raised in a case
were laid before the court and passed upon by it; and
in like manner that all matters within an issue raised in
a dispute submitted for arbitration were laid before the
arbitrators and passed upon by them;

(x) That acquiescence resulted from a belief that the

thing acquiesced in was conformable to the law or fact;
(y) That things have happened according to the
ordinary course of nature and ordinary nature habits of
life;
(z) That persons acting as copartners have entered into
a contract of copartneship;
(aa) That a man and woman deporting themselves as
husband and wife have entered into a lawful contract of
marriage;
(bb) That property acquired by a man and a woman
who are capacitated to marry each other and who live
exclusively with each other as husband and wife
without the benefit of marriage or under void marriage,
has been obtained by their joint efforts, work or
industry.
(cc) That in cases of cohabitation by a man and a
woman who are not capacitated to marry each other
and who have acquire properly through their actual
joint contribution of money, property or industry, such
contributions and their corresponding shares including
joint deposits of money and evidences of credit are
equal.
(dd) That if the marriage is terminated and the mother
contracted another marriage within three hundred days
after such termination of the former marriage, these
rules shall govern in the absence of proof to the
contrary:
(1) A child born before one hundred eighty days after
the solemnization of the subsequent marriage is
considered to have been conceived during such
marriage, even though it be born within the three
hundred days after the termination of the former
marriage.
(2) A child born after one hundred eighty days following
the celebration of the subsequent marriage is
considered to have been conceived during such
marriage, even though it be born within the three
hundred days after the termination of the former

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(p) That private transactions have been fair and

regular;
(q) That the ordinary course of business has been
followed;
(r) That there was a sufficient consideration for a
contract;
(s) That a negotiable instrument was given or indorsed
for a sufficient consideration;
(t) That an endorsement of negotiable instrument was
made before the instrument was overdue and at the
place where the instrument is dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was received
in the regular course of the mail;
(w) That after an absence of seven years, it being
unknown whether or not the absentee still lives, he is
considered dead for all purposes, except for those of
succession.
The absentee shall not be considered dead for the
purpose of opening his succession till after an absence
of ten years. If he disappeared after the age of
seventy-five years, an absence of five years shall be
sufficient in order that his succession may be opened.
The following shall be considered dead for all purposes
including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea
voyage, or an aircraft with is missing, who has not
been heard of for four years since the loss of the vessel
or aircraft;
(2) A member of the armed forces who has taken part
in armed hostilities, and has been missing for four
years;
(3) A person who has been in danger of death under
other circumstances and whose existence has not been
known for four years;
(4) If a married person has been absent for four
consecutive years, the spouse present may contract a
subsequent marriage if he or she has well-founded
belief that the absent spouse is already death. In case
of disappearance, where there is a danger of death the
circumstances hereinabove provided, an absence of
only two years shall be sufficient for the purpose of
contracting a subsequent marriage. However, in any
case, before marrying again, the spouse present must
institute a summary proceedings as provided in the
Family Code and in the rules for declaration of
presumptive death of the absentee, without prejudice
to the effect of reappearance of the absent spouse.

EVIDENCE

marriage.
(ee) That a thing once proved to exist continues as long
as is usual with things of the nature;
(ff) That the law has been obeyed;
(gg) That a printed or published book, purporting to be
printed or published by public authority, was so printed
or published;
(hh) That a printed or published book, purporting
contain reports of cases adjudged in tribunals of the
country where the book is published, contains correct
reports of such cases;
(ii) That a trustee or other person whose duty it was to
convey real property to a particular person has actually
conveyed it to him when such presumption is necessary
to perfect the title of such person or his successor in
interest;
(jj) That except for purposes of succession, when two
persons perish in the same calamity, such as wreck,
battle, or conflagration, and it is not shown who died
first, and there are no particular circumstances from
which it can be inferred, the survivorship is determined
from the probabilities resulting from the strength and
the age of the sexes, according to the following rules:
1. If both were under the age of fifteen years, the older
is deemed to have survived;
2. If both were above the age sixty, the younger is
deemed to have survived;
3. If one is under fifteen and the other above sixty, the
former is deemed to have survived;
4. If both be over fifteen and under sixty, and the sex
be different, the male is deemed to have survived, if
the sex be the same, the older;
5. If one be under fifteen or over sixty, and the other
between those ages, the latter is deemed to have
survived.
(kk) That if there is a doubt, as between two or more
persons who are called to succeed each other, as to
which of them died first, whoever alleges the death of
one prior to the other, shall prove the same; in the
absence of proof, they shall be considered to have died
at the same time. (5a)
Section 4. No presumption of legitimacy or
illegitimacy. There is no presumption of legitimacy of
a child born after three hundred 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.

*Logo credits to Bahrain Chamber of Dispute Resolution + L .... hihihi

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