REVISED RULES OF EVIDENCE

Rule 128

GENERAL PROVISIONS

SECTION 1. Evidence, defined. Evidence is the means,

sanctioned by these rules, of ascertaining in a judicial proceeding the
truth respecting a matter of fact.

Q: What is meant by the phrase sanctioned by the rules?

A: Sanctioned by the 1989 Rules on Evidence. These are the rules of
ascertaining, finding out, determining, IN A JUDICIAL PROCEEDING in
a proceeding in a regular court.

Q: Can we use the 89 Rules on Evidence in a labor case before the Labor
Arbiter and the NLRC, or in a case before the SEC?
A: The Rules on Evidence apply STRICTLY ONLY TO PROCEEDINGS IN
COURT the MTC, RTC, CA and Supreme Court. The NLRC and the
SEC are NOT judicial bodies. The proceedings there are
ADMINISTRATIVE because they are QUASI-JUDICIAL. That is why the
manner of proving things sometimes is not in accordance with the strict
rules on evidence.

In the study of Labor Relations, you will encounter a provision in the

Labor Code which states: The Rules on Evidence which shall apply to
courts of justice will not apply to a labor case, EXCEPT IN A
SUPPLETORY MANNER. In other words, the Labor Arbiter applies the
Rules on Evidence, but only in a supplemental way.

Q: What is the function of Evidence?

A: To ascertain the truth respecting a matter of fact, a factual issue,
because in a case, the problem always of the court is: Who is telling the
truth?

For example: The plaintiff in a civil case says the defendant

borrowed money from him and did not pay. The defendant says this is not
true and that the account has already been paid. One cannot determine
the truth just by reading the complaint and the answer. One must be lying,
and the other must be telling the truth.

That is the function of evidence. You prove in court that the allegation
is false. This is the power of persuasion. The same also goes when you
prove self-defense... That is why it is said that evidence is the manner of
proving the truth on a question of fact.
Issues could either be of fact or of law. If the issue concerns only a
question of law, there is no more need for evidence. There is no need for
trial. YOU DO NOT HAVE TO PROVE ANYTHING WHEN THE ISSUE IS
PURELY LEGAL. Do you remember the order of trial in a civil case?
Plaintiff first presents evidence to prove his side. Defendant presents
evidence to prove his defense. And then, rebuttal. And then, argument.
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But how about a judgment based on an agreed statement of facts? When
the parties agree on the facts but they cannot agree on who should win, the
case then presents a pure question of law. There is no more trial.
Evidence has no function because anyway, the parties have agreed upon
all the facts. THE FUNCTION OF EVIDENCE IS TO DETERMINE THE
TRUTH BASED ON DISPUTED FACTS.

CLASSIFICATIONS OF EVIDENCE

I. (A) Material Evidence Evidence which tends to prove the fact in

issue in a case. The issue is determined by the rules of substantive law
and pleadings. The opposite of Material Evidence is IMMATERIAL
EVIDENCE.

For example: In a collection case, plaintiff alleges that the defendant

borrowed money from him and failed to pay. Defendant alleges the
defense of payment. What is now the issued based on the law of pleadings
and substantive law? The issue is: whether or not the obligation has
already been extinguished by payment. Does the receipt tend to prove the
defense of the defendant? Yes, that is the best evidence. Therefore, the
receipt is a very material piece of evidence to prove the defense of the
defendant. It proves his defense; it is a direct proof. However, in the
course of the trial where the issue is whether or not the obligation has been
paid, the defendant produced in court his birth certificate to prove that he
was born on this date at this place. Is there a relation between the birth
certificate and the issue in this case? There is no relation practically
immaterial. Therefore, if you present your birth certificate, the other party
will object and the court will not allow the evidence to be admitted. The
birth certificate is thus an immaterial piece of evidence.

(B) Relevant Evidence Evidence which has a tendency in reason to

establish the probability or improbability of the fact in issue.

Sometimes, relevant and material evidence are interchanged. There

is a difference between the two. Evidence might be immaterial, but it can
still be admitted on the ground of relevancy. It does not tend to prove the
probability of the fact in issue, but it proves it indirectly. I am not proving it
directly, but I am trying to prove that it is PROBABLE.

An example of evidence which is NOT MATERIAL BUT IS

RELEVANT: Mr. A was shot to death and based on the investigation of the
police, the victim was shot with a rifle from a distance of 200 yards, and the
victim was hit in between the eyes. Mr. B is the suspect. The prosecution
was trying to prove that B is the guilty party. The prosecution presented
evidence that during the last Olympics, Mr. A was the gold medalist in the
sharpshooting event. Is the evidence material? Does it tend to prove the
issue did the accused, Mr. B, killed the victim? The issue is not whether
or not A is a gold medalist, but is considering the fact that the killer is a

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sharpshooter, does the evidence tend to prove that there is a strong
probability that B could be the killer? Yes. Therefore, the court will rule the
admissibility of the evidence on the ground of relevancy, although not on
the ground of materiality.

But suppose, the prosecution will present evidence that for the past
three Olympic games, A has been the gold medalist in archery. Is the
evidence admissible? On the aspect of materiality, there is none. The
evidence is useless. It does not prove the fact in issue directly or indirectly.

II. Competent Evidence Evidence which is not excluded by any law or

the Rules on Evidence. When the law says that the evidence is not
allowed, then it is totally inadmissible total inadmissibility.

Q: What does the Constitution say about a confession made by a suspect

who is under investigation by the police and who confessed that he was
really the one who committed the crime; but the problem is that before he
made the confession, he was not given any warning? He was never
warned of his right to remain silent, that he was entitled to a lawyer, etc. --
The Miranda Warnings.

Based on the Bill of Rights, if a confession is made by a suspect

voluntarily but he was not warned of his right to remain silent, and now his
confession is offered in court to prove his guilt; but it was established that it
was an uncounseled confession, what are his constitutional rights?

A: The Constitution declares that the confession cannot be admitted to

prove his guilt. Is the confession material? Yes, the confession is material.
It is also relevant, but incompetent. The law means, any law -- either the
Constitution or even the Rules of Evidence -- which is why we have Rule
130 (Rules on Admissibility). If there is no law which says that it is
excluded, it is competent evidence.

III. (A) Direct Evidence Evidence which proves the fact in dispute
without the aid of any inference or presumption.

(B) Circumstantial Evidence It is the proof of fact or facts which, taken

either singly or collectively, the existence of the particular fact in dispute
may be inferred as a necessary or probable consequence. It is an indirect
manner of proving. You have to resort to an inference or presumption.
In direct evidence, there is no need for an inference because the
statement is DIRECT. For example:
COURT:
Do you know who killed the victim?
WITNESS:
Yes.
COURT:
Who killed him?

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 WITNESS:
The accused.
COURT:
Why do you know that the accused killed the victim?
WITNESS:
I was there.
That is direct.

In circumstantial evidence, there is no one saying that he killed the

victim, but there is a circumstance which points to the probability that he
is the killer. A good example is also the example given in Relevant
Evidence the sharpshooter. The evidence does not point to him as the
killer, but it causes the inference that he might be the one. The evidence
is relevant and, at the same time, circumstantial.

That is why it is said: Where there is smoke, there is fire. The

smoke is the circumstantial evidence that there is a fire below. When you
see a person walking staggeringly and holding a bottle of Tanduay, what is
the inference? He is drunk. But did you see him drinking? No, but you
can infer it through his behavior and actions.

IV. (A) Primary Evidence or Best Evidence It is evidence which the

law regards as effecting the greatest certainty of the fact in question.

(B) Secondary Evidence It is inferior or substitutionary evidence. That

which itself indicates the existence of a more original source of information.

The distinction is quite obvious. Best evidence or primary evidence is

the best evidence you can present to prove what you are trying to prove.
Secondary evidence -- inferior evidence. Under the law on the rules on
admissibility, secondary evidence is allowed only when the best is not
presented. Rule 130, Sec. 3: Original document must be produced;
exceptions when the subject of inquiry is the contents of a document, no
evidence shall be admissible other than the original document itself, except
xxx
V. (A) Positive Evidence Evidence is positive when the witness
affirms that a fact did or did not occur.

(B) Negative Evidence Evidence is negative when the witness states

that he did not see or know the occurrence of a fact.

Consider this conversation:

COURT:
Was Mr. L. present in class last night?
WITNESS:
Yes, he was present.

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Is that a negative or a positive testimony? Positive. Suppose the witness
says, No, Mr. L was not present. Still positive. WHEN HE AFFIRMS
THAT A FACT HAPPENED OR DID NOT HAPPEN, THAT IS POSITIVE.

But suppose, the conversation goes like this:

COURT:
Was Mr. L present in class last night?
WITNESS:
I did not notice Mr. Ls presence last night.
Is that a positive or a negative testimony? That is negative testimony.
Actually, you analyze: is the witness saying that Mr. L was present or
absent? Neither. What the witness was saying is not a statement meaning
that Mr. was not around.

As you shall see in the rule on weight, in a collision between negative

or positive testimony, the positive testimony prevails.

VI. Expert Evidence Evidence given by one possessing in regard to a

particular subject or department of human activity, knowledge not usually
acquired by other persons. Meaning, the expert witness knows something
of a particular field and yet you cannot say that everybody knows it.

For example: the ballistic expert will testify about the trajectory of the
bullet, from what angle the victim was shot. A handwriting expert will testify
that the questioned document is a forgery. A fingerprint expert will testify
that the specimen lifted is the fingerprint of somebody. A brain surgeon,
physicist, etc... The provision there is Sec. 49 of Rule 130: The opinion of
a witness on a matter requiring special knowledge, skill, experience or
training which he is shown to possess, may be received in evidence.

VII. (A) Cumulative Evidence Evidence is cumulative when it is OF

THE SAME KIND AND CHARACTER as that already given and TENDS
TO PROVE THE SAME PROPOSITION.

(B) Corroborrative Evidence It is ADDITIONAL EVIDENCE OF A

DIFFERENT KIND AND CHARACTER TENDING TO PROVE THE SAME
POINT.

Q: What is the similarity between cumulative and corroborrative?

A: The similarity is: Both are supporting evidence. The difference is, in
Cumulative, the supporting evidence is of the same nature and character
as that already given earlier. If the supporting evidence belongs to a
different specie as that already given, it is supporting corroborrative.

For example: A, B and C witnessed an incident. A testifies that he

was there in this place; that he was with B and C, and that this is what he
saw... Next witness is B. B testifies that he was on the same place, on the
same date, and that he was with A and C, and that this was what

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happened... It is practically a DUPLICATION of what A said. B is trying to
support what A, the first witness, said. And then C does the same. The
testimonies of B and C are CUMULATIVE TESTIMONY. They are of the
same type as that given earlier.

Example of Corroborrative: A witness testifies that these are the

improvements on his property. There are these many coconut trees, 20
years old; these many mango trees. A claims that he planted them. Then,
he presents a tax declaration where, based on the assessors findings,
these are the improvements, etc. -- practically the same testimony. The
document of the government represented by the assessors findings
supports the testimony of the owner of the land. The tax declaration or
assessors findings is corroborrative.

VIII. (A) Prima Facie Evidence Evidence which suffices for the proof
of a fact in issue until rebutted or overcome by other evidence. Standing
alone, it is sufficient to prove your claim.

Example: Evidence of the plaintiff in a default hearing. The

defendant is declared in default. Plaintiff then presents evidence ex parte.
This is the end. The plaintiffs statements are not refuted by anybody. So,
they are prima facie. You can prove your cause of action because nobody
is disputing what you are saying.

In a criminal case, generally, when the Fiscal says that the

Prosecution rests, he has already proven the guilt of the accused, prima
facie. Meaning that if the trial is finished, the defendant losses. But
normally, after the prosecution, its the defense turn to rebut the evidence of
the prosecution.

(B) Rebutting Evidence Evidence given to repel, counteract or

disprove facts proved by the other side. Normally, when the defendant
presents evidence, he is, in effect, rebutting the prima facie evidence of the
plaintiff. After that, the plaintiff is also given the chance to present rebuttal
evidence to disprove the defense.

(C) Conclusive Evidence Evidence which is UNCONTROVERTED. It

admits of no proof to the contrary.

IX. Object Evidence It is defined as evidence addressed to the senses

of the court something that you can see, touch or hear.

Under the 1964 Rules of Court, this is known as Real Evidence. The
1989 Rules on Evidence changed the name to Object Evidence. The latter
is the new name. Other names given to Object or Real Evidence are
Demonstrative Evidence and Autopic Proference. These are actually just
the same.

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 For example, during trial in a case of murder, the prosecution offered
as evidence the murder weapon, a knife, bolo or gun. This was supposed
to be the weapon used to kill the victim -- the first exhibit. This is what is
called as Object Evidence. Something is being offered in court that can be
seen, touched or heard in order to serve as evidence to support a version
of the story of a party.

X. Testimonial Evidence Evidence furnished by the testimony of man

which may be ORAL or WRITTEN.

If the testimony is oral, the technical term used under the Rules on
Evidence is PAROL EVIDENCE. If it is written, it is DOCUMENTARY
EVIDENCE. Loosely speaking, though, when the term testimonial is
used, the automatic reference is parol that somebody is giving an oral
testimony. But actually, a person may voice out his ideas either orally or in
written form. Both are still considered testimonies.

Q: Distinguish evidence from proof. (bar question)

A: Evidence is the means of proving; proof is the effect of evidence. Proof
is the establishment of a fact by evidence.

You present evidence in court to prove something. Once your

evidence is satisfactory, the court says: You have proven your case. You
have thus achieved your objective. The manner of achieving your objective
is through evidence. Does it mean that everytime there is evidence, you
are able to prove your case? Of course, your evidence must be admitted in
court. But if you present your evidence but lacking, the court will say: You
have not proven anything. But you argue that you presented evidence.
Yes, you did. But the trouble is that your evidence was not admitted. Even
if there is evidence, you cannot achieve your final objective which is to
prove the fact if your evidence is not admitted. So, do not confuse
evidence with proof.

Q: Distinguish factum probandum from factum probans. (bar

question)
The above terms are already encountered in Civil Procedure. Under
the principle of pleadings, a pleading must recite only the ULTIMATE
FACTS. EVIDENTIARY FACTS should not be recited in the pleading. You
prove the latter during trial.

For example: You want to prove that you are the owner of a parcel of
land. You state in your allegation, Plaintiff is the owner of this land. That
is the ultimate fact to prove. In the course of the trial, you go into the
details. You prove your occupation and your objections to the other partys
contentions. In your pleadings, you do not need to recite what your
improvements you have introduced in the property. Those are what you
call evidentiary facts, which are brought out during the trial but should not
be stated in the pleadings.

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A: Under the law, translated now into the law on evidence, the ultimate fact
is the factum probandum. The evidentiary facts which should not be found
in the pleadings but brought out during the trial is the factum probans.
Factum probandum is the fact to be established; factum probans is the
evidentiary fact or the fact by which the factum probandum is to be
established. One (factum probandum) is the ultimate fact, the fact to be
proved or established; the other (factum probans) is the evidentiary fact or
the fact by which the ultimate fact is to be established.
So, if you apply these terms in the law on pleadings, the pleading
must recite the factum probandum only and not the factum probans,
because the factum probans should be brought out only in the trial to
prove the factum probandum. So now, we are clarifying the terms and
correlating them with the principles we learned in other Remedial Law
subjects.

SECTION 2. Scope. The rules of evidence shall be the same in

all courts and in all trials and hearings, except as otherwise provided
by law or these rules.

The 1989 Rules on Evidence is the common denominator for criminal

and civil cases. Usually, before you take up evidence, you have to first
take up Criminal and Civil Procedure. But whether it is Criminal or Civil
Procedure, the rules on evidence are the same, in all courts in all types of
hearings, except when the law provides otherwise. When the law provides
otherwise, we shall not follow the rules on evidence.

An example where the court does not follow the rules on evidence but
instead follows another rule other than the rules on evidence is Section 24
of BP 129 (the Judiciary Law): Whenever a Regional Trial Court takes
cognizance of juvenile and domestic relations cases and/or agrarian cases,
the special rules of procedure applicable under present laws to such cases
shall continue to be applied, unless subsequently amended by law or by
the rules of court promulgated by the Supreme Court.

With respect to juvenile and domestic relations cases, there is no

problem because they are totally governed by the rules on evidence. But
before BP 129, we still had the Court of Agrarian Relations (CAR). The
rules or procedure in agrarian cases was not the Rules of Court but Act 83,
as amended by PD 946. Under BP 129, since the RTC took the place of
the CAR, agrarian cases were now to be heard by the RTC. The RTC then
had to follow the procedure in PD 946 rather than the regular Rules of
Court. Now with the passage of the CARP Law, jurisdiction over agrarian
cases was transferred from the RTC to the Department of Agrarian Reform.

SECTION 3. Admissibility of Evidence. Evidence is admissible

when it is relevant to the issue and is not excluded by the law or
these rules.

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 This Section practically summarizes almost 50% of the entire subject
of Evidence. How do we outline the study of Evidence in general? The
study consists of two parts:
(1) The admissibility of the evidence; and,
(2) The weight of the evidence.
Rule 130 talks only of admissibility of evidence, while Rule 133 talks of the
weight of evidence.

Q: Distinguish admissibility of evidence from weight of evidence.

A: According to Sec. 3, admissibility of evidence is determined by two
factors:
(1) It is relevant to the issue; and,
(2) It is not excluded by the law or these Rules.

If the evidence is not excluded by the law or these Rules, the

evidence is COMPETENT. Weight means the CREDIBILITY of the
evidence -- whether or not the evidence is believable. This matter is
addressed to the appreciation of the court.

In a court trial, first you present evidence: documents, objects,

witnesses,... Then you offer them in court. When the court says the
evidence is admitted or allowed, then the court is saying that the evidence
is admissible. When you offer evidence and the other party says We
object to that document., then the court says that the evidence is admitted,
you already passed the first part. This means that your evidence is
relevant and is not excluded by any provision of law. But when the court
says that your evidence is not admitted, it may not be relevant to the issue,
or is excluded by a provision of law, or both.

It is also possible that the court will admit your evidence, will take the
evidence into consideration when deciding the case, study it before arriving
at a decision, but after studying it finds out that it is not believable, then
your evidence is still void. You still will lose.
Giving the evidence VALUE is what is known as weight whether
the court would believe only 25 %, or 50%, 70% or 100% of it that is
weight. But if the court says that the evidence is not believable, the
evidence was so admitted but given zero weight. That is what will happen.

So, do not confuse one concept with the other. Even if your evidence
is admissible, it is not a guarantee that the court will give it weight. It is a
guarantee, though, that the court will consider, study and try to look into it
before arriving at its decision.

There must be a second test. When the parties offer evidence, one
must lose; the other must win because the court gave more weight to the
evidence presented by one side than the evidence presented by the other.
But all of these were actually admitted.

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 For example, one party offers its witness: Your Honor, I will offer the
testimony of Mr. Juan de la Cruz, our witness. The court says: Go
ahead. But after listening, the court says, I do not believe this guy. He
has nothing substantial to say. The court is not interested. Everything
here is recorded but in the ultimate the court never said that it is not within
the Rules of Evidence. On the other hand, if the court says: Your
evidence is not admitted. That is tantamount to saying that the evidence
does not exist. The court will not even look at it; it will never consider it.

So, what is important is that you can never win a case until and
unless your evidence will be admitted. This admissibility. It is something
for the court to consider. You can never reach the stage of weight unless
you have passed the stage of admissibility.

Q: How do I know whether the evidence is admissible or not?

A: Relevancy includes MATERIALITY. (1) Does the proof tend to prove
the issue to be resolved? If yes, you passed the first test of relevancy.
There is a connection between this evidence and you intend to prove. (2)
Is there a provision of law or in the Rules of Evidence which excludes the
evidence? None. As a matter of fact, the other party might not have even
objected. So, they did not find any ground against its admissibility.
Therefore, the evidence is competent or admissible.

This Section 3 is actually taken from the works of Wigmore. He says

that there are two AXIOMS or PRINCIPLES which underlie the structure of
the law on evidence. They are the following:

(1) NONE BUT FACTS HAVING A RATIONAL PROBATIVE VALUE ARE

ADMISSIBLE

This is tantamount to saying that the evidence must be relevant,

because if it is not relevant, how can you say that it has a probative value?
That is the axiom of relevancy.

(2) ALL FACTS HAVING RATIONAL PROBATIVE VALUE ARE

ADMISSIBLE, UNLESS SOME SPECIFIC RULE FORBIDS.

The second is the axiom of competency.

Normally, the rule is: when the evidence is inadmissible or

objectionable, but the other party fails to object, then the latter party waives
the defect. That is the general rule. But there are instances when
evidence can be objected to even if there is actually no objection coming
from the other party. However, that portion will be explained later on. But
as a general rule, the provisions of Evidence are intended for all the parties
benefit. That is why there is a provision on Objections. The rule is, failure
to object signifies waiver. Rights may be waived you know that. So
sometimes, even if evidence is incompetent because it is forbidden by law,

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it becomes admissible because you failed to timely raise your objections to
it.

For example, a confession is obtained by the police without informing

the accused that he has the right to remain silent, etc. -- the accused was
not apprised of his Miranda Rights. This confession is not in accordance
with the Constitution and is, therefore, deemed incompetent. But suppose
the defense fails to object and the confession is admitted as evidence -- in
other words, in deciding the case, the court will consider it. You reach
Phase 2, and the question now is: whether the court will believe it or not.

Another example: you are a party or a lawyer. You are holding a

piece of evidence and you want to determine if it is admissible in court. So
you try to study it. What really is the issue in the case? Does this evidence
have any probative value? Does it tend to prove what I intend to establish
directly on the review?

In determining whether something is connected to something, the

faculty of the human mind which we must use is merely common sense. Is
this related to this? Is this related to the issue in fact? How do we know
whether something has relevance or an irrelevant connection to the topic?
By analyzing. LOGIC. We are able to draw a conclusion on something
through logic. Logic leads us in determining whether or not something is
related to what we are talking about.

As to competency, evidence may be logical; it may be relevant. But

the problem is that it is excluded by law or the Rules. For example, a
confession is given by the accused in which he admits to committing the
crime. But he was not given any warning as to his rights. Therefore, when
the accused said he committed the crime that is related to the criminal
charge but that is not enough, because the second stage of admissibility is
competency. The Constitution provides that such evidence must not be
allowed, no matter how relevant it is to the fact in issue. Therefore, in
determining whether or not the evidence is competent our guide is our
KNOWLEDGE OF THE LAWS.

In other words, in determining relevancy, one must have the logic; in

determining competency, one must have knowledge of the statutes, the
Rules on Evidence, the Constitution and the special laws.

You are a judge. You are called upon to rule on the admissibility of
the evidence. You must determine whether or not the evidence is relevant
and competent. The judge, to be considered a good judge, must have a
logical mind. But that is not enough. Otherwise, if logic is the only guide,
then every philosopher every man with a good mind automatically knows
the law. No, that is not the case. You must also know the law. That is why
we are studying it here.

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 The same rule goes with lawyers. If you want to prove a case, you
should know whether or not your evidence is admissible. You analyze; you
use logic. Check if there is any provision in the Constitution, special laws,
or Rules on Evidence which could be used as a ground for objection. If
there is none, then you go ahead. Your only guides are LOGIC and LAW.
Common sense or logic is beyond our realm. What we can discuss now is
law because this is technical.

The rules on competency are not found only in the Rules on

Evidence. Rule 130 of the Rules on Evidence states that any evidence,
confession, etc. obtained in violation of the Constitution; any object taken
by virtue of an illegal search, shall be inadmissible in court. In Criminal
Procedure, there are provisions for admissibility. Also in Civil Procedure.
For example, in deposition-taking, a deposition is not admissible to take the
place of a testimony, unless the witness dies, etc. A deposition is
inadmissible for proving the fact in dispute except for impeachment
purposes or request for admission. Any admission made by a party under
Rule 26 of the Rules of Court cannot be used in any other proceeding.

Under the Rules on Criminal Procedure, when a witness is going to

be discharged, he must give a statement about his participation in the
crime in order to find out whether or not his testimony is needed. But if his
discharge is denied -- meaning the motion to convert him into a state
witness is denied, any admission made will not be admissible as evidence.

In pre-trial in criminal cases, admissions of any party or the accused

during the pre-trial are inadmissible if the pre-trial order is not signed by the
accused himself and his lawyer.

Q: What happens if some objects are taken from your house without a
search warrant, and these objects will now be used against you in a
criminal case, can they be admitted?
A: No, they are inadmissible. But you have to remember that there are
warrantless searches and seizures which are valid despite the absence of
a search warrant. You arrest somebody without a warrant and the
warrantless arrest is valid.

Q: When may a search or seizure be made without a search warrant?

A: Answering this question would be tantamount to studying the rules on
admissibility of seized objects -- whether it will fall under the general rule or
under the exception. But we do not have the time to go over them one by
one because they belong to the realm of Criminal Procedure (Rule 126) or
the Bill of Rights in the Constitution.

SALCEDO-ORTAEZ vs. CA
August 4, 1994

Facts: Private respondent Rafael Ortaez filed before the RTC

of Quezon City a complaint for annulment of marriage with

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 damages against petitioner herein, on the grounds of lack of
marriage license and/or psychological incapacity of petitioner.
Private respondent presented evidence, among others, were 3
cassette tapes of alleged telephone conversation between
petitioner and unidentified persons.
Petitioner objected to such presentation. The trial court,
however, admitted the evidence. Petitioners motion for
reconsideration was denied. Then a petition for certiorari to the
CA was filed, assailing the admission of the said evidence.
The CA affirmed the trial courts decision.

Issue: whether or not the cassette tapes are admissible as

evidence in court.

Holding: RA 4200 entitled An Act to Prohibit and Penalize

Wire Tapping and Other Related Violations of Privacy of
Communication, and for Other Purposes expressly makes tape
recording INADMISSIBLE IN EVIDENCE. Sec. 1 thereof
provides that it shall be unlawful for any person not being
authorized by all parties to the communication to tap such
conversation; Sec. 4 thereof expressly provides that: any
communication obtained in violation of Sec. 1 SHALL NOT BE
ADMISSIBLE IN EVIDENCE IN ANY JUDICIAL, QUASI-
JUDICIAL, LEGISLATIVE OR ADMINISTRATIVE HEARING OR
INVESTIGATION.
Clearly, respondents trial court and CA failed to consider
such law, which renders tapped recordings inadmissible in
evidence without the consent of the parties involved.
The evidence (cassette tapes) was thus inadmissible.

There are some types of admissibility cited by Wigmore which are

being followed by our Supreme Court. The discussions of Wigmore
borrowed by our Supreme Court can also be found in the book of Moran.
Wigmore talks of certain types of admissibility which are not ordinary but
are of use in the court or in litigation.

TYPES OF ADMISSIBILITY

(1) Multiple Admissibility of Evidence According to Wigmore and

quoted by the Supreme Court, this simply means evidence which is plainly
relevant and competent for two or more purposes.

When this happens, such evidence will be received if it satisfies all

the requirements prescribed by law in order that it may be admissible for
the purpose for which it is being presented, even if it does not satisfy the
other requisites for its admissibility for other purposes.

13
ILLUSTRATION: When you present evidence, there is always a purpose.
You will not present evidence if you do not intend to prove anything or
something. What is that something? We shall see in Rule 132 (Offer of
Evidence) that you are required to state the purpose of the evidence. Do
not leave the court to guess. You must state your purpose. I am offering
this to prove this matter. Is it possible that you present evidence to prove
two or more purposes? Yes. So, I am offering this evidence -- document
or whatever-- to prove Number 1 and also to prove Number 2. That is
what is called as multiple admissibility. You are offering evidence to prove
more than one (two or more) purpose or purposes.

A question is thus poses: Suppose you offer evidence for Purpose

Number 1 and Purpose Number 2; however, it is inadmissible for Purpose
Number 1 because it is not logical or is incompetent. So for Purpose
Number 1, it is improper. But for Purpose Number 2, it is proper it is
logical or relevant. Can the court now act on your evidence? Under the
doctrine of multiple admissibility, the evidence will still be admitted to prove
Purpose Number 2. The court will not reject it for Purpose Number 2; it will
still be allowed but only for this. So do not offer your evidence for only one
purpose because if such is not admitted by the court, your chances of
winning a case will be lessened. On the other hand, if you offer your
evidence for Purposes Numbers 1, 2, and 3, the court can say that it is
inadmissible for Purpose Number 1 but admissible for Purposes Numbers 2
and 3. You will encounter many cases like this as we go along the Rules
on Evidence.

EXAMPLE. In a legal action involving a piece of land, I will offer in

evidence a tax declaration. A tax declaration contains information such as
the name of the declared owner, his address, the address of the property,
the land area, improvements, assessed value, etc. The value is either the
one declared by you or as found by the provincial or city assessor. I say:
Your Honor, I formally offer as evidence this tax declaration over this lot
where I am the declared owner for the purpose of proving that: (1) I am the
owner of the property; and (2) the value of the lot is such amount together
with the existing improvements. So, you have two purposes. I am using
this to prove that I am the owner, and I am also using this to prove the
assessment of the property and the existing improvements on the land. If
you analyze each purpose, is the tax declaration competent to prove the
ownership of a person over a parcel of land? A tax declaration is not a title.
Both are not the same. Even a squatter can have a tax declaration. Any
person can declare with the Assessor that he is the owner of the land. So,
the tax declaration is not competent to prove the title of ownership. but it is
competent to prove the value of the property. The latter is based on
assessment and declaration. So, if you object, you say, Your Honor, we
object to the admission of this document insofar as he offered it to prove
his ownership, because it is incompetent. However, it is competent to
prove the value of the improvements. To the latter, we have no objection;
go ahead. So, the court will say: Alright, the tax declaration is offered

14
only for the purpose of proving the value of the property. That is multiple
admissibility of evidence. On the other hand, if you offer the tax declaration
only for the purpose of proving ownership, the other party would
immediately object to it as incompetent, and, therefore, inadmissible. The
tax declaration will be completely denied admissibility.

(2) Conditional Admissibility of Evidence Evidence which appears to

be immaterial is admitted by the court subject to the condition that its
connection with another or other facts subsequently to be proved will be
established.

Proving a case is like putting together a jigsaw puzzle; you preserve

the pieces bit by bit. Individually, these pieces make no sense. But if you
put them together, you get to know the entire picture. At the early stages of
a trial, a piece of evidence seems to be immaterial. But as the trial
progresses and the other facts are being presented, you see now the
importance -- the materiality of the evidence.

In conditional admissibility of evidence, for example, evidence is

being presented by a party today for the first time. The other party objects
and contends that the evidence is immaterial. You are the judge, and you
see that, really, there is no connection between the issue and the evidence.
So at that stage, the objection should be sustained. The first party then
requests, Please admit our evidence subject to the condition that the
materiality of the evidence will be proved later, and that if its materiality will
not be established later it should be scrapped. But for the moment, it has
to be admitted. The evidence shall then be admitted subject to the
condition that as the trial proceeds, the party has to show the materiality of
the evidence. And if that cannot be shown, the evidence has to be erased.

For example, there is a land conflict between A and B. The issue is:
who is the rightful owner of the piece of land? A has the document to prove
that he is the owner of the land, but so has B. Both of them are claiming
ownership. So who has the better title over the land? Whose title or
evidence is stronger to sustain the claim for ownership? As lawyer will
prove that the property was originally owned by X in 1900. Ten years later,
it was sold to Y; another 10 years later, it was sold to Z. The other party
then objects: Immaterial; irrelevant! So the court will say: Yes. There is
no connection or relation. As lawyer will agree with the court that as of
now, there seems to be no connection. But he asks that the court
conditionally admit the evidence because they will prove its relevancy or
materiality later. The court agrees to the condition and allows As lawyer to
proceed. So, it comes out that Z sold the land to W, then to N 10 years
later, and then finally to A. So A was trying to prove that his title to the land
could be traced from way back 1900 through the series of transfers. The
challenge is: who can present the better title to the land? So if the
condition is not met, the evidence will have to be withdrawn. It is only near
the end that the materiality of evidence can be seen. At the start, it seems
that it has no relevancy.

15
(3) Curative Admissibility of Evidence Evidence, otherwise improper,
is admitted to contradict improper evidence presented or introduced by the
other party. This is evidence introduced to cure, contradict or neutralize
improper evidence presented by the other party.

For example: A filed a collection case against B. The cause of action

is the collection of an unpaid debt. B answered that the account has
already been fully paid. The issue is whether or not the debt has already
been paid. A presents his evidence to the effect that 10 years ago, B
borrowed money from Y but did not pay said account. Eight years ago, B
borrowed money from X but did not also pay it. three years ago, B also
borrowed money from Z but also did not pay. B objects, saying that this is
all character assassination, that A is proving something from other
obligations. The court allowed A to proceed. B becomes afraid that A
might succeed in poisoning the mind of the court into thinking that he is
really an irresponsible debtor. So, during the trial, when it was Bs turn to
present his evidence, Bs lawyer presented X, Y and Z, who all testified that
B had already paid his debts to them. A objects and says that the
testimonies are irrelevant and immaterial. Under the principle of curative
admissibility of evidence, the testimonies of X, Y, and Z should be admitted
because, in the first place, the court allowed this type of evidence to be
presented by A. Thus, for the sake of fairness and equity, B should be
allowed to present his evidence.

SECTION 4. Relevancy; collateral matters. Evidence must have

such a relation to the fact in issue as to induce belief in its existence
or non-existence. Evidence on collateral matters shall not be
allowed, except when it tends in any reasonable degree to establish
the probability or improbability of the fact in issue.

What Section 4 is saying is that, evidence, in order to be admissible,

must prove the fact in issue. If it does not prove the fact in issue, it must
not be allowed. Therefore, if one presents evidence to prove MATTERS
OTHER THAN THE FACT IN ISSUE, then technically, the evidence will
NOT be allowed because matters other than the fact in issue are
COLLATERAL MATTERS, and evidence on collateral matters shall not be
allowed. That is according to the Rules.

Q: How do we define collateral matters?

A: Collateral matters or circumstantial evidence are proof of facts from
which, taken singly or collectively, the existence of the particular fact in
dispute may be heard as a necessary or probable consequence.

Collateral matters shall not be allowed on the ground of immateriality.

However, under Section 4, such evidence shall not be allowed EXCEPT if it
tends in any reasonable degree to prove the probability or improbability of
the fact in issue.

16
 A collateral matter other than the fact in issue is inadmissible, except
when it tends at least indirectly to prove the fact in issue. It may not prove
directly the issue, but it tends to prove it indirectly. The type of evidence
which tends to prove the probability or improbability of the fact in issue is
RELEVANT EVIDENCE. The evidence may not be material but it may
have passed the test of relevancy. One may intend to prove the probability
of what he is saying, not necessarily directly but also indirectly.

In the example earlier given, suppose the prosecution wants to prove

that A is guilty of murder, where the victim, from a distance of 200 yards,
was shot by a rifle right between his eyes. Based on the established facts,
the killer must have been a very good sharpshooter. Here comes the
accused, X. We are trying to prove the probability that X is the killer. So
Xs record in the past Olympics for the event of sharpshooting is presented
in court. This is actually a collateral matter. Proving Xs Olympic record is
not the issue. The proper issue is the death of the victim, and not the
prowess of X in sharpshooting. But somehow, this particular Olympic
record tends to prove the probability that X might be the killer. This is
circumstantial evidence which is, under the law, admissible evidence.

Q: What are these collateral matters?

A: Collateral matters are classified as follows:
(1) prospectant or antecedent collateral matters;
(2) concomitant collateral matters; and,
(3) retrospectant or subsequent collateral matters.

Prospectant or Antecedent Collateral Matters are matters which

preceded the fact in issue -- matters which have already been in
existence prior to the fact in issue, but pointing forward to it.

For example, you are accused of committing estafa by means of

deceit, fraud or false pretense. You succeeded in defrauding somebody.
You deny that you ever practiced fraud or deceit on the victim. To prove
that your position is correct, you will present witnesses who will testify that
as a young boy, you were honest in your dealings with other people. This
was in the 1950s, 1960s and 1970s. What you are trying to prove is your
moral character. You are trying to prove that by nature your moral
character is such that you are an honest person, that you are straight.
What is the purpose of that? To prove that it is improbable that you would
defraud the victim. You are trying to say that if a person has been honest
all his life, it is the least probable that he will commit deceit upon
somebody. In this case, proving ones character is something that
precedes the issue. This is circumstantial evidence.

Another example, in the previous case, we consider the Olympic

sharpshooter, accused of murder. We said that the victim was killed by a
very good sharpshooter. Point #1: the procedure to be used is the one
found in the Summary Rules. Point #2 points out the probable killer. So

17
these are all PROSPECTANT pointing to the probability of a fact in the
proceeding. That is what a collateral matter is. It need not be material, but
it is relevant to the fact in issue.

Concomitant Collateral Matters are those accompanying the fact

in issue, and pointing to it.

Direct example: A married woman is accused of adultery. How is

adultery committed? By a married woman having sexual intercourse
with a man who is not her husband. How would you prove such crime
when nobody has really seen the sexual act? So you will present
circumstantial evidence or collateral matters. Your first witness is the hotel
room boy. In his testimony, he says that his work assignment is to clean
the hotel rooms and attend to hotel guests. He adds that he was on duty
on this particular date and at this particular time. He testifies that he saw a
woman, the accused, checked in at a room. Who was the woman? He
points to the accused. Then he continues that later a man checked in too.
The prosecution asks, Could you point the man you were referring to? He
points to the co-accused. At what time did they check in? About 3:00
PM, Sir. After that, they both checked out. In other words, the woman
and the man stayed in the hotel for about 2 hours, concludes the
prosecution. Now, did the room boy testify that he actually see the woman
and the man have sexual intercourse? No. But why is the husband using
the room boys testimony? To prove that during those 2 hours the accused
were at the hotel, there was an OPPORTUNITY to have sexual intercourse.
In all probability, what could they have been doing there? Play chess? So
this is an example of where INDIRECT CIRCUMSTANTIAL EVIDENCE
comes into play to prove the PROBABILITY of the fact in issue.

In another case, the issue is whether a particular piece of property

was really donated by the father to his son. Because, after the death of the
father, the other brothers and sisters of this particular son were asking him
to give back the property to the fathers estate so that they could divide it
among themselves. The son refuses and claims that the property was
donated to him by their father during the fathers lifetime as a Christmas
gift. The others claim that the sons contention is not true and that the son
merely did not want to return the property to the estate. Was the property
really donated or not? Of course, there is no way for the father to answer
this. The lawyer will thus think how do you prove that there was no
donation? Then the lawyer proves that at the alleged time the donation
was alleged to have been made by the father to the son, the son was
having a heated argument with the father. As a matter of fact, they were
not in speaking terms. So how could the father have given his son a gift
during that period? What is the lawyer trying to prove here? The
PROBABILITY that during those months simultaneous with the claimed
donation, there was an IMPROBABILITY of the donation being made to the
son because of the collateral matter or circumstantial evidence of

18
improbability -- that the attitude of the father towards the son is
incompatible with the sons claim of generosity on the part of the father.

That is why in collateral matters, your imagination and capacity to

make inferences are useful in convincing the court of your version of the
story.

Retrospectant or Subsequent Collateral Matters are those

succeeding the fact in issue, but pointing backward to it.

According to the Supreme Court, an indication of the guilt of an

accused is his disappearance and going into hiding after the commission of
the crime. This is otherwise known as flight and concealment. This is an
example of a retrospectant collateral matter. The hiding takes place after
the commission of the crime, but is circumstantial evidence which points to
the guilt of the accused.

Another example: A person was killed inside his room. Nobody saw
what happened, but your fingerprints were particularly taken from a table
inside the victims room. What is the conclusion? That you were there in
that room. Are you the killer? Not necessarily. You might have been there
earlier, or some other person might have been there also, but what is
important is that you were there at the scene of the crime. So, there is a
possibility that you are the killer because your fingerprints that were found
could be indicative of your guilt.

Or another collateral matter could be footprints that were found at the

scene of the crime and which happened to match the track marks left
behind by your shoes or when you are found to have in your possession
stolen property. In these cases, you are INFERRED to be the guilty party,
due to circumstantial evidence.

The above principle has even been applied by the Supreme Court in
a paternity suit. In an action for support, the mother claims that her sons
father is the defendant. Issue: Is the boy the son of the defendant or not?
The boy appears to bear physical resemblance with the defendant. But
there are people who look alike but are not related to each other, or people
who are related but do not look alike. That is why these principles are not
conclusive. These are just probabilities. Resemblance, though, was
considered by the Supreme Court as a factor in determining the
relationship between them. It is a subsequent collateral matter pointing
towards the paternity of a child.

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Rule 129

WHAT NEED NOT BE PROVED

Among the first questions that a lawyer asks himself when handling any
case are:
(1) How shall I prove this?
(2) What shall I prove?
(3) What need not be proved?

Some matters do not have to be proven in court anymore. What are these
things?
(1) matters which are already within the domain or realm of
judicial notice;
(2) facts which are already judicially admitted by the other
party (judicial admissions)
(3) facts which are presumed by law (presumptions)

The first two: Judicial Notice and Judicial Admissions are discussed
under Rule 129. The third one, Presumptions, are found in Rule 131. But
the common similarity among them is that under the law, they do not need
to be proved in court.

Q: What is JUDICIAL NOTICE?

A: It is defined as the cognizance which courts may take, without proof, of
facts which they are bound or are supposed to know by virtue of their
office.

To borrow the language of judges in the United States courts:

Judges will not shut their minds to basic truths that all others can easily
see.

The doctrine of judicial notice is manifested in many Latin maxims:

Manifesta non indigent provatione - What is known need not be
proved.
Lex non requiret verificare quod apparet curiae - The law does not
require to be verified that which is apparent to the court.
Quod constant clare non debet verificare - What is clearly apparent
need not be proved.
Quod constant curiae offere testion non indigent That which appears
to the court does not need aid of witness, it is already very clear to you;
accept it as a fact without requiring the aid of the party to prove it.

Q: What is the function of Judicial Notice?

A: According to American courts, judicial notice displaces evidence. Since
it (judicial notice) stands for the truth, it fulfills the objective which evidence
is designed to fulfill and makes evidence unnecessary.

20
 Evidence is intended to prove something. But if that something is
deemed proven, it is useless to prove it. According to American
jurisprudence, the doctrine of judicial notice is based upon reasons of
CONVENIENCE and EXPEDIENCY. Why? Because it operates to save
trouble, expense and time -- which will be lost in establishing in the ordinary
way facts which do not admit of contradictions. For example, the measure
of time, or the law of gravity -- you do not have to go to a physicist in order
to prove it. There is no need to present evidence that there is a country
known as the USA that exists.

SECTION 1. Judicial Notice, when mandatory. A court shall take

judicial notice, without the introduction of evidence, of the existence
and territorial extent of states, their political history, forms of
government and symbols of nationality, the law of nations, the
admiralty and maritime courts of the worlds and their seals, the
political constitution and history of the Philippines, the official acts of
the legislative, executive and judicial departments of the Philippines,
the laws of nature, the measure of time, and the geographical
divisions.

Q: What are the types of judicial notice?

A: (1) mandatory judicial notice;
(2) discretionary or permissive judicial notice; and,
(3) judicial notice when a hearing is necessary.

The first two, mandatory and discretionary or permissive, are not new.
They were found in the 1964 Rules. The third type, when hearing is
necessary, Section 3 appears for the first time in the 1989 Rules.

Q: Is it correct for a judge to require a party to prove the existence of

countries, such as France, USA, etc. when the same are being mentioned
in the partys testimony?
A: No. In fact, it is absurd for a judge to do so. The principles of
International Law are automatically supposed to be known by all judges.

With regard to the constitution and history of the Philippines, if you

want to prove an event which happened years ago, there is no need for you
to get a history book and offer it in evidence. You may ask the court to take
judicial notice of this fact which happened years ago.

Q: Should the court take judicial notice of treaties affecting the Philippines
e.g., the Treaty of Paris?
A: Yes, it is a matter of history.

Q: Or events occurring during World War II?

A: According to the Supreme Court, facts occurring in the Philippines
during WWII -- the court may take judicial notice of these facts because

21
they are considered as matters of Philippine history. there is no need to
present a historian or evidence of history.

Q: Are the courts bound to take judicial notice of events occurring in a

foreign country, or is there a necessity of presenting evidence to prove that
these events happened?
A: Says the Supreme Court, if these events are of international interest,
our courts are bound to take judicial notice without need of evidence. But if
the events are purely of local interest IN THAT COUNTRY, then the courts
are not supposed to take judicial notice.

For example, events of CONTEMPORARY HISTORY, such as the

Kosovo crisis, the Chernobyl computer virus, or the Pakistan-Indian
border war the courts are bound to take judicial notice of these as they
are matters of international interest. On the other hand, if the event is the
election of a mayor which took place in a town in Latvia, there is need to
present evidence (i.e., certification that such person was duly elected)
because this is not a matter of international law.

Q: What about official acts of the legislature, or the provisions of the Civil
Code?
A: No need to present evidence. No need to present the Civil Code. The
courts are bound to know them. You can just cite them and there is no
need for you to present a copy in court.

According to the Supreme Court, even congressional debates are

within the realm of judicial notice. Acts which led to the passage of laws
are within the realm of judicial notice. Courts have to hire researchers
precisely to help the courts. Courts are bound to take judicial notice of
Philippine laws.

Q: Do you have to offer as evidence Republic Acts when you cite them?
A: No, you only need to cite them in court.

Q: If the law applicable to the case is a foreign law, are our courts bound
also to take judicial notice of a foreign law? (There are certain instances
when our Civil Code provides that a foreign law is applicable in our country,
e.g., validity of wills, formalities of wills, etc.)

For example, a Filipino while he was in Germany prepared his Last

Will and Testament through a German lawyer, in accordance with German
laws. The will is subsequently presented in the Philippine court for probate.
The Philippine court is called upon to decide whether the will is valid or not.
How will the court determine whether a will is validly executed?
According to the Supreme Court, the validity of a will shall be
governed by the law of the place where the will was executed. Are our
courts supposed to take judicial notice of the provisions of German Law to
the extent that its researcher must look for that particular German Law?
No, our courts are not bound to take judicial notice of foreign laws.

22
 Under German Law, the heir is favored. Under the will of the
decedent, the heir gets more than 50%. But if Philippine Law is applied, he
gets only 30%. So the heir is interested in having the will validated. The
other parties, on the other hand, who are also heirs, are interested in
having the will declared null and void. But our courts are not bound to take
judicial notice of the German Law, as we have earlier learned. That is why
the heirs lawyer should get an official copy of the German Law, and he has
to offer this in court as evidence... Unlike in Philippine Law, where
Philippine Laws are concerned, the lawyer is not bound to offer the
Philippine Law in evidence because our courts are bound to take judicial
notice of such laws. Thus, the foreign law has to be pleaded properly.

Q: What happens if our courts are supposed to decide on the validity of a

will based on German Law, but the proponent never offered it in evidence?
The court is now on a dilemma. Under the Civil Code, German Law is
supposed to be applied. But the problem is that counsel for petitioner
never offered as evidence in court this German Law.
A: Apply the Principle of Processual Presumption in Conflict of Laws,
which holds that whenever a court is bound to apply a foreign law as
ordered by the Civil Code but such foreign law is not properly pleaded, then
our courts will presume that German Law and Philippine Law are the same.
Therefore, the Philippine courts will apply Philippine Laws upon the
presumption that they are the same.

Official acts of the legislature, such as laws and statutes are within
the realm of judicial notice, but not foreign laws which must be properly
pleaded and proved.

Official acts of the executive -- executive orders, proclamations, etc.

-- For example, a convict is pardoned and asks the court to take judicial
notice of such pardon by the President. (One of the modes of
extinguishing criminal liability is pardon by the President under Article 89 of
the Revised Penal Code.)

Q: Can a person plead extinction of his criminal liability because of pardon

by the President? Should the courts take judicial notice of such fact?
A: Pardon by the President is a private act that is extended only to the
individual and is not of national concern. Being a private act, courts are
NOT bound to take judicial notice, and therefore, the person claiming it
must offer in evidence the document or whatever evidence he has with
respect to the grant of pardon.

Q: What about amnesty?

A: Amnesty is a blanket pardon for all rebels, for example. Amnesty is an
OFFICIAL PUBLIC ACT of the President, and our courts ARE BOUND to
take judicial notice of this.

23
 Official acts of the judicial branch of the government. For example, a
court decision. In the RTC, you have a case and you wish to invoke a
decision of the Supreme Court. Your case seems to be similar to that from
which the Supreme Court decision arose. You believe that the ruling is
applicable to your case it is thus a PRECEDENT. For example, that
decision appears in volume 293 of the SCRA, page 459. How do you call
the courts attention to that?

Supreme Court decisions are presumed to be known by the courts.

There is no need to offer as evidence in court the SCRA. Leave it to the
courts researcher to look for it, because Supreme Court decisions are
supposed to be within the judicial notice of all courts in the Philippines, and
the Supreme Court ought to take judicial notice of its own decisions. You
just need to cite the case in court.

There are two cases between A and B before the RTC of Davao City.
The first is Civil Case No. 150; the other is Civil Case No. 385. Two
different cases but the parties are the same. Suppose Branch X is trying
the first case, and Branch XIV is trying the other case. In the trial of Case
No. 150 before Branch X, one of the parties requested the court to take
judicial notice of the facts proven in Case No. 385. Is that allowed?

Q: Is the court bound to take judicial notice of another case pending before
another branch of the court?
A: No. In the first place, courts are bound to take judicial notice only of
their own records. Meaning, if I am trying Case No. 150, everything that
the record contains I am supposed to know.

Q: Is the court bound to take judicial notice of the records of other cases?
Suppose Case No. 385 is also assigned to Branch X, but with a different
schedule? Is the court bound to take judicial notice of the facts of the
records of Case No. 385 when it is trying Case No. 150, or vice versa?
A: No. The principle is A court will take judicial notice of its records and
of the facts which such records establishes, but it will not take judicial
notice of the records of other cases even if such cases are pending in the
same court before the same judge. A court is supposed to take judicial
notice only of the records before it in a case it is trying. When it arrives at a
decision, it does not have to cite what happened in other cases.

EXCEPTIONS:
(1) when, in the absence of any objection or with the consent of the
parties, the records of a previous case are admitted as part of the records
of the case then pending; and,
(2) when the other proceedings have a close connection with the matter in
controversy in the pending case.

For example, there are 2 or 3 cases pending in the same court. The
lawyers of one of the parties asks the court, Your Honor, we would like to

24
manifest that there is another case involving the same parties, although
with different issues, but somehow connected, pending in Branch IX. We
are requesting or moving that this Court take judicial notice of the records
of Case No. 8645 in arriving at its decision. The court will then ask the
other party if it has any objections to the first partys request. If none, then
the Court is deemed to have taken judicial notice. Or, the lawyer of the
requesting party must get a copy of the pleadings in the other case and
present the same in court as evidence.

Another example: There is a case between A and B with respect to a

particular lot. The lot was titled 40 years ago in a land registration case
involving the original owner (a cadastral case) where it was decreed to be
owned by X. Therefore, the history of the ownership of the lot is material in
determining the present controversy between A and B. The court, on its
own motion, may make reference to the prior case involving X because of
interrelation.

Official acts of the judiciary. The Supreme Court says, When

attorneys-at-law are duly admitted as members of the Philippine Bar, this
fact is judicially known to the Philippine courts. When one passes the Bar
Examinations, the Supreme Court passes a Resolution admitting you into
the Philippine Bar. During the oath-taking ceremonies, the Supreme Court
sits en banc, making it an official act of the Supreme Court. Therefore,
you are judicially known to have been admitted into the Philippine Bar, not
only to the Supreme Court, but to the whole Philippines. The legal picture
is: all lawyers and/or courts in the Philippines are bound by judicial notice
that you are already a lawyer. You do not have to prove to the courts how
you become a lawyer.

Q: Distinguish judicial notice from judicial knowledge. (bar question)

A: Judicial knowledge is the personal knowledge of the judge. There is a
vast difference between what one knows and what one should know. A
matter may be judicial notice but not within judicial knowledge. On the
other hand, a matter may be within judicial knowledge but not within judicial
notice.

Example of a fact which within the judicial knowledge of the judge but
is not or should not be within his judicial notice: In a criminal case, D is
accused of a crime. According to him, when he committed the crime, he
was below 18 years old. This factor could be mitigating, or even
exempting. but that is a matter of defense. So D has to prove his age.
Suppose the judge personally knows D, and the judge knows the exact
date of Ds birth. Maybe the judge was even present during the baptismal
party or birth of the said accused. Can the judge say, Accused, there is no
need for you to prove the date of your birth. Anyway, I know it already.
That is IMPROPER. A judge cannot use his own personal knowledge as a
basis for his decision. When there is no evidence supporting a fact, he
must close his eyes on his personal knowledge.

25
26
LOPEZ vs. SANDIGANBAYAN
249 SCRA 281

Facts: On December 10, 1987, the PCSO donated a

Mitsubishi L-300 van for use as an ambulance in favor of the
Municipality of Mati, Davao Oriental. The municipality was
represented by the now deceased Gov. Leopoldo Lopez, who
signed the Deed of Donation, insured and registered said
vehicle in the name of the Province of Davao Oriental. At this
time, Salvador Gutierrez was the acting mayor of Mati.

On February 2, 1988, Eduardo Lopez was elected Mayor

of Mati. He took his oath of office before RTC Judge Roque
Aston. Subsequently, the vehicle was burned down by still
unidentified armed men. Whereupon, the political adversaries
of Gov. Lopez, making an issue of it, filed a complaint with the
Ombudsman, charging Gov. Lopez and the newly-elected
Mayor, Eduardo Lopez, with the offense of violation of RA 3019.

Eduardo Lopez moved to quash the complaint on the

ground that at the time of the donation, he was not yet the
Mayor and, consequently, he had no participation in the
acquisition, registration and use of the vehicle in question.

Issue: whether or not judicial notice can be taken of the fact

that petitioner Lopez took his oath as Mayor and assumed his
post only on February 2, 1988, on the face of the allegation that
the accused was already a Mayor at the time of the donation.

Holding: Down the oft-trodden path in our judicial system, by

common sense, tradition and the law, the judge in trying a case
sees only with judicial eyes as he ought to know nothing about
the facts of the case, except those which have been adduced
judicially in evidence. Thus, when the case is up for trial, the
judicial head is empty as to facts involved and it is incumbent
upon the litigants to the action to establish by evidence the
facts upon which they rely.

Sec. 1 of Rule 129, however, provides that certain facts

need not be proved because they are judicially noticed by the
courts. Judicial notice takes the place of proof and is equally
persuasive as actual evidence presented, whether testimonial
or documentary.

The factual defenses of petitioner are matters within the

concept of mandatory judicial notice. While it is true that factual
defenses on the part of the accused are evidentiary matters
which may be presented only during trial on the merits, the
facts alleged by the accused are facts admitted, whether

27
directly or impliedly, in pleadings of the prosecution and in the
reports of graft investigator Gay Balajadia.

Judicial notice may be taken of petitioners oath-taking

before the RTC judge of Mati, as evidenced by a certification
from the records officer of the Office of the Provincial Governor.
The oath-taking partakes of an official act, while the certification
is an official act of an officer of the executive department of the
government.

DUMEZ CO. vs. NLRC

258 SCRA 584

Facts: Dumez Co., a French corporation, engaged the

services of Veronico Ebilane as carpenter for one of its projects
in the Middle East. On August 31, 1982, while at the job site,
private respondent was suddenly seized by abdominal pain and
was rushed to the Riyadh Central Hospital. During his
confinement, he was found to have fibrillation and CLA
embolism. Petitioner terminated Ebilanes employment.

Ebilane filed a complaint with the POEA which finds the

termination legal but, nevertheless, fined petitioner with US$ 1,
110, for failing to perform its obligation to give Ebilane daily
allowance for each day of work disability, including holidays, as
mandated by the Social Insurance Law of Saudi Arabia.

Holding: The POEA, in finding petitioner liable to Ebilane for

medical benefits accruing to the latter, took judicial notice of the
Social Insurance Law of Saudi Arabia. To this extent, POEAs
actuations are legally defensible. Although in a long line of
cases, a foreign law, being a matter of evidence, must be
alleged and proved in order to be recognized and applied in a
particular controversy involving conflicts of laws, jurisprudence
on this matter was not meant to apply to cases before
administrative or quasi-judicial bodies in the light of the well-
settled rule that administrative and quasi-judicial bodies are not
bound strictly by technical rules.

STATE PROSECUTORS vs. MURO

236 SCRA 505

Facts: Judge Manuel Muro was charged by the state

prosecutors with ignorance of the law, grave misconduct and
violation of the Code of Judicial Conduct, by issuing an Order
dismissing eleven cases against the accused Imelda
Romualdez-Marcos.
Muro issued his Order solely on the basis of newspaper
accounts concerning the announcement by the President of the

28
 Philippines of the lifting by the government of all foreign
exchange restrictions and the arrival at such decision by the
Monetary Board.

Issue: whether or not respondent judge, in taking judicial

notice of a mere newspaper account, acted in excess of
jurisdiction and grave abuse of discretion.

Holding: For the respondent judge to take judicial notice

thereof even before it is officially released by the Central Bank
and its full text published as required by law to be effective
shows his precipitate action in utter disregard of the
fundamental precept of due process. The news paper report is
not the publication required by law in order that the enactment
can become effective and binding.

Generally speaking, matters of judicial notice have three

material requisites:
the matter must be one of common and general
knowledge;
it must be well and authoritatively settled and not
doubtful or uncertain;
it must be known to be within the limits of jurisdiction of
the court.

Respondent judge, in the guise of exercising discretion

and on the basis of a mere newspaper account which is
sometimes even referred to as hearsay evidence twice
removed, took judicial notice of the supposed lifting of foreign
exchange controls, a matter which was not and cannot be
considered of common knowledge or of general notoriety.
Worse, he took cognizance of an administrative regulation
which was not yet in force when the order of dismissal was
issued. Jurisprudence dictates that judicial notice cannot be
taken of a statute before it becomes effective. The reason is
simple. A law which is not yet in force and hence, still
inexistent, cannot be of common knowledge capable of ready
and unquestionable demonstration, which is one of the
requirements before a court can take judicial notice of the fact.

An example of a fact which is not within judicial knowledge but should

nevertheless be taken into judicial notice: There is a case, and the
decision hinges on what this particular insignificant law says. It is a
considerably insignificant law, but the answer to the case is there. The
problem is that the judge never knew about the law. His researcher never
told him about such law or its existence. So the judges decision could be
wrong. The judge says that he should have read about the law, but nobody
brought it to his attention. In other words, this judge did not have judicial

29
knowledge about this law. But he is bound to know about the law because
all laws should be within his judicial notice.

SECTION 2. Judicial Notice, when discretionary. A court may

take judicial notice of matters which are of public knowledge, or are
capable of unquestionable demonstration, or ought to be known to
judges because of their judicial functions.

This is the second type of judicial notice: DISCRETIONARY. This

Section is broader than Section 1. Matters of public knowledge public
knowledge other than those under Section 1.

There are so many things in this world that we should know -- politics,
history, arts, science, mathematics, etc. Matters which are capable of
unquestionable demonstration e.g., measure of time or the laws of
nature. Meaning, those which can be shown to be true and there is no way
of knowing their untruth.

We should keep reading and not confine ourselves to law books

alone. There is no excuse to not know about Homer, Shakespeare, Virgil,
Kirkegaard, Tillich, Wittgenstein, etc. We should all aim to be well-rounded.
Judges, just like anybody else, should know many things. There are things
that are ought to be known by judges and lay people alike. Our knowledge
must not be limited within our own field. An advice: The best way to learn
law is to read philosophy, letters, arts, etc. There are many cases decided
by the Supreme Court pertaining to the arts, medicine, etc. The Supreme
Court sometimes talks about medicine when it determines whether or not
an illness is compensable.

Why discretionary? Because a court MAY or MAY NOT take judicial

notice of a particular fact whether this is a matter of public knowledge, or a
matter ought to be known to him. We have to admit that not all people are
equal. Some people are more well-read than others. The same thing goes
for judges -- some judges are better than others. Some judges read more
than other judges. You cannot expect a judge who does not read to be
better than a judge who is diligent and reads up a lot on other matters and
books. I do not think that the knowledge of a judge who has trial
experience is equal to the knowledge of a judge who has no trial
experience and is newly-appointed. We just have to accept that as a
matter of life.

What Section 2 of Rule 129 simply means is that if it is a matter of

public knowledge which a judge knows because of his knowledge and
readings, he can take judicial notice. But if the knowledge of the judge is
limited and he does not know much about the matter, then you should
present evidence.

30
 For example, in a criminal case, the victim sustained a gunshot
wound through and through. Meaning, the bullet entered the body and
exited on the other side. The question now is which the entrance wound is
and which is the exit wound? Because if the bullet entered through the
back of the victim and exited in front, there is treachery here. If he was
shot frontly, the bullet should have exited the back. The judge calls for the
Prosecutions next witness who is a ballistic expert. The judge asks the
Prosecution what its witness will testify on. We will prove, your Honor, that
the entrance wound is on the back of the victim. Therefore, there was
treachery, etc. In Forensic Medicine, the location of the entrance wound is
determined by its size (circumference). Suppose the judge knows this and
has in the past tried more than 30 cases like this with the same issue. He
has already heard testimonies with so many ballistics experts and so he
tells the Fiscal to not anymore present his witness. The court will simply
take judicial notice of the principles of ballistics in Forensic Medicine.
If on the other hand, the judge is newly-appointed, has no experience
in criminal law practice, for example, and is not a wide reader. He has zero
knowledge on ballistics principles. The Fiscal asks the court to take judicial
notice that the entrance wound is on the back. The judge says that he
does not know that and thus asks the Fiscal to present evidence. Is the
action of the judge correct? Yes, because judicial notice is discretionary.

Therefore, this depends on who is the judge. It depends on whether

the judge knows or does not know. The advice is: Try not to embarrass
the court. The judge might be insulted. You can say, Your Honor, we are
asking the court to take judicial notice of this fact, unless the court feels that
the presentation of the evidence is necessary. Look at the judges
response. If he says Yes, the court will take judicial notice. Then,
everything is expedited. But if he asks you to present evidence, the
conclusion of the judge is a little bit ignorant.

SECTION 3. Judicial Notice, when hearing necessary During the

trial, the court, on its own initiative, or on request of a party, may
announce its intention to take judicial notice of any matter and allow
the parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper
court, on its own initiative or on request of a party, may take judicial
notice of any matter and allow the parties to be heard thereon, if such
matter is decisive of a material issue in the case.

Section 3 covers all matters beyond Sections 1 and 2. Take note that
the court may take judicial notice on its own or upon the request of a party.

Q: Why is hearing necessary?

A: To hear the parties on whether or not they will agree on the action to be
taken by the court. Both parties will be asked on the wisdom of the courts
taking judicial notice or not, with respect to a particular matter. If there is no
problem, judicial notice will cover anything.

31
Q: What are the differences between paragraphs 1 and 2 of Section 3?
A: (1) In the first paragraph, the case is still being tried. Taking of judicial
notice is being done DURING TRIAL; whereas, in the second paragraph,
judicial notice is being TAKEN AFTER TRIAL, BEFORE JUDGMENT or ON
APPEAL.

There could be judicial notice on appeal in the appellate court. It is

not limited only to the trial stage. The appellate court may take judicial
notice, but it must hear the sentiments of both parties and allow the parties
to be heard. Thus, hearing is necessary here.

(2) In the second paragraph where judicial notice is taken after the
trial, before judgment or while the case is on appeal, the matter to be taken
under judicial notice is a matter decisive of a material issue in the case.
The matter being decisive of a material issue in the case means that it is
REALLY IMPORTANT.

An example of this type of judicial notice: the case earlier mentioned

on the court records. Once again: May a court take judicial notice of the
records of another case pending before another court or with the same
judge? The general rule is: courts are not bound to take judicial notice of
cases pending in other courts or before the same judge, except: (1) when
the consent of the parties were obtained; (2) if the case is closely
interrelated to another case pending between the same parties.

ILLUSTRATION: In a case, during trial or even before judgment, the court

deems the case submitted for decision. The court is personally aware that
there are two other pending cases involving the same parties or pending in
other courts. The court asks the parties if there are objections if it takes
judicial notice of the records of those other cases. The court, on its own
initiative, may announce its intention of taking judicial notice, but it should
hear the parties first.

SECTION 4. Judicial Admissions. An admission, verbal or

written, made by a 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.

Example of a judicial admission in the pleadings: There is a

complaint against the defendant. The latter admits the allegations in the
complaint. therefore, there is no need for the plaintiff to present evidence.

A judicial admission is not limited to what a party says in his

pleadings. It covers any admission made by a party in the course of the
proceedings. Included as sources of judicial admissions are: motions or
modes of discovery with request for admission, stipulation of facts, and

32
statements of facts made by a party in the course of the trial, verbal or
written.

Take note that the law says: In the course of the proceedings IN
THE SAME CASE. That is an adjunct of the rule that a court is not
supposed to take judicial notice of records of proceedings in another court,
or another case.

Suppose A makes an admission in one case, but does not make the
same admission in another case. The admission made in Case No. 1 is
judicial admission. The one made in Case No. 2 is an EXTRAJUDICIAL
ADMISSION. In Case No. 2, it is not the proceeding under consideration.
An extrajudicial admission is deemed made out of court, as far as the case
is concerned, and is deemed not made within the proceeding.

PEOPLE vs. HERNANDEZ

260 SCRA 25

Facts: Accused-appellant Cristine Hernandez was charged

with the crime of illegal recruitment committed in large scale.
After trial, she was convicted.

In her appeal, accused-appellant assigned as error the

judicial notice taken by the lower court of the fact that she has
been charged with another illegal recruitment case and in
considering the pendency thereof as evidence of the same and
strategy adopted by the accused. It is claimed that the lower
court never announced its intention to take judicial notice of the
pendency of the other illegal recruitment cases nor did it allow
her to be heard thereon.

Holding: It is true that as a general rule, courts are not

authorized to take judicial notice of the contents of the records
of other cases, even when such have been tried or are pending
in the same court, and notwithstanding the fact that both cases
may have been tried, are actually pending before the same
judge. However, this rule is subject to the exception that in the
absence of objection and as a matter of convenience to all
parties, a court may properly treat all or any part of the original
record of the case filed in its archives, where with the
knowledge of the opposing party, reference is made to it by
name and number or is some other manner by which it is
sufficiently designated.

The judicial notice taken by the lower court of the

pendency of another illegal recruitment case against her falls
squarely under the above exception in view of the fact that it
was appellant herself who introduced evidence on the matter
when she testified in open court.

33
 Suppose a party wants to prove to the court that you made an
admission in a case, and the former party wants to use that admission
against you in another case. What the party is supposed to do is get a
copy of the judicial admission and offer the same as his evidence in the
other case. The judicial admission has to be offered in evidence because
the court is not bound to take judicial notice of that admission.

PROBLEM: The defendant, in his answer to a complaint filed against him

by the plaintiff, made a judicial admission. Subsequently, plaintiff filed an
amended complaint. In his amended complaint, the admission was no
longer present meaning, he deleted it. QUESTION: Is the defendant
bound by his admission in the original pleading? Can the court still
consider the judicial admission which the defendant made in the original
pleading?

ANSWER: No. When a pleading is amended, the amended pleading

supersedes the original pleading; the court should confine itself only to the
amended pleading. The admission made in the problem now becomes an
extrajudicial admission.

PROBLEM: Suppose a party wishes to bring to the attention of the court

the judicial admission in the superseded original pleading, but as far as the
court is concerned the admission, which is now extrajudicial, does not exist.
What should the party do?

ANSWER: Since the party cannot ask the court to take judicial notice, the
extrajudicial admission must be marked by the party as its evidence and
must be formally offered in court. The admission must be proved all over
again.

Q: What does the law say about the legal effect or importance of a judicial
admission?
A: As a general rule, a judicial admission may not be contradicted by the
party making it. As the party making such judicial admission is bound by it,
he is deemed in estoppel. The judicial admission 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. Therefore,
a party making an admission cannot, during the trial, deny what has been
earlier admitted nor present evidence which will run counter against the
admission.

except: (1) if it can be shown that the admission was made through
palpable mistake manifest, obvious mistake. This can be done by
presenting evidence of the mistake during the trial. The party intending to
prove such mistake must move to amend the pleading before the trial. By
amending the pleading, you are convincing the court that there was an

34
obvious mistake, and that whoever made the admission should be relieved
of the effects of such admission.

(2) As to the second exception that no such admission was made,

the party who made the admission may go against such admission but only
if such admission was never really made. The best reference for this issue
is the records of the case.

PROBLEM: In defendant Ys answer to Xs complaint, Y admitted that he

borrowed money from X. During the trial, Y now denies having borrowed
money from X. Which shall prevail the judicial admission in which Y
admitted to having borrowed the money, or the evidence presented by Y
during the trial proving that he did not borrow money from X?

Q: Can a party go against his own admission by presenting evidence to

the contrary (when the other party failed to object to the evidence)?
A: According to American jurisprudence (our jurisprudence is adversarial in
nature), under an adversarial model of litigation, the burden of evidence is
on the proponent. the onus or burden of presenting evidence to prove a
point is upon its proponent. The other party then has the burden of
excluding the evidence being presented by the other party. Unless the
error is so plain that the court will motu propio exclude the evidence. If a
party fails to object to the evidence, that is his fault, unless the court itself
excludes the evidence even without any objection from a party.

According to Justice Moran in his Commentaries on the Rules on

Evidence, there are two types of Rules of Evidence:
(a) those established for reasons of PUBLIC POLICY; and,
(b) those established for the PROTECTION OF THE PARTIES.

Q: What is the difference?

A: Under the first type, the evidence may be excluded at any time WITH
OR WITHOUT OBJECTION from any party, because these rules are
established not for the parties benefit but for reasons of public policy.

If a rule of evidence belongs to the second type, and a party fails to

make a timely objection or motion to strike out the improper evidence, then
there is WAIVER of a right. The court shall, therefore, not exclude the
evidence.

The following case describes the nature of judicial admissions:

SANTIAGO vs. DE LOS SANTOS

61 SCRA 146

Facts: Plaintiff, Luis Santiago, now appellant, applied for

registration of a parcel of land located in San Mateo, Rizal. The
application was opposed by the Director of Lands, Director of

35
 Forestry, and Mrs. Pacita de los Santos. It is alleged that the
land sought to be registered is part of the PUBLIC DOMAIN
which was being leased to de los Santos under a Pasture
Lease Agreement.

The trial court dismissed the case on account of evidence

submitted by plaintiff, indicative of the land being public in
character, lending support to the position of the oppositors.

The present petition is an appeal for reversal.

Issue: Whether or not contradictory evidence can be reversed

during appeal. No objection was made.

Ruling: The doctrine penned by JBL Reyes in the case of

Joes Radio & Electrical Supply vs. Alto Electronics, Corp. (104
Phil. 333 [1958] is applicable, providing that: an admission
made in the pleadings cannot be controverted by the party
making such admission and are conclusive as to him. All
proofs submitted by him contrary thereto or inconsistent
therewith should be ignored, whether objection is interposed by
the adverse party or not.

The trial courts ruling was affirmed.

Therefore, a party making the admission is 100% in estoppel. Even if

the other party does not make any objection, the former is still bound by his
admissions. For public policy, no one should go against his own
admissions, no matter the amount of evidence presented. However, this
rule is without exception:

ATILLO III vs. CA

266 SCRA 596

Facts: Private respondent, Amancor Inc., entered into a loan

contract with Metrobank, such loan secured by real estate
mortgage of property owner by Florentino Atillo III, as major
stockholder of the corporation. Inasmuch as Amancor is in
need of more capital, it entered into a memorandum of
agreement with Michel Lhuillier, whereby the latter became
part-owner of Amancor. As the company was not able to pay its
loan, the security for such was foreclosed by the bank. Atillo
now asks the company to pay him the value of the foreclosed
property.
As the company failed to pay him the debt, he sued both
Amancor and Lhuillier in the trial court for collection. The trial
court found for him, and Amancor promptly filed an appeal in
the CA. The appellate court reversed the lower courts decision

36
on the ground that Lhuillier was not liable for the debt because
it was Amancor alone which contracted the loan.

In this petition for certiorari, Atillo contends that Lhuillier

made a judicial admission of his personal liability in his Answer
wherein he stated that in all the questioned transactions, it was
made between Atillo and Lhuillier alone, without the official
participation of Amancor.

Issue: when a party, by his judicial admission, has affirmed

that he has personal liability in a certain transaction, may a
court rule against such an admission despite the clear
indications that it was not affected by mistakes, palpable or
otherwise?

Holding: As provided for in Section 4 of Rule 129, the general

rule that a judicial admission is conclusive upon the party
making it and does not require proof admits of two exceptions:
when it is shown that the admission was made through
palpable mistake; and when it is shown that no such admission
was in fact made. The latter exception allows one to contradict
an admission by denying that he made such an admission. For
instance, if a party invokes an admission by an adverse party,
but cites the admission out of context, then the one making the
admission may show that he made no such admission, or that
his admission was taken out of context. This may be
interpreted as to mean not in the sense in which the admission
is made to appear. That is the reason for the modifier such.

Granting arguendo that Lhuillier had in fact made the

alleged admission of his personal liability in his Answer, we hold
that such admission is not conclusive upon him. The fact that
the allegations made in the pleadings and in open court differed
will not militate against the findings herein made nor purport the
reversal by respondent court. As a general rule, facts alleged in
a partys pleading are deemed admissions of that party and are
binding upon it, but this is not an absolute and inflexible rule.
An answer is a mere statement of fact which the party filing it
expects to prove, but it is not evidence.

37
Rule 130

RULES OF ADMISSIBILITY

A. OBJECT (REAL) EVIDENCE

More or less, this Rule is the main law in Evidence because this
contains almost half of the entire subject of Evidence. Majority of the Rules
on Admissibility are found in other laws such as the Constitution the
admissibility of a confession, the admissibility of a property taken by virtue
of an illegal search warrant, the admissibility of certain types of documents
excluded by special laws -- e.g., admissibility of a taped conversation
(Salcedo-Ortales v. CA, supra) where the evidence was declared
inadmissible pursuant to RA 4200.

Q: How come the word real is enclosed in parentheses beside the word
object evidence?
A: Under the old law, the more popular term used was real evidence.
Under the 89 Rules, the framers decided to change the official name to
object evidence, because real evidence always left the impression that it
was being used with respect to real property. Real property refers to land,
buildings, etc... real evidence refers to things that exist, objects.

SECTION 1. Object as evidence. Objects as evidence are

those addressed to the senses of the court. When an object is
relevant to the fact in issue, it may be exhibited to, examined or
viewed by the court.

This is known as the OBJECT or REAL EVIDENCE RULE.

Theoretically, the court has no senses because the court is an entity

which exists only in law, and which has no physical existence. It can only
act through human beings, just like a corporation. Therefore, the senses of
the court are the senses of the judge. That is why during trial, one presents
material objects -- e.g., marijuana, the weapon, etc. to prove the acts of
defense, before the judge. Normally, these are addressed to the sense of
sight -- things which the court can see: objects, photographs, or the object
itself. Hence, the purpose of object evidence is to prove the existence of
the condition of the situation, or condition of a thing or object. This is the
obvious reason behind real or object evidence.

Q: How does one present object evidence in court?

A: Object evidence may be exhibited, examined or viewed by the court. If
a picture is worth a thousand words, then definitely the scene itself must be
worth millions of words. Sometimes, people are more impressed with what
they see rather than with what they only hear.

Q: How is Object or Real Evidence classified?

38
A: Justice Moran, in his Commentaries on the Rules of Court, classifies
Real or Object Evidence into 3 types:
1. that which consists in the exhibition or production of the object
inside or outside the courtroom;
2. that which consists in the inspection of the object outside the
courtroom;
3. that which consists in the making of an experiment.

Example of the first type: There are things which one can bring into the
courtroom. He can mark the exhibits. For example, the gun, knife, or piece
of clothing material because these are tangible and one may bring them
inside the courtroom and submit them in court to form part of the records.

But there are personal properties which one cannot appreciate in the
courtroom, like a jeepney, for example. The party presenting it will bring it
or cause it to be brought to a parking area outside the courtroom, and the
judge presiding will go out and inspect the jeepney there. This is what is
being called as for exhibition and production of the object inside or outside
the court. This can be done inside the courtroom, or within the vicinity of
the courtroom to where the judge will go and see the object for himself.

Example of the second type: But first, how is this second type
differentiated from the first type? In the first type, the evidence or exhibit is
PRODUCED. In the second type, it is INSPECTED.

One may exhibit or produce inside or outside the courtroom

MOVABLES. But one cannot bring inside the courtroom an immovable,
such as a building, trees or land. So, what is the manner by which the
court may see the piece of land? By going to the area and inspecting it.
This is what is called, in popular parlance, as OCULAR INSPECTION of
the subject matter in litigation, or another technical term used is: the court
will TAKE A VIEW of the object.

One thing that must be remembered about taking a view or

inspection of the object is that it is STILL PART OF THE TRIAL. Actually,
when the court says that it wishes to see the property which is the subject
matter of investigation -- so, for example, they set it on a particular date,
time ... everybody will go there the judge, court personnel, the
stenographer, bailiff, branch clerk of court, the lawyers of both sides... They
are not there for an excursion. That is still part of the trial. Only, the trial is
being done outside the courtroom because the object or thing cannot be
brought inside the courtroom. Everything there is recorded as if they were
inside the courtroom. It is scheduled officially.

There was a case which happened in Negros Occidental years ago.

This was a collision case where the defendant maintained that the reason
behind the collision was that the visibility of the vehicle would change upon
approaching a certain portion of the road, because of the glare of the sun at

39
3:00 or 4:00 in the afternoon. That is the time when the sun is about to set
in the west. That portion of the road is descending, hence if you are going
up, you will be blinded by the glare of the sun, and you could hardly see an
incoming object. But the plaintiff said that this was not true, and that the
defendant was plainly reckless. In other words, the dispute here was about
the glare of the sun at that specific time of the day, at that specific place.
Then one Sunday, the judge happened to attend a private family gathering.
He realized that the area where the accident in the case happened was just
1 kilometer away. So traveling alone, he went there at exactly the same
time the accident happened. He wanted to evaluate the visibility of the
place to incoming vehicles.

When the judge finally came out with his decision, it was in favor of
the defendant. Judge to defendant: You are telling the truth. I went there
one day and found out that your version of the story is true.

The Supreme Court held the judges decision as without basis and
illegal. In effect, the judge conducted a view of the object not on a
scheduled date. His visit there could not be considered as part of the trial
because he was alone. It should have been scheduled. There should
have been a COURT ORDER. All the parties concerned should have been
there also, if not at least represented. Otherwise, this is practically taking
into account evidence which was not formally offered in court. This is
tantamount to judicial knowledge. The judge applied what he knows, when
he was not actually supposed to. There must be a record to the effect that
the thing mentioned in the judgment was offered formally in court as
evidence.

The third type, EXPERIMENTATION. For example, somebody was caught

carrying a pile of newly-washed clothes. Then he was charged with theft.
His defense was that these clothes were his. ISSUE: whether or not the
clothes really belonged to the accused. The judge examined the clothes
and the accused. Then he asked the accused to wear the clothes. But the
clothes were too big for the accused. The court concluded that the
accused was lying. The clothes should have fitted him properly if they were
really his. What is the basis for this? So that the court can see. This is
actually the process of experimentation. That is why some writers also call
Object Evidence as DEMONSTRATIVE EVIDENCE.

The above principle was also applied in an American case cited by

Moran: Each of the opposing parties owned a horse. Both horses gave
birth, but one of the ponies died. Both parties claimed the surviving pony to
be his. Under the Law of Property, the owner of the offspring of an animal
is the owner of its mother. So, what the judge did was to go to the farm and
make the parties bring both horses and the pony. The owners were asked
to hold their respective horses a few meters away from each other. Then
the judge ordered that the pony be placed in the middle. The pony was
then released. The ponys natural reaction would be to go to his mother.
Meaning, it recognized its mother. Therefore, through this method, the

40
judge was able to determine who the owner of the pony should be. This
evidence is addressed to the senses of the court, so that it may see.

Another example is found in the Old Testament of the Bible. This is

the story of King Solomon, said to be the wisest among the kings of Israel.
The Bible says he decided with utmost fairness and wisdom. But one day,
he was dumbfounded with a very peculiar case, similar to the horses and
the pony. But this time, the quarrel was over a child. Two women were
claiming to be the mother of the child. On how to solve the problem, King
Solomon prayed for enlightenment. Then he said to the mothers: So, you
are both claiming to be the mother of the child. To be fair, let us split the
child into two. So each of you gets half of him. Then one mother said that
she would rather not assert her claim, and that the child be given to the
other mother because she could not bear to see the child harmed.

That story happened thousands of years ago, but whether King

Solomon realized it or not, he was already applying Sec. 1 of Rule 130.

Take note that the Object Evidence Rule is not confined to the sense
of sight, but may also be addressed to the other senses. Although in most
cases, it applies to the sense of sight.

An example where the Rule applies to the sense of hearing: In an

action for damages for violation of the copyright of a musical composition,
according to plaintiff, defendant composed a song or the melody of a song
which was taken from his (plaintiff) composition. Defendant claims that the
composition is original. Therefore, there must be some notes or lyrics in
the song which are similar to the plaintiffs. Some similarity between the
song is tolerable. Some compositions may be similar to some extent,
maybe 50% or 60% -- but still this does not infringe the law. ISSUE: to
what extent are the 2 songs similar? Whether or not the defendant really
copied the plaintiffs song?

The parties presented notes of the musical compositions to the judge.

Defendant claims that the songs are not the same. But the judge does not
know how to read those notes. So, he asks them to play the compositions
while he listens... until he arrives at a judgment -- whether the similarity
between the songs are such that he can conclude that one was copied
from the other or not.

What did the judge use here? The sense of hearing. That is still
covered by Sec. 1.

Take note that before an object can be admitted as evidence, one of

the requirements of the law is that it must be IDENTIFIED. Meaning, it
must be shown by independent evidence that the object offered is the
thing in dispute.

41
 For example, a knife was used in the killing of a victim. The evidence
shows that after the killing, while the accused was holding the knife, a
policeman arrived, disarmed the accused and got the knife. So, the knife
will now be offered in evidence. But before the knife can be admitted, it
must first pass the test of admissibility. There must be a showing that this
particular knife he is exhibiting is the very same knife the accused used in
killing the victim. Otherwise, the court will not admit the evidence.

Normally, the above is done by presenting the policeman. He will

testify that he went to the scene of the crime, saw the dead body and the
accused with the knife in his hand. Then, the policeman disarmed him,
kept the knife and turned over the latter to their custodian. When the knife
is presented in court, the policeman will have to show the connection or
relation of such knife to the knife he took from the accused -- that this is the
very same knife used by the accused in killing the victim. Then, the knife is
now properly identified. But if there is no such statement or procedure,
then the object has not been properly identified.

An object not properly identified, when offered as evidence in court,

will be objected to by the other party. THE VERY SAME THING BEING
OFFERED IN COURT MUST BE THE VERY SAME THING WHICH IS IN
DISPUTE.

Another author made another classification of Object Evidence:

(a) that evidence which is imparted to the senses of the court with the aid
of testimony (demonstrative or illustrative evidence)
(b) that imparted directly to the senses of the court without the
intervention of the testimony (real object evidence)

DISTINCTION

(a) Demonstrative evidence has NO PROBATIVE VALUE in itself, but

serves merely as a visual aid to the court in comprehending verbal
testimony of a witness or other evidence; whereas Real Object evidence
has some HISTORICAL CONNECTION with the transaction giving rise to
the case.
(b) Demonstrative evidence is an item presented to the court but which
has NO CONNECTION WITH THE CASE; whereas a Real Object
evidence HAS CONNECTION (with the case).

For example: In a murder case, suppose A presents in court the gun

which was used to kill the victim. This is the REAL OBJECT EVIDENCE,
because the gun is related to the case. It has a historical connection to the
case.

Suppose the gun which was used to kill the victim has not yet been
recovered. The gun was seen by the police but somehow cannot be found.
The witness is asked by the Prosecution:
PROSECUTOR:

42
 What was the accused carrying?
WITNESS:
A gun.
PROSECUTOR:
Describe the gun ... (the prosecutor shows the witness samples
of guns) Which of these guns is similar in appearance to
the one used by the accused?

So, the samples shown have no historical connection with the case but
serve as a visual aid to help the judge and the parties arrive at a picture of
the crime.

This type of object evidence is only illustrative and helps the court in
visualizing how the original weapon looked like. But it has no connection to
the case.

When the real object evidence is formally offered in court, there is no

need to offer illustrative evidence.

Q: What is the weight of object evidence?

A: According to Justice Moran. object evidence is the best and highest
proof.
It leaves you impressed. As in a movie, when one asks somebody to
describe what he watched, it is still a different thing if one saw the movie
personally (To see is to believe). No matter how good a narration of the
story is by someone who saw it, the listener will not appreciate it as much
as when he saw the movie himself.

A Supreme Court justice describes the probative value of object

evidence. He compared object evidence with an oral testimony on how a
witness describes things. An immediate witness may forget, or
exaggerate, or understate what he knows, saw or heard, or what he did.
He may be biased in imparting the truth, or state half-truths when he
speaks before the court, in order to favor one party and prejudice the other.
Not so with silent witnesses, such as surrounding circumstances and facts,
or real evidence on the paper of object submitted. Such mute witnesses
play, if correctly understood and interpreted, show and reveal the whole
truth in all its nakedness, they hide nothing or add nothing without
prejudice.

If one will rely on witnesses, there is a possibility that they will forget,
exaggerate or understate. Their biases will come out. That is how
unreliable witnesses can be. But a mute and silent witness the object
itself is the highest form of evidence.

However there are times when the judge may disallow the object as
evidence, because of certain constraints or limitations. The following are
the LIMITATION:

43
44
(1) WHEN THE OBJECT IS IRRELEVANT TO THE FACT IN ISSUE.

It must have a connection to the fact in dispute. For example, a gun

presented in a case where somebody was murdered with the use of a gun.
Or, in a case involving the improvements on a piece of land, a photograph
will be useful. It must have some relevance. Objects, no matter how
beautiful, if not relevant, cannot be admitted.

(2) INDECENT OR IMPROPER OBJECTS SHOULD BE EXCLUDED

UNLESS THE SAME IS NECESSARY FOR ASCERTAINING THE
TRUTH.

EXAMPLE: In a rape case, the offended party has to describe what

actually happened. In the scene of the crime, may the accused be asked
to undress the victim so that we may know... That is too much. The court
will not allow that!

UNLESS the same is necessary. To a certain degree, there might be

exceptional cases where the court may decide to have it done. For
example, the victim made a statement about some birth marks on the body
of the accused. How come the girl knows that the birth marks exist? So,
as part of the demonstration, the court may require the accused to undress,
under exceptional conditions.

(3) REPULSIVE OBJECTS SHOULD ALSO BE EXCLUDED, IF NOT

ABSOLUTELY NECESSARY FOR THE ADMINISTRATION OF JUSTICE.

EXAMPLE: In a criminal case for consummated homicide or murder, the

body of the dead person (corpus delicti) or cadaver is not necessary or
literally brought to court to prove that a crime was committed. Death can
be proved by other means such as the testimony of witnesses, or the death
certificate. A death certificate is the most convenient proof of somebody.
The court will not allow the cadaver to be brought to court to form part of
the exhibit. The court would not would not allow that even if a party insists.
To do otherwise would be absurd. Suppose the case is brought on appeal,
would the party also send to the appellate court the cadaver? That is very
repulsive!

B. DOCUMENTARY EVIDENCE

SECTION 2. Documentary evidence. Documents as evidence

consist of writings or any material containing letters, words,
numbers, figures, symbols or other modes of written expression
offered as proof of their contents.

This is a new provision in the Rules. When one says documents

consist of writings... this normally means that this is in paper. But the law

45
says ANY MATERIAL containing letters, etc. Therefore, we can use any
material other than paper. For example, in preparing a contract, instead of
using the computer or typewriter, you decide to have the terms and
conditions of the contract carved on wood or engraved in bronze. That is
possible. That is still considered as documentary evidence.

1. Best Evidence Rule

SECTION 3. Original document must be produced; exceptions.

When the subject of inquiry is the contents of a document, no
evidence shall be admissible other than the original document itself,
except in the following cases:
(a) when the original has been lost or destroyed, or cannot be
produced in court, without bad faith on the part of the offeror;
(b) when the original is in the custody or under the control of the
party against whom the evidence is offered, and the latter
fails to produce it after reasonable notice;
(c) when the original consists of numerous accounts or other
documents which cannot be examined in court without great
loss of time and the fact sought to be established from them
is only the general result of the whole; and,
(d) when the original is a public record in the custody of a public
officer or is recorded in a public office.

The Best Evidence Rule This applies only to documentary

evidence. This is also known as the Rule of Exclusion. The Best Evidence
Rule (BER) operates as rule of exclusion because in order to prove the
contents of a document, one must produce the ORIGINAL. Any other
evidence is not allowed other than the original document.

For example: A sues B for breach of contract. There were

stipulations in the contract which B violated. A wishes to prove what those
stipulations are. The court asks B if he knows A. B says yes, because he
and A entered into a contract of sale last year involving Bs house and lot.
Was the agreement in writing? A answers yes. Counsel asks A: Would
you tell the court what are the terms and conditions agreed upon in the
deed of sale? Counsel for B: Objection. It violates the Best Evidence
Rule.

When one tries to prove the terms and conditions in a contract, the
contract itself must be produced. Oral testimony, even if the contents are
memorized verbatim, is objectionable. Even a photocopy is NOT
ALLOWED. Even a true copy is also NOT ALLOWED. What should be
presented in court should be the ORIGINAL DOCUMENT itself.

Suppose the question is: Mr. A, why do you know Mr. B? Mr. A:
We entered into a contract. Where is the copy of that contract?
Objection here is improper; because what is being proved is that there is a

46
contract. An objection would be false because what is being proved is not
the CONTENTS of the contract, but merely its EXISTENCE or
EXECUTION.

So, the principle is: When what is being sought to be established is

the execution, delivery or location of the contract, it is not covered by the
Best Evidence Rule.
The Supreme Court ruled that the BER cannot be invoked when the
evidence sought to be introduced concerns some external facts about the
documents, such as its existence or delivery, without reference to its
contents.

In a case, the accused is charged with bigamy. Prosecution

presented some witness who testified that they were present in the
wedding ceremony (the second marriage) of the accused. Defense says,
Objection, your Honor. the best evidence to prove the second marriage is
the marriage contract. In the absence of a marriage contract, we are
objecting to the testimony of witnesses. The invocation here of the BER is
IMPROPER, because the witnesses were presented not to prove the
contents of the marriage contract but to testify that the marriage ceremony
did take place. So, the BER here does not apply. According to the
Supreme Court: the BER does not apply to witnesses who testify on the
marriage ceremony because said ceremony is not the contents of a writing,
but the fact that she married.

The contents of a document must be relevant to the fact in issue. For

example, A is accused for the murder of B. ISSUE: whether or not A
murdered B. The star witness is X. As Xs story goes: On the night of the
murder, X was on his way to deliver a letter to the house of W. That was
when he accidentally saw the murder. So, X was asked in court where he
was on this particular date. X answered he was walking along the street
that night. Where was he headed? To the house of W to deliver a letter.
Counsel for A asks X what the letter was about. Counsel for B objects and
interjects that the best evidence would be the letter itself. But that is not
the issue. The letter is not relevant to the issue; it might have been a mere
invitation to a party. So, this can be done for it does not violate the BER.

The following are the EXCEPTIONS to the Best Evidence Rule:

(a) when the original has been lost or destroyed, or cannot be

produced in court, without bad faith on the part of the offeror

We will presume that the document has only one copy, because we
will know later on that an original may have two or more copies. In this
case, when all the copies are lost, only then can you present secondary
evidence. But if the original cannot be produced because you destroyed it,
then there is bad faith. You cannot offer secondary evidence if you are in
bad faith.

47
(b) when the original is in the custody or under the control of the
party against whom the evidence is offered, and the latter fails to
produce it after reasonable notice

The problem here comes in when the original document is in the

custody of the adverse party. For example, I sue him for breach of
contract. What I have are only the TRUE COPIES or PHOTOCOPIES. I
dont have the original contract. Under the law, I can present secondary
evidence, but the law required that before I am allowed to present such
secondary evidence, the party offering must first try to produce the original
copy in court. Only if he fails to produce such document and after
reasonable notice to the other party possessing the original copy has been
given may the party offering produce secondary evidence.

(c) when the original document consists of numerous accounts or

other documents which cannot be examined in court without great
loss of time and the fact sought to be established from them is only
the general result of the whole
For example, if you are the owner of a store such as the NCCC. How
do you prove your gross sales in one year? Through receipts, invoices,
etc. So, when a party wishes to prove its gross sales for the year, must it
present all the invoices and receipts? That would be too tedious and
impractical. Is there a way of proving gross sales other than bringing all the
invoices to court? Yes. Since what one intend to establish is the total (only
the general result of the whole) and the court allows the presentation of
Income Tax Returns, Financial Statements, or Balance Sheets.

Therefore, when there is an objection to the presentation of the ITR,

Balance Sheet or Financial Statement to prove annual gross sales, for
example, such should not be well-taken by the court as this case falls
under one of the given exceptions.

CIA. MARITIMA vs. ALLIED FREE WORKERS UNION

77 SCRA 24 (1977)

Facts: On August 11, 1952, Cia. Maritima (CM) and Allied Free
Workers Union (AFWU) entered into a written contract whereby
the Union agreed to perform arrastre and stevedoring work for
the Companys vessels at Iligan City, effective for one month. It
was stipulated that the Company would revoke the contract
before the expiration of the agreed term, if the Union failed to
render proper service. After a month, the contract was verbally
renewed. CM allowed the Union to continue performing
arrastre and stevedoring work.

On July 23, 1954, the Union sent a letter to CM

requesting it to recognize it as the exclusive bargaining unit, to
load and unload the cargo of its vessels in Iligan. The
Company ignored the request. The Union subsequently filed in

48
 the CIR a petition for certification election. Despite the
certification case, CM sent notice to the Union for termination of
their August contract. On August 31, 1954, CM entered into a
new contract with Iligan Stevedoring Association.

CM, in the original complaint, assailed that the termination

of the contract was due to the Union workers inefficiency and
that the Company suffered financial losses due to such
inefficient service. To ascertain its annual losses, Jose Teves,
CM Iligan Branch Manager, hired auditors. CM relied only upon
such auditors report and presented in court only a summary of
damages. The sales invoices were not produced.

Issue: whether or not the non-submission as evidence of the

records of the alleged losses of the Company is excused
because of the rule exempting voluminous records from being
produced in court.

Holding: The best evidence of the Companys losses would

have been the sales invoices instead of the Managers oral
testimony.

The rule that when the original consists of numerous

accounts or other documents which cannot be examined in
court without great loss of time, and the fact sought to be
established from them is only the general result of the whole,
the original writing need not be produced CANNOT BE
APPLIED because the voluminous character of the records on
which the accountants reports were based WAS NOT DULY
ESTABLISHED. It is also a requisite for the application of the
rule that the records of accounts should be made accessible to
the adverse party so that the correctness of the summary may
be tested on cross-examination.

An audit made by a private auditor or the testimony by

him is INADMISSIBLE in evidence as proof of the original
records, books of accounts, reports, or the like. The pertinent
records should have been produced; otherwise, conclusions,
inferences or opinions of the auditor are inadmissible.

The chief clerk, who was not presented as a witness,

cannot be replaced by statements of the accountant, for it is
HEARSAY; for the accountant was not the one who made the
alleged records but the chief clerk.

Note that the records can still be brought to court or outside the
courtroom to establish their voluminous character.

49
(d) when the original is a public record in the custody of a public
officer or is recorded in a public office

EXAMPLE: Birth Certificate. That is recorded in the Office of the Civil

Registrar. You do not keep the original copy. If you wish to prove that you
were born on this date for the purpose of taking the Bar Exams, for
example, the Civil Registrar will give you a CERTIFIED TRUE COPY.
Under the law, a certified true copy is in violation of the BER because one
is supposed to present the original. But the original is a public document,
recorded in a public office where one cannot get it. That document is
owned by the government. Because of the exception, a certified true copy
issued by a public officer is admissible. It has the same force and effect as
the original itself.

The BER states that the original must be produced. But what do we
mean by original?

SECTION 4. Original of Document.

(a) the original of a document is one the contents of which are the
subject of inquiry;
(b) when a document is in two or more copies executed at or about
the same time, with identical contents, all such copies are equally
regarded as originals;
(c) when an entry is repeated in the regular course of business, one
being copied from another at or near the time of the transaction, all
entries are likewise equally regarded as originals.

This is so because the word original would refer to two documents

executed at the same time.

Example of (a): A case involving a newspaper reporter who typed a story

and submitted the same to his editor. The editor published the story in the
newspaper. QUESTION: Which one is considered the original? Is it the
story which was typewritten by the reporter, or is it the story that was
actually printed or published in the newspaper? ANSWER: It depends. If
the issue is the subject of inquiry, the original would be the story as
prepared or typed by the author. But if the issue to be established is
whether the published story is libelous or not, the original is the story which
appeared in print. The original, therefore, depends on the case.

ANOTHER ILLUSTRATION: I send you a telegram. Naturally, I will

prepare a transmission form. Then, the telegram company transmit it to the
receiver. QUESTION: Which is now the original? Is it the message which
I wrote down, or is it the copy of the telegram as received? ANSWER: It
depends on the subject of inquiry. If we are talking about the message as
received, then the original is the copy of the message sent to the
addressee.

50
(b) when a document is in two or more copies executed at or about
the same time, with identical contents, all such copies are equally
regarded as originals;

The word original has a legal meaning which is stated in this second
paragraph. A good example would be a typewritten contract. When you
type up a contract, you prepare also a carbon copy or copies. Afterwards,
the parties sign each and every copy. QUESTION: which one is the
original? From the viewpoint of the typist, the original is the first copy. The
carbon copy or copies are not original. But from the viewpoint of the law
on evidence, the original includes carbon copies which were signed by the
parties.

So, when a party produces in evidence a carbon copy to prove all

contents of a document, you cannot object on the ground of violation of the
BER because actually, he is producing the original. The copy is the one
which has no signatures.

This paragraph was not found in the 1964 Rules on Evidence.

Carbon copies were then regarded as originals, but the Rules did not
expressly state it. Now, the 1989 Revised Rules on Evidence states this
provision.

In the old case of People vs. Quiones and People vs. Tan (107 Phil.
1242), the Supreme Court said: for a carbon copy to be original, the
signature of the parties on all the copies must be made by the same stroke
of the pen.

But that is not how it is being done now in actual practice. That is not
how parties sign a contract consisting of 5 or 7 copies. Usually, the parties
sign one copy after another. So every copy is signed by a different stroke
of the pen. Therefore, based on the ruling in the given cases, the carbon
copies are not considered originals, because the signatures were not made
by the same stroke of the pen.

However, the Supreme Court changed its mind in later cases. In the
case of PNB vs. Ulila, the same stroke-of-the-pen rule was not applied.
Meaning, if the parties signed the copies one after another, although there
were different strokes of the pen, all of them are equally regarded as
originals.

Presently, the same stroke-of-the-pen rule is not anymore

recognized. According to the law, executed at or about the same time --
meaning. one after the other.

(c) when an entry is repeated in the regular course of business, one

being copied from another at or near the time of the transaction, all
entries are likewise equally regarded as originals.

51
 Take note that this is different from (b). For example, there are many
books, e.g., accounting books, where you make entries, not contracts.
Then when you make each entry, you sign each and every one of them.
QUESTION: which of these books is the original? ANSWER: All of them
are considered as originals, because they were copied from another in the
regular course of business.

This may be similar to (b). But this refers to entry books other than
carbon copies. This provision appears in the 1940 and 1964 Rules. This is
actually the basis of the ruling on carbon copies considered as originals
prior to the 1989 Rules. That is why the situation being contemplated in the
cases in (b) and (c) seem to be quite identical.

2. Secondary Evidence

SECTION 5. When original document is unavailable. When the

original document has been lost or destroyed, or cannot be produced
in court, the offeror, upon proof of its execution or existence and the
cause of its unavailability without bad faith on his part, may prove its
contents by a copy, or by a recital of its contents in some authentic
document, or by the testimony of witnesses in the order stated.

The requisites for this Section to apply are, as appearing in the

leading case of Tan vs. CA (infra):
(a) it must be shown that an original was indeed duly executed;
(b) that such original has been lost, destroyed or unaccounted for, without
bad faith on the part of the offeror; and,
(c) if there are several copies, all must be accounted for

Q: What are the kinds of secondary documents?

(a) by copy of the original (photocopy)
(b) by a recital of its contents in some other authentic documents;
(c) by testimony of witnesses.

When proving a lost document by secondary evidence, the

abovementioned ways must be followed in that order. Meaning -- a lost
document must be proved first by a copy of such document, or if no copy
exists, then by a recital of it in some other document, or by testimony of
witnesses.

Q: What is meant by a recital of its contents in some other authentic

documents?
A: This means that the lost document has been referred to in another
document, or is copied verbatim in another instrument. EXAMPLE: A and
B entered in to a contract of sale, and executed the corresponding
document. A was in the habit of writing the occurrences of the day in his
diary. So, he wrote the contents of the contract he entered into with B in
his diary. Unfortunately, the original Contract of Sale is lost, A can proved
the contents of such contract through his diary.

52
TAN vs. CA
137 SCRA 278

Facts: Eden Tan arrived from Hongkong, at the Manila

International Airport, appearing to be restless and as if she was
looking for somebody. When she was assigned to a particular
customs examiner, she refused to be examined, and she
moved around the examination room of the arrival area of the
airport. The chief of the customs agents, after observing her
behavior, assigned her to Customs Examiner Macud. While her
baggage was being examined, she appeared uneasy and
restless. The airport Customs Collector approached her and
advised the examiner to make a thorough examination of her
baggage. Thereupon, fancy jewelries and stones, and a large
amount of cash were found. The baggage declaration shown to
Macud merely mentions personal effects.
Seizure proceedings were instituted in the Bureau of
Customs against Tan for violation of Sec. 3602 of the Tariff and
Customs Code. A criminal proceeding was also instituted in the
Circuit Criminal Court.

In the Circuit Court, appellant contended that it is an error

for the prosecution to present secondary evidence to prove the
existence of the smuggled goods without presenting the
baggage declaration, which was allegedly lost. Secondary
evidence presented were the testimonies of witnesses
Manansala, Diaz and Malud, Customs Policeman and
Examiners.

The Circuit Court found Tan guilty. Tan appealed to the

CA, which affirmed the lower courts decision. This is a petition
for certiorari from such decision of the CA.

Issue: whether or not secondary evidence is admissible

absent the proof of the loss of the baggage which is the best
evidence?

Holding: It is conceded that petitioners baggage declaration is

the best evidence of the contents thereof. However, the
general rule provides that reasonable search shall be made for
it in the place where it was last found, being the best evidence
of the prosecution. It is safe to assume that the Fiscal
undertook the necessary search, but that the declaration could
not be found.

This justifies then the application of the exception to the

best evidence rule which admits secondary evidence in cases

53
 when the original document is lost, destroyed or cannot be
produced in court (Sec. 2 of Rule 130) in relation to Sec. 4
which allows proof by a copy, recital of its contents, or
testimony of witnesses -- in this case, the officers who searched
the baggage.

Reasonable search shall be made for the lost document

in the place where it was last known to have been, and if such
search does not discover it, then inquiries must be made of
persons most likely to have its custody or who have reasons to
know of its whereabouts x x x

There is no inflexible definition under which you can give

a definite pattern. The sole object of such proof is to raise a
reasonable presumption merely that the instrument is lost. And
this is a preliminary inquiry addressed to the discretion of the
judge. One must satisfy the court that he really looked for the
instrument by giving details of his search. He must prove that
he had exhausted all means in locating the missing document.
The search must NOT HAVE BEEN MERELY PERFUNCTORY.

SECTION 6. When original document is in adverse partys custody

or control. If the document is in the custody or under the control of
the adverse party, he must have reasonable notice to produce it. If
after such notice and after satisfactory proof of its existence, he fails
to produce the document, secondary evidence may be presented as
in the case of its loss.

This refers to the second exception to the BER. The document is not
lost or destroyed, but is in the possession of the adverse party. Obviously,
here, there is only one copy of the document. For one to be able to present
secondary evidence similar to the case of loss or destruction, the important
requirement is for him to give the ADVERSE PARTY REASONABLE
NOTICE to produce the document in court. Then, if, during the trial, he is
able to prove in court that he gave the adverse party notice, but the latter
did not bring it, he can now ask the court to allow him to present the
secondary evidence.

Q: How can one make the adverse party bring the document to court?
A: By subpoena duces tecum. He can subpoena the adverse party,
although that is not necessary. What the rule only says is that one has to
give the adverse party reasonable notice and time to produce the
document.

EXAMPLE: Counsel for Plaintiff: Mr. Defendant, pursuant to Sec. 6 of

Rule 130 of the Rules on Evidence, I am requesting you to produce in court
on this day, during the trial, the original of this document. Failure on your
part to produce the original will entitle me to produce secondary evidence.

54
 During the trial, counsel for plaintiff presents a copy of the notice to
the court. If the defendant did not bring the document asked for, then he
(counsel for plaintiff) may proceed to present secondary evidence to the
court after asking for the courts permission to do so.

Therefore, to summarize the requisites for this Section:

(1) proof of the existence or execution of the document;
(2) the giving of reasonable notice to the defendant to produce the
original document; and,
(3) if there are other copies of the original, all must be accounted for.

Q: Is there an instance or instances where a party presented secondary

evidence on the contents of an original document which was in the
possession of the adverse party, and yet this was allowed despite the fact
that reasonable notice was not given to the adverse party? Meaning, is
there an exception to the rule that one is required to give reasonable notice
in such cases?
A: The exception was laid down by the Supreme Court in the 1956 case of
Ready Mix Concrete Co. vs. Villacorta, which was asked in the 1974 Bar
Examinations.

An illustration of the situation: This is very common especially in the

business community. Some people in the hardware business have
frequent customers who, due to the volume and frequency of their
purchases, buy the goods on credit. When the storeowner wants to collect,
he sends the Statement of Accounts to the customer. He also attaches to
this Statement all the invoices that have been previously signed -- so that
the customer can verify that his signatures are really on the invoices.
(Usually, the storeowner sends to the customer the original copy of the
invoices because signatures would usually not be clear enough if the
carbon copies are sent instead.) Practically, thus, the storeowner has
surrendered all of the original invoices to the customer. The customer
acknowledges receipt of all these invoices.

Now comes the customer who refuses to pay for all his alleged
purchases. Naturally, the storeowner sues the customer. So, the
storeowner has to present evidence in court. But the original invoices are
in the possession of the adverse party. If the carbon copies of the invoices
are offered as evidence, the adverse party will object on the ground that the
BER is violated.

According to the Supreme Court: when the adverse party has

acknowledged receipt of the original in this example, by affixing his
signature to the statement of accounts from plaintiff, there is no need for
the court to require the plaintiff to produce the original document in court.

SECTION 7. Evidence admissible when original document is a public

record. When the original of a document is in the custody of a

55
public officer or is recorded in a public office, its contents may be
proved by a certified copy issued by the public officer in custody
thereof.

This is the fourth exception to the BER. The original is a public

record, and you wish to prove the contents of such original. But the
problem is that you cannot get it. The government will not surrender to you
the original which is part of its public records. The most that the custodian
can do for you is to give you a CERTIFIED TRUE COPY, an accurate copy
of the original which is signed by, for example, the Civil Registrar or the
Registrar of Deeds.

Q: Can you present in court this certified true copy? And is it admissible
and not in violation of the BER because the original is not presented?
A: A certified true copy is admissible. It is not violative of the BER because
it is considered as an exception. A certified true copy issued by the public
officer who is the custodian, has the force and legal effect as the original
itself.

SECTION 8. Party who calls for document not bound to offer it. A
party who calls for the production of a document and inspects the
same is not obliged to offer it as evidence.

For example, X will have a document brought to court either by way

of Notice to Produce to the adverse party or by subpoena duces tecum.
When X looks over the document, he finds that nothing favorable to or
supportive of his case. X decides not to offer it as evidence. even if it was
X who asked that the document be produced in court, when he inspects it
and finds nothing relevant in it with respect to his case, he is under no
obligation to offer the same as evidence in court. This is not tantamount to
depriving the court of its opportunity to see the truth. No party to a case is
expected to supply its opponent with the very rope to hang the formers
neck. Anyway, the other party is also prevented by law from using the said
evidence in its favor.

The principle here is similar to that in depositions. A person who

takes the deposition of somebody does not necessarily make him his
witness. Unless the party offers the deponents deposition in court as a
testimony in its favor.

Section 8 is limited to production and inspection.

3. Parol Evidence Rule

SECTION 9. Evidence of written agreements. When the terms of

an agreement have been reduced to writing, it is considered as
containing all the terms agreed upon and there can be, between the

56
parties and their successors in interest, no evidence of such terms
other than the contents of the written agreement.
However, a party may present evidence to modify, explain or add
to the terms of the agreement if he puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the written
agreement;
(b) The failure of the written agreement to express the true intent and
agreement of the parties thereto;
(c) The validity of the written agreement;
(d) The existence of other terms agreed to by the parties or their
successors in interest after the execution of the written agreement;
The term agreement includes wills.

Parol evidence literally translated means ORAL or VERBAL

TESTIMONY of a witness. So, when a witness testifies in court, he says
something there; the adverse party through counsel asks him a question,
the witness gives his answer. That is verbal testimony. Other names by
which Parol Evidence is known are: EXTRINSIC EVIDENCE (extrinsic,
meaning, it is something not found in the written agreement itself) and
EVIDENCE ALIUNDE.

EXAMPLE: A and B entered into a contract. The stipulations are the

matters they have agreed upon. Subsequently, A sues B for breach of
contract because B allegedly violated stipulations 2, 3 and 4. B says that
he did not violate the said stipulations. Why? B claims that he cannot be
considered to have violated the said stipulations because of the existence
of another condition. He contends that only under the said additional
condition can he be held liable. But what is that condition? It is not in the
contract itself. B says that the additional condition was merely verbally
agreed upon by them. So, in effect, B is trying to prove orally that an
additional condition or stipulation exists, which cannot be found in the
contract.

Under the Parol Evidence Rule, As counsel can object. What is the
rule? When the agreement is in writing, the presumption is that all the
terms and conditions agreed upon are written down in the contract. So, no
one has the authority to qualify, alter, vary or change the terms of a
completely written agreement. No one can inject other qualifications which
are not in writing. Otherwise, evidence being presented with respect to
anything that is not in the contract is inadmissible.

Another way of saying it is: Once a document has been executed as

confirmation of the negotiations between the parties, no one may offer
parol or oral evidence -- the effect of which would be to vary or to alter the
terms of the contract.

The Supreme Court says that the reason for this rule is that when
parties have reduced their agreement to writing, it is presumed that they
have made the document the only repository and proof of the truth; and

57
whatever is not found in the document is understood to have been waived
or abandoned. It is not logical for the parties to reduce into writing only
some of the terms they have agreed upon, and to not put into writing the
rest. When businessmen enter into negotiations and reduce the same into
writing, the presumption is that everything has been agreed upon.

PASTOR vs. GASPAR

Facts: X borrowed from A a certain amount of money to

purchase vehicles for a transportation business. As a security
for the payment of the loan, he pledged certain chattels. So,
they executed the corresponding document. It was either a
contract of pledge or a contract of chattel mortgage. When X
failed to pay on the due date, A sued X. During the trial, X tried
to prove through his testimony that the real agreement between
him and A was a PARTNERSHIP. Because if the contract was
indeed one of partnership, whatever financial losses in the
business should be shouldered by both the partners. A claims
that the vehicles were pledged to him as security for the loan.
X claims that as a partner, the money borrowed by him was As
contribution to the partnership.

Issue: Is the testimony of X admissible?

Holding: No, Xs testimony is inadmissible. The written

agreement being a loan secured by a pledge, under the Parol
Evidence Rule, its nature cannot be varied by oral testimony.

EVELAND vs. EASTERN MINING CO.

Facts: Eastern Mining hired the plaintiff as its mining engineer.

there was an agreement as to the amount of his salary, his
entitlement to housing allowance, gasoline allowance,
entertainment allowance, etc. And then it happened that
plaintiff was not paid his allowances. So plaintiff sued the
company.

According to the company, their agreement was that the

allowances would be paid to plaintiff in full only if their business
would improve. However, the business did not improve. That is
why plaintiff could not get the promised allowances.

Plaintiff presents the contract in court and does not find

any phase which would support the companys contention.

Issue: Is the management allowed to prove the alleged

condition that the allowances due the mining engineer would be
paid him only if the business would turn out to be successful?

58
 Holding: The oral testimony to prove the said condition is not
admissible., because said oral testimony tends to vary a
condition not appearing in the written contract. The rule is that
conditions qualifying the operation of a clear and complete
written agreement or contract cannot be proved by parol or oral
evidence.

(a) An intrinsic ambiguity, mistake or imperfection in the written

agreement;

Q: What happens if there was failure to raise the objection?

A: The result is waiver. Meaning, the evidence becomes admissible
because this rule is for the benefit of parties in the contract.

If one intends to present oral evidence in court under this exception,

the law requires for him to raise it earlier in his pleading. Otherwise, it will
be deemed waived.

EXAMPLE: There is an ambiguity or mistake in the writing or document.

How can that be corrected? By oral evidence. But in order to do that in the
pleading, the complainant or defendant, as the case may be, must raise
that as an issue. for example, that the agreement was a mistake. That the
agreement being like this, it has an intrinsic ambiguity in it.

Q: What does ambiguity mean?

A: That the agreement is susceptible of two or more interpretations. And
when the law is vague, one needs to resort to the rules of statutory
construction. The same goes with contracts.

Based on the law, there are two types of ambiguity. INTRINSIC and
EXTRINSIC. What is curable by oral, verbal or parol evidence is the
INTRINSIC type. The extrinsic type is not mentioned in the law.

Intrinsic ambiguity means an ambiguity which does not appear on the

face of the writing or agreement, but lies hidden in the person, or thing, or
subject whereof the writing or agreement bespeaks. The ambiguity is
hidden; it cannot be detected by simply reading the document. Another
term for intrinsic ambiguity is LATENT AMBIGUITY.

An example of an ambiguity which is hidden: A executes his Last Will

and Testament. In it, he said: I hereby leave a legacy of one million pesos
in favor of my friend, Juan de la Cruz. In the study of Succession, that is
valid and allowed. one may leave a legacy in favor of a third person. So,
eventually, A died. His will was probated. But the problem now is that he
has 3 friends who are all named Juan de la Cruz, and each one is claiming
the legacy. Obviously, there is an ambiguity in the will.

Although there is a problem as to who among the 3 Juan de la

Cruzes is referred to by A in his will, obviously, A was referring to only one

59
of them. But still, when you read the document, there is no ambiguity at all.
The ambiguity surfaced only later. One of the Juan de la Cruz wants to
prove that he is the person being referred to in the will. So he presents oral
testimony to clarify the doubt. Is that allowed? Yes. This is an example of
an intrinsic ambiguity which is curable by parol evidence.

As stated in the last paragraph of Section 9, parol evidence does not

apply only to contracts but also to Last Will and Testaments.

ANOTHER EXAMPLE: A sold, donated or willed to B, placing in the

document the following: I hereby sell, donate or give to B my commercial
lot (Lot No. 101) consisting of 350 square meters situated at the corner of
San Pedro and Legaspi Streets... It was later discovered that A does not
actually own a commercial lot consisting of 350 square meters situated at
the corner of San Pedro and Legaspi Streets. But A does own a
commercial lot, also 350 square meters in area but located at the corner of
San Pedro and Anda Streets.

SCENARIO: By looking at the instrument or contract, there seems to be

nothing wrong. But when you look at the property, the ambiguity arises.

Q: Can oral testimony be presented precisely to prove that actually there

was merely an erroneous description of the property which is the subject
matter of the sale or donation? That what was actually intended by A was
the lot located at the corner of San Pedro and Anda Streets?
A: Yes. There is a maxim in evidence known as falsa demonstration non
nocet, which was asked before in the Bar Exams, and which simply means
that a false description does not vitiate a writing; provided, sufficient
description remains as would identify the thing, or person intended.

Q: Is the sale or donation in the above case deemed avoided?

A: No, because there is still something in the description which would
identify the subject matter -- the same lot, number, the same size of area,
and it is also a commercial lot. The wrong address was just an oversight.

The other type of ambiguity is EXTRINSIC. It is defined as an

ambiguity which appears on the face of the writing or agreement itself. It is
sometimes called PATENT AMBIGUITY. By reading the document, the
ambiguity becomes obvious.

EXAMPLE: I hereby donate to you something. What something is that?

The donee claims that the something is a 100 hectares of land. He will
present oral evidence to prove that it was what it means. But the heirs of
the donor disagree and claim that the something reefers to a dog only.

Q: Can that type of ambiguity be cured by parol evidence?

A: No. Since the instrument does not specify the subject matter, it is
VOID. Since it is void, no amount of evidence will validate it. Conclusion:

60
Patent ambiguity cannot be cured by parol evidence because the
instrument or contract is null and void for lack of a subject matter.

Q: Differentiate the above from falsa demonstratio non nocet.

A: In Falsa demonstratio non nocet, there is an identifiable subject matter.
Only, the description is unclear. There is something left to be identified.
But when something will be given to somebody -- this a vague provision
which cannot really be implemented. The principle here is: If the
description is totally zero, this PATENT AMBIGUITY.

To know the language of the Supreme Court in matters respecting

patent ambiguity, in the case of Borillo vs. CA. It commented on the parol
evidence rule: parol evidence is not admissible to identify the property
where the description thereof is so vague as to amount to no description at
all. Parol evidence is not permitted to supply a description, but only to
apply it. Because this is intrinsic ambiguity.

BORILLO vs. COURT OF APPEALS

209 SCRA 130

Facts: On February 10, 1977, petitioner, for herself and on

behalf of her children, filed before the court a complaint against
private respondent and Marcos Borillo for the recovery of
several parcels of land located at Abra. In this complaint,
petitioner alleges that the parcel of land were originally owned
by her late husband, Elpidio Borillo. Although said lands were
unregistered, they were declared in 1948, in the name of
Elpidio under a Tax Declaration. Elpidio had been in peaceful,
public, continuos and uninterrupted possession thereof in the
concept of owner even before his marriage to petitioner until his
death.

Despite repeated demands, Marcos and private

respondent Catalina Borillo refused to return the property to
petitioner. In their answer, private respondent claims that the
parcels of land were sold to her by her late brother, Elpidio, in
1835, while Marcos claims sale of one of the parcels of land by
Elpidio in 1937, long before the marriage of Elpidio to petitioner.
At the trial, private respondent relied heavily on a private
document purportedly showing that Elpidio sold to her all his
property for P40.00. Marcos claimed that the deed of sale
evidencing the sale to him was lost during the war.

The lower court awarded the properties to petitioner

herein. Catalina Borillo appealed and was sustained by the CA.

Issue: whether or not parol evidence is admissible to prove the

description of the subject matter of a deed or other writing.

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 Holding: The petition is meritorious.

In reversing the findings of the trial court, the CA justifies

the deficiencies and discrepancies saying that the absence of
specifications as to what property was sold is understandable
because they were brothers and sisters. It added that this
defect was cured by testimonial evidence.

However, before parol evidence to aid the description of

the subject matter of a deed of other writing, there must be a
description that will serve as a foundation for such evidence.
Parol evidence is not permitted to supply a description but only
to apply it. Parol evidence is not admissible to identify the
property where the description thereof is so vague as to amount
to no description at all.

According to Wigmore, aside from extrinsic and intrinsic ambiguity,

there is a third type, a middle-ground. He calls it intermediate ambiguity.
This is an ambiguity arising from the use of words susceptible of different
interpretations. This is curable by parol evidence. Sections 10 to 19 on the
interpretation of documents will be useful here. So, when the document is
vague, one does not declare the contract or document as void, but subjects
the same to the rules on interpretation. These rules allow the presentation
of parol evidence.

EXAMPLE: In the case of Palanca vs. Wilson, an apparatus or machine

used to convert alcohol to wine or rhum is the subject of a deed of sale. In
the contract, the machine is described as of 6000 liters capacity. It turned
out that the word capacity can have two meanings -- working or
producing. Which could have been intended by the parties? Because if
you would look at the contract, it is unclear. Thus, the Supreme Court said:
Parol evidence may be admitted to explain the ambiguity and to determine
the intention of the parties.

Q: Cite at least five (5) rules on the interpretation of contracts. (bar

question)
A: Aside from Sections 10 to 19 of Rule 130 of the Rules on Evidence, see
also Articles 1370 to 1379 of the New Civil Code.

Under paragraph (a) of Section 9, aside from intrinsic ambiguity, there

can also be a MISTAKE in the document or agreement. A mistake can be
cured. But what kind of mistake? A mistake of fact; not a mistake of law.
The latter is not curable since everybody is presumed to know the law
anyway. For parol evidence to apply, the following are the requisites:
(1) there is a factual mistake;
(2) the mistake is common to both parties to the instrument; and,
(3) the mistake is proved by clear and convincing evidence.

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 Another exception to the Parol Evidence Rule under paragraph (a) is
when there is an IMPERFECTION in the written agreement. this
imperfection may be explained or cured by parol evidence.

Q: What does imperfection mean?

A: It simply means that the writing is incomplete, and does not show the
whole agreement of the parties but defines only some of its terms.

Q: How does one convince the court that the agreement is imperfect or
incomplete?
A: According to the Supreme Court, the best evidence is the document,
contract or writing itself. By reading it, one would find out if there are terms
agreed upon that were omitted. So, in order to supply the deficiency, parol
evidence may be allowed; provided that it is raised in the pleading.

(b) The failure of the written agreement to express the true intent and
agreement of the parties thereto;

The perfect example here is an action for the reformation of a

contract. You raise in your complaint that the agreement actually does not
express the true intent of the parties. You put that in issue. In effect, you
are asking that the written contract be changed to reflect what was actually
agreed upon.

A more specific example: An agreement which appears to be a deed

of sale but is in reality an equitable mortgage. This is an agreement which
does not reflect the true intention of the parties. Oral evidence is allowed to
prove the real nature of the agreement. Acording to the Supreme Court,
courts of equity go through and beyond that which appears in a contract, in
order to determine the real agreement of the parties. And toward that end,
oral and written evidence are admissible to determine the real agreement.

ORTAEZ vs. CA
266 SCRA 561

Facts: Private respondents sold to petitioner two parcels of

registered land for a consideration of P35,000.00. However,
private respondents failed to deliver the titles to petitioner. They
refused on the ground that petitioners acquisition of the titles is
subject to certain conditions. Offshoot, petitioner sued private
respondents for specific performance.

During trial, private respondents orally testified that the

sale was subject to conditions, although such conditions were
not incorporated in the Deeds of Sale. Despite petitioners
timely objections on the ground that the introduction of said oral
conditions was barred by the Parol Evidence Rule, the lower
court nonetheless admitted them and eventually dismissed the
complaint.

63
 Issue: admissibility of parol evidence to establish alleged oral
condition precedent to a contract to sale, when the deeds of
sale are silent on such conditions.

Holding: The parol evidence herein introduced is inadmissible.

Private respondents oral testimony on the alleged conditions,
coming from a party who has an interest in the outcome of the
case, depending exclusively on human memory, is not as
reliable as written or documentary evidence. Spoken words
could be notoriously unreliable, unlike a written contract which
speaks of a uniform language. Considering that the written
deeds of sale were the only repository of the truth, whatever is
not found in said instruments must have been waived and
abandoned by the parties. Examining the deeds of sale, we
cannot even make an inference that the sale was subject to any
condition. As a contract, it is the law between the parties.

Although parol evidence is admissible to explain the

meaning of a contract, it cannot serve the purpose of
incorporating into the contract additional contemporaneous
conditions which are not mentioned at all in the writing unless
there has been fraud or mistake. No such fraud or mistake
exists in this case.

(c) The validity of the written agreement;

Here, one will present oral evidence to prove that the contract is not
valid, for example. But first, it must be raised in the pleading.

EXAMPLE: A sells to B his land for P1 million. They draw up and sign a
deed of sale. So: In consideration of One Million Pesos, receipt of which
is hereby acknowledged in full,... I hereby sell this property to B xxx. But B
says that he has to go the bank to secure managers cheques as P1 million
is too large an amount to be paid in cash. A agrees to wait for B, while B
brings him the deed of sale and the title to the land. But B never came
back, because he went straight to the Registry of Deeds to have the title of
the property transferred over to him. PROBLEM: How does A prove that B
never paid him the agreed consideration when the deed of sale has been
duly acknowledged and the sale duly registered? ANSWER: A will prove,
through his testimony, that he never received the consideration.

Based on the general rule, A cannot really prove that he did not
receive the money, because the documents will show otherwise. Any
attempt on the part of A to do so will be objectionable. However, since he
filed the case to nullify the deed of sale in effect, he is raising the issue
on the validity of the said instrument. So, in this case, parol evidence is
allowed to prove lack of consideration.

64
 As a matter of fact, according to the Supreme Court, when one is
trying to prove such an issue as the validity of the instrument, he is not
varying the terms of the agreement. But he may be proving that there is no
agreement or contract at all. He may even be proving that there is actually
no agreement which is binding.

(d) The existence of other terms agreed to by the parties or their

successors in interest after the execution of the written agreement;

Briefly, these are SUBSEQUENT AGREEMENTS. Subsequent oral

agreements are not covered by, nor are considered as exceptions to the
Parol Evidence Rule.

HISTORY: In the 1964 Revised Rules of Court, this exception does not
appear. What appeared there were only ambiguity, mistake, imperfection,
failure to express the true intent and validity. The rest of the terms were
added in the 1989 Rules. But even without this exception in the 1964
Rules, it was still considered an exception because of judicial
pronouncements. Judicial pronouncements have placed subsequent oral
agreements beyond the scope of the parol evidence rule. The 1989 Rules
just formalized or incorporated this. But this has always been considered
as part of the exceptions.

EXAMPLE: B borrowed money from A. For this, B signed a promissory

note in favor of A. Maturity date was fixed at July 3, 1995. When July 3,
1995 came, B did not pay. Thus, A sues B for payment of the due account.
Bs defense is that the amount is not yet due because after the execution of
the promissory note, A agreed to extend the period of payment to until
December 3, 1995. But B claimed that this agreement was reached by
them only verbally. What is B proving here? An oral agreement which
happened after the execution of the promissory note. Can this be done?
Yes. B can testify orally in court on the subsequent oral agreement that he
had with A. The extension resulted in the novation of their previously
agreed-upon maturity date. PRINCIPLE: The parties cannot incorporate in
the contract or instrument something that they will still agree on in the
future.
Take note that what is guaranteed by Sec. 9 is only the
ADMISSIBILITY of the evidence. It does not guarantee the CREDIBILITY
or WEIGHT of the evidence. The court may or may not believe your story.
Admissibility is different from credibility.
ALSO: It is awkward for the parties to make oral agreements, later reduce
the agreement into writing, and leave out some of the agreements. All prior
agreements are deemed incorporated in the written agreement. This is
sometimes called the INTEGRATION OF AGREEMENT RULE.

ILLUSTRATION:
Prior oral agreement NOT PROVABLE
June 15 1995 BY PAROL EVIDENCE

65
July 3, 1995 Contemporaneous PROVABLE BY
date of written oral agreement PAROL EVIDENCE
agreement July 3, 1995

Subsequent PROVABLE BY
oral agreement PAROL EVIDENCE
August 14, 1995

(1) All prior oral agreements are covered by the Parol Evidence Rule.
They cannot be proved by oral testimony because the presumption is that
everything was agreed upon by the parties is incorporated in the written
agreement. This provisions exact opposite is paragraph (d) of Sec. 9.
(2) Contemporaneous oral agreement On July 3, 1995, the agreement
was put into writing. But on the same date also, there was another
agreement, but oral. This is a contemporaneous oral agreement.

(3) Subsequent oral agreements are exceptions to the Parol Evidence

Rule because they cannot be integrated in the July 3, 1995 written
agreement. The parties cannot be expected to incorporate in the written
agreement something which they will still agree in the future.

Q: Is contemporaneous oral agreement covered by the Integration of

Agreement Rule?
A: Yes. It is covered BUT WITH EXCEPTION. Because if on July 3, 1995,
the parties really agreed upon something and subsequently executed the
contract governing the transaction, then everything has to be included in
the written agreement. The general rule for contemporaneous oral
agreements actually is that it is not provable by parol evidence because of
the presumption that everything agreed upon is integrated in the written
agreement.
However, there is an exception: if such oral agreement can be
classified as COLLATERAL. An agreement is considered a collateral
agreement if it pertains to something SEPARATE and distinct from the
written agreement. Such collateral agreement may be proved by parol
evidence. This was laid down by jurisprudence prior to the 1989 Rules.

Q: What oral agreements may be proven by parol evidence based on

jurisprudence?
(1) subsequent oral agreement or agreements entered into after
the execution of the written agreement; and,
(2) collateral oral agreements which are separate and distinct.

Q: In contemporaneous oral agreements, when are collateral agreements

considered as separate and distinct?
(1) they are separate and distinct if the subject matter of written
agreement is separate and distinct from the subject matter of the

66
 contemporaneous oral agreement. There is no violation because
the written agreement is not being altered or varied.
(2) the contemporaneous oral agreement is separate and distinct,
even if the subject matter of the written agreement and oral
agreement are the same, if the collateral oral agreement can be
separated from the oral agreement. This can still be proved by
parol evidence.

EXAMPLE: A sells his house and lot to B. For a consideration of P2

million, A transfers ownership over the same to B. However, for a month
after the sale, A refuses to vacate the premises. So B files a case against
A for not surrendering possession of the property. In court, A says that he
and B agreed that after the sale, A would continue occupying the property
for 6 months no longer as the owner but as lessee. So, what A is trying to
prove is an oral agreement of lease of the same subject matter as in the
deed of sale.

Counsel for B objects on the ground of violation of the Parol Evidence

Rule. QUESTION: Is this a valid objection? ANSWER: No, there is no
violation of the Parole Evidence Rule. The subject matter in the written
agreement here is the same as in the oral agreement B is trying to prove.
But the deed of sale is different (separate and distinct) from the oral
agreement of lease. Therefore, A can validly present oral evidence to
prove whether or not there actually was an oral agreement of lease
between him and B after the sale of the property. By trying to prove the
oral agreement of lease, A is not altering, modifying or adding to the written
contract.

ANOTHER EXAMPLE: C sells his land to D. After one year, C tries to buy
back the land. C tells D that they had a contemporaneous agreement
before that he (C) would have one year to buy back the land. During trial,
is C allowed to prove that?
According to the Supreme Court: A collateral agreement of
reconveyance or repurchase may be proved by parol evidence, because an
agreement of reconveyance is a distinct agreement separate from the sale
itself -- although the new agreement is usually contained in one and the
same document. A deed to repurchase is an entirely different contract.
This is like a sale with pacto de retro. Although in reality they are normally
incorporated in one document, sometimes they are separate and distinct.
This is provable by parol evidence.

Q: Distinguish the Best Evidence Rule from the Parol Evidence Rule.

Best Evidence Rule Parol Evidence Rule

the issue is the CONTENTS the issue is whether or not a party is

of a documents ADDING OR MODIFYING THE TERMS

67
 of the written agreement

it prohibits the offer of it prohibits the offer of ORAL EVIDENCE

SECONDARY EVIDENCE to
prove the contents of a
writing or document, unless
the case falls under any of
the exceptions
if the purpose is to change, vary, modify,
qualify or contradict the terms of a
complete written agreement, unless the
case falls under any of the exceptions

any party to the case may only the parties to the document and
invoke this their successors in interest may invoke
this

this applies to any document this applies only to agreements although

the word agreement includes wills.

The following sections are applicable to intrinsic and intermediate

ambiguities of documents. Also, the Civil Code contains certain rules of
interpretation of contracts---notably Articles 1370-1379:

Art. 1370. If the terms of a contract are clear and leave no doubt
upon the intention of the contracting parties, the literal meaning of its
stipulations shall control.
If the words appear to be contrary to the evident intention of the
parties the latter shall prevail over the former.
Art. 1371. In order to judge the intention of the contracting parties,
their contemporaneous and subsequent acts shall be principally
considered.
Art. 1372. However general the terms of a contract may be, they
shall not be understood to comprehend things that are distinct and cases
that are different from those upon which the parties intended to agree.
Art. 1373. If some stipulation of any contract should admit of several
meanings, it shall be understood as bearing that import which is most
adequate to render it effectual.
Art. 1374. The various stipulations of a contract shall be interpreted
together, attributing to the doubtful ones that sense which may result from
all of them taken jointly.
Art. 1375. Words which may have different significations shall be
understood in that which is most in keeping with the nature and object of
the contract.

68
 Art. 1376. The usage or customs of the place shall be borne in mind
in the interpretation of ambiguities of a contract, and shall fill the omission
of the stipulations which are ordinarily established.
Art. 1377. The interpretation of obscure words or stipulations in a
contract shall not favor the party who caused the obscurity.

Art. 1378. When it is impossible to settle doubts by the rules

established in the preceding articles, and the doubts refer to incidental
circumstances of a gratuitous contract, the least transmission of rights and
interests shall prevail. If the contract is onerous, the doubt shall be settled
in favor of the greatest reciprocity of interests.
If the doubts are cast upon the principal object of the contract in such
a way that it cannot be known what may have been the intention or will of
the parties, the contract shall be null and void.

Art. 1379. The principles of interpretation stated in Rule 123 of the

Rules of Court shall likewise be observed in the construction of contracts.

The above provisions should be read with Rule 130, Sections 10 to

19 of the 1989 Rules on Evidence. Some of these are similar to the
principles of statutory construction.

4. Interpretation of Documents

SECTION 10. Interpretation of a writing according to its legal

meaning. The language of a writing is to be interpreted according to
the legal meaning it bears in the place of its execution, unless the
parties intended otherwise.

One must apply the legal word in the place where the document was
prepared in order to understand what it means. Remember these rules.
Sometimes they are asked in the Bar Exams. For example, if a contract
was prepared in Japan and a legal term is being used there, the meaning
of such legal term according to Japanese Law will be used, not as we
would understand it in the Philippines.

SECTION 11. Instrument construed so as to give effect to all

provisions. In the construction of an instrument where there are
several provision or particulars, such a construction is, if possible, to
be adopted as will give effect to all.

Q: How does one construe statutes?

A: One has to consider the entire law. One must not interpret every article
independently of the others or in isolation from the rest. He must
harmonize provisions with each other. The same rule goes for contracts.

69
 SECTION 12. Interpretation according to intention; general and
particular provisions. In the construction of an instrument, the
intention of the parties is to be pursued; and when a general and a
particular provision are inconsistent, the latter is paramount to the
former. So a particular intent will control a general one that is
inconsistent with it.

Q: How should a law be interpreted?

A: One must determine the intent of the framers. In a contract, one must
determine the intention of the parties. If there is a conflict between general
law and special law, the special law prevails. Interpret the law according to
the spirit that giveth life, rather than the letters that killeth.

SECTION 13. Interpretation according to circumstances. For the

proper construction of an instrument, the circumstances under which
it was made, including the situation of the subject thereof and of the
parties to it, may be shown, so that the judge may be placed in the
position of those whose language he is to interpret.

If you are to interpret a contract, imagine yourself to be in the judges

or the parties shoes. What would your reaction have been at the time the
contract was made? Simulate the situation so that you may understand
better how the parties were guided in the execution of the contract.

SECTION 14. Peculiar signification of terms. The terms of a

writing are presumed to have been used in their primary and general
acceptation, but evidence is admissible to show that they have a
local, technical, or otherwise peculiar signification, and were so used
and understood in the particular instance, in which case the
agreement must be construed accordingly.

When interpreting words used in a contract, one must apply the

general meaning of the words as understood by the public, unless it is
shown that the parties intended a technical meaning. If a word carries a
general as well as a particular meaning, the presumption is that the parties
intended the general meaning.

SECTION 15. Written words control printed. When an

instrument consists partly of written words and partly of a printed
form, and the two are inconsistent, the former controls the latter.

In case of inconsistency, written words control the printed ones.

Common example is a rider in an insurance policy.

SECTION 16. Experts and interpreters to be used in explaining

certain writings. When the characters in which an instrument is
written are difficult to be deciphered, or the language is not

70
understood by the court, the evidence of persons skilled in
deciphering the characters, or who understand the language, is
admissible to declare the characters or the meaning of the language.

EXAMPLE: A is suing for breach of contract. But the contract is entirely

written in Chinese. The judge does not know how to read Chinese
characters. This section authorizes him to secure the aid of experts.
Otherwise, he may not be able to decide the case.

SECTION 17. Of two constructions, which preferred. When the

terms of the agreement have been intended in a different sense by the
different parties to it, that sense is to prevail against either party in
which he supposed the other understood it, and when different
constructions of a provision are otherwise equally proper, that is to
be taken which is the most favorable to the party in whose favor the
provision was made.

EXAMPLE: A and B entered into a contract which turned out to be with two
possible meanings. A asks for its real meaning. If B tells A what he thinks
the meaning is, then they are bound by estoppel. The interpretation to be
used should be that which the other party believed and used.

SECTION 18. Construction in favor of natural right. When an

instrument is equally susceptible of two interpretations, one in favor
of natural right and the other against it, the former is to be adopted.

We do not interpret the law against a natural right. The natural right
must be respected.
SECTION 19. Interpretation according to usage. An instrument
may be construed according to usage, in order to determine its true
character.

EXAMPLE: Interpret a bill of lading according to its use and for which it is
intended.

Before leaving the subject of parol evidence, we will try to compare

these rules with the Statute of Frauds in the Civil Code.

Art. 1403. The following contracts are unenforceable, unless they

are ratified:
(1) x x x
(1) Those that do not comply with the Statute of Frauds as set forth
in this number. In the following cases an agreement hereafter
made shall be unenforceable by action, unless the same, or some
note or memorandum thereof, be in writing and subscribed by the
party charged, or by his agent; evidence, therefore, of the
agreement cannot be received without writing, or a secondary
evidence of its contents:

71
 (a) an agreement that by its terms is not to be performed
within a year from the making thereof;
(b) a special promise to answer for the debt, default, or
miscarriage of another;
(c) an agreement made in consideration of marriage, other
than a mutual promise to marry; an agreement for the sale of
goods, chattels or things in action, at a price not less than five
hundred pesos, unless the buyer accept and receive part of
such goods and chattels, or the evidences, or some of them, of
such things in action, or pay at the time some part of the
purchase money; but when a sale is made by auction and
entry is made by the auctioneer in his sales book, at the time of
sale, of the amount and kind of property sold, terms of sale,
price, names of the purchasers and person on whose account
the sale is made, it is a sufficient memorandum;
(d) an agreement for the leasing for longer period than one
year, or for the sale of real property or of an interest therein;
(e) a representation as to the credit of a third person.

(3) x x x

Even if the Statute of Frauds is not part of the Rules on Evidence, it is

considered as ANALOGOUS to the Rules on Evidence. In Statute of
Frauds, oral evidence is also excluded. The only evidence allowed is the
written agreement. As a matter of fact, in the 1940 Rules, the Statute of
Frauds could be found. But when the Civil Code took effect, the Statute of
Frauds was transferred to it. When the lawmakers revised the old Rules in
1964, they altogether removed from it the Statute of Frauds. That is why
there were some Bar Examinations in the past in Remedial Law where
questions on the Statute of Frauds were asked.

The history of the Statute of Frauds is explained by the Supreme

Court in the 1991 case of Claudel vs. CA. It was later amplified by Gimik
Gang, Inc. in the treatise The Philippine Law on Trusts. The Supreme
Court explained that: The provisions of the Statute of Frauds originally
appeared in the old Rules of Evidence; however, when the Civil Code was
rewritten in 1949, the Statute of Frauds was taken out in order to be
included under the Title on Unenforceable Contracts of the Civil Code. The
transfer was not only a matter of style but to show that the Statute of
Frauds is also a substantive law.

72
CLAUDEL vs. CA
199 SCRA 113

Facts: As early as December 28, 1942, Cecilio Claudel

acquired from the Bureau of Lands a parcel of land. Thereafter,
he secured a Transfer Certificate of Title issued by the Registrar
of Deeds. He dutifully paid the real estate thereon until his
death in 1987. His widow, and later her son, continued paying
the taxes.

The heirs of Cecilio composed of his legitimate children

and the brothers and sisters of Cecilio claim survivorship over
the land. The heirs of Cecilio partitioned among themselves the
land and obtained the corresponding TCT. But the brothers and
sisters of Cecilio filed a complaint for the cancellation of titles
and reconveyance alleging that 46 years earlier, their parents
had purchased from the late Cecilio certain portions of the said
land for the sum of P30.00. They admitted that the transaction
was verbal. As proof of sale, they presented a subdivision plan
of the land. The CFI of Rizal dismissed that the sale involves
real property. Not only that, but the action also has prescribed
since more than 30 years have elapsed since the sale.

However, the CA reversed the decision of the lower court

contending that the Statute of Frauds applies only to executory
contracts and not to consummated sales. The CA further
reasoned out that the defense of prescription cannot be set
against the brothers and sisters because the action was not for
the recovery of possession of real property, but for cancellation
of titles and reconveyance.

Issue: Is the verbal contract of sale covered by the Statute of

Frauds?
Has the action prescribed?

Holding: The CFI decision was reinstated.

As to the first issue, clearly the verbal contract of sale is

precluded by the Statute of Frauds, pursuant to Art. 1403 of the
Civil Code. As much, it cannot be proven orally. The sale in
this case is valid, but it cannot be enforced until reduced into
writing. The subdivision plan presented by the brothers and
sisters in the lower court carries no weight. The Torrens title in
the possession of the heirs of Cecilio is more conclusive
evidence of ownership than the subdivision plan.

As to the second issue, the belated claims of the brothers

and sisters who filed a complaint in court only in 1976 to
enforce a right acquired allegedly as early as 1930 is difficult to

73
 comprehend. Art. 1145 of the Civil code prescribes that an
action upon an oral contract must be commenced within 6
years. Therefore, the action has already prescribed.

Q: Define the Statute of Frauds.

A: According to American jurisprudence, cited by Tolentino, the term
Statute of Frauds is descriptive of statutes which require certain classes of
contracts to be in writing, and regulate the formalities of contracts to make
them enforceable.

Q: What is the purpose of the above law?

A: According to the Supreme Court: To prevent fraud and perjury in the
enforcement of obligations, depending for their evidence, upon unassisted
memory of witnesses.

Meaning, if a party is allowed to sue for alleged breach of contract --

where is the contract? What did you really agree upon? Then the other
party disagrees -- it is so confusing. This is an invitation for people to lie in
court. So, in order to avoid this situation, the law requires for certain types
of contracts to be in writing, and signed by the parties. At least, one can
rely on this rather than on the memory of people.

In a suit, one cannot present oral evidence in court to prove the

contents of a contract. Such contract must be proved in writing. A contract
need not be typewritten. It could be in any form. A note or memorandum
may even be written on mere pad paper. These are considered as valid
contracts; provided, all the elements of a contract are present -- no matter
how informal the writing seems to appear.
What should appear on these contracts? The names of the parties,
the terms and conditions of the contract, the obligations of the parties, a
description of the property sufficient to identify such property, the signature
of the parties sought to be charged, etc. Then they sign. There is here
compliance with the Statute of Frauds.

(a) an agreement that by its terms is not to be performed within a

year from the making thereof

EXAMPLE: A enters into a contract with B to sell his (As) car for
P10,000.00, but which is to be implemented within more than 1 year from
date of execution. A year and six months later, B gives to A the money to
purchase the car. However, this time A refuses to sell the car. A says he
decided to back out of their agreement. So B sues A for specific
performance. How will B prove the oral agreement? B cannot prove the
oral agreement because the prestation was supposed to take place within a
period longer than 1 year.

But suppose, in the above example, B was able to give a partial

payment of P2,000.00 upon the execution of the contract, and the sale was
actually supposed to take place in 2 more years. After the second year, A

74
decides to back out of the agreement. A claims the contract is
unenforceable. Can he raise this as a proper defense? No. The Statute of
Frauds is applicable only to executory contracts. It is not applicable to
contracts that have already been partially executed.

According to the Supreme Court: This rule applies only on

agreements not to be performed within one year on either side. Thus,
when one side is to be fulfilled immediately or within the year, the rule does
not apply. So, partial performance may take the case out of the operation
of the Statute of Frauds. The reason: it would be fraud upon a party not to
perform his part after he induced the other party to enter into the contract.

(b) a special promise to answer for the debt, default or miscarriage of

another

When one promises to answer for the debt of another, this is a

contract of guaranty. EXAMPLE: C promised A that he (C) would pay if B
failed to pay to A. When B failed to pay, A sued him. B contended that A
should run after C because of the assurance C gave A. However, C
refused to acknowledged such fact. C, in fact, actually acted as a
guarantor for the debt of B. But this should have been put into writing. A is
made the mistake of just leaving it verbally. That was a contract of
guaranty. Otherwise, B cannot prove Cs promise to pay for Bs debt.

But suppose the agreement is that A would lend B money, and C

would be the one to pay to A. C said that A should collect the debt from
him. but this was oral. C defaults in payment and A now sues him. C
contends that A cannot go after him because their agreement was not
reduced into writing and evidence of such oral agreement is in violation of
the Statute of Frauds. Is Cs contention correct? In this case, C is a
SURETY for B. In a contract of guaranty, the liability of a guarantor is
SECONDARY; in a contract of surety, the liability of the surety is
PRIMARY. Therefore, an ORAL CONTRACT OF SURETY IS NOT
COVERED BY THE STATUTE OF FRAUDS.

The Supreme Court says: When the promissor becomes primarily

liable for the payment of a debt, the promise is not within the Statute of
Frauds. But if the promise is merely collateral to the agreement of another,
and the promissor becomes only the guarantor, the agreement is covered
by the Statute.

TAKE NOTE: A guarantors liability is secondary and attaches only when

the principal debtor defaults in payment of the obligation. On the other
hand, if a person pays for the debt of another, that is not a guaranty. The
promissor is now acting as a surety, whose liability is primary. The case of
suretyship is not the one that is contemplated in this provision of the
Statute of Frauds. Therefore, the latter case may be proved in court by oral
evidence.

75
(c) an agreement made in consideration of marriage, other than a
mutual promise to marry

This provision refers to ante-nuptial agreements in the Family Code.

Such agreements must be in writing.

Q: What do ante-nuptial agreements include?

A: Any kind of agreement about marriage, such as the marriage
settlement. For example, before the marriage, the parent s of the woman
ask for a dowry -- land, cows, armalites, etc. Some people really have this
in their custom. The family of the groom agrees but the problem is that
they did not reduce into writing the agreement. The marriage takes place,
and then the mans father-in-law now asks for the dowry. The man refuses
to give the dowry. Can the father-in-law sue the man to compel him to give
the dowry that he promised? No, if there is no writing to prove it. This is
covered by the Statute of Frauds.

(d) agreement for the sale of goods, chattels or things in action, at a

price not less than five hundred pesos, unless the buyer accept
and receive part of such goods and chattels, or the evidences, or
some of them, of such things in action, or pay at the time some part
of the purchase money; but when a sale is made by auction and entry
is made by the auctioneer in his sales book, at the time of sale, of the
amount and kind of property sold, terms of sale, price, names of the
purchasers and person on whose account the sale is made, it is a
sufficient memorandum;

So, this contemplates the sale of goods or chattel when the price or
consideration is beyond P500.00, which cannot be proved orally when
there is no written evidence of such contract. But if the price or
consideration is below P500.00, this can be proved orally.

In order to be covered, the subject matter (goods or chattels) must

not have been yet delivered, and the purchase price must not have been
yet paid. Otherwise, the Statute of Frauds cannot be applied. The partial
performance of an obligation or prestation takes it out of the coverage of
the Statute. The Statute applies only to EXECUTORY contracts, and not to
PARTIALLY PERFORMED AGREEMENTS.

(e) an agreement for the leasing for a longer period than one year, or
for the sale of real property or an interest therein

Contracts of lease. If the duration is one year or less, the contract

may be proved orally. But if it for a period longer than one year, the
contract must be in writing for this to be enforceable. So if the lease is for
month to months majority are like that. One occupies somebodys
house and he pays monthly rentals that is provable orally. But if he
stays there for a period longer than one year, the lease must be in writing.

76
 Suppose it appears in the contract that rental is for a period of one
year or less. However, when the one year period expired, the parties
entered into an oral contract to renew the rental for another year. When the
oral agreement was about to expire, they entered again into another
agreement to renew the rental for another year. Is this allowed? The
Supreme Court said that this is an indirect violation of the Statute of
Frauds. Perhaps the first year can be proved orally, but not the second or
other succeeding years, unless there was a written extension or renewal.

(f) a representation as to the credit of a third person

Representation of credits is similar to guaranty.

Q: What are the limitations to the applicability of the Statute of Frauds?

A: (1) the Statute of Frauds applies only for violations of the contract or
actions for specific performance;

BAR PROBLEM: A filed a proceeding under the Property

Registration Decree to have his piece of property titled. He
claims that he bought this land 30 years ago. But somebody
was opposing his application for registration. A said he actually
bought said property from the father of the oppositor, and that
he had as a matter of fact already paid for the purchase price.
The oppositor asks for the deed of sale. A could not produce
any as the sale was made orally. Can the counsel of the
oppositor object on the ground of violation of the Statute of
Frauds?

No, the objection will be improper. This is not an action to

enforce a contract. This is a proceeding for registration of
property, and the Statute of Frauds is not applicable to this type
of a proceeding. Invocation of the Statute of Frauds is also
improper because A said he had already paid the purchase
price of the land. The prestation on the part of A had already
been partially performed. Partial performance by a party of its
obligation removes the matter from the operation of the Statute
of Frauds.

(2) it is applicable only to executory contracts;

(3) it is applicable only to the agreements enumerated in Article 1403 of
the Civil Code;
(4) it does not apply when a party to a writing offers to prove by oral
evidence, that the writing does not express the true intent of the
parties;
(5) it does not render oral contracts void, but merely unenforceable as
against the party sought to be charged, if he decides to claim the
benefit of the Statute of Frauds;
(6) it cannot be invoked by a stranger to the contract;

77
Q: Can one waive the benefit being given by the Statute of Frauds?
A: Yes, the Statute of Frauds is for the benefit of the party being sued.
Such party can always question the evidence presented by the other party.

Q: How may a party waive the right to question such evidence presented
by the other party?

1. by not raising it as an issue in his Answer to the Complaint, on any

motion to dismiss (take note that this is one of the grounds for
motion to dismiss under Rule 16 of the Rules of Court.
Consequently, defenses not raised in a motion to dismiss or
answer are deemed waived.);
2. when the party fails to make a timely objection to parol proof of the
contract (this shows the significance of the speed with which you
must be able to object to the evidences being presented in court);
3. when, after an objection was overruled, the party cross-examines
the witness on the contract.

COUNSEL FOR DEFENDANT: According to you (plaintiff), my client did

not comply with the stipulations of the contract. But this contract was
oral.
(Counsel for Plaintiff objects... But suppose the court makes a wrong
ruling, and overrules the objection. So, the testimony is admitted. Never
mind that. What is important is that you were able to object. Because on
appeal, you can question that ruling by the court.)

So, in the above case, the testimony was admitted by the court.
Later on, when the counsel for plaintiff gets his chance to cross-examine
this witness, he must not ask about the stipulations or contents of the oral
contracts. Otherwise, the plaintiff is deemed to waive the Statute of
Frauds. That is why, if you are this counsel, do not cross-examine
anymore. Leave it as it is. Do not ask about the very matter you previously
objected to, because when you cross-examine him, you objection is
deemed waived.

TAKE NOTE OF THE SIMILARITIES BETWEEN BEST EVIDENCE

RULE, PAROL EVIDENCE RULE AND THE STATUTE OF FRAUDS.

COUNSEL FOR PLAINTIFF:

Mr. B, why do you know the defendant?
WITNESS:
I know him because I entered into a contract with him.
COUNSEL FOR PLAINTIFF:
Was the contract in writing?
WITNESS:
Yes.
COUNSEL FOR PLAINTIFF:

78
 Please tell the court what are the terms and conditions of this
contract.
COUNSEL FOR DEFENDANT:
Objection! Best Evidence Rule.
When the issue is the contents of a contract, no evidence must be
presented other than the written contract itself. In other words, the
testimony of B is merely secondary evidence.

COUNSEL FOR PLAINTIFF:

Mr. B, do you know the defendant?
WITNESS:
Yes, I entered into a contract with him.
COUNSEL FOR PLAINTIFF:
Was the contract in writing?
WITNESS;
Yes.
COUNSEL FOR PLAINTIFF:
Is this the contract?
WITNESS:
Yes.
COUNSEL FOR PLAINTIFF:
Would you please tell the court if there were other terms and
conditions?
COUNSEL FOR DEFENDANT:
Objection! Parol Evidence Rule.

One cannot introduce other evidence which would alter, modify or

add to the contents of the contract. The contract in itself is already
considered as complete.

COUNSEL FOR PLAINTIFF:

Mr. B, do you know the defendant?
WITNESS:
Yes.
COUNSEL FOR PLAINTIFF:
You are suing Mr. B to compel him to sell to you real property
which he agreed to do within 5 years from the time you entered
into agreement, is that correct?
WITNESS:
Yes.
COUNSEL FOR PLAINTIFF:
Was the agreement in writing?
WITNESS:
No.
COUNSEL FOR PLAINTIFF:
Since the agreement was oral, what are its terms and
conditions?
COUNSEL FOR DEFENDANT:

79
 Objection! Statute of Frauds.

Counsel for plaintiff here is trying to prove the terms and conditions of
the agreement orally. This is not best evidence; this is not parol evidence
either. This is Statute of Frauds. So, do not confuse the three with each
other.

C. TESTIMONIAL EVIDENCE

1. Qualification of Witnesses

SECTION 20. Witnesses; their qualifications. Except as

provided in the next succeeding section, all persons who can
perceive, and perceiving, can make known their perception to others,
may be witnesses.
Religious or political belief, interest in the outcome of the case,
or conviction of a crime unless otherwise provided by law, shall not
be a ground for disqualification.

The qualifications of a witness; he can see and can tell others of what
he saw, or he can hear and can tell others of what he heard, or can feel
and can narrate to others what he felt. Therefore, practically, almost the
entire human race is qualified.

Q: Is a blind person qualified to become a witness?

A: Yes, for as long as what is to be asked is not on what he saw. But if he
still has the senses of touch, smell -- he may testify on these matters.

One need not be a high school graduate in order to be qualified to be

a witness. The requirements are only those that can be found in the law.

Q: Is a deaf-mute qualified to be a witness?

A: Yes. He can still communicate through sign language. In the case
People vs. Tomentos, the Supreme Court said that a witness is competent
to testify even if she could convey ideas only through signs or body
language.

PEOPLE vs. TOMENTOS

211 SCRA 212

Facts: A complaint was filed through the Assistant Prosecutor

charging Henry Tomentos with the rape of Salvacion Cabahug.

During the trial, the prosecution presented the testimonial

evidence of 10 witnesses which included the victim herself. It
was established that the victim is a 21-year-old girl with a mind
of an 8 to 10 years old, with an IQ of 55 to 69%; that the victim
spent 3 years in Grade One. Being a mental retardate, she
was able to pass Grade Five with only a 75% average; that she

80
 is not inclined to verbal communication, and if sent to the store
to buy something, a list of the things to buy must be written on a
piece of paper clipped together with the money. There were
more proofs presented as to the victims being mentally
retarded which were confirmed by a series of psychological
evaluations conducted by a medical expert.

Issue: whether or not the testimony of the victim should be

given credit. Is the victim a competent witness despite her
being a mental retardate?

Holding: The victim is a competent witness, even if she could

convey her ideas only through signs or body language.

The medical expert on mental health has proved that the

victim does not have hallucinations, is in touch with reality, does
not fantasize but only has the tendency to convey thoughts
through some body languages like checking the name of the
accused and looking or gazing at the accused for quite a few
times when he was seated beside 3 other suspected boys in
the locality. These makes the victim a competent witness as
she can convey her ideas in many forms like signs, writings and
body gestures, aside from words.

Immaterial and insubstantial lapses as to the exact date

or dates and minor details in the victims testimony should not
be taken against the victim. These things are expected from a
mental retardate.

Q: How about a person who is interested in the outcome of a case? Can a

biased witness testify? For example, A is the plaintiff and he is suing B.
Can B testify for himself? Yes, even if the defendant can testify for himself.
But what if As witnesses are his relatives?
A: Witnesses may testify even if they are biased towards a party, or are
relatives of a party for whom they are testifying. The only qualification for
any witness is that he or she can perceive, and make known to others such
perception. Any such witness may testify, but this does not automatically
mean that the court will give weight to such testimony. Again, do not
confuse admissibility from weight or credibility.

Even if the person is the biggest liar in the world, and he is presented
as a witness in court, the court has no choice but to hear what he has to
say. Such testimony will be recorded, although later on when the court
decides the judge will check on everything that he said. His being a liar
may affect the credibility of his testimony, but still he is not disqualified from
testifying.

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Q: Is an atheist or one who does not believe in a supreme being, or in the
afterlife disqualified form being a witness? Is the testimony of such person
admissible in court?
A: The law says that religious or political belief shall not be a ground for
disqualification. The testimony of such a person is admissible in court.

Q: Is a person convicted of a crime disqualified from testifying in court?

A: No, except when the law provides that the crime the person is convicted
with carries with it disqualification from testifying in court. The same rule
goes for ex-convicts as well.

EXAMPLE: The next witness is Juan de la Cruz. In his criminal record, it

appears that he has been convicted 3 times for false testimony, and 7 times
for perjury. Is he still qualified to testify? Yes, for as long as he perceives
and make known such perception to other people. The court may say that
it does not believe the testimony of Juan de la Cruz. But that is already in
the realm of weight or credibility.

The Civil Code also provides for grounds for disqualification:

Article 821. The following are disqualified from being witnesses to a

will:
(1) any person not domiciled in the Philippines;
(2) those who have been convicted of falsification of a document,
perjury or false testimony

Under this provision, when a person wishes to have the will probated
but he is disqualified from being a witness, he cannot act as such witness.
Being disqualified as a witness in a will makes a person disqualified as a
witness in court probate.

According to an American writer in Evidence, a prospective witness

must show four qualities or abilities:

(1) to observe the testimonial quality of perception;

(2) to remember the testimonial quality of memory;
(3) to relate the testimonial quality of narration; and,
(4) to recognize a duty to tell the truth the testimonial quality of
sincerity

The first three are required in admissibility. Even if a person can see
but cannot remember any thing, his testimony would be useless. The
fourth is more a requirement of credibility.

The disqualification of witnesses is covered not only by Section 21

but also by Sections 22 to 24. the next four sections deal with
disqualification:

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 (1) by reason of mental incapacity or immaturity;
(2) by reason of marriage;
(3) by reason of death or insanity of the adverse party; and,
(4) by reason of privilege communication.

In Section 21, the people mentioned here are ABSOLUTELY

DISQUALIFIED FROM TESTIFYING IN ANY CASE, IN ANY TYPE OF
PROCEEDING. Such person is not even allowed to take the witness
stand. He is totally disqualified.

Sections 22, 23 and 24 are called PARTIAL or RELATIVE

DISQUALIFICATION because the witness is qualified to be a witness, but
is disqualified from testifying on certain matters. So, such witness may be
asked questions on anything except on certain matters. If he is asked on
matters that are not allowed to be asked of him, him answers are
inadmissible. He should not have answered.
CAVILI vs. FLORENDO
154 SCRA 610

Facts: Private respondents filed a civil case against Quirino,

Primitivo and Perfecta Cavili for partition, accounting and
damages. Defendant Perfecta, however, failed to file her
answer and was subsequently declared in default.

Atty. Alamillo, in behalf of the other defendants, filed a

motion for new trial for lack of jurisdiction over the persons of
Primitivo and Quirino Cavili, who were not validly served with
summons. The court granted the motion.

Defendants Primitivo and Quirino presented Perfecta as

their first witness. Respondents moved for her disqualification
as a witness on the ground that, having been declared in
default, she had lost her standing in court and thus cannot be
allowed to participate in all proceedings therein, even as a
witness. the court sustained the respondents contention and
disqualified Perfecta from testifying.

Issue: whether or not a party in default is a competent witness.

Holding: A party in default may be presented as a witness by

his co-defendants, who have the standing and the right to
present evidence, to secure the attendance of witnesses and
the production of evidence in their behalf. To reject Perfectas
presentation of testimonial evidence would be to treat Primitivo
and Quirino as if they, too, were in default.

The respondents contention that to permit a party in

default to take the witness stand is to take part in the trial is
untenable. The loss of standing in court is the consequence of

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 an order of default. Thus, a party declared in default is
considered as out of court and cannot appear therein, adduce
evidence, and be heard, and for that reason he is not entitled to
notice. However, loss of standing must be understood to
mean only the forfeiture of ones rights as a party litigant,
contestant or legal adversary.

A party in default losses his right to present his defense,

control the proceedings and examine or cross-examine the
witnesses. He has no right to expect that his pleadings would
be acted upon by the court, nor may be object to or refute
evidence or motions filed against him. There is nothing in the
Rules, however, which contemplates a disqualification to be a
witness or deponent in a case. DEFAULT DOES NOT MAKE
HIM AN INCOMPETENT WITNESS.

As opposed to a party litigant, a witness is merely a

beholder, spectator, or onlooker called upon to testify as to what
he had seen, heard or observed. As such, he takes no active
part in the content of rights between the parties. He remains
suffering the effects of an order of default.

There is no provision in the Rules disqualifying parties

declared in default from taking the witness stand for non-
disqualified parties. The generosity with which Rule 30, Sec. 18
allows people to testify is apparent. As a general rule, where
there are EXPRESS exceptions (Rule 130, Secs. 21 - 24; Rule
132, Sec. 15), these comprise the only limitations on the
operation of a statute and no other exception will be implied.
The Rule should not be interpreted to include an exception not
embodied therein.

TAKE NOTE: Again the only qualification for a person to be a witness is

that he can perceive and can make known to others such perception.
Disqualified witnesses are enumerated in Secs. 21, 22, 23 and 24; the law
does not include default as one of them.

Under the law, where there are two defendants one files his
answer but the other does not, if the defense of the answering defendant
succeeds, the defaulting defendant is also benefited. In effect, the answer
of the answering defendant is also the answer of the defaulting one.

Q: In the above case, by providing evidence for his co-defendant, will this
not benefit the defaulting defendant?

A: That is true, but this INCIDENTAL BENEFIT if of minor consequence.

Of greater concern or importance is the preservation of the right of the
answering defendant to secure the attendance of his witnesses and the
production of evidence on his behalf. Whatever benefit the defaulting

84
defendant derives is purely incidental, but definitely one cannot also
prejudice the answering defendant.

SECTION 21. Disqualification by reason of mental incapacity or

immaturity. The following persons cannot be witnesses:
(a) those whose mental condition, at the time of their production for
examination, is such that they are incapable of intelligently making
known their perception to others;
(b) children whose mental maturity is such as to render them
incapable of perceiving the facts respecting which they are
examined and of relating them truthfully.

This is the first disqualification. Take note that the disqualification

here is TOTAL. These people are not qualified to be witnesses at any time
at any place. Who are these people? For example, insane people. They
can communicate, but it will be a useless dialogue. Insane people are
disqualified from testifying because of their mental incapacity.

Q: What about the feeble-minded, whose memory is impaired -- are they of

the same category as the insane people?

PEOPLE vs. PALMA

144 SCRA 236

Facts: A complaint was filed with the RTC against Pedro

Palma, a 64-year-old carpenter, for the rape of Imelda Telada, a
14-year-old mental retardate.

The trial court rendered a decision finding Palma guilty

beyond reasonable doubt of rape. However, it concluded that
Telada is mentally deficient enough to be unable to give valid
consent to (engage in) sexual intercourse with Palma, and that
Palma is aware of this mental deficiency of Imelda and took
advantage of it.

In this appeal, Palma contends, among others, that the

trial court erred in giving weight and credence to the testimony
of this mentally deficient complaining witness.

Issue: whether or not a feeble-minded complainant is a

competent witness.

Holding: A feeble-minded complainant is a competent witness

as long as she can convey her ideas by words or signs and
give sufficient intelligent answers to the questions propounded
by the court and the counsels (Section 18, Rule 130).

Dr. Anenias, who performed a psychiatric and intellectual

assessment of Imelda, stated that she was able to say: da,

85
da for the first time when she was already 3 years old. He
noticed that during the examination, Imelda was functioning
not in her normal, intellectual endowment. While the defense
counsel described Imelda as intelligent, the trial court sized her
up as mentally deficient to a point where she is incapable of
realizing the moral implications of her sexual relationship with
the accused, in the same manner as a girl below 12 years of
age can relate her sexual experience without understanding the
moral implications of said act.

The record shows that while at times, she would jump

ahead of the questions asked her in court, her answers were
coherent enough for the trial court to perceive the ideas she
wanted to convey. She was, therefore, a competent and
credible witness.

PEOPLE vs. SALOMON

229 SCRA 403

Facts: On October 11, 1987, Sylvia Soria, a 20-year-old

mental retardate, was weakling along a highway in Gandara,
Samar when accused Alejandro Salomon and Feliciano Conge,
who were apparently waiting for her, accosted her and forcibly
took her to the nearby ricefield where she was raped by
Salomon with Conges assistance. Subsequently, Soria
reported her ordeal to her brother and father. The father then
filed a complaint for rape in his daughters behalf.

A few days after the filing of the complaint, the 2 accused

could not be found. After 4 months, they were finally
apprehended. Following a protracted investigation, an
information for rape was filed against Salomon and Conge. The
principal witness for the prosecution was the victim herself. she
recounted in detail the manner of her ravishment by the
accused.

Defense suggested that the testimony of Soria is flawed

because she is an insane person who was confined at the
National Mental Hospital, a few months before the alleged rape
incident.

Issue: whether or not Soria is disqualified from being a witness

in the rape case in view of her condition as a mental retardate.

Holding: A mental retardate is not, for this reason alone,

disqualified from being a witness. As in the case of other
witness, acceptance of his testimony depends on its nature and
credibility or, otherwise put, the quality of his perceptions and
the manner he can make them known to the court. Thus, in

86
 People vs. Gerones (193 SCRA 263), the Court accepted the
testimony of a rape victim notwithstanding that she had the
mentality of a 9 or 10-year-old because she was able to
communicate her ordeal... clearly and consistently.

The Court noted that although Sorias speech was slurred

and it was necessary at times to ask her leading questions, her
testimony was positive, clear, plain, coherent, and credible.
Furthermore, a woman will not expose herself to the humiliation
of a rape trial, with its attendant publicity and the morbid
curiosity it will arouse, unless she has been truly wronged and
seeks atonement for her abuse.

NOTE: The assessment of the evidence, especially the credibility of the

witnesses, is the primary function of the judge presiding at the trial.

EXAMPLE: A crime was committed and the only witness was an insane
person. Later on, the accused was charged and the prosecution learned
that their star witness used to be insane. He just got better. So, during the
trial, he had recovered and was presented as the prosecutions first
witness. Defense sought to disqualify the witness because at the time the
case happened, he was insane -- although now he is normal.

Q: If you were the judge, would you disqualify the witness or not?
A: No, he should not be disqualified. He is qualified because the
reckoning point is AT THE TIME OF HIS PRODUCTION, at the time of the
testimony, So the witness in the above case is not covered by Sec. 21.

But, can one rely on the memory of the witness? He may be normal
now, but he will be testifying on events which happened when he was
mentally sick. Will this affect the credibility or weight of his testimony? His
credibility may be affected but not the admissibility of his testimony. You
cannot disqualify a witness, simply because he is not believable.

The second disqualification. This involves mental immaturity,

sometimes called disqualification by reason of infancy.

Q: Are all children disqualified from being witnesses based on the above
provision? Suppose a minor is capable of perceiving and relating truthfully
what he saw, is he qualified? What is the meaning of age?
A: It depends. It is not actually the age of the child that matters but his
MENTAL MATURITY. The child must only be capable of relating to the
court what he saw or heard. So, there is no minimum age requirement
here. What is important is the degree of mental development of the minor.

Q: If an 11-year-old child to testify on a crime which he witnessed 10 years

ago, may he validly do so?

87
A: Yes, for as long as he can remember what took place and can
communicate these details before the court. The reckoning point is still the
time of his production for examination.

Q: But how can a 1-year-old child possibly remember what he saw?

A: That is now a matter as to credibility of the witness, or the weight of his
testimony. But we are not talking about that now.

Q: How do we know that a minor meets the standards?

A: According to books on Trial Technique, the minor must be subjected to
PRELIMINARY QUESTIONS either by the judge or counsel. He will be
asked innocent questions dealing with everyday life. Much like an IQ test.
for the minor.

An adult person, when taking an oath to tell the truth, need not be
reminded of the consequences of not telling the truth. But a minor is not
expected to understand that. So counsel or judge must elicit from him the
fact that he knows what his obligations are here. Ask the minor, for
example, why he is in court. If he does not know why, then everything has
to be explained still to him. That he is here to tell the truth about
something. Ask him what would happen if he tell a lie in court. If he says
that telling a lie is bad, and for that he can go to hell -- then it can be
concluded that he is aware of his obligations of telling the truth. The
following case illustrates the process of putting the witness in VOIR DIRE,
which literally means to speak the truth.

PEOPLE vs. MISCALA

202 SCRA 26

Facts: Visitacion Pineda filed a case for rape against Fernando

Miscala. The victim was a 10-year-old child. The trial court,
finding the accused guilty of rape, based its judgment on the
fact that the victim pointed to Miscala as her ravisher.

Hence, this appeal. The accused anchored his defense

on the alleged error committed by the trial court in finding that
there was a direct and categorical accusation of the victim that
it was the accused, and no one else who raped her.

Holding: The appeal does not hold ground.

Medical reports showed that there was presence of sperm

cells in the victims private genitals. Undoubtedly, she had been
subjected to sexual intercourse. The complainants detailed
and straightforward narration of how she had been raped bears
earmarks of credibility. Even if complainants testimony is
uncorroborated, it is enough to convict the accused. For the
uncorroborated testimony to suffice, her competence as a
witness must be established in the trial court.

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 The evidentiary rule is that in crimes against chastity, the
testimony of the injured woman should not be received with
precipitate credulity, and when the conviction depends at any
vital point upon her uncorroborated testimony, it should not be
accepted unless her sincerity and candor are free from
suspicion. In the case at bar, the records show that the young
victim had been properly placed in voir dire, which means to
speak the truth. When the court submits the witness to void
dire, the court reminds him of the consequences of not telling
the truth.

The examination of VOIR DIRE is conducted to determine the

competency and qualifications of the witness in case it is objected to.
When the witness is subjected to the process of voir dire, the court reminds
him about the consequences of the truth. When the court is satisfied that
the influence of fear or hope has been ruled out, then the confession of the
witness can be deemed voluntary.

However, even if we say that the above provision guarantees only the
admissibility of the childs testimony but not its believability, we cannot also
deny the fact that when a child says that he has to tell the truth because
otherwise something bad will happen to him, or that he will go to hell, he
passes the test of voir dire. Ask the child what it means when he is asked
to raise his right hand before the court...

Will the childs testimony be reliable or not? That is weight now. By

nature it is more difficult to convince children to lie than adults.

PEOPLE vs. MESIAS

199 SCRA 20

Facts: On September 26, 1980, five armed men, four of them

wearing masks, barged into and robbed the house of Olympia
and Vivencio Cruz. Olympia was blindfolded while the robber
without a mask stabbed Vivencio 3 times with what appeared to
be an icepick. This was witnessed by their son, Marlon, then
six years old, through the open bedroom door.

The accused, Danilo Mesias, was recognized by Olympia

and Marlon as among the malefactors. He was found guilty by
the lower court. questioning the conviction by the lower court,
accused Mesias insisted on his innocence. His principal
defense was alibi, alleging that on that night, he was asleep in
his sisters house about half a kilometer away from the crime
scene. He also alleged that Olympia and Marlon mistook him
for another man who looked just like him, whom he called
double and who happened to live in the same area.

89
 Holding: Accused Mesias is found guilty beyond reasonable
doubt of the crime of robbery with homicide.

Marlons testimony that, among the 5 men who entered

the house, it was Mesias who fatally knifed his father should be
given full weight and credit. Children of sound mind are more
likely to be observant of incidents which take place within their
view than older persons, and their testimony is, therefore, likely
to be more correct in detail than that of older persons, and
when once established that they understood the nature and
character of an oath, full faith and credit should be given to their
testimony.

Dr. Gross, an Austrian jurist and expert in Criminology,

said that an intelligent child is undoubtedly the best observer to
be found. He is, as a rule, little influenced by the suggestions
of others and he describes objects and occurrences as he
really seen them. Generally, children have a good and retentive
memory.

Accuseds defense of alibi deserves little consideration.

In no way did it prove that Mesias could not have been at the
scene of the crime at its commission, as his sisters house was
more than half a kilometer away from the Cruzess residence.
In the case of People vs. Reunir (157 SCRA 686), it was held
that for an alibi to be effectual, it must be shown that not only
was the accused at some other place at the time of the crime,
but that it was physically impossible for him to be at the scene
of the crime when it occurred. Moreover, Mesiass alibi, aside
from being inherently weak, has been rendered inutile by the
fact that he was conclusively identified by witnesses Olympia
and Marlon Cruz.

In another case, the Supreme Court said that lying is distasteful to a

child because he thinks it is mean. He is no stranger to the sentiment of
self-respect.

PEOPLE vs. LIBUNGAN

220 SCRA 315

Facts: Spouses Mario and Juanita Libungan had a quarrel. In

the end, Mario stabbed his wife with a fan knife, killing her.
Mario fled through the kitchen, destroying a portion of the wall
to make it appear that there was somebody who entered the
house. Before dying, however, Juanita was able to tell her
brothers that it was Mario who stabbed her. The material
witness in the case is Crisanto, the couples eldest son who is
seven or eight years old.

90
 Issue: (1) whether or not a 7-year-old boy is a credible
witness
(2) whether or not the testimony of Juanitas brothers
can be given full credit

Holding: (1) The defense would argue that Crisanto is not a

reliable witness because he gave inconsistent answers (for
example, at first, he told the police that it was only him who saw
his father kill his mother, but he later said that his younger
brother saw it too. He could not distinguish a fan knife from a
kitchen knife, etc.) But these inconsistencies pertain to minor
details which do not touch upon the commission of the crime.

Minor contradictions are to be expected but must be

disregarded if they do not affect the basic credibility of the
evidence as a whole. These inconsistencies, which may be
caused by the natural fickleness of memory, even tend to
strengthen rather than weaken the credibility of the witness
because they erase any suspicion of rehearsed testimony.
Lying is distasteful (to a child) because he thinks it mean; he is
no stranger to the sentiment of self-respect, and he never loses
an opportunity of being right in what he affirms. Thus, he is, as
a rule, but little influenced by the suggestion of others, and he
describes objects and occurrences as he has really seen them.

(2) Relationship alone is not a ground for discrediting a

witness testimony. It is a well-established rule that the mere
fact that the witness is a relative of the victim is not a valid or
sufficient ground to disregard the formers testimony nor does it
render the same less worthy of credit. The closeness of the
witnesses relationship to the victim should not be deemed
erosive of their credibility as witnesses. The weight of their
evidence must be assessed by the same norms applicable to
other witnesses.

In other words, one must be a virtuoso in order to destroy the credibility of a

child.
PEOPLE vs. GALAS
262 SCRA 381

Facts: On December 23, 1995, at around 9:00 in the evening,

Fedirico Gamayon, his 15-year old son, Crisanto, and his 6-
year old nephew, Joemar, were on their way home from
Sandoval, Palawan, where they had sold copra. When they
near the house of accused Gonzalo Galas, the latter appeared
from nowhere and suddenly hacked Federico with a bolo.
Federico fell to the ground. Then the other accused ganged up
and helped each other in mauling Federico. The victim was
unable to fight back, until he died.

91
 The only witnesses on the scene were the son and
nephew of the victim.
Issue: (1) whether or not relationship with the victim is a
disqualification to be a witness;
(2) whether or not a witness who was six years old
when he allegedly witnessed the killing is disqualified.

Holding: (1) The court has held in a number of cases that

relationship between the witnesses and deceased does not
automatically impair the credibility of the former. A witness
relationship to a victim, far from rendering his testimony biased,
would even it render more credible as it would be unnatural for
a relative who is interested in vindicating the crime to accuse
somebody other than the real culprit. They have a definite
stake at seeing the guilty person brought before the courts so
that justice may be served. It is not to be lightly supposed that
relatives of the victim would callously violate their conscience to
avenge the death of a dear one by blaming it on persons who
are in fact innocent of the crime.

(2) It must be stressed that Joemars age does not

disqualify him as a witness. Section 20 of Rule 130 provides
that all persons who can perceive, and perceiving, can make
known their perception to others, may be witnesses. The
exceptions thereto are found in the succeeding Section and,
insofar as children are concerned, only those whose mental
maturity is such as to render them incapable of perceiving the
facts respecting which they are examined and of relating
truthfully are disqualified.

It is thus clear that any child, regardless of age, can be

competent witness if they meet the following criteria:
1. capacity of observation;
2. capacity of recollection; and
3. capacity of communication.

The accused urged us to give no weight to Joemars

testimony because of its unreliability; they claim that he could
not even remember the month and the year when the incident
happened. A close scrutiny of his testimony discloses,
however, that according to him, took place on a date nearing
Christmas. Since the date of Fediricos death was indubitably
established to be December 23, 1995, which was indeed
nearing Christmas, Joemars approximation was sufficient.

The next three sections refer to disqualifications which are PARTIAL

or RELATIVE. In this case, the witness is not insane nor a minor, but is
barred from testifying on certain matters.

92
 SECTION 22. Disqualification by reason of marriage. During
their marriage, neither the husband nor the wife may testify for or
against the other without the consent of the affected spouse, except
in a civil case by one against the other, or in a criminal case for a
crime committed by one against the other, or the latters direct
descendants or ascendants.

For example, the husband is a party to a case, criminal or civil. Can

the opposite party use the wife as a witness in that case whether in favor of
or against her husband?
A: No, a spouse cannot testify in any case where the other spouse is a
party, whether for or against him or her, WITHOUT THE CONSENT OF
THE AFFECTED SPOUSE. This is known as the marital disqualification
rule.

Q: A man committed murder. The only witness is his wife. The sate filed a
case against the husband and subpoenaed the wife to testify. Can the wife
be compelled to testify?
A: No, without the consent of her husband. The reason: To preserve the
marriage relation as one of full confidence, affection and comfort.
However, this rule is WAIVABLE. When the husband calls the wife as his
witness, there is an automatic waiver. This is with the husbands consent.
The other possibility is that when the wife was called by the opposite party
as its witness, the husband failed to object. This is also deemed as a
waiver.

Q: Suppose the marriage is already dissolved, can the wife still be

disqualified from testifying in favor of or against her husband?
A: No more, because the law says ... during their marriage...

So, the requisites in order for Sec. 22 to be applied are:

(1) both are legally married;
(2) one of the spouse is a party to a case; and,
(3) the case is not one against the other or the latters direct
descendants or ascendants.

The third requisite was not found in the 1964 Rules on Evidence.
This is only added in the 1989 Rules, which is taken from jurisprudence.
On the other hand, there is an exception cited by law. The husband or
the wife cannot testify for or against the other, except in a civil case filed by
one spouse against the other, or in a criminal case for a crime committed
by one spouse against the other or the latters direct descendants or
ascendants.

In the case of People vs. Natividad (70 SCRA 315), a widow has a
son. the widow then remarried. The stepfather killed the widows son, and
the wife filed a case against her husband. When the wife testified, the

93
husband sought to disqualify her. QUESTION: Should the wife be
disqualified from testifying? ANSWER: Yes, because this is not a crime
committed by her husband against the wife. The crime here was
committed against the wifes son.

However, in the subsequent case of Ordoo vs. Daquigan, the above

ruling was abandoned and changed:

ORDOO vs. DAQUIGAN

62 SCRA 270

Facts: Avelino Ordoo was charged in the RTC with having

raped his daughter, Leonora, on October 11, 1970. In support
of the complaint, Catalino, wife of the accused, executed a
sworn statement wherein she disclosed that on the same date,
Leonora had apprised her of the outrage. No denunciation was
filed because her husband threatened to kill their daughters if
she reported the crime to the police. The wife further revealed
that her husband also raped their other daughter, Rosa.
The fiscal presented Catalina as the second prosecution
witness. Defense counsel objected to her competency invoking
the Marital Disqualification Rule. He further contended that that
Avelino had not consented expressly or impliedly to his wifes
testifying against him.

Issue: whether or not the rape committed by the husband

against his daughter is a crime committed by one spouse
against his wife within the meaning of the exception in the
Marital Disqualification Rule.
Holding: Using the criterion judiciously enunciated in the
Cargill Case, it can be concluded that in the law of evidence,
the rape perpetrated by the father against his own daughter is a
crime committed by him against his wife (the victims mother).

That conclusion is in harmony with the practice and

traditions of the Filipino family where, normally, the daughter is
close to the mother, who, having breast-fed and reared her
offspring, is always ready to render counsel and assistance in
time of need. Indeed, when the daughter is in distress or
suffers physical or moral pain, she usually utters the word,
Inay before she invokes the name of the Lord.

Catalina, therefore, can testify against her husband where

he is being tried for having raped their daughter. When the
husband raped their daughter, he had impaired beyond repair
their marriage, destroyed the conjugal harmony. But the new
Rule made it more clear by making it more specific, by including
... or the latters direct descendants or ascendants... The
crime does not have to be committed directly against the wife,

94
 but may also be against her direct ascendants or descendants.
In this case, it is like the crime was also committed against the
wife.
SECTION 23. Disqualification by reason of death or insanity of
adverse party. Parties or assignors of parties to a case, or persons
in whose behalf a case is prosecuted, against an executor or
administrator or other representative of a deceased person, or
against a person of unsound mind, upon a claim or demand against
the estate of such deceased person or against such person of
unsound mind, cannot testify as to any matter of fact occurring
before the death of such deceased person or before such person
became of unsound mind.

This rule is known as the SURVIVORS DISQUALIFICATION RULE,

also known as the Dead Mans Statute.

For example, B died. After his death, A filed a claim against Bs

estate. A narrates his cause of action: When B was alive, he (B) entered
into an agreement. However, B never complied with it. This is
objectionable because A is creating or trying to claim against the estate of
B while testifying on matters which occurred before the death of B. Under
the law, this would be unfair because B could not anymore rise from his
grave to testify and deny the statements made by A. Thus, a survivor
cannot testify in an action against a claim or demand against the estate of
the deceased.

The purpose is to discourage perjury on the part of the survivor, and

also to protect the deceaseds estate against false and unjust claims.
When death has sealed the lips of one party, the law will also close the lips
of the survivor. This applies also when subsequently, the other party
becomes insane.

This rule contains four parts:

(1) persons disqualified from testifying
(1) plaintiff;
(2) his assignor; or,
(3) the person in whose behalf the case is prosecuted.

EXAMPLE: A enters into a contract with B. B dies. A files a case

against the legal representatives of B. Is it objectionable if A testifies on
matters of fact which happened before B died? Yes.

A entered into a contract with B, then A assigns his rights to X. B

dies. X files a case against the legal representatives of B. To prove his
cause of action, he used as witness, A, the assignor. So, the assignor will
be the one to testify on matters of fact occurring before the death of B. Is
the testimony of A admissible? No, because he is covered by the Rule.

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(2) persons protected by the Rule
(1) executor;
(2) administrator; or,
(3) other representative of the deceased or person of unsound mind.

(3) action covered by the Rule

This rule may be invoked IN ANY ACTION BASED UPON A CLAIM
OR DEMAND AGAINST THE ESTATE OF THE DECEASED PERSON OR
PERSON OF UNSOUND MIND.

(4) kinds of evidence inadmissible or excluded by the Rule

The rule excludes TESTIMONIES ON ANY MATTER OF FACT
OCCURRING BEFORE THE DEATH OF THE DECEASED, OR BEFORE
THE INSANE PERSON BECAME OF UNSOUND MIND.

Q: Are there exceptions to the Survivor Disqualification Rule?

A: Yes, jurisprudence provides the following exceptions:

(1) ordinary witness.

EXAMPLE: B transacts with A in the presence of X. Then A dies. If B

were to testify on any matter of fact occurring before the death of A, B is
covered because B is his (As) agent. But if B says that X will testify on
what happened during the transaction, then the rule will not apply. The rule
does not apply to ordinary witnesses. X, here, is an ordinary witness.

(2) when the plaintiff is a corporation, the officers or stockholders

thereof are not disqualified.

EXAMPLE: In the case of Lichauco vs. Atlantic Gulf & Pacific Corp. (84
Phil. 330), in behalf of a corporation, B is dealing with X. X dies. The
corporation now claims against Xs legal representative. B, who dealt with
X on behalf of the corporation, will now testify on this fact. Is he
disqualified? No, because of the second exception. B, here, is not a party
but a mere witness.

(3) when there is an imputation of fraud against the deceased, the

plaintiff is not barred from testifying to such fraud.

The reason for this: Fraud cannot be condoned. In effect, the

fraudulent act will be protected simply because you want to protect one
who is already dead. The law cannot condone fraud in any manner.

(4) when the plaintiff is the executor, administrator or legal

representative of the deceased, or a person of unsound mind, the
defendant(s) are free to testify against the plaintiff.

This rule covers a claim or demand against the estate of the

deceased or person of unsound mind. Practically here, the estate is taking

96
the defensive stance. On the other hand, if the plaintiff is the estate, and
you are the defendant, you may testify on any matter of fact occurring
before the death of the deceased or before he became of unsound mind.
This rule applies only when the executor or administrator is the defendant,
not when the executor or administrator is the plaintiff.

(5) when the survivors testimony refers to a negative fact.

Under this rule, one cannot testify on any matter of fact occurring
before the deceased died. When one testifies on any matter NOT
OCCURRING before the deceased died, that is not covered by this rule.

(6) when the survivors testimony is favorable to the deceased.

What the law seeks to protect is the estate of the deceased against
unjust claims. Claims create liabilities against the estate. In other words,
when the survivor will testify on matters which occurred before the death of
the deceased and such testimony is favorable to the latter, he may do so.

(7) when the executor or administrator waives the benefit of the Rule

GON YI vs. CA
144 SCRA 222

Facts: Three haciendas located in the municipality of Bais,

Negros Occidental, were originally owned by the Cia. General
de Tabacos de Filipinas (TABACALERA).

In 1949, Praxedes Villanueva, predecessor-in-interest of

petitioner herein, negotiated with the original owner for the sale
of the haciendas. However, Villanueva did not have the
sufficient funds. With the consent of the owner, Villanueva
offered to sell one of the haciendas to one Santiago Villegas, in
this case, substituted by Joaquin Villegas. The owner did not
agree, except with a guarantor, provided later by Gaspar
Vicente, embodied in a document. Apparently, the money
earned from the sale was not enough so Villanueva promised to
sell another hacienda in consideration of the guaranty taken by
Vicente for the sale of the 3 haciendas. This was reduced into
writing.

The amount needed to close the original deed was

debited to Vicentes account with TABACALERA. Allegedly,
Villanueva was able to raise funds to pay TABACALERA.
However, the amount was already debited to the account of
Vicente. So, it was ORALLY AGREED that lots 4 and 13 of a
hacienda would be leased to Vicente for five years, with 15%
rental gross income., to be deducted from the money already

97
 advanced to Villanueva. Lots 4 and 13 were then delivered to
Vicente.

Villanueva died. Intestate proceedings were instituted in

the CFI of Negros Occidental. Among the properties
inventoried were lots 3, 4 and 13 of a hacienda. Before the
delivery of the properties to the heirs, Vicente instituted an
action for the recovery of property (lots 4 and 13) and damages,
against Gon Yi as Administrator of Villanueva. Basing his
entitlement of the promise to sell, as documented on October
24, 1949. Gon Yi filed an answer and a counterclaim for
accounting of proceeds of lots 4 and 13 for five crop-years.

During the trial, Gaspar presented 2 witnesses testifying

on accounts before the death of Villanueva. Gon Yi testified on
the alleged verbal lease agreement.
Issue: whether or not the testimony on the accounts before the
death of Villanueva is admissible in evidence

Holding: Neither the trial court nor the appellate court erred in
ruling for the admissibility in evidence of private respondent
Vicentes testimony. Under ordinary circumstances, private
respondent Vicente would be disqualified by reason of interest
from testifying as to any matter of fact occurring before the
death of Praxedes Villanueva, such disqualification being
anchored on Sec. 20(a) of Rule 130.

Such protection, however, was effectively waived when

counsel for petitioners cross-examined private respondent
Vicente. A waiver occurs when plaintiffs deposition is taken by
the representative of the estate or when counsel for the
representative cross-examined the plaintiff as to matters
occurring during deceaseds lifetime.

More so, the Survivor Disqualification Rule cannot be

invoked where defendant testifies as to communications made
or contracts entered into with the agent or decedent while the
latter was alive. The contract or promise to sell under
consideration was signed by petitioner Gon Yi a attorney-in-fact
of Villanueva. He was privy to the circumstances surrounding
the execution of such contract and therefore could either
confirm or deny any allegations made by the private respondent
Vicente with respect to said contract.

(8) when the transaction which gives rise to the claim was transacted
to by the plaintiff and an agent of the deceased

The privilege to invoke the Dead Mans Statute is waived by the

defendant when he files a counterclaim against the plaintiff. If the executor

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or administrator is a defendant -- but in that action, he files a counterclaim
against the plaintiff, there is an automatic waiver.

EXAMPLE: A dealt with the deceased during his lifetime, but through an
agent or attorney-in-fact. Then the principal died. A files a claim against
the estate, and will testify on what happened when he dealt with the agent.
Is he barred? No, for as long as the agent is alive, A can testify as to what
happened. If the testimony will refer to the matter of fact occurring prior to
the death of the principal -- but in that dealing, the survivor dealt through an
agent or representative who is still alive, the Survivors Disqualification Rule
does not apply. the agent can rebut the witness claim.

According to the Supreme Court: the Survivor Disqualification Rule

cannot be invoked where defendant testifies as to communications made
or contracts entered into with the agent or decedent while the latter was
alive. The contract or promise to sell under consideration was signed by
petitioner Gon Yi a attorney-in-fact of Villanueva. He was privy to the
circumstances surrounding the execution of such contract and therefore
could either confirm or deny any allegations made by the private
respondent Vicente with respect to said contract.

The inequality or injustice sought to be avoided by the law does not

actually exist in the case because the agent can testify.

Q: Is this rule waivable?

A: Yes, through any of the following:
(1) by failure to object timely in the trial;
(2) when the defendant cross-examines plaintiff on prohibited
matters; or,
(3) when defendant calls his witnesses to testify on prohibited
matters.

SECTION 24. Disqualification by reason of privileged

communication. The following persons cannot testify as to matters
learned in confidence in the following cases:
(a) the husband or the wife, during or after the marriage, cannot be
examined without the consent of the other as to any
communication received in confidence by one from the other
during the marriage except in a civil case by one against the other,
or in a criminal case for a crime committed by one against the
other or the latters direct descendants or ascendants;
(b) an attorney cannot, without the consent of his client, be examined
as to any communication made by the client to him, or his advise
given in the course of, or with a view to professional employment,
nor can an attorneys secretary, stenographer, or clerk be
examined, without the consent of the client and his employer,
concerning any fact the knowledge of which has been acquired in
such capacity;

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(c) a person authorized to practice medicine, surgery or obstetrics
cannot in a civil case, without the consent of the patient, be
examined as to any advice or treatment given by him or any
information which he may have acquired in attending such patient
in a professional capacity, which information was necessary to
enable him to act in that capacity, and which would blacken the
reputation of the patient;
(d) a minister or priest cannot, without the consent of the person
making the confession, be examined as to any confession made to
or any advice given by him in his professional character in the
course of discipline enjoined by the church to which the minister
or priest belongs;
(e) a public officer cannot be examined during his term of office or
afterwards, as to communication made to him in official
confidence, when the court finds that the public interest would
suffer by the disclosure.

The first paragraph: Briefly, this is called the MARITAL COMMUNICATION

RULE. This should not be confused with Marital Disqualification Rule
under Sec. 20. They are not the same.

The essence of this rule is: When H, for example, makes a

communication to W, W cannot take the witness stand, or vice-versa.
Between the husband and the wife, it is very natural for confidential matters
to be discussed during their marriage, because of the trust and confidence
reposed by one in the other. This is necessary in order to maintain peace
in the family and the sanctity of the institution of marriage.

That is why it is objectionable for W, for example, to be asked to

testify on matters which H confided to her. ONE CANNOT COMPEL THE
SPOUSE TO REVEAL WHAT THE OTHER REVEALED.

ZULUETA vs. CA
253 SCRA 699

Facts: On March 26, 1982, Cecilia Zulueta entered the clinic of

her doctor-husband, Alfredo Martin, and in the presence of her
mother, a driver, Martins secretary, forcibly opened the drawers
and cabinets in her husbands clinic and took 157 documents
consisting of Martins correspondence with his alleged
paramour, greeting cards, canceled checks, diaries, passport
and photographs. The documents and papers were seized for
use in evidence in a case for Legal Separation and for
disqualification from the practice of medicine, which petitioner
had filed against her husband.
Dr. Martin brought this action for recovery of the
documents and papers and for damages against petitioner.

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 Holding: The documents and papers in question are
inadmissible in evidence. The constitutional injunction
declaring the privacy of communicating and correspondence to
be inviolable is no less applicable simply because it is the wife
(who thinks herself aggrieved by her husbands infidelity) who is
the party against whom the constitutional provision is to be
enforced. The only exception to the prohibition in the
Constitution is if there is a lawful order from a court, or when
public safety or order requires otherwise, as prescribed by law.
Any violation of this provision renders the evidence obtained
inadmissible for any purpose in any proceeding.

The intimacies between husband and wife do not justify

any one of them in breaking the drawers and cabinets of the
other and in ransacking them for any telltale evidence of marital
infidelity. A person, by contracting marriage, does not shed
his/her integrity or his right to privacy as an individual and the
constitutional protection is ever available to him or to her.

The law insures absolute freedom of communication

between spouses by making it privileged. Neither husband or
wife may testify for or against the other without the consent of
the affected spouse while the marriage subsists. Neither may
one be examined without the consent of the other as to any
communication received in confidence by one from the other
during the marriage, save for specified exceptions. But one
thing is freedom of communication; quite another is a
compulsion for each one to share what one knows with the
other. And this has nothing to do with the duty of fidelity that
each owes to the other.

The requisites for this rule to apply:

(a) that the husband and the wife are legally married;
(b) that a communication, oral or written, is made during the marriage;
(c) that the communication is confidential; and,
(d) that there is no case between the husband and wife.

Q: Does this mean that every communication made by H to W, or vice-

versa is privileged?
A: No, this rule is applicable only to communications made confidentially.
The intention of the spouse is to limit the circle to only the two of them.
Communications made in the presence of others are not covered.

Q: As a rule, how do we know if the communication is confidential or not?

A: There are certain rules that evolved, based on American jurisprudence,
all taken from the works of Wigmore and which are being followed in the
Philippines.

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(1) As a rule, any communication between spouses is presumed
confidential unless shown otherwise.
(2) Communications made in the presence of third persons are
confidential unless the third person is considered as an agent of the
spouses.

EXAMPLE: H wants to reveal in confidence something to W, but their

eldest child was present when he told W about his confidential matter.
Since the intention of H is to limit the confidentiality of the matter to the
three of them, the eldest child is then covered by the presumption. The
eldest child cannot be subpoenaed because he is considered as agent of
the parents.

(3) Communications overheard by third persons remain confidential

as between the spouses; but the third person who overheard the
communication may be called upon to testify.

EXAMPLE: H to W: I will reveal something to you in confidence. What

they do not know is that their nosy housemaid was there eavesdropping.
The housemaid heard everything. In a case where the above
communication is material, the housemaid is subpoenaed. H objects on
the ground of privileged communication. Is this a valid objection? No, as
between spouses, the helper is not covered by the disqualification. She is
not an agent of the spouse.

(4) Communications intended for transmission to third persons are

NOT CONFIDENTIAL.

All these rules are applicable to husband and wife. But they are also
applicable by analogy to other privileged communications.

Q: Is the privilege waivable?

A: Yes, by any of the following acts:
(1) by not objecting to the testimony of the spouse; or
(2) by calling your spouse to testify on privileged matter.

Q: What are the differences between Marital Disqualification Rule and

Marital Communication Rule (bar question)?
MARITAL MARITAL COMMUNICATION RULE
DISQUALIFICATION RULE
Requires that one of the does not require that one of the
spouses be party to a case. spouses be a party to a case.

Applies to any fact refers only to confidential

communications during the marriage.

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Claimable only during the claimable during the marriage or
marriage afterwards (even when the marriage is
already dissolved). What is important is
that the communication was made or
given while they were still married.

(b) an attorney cannot, without the consent of his client, be examined

as to any communication made by the client to him, or his advise
given in the course of, or with a view to professional employment, nor
can an attorneys secretary, stenographer, or clerk be examined,
without the consent of the client and his employer, concerning any
fact the knowledge of which has been acquired in such capacity;

This is known as the ATTORNEY - CLIENT PRIVILEGED

COMMUNICATION. The following are its elements:
(1) there must be an attorney and client relation;
(2) there must be a communication made by the client to the attorney,
or advice thereon given by the attorney to the client;
(3) the communication or advice must have been given confidentially;
and,
(4) the communication must have been made in the course of or with
a view to professional employment (there is no necessity that an
employment contract exists)
According to Wigmore, the reason for this is: To promote the
confidence of the people in lawyers, for their work is essential to the
administration of justice and to encourage the freedom of consultation of
lawyers and clients. Clients will feel confident in revealing to the lawyer
everything that is necessary, because they know that the information will
not be leaked out.

Q: Does the lawyer-client privilege extends to revealing the name of the

client?
A: NO. According to the Supreme Court in the case of Regala vs.
Sandiganbayan (infra), a lawyer may not invoke the privilege and refuse to
divulge the name or identity of his client because:
1) the court has a right to know that the client whose privileged information
is sought to be protected is flesh and blood;
2) the privilege begins to exist only after the attorney-in-fact relationship has
been established. The attorney-client privilege does not attach until
there is a client;
3) the privilege pertains to the subject matter of the relationship;
4) due process considerations require that the opposing party should, as a
general rule, know his adversary.

Notwithstanding these considerations, the general rule is,

nevertheless, qualified by some important exceptions:

103
1) client identity is privileged where a strong probability exists that revealing
the clients name would implicate that client in the very activity for which
he sought the lawyers advise;
2) where disclosure would open the client to civil liability, his identity is
privileged;
3) where the governments lawyers have no case against an attorneys
client unless, by revealing the clients name, the said name would furnish
the only link that would form the chain of testimony necessary to convict
an individual of a crime, the clients name is privileged.

REGALA vs. SANDIGANBAYAN

262 SCRA 122

Facts: The PCGG instituted a complaint against Eduardo

Cojuangco before the Sandiganbayan for the recovery of
alleged ill-gotten wealth, which includes shares of stocks in
certain corporations. Included as defendants are some
partners of ACCRA Law Firm who performed legal services for
its clients, which included, among others, the organization and
acquisition of business associations and/or organizations, with
the correlative and incidental services where its members acted
as incorporators, or simply, as stockholders. As members of
the ACCRA Law Firm, petitioners and private respondent Raul
Roco admit that they assisted in the organization and
acquisition of the companies included in Civil Case No. 0033,
and in keeping with the office practice, ACCRA lawyers acted
as nominees-stockholders of the said corporations involved in
sequestration proceedings.

Issue: whether or not lawyers can be forced to reveal the

identity of the client and in relation to the fiduciary relationship
between them.

Holding: No, they cannot be obliged to reveal the clients

identity. It is quite apparent that petitioners were impleaded by
the PCGG as co-defendants to force them to disclose the
identity of their clients. Petitioners are being prosecuted solely
on the basis of activities and services performed in the course
of their duties as lawyers. Obviously, PCGG has no valid cause
of action as against petitioners and should exclude them from
the complaint.
The nature of lawyer-client relationship is premised on
the Roman Law concept of locatio conductio operarum
(contract of lease of services). But more than a mere agent, a
lawyer is also as independent as the judge because in him is
reposed by his client special trust and confidence. Moreover,
an attorney also occupies what may be considered as a quasi-
judicial office since he is in fact an officer of the Court and

104
 exercises his judgment in the choice of courses of action to be
taken favorably to his client.

As a matter of public policy, a clients identity should not

be shrouded in mystery. However, analyzing the case at bar,
such falls under one of the recognized exceptions to the rule.
Informations relating to the identity of a client may fall within the
ambit of the privilege when the clients name itself has an
independent significance, such that disclosure would then
reveal client confidences.

Q: Does an attorney-client relationship imply that there is a FORMAL

CONTRACT with respect to the case?
A: No, the law also covers communications made in the course of or WITH
A VIEW to professional employment.

According to decided cases in the United States, when a client

approaches a lawyer with the intention of hiring his services, although the
client did not turn out to hire such lawyer, communication made between
them are still covered by the privilege because this is with a view to
professional employment.

Q: What does professional employment mean? Does this mean that there
should already be a case? Can there be attorney-client relationship even
if there is no case?
A: It is not necessary that there be a case. Even the mere giving of
LEGAL ADVICE is covered. There is still professional employment in this
case.
Suppose the client, in the course of talking with his lawyer, showed
the latter some documents. Such documents are now in the possession of
the lawyer. QUESTION: Can the lawyer be compelled by subpoena duces
tecum to produce the documents in court?
A: No, without the consent of the client. This is still part of the privilege.
The word communication is not limited to only verbal but also ORAL
documents.

Q: May the lawyer be asked only about the execution, delivery, existence,
or possession of these documents?
A: Yes, for as long as the lawyer is not asked about the CONTENTS of the
documents.

The law says that an attorney cannot be examined as to any

communication made by the client to him, or his advice to the client.
QUESTION: Since the lawyer cannot be asked about what his client told
him, what if it is the client who is subpoenaed to ask him what he told his
lawyer, is this allowed?
A: Our laws are not clear about this issue. But it would be absurd if the
client would not be covered by the privilege. Otherwise, the privilege would
be indirectly violated. According to American courts: either way -- whether

105
it is the lawyer or the client -- they are all covered by the privilege. Neither
the lawyer nor the client can be compelled.

Take note that the above privilege, by express provision of law,

covers not only the lawyer but also his staff: secretary, stenographer or
clerk. This is really an express agency. Lawyer-client relationship
expressly adheres to the principle of agency. This is because the secretary
and staff of the law office practically know everything because they
prepare, i.e., typed, and read the pleadings, see the documents, take notes
during interviews, etc. That is why these people cannot be subpoenaed.
Q: If a client wishes to hire the services of a lawyer to give the former
advice in order to steal something, is this covered?
A: No. This is not professional employment within the meaning of the law.
The lawyer cannot be hired for the purpose of seeking his advice on how to
commit a crime or wrong in the future. That is not part of the job of the
lawyer.

Q: But if a person has already committed a crime, then he goes to his

lawyer and tells the latter that he did it. Is this covered?
A: Yes. This is precisely the reason why there is a Lawyers Oath. A
lawyer may be compelled to testify on communications made to him by his
client for a future crime or wrong. But a lawyer may not be compelled to
testify on communications made to him as to a past crime or wrong,
because this communication is protected.

Q: What is the duration of the privilege? How long will this last?
A: Forever. For the rest of the lawyers life, even when the person is no
longer his client. However, the privilege will not apply to an action filed by
the lawyer against his client. This exception is for the protection of the
lawyer. In this case, the privilege is waived.

Q: How can the client waive the privilege?

A: The client can waive it by not objecting. He can even subpoena his own
lawyer to testify if he wants his lawyer to do so.

(c) a person authorized to practice medicine, surgery or obstetrics

cannot in a civil case, without the consent of the patient, be examined
as to any advice or treatment given by him or any information which
he may have acquired in attending such patient in a professional
capacity, which information was necessary to enable him to act in
that capacity, and which would blacken the reputation of the patient;

Briefly, this privilege is known as the PRIVILEGE OF PHYSICIAN

AND PATIENT. The following are its requisites:
(a) the privilege is claimed in a civil case;
(b) it is claimed against a person duly authorized to practice
medicine, surgery or obstetrics;
(c) the information was acquired by such person while attending to
the patient in his professional capacity;

106
 (d) the information is necessary to enable the person to act in his
professional capacity;
(e) the information is confidential; and,
(f) if disclosed, the information will blacken the reputation of the
patient.

So, the doctor cannot, in a civil case, disclose information as to the

illness of a patient, the nature of the illness, as well as other information
obtained by the doctor in the process of consultation with his patient.
Especially when such disclosure will blacken the reputation of the patient
(for example, because he has gonorrhea, AIDS, or HIV, etc.).
The law says: person duly authorized to practice medicine... Who
are these people? Obviously, those who took the Board Exams, passed it,
and are licensed to practice. Fourth year medical students are required to
undergo practicum in hospitals. They are assigned to patients also. Does
the privilege apply to them? May an intern be asked any information
regarding his patient?
ANSWER: Yes, because the rule uses the word authorized, instead of
licensed. A medical intern is not yet licensed but is authorized to
practice medicine.

The purpose of this privilege is to promote confidence between the

doctor and his patient, so that the patient will not be afraid that what he is
revealing to his doctor may be divulged to the courts of justice, similar to
lawyer-client.

According to American jurisprudence: This privilege is intended to

facilitate and make safe, full and confidential disclosure by patient to
physician of all facts, circumstances, and symptoms, untrammeled by
apprehension of their subsequent and enforced disclosure and publication
on the witness stand, to the end that the physician may form a correct
opinion and be enabled safely and efficaciously to treat his patient. If vital
information is withheld from the lawyer or doctor, his theory and
preparations may be affected.

Q: When is there professional employment in order for the privilege here

to apply?
A: It is not necessary that there be an ailment on the part of the patient in
order for the privilege to apply. There is employment of such physician
when he is called for the purpose of treatment whether curative, palliative
or preventive. Sometimes, when one consults a physician, it is precisely to
avoid getting sick. One does not go to a physician only when actually
already sick. This is covered by the privilege.

Q: Is there professional employment when the doctor is engaged to abort a

fetus of a pregnant woman?
A: None. That is a criminal act under Philippine Laws. Abortion is a crime
punishable under the Revised Penal Code. the woman is actually
criminally liable as well as the doctor. So, this is not covered by the

107
privilege. There is no privilege which can be created or embodied in a
crime of, or in violation of law. There is no physician-patient relationship
when the patient solicits the physicians services for the procurement of a
crime such as aborting a fetus.

The above privilege extends to charts, medical records, etc. It covers

not only the medical testimony of the doctor but also includes his affidavits,
certificates, prescriptions and hospital records.

As in lawyer-client privilege, doctor-patient privilege lasts forever,

even after the termination of the doctor-patient relationship. After the
patient is cured, it is possible that he will not come back to the same
physician. When he goes to another physician, the first physician is not
free to announce to everybody what happened to the patient before.

KROHN vs. CA
233 SCRA 146

Facts: On June 14, 1964, Edgar Krohn Jr. and Ma. Paz
Fernandez were married. Their marriage was a stormy one,
which prompted Paz to undergo psychological testing, an effort
to ease the marital strain, which later proved to be futile,
because in 1973, they finally separated in fact.

In 1975, Edgar was able to secure a copy of the

confidential psychiatric report, which was prepared and signed
by Pazs doctors. Such report was presented by Edgar to the
Tribunal Metropolitan Matrimoniale, which nullifies the church
wedding on 1979.

On October 1990, Edgar filed a petition for the annulment

of his marriage and cited the confidential psychiatric report.
During the hearing, Edgar tried to testify as to the contents of
the psychiatric report which was objected to on the ground that
it violated the rule on privilege communication between
physician and patient under Sec. 24(c) of Rule 130 of the 1989
Revised Rules on Evidence.
The trial court ruled in favor of Edgar, thus admitting his
testimony, which was also upheld by the CA. Hence, this
instant petition for review.

Issues: (1) whether or not the testimony of the husband as to

the contents of the confidential psychiatric evaluation report
violates the rule on privilege communication between physician
and patient.
(2) whether or not such testimony is admissible in
evidence.

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 Holding: Petitioners discourse is misplaced. In Lim vs. CA
214 SCRA 273), the requisites in order that the privilege may
be successfully invoked were laid down:
(a) the privilege is claimed in a civil case;
(b) the person against whom the privilege is claimed is one
duly authorized to practice medicine, surgery or
obstetrics;
(c) such person acquired the information while he was
attending to the patient in his professional capacity; and
(d) the information was confidential and if disclosed would
blacken the reputation of the patient.

In the instant case, the person against whom the privilege

is claimed is simply the patients husband, who does not plainly
and clearly fall within the claimed prohibition. Neither can his
testimony be considered a circumvention of the law, because
his testimony cannot have the force and effect of the testimony
of the physician who examined the patient and executed the
report.

As to the second issue, due to petitioners counsels

failure to object to the testimony on the ground that it was
hearsay, counsel waived his right to make such objection and
consequently, the evidence offered may be admitted.

Q: Are incidental check-ups given by a doctor outside his clinic or hospital

covered by the privilege (similar to that given by a lawyer while he is
drinking coffee and is approached by somebody who asks for legal
advice)?
A: As to the lawyer, there is no lawyer-client relationship here. The
prospective client is merely seeking free legal advice. Such advice would
not likely blacken the reputation of the prospective patient. furthermore,
professional employment is not the only requirement. Therefore, this is not
covered by the privilege.

Q: If there is an AIDS patient in one of the hospitals here in Davao City,

may his doctor be summoned by the City Council to answer questions
regarding the patient?
A: The City Council is not a court of justice. It seems that the Council will
as much as possible refer to anonymous subjects to protect also the
patient. But if the Council does not identify the patient, its purpose would
not be to blacken the reputation of the patient but to isolate him in order to
prevent the further spread of the disease. This is even covered by the
police power of the state.

Q: Does the privilege on physician-patient extend also to the doctors

secretary, medical technologist, clerks, etc.?

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A: The law is silent, but by analogy -- yes. They are covered under the
principle of agency. One cannot subpoena the medical clerk, for example,
to bring the medical records, instead of the doctor.

(d) a minister or priest cannot, without the consent of the person

making the confession, be examined as to any confession made to or
any advice given by him in his professional character in the course of
discipline enjoined by the church to which the minister or priest
belongs;

This is called the PRIVILEGE BETWEEN THE PRIEST AND THE

PENITENT. Its purpose is: To preserve the sanctity of the confessional
institution. This practically applies most to the Catholic Church, with
respect to confession -- the Sacrament of Reconciliation.
The following are its elements:
1. there must be a relationship of priest and penitent;
2. there must be confession or advice given thereon by the priest to a
penitent;
3. the confession must have been made in the course of the discipline
enjoined by the church to which the minister or priest belongs
(Confession given in the priests professional capacity).

It does not necessarily mean that every time one approaches a priest,
he is making a confession, thereby creating a priest-and-penitent
relationship. One must apply for the Sacrament of Confession in order for
the privilege to apply. Ask for the minister, not the person.

PROBLEM: Somebody was confessing to a priest. They did not notice

that the sacristan was eavesdropping. The boy heard everything, which
turned out to a confession regarding murder. Then the boy was
subpoenaed to testify on what the accused confessed. QUESTION: Is the
boy disqualified? ANSWER: The marital privilege is applicable by analogy
here. The Sacristan is not disqualified because he is an eavesdropper
here. He overheard the confession, unless there is a clear agency or if it
was intended that he was to be the agent of the priest -- in which case, he
is to be covered by the privilege. BUT, there is no such thing as agency in
confession. (On the other hand, pursuant to the Code of Canon Law, as
amended, a person who heard the confession of another, and who
revealed the contents of such confession is excommunicated ipso facto.)

If a priest is suspecting his assistant to be stealing money from the

church, and the priest catches him, the priest is not prohibited from
revealing the truth, because the assistant did not ask for the priests
services. Or, for example, somebody confessed to a priest that he was
planning to kill somebody on a particular date at a particular place. The
priest cannot reveal that. The priest may only attempt to save the intended
victims life by himself, or choose to keep silent about the entire thing...

Q: Is there waiver of this privilege?

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A: None. There is no such thing as authorizing the priest to testify on the
matters communicated during the confession. If the penitent decides to
reveal the communication during the confession, then he should testify
himself instead of the priest doing it. There is no waiver of the privilege
here.

(e) a public officer cannot be examined during his term of office or

afterwards, as to communication made to him in official confidence,
when the court finds that the public interest would suffer by the
disclosure.

Briefly, this is the PRIVILEGE OF STATE SECRETS. Its elements:

(1) there must be confidential, official communication;
(2) the communication must have been made by a public officer;
and
(3) the disclosure of the communication would affect public
interest.

When one works in the government, because of the nature of such a

job, he gets hold of confidential matters -- secrets on violations of law,
those affecting national security and national interest. Such person cannot
be subpoenaed to reveal such matters in court. These matters, covered by
the privilege, are classified information.

However, in the case of Lansang vs. Garcia (42 SCRA 448), the
Supreme Court made an exception to this privileged. Although it allowed
the disclosure of state information, it, nevertheless, held that such should
be done in closed door sessions with only the immediate parties and their
counsel present to determine claims that because of subversion there was
imminent danger to public safety warranting the suspension of the writ of
habeas corpus. And again in the case of Marcos vs. Manglapus (177
SCRA 688), the Court met behind closed doors to receive military briefings
on the threat posed to national security by the return to the country of the
former President and his family.

ALMONTE vs. VASQUEZ

244 SCRA 286

Facts: Ombudsman Conrado Vasquez investigated an

anonymous letter alleging that funds representing savings from
unfilled positions in the Economic and Intelligence Bureau
(EIIB) had been illegally disbursed by the Commission of
Customs. Commissioner Almonte denied the allegations in the
letter, contending that the only funds released to his agency by
the Department of Budget & Management were those
corresponding to 947 plantilla positions which were filled.
Thereupon, Vasquez issued a subpoena duces tecum to the
chief accountant and records custodian of the EIIB to produce
all documents relating to personal services funds for the year

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1988 and all evidence, such as vouchers salary for the whole
plantilla of EIIB for 1988.

Petitioner refused on the ground that knowledge of EIIBs

documents relative to its personal services funds and its
plantilla will necessarily lead to knowledge of its operations,
movements, targets, strategies and tactics and the whole of its
being, and it could destroy the EIIB.

Issue: whether or not the EIIB can be ordered to produce the

questioned documents on the plea that such documents are
classified.

Holding: At common law, a government privilege against

disclosure is recognized with respect to state secrets bearing
on military, diplomatic and similar matters. This privilege is
based upon public interest of such paramount importance as in
and of itself transcending the individual interests of a private
citizen, even though, as a consequence thereof, the plaintiff
cannot enforce his legal rights. On the other hand, where the
claim of confidentiality does not rest on the need to protect
military, diplomatic or other national security secrets but on a
general public interest in the confidentiality of his conversations,
courts have declined to find in the Constitution an absolute
privilege of the President against a subpoena considered
essential to the enforcement of criminal laws.
In the case at bar, there is no claim that military or
diplomatic secrets will be disclosed by the production of records
pertaining to the personnel of the EIIB. Indeed, EIIBs function
is the gathering of evaluation of intelligence reports and
information regarding illegal activities affecting the national
economy, such as but not limited to, economic sabotage,
smuggling, tax evasion, dollar salting. Consequently, while in
cases which involved state secrets it may be sufficient to
determine from the circumstances of the case that there is
reasonable danger that compulsion of the evidence will expose
military matters without compelling production. No similar
excuse can be made for a privilege resting on other
considerations. The only item of expenditure which should be
treated as strictly confidential because it falls under the
category of classified information is that relating to purchase of
information and payment of rewards. However, reasonable
records should be maintained and kept for inspection of the
Commission on Audit. All other documents are to be
considered as unclassified and therefore, subject to reasonable
inquiry by the COA.

Above all, even if the subpoenaed documents are treated

as presumptively privileged, this decision would only justify

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 ordering their inspection in camera but not their nonproduction.
However, as a concession to the nature of the functions of the
EIIB and just to be sure no information of a confidential
character is disclosed, the examination of records in this case
should be made in strict confidence by the Ombudsman
himself.

Q: What is meant by public interest?

A: According to American jurisprudence. Public interest means more than
a mere curiosity; it means something in which the public, the community at
large, has some peculiar interest by which their legal rights or liabilities are
affected. It does not mean anything so narrow as to interest the particular
localities which may be affected by the matters in question. In American
case, it was said that: the privilege of a public officer not reveal information
is strictly construed. The burden is upon the party seeking to suppress the
evidence to show that it is within the terms of the rule or statute.

The general rule is: People should have access to public information.
There should be freedom of disclosure of information. But if one claims
that public interest requires the disclosure of the information, the burden
falls upon that public officer. This is the exception. It must be shown to
affect public interest.

Q: Is this privilege waivable?

A: No. Because this affects public interest.

Q: What is the duration of the privilege?

A: There is still a bar even when the public officer is no longer in
government service.

The most prevalent violations of this privilege are American CIA

retirees. Some of them write identities of their agents by what they are
doing.

2. Testimonial Privilege

SECTION 25. Parental and filial privilege. No person may be

compelled to testify against his parents, other direct ascendants,
children or other direct descendants.
Suppose, a man committed a crime and his son or daughter, or
grandchild witnessed the commission of the crime. So, the star witness is
a descendant of the killer. Or vice-versa, a man committed a crime,
witnessed by his parent(s) or grandparent(s). The prosecution now wants
to utilize the descendant or ascendant against the killer. Can the witness
refuse to testify against the killer?
A:: Yes. This is covered by parental and filial privilege. No person may be
compelled to testify against his PARENTS, OTHER DIRECT
ASCENDANTS, CHILDREN OR OTHER DIRECT DESCENDANTS. The

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reason for this is: to preserve the sacred sentiments between members of
the same family.

If you look at the general rule, a witness, in the commission of a

crime, is a witness for the People of the Philippines. So, he can be
compelled to testify for the State. But this is different. So, if the accused is
the witness own parent, other ascendant, child or other descendant, the
witness cannot be compelled to testify against the accused.

Q: Suppose the witness is a child of the accused, and the former

voluntarily testifies against the latter. Can the father disqualify the child?
A: No, the father cannot prevent his son from testifying against him, where
the latter himself voluntarily offered to testify. What is prohibited is
compulsion of the witness mentioned in Sec. 25. If a witness voluntarily
testify, it is alright because there is no prohibition. That is why this is not a
disqualification where the witness can be barred from testifying. It is a
privilege, not a disqualification. So, if the witness wants to testify, the
accused who is his ascendant or descendant cannot prevent him from
doing so. But if the witness does not want to testify against the accused,
the former cannot be compelled to do so.

There are two privileges under this Section:

Parental Privilege the witness cannot be compelled to testify against
his child or other direct descendant.
Filial Privilege the witness cannot be compelled to testify against his
parent or other direct ascendant.

HISTORY: Under the 1964 Rules, there was filial privilege, but there was
no parental privilege so that technically, under the said rule, an ascendant
could be compelled to testify against his descendant. But a descendant
cannot be compelled to testify against his ascendant. Now, under the 1989
amendments, the rule works both ways -- filial and parental.

Under the Civil Code, there was the old Article 315, and its
counterpart in Sec. 20, Rule 130 of the 1964 Rules of Court. The language
of these two provisions was: No descendant can be compelled, in a
criminal case, to testify against his parents and ascendants. However,
The new law is Article 215 of the Family Code, and its counterpart in Sec.
25, Rule 130 of the 1989 Revised Rules of Evidence. However, the
language now of Art. 215 of the Family Code is not the same as the
language of Sec. 25, Rule 130. There is no problem had these two
provisions been the same, but if you go over them, they are different from
each other:

Art. 215. No descendant shall be compelled, in a criminal case, to

testify against his parents and grandparents, except when such testimony
is indispensable in a crime against the descendant or by one parent
against the other.

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 Compare this with Sec. 25, Rule 130. there is a patent variation
between these two provisions.

Q: Can an ascendant be compelled to testify versus his children and other

direct descendants?
A: No, based on Sec. 25, Rule 130 -- Parental privilege. However, the
answer to this would be YES, under Art. 215 of the Family Code because it
only says: no descendant x x x . There is no mention about ascendants.
So, Art. 215, Family Code borrowed the language of Art. 315, Civil Code.
There is filial privilege, but not parental privilege.

Q: A descendant is being compelled in a civil case to testify against his

parents. Is this allowed?
A: Yes, because Art. 215 of the Family Code says: no descendant shall
be compelled, in a CRIMINAL case x x x . So, if the case is a civil action,
a descendant can be compelled to testify against his parent or grand parent
because again, Art. 215 borrowed the language of Art. 315 of the Civil
Code. However, Sec. 25, Rule 130 does not state whether the case in
which he cannot be compelled is criminal or civil.

So, what is yes in the Family Code is no under the 1989 Rules on
Evidence.

Q: A man killed his wife in the presence of their child. If the child is willing
to testify, there is no problem about that. But suppose the child does not
want to testify, and the prosecution says that it has no other choice but to
compel the child. Can the child be compelled to testify against his father in
a parricide case committed against his mother?
A: Yes, the child now may be compelled to testify against his father in a
parricide case committed against his mother, because Art. 215 of the
Family Code says: x x x except when such testimony is indispensable in a
crime against the descendant or BY ONE PARENT AGAINST THE
OTHER. On the other hand, under Sec. 25, Rule 130, the child cannot be
compelled to testify against his father even in a crime of parricide
committed against his mother, because Sec. 25 does not provide for any
exception. The filial and parental privilege rule is ABSOLUTE, whoever is
the victim. This is a gray area, since there is no complete harmony
between the Family Code and the 1989 Rules on Evidence. Authorities on
Remedial Law has yet to come up with commentaries about the conflict,
and there is no decided cases yet on this point.

Q: But assuming there is a conflict, which will prevail (Remember that the
Family Code took effect in 1988, while the Revised Rules on Evidence took
effect in 1989. When the UP Law Center was drafting the Family Code,
and a Committee was amending the Rules on Evidence almost at the
same time, they did not consult each other. So, they came out with two
different provisions. The old provisions were an exact opposite. The Civil
Code was passed in 1950, and the Supreme Court, when it drafted the

115
1964 Rules of Court, patterned it after and harmonized it with the
substantive law.)?
A: While the 1989 Rules on Evidence is more recent in time, the Family
code prevails because substantive law prevails over procedural law. The
Rules of Court cannot amend or modify the Family Code, which is a
substantive law.

3. Admissions and Confessions

SECTION 26. Admission of a party. The act, declaration or

omission of a party as to a relevant fact may be given in evidence
against him.

Q: Define ADMISSION.
A: Admission is the act, declaration or omission of a party as to a relevant
fact, and which may be given in evidence against him.
When we hear the word admission, what comes to our minds is that
it is an oral statement. But under the law, an admission is not limited to
verbal or written statements. It may be an ACT. Without saying anything,
what one does may be considered as an admission. It may also be an
OMISSION. Failure to act or silence may be considered an admission.

EXAMPLE: A owes X money, and here comes X saying to A, You havent

paid up yet your debt to me. Assuming there is no promissory note -- so
there is no evidence of As obligation to X. When X sues A for collection, A
denies having borrowed money from him. So, the issue is: whether or not
A borrowed money from X. Suppose X, the plaintiff, uses Y as a witness
for the latter to testify that 2 years ago, Y had a conversation with A (the
defendant) wherein Y mentioned that he owes X a big amount of money.
So, what defendant said years ago to another person is now being used
against him.
However, suppose, the act, declaration or omission of a party as to a
relevant fact is FAVORABLE to him. His admission is evidence against
him, but is it evidence FOR him? May the defendant use his admission as
evidence to favor him? ANSWER: No. That is considered as a self-
serving evidence or admission.

Q: Define SELF-SERVING EVIDENCE or ADMISSION.

A: Self-serving evidence is an admission FAVORABLE to the party making
it. Meaning, such party wants to use it as evidence for himself. But the law
says it is INADMISSIBLE in evidence for or to favor the offeror.

EXAMPLE: The conversation between A and Y:

A: Do you know X?
Y: Yes, why?
A: because that man tells everybody that I owe him money.
But the truth is, I do not owe him anything. I never borrowed
money from him.

116
 One year later, X sues A to collect the loan. As position is the same
-- that he does not owe X any money. And on order to prove this, A uses Y
as his witness. So, Y is now called to the witness stand:
COUNSEL:
Mr. Y, do you remember the conversation that you had with A
one year ago?
Y:
Yes.
COUNSEL:
What was the conversation about?
Y:
It was about the supposed debt which X claimed that A owed
him.
COUNSEL:
So, does A owe X any amount?
Y:
No.
COUNSEL:
Why do you say that A does not owe X any amount?
Y:
Thats what A said. He told me that he doesnt have any debt
with X.

Q: What kind of evidence is that? A is using his own statement to favor

himself. It is a different matter if the testimony is used AGAINST A. The
statement of Y against A may be used by X against A. But the statement
made by Y in As favor cannot be used by A in his favor.

Q: What is the reason why self-serving statements are inadmissible to

favor the offeror?
A: A person can be believed when he says something AGAINST himself,
but not when he says something to FAVOR his own interest. So, a
persons own admission is evidence against him, but is not evidence for
him.

BAR QUESTION: A was walking with his dog. While walking, A met X. X
remarked, Oh, what a beautiful dog. Whose dog is that? A answered,
Mine, of course. Later on, B filed a case against A for replevin to recover
the dog, because according to B, the dog is really his. But A says that the
dog is his, not Bs. ISSUE: Who owns the dog, A or B?

This time, it is A who called X to testify on the ownership of the dog:

COUNSEL:
Who owns the dog?
X:
A.
COUNSEL:
Why do you say that A is the owner?
X:

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 Because A said so. A told me that he is the owner, so he is the
owner.
So, that is an illustration of a self-serving statement. If the plaintiff
and defendant quarrel over the ownership of a dog, the defendant (A)
cannot use the statement of X to prove that he (A) is the owner. But if A
denies ownership of the dog, because it bit somebody, As statement to X is
admissible against him (A).

Self-serving statements and hearsay belong to the same family.

In the previous example, everytime a party testifies in his favor, his

statement is inadmissible. Suppose in a collection suit, the issue is: Does
defendant owe the plaintiff (a particular amount)? Plaintiff claims that the
defendant owes him an amount. But the defendant denies the existence of
the debt. So, the plaintiff testifies for himself:
COUNSEL:
Does the defendant owe you a particular amount?
PLAINTIFF:
Yes.

That testimony is self-serving, so that it is inadmissible. If it was the

defendant who testified that he did not owe the plaintiff anything, that is
also inadmissible. Those are all self-serving.

When a party testifies, his statements would be self-serving. That is

tantamount to saying that a person cannot testify for himself. An accused
cannot testify for himself. He cannot deny committing the crime, because
such testimony would be self-serving.

Q: Is the statement of a party in the witness stand considered self-serving?

A: No. the statement that is self-serving evidence and cannot be received
refers to statements made out of court. If a party said something before
and uses it now as his evidence, that statement is inadmissible. But if he
says something now in court, that statement is not covered by the rule. So,
it is admissible.

The following case emphasizes the above distinction:

CUISON vs. CA
227 SCRA 391

Facts: Petitioner Kue Cuison is a sole proprietorship engaged

in the purchase and sale of newsprint bond paper and scrap,
with places of business at Quezon City and Binondo, Manila.
Private respondent, Valiant Investment Associates, is a
partnership duly organized and existing under Philippine Laws,
with business address at Caloocan City.

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 Private respondent delivered various kinds of paper
products amounting to almost P300,000.00 to a certain Lilian
Tan of LT Trading. The deliveries were made pursuant to
orders allegedly placed by Tiu Huy Tiac who was then
employed in petitioners Binondo branch office. Upon delivery,
Lilian Tan paid for the merchandise by issuing several checks
payable to cash at the specific request of Tiu. In turn, Tiu issued
post-dated checks ass payment for the paper products. The
said checks were subsequently dishonored by the drawee
bank.

Private respondent made several demands upon

petitioner to pay for the merchandise, claiming that Tiu was duly
authorized by petitioner as manager of its Binondo branch
office, to enter into the questioned transactions with private
respondent and Lilian Tan. Petitioner denied any involvement
in the transaction entered into by Tiu and refused to pay private
respondent the amount corresponding the selling price of the
merchandise delivered.

Petitioner, in trying to discredit witness Villanueva, alleges

that his )Villanueva) testimony is clearly self-serving, inasmuch
as he worked for private respondent as his branch manager.

Issue: (1) whether or not Tiu possessed the required authority

from petitioner to hold the latter liable for the disputed
transaction.
(2) whether or not Villanuevas testimony is self-serving
and thus inadmissible.

Holding: (1) It is evident form the records that by petitioners

acts and admissions, he held out Tiu to the public as the
manager of his store in Binondo. The following are specific
instances:
(a) petitioner explicitly introduced Tiu to respondents
manager, Villanueva, as its branch manager. This was
testified to by Villanueva. (this is the self-serving
statement adverted to)
(b) Lilian Tan, who had been doing business with petitioner
for quite a while, also testified that she knew Tiu to be the
manager of petitioners Binondo store
(c) Tiu is known in the community to be the god-brother of
petitioner
(d) petitioner himself admitted in open court his close
relationship with Tiu -- that they are like brothers.

Thus, there was no reason for anybody, especially those

transacting business with petitioner, to doubt the authority of Tiu
as manager of petitioners Binondo branch.

119
 (2) The argument that Villanuevas testimony is self-
serving and therefore inadmissible on the lame excuse of his
employment with private respondent utterly misconstrues the
nature of self-serving evidence and the specific grounds for its
exclusion. Self-serving evidence is evidence made by a party
OUT OF COURT at the time; it does not include a partys
testimony as a witness in court. It is excluded on the same
ground as any hearsay evidence, that is the lack of opportunity
for cross-examination by the adverse party, and on the
consideration that its admission would open the door to fraud
and to fabrication of testimony. On the other hand, a partys
testimony in court is sworn and affords the other party the
opportunity to cross-examine the witness.

Of greatest weight than any of the above testimonies is

petitioners categorical admission on the witness stand that Tiu
was the manager of his store in Binondo. Such admission,
spontaneous no doubt, and standing alone, is sufficient to
negate all the denials made by petitioner regarding the capacity
of Tiu to enter into the transaction in question. the above act,
taken together with the declaration of petitioner in open court
amount to admissions under Rule 130, Section 22 of the Rules
of Court, to wit: the act, declaration or omission of a party as to
a relevant fact may be given in evidence against him.

Well settled is the rule that a mans acts, conduct and

declaration, wherever made, if voluntary, are admissible against
him, for the reason that it is fair to presume that they
correspond with the truth, and it is his fault if they do not. If a
mans extrajudicial admissions are admissible against him,
there seems to be no reason why his admission made in open
court, under oath, should not be accepted. against him.

Moreover, petitioners unexplained delay in disowning the

transactions entered into By Tiu despite several attempts made
by respondent to collect the amount from him proved all the
more that petitioner was aware of the questioned transactions.
Such omission is tantamount to an admission by silence under
Rule 130, Sec. 23 of the Rules of Court, thus any act or
declaration made in the presence of and within the observation
of a party who does or says nothing when the act or declaration
is such as naturally to call for action or comment if not true,
may be given in evidence against him.

All of these point to the fact that at the time of the

transaction, Tiu was admittedly the manager of petitioners
store in Binondo. Consequently, the transaction in question as

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 well as the concomitant obligation is valid and binding upon
petitioner.

So, when a party makes a statement in court, everything is in writing.

It is under oath. there is a presumption that he is telling the truth. Anyway,
he is subject to cross-examination. But when a party makes a statement
out of court, that is not under oath and there is no opportunity to cross-
examine. A party cannot use a statement he made out of court as
evidence in his favor. But when he testifies against his favor, that is not
considered as self-serving that is admissible. whether the court
believes him or not, that is another thing. That is weight, not admissibility.

Q: What are the types or classification of admission?

A: They are:
judicial admission they are admissions made in the judicial
proceeding under consideration. Section 4, rule 129 gives a complete
definition of judicial admissions: admissions, verbal or written, made by
a party in the course of the proceedings in the same case.

extrajudicial admission they are admissions made OUT OF COURT,

or in a judicial proceeding other than the one in consideration.

An admission made in a partys pleadings in a certain civil case is a

judicial admission in that case. But a statement made by a party outside
the court is an extrajudicial admission. An admission made in one civil
case is not an admission in another civil case.

So, a statement made by a party in his pleading in Civil Case #1 is a

judicial admission only insofar as Civil Case #1 is concerned. But insofar
as Civil Case # 2 is concerned, it is an extrajudicial admission, because it is
not made in the same proceedings, in the same case.

Admission may be further classified into:

Judicial (I) formal = admissions made in WRITING, such as pleadings,
motions, or stipulations of fact.
(II) informal = admissions made ORALLY, in the course of the
testimony of a party or his witnesses, or in depositions or affidavits, or
statements of counsel (when a lawyer makes an
admission in court, his client is bound by that
admission under the principle of agency).

Extrajudicial (I) express = those made in a definite, certain and

unequivocal Language.
(II) implied = those which may be INFERRED from the act,
conduct, declaration, silence or omission of a party.

The following principles show implied admission:

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1. LACHES: which is unreasonable delay in the prosecution of a suit, civil
or criminal, it gives rise to an implied admission of lack of merit because
a person really aggrieved will loss no time in seeking redress for his
grievances.

REYES vs. CA
267 SCRA 543

Facts: Zenadia Reyes was accused of falsifying a deed of sale

of four parcels of lands. Upon being arraigned, petitioner
pleaded not guilty. Trial on the merits then followed. After the
prosecution has rested its case, the presentation of the defense
evidence was scheduled to follow but was reset five times due
to the unavailability of defense counsel. On motion of private
prosecutor, the court declared petitioner to have waived the
right to present her evidence.

Issue: whether or not there was admission on the part of the

accused when she was declared in default.

Holding: To be sure, the postponement of the trial of a case to

allow the presentation of evidence of a party is matter of judicial
discretion, but it is a discretion which must be exercised wisely,
considering the peculiar circumstances obtaining in each case
and with a view to doing substantial justice. It was the defense
counsels absences that were the cause for the defenses
failure to present its evidence. The negligence of Atty. Tenorio,
the defense counsel, did not consist in error of procedure or
even a lapse in strategy, but something as basic as failing to
appear in court.

Keeping in mind that this case involves personal liberty,

the negligence of counsel was certainly so gross that it should
not be allowed to prejudice petitioners constitutional right to be
heard. Judicial conscience certainly cannot rest easy on a
conviction based solely on evidence of the prosecution just
because the presentation of the defense evidence has been
barred by technicality. Indeed, to deny petitioner the
opportunity to present her evidence on the merest chance that
she might be innocent would be to disregard the wisdom that it
is better to acquit ten guilty individuals than to convict one
innocent person.

2. FLIGHT & CONCEALMENT: the flight and concealment of an accused

is an implied admission of guilt, for as the old saying goes: the guilty
man flees even if no one pursues him; but the innocent man stands bold
as a lion.

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 EXAMPLE: X is a suspect in a crime and he is tried. Evidence
shows that after the crime was committed, he left his hometown, went
into hiding, and it took the authorities several years to arrest him.

Flight and concealment is considered circumstantial evidence.

It is evidence on collateral matters which shows the probability or
improbability of the fact in issue. It is a SUBSEQUENT collateral
matter because after the commission of the crime, the offender runs
away.

Suppose the accused claims that he did not flee from the scene
of the crime. That after its commission, he stayed all along and even
attended the wake of the victim. Since he did not flee, he is not guilty.
The Supreme Court said: There is no contrary rule. There is a rule
that flight is indicative of guilt, but there is no rule that non-flight is
evidence of innocence.

3. INFLUENCE: An attempt to influence witnesses, whether the influence

tended to bring forth false testimony or to suppress evidence, is an
implied admission by the party making it that he has NO CASE, for if he
had, it would not be necessary for him to fabricate or suppress evidence.

EXAMPLE: One tries to influence the witnesses against him not to

testify through friends or through reward. Others buy witnesses.
Sometimes, others solicit the assistance of influential people to
pressure the other party not to file a case.

These things can be proven in court. And the implications are

as stated above.

4. Efforts of an accused to have the case dropped through the help of

relatives and various influential people is a strong indication of guilt, for
the innocent depends on the strength of his case.

5. The unreasonable refusal of plaintiff in personal injury cases to submit to

a physical or medical examination is evidence bearing upon his good
faith, just as in any other case of a party declining to produce the best
evidence. Said refusal gives rise to an adverse inference.

EXAMPLE: The refusal of Hubert Webb to submit to a sperm test is

a point against the defense. The result of the sperm test is not really
accurate, but it will help the case of the prosecution. The refusal is
not a conclusive indication of Webbs guilt, but definitely it will weaken
the defense.

6. A change for the better in the financial condition of a person accused of a

crime involving money, immediately or shortly after the date of the crime,
may be shown upon the theory that sudden and unexplained possession
of funds has a tendency to connect said person with the crime.

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 EXAMPLE: There is a robbery. X is a suspect. One piece of
evidence against him is that after the crime, he suddenly became
affluent. the sudden change in his financial status may show that he
is connected with the robbery committed. Before the robbery, X
would bet only P30 to P50 in cockfights, but after the robbery, his bet
ranged by the hundreds and thousands.

7. Emotion

BAR QUESTION: There was an accident involving the derailment of

a train. The passengers sued the railroad company for damages due
to non-repair of defective railroad tracks, which the company is
denying, No, our tracks and our trains are in good condition.
However, after the accident, the company hired people to extensively
examine the condition of the railroad tracks, trains and machines.
With this, the passengers established evidence of negligence on the
theory that if the company was really maintaining their railroad tracks,
there would be no need for it to hire mechanics to check on the
tracks. Is that theory correct?

The Supreme Court said that this theory is not correct. The
rule cannot be applied that just because they are checking their
equipment, they are negligent. Because if they will apply the rule,
there is no more incentive for common carriers to inspect their
vehicles. On the contrary, they would be deterred from inspecting
their vehicles because it would be used as evidence of negligence,
when the policy of the law is precisely to encourage them to repair
their vehicles, vessels, or aircrafts.

The US Supreme Court said: Repairs and other precautionary

measures made by the owner of the appliance after an accident or injury is
not competent evidence upon the issue of negligence, because a contrary
rule would discourage the making of improvements after an accident.

SECTION 27. Offer of compromise not admissible. In civil cases,

an offer of compromise is not an admission by law to be
compromised, am offer of compromise by the accused may be
received in evidence as an implied admission of guilt.
A plea of guilty later withdrawn, or an unaccepted offer of a plea
of guilty to a lesser offense, is not admissible in evidence against the
accused who made the plea or offer.
An offer to pay or the payment of medical, hospital or other
expenses occasioned by an injury is not admissible evidence as
proof of civil or criminal liability for the injury.

EXAMPLE: A files against B a civil case for damages, to hold him liable for
an injury sustained by A in an accident. A claims for P100,000.00; B offers
to A P50,000.00. Despite Bs offer of P50,000.00, he claims he is not liable

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because he is not at fault, or if it were Bs employees who were responsible
for the accident -- that Bs employees exercised diligence. Is Bs offer of
P50,000.00 to A tantamount to an admission that he (B) is liable for the
injuries suffered by A in the accident, and may be used as evidence of Bs
guilt in court?
A: No, Bs offer of compromise cannot be used against him. An offer of
compromise IN A CIVIL CASE IS NOT an admission and is not admissible
in evidence against the offeror of the same.

The said compromise is not tantamount to an admission which may

be used as evidence against its offeror because:
(1) In civil cases, the parties are encouraged by the court to
compromise. If an offer of compromise were to be admissible, it
would discourage the parties from coming up with a compromise.
(2) There are persons who offer to compromise not because they
are at fault but because they simply want to avoid trouble. They
would be able to avoid the expenses of litigation; therefore, it
would be cheaper to compromise. One may win in a case, but it
may have cost him a lot of his time in litigation.

The second paragraph deals about compromise in CRIMINAL

CASES. The general rule is: An offer of compromise by the accused is an
implied admission of his guilt. Because under substantive law, the victim
cannot compromise in criminal cases, especially when the offense is
against the State. The should not be any compromise.

Q: So when one is charged with murder and as the accused, he offers a

compromise (e.g., to reduce the crime charged to homicide), can such
compromise be offered in evidence as an implied admission of his guilt.
A: Yes, the compromise is admissible. Take note that this is not really an
express admission, but merely an implied admission. But for as long as
there is no consideration, the offer cannot be used against the offeror.

How about in quasi-offense (criminal negligence)? EXAMPLE: You

bump somebody while driving your car. The victim was hospitalized. Then
you are accused of physical injuries. You offer a compromise.
QUESTION: Is that offer an implied admission of your guilt? ANSWER:
No, that is an exception.

Also, it is not an implied admission of ones guilt where the offer is

made in criminal cases which are allowed by law to be compromised. So,
where the general rule is that in criminal cases, an offer of compromise by
the accused is an implied admission of his guilt, the following are the
exceptions:
1. in quasi-offenses, where there is no criminal intent. There is a crime but
it is not as bad. For example: reckless imprudence.
2. in criminal cases allowed by law to be compromised.

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 In the above-given exceptions, an offer of compromise by the
accused cannot be used against him as an implied admission of his guilt.

To compromise means to settle. The following are instances where

the law allows compromise:

(1) Under the National Internal Revenue Code, the Commissioner of

Internal Revenue has the power to compromise tax cases. Even in a
criminal case for tax evasion, a compromise may be allowed. However,
such compromise is not allowed if pardon is given prior to a case.

(2) Under the Barangay Law, there must be barangay conciliation first,
even in criminal cases. A criminal case will not be entertained by the court
if it does not pass through barangay conciliation. But this covers only minor
offenses the penalty for which is imprisonment for one (1) year or less, but
not grave offenses such as murder. Such criminal cases may not be
subject to compromise in the barangay level.

Q: What is the purpose of the above law in imposing the condition that a
case must first pass through barangay conciliation before the same may be
entertained by the court?
A: to preserve unity and harmony in the barangay.

In the above exception, the plaintiff may accept payment

(compromise) with respect to the civil aspect, but the criminal aspect is not
subject to compromise.

The third paragraph: The 1964 Rules of Court did not contain this
particular paragraph. This was introduced for the first time in the 1989
Rules on Evidence.

Q: May a plea of guilty be later withdrawn?

A: Yes, before trial.

Q: During the trial, may it be presented that a person, who at the first time
pleaded guilty, later changed his plea during pre-trial?
A: No, changing the plea cannot be considered against the person who
made the same. Recall that there can be a plea of guilty to a lesser
offense; provided, the fiscal and Prosecution agree.

ILLUSTRATION: A is charged with murder. As the accused, he says it

should be only homicide. The offended party disagrees, and contends that
by saying that murder should be reduced to homicide. A has already
pleaded guilty to homicide.

Q: May the offer of a plea of guilty to a lesser offense in a plea bargaining

be offered as evidence against the accused? Is it admissible?
A: No.

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 The rule of offer of compromise, being expanded, provides the last
paragraph as another addition: an offer to pay or the payment of medical,
hospital or other expenses occasioned by an injury is not admissible
evidence as proof of civil or criminal liability for the injury.

This is a very wise amendment in the law because in the past, people
injuring others had been forced into not complying with their obligations as
good Christians.

EXAMPLE: B, while driving his car, suddenly bumps into a pedestrian.

The victim is hospitalized. B claims that he was not at fault because he
was driving carefully. It was the pedestrian who was negligent when he
suddenly crossed the street. Therefore, B here claims to be free from any
imprudent or negligent act, and he thus will not admit of any liability
because he was totally without any carelessness or fault.

But sometimes, one has to have humanitarian sentiments. The victim

is already in the hospital, and he (B) should be morally obligated to help
him (victim). As a good Christian, B should help the victim. Later, the
victim files a case against B. Then during the trial, the victim asks B that if
he (B) were not guilty, why did he (B) pay for his (victims) medical
expenses? If such a contention of the victim may be used against the
defendant -- then all alleged offenders will never help victims of accidents.

If B acts like a Christian and shows his kindheartedness by helping

the victim, and such help would be used against him (B), then people would
not be helping each other anymore. Really, situations cannot be avoided
where one is not at fault or liable, but because of humanitarian reasons, he
will help the person. His conscience cannot bear seeing the victim
suffering in the hospital.

The last paragraph of Section 27 encourages humanitarian gesture

by people who injure others accidentally without fault. Payment of medical,
hospital or other expenses is not admissible in evidence as liability for the
injury.

SECTION 28. Admission by third party. The rights of a party

cannot be prejudiced by an act, declaration, or omission of another,
except as hereinafter provided.

This provision is known as the RES INTER ALIOS ACTA RULE

(Longer form is: Res Inter Alios Acta Nocere Non Debet.)
ILLUSTRATION: D tells some people that he owes E a sum of money.
Later, E files a case against D and all his (Ds) defenses are identical: That
D does not know anything about the debt; that he denies the existence of
the debt. In the case against D, one of the persons he talked to before
testifies that long before the case was filed, D had told him that he owes E
a sum of money. QUESTION: Is the statement of the person admissible?
ANSWER: Yes, the admission of a party is evidence against him (D). The

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statement, act or declaration made by D may be used as evidence against
him.

Another example: In a civil case against F, G is asked to testify. G says

that F owes the plaintiff money and that he (G) knows so because F told
him so.

PRINCIPLE: The act or declaration of a party cannot prejudice another.

Common sense will tell us that we are bound by what we say.

Whatever we say may be evidence against us. But it would be unfair or
inconceivable that we would be bound by the statement of other people.
Why should one be bound by the statement of another? If one wishes to
confess something, he must confess it himself. When one wishes to object
to a statement which should not bind him, he must invoke the Res Inter
Alios Acta Rule: Objection, your Honor. The statement of that person is
Res Inter Alios Acta to me. I am not bound by his statement.

Whatever statement a person makes may be used as evidence

against him, but not against others.

The general rule under the Res Inter Alios Acta Rule is: An act or
admission of a party does not bind another. But the Res Inter Alios Acta
Rule is not absolute.

Q: When may the statement or admission of another bind another person?

A: The exceptions to the Res Inter Alios Acta Rule are found in Sections
29, 30 and 31.

A statement of admission made by A is receivable in evidence against

B who is a third person or another person; provided, there exists a distinct
relationship between the parties such as in the following:
(i) partnership;
(ii) agency;
(iii) conspiracy;
(iv) joint interest; and,
(v) privity.

SECTION 29. Admission by co-partner or agent. The act or

declaration of a partner or agent of the party within the scope of his
authority and during the existence of the partnership or agency, may
be given in evidence against such party after the partnership or
agency is shown by evidence other than such act or declaration. The
same rule applies to the act or declaration of a joint owner, joint
debtor, or other person jointly interested with the party.

The law says that the act of the partner of the party must be within
the scope of his authority, and within the existence of the partnership.

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EXAMPLE: A and B are partners in a business. Since there is a mutual
agency, there is delectus personae which binds both of the partners.
Suppose A makes an admission that the partnership owes a bank or some
other person some amount of money. Then later on, the partnership is
sued by such bank or other person, and the defense of the partnership is
that it does not owe any bank or person any amount of money.
QUESTION: May the admission of A be used to proved the obligations of
the partnership? B objects and contends that he should not be affected by
the declaration made by A. Is such a contention tenable? ANSWER: Bs
contention is untenable. B is affected by the declaration given by A
because this is an exception to the Res Inter Alios Acta Rule.

WHEN THE DECLARATION IS MADE BY A PARTNER, THE SAME

IS BINDING UPON THE PARTNERSHIP; provided, the following requisites
are present:

(1) the statement refers to a matter WITHIN THE SCOPE of the

partners authority (anything beyond the partners scope is not
covered);
(2) the admission or statement is made DURING the existence of the
partnership (if the partnership is dissolved, any statement made by
a partner will no longer bind his co-partner);
(3) the existence of the partnership must be proven by evidence
OTHER THAN SUCH ACT OR DECLARATION (one must show
that there really is a partnership. The existence of the partnership
must be shown by independent evidence other than such act or
declaration).

ILLUSTRATION of the third requisite: A introduces himself to you as the

managing partner of B and C in a particular partnership. That, in behalf of
the partnership, A is making this order from you. It turns out that the
account was not paid. The partnership is sued by you and it denies the
account. You claim that the partnership is bound by the acts of A.

But how did you know that A is really the partner of B and C? You
say you know because A told you so. No, this is not a proper defense
because, in this manner, you are actually using the admission as the very
evidence of the existence of the alleged partnership. It must have been
first shown that A, B and C really are partners. There must be another
evidence presented by you in court to show that there really is a
partnership. The best evidence would be, for example, to present in court
the Articles of Partnership. In this way, you are showing the existence of
the partnership by independent evidence other than the statement of the
person who made the declaration.

The other exemption is AGENCY. the person making the statement

is the agent, and now such statement or admission is being used as
evidence against the principal. For example, A authorizes B to be his
attorney-in-fact in his business. A is the principal; B is the agent.

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 The requisites for this exception are the following:

(1) that the agent made the admission or declaration within the
scope of this authority as agent;
(2) that the admission or declaration was made while the agency
was in effect (not when there has already been a revocation of
the power of attorney);
(3) that the existence of the agency is established by independent
evidence other than the act or declaration.

The best way of proving the existence of the agency is through

presenting the power-of-attorney.

Q: Does the act, declaration or admission made by the husband bind the
wife for purposes of creating liability upon the absolute community property
or conjugal partnership of the spouses?
A: Yes, the husband and the wife are agents of each other. Either one
may bind the conjugal partnership or absolute community; provided,

(1) the act, declaration or admission was made within the scope of the
husbands or wifes authority;
(2) the property regime is still existing (it has not been dissolved and
that they are really married);
(3) the existence of the agency must be proved by evidence other than
such act, declaration or admission.

Another example of agency: When a lawyer makes a statement in court or

makes an admission, the client cannot say that he cannot be bound by his
lawyers statement or admission. In court proceedings, the lawyer is the
agent of the client. So the acts, conduct or declaration of a lawyer binds
his client in matters concerning the case. the client is the principal here.

The rule that the existence of the agency must be proved by evidence
other than the act or declaration, is also applicable to the act or declaration
of a JOINT OWNER, JOINT DEBTOR or OTHER PERSON JOINTLY
INTERESTED IN THE PARTY. An admission made by a co-owner binds
the other co-owners.
TAKE NOTE: When the law talks of joint debtors -- so there are two
debtors -- the admission of Joint Debtor 1 is binding on Joint Debtor 2.

RECALL: But under the Law on Obligations, there can be two types of
obligations: Joint Obligations and Solidary Obligations. In Solidary (joint
and several) obligations, the creditor may collect the entire obligation from
only one debtor. In joint obligations, the creditor may collect only up to his
share in the obligation.

ILLUSTRATION: B and C are joint debtors for an amount of P200,000.00.

The shares of B and C are P100,000.00 each. the creditors cannot collect
from the C the share also of B. QUESTION: But is it not that the

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admission of a joint co-debtor binds the other co-debtor? ANSWER:
According to the Supreme Court, what is contemplated under this provision
is a SOLIDARY obligation. There is no joint obligation in solidary agency.
Even if the word used in the law is joint, what is actually meant by it is
solidary. There is only one obligation. Each debtor is answerable for each
others share. This is but logical because if the law intended for this to be a
joint obligation, then the implication is that there are actually two
obligations. And, therefore, one cannot bind the other debtor with his acts,
declaration or admissions.

Another instance where the law uses the word joint when actually
the obligation is solidary in the case of JOINT TORTFEASORS. In Torts &
Damages, the Civil Code provides that the defendants in a case for
damages arising from culpa aquiliana are liable as joint-tortfeasors. For
example, the amount of damages is P100,000.00. how much can the
plaintiff can collect the entire amount from each other. therefore, an
admission by a joint-tortfesor binds the other because the obligation is in
solidum.

The liability of a surety is also SOLIDARY.

ILLUSTRATION on the rules on evidence and how one can appreciate his
knowledge of them in the courtroom: (There are two lawyers, Attorneys A
and B, and a witness, W)

ATTY. A:
Mr. W, did you hear the statement of X?
W:
Yes.
ATTY. A:
Will you tell this Court what X said about Y?
(As soon as Atty. B hears this, he immediately objects...)
ATTY. B:
Your Honor, Counsel is practically trying to ask the witness to
say what X said about Y so that in effect, such statement of X
will be binding upon Y. Res Inter Alios Acta. The act or
declaration of a third person is not binding.
JUDGE:
Atty. A, what will you say?
ATTY. A:
Your Honor, Counsel forgot that there are exceptions to the Res
Inter Alios Acta Rule. In this case, you will read in the pleadings
that X and Y are partners. Partnership is one of the exceptions
to the said Rule. Consequently, the admission of a partner
binds the other.

In other words, Atty. B invoked the general rule, while Atty. A invoked
the exception.

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 JUDGE:
Atty. B, what will you say?
ATTY. B:
But your Honor, Counsel has so far failed to prove the
existence of the partnership... (he proceeds to enumerate the
requisites because he remembers).

Under the law, the admission of a partner binds the other partner
within the scope of his authority; provided, the partnership is shown by
INDEPENDENT evidence. So far, there has been no such independent
evidence yet presented other than Xs act or declaration

JUDGE:
Atty. A, what can you say?
ATTY. A:
Well, your Honor, we admit that, really, under the law, the
existence of a partnership must be established first. So,
for the moment the testimony of the witness is inadmissible for
lack of basis. But may we ask for the conditional
admissibility of the evidence subject to the condition that we
will present evidence of the existence of the partnership. If we
cannot, then everything will have to be disregarded.
JUDGE:
Okay, granted.

So, this is the reason why we must master the Rules on Evidence.
We must remember the general rules, the exceptions, the requisites... We
cannot go to court with vague ideas on the Rules on Evidence because we
have no more time while in court to consult the books.

Another name for the Res Inter Alios Acta Rule is VICARIOUS
ADMISSION. In law, vicarious means the act of one binds another. This
is the general term. In Labor Law, in the case of an illegal strike, wherein
the strike is declared illegal by the officers of the Union, is there vicarious
admission? Vicarious, in the sense that the officers elect to answer for the
illegal strike, which will, in effect, mean loss of employment -- where they
are automatically fired. What about the other members who took part in the
illegal strike, are they also to be covered by the termination? No, the union
members are not bound by the acts of their officers. There is no vicarious
liability, except when the members individually commit illegal acts.

SECTION 30. Admission by conspirator. The act or declaration

of a conspirator relating to the conspiracy and during its existence
may be given in evidence against the co-conspirator after the
conspiracy is shown by evidence other than such act or declaration.

This is the fourth exception to the Res Inter Alios Acta Rule. This is
similar to the previous exception, except that the one who makes the
admission in Section 30 is a conspirator. This applies to criminal cases.

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 Based on the law, the following are the requisites:

(1) that the statement, act or declaration relates to the purpose or

object of the conspiracy;
(2) the statement, act or declaration must be made during the
existence of the conspiracy, NOT before or after;
(3) the conspiracy is shown by evidence other than such act or
declaration (independent evidence).

BAR PROBLEM: A robbery was committed. A week later, a suspect, X,

was caught. Upon interrogation, he admitted that he was one of the
robbers. When asked who his companions were, he named W, Y and Z.
QUESTION: Is the admission or confession made by X about the robbery
admissible against his companions, W, Y and Z?

ANSWER: No, because the problem says X was caught one week after
the robbery. The conspiracy has been accomplished. The law says that
the statement must be made during the existence of the conspiracy.
Meaning, while the conspiracy is going on, one of the robbers made the
admission. The crime has already been consummated.

However, suppose the case was filed against W, Y and Z, and the
prosecution moved that X be discharged in order to be a state witness.
Remember the rule in Criminal Procedure. So, in the witness stand, X
admitted that he was one of the robbers. He divulged also who his
companions were. QUESTION: Would Xs statement be admissible?

Then W, Y and Z say that there is more reason for the Res Inter Alios
Acta Rule to apply, because the statement was made long after the
conspiracy. QUESTION: Is such a contention correct?

The above contention is wrong, because Section 30 refers to

extrajudicial statements. This is the meaning of the law. When X made the
statement to the police that was done outside the court. This time, X, is in
court and under oath. According to the Supreme Court, the statement can
be rebutted by W, Y and Z. They can be cross-examined. So, statements
made in court are not covered by the rule that it must be made during the
existence of the conspiracy. As a matter of fact, the rule will also apply to
Section 29 -- when the statement was made in court.

SECTION 31. Admission by privies. Where one derives title to

property from another, the act, declaration, or omission of the latter,
while holding the title, in relation to the property, is evidence against
the former.

This is the last exception. There is privity when one is a successor-

in-interest of another person.

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EXAMPLE: When one inherits property from his father, or when property is
donated to him by another person, his predecessor-in-interest is the donor.
Or, when one acquires property by assignment, there is privity between him
and the prior owner. Now, he is only a successor-in-interest.

PROBLEM: Suppose when the father was still the owner of a piece of
land, he made a statement to the effect that his neighbor enjoys a right-of-
way over such piece of land, that he had given the neighbor the privilege,
the right to enter his property. then, the father dies. The children now
inherit the property. They then decide to close the land and deny the
neighbor access to it. The neighbor says that when their father was still
alive, the former and the latter agreed upon the right-of-way. The children
deny it. QUESTION: Suppose a witness testifies that the father did agree
with the neighbor over the right-of-way, are the children bound by such
statement of their father?

ANSWER: Yes, the children are bound because they merely derived their
title to the property from their father. The act, declaration or omission by
the prior owner, while holding the title, may be given in evidence against
the successor-in-interest.

So, this Section actually applies to one who derives his title over
property from another. The admissions of the predecessor are binding
upon his successors-in-interest.

SECTION 32. Admission by silence. An act or declaration made

in the presence and within the hearing or observation of a party who
does or says nothing when the act or declaration is such as naturally
to call for action or comment if not true, and when proper and
possible for him to do so, may be given in evidence against him.

This means that when one talks of admission, such is not confined
merely to what is being said. It includes also the instances when one does
not say anything. That is an admission by silence. Another name given to
this Section is: the law on ADOPTIVE ADMISSION. When somebody
says something in someones presence, and the latter did not correct the
former, when actually he should have been corrected because the
statement given was untrue, in effect, he is saying that what was said is
true. He had adopted his statement.

EXAMPLE: A said to C in Bs presence that B owes him (A) a big amount

of money. B did not say nor do anything. Later on, A sued B for the
collection of the debt. Bs defense is that he did not borrow money from A.
Then A presents as his witness C. B says now that C actually does not
know anything about any debt of his in As favor. So C narrated in court the
events that he remembered on that particular day when he was with the
plaintiff and the defendant wherein A told him (C) in Bs presence that B
owed him a big amount of money, which B heard but did nothing about.

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 The reaction of B when A made the statement to C is practically an
admission. It is considered an admission by silence. The theory is: if a
person says something which is false, he must be corrected. B should
have denied the obligation right there and then when he heard A make the
statement to C. Since B did not correct A, then there must be some truth in
the statement.

Q: What is the philosophy behind this rule?

A: When a man ought to speak, and he did not speak, he will be barred
from speaking later. There is a Latin maxim which supports this theory:
Qui tacet consentere videtur. Silence means consent. This is an
admission by consent.
Q: Suppose when a statement is made, it is beyond hearing distance, is it
covered by the rule?
A: No, the law says that the statement must have been made within the
hearing of the party concerned.

Q: Suppose the statements are written in a letter and the addressee never
wrote back, never denied it. Is that an admission by silence?
A: American jurisprudence says: No. There may have been many
reasons why he never wrote back. One is, he might be lazy in writing
letters. Another, of course the law provides that the statement must have
been made within the hearing of the party.

The law generally applies to oral statements, not to correspondence.

It applies to written correspondence -- a letter of demand, a statement of
account.

EXAMPLE: Juan is sent a detailed statement of accounts for his

purchases. He did not respond. Then he denied the obligation.
QUESTION: Is Juan bound by the statement sent to him even though he
did not respond to the same? ANSWER: This time Juan is bound -- even
if it is a letter because while normally the statement must be made within
his hearing, when it comes to accounts, the reaction should be denial of the
debt. This is an exception, according to American jurisprudence.
Otherwise, the party concerned is accountable. This is common sense.
You must answer if you have no obligation
There are other exceptions, among them, as stated by American
jurisprudence and our Supreme Court, are the following:

(1) when no good reason exists for the party to comment on the act or
declaration;
(2) when it is not proper for the party to comment on the act or
declaration.

These exceptions are now incorporated in the law --

Section 32: when proper and possible for him to do so. So,
if it is not possible or proper to comment or act, then there is no
admission by silence.

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 (3) where the act or declaration was made in the course of an official
investigation.

EXAMPLE: Custodial investigation of a suspect in a crime.

Under the Constitution, the requirement is that he has the right
to remain silent -- meaning, he cannot be compelled to talk. Is
this an admission by silence then? If the suspect invokes his
right to remain silent, there is no admission by silence. A right
cannot be the source of an obligation at the same time.

(4) when the silence is upon the advice of the lawyer.

SECTION 33. The declaration of an accused acknowledging

his guilt of the offense charged, or of any offense necessarily
included therein, may be given in evidence against him.

When one enters a plea of guilty in a criminal case, that is a

confession. That is why there is no need anymore for a trial, because that
is the basis of the conviction. This is a judicial confession. We are not
interested in this because there is no more trial here. What we are
interested in is the situation wherein the accused, for example, while he
was being investigated in a case, confessed that he committed the crime.
Later on, upon arraignment, he pleaded not guilty.

Q: In the above case, what will be the main evidence to be presented by

the prosecution to prove the guilt of the accused?
A: The confession of the accused. This evidence is called an extrajudicial
admission subject to the constitutional guidelines. So, the confession of
the accused is admissible in evidence against him.

Q: Distinguish a confession from admission.

A:

ADMISSION CONFESSION

It is a statement of fact without It is an acknowledgment of the guilt of the

necessarily acknowledging offense charged.
guilt.

It may be express or implied. It must be express.

It applies to both civil and It applies only to criminal cases.

criminal cases.

EXAMPLE: X was killed. Y is being investigated. Y is asked, Who killed

X? Y answers that he killed X.

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Q: Is that an admission or a confession?
A: That is an admission. Y admitted that he killed X, but he did not
necessarily confess that he committed homicide. He may have some
defenses for killing X. He can say that he killed X because X tried to kill
him. So, Y may have admitted that he killed X, but he is not confessing his
guilt because he may be invoking the justifying circumstance of self-
defense.

A confession is always an acknowledgment of guilt of the offense

charged, or of any offense necessarily included therein. It is always
express; there is no such a thing as an implied confession. It applies only
to criminal cases; there no such a thing as confession in civil cases.

At this stage, it is important to know the rules on the admissibility of

extrajudicial confessions, but this will involve dabbling into the field of
Constitutional Law, the Bill of Rights. We will go to that when we reach
Rule 133, Section 3.

4. Previous Conduct as Evidence

SECTION 34. Similar acts as evidence. Evidence that one did or

did not do a certain thing at one time is not admissible to prove that
he did or did not do the same or a similar thing at another time; but it
may be received to prove a specific intent or knowledge, identity,
plan, system, scheme, habit, custom or usage, and the like.

There are 2 positive situations here:

(1) the positive situation: evidence that one did a certain thing at one
time is not admissible to prove that he did the same or similar thing
at another time
(2) the negative situation: situation that one did not do a certain thing
at one time is not admissible to prove that he did not do a similar
thing at another time.

This Section is also known as Res Inter Alios Acta, Part 2. Part 1 is
Section 28. So, there are two parts to the Res Inter Alios Acta Rule:
Part 1: the rights of parties cannot be prejudice by an act, declaration
or omission of another (Section 28, Rule 130)
Part 2: This Section.

EXAMPLE: X is accused for the death of Y, but there is no eyewitness.

So, the prosecution has to build its case based on circumstantial evidence
-- proof of collateral matters which will point to the probability or
improbability of the fact in issue. So, Y was killed in June. Prosecution
tries to prove that six months ago, and every month thereafter until May, X
has been attempting against the life of Y. Then suddenly, in June, Y was
found dead. If the prosecution says that its purpose in presenting such
evidence is to prove that X killed Y, this is inadmissible because this is Res

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Inter Alios Acta. Evidence that one did something before is not evidence
that he did the same thing now. Evidence that X tried to kill Y in the past
does not necessarily mean that X is the killer today.

But such evidence may be received to prove only that out of the 60
million Filipinos, X has the intent and the plan to kill the victim. With this
purpose, the court will admit the evidence because the second part of
Section 34 states that x x x it may be received to prove the specific intent
or knowledge, identity, plan, system, scheme, habit, custom, or usage, and
the like. The judge may say that this is not the issue, but at least it proves
the probability that X is the killer. This is an evidence of collateral manner
-- an antecedent collateral matter, circumstantial evidence. So, while the
evidence does not prove the guilt of X, it points to the issue that he is the
probable killer.

Another example: In a case for damages arising from reckless

imprudence, both the plaintiff and defendant claimed that they were careful,
but there were no witnesses. What the counsel for the plaintiff did was to
dug into police reports and discovered that in the past year, the defendant
was booked three or four times for reckless driving. Although this is
inadmissible in evidence, if it is used to prove the guilt of the defendant;
the counsel convinced the judge to admit the evidence to prove only that
the defendant has the HABIT of being a reckless driver. What he was
trying to say to the court was that in all probability, the defendant must have
been reckless, and not that he was actually reckless.

The same rule holds true when trying to establish a pattern of

conduct to prove that the defendant did not pay to the creditor his debt, by
presenting evidence of the debtors other unpaid obligations to other
creditors.

SECTION 35. Unaccepted offer. An offer in writing to pay a

particular sum of money or to deliver a written instrument or specific
personal property is, if rejected without valid cause, equivalent to the
actual production and tender of the money, instrument or property.

A good example of this is in the case of redemption or repurchase.

Redemption of property sold under the Public Land Act. Recall that when
one holds an original patent, he has the right of redemption within five
years from the time of the sale. He has the right of repurchase when the
property is a homestead. If the original owner does not offer to repurchase
the same within 5 years, his right to redeem or repurchase is lost.

ILLUSTRATION: A writes within the redemption period. He formally offers

to buy back or redeem the property within the 5-year period. Then the offer
was rejected. It was refused without valid cause. The original owner then
files a case to compel reconveyance. The other party claims that there is
no valid tended of payment within the 5-year period because he just wrote
a letter.

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Q: What constitutes a valid tender of payment?
A: A valid tender of payment must be accompanied by delivery of money.
Under the law, if the offer of payment is in writing and is refused without
valid cause, the law presumes that at the time of the giving of the letter,
there was already a tender of payment. This is because tender means
offer of money. But if it was rejected, and if the supporting letter was given
within one year, but the case is filed beyond one year, one cannot claim
that there was a valid tender of payment.

It is a different case when one writes a letter: I am offering to buy

back the property within 5 years. The other party accepts and asks for the
money (payment). The repurchaser asks for a month to produce the
amount. In this case, tender will be computed not from the time the letter
containing the offer was given, but from the time the money is finally
received by the other party. Because tender must be accompanied with
money. However, if a party makes the tender, and the other party refuses it
without a valid cause, the offer is considered to be payment.

Q: In what form must tender of payment be made?

A: Generally, when one says tender, it must be cash.

Q: Is payment made through a managers check considered legal tender?

A: No, payment through a managers check is not legal tender. The same
goes with post-dated checks. Payment in check is not deemed as payment
until it is encashed.

So, when a check is given as payment, one must compute tender not
from the time it is given, but from the time it is converted to cash. So,
effective payment is from the date the check is encashed and not from the
date of the giving of the check.

Q: How about a personal check?

A: No, with more reason. A personal check is not even considered as legal
tender.

Q: Suppose X is tendering to Y an amount worth P1 million. He asks Y if

he prefers to be paid in cash or in managers check. Y answers that he
prefers to be paid in managers check. Is this still legal tender?
A: Yes. Y is now in estoppel. He cannot say that there was no valid tender
of payment because it was not given in cash. He was given the option to
choose. But definitely, the rule is that payment made in check is not a valid
tender because a check is not valid until it is encashed. One may validly
refuse to receive a check because it is not a valid tender.

Q: Is partial payment a valid tender?

A: No, partial payment is not a valid tender. One may refuse to accept it.
There is a valid cause for the refusal because payment must be complete.

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 5. Testimonial Knowledge

SECTION 36. Testimony generally confined to personal knowledge;

hearsay excluded. A witness can testify only to those facts which he
knows of his personal knowledge; that is, which are derived from his
own perception, except as other wise provided in these rules.

This Section talks about the Hearsay Rule. The testimony of the
witness must be based on his personal knowledge -- not what he just heard
from other people.

EXAMPLE: The witness is shy; he does not want to appear in court.

Instead, he narrates everything to W, who will deliver the witness testimony
in court. This is not allowed because the witness is not testifying on what
he personally knows, but on what another knows. So it is the eyewitness
himself who should testify.

Q: What is the test in order to determine whether or not evidence is

hearsay? Is the test based on the fact that one does or does not testify
upon his personal knowledge?
A: The real test is: whether or not the adverse party is deprived of the
opportunity to confront and cross-examine the witness. The right to cross-
examination is an essential part of due process -- that the person who
testifies against you will be confronted by you, cross-examined by you.
Thus, a denial of the right to cross-examination is a denial of due process.
Hearsay evidence is actually a denial of the right to cross-examination.

Q: What is an Independent Relevant Statement (bar question)?

A: Independent Relevant Statement is part of the concept of hearsay. An
independent relevant statement appears to be hearsay in character, but is
not actually legal hearsay. therefore, an independent relevant statement is
not covered by hearsay.

EXAMPLE: A witness is asked these questions...

COUNSEL:
Where were you on this date?
WITNESS:
I was in the United States.
COUNSEL:
Did you meet anybody there?
WITNESS:
Of course!
COUNSEL:
Who did you meet?
WITNESS:
I met A.

COUNSEL:

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 Did you have a conversation with A?
WITNESS:
Yes.
COUNSEL:
What was the conversation about?
WITNESS:
The conversation was about the incident which he witnesses
earlier.
COUNSEL:
Please tell the Court what A told you...

TAKE NOTE: If the purpose of the last question propounded by counsel is

to prove that the witness had a conversation with A, and that A told him this
thing, or that he met A and the latter told him this story, that is NOT
COVERED by the hearsay rule. Because the answer is not really hearsay.
The purpose here is actually only to prove the fact that A told the witness
something. But if the purpose of the question is to prove that the story told
by A to the witness is true, that is COVERED by the hearsay rule.

If the purpose of the testimony of the witness is to prove that he had a

conversation with A and that this was what the conversation was about,
that is not covered by the rule.
If the purpose of the testimony is to prove the truth of the statement of
A, which he told the witness, that is covered by the rule.
If the purpose of the question is to prove the truth of the statement, that
is covered by the hearsay rule.

In the first case, the testimony is not really hearsay because the
witness is talking about his own perception. That he met A, that they had a
conversation, that this was what A said... It is not hearsay if the witness
quotes exactly what A said to him.

When the purpose of the question is to prove merely the fact that
such a statement was made, this appears to be hearsay in character. But
this does not constitute legal hearsay and is, therefore, not covered by the
hearsay rule. As a matter of fact, this is not even hearsay. This is what is
called an INDEPENDENT RELEVANT STATEMENT.

COUNSEL FOR PLAINTIFF:

What did B tell you when you met him?
COUNSEL FOR DEFENDANT:
Objection, your Honor! The question calls for a hearsay
answer.
COUNSEL FOR PLAINTIFF:
Your Honor, we asking this question merely to prove the tenor
of the statement.
COURT:

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 If that is the purpose, then the objection is overruled. The
question is allowed.

Meaning, the question is an independent relevant statement.

Counsel for Plaintiff is asking the question only to prove the FACT of the
conversation, but not to prove the TRUTH of the conversation. However,
take note that such statement must be RELEVANT to the case.

EXAMPLE: The prosecution is trying to prove that C is the killer. A witness

is being questioned:
PROSECUTOR:
What did B tell you?
WITNESS:
According to B, C killed the victim.
DEFENSE:
Objection, your Honor! Hearsay.
PROSECUTOR:
Your Honor, we are only asking the question to prove the
TENOR of the main statement. It is not being presented to
prove that C is the killer.

Q: What does tenor mean?

A: That the question is being asked only to prove that B said something,
but not to prove the truth of what B said. That is not considered violative of
the hearsay rule, because in reality that is not hearsay. That is not hearsay,
because, really, the witness had a talk with B. It is based on his (witness)
own perception.

The basic distinction is: to prove only the statement, but not to prove
the truth of his statement. That is what is called an Independent Relevant
Statement. The statement, by itself, presented independently is relevant.
But that cannot be done in all cases. That can be done only in certain
cases, where the fact that the statement was made is relevant to the case.

According to the Supreme Court: the theory of the hearsay rule is

that when a human utterance is offered as evidence of the truth of the fact
asserted to it, the credit of the asserter becomes the basis of inference,
and therefore, the assertion can be received in evidence only when made
on the witness stand and subject to cross-examination. However, if an
extrajudicial utterance is offered not as an assertion to the evidence in the
matter asserted, but without reference to the truth of the matter asserted,
the hearsay rule will not apply.

In other words, one must distinguish between:

(1) the fact that the statement was made; and,
(2) the truth of the fact asserted in the statement.

One must prove that a statement was made:

(1) to prove the purpose of that statement;

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 (2) if his purpose is only to prove the fact that a statement was
made, that is not hearsay.
But to prove the truth of that statement -- that is hearsay.
Q: When may an utterance be considered an independent relevant
statement?
(1) when the utterance or statement constitutes the issue or parts of the
issue of the case;
(2) when the utterance or statement is circumstantial evidence of the
issue or issues in the case.

EXAMPLE of the first instance: When the statement constitutes the issue
in the case. That you made a statement is the issue in the case.

How is slander committed? This is a crime against honor. Slander is

committed by making a public statement which is derogatory. The offender
imputes a crime, vice or defect which causes dishonor, discredit or
contempt upon another person. For example, the statement is: You are a
thief. That is slanderous. When one is called a thief in the presence of
other people that is embarrassing.

Q: What is the main issue in a case or slander?

A: Did the accused make or not make the statement? If he did, then there
is a crime. If he did not, then there is no crime.

So, it has to be proven that the accused made such a statement.

Definitely, there must be a witness, because the statement is made publicly.
Many people must have heard him say it. The star witness testifies that
during a particular occasion, D was delivering a speech:
PROSECUTOR:
What was the speech about?
WITNESS:
D was talking about E, the complainant.
PROSECUTOR:
What did D exactly say about E in that speech?
WITNESS:
D said that E is a thief.
Q: Can the defense object to that kind of questioning?
A: No. The purpose is to prove that the accused made the statement.
That is not the issue in slander. The issue is not to prove that E is a thief.
The witness is being presented and questioned not to prove that the
complainant is a thief, but to prove that the accused did call him a thief.
This is an independent relevant statement and is not covered by the
hearsay rule.

The above testimony is not hearsay because the witness was present
in the occasion in which the speech was delivered. He himself heard the
accused calling the complainant a thief.

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EXAMPLE of the second instance: When the statement is circumstantial
evidence of the issue in the case. Circumstantial evidence refers to
evidence tending to prove the probability of the issue.
For example, the issue in the case is whether or not the defendant
was mentally insane when he signed a contract. He invokes such defense
in order to prove that he is not bound by such contract. Plaintiff claims that
defendant was perfectly normal when he signed the contract.

A witness is presented who testifies as to the state as to the state of

mind of the defendant during that particular period. The witness says that
he was introduced to the defendant for the first time in that occasion only.
COUNSEL FOR DEFENDANT:
When you met the defendant, how did he introduced himself to
you?
WITNESS:
He introduced himself to me as the President of the Philippines.

The purpose of Counsel here is to prove that there was something

wrong with the defendant during that period, at least. Counsel is trying to
prove the state of mind of the defendant and the mere fact that he made
that statement is circumstantial evidence that he was insane. The purpose
of Counsel in his question is not to prove the truth that defendant is the
President of the Philippines. The purpose is to prove that because of what
he said to the witness, there is circumstantial evidence that something was
wrong with him. The statement of the witness is admissible being an
independent relevant statement.

Section 36 tells us what hearsay is all about, what it covers, what it

does not cover, the philosophy behind it, the test to determine it. However,
there are exceptions to the hearsay rule. They can be found in Sections 37
to 47.

6. Exceptions to the Hearsay Rule

SECTION 37. Dying Declaration. The declaration of a dying

person, made under the consciousness of an impending death, may
be received in any case wherein his death is the object of inquiry, as
evidence of the cause and surrounding circumstances of such death.

Another name for Dying Declaration is ANTE MORTEM

STATEMENT.

ILLUSTRATION: Somebody was stabbed. As he lay dying, a policeman

went over him and asked him, Who stabbed you? The victim answered,
X stabbed me. Afterwards, the victim expired. So, X is prosecuted for
killing the victim. The policeman is a witness and testifies that he was
present when there was a commotion and came across a dying man whom
he identified as the victim. And then he was able to talk to the victim before
the latter died:

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 COUNSEL:
What did you ask the dying victim?
POLICEMAN:
I asked him: Do you know who stabbed you? and he says
yes. I asked him Who stabbed you? He said it was X, the
accused, who stabbed him.

Actually, the policemans testimony is hearsay. The policeman did

not actually see X stab the victim. And yet, according to Section 37, the
testimony is admissible as an exception to prove the truth that, really, X is
the killer.

Q: What are the reasons behind this exception?

A: There are two grounds or justification cited by Wigmore --
(1) necessity; and
(2) trustworthiness.
NECESSITY. According to the Supreme Court: In crimes against persons,
such as physical injuries, or homicide, the best person to identify the
accused would be the victim himself. But in such crimes, it is impossible
for the victim to testify if he has died. He cannot now be used on the
witness stand because he is already dead. Necessarily, the prosecution
has to present somebody to whom the victim mentioned the identity to the
killer. This is the reason.

The declarants death makes it impossible to obtain his testimony in

court, and usually in crimes against persons, the victims testimony is the
best evidence of the crime. But out of necessity, since the prosecution can
no longer present the victim in court, it presents somebody whom the victim
was able to talk to before he died.

TRUSTWORTHINESS. Meaning, it can be relied upon and trusted. The

statement is made at the point of death. It is a situation so solemn and
awful as creating an obligation equal to that created by a positive oath,
administered by a court of justice.

What is the guarantee that the statement is the truth? We cannot

really be 100% sure that the witness will tell the truth. But when a witness
takes the witness stand and takes an oath to tell the truth, he understands
the consequences of giving a false testimony. That is why a statement not
under oath is not admissible. But taking the oath does not necessarily
mean that the witness will tell the truth.

However, according to the Supreme Court: when a person is dying,

that is a very solemn and awful situation. That the solemnity is such that
the statement of a dying person is almost the same if not higher than a
person who is under oath.

When a person is dying and he is aware that he is dying, what is in

his mind is probably the thought of heaven and hell -- that he must cleanse

145
himself immediately because he does not know what will happen to him
when he finally dies. So, in this instance, he must be really be telling the
truth, at least maybe for the first time in his life. According to the US
Supreme Court, describing this reasoning: truth sits on the lips of a dying
man. It is a situation so solemn and awful that the presumption is that the
dying man will not tell a lie.

There is a possibility for the dying person to commit a mistake. But at

least he thought that he was telling the truth. What is important is for the
statement to be admissible in court.

Q: When will a statement qualify as a dying declaration?

A: The elements are based on Section 37.

(1) the declaration refers to the cause and surrounding

circumstances of the declarants death.

EXAMPLE: As the father lay dying, he told his son: Son, please come
here because I will tell you something. My compadre, X, borrowed money
from me three years ago. There was no promissory note. Until now, he
has not yet settle his debt. So I am telling you now, X owes me
something. Then, the father expired. So, the son sues X. The son
testifies, and to prove the obligation he presents in court what his father
told him. That is what my father said when he was at the point of death.
the truth sits on the lips of a dying man, so what he told me must be true.
X denies the obligation.

Q: Is the statement of the witness dying father admissible in evidence as a

dying declaration, an exception to the hearsay rule?
A: No, the son is not talking in court about the cause and surrounding
circumstances of his fathers death. The statement made by the father
pertained to a debt, an obligation -- about business. The statement is
considered a DYING STATEMENT, but not a dying declaration. The
statement of the declarant has nothing the do with his death.

(2) the declaration was made under the consciousness of impending

death.
Meaning, the declarant must know that he would be dying soon when
he made the
declaration. Another term for this: the statement is MADE IN EXTRIMIS --
at the point when hope for recovery is faint or extinct.

EXAMPLE: A person was shot. when he could still walk, he met Y. Y

asked him: O, how are you now? The victim answered, Im all right.
This is just a flesh wound. He was not aware how serious his wound was.
So, he died. But before that, he was able to tell Y that it was X who shot
him.
Q: Will the above statement of the victim qualify as a dying declaration?

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A: No, because when the victim made the statement, he thought he would
still live. In order to qualify as dying declaration, the declarant must first
think he is dying. That is a requirement.

When veteran police investigators investigate a dying man who is a

victim of murderous assault, he would usually ask so many questions.
How do you feel? What do you think is your condition now? Then the
victim would say, I am dying; I dont think I would last one week. So the
victim knows. In other words, there is now a basis.

Q: Must the dying man really say, I know I am going to die?

A: There was a case before wherein a man was stabbed. He sustained so
many wounds. He was asked by an investigator or other person: Do you
think you will die? He answered in this manner: I think so. This was
objected to and attacked in court on the ground that it is not a dying
declaration.

PEOPLE vs. BAGUIO

196 SCRA 459

Facts: Alfredo and Lidovina Paulino were conversing with a

certain Benny in front of their house at about 10:00 on the
evening of March 31, 1981. Then a group of about nine to ten
people passed by. Among them, Lidovina recognized Rodolfo
Baguio (a.k.a. Bebot) with whom her husband, as Barangay
Tanod, earlier had some unpleasant dealings. Lidovina went
inside her house to get some money to buy cigarettes. While
inside, she heard her husband cry out, Aray ko po! She
rushed out and saw her husband sprawled on the ground while
Bebot and his companions were stabbing him. she saw Bebot
himself thrust his weapon at her husband twice. Then, the
assailants fled.

Lidovina went to her husband. In a weak voice, he said,

Kung ako ay bibigyan pa ng Diyos ng pangalawang buhay,
hindi maaaring hindi mananagot si Bebot at si Frank.

Issue: whether or not the utterances of the victim were made

under the consciousness of impending death

Holding: Yes, the utterances were made under the

consciousness of impending death.

The statement opens with the hope that God might

somehow give him a second life. That wish for a second life
cannot but indicate his awareness that his first life was draining
away with the blood flowing from his many and grievous
wounds. This being so, AND it appearing that the other

147
requisites of a dying declaration are present, the admission and
appreciation thereof can hardly be faulted.

On Res Gestae: Even if the declaration in question be

somehow still refused admission as a dying declaration, there
can be no question about its admissibility AS PART OF THE
RES GESTAE, a statement made while a startling occurrence
is taking place; his statement being the reflex of immediate
sensual impressions, unaided by retrospective mental action x
x x pure emanations of occurrence itself.

PEOPLE vs. PADRONES

189 SCRA 496

Facts: On August 3 1986, Lorenzo Sison, the victim was at the

MGR Disco at Surallah, South Cotabato celebrating his birthday
over beer and refreshments. whereupon, the two accused,
Joseph Biare and Alex Padrones, arrived one after the other.

Later, the victim approached Padrones squeezed his

mouth and uttered challenging words: Are you afraid of the
Sisons? (in apparent reference to the Sisons of South
Cotabato, a family with a long history of local and national
political authority and clout) It was then a picture of
pandemonium as men engaged in brawl, while bottles flew.
Sison suffered stab wounds. Padrones likewise suffered
physical injuries. On August 12, 1986, Sison signed a
handwritten statement in his hospital bed which he made to the
Surallah Police accusing Padrones of having inflicted one stab
wound on him, and another from Biare. Subsequently, Sison
died. The lower court then convicted the two accused based on
the alleged ante-mortem statement of the late Lorenzo Sison.

Issue: whether or not the alleged ante-mortem statement is

admissible in evidence.

Holding: No, the statement is inadmissible.

The victims alleged ante-mortem statement is not, in fact,

an ante-mortem statement. It was executed on August 13,
1986, when the deceased died on August 21, 1986. A dying
declaration, to be one, must have been under the
consciousness of an impending death. At the time Sison
rendered it, he could not say that he was on the pangs of death,
based on his actual condition at that time, and that he believed
that death was soon at hand.
It bears stressing too that a mere statement of the three
signatures appearing on the 3-page statement, in bold and
clear strokes, with 2 of them occupying four inches of the page,

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 and in grand flourishes, pronounced and considered by the trial
judge as a dying declaration, precludes any indication that the
signer thereof was under an impending death. Further, if the
deceased were truly at the point of death, he could not have
had the strength to affix three signatures as above-described.
According to the Supreme Court: when a person sustained so many
wound and is breathing, but he could hardly talk, he does not have to say
it. He knows his condition. there are many cases decided by the Supreme
Court wherein there is no evidence really that before the declarant died, he
said: I will tell you now because I think I will die. This is unnecessary,
considering that he could hardly talk. As a matter of fact, when a person
makes a dying declaration, chances are, he could hardly write. And
considering the nature of his many wounds, he must know that he will soon
die. Therefore, this matter has to be taken on a case to case basis. The
dying declaration does not really have to be an express statement. But if it
is possible to make it expressly, it would be more preferable.

There are some people who cannot talk even though conscious:
INVESTIGATOR:
Do you understand me?
DECLARANT:
(nods his head)
INVESTIGATOR:
I will ask you questions answerable by yes or no. If the answer
is yes, press my hand once; if the answer is no, press my hand
twice. Do you understand?
(Very weakly, the declarant answers the questions by
pressing the investigators hand.)
INVESTIGATOR:
Do you know who stabbed you?
DECLARANT:
(presses once)
INVESTIGATOR:
Is it X?
DECLARANT:
(presses twice)
The admissibility of the above as evidence is attacked when brought
upon in the court. The defense claims that there is no showing that the
statements were made by the deceased under the consciousness of
impending death. The court will then analyze whether or not the second
element is present.

Q: What if the declarant survived?

A: Then the declaration is inadmissible.

(3) the declaration is offered in a case wherein the subject of inquiry

is the declarants death.

Q: What about those cases of clinically-dead persons?

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A: The person must die. In dying declaration, the declarant must die
because the said evidence is offered only in case where his death is the
subject of inquiry. So, if the declarant lives, then there is no evidence.

Therefore, there is no dying declaration in the following crimes:

1. attempted homicide, murder or parricide;
2. frustrated homicide, murder or parricide.

Dying declaration is applicable only in cases of CONSUMMATED

homicide, murder or parricide. It is applicable also in civil cases or in civil
actions for damages arising from a crime where the family of the deceased
has reserved the right to file a separate civil action against the accused. In
the latter case, the issue is: whether or not the defendant (accused) was
responsible for the death of a plaintiffs relative.

Q: What if the victim lapses into coma? The victim said: I think I am
going to die. And then he goes into a coma.
A: It is clear that the dying man must die before his statement may be
offered in court as a dying declaration.

TAKE NOTE: The statement of a person who did not die, although he
believed at that moment that he would die, is NOT ADMISSIBLE AS A
DYING DECLARATION.

PEOPLE vs. DE JOYA

203 SCRA 343

Facts: In the afternoon of January 31, 1978, the 88-year old

victim, Eulalia Diamse, was alone in her house watching
television when Alvin, grandson of Diamse (victim) went home.
He found his grandmother drenched in her own blood. He then
held her hands and asked her: Apo, apo, what happened?
Diamse answered: Si Paqui..., let go of Alvins hands and
passed away.

The trial court relied heavily upon such dying declaration

and made it the basis in convicting the accused, de Joya, with
the penalty of life imprisonment. De Joya appealed the
decision of the RTC.

Issue: whether or not the last statement of Diamse can be

considered a complete and proper dying declaration.
Holding: The dying declaration of Diamse was incomplete
and, as such, cannot be considered as a dying declaration.

It has been held that a dying declaration, in order to be

admissible, must be complete in itself. to be complete in itself
does not mean that the declarant must recite everything that

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 constituted the res gestae of the subject of his statement, but
that his statement of any given fact should be full expression of
all that he intended to say as conveying his meaning in respect
of such fact.

It is clear to the Court that the dying declaration of the

deceased victim here was incomplete. In other words, the
deceased was cut off by death before she could convey a
complete or sensible communication to Alvin. The trial court
simply answered that by uttering the words, Si Paqui..., the
deceased had intended to name the person who had thrust
some sharp instrument through-and-through her neck just
below her ears. But Diamse herself did not say so and the
Court cannot speculate on what the rest of her communication
might have been, had death not interrupted her.

Justice Felicianos concurring opinion Diamses dying

statement does not qualify as a dying declaration because the
two words: Si Paqui... do not by themselves constitute a
sensible sentence. Those two words may be intended to
designate either: (1) a subject of a sentence; or (2) the object
of a verb. If they have intended to designate a subject of a
sentence, it must be noted that no predicate was uttered by the
deceased. It would be different if the deceased uttered, Si
Paqui ang sumaksak sa akin. On the other hand, if the words
were designed to be the object of a verb, it must be noted that
no verb was used. The phrase Si Paqui... should have been
completed and must be related to the question asked by Alvin:
Lola, what happened to you? -- not Lola, who did this to you?

Although the statement must not recite everything, it must be a full

expression of all that he intended to say as conveying its meaning with
respect to such fact. Wigmore calls this the DOCTRINE OF
COMPLETENESS.

In other words, the Supreme Court says that the statement (dying
declaration) need not be long or short, but it must be sensible and
complete. Again, any statement made by a dying person is a dying
statement but is not necessarily a dying declaration. For the statement to
be a dying declaration, the requisites must be complied with.

What the law guarantees is merely the admissibility of a dying

declaration as an exception to the hearsay rule. The law does not
guarantee that the court will believe it because, once again, admissibility is
different from credibility.

In one case, the Supreme Court discussed the topic of weight in

determining whether or not a dying declaration should be believed.

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QUESTION: What are the factors to be considered in determining the
credibility of a dying declaration?
(1) trustworthiness of the reporter or witness, or person to whom the
declarant was talking (for all you know, what the reporter said in
court may be different from what the declarant really said);
(2) the capacity of the declarant at that time to actually remember the
past;
(3) his disposition to remember what he remembers;
(4) such attendant circumstances as that the declaration was a result of
questions propounded to him in the presence of the police or his
friends (who were present when the declaration was made by the
victim; what were the questions asked of him; is it possible that the
victim did not even understand the questions);
(5) the lack of belief of the declarant in a future life, rewards or
punishment (a dying declaration is admissible on the presumption
that no man will lie because he believes in the after life).

Q: Suppose the defense prove the declarant was an atheist, does not
believe in a second life, God, soul, future reward or punishment, etc., would
this affect the weight of his declaration?
A: The credibility of the declarant might be affected. The presumption that
he will not lie will be weakened because the above circumstances show his
background. The fact of the dying declaration is contrary to the facts
satisfactorily proven by other evidence.

EXAMPLE: A dying person points to a certain person as his assailant, but

a hundred witnesses would testify that another person is the assailant.
Then the credibility of the dying person is weakened. The dying person
might have lied, and thus his credibility would be challenged. Or, the dying
declaration might have been influenced by the passion of anger,
vengeance, or jealousy. Therefore, the presumption that the dying person
is telling the truth is rebutted.

Another example which really happened in Magsaysay Park, Davao City: A

man was stabbed. People gathered around the victim. The victim then
points to one of the people gathered around him as his assailant. The
person pinpointed by the victim was arrested by the police and was
questioned as to whether or not he is the one who stabbed the victim. He
said no, and many people testified that he really is not the assailant.
Actually, the victim pointed to him merely because he mistook him for the
assailant who was wearing the same color of shirt.

Therefore, we cannot really conclude that everything a dying person

says is true. Although he may not have intended to lie, he might have
misapprehended the facts.

A dying declaration takes the place of the declarant as if such person

made the declaration himself on the witness stand, as if he were alive. If it
can be proven that the testimony of the declarant is untrue, then it can be

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inferred that the dying declaration made by the declarant (now dead) is also
untrue.

Q: As a general rule, a dying declaration is used against the accused.

Suppose the dying declaration is favorable to the accused, as in the case
where a person was stabbed, he stated that the accused is not the person
who stabbed him. Can this declaration be used as evidence to prove the
accuseds innocence?
A: Yes, the accused can use the declaration as evidence. The accused is
being prosecuted in a case where the victims death is the subject of
inquiry. The statement had something to do with the circumstances of the
victims impending death. Therefore, if a dying declaration can be used
against the accused, it can also be used to prove the innocence of the
accused. So, there is no reason why a dying declaration cannot be used
by the accused in his favor. Such declaration is admissible for this
purpose.

Q: Can the credibility of a dying declaration be impeached?

A: Yes, because what is guaranteed by the law is only the admissibility of
the declaration as evidence.

Q: Is there a particular form prescribed by law for a dying declaration?

A: None. There are many forms of a dying declaration. One type is
written, as when the policeman writes down what the dying person has just
declared and thereafter asks the dying person to affix his signature over the
same. This may happen when there is enough time for the declaration to
be written down and signed by the dying person himself. However, this will
not apply to a case where there is no sufficient time for the declaration to
be written down and signed by the declarant.

The above question was actually asked in the Bar Examination

before. The question asked for the preparation of a dying declaration
sufficient in form and substance under the law, sort of a question in Legal
Forms. Most of the examinees prepared a dying declaration in the form of
an affidavit. But the answer is that there is no particular form for a dying
declaration. It could be oral, written, signed or unsigned. As a matter of
fact, the pressing of ones hand once or twice signifying a yes or no is
admissible in evidence if such testimony is offered by the policeman who
asked the declarant the questions.

In an American case, the dying man gave his statements to the

policeman, who then prepared a report based on the story. He was able to
return to the dying man to confirm the report based on the dying mans
statements. When he was brought to the hospital, the dying man was also
able to talk to the surgeon about the circumstances of his impending death.
So, there are 2 declarations made by the dying man -- the declaration given
to the policeman and the other given to the surgeon. During the trial, while
the policeman was testifying, the other party objected citing the Best
Evidence Rule.

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 The US Supreme Court rules that the Best Evidence Rule does not
apply to a dying declaration. One cannot say by the contents of a writing
which is the subject or the predicate because there is no particular for a
dying declaration. The Best Evidence Rule covers those which the law
prescribes to be in written form. The dying declaration is not even required
to be in or follow any particular form. Thus, the Best Evidence Rule does
not apply to a statement which, in the first place, is not covered by any
particular form.

The best evidence rule is applicable in the sense that the narration
reduced into writing and signed by the declarant is the best evidence that
could be presented in court. the written form is more reliable. But there is
no rule prohibiting the presentation of testimony in lieu of the written
declaration.

PEOPLE vs. NABOR

185 SCRA 615

Facts: Harry Nicanor and Jean Tandoc, among others, were

ambushed supposedly by the group of Nabor. Nicanor and
Tandoc died of gunshot wounds. The prosecution for its
evidence presented the dying declarations of Nicanor and
Tandoc, coupled with the testimony of an eyewitness. On the
other hand, the defense presented an alibi along with the dying
declarations of the deceased wherein they stated that they
failed to recognize their assailants. Nicanors dying declaration,
as presented by the prosecution, was made before a certain
Patrolman Paragos who admitted that he had translated it from
Ilocano into English before two witnesses. The victim affixed
his right thumbmark on the said ante-mortem statement.

The one presented by the defense, however, was taken

by T/Sgt. Acerit, composed of three pages and was signed by
Nicanor.

The trial court gave more weight upon the dying

declaration presented by the prosecution, stating, among
others, that:
1. it found unbelievable Nicanors statements in the
defenses dying declaration, Nicanor being in a very
serious condition; and,
2. it found it odd that Nicanor was able to sign despite such
condition.

Issue: whether or not the lower court committed reversible error

in giving more weight to the dying declaration of Nicanor,
coupled with the testimony of an eyewitness presented by the

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 prosecution, rather than the dying declaration and alibi
presented by the defense.

Holding: Due respect must be accorded to the trial courts

findings as between the two conflicting ante-mortem statements
-- that which the prosecution had presented is more credible, in
consonance with the oft-repeated rule that credibility of
witnesses is an issue better addressed to the trial court for the
conclusion reached by the trial court on the basis of its own
assessment, are generally not disturbed on appeal in the
absence of grave abuse of discretion on the part of the trial
judge who has the advantage of actually examining both
documentary and testimonial evidence, including the demeanor
of the witnesses as they presented the same.

Under Rule 130, Section 37, a dying declaration to be admissible

must have the following requisites:
(1) the declarants statement must be made under the consciousness
of an impending death;
(2) the declaration must refer to the cause and surrounding
circumstances of the declarants death;
(3) the declarants death is the subject of inquiry in the case wherein
the declarants statement is sought to be admitted;
(4) the declarant was a competent witness.

For an ante-mortem statement to be admissible as an exception to

the hearsay rule, it is enough that the deceased uttered the said statement
while suffering from serious wounds which would justify the conclusion that
the declarant was conscious of his impending death.

SECTION 38. Declaration against interest. The declaration

made by a person deceased, or unable to testify, against the interest
of the declarant, if the fact asserted in the declaration was at the time
it was made so far contrary to declarants own interest, that a
reasonable man in his position would not have made the declaration
unless he believed it to be true, may be received in evidence against
himself or his successors-in-interest and against third persons.

A declaration against interest is admissible against the delarant;

provided, that the person who made the declaration is already DECEASED,
or unable to testify. Unable to testify means that the declarant cannot be
found; he may be just around, but nobody knows where he is perhaps,
he has already left for abroad, or is sick (in coma) and can no longer talk.
He cannot be brought to testify.

PRINCIPLE: A person may be believed if he says something against his

own interest; not if he says something that is in his favor.

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EXAMPLE: When the declarant is already dead, another person testifies.
What he says would be hearsay. Even if what the person relates in court is
exactly what the declarant said, his testimony would still be hearsay. But
the declarant said something which is against his own interest. This is
similar to the rule on admission(recall Section 26 -- the act, declaration or
omission of a party as to a relevant fact nay be evidence against him.)

ILLUSTRATION: The following is an example of the application of

declaration against interest -- any interest such as, moral, financial,
personal, etc.

A owner of the building X declarant

burned
B accused of arson W witness in court

A accused B of burning. According to A, B burned his bodega. X had

a conversation with W.
X:
I pity B.
W:
Why would you pity B?

X:
Because he is being accused by A of burning his (As) house.
Actually B does not have anything to do with it. I was the
one who did it.
Then afterwards, X died. Practically, X here stated something against
his own interest. Subsequently, W had a conversation with B.
W:
No, you did not burn the building of A. X did it.
B:
Why do you know that?
W:
That is what X told me. He said he was responsible for burning
the building of A.
B:
Then, could you be my witness during the trial?

So, during the trial, the defense of B is denial. B claims that it was
not he who burned the building of A, but somebody else. Then W testified.
DEFENSE COUNSEL:
Do you know anything about the burning of the building owned
by A?
W:
Yes.
DEFENSE COUNSEL:
What did X say?
W:

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 According to X, he (X) was the one who burned the building of
A.
DEFENSE COUNSEL:
Where is X now?
W:
He is already dead.

Q: Is the testimony presented by W to prove that X is the one who burned

the building of A, as stated by X himself, admissible in the case filed by A
against B?
A: Yes. It is a declaration made by X against his own interest. The
declaration made by a person deceased (declarant) against his own
interest, if the fact asserted in the declaration was, at the time it was made,
so far contrary to declarants own interest x x x is an exception to the
hearsay rule.

Q: What are the requisites in order for a statement to be considered a

declaration against interest?
A: The following are the requisites:
(1) the declaration is against the declarants own interest;
(2) the interest declared against is actual -- real and obvious, and the
declarant has competent knowledge of the matters asserted in his
declaration; and,
(3) the declarant is already dead or unable to testify.

Q: What is the philosophy behind the testimonys admissibility?

A: The same philosophy given in Dying Declaration: on the ground of
Necessity and Trustworthiness. Necessity because the declarant is already
dead. He cannot anymore be called to the witness stand. Trustworthiness,
because it is against the declarants own interest. Therefore, he
guarantees it. A man is believable when he says something against
himself. But his self-serving statements are not believable.

Q: Distinguish Declaration Against the Declarants Interest (sec. 38) and

the Law on Admission (sec. 26)?
A:

ADMISSION DECLARATION AGAINST INTEREST

not necessarily against the
interest of the admitter
receivable even if the admitter
is alive
must be against the interest of the
declarant
declarant must be dead, or least unable
to testify, for his declaration to be
receivable

receivable only against the receivable only against third person

admitter and those identified
with him in legal interest

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ILLUSTRATION: The admission is receivable only against the admitter
and those identified with him in legal interest: It is admissible only against
the admitter because of the Res Inter Alios Acta Rule -- the rights of a party
cannot be prejudiced by an act, declaration or omission by another.

x x x all those identified with him in legal interest x x x Like what?

Agency, Partnership, conspiracy, joint interest, and privity. So if you are not
part of any of those, you apply the general rule. An admission of A is not
evidence against B.

By virtue of the last portion of Section 38, evidence may be used not
only against the declarant himself, but even against third persons -- which
is not so in admissions.

EXAMPLE: A declaration is made by X, who is now deceased, wherein he

says that B is innocent; that he did not burn the building; that it was he (X)
who burned the building. In effect, the declaration is being used against
the claim of A, to defeat the claim of A against B. A insists that for him, it
was B who burned the building. According to A: Res Inter Alios Acta.
What you said does not bind me. I am not bound; B is not bound. the
agent is not bound. That is an admission; that is a declaration against
interest. But the law says it is admissible against third persons.
Q: Is the Dead Mans Statute applicable in this case?
A: No. The Dead Mans Statute pertains to a claim being made by a party
against the estate of the deceased through an administrator. Here (Section
38), the declaration is being used to prove that he is the person who
committed the crime, but it is being used by another to defend himself. In
effect, the narration is being used to defend one party against another
partys claim.

Q: Can the admission of a party be considered as an exception to the

hearsay rule?
A: No. In admission, the party is alive; in hearsay, usually the party would
be dead. In admission, what a party said is now being used against him in
order to bind him. But in hearsay, the declarant is already dead. Another:
An admission could be in favor of or against you. In declaration against
interest, the admission must always be against you. Plus the fact that an
admission cannot be used against third persons, unless the case falls
under any of the exceptions.
FUENTES vs. CA
253 SCRA 430

Facts: In a benefit dance on Agusan del Sur, Julieto Malaspina

was stabbed by petitioner, Alejandro Fuentes, Jr. Petitioner
claims, on the other hand, that it was his cousin, Zoilo Fuentes,
alias Jonie, who knifed Malaspina, as Jonie admitted
spontaneously that he stabbed Malaspina because after the
boxing match before the latter untied his gloves and punched
him.

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 Petitioner would make much of the alleged confession of
Jonie since, as he contends, it is a declaration against penal
interest and therefore an exception to the hearsay rule.

Issue: whether or not the admission is admissible in evidence.

Holding: Such declaration is inadmissible. One striking

feature that militates against the acceptance of such a
statement is its patent untrustworthiness. Zoilo who is related
to accused had every motive to prevaricate. Let us assume
that the trial court admitted the statement of Zoilo and on that
basis acquitted the accused. Let us assume further that Zoilo
was subsequently captured and upon being confronted with his
admission of guilt readily repudiated the same. There is
nothing, absolutely nothing, that can bind Zoilo legally to that
statement. Such, then according to Wigmore, would be
shocking to the sense of justice.

But more importantly, the far weightier reason why the

admission against penal interest cannot be accepted in the
instant case is that the declarant is not unable to testify. There
is no showing that Zoilo is either dead, mentally incapacitated
or physically incompetent which Sec. 38 obviously
contemplates. His mere absence from the jurisdiction does not
make him ipso facto unavailable under this rule. For it is
incumbent upon the defense to produce each and every piece
of evidence that can break the prosecution and assure the
acquittal of the accused. Other than the gratuitous statements
of accused-appellant and his uncle to the effect that Zoilo
admitted having killed Malaspina, the records show that the
defense did not exert any serious effort to produce Zoilo as a
witness. Lest we be misunderstood, the Court is always for the
admission of evidence that would let an innocent declaration of
guilt by the real culprit. But this can be open to abuse, as when
the extrajudicial statement is not even authenticated thus
increasing the probability of its fabrication; it is made to persons
who have every reason to lie and falsify; and it is not altogether
clear that the declarant himself is unable to testify.

SECTION 39. Act or declaration about pedigree. The act or

declaration of a person deceased, or unable to testify, in respect to
the pedigree of another person related to him by birth or marriage,
may be received in evidence where it occurred before the
controversy, and the relationship between the two persons is shown
by evidence other than such act or declaration. The word pedigree
includes relationship, family genealogy, birth, marriage, death, the
dates when and the places where these facts occurred, and the

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names of the relatives. It embraces also facts of family history
intimately connected with pedigree.

Q: What is pedigree?
A: It pertains to ones background -- who your father is, your grandfather,
relationship, family genealogy, when your father was born, events in your
family, marriage, death, etc.

In the language of an American author, pedigree is the history of

family descent which is transmitted from one generation to another by both
oral and written declarations and by tradition.

ILLUSTRATION: B1 is the brother of B2

|
|
| .. .. .. .. ..X (illegitimate child of
B2)
W witness

Before B1 died, he had a conversation with W. B1 said to W: You

know my playboy brother, B2? X is his illegitimate child.

Later on, B2 dies, and there is a question of inheritance. According to

the family of B2, X is a stranger. X claims to be the son of B2. To prove
this, X presents W: W says, X is the son of B2. How did he know that?
W: B1 told me. Who is B1? W: B1 is the brother of B2

Q: Is the testimony of W admissible?

A: Yes, because it is an act or declaration about pedigree made by
someone who is already deceased. The statement was made long before
the controversy, not before it. And the relationship between the two
persons (B1 and B2) is shown by evidence other than by such act or
declaration. There must really be proof that B1 and B2 are brothers.

Q: What are the requisites in the above case?

(1) the declarant is related to the person whose pedigree is in question;
(2) such relationship is shown by evidence other than by such act or
declaration;
(3) the act or declaration was made prior to the controversy (ante litem
motam); and,
(4) the declarant is dead or unable to testify.

Q: What is the justification for this rule? Why the law does allow this?
A: NECESSITY. Because the facts about pedigree are usually those
which occurred long before the trial and known to only a few persons.
Meaning, family history is limited to only some persons. One does

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 not usually bother to research on the family of other persons. Also,
the sources of such information are very few.

B:TRUSTWORTHINESS. Because those facts are matters which

members of a family are presumed to be interested in, in ascertaining
the truth. There is a presumption that members of a family will make
a research on their own pedigree.

Q: Up to what civil degree in relationship is covered by this rule?

A: There is no limit, but credibility will be affected the more distant the
relation of the witness is to the deceased.

SECTION 40. Family reputation or tradition regarding pedigree.

The reputation or tradition existing in a family previous to the
controversy, in respect to the pedigree of any one of its members,
may be received in evidence if the witness testifying thereon be also
a member of the family, either by consanguinity or affinity. Entries in
family bibles or other family books or charts, engravings on rings,
family portraits and the like may be received as evidence of pedigree.
There is a similarity between Section 39 and 40: The testimony is
limited only to pedigree of an individual. What is the difference? In Section
39, the declarant is already dead. That is the requirement. But in Section
40, the declarant is not deceased. As a matter of fact, it is the declarant
himself who is talking about his pedigree, or the pedigree of another person
in the witness stand.

Q: Why would this be considered hearsay when the witness himself is on

the witness stand? The witness is merely quoting the declarant, B. If B
himself is on the witness stand, how can this be hearsay?
A: Many things that one knows about himself are actually hearsay. They
are usually merely passed on to him by his parents.

For example, when your parents were married. It is not possible that
you were actually there (unless they have been living together for 50 years
without the benefit of marriage, and they decide to finally get married
now...)

Even ones age -- how can one justify his own age when the same
can be attacked as hearsay? It is hearsay because one actually has no
personal knowledge of the actual circumstances of his birth. One cannot
actually remember his birth.

But many things that we know are based on reputation and family
tradition.

Q: What are the requisites in this Section?

(1) the reputation or tradition is one existing in the family of the person
whose pedigree is in question;

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 (2) the reputation or tradition was formed before the controversy (ante
lite motam);
(3) the witness testifying to the reputation of a person is a member of
the family.

Evidence on pedigree is not limited to oral testimony in court. It

applies also to documentary evidence. EXAMPLE: entries in family bibles
or other family books or charts, engravings on rings, family portraits, and
the like -- may be received in evidence as to pedigree.

A family bible is handed down from generation to generation. There

may be some entries or charts there -- that so and so is the wife of so and
so, and that these are their children... These may be written there. So,
these may be admitted in evidence to prove genealogy; this is considered
as another exception.

Sometimes, when you wish to prove that a person is a family

member, you look at the family portrait. A person will not be there unless
he is a member of that family. Definitely, they would not allow anybody not
related to them (e.g., houseboy) to pose with them.

So, all the above examples are evidence of pedigree although they
are hearsay.

In the phrase x x x family portraits and the like x x x a good

example, based on American jurisprudence, would be monuments or
tombstones. Or even obituaries -- that so and so died on this date; the
following are the bereaved... That is allowed. That is still evidence of
pedigree. A persons name will not appear on the obituary notice unless he
is really a relative of the deceased person.

HISTORY: There was a case before, here in Davao, where the relationship
between the defendant and the plaintiff was established through the
epitaph.

There were a brother and a sister who were Chinese. Both were
born in China but were brought to the Philippines by their parents when
they were still very young. Now, based on Chinese tradition, only the male
inherits. The female child does not inherit, but all her needs must be cared
for and supplied by her brother. So, when their father died, the brother
inherited everything.

One day, the child of the sister fell ill, and so she asked her brother to
help her out with the medical expenses. The brother refused to help the
sister. When the sister finally became angry, she decided to claim her
share of the inheritance. Under Philippine laws, the sister is supposed to
get an equal share as her brothers. Thus, they were each supposed to
receive half of the inheritance.

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 The brothers defense was that the woman was actually not his sister.
So, there was a denial of the relationship between them. The trouble here,
according to the lawyer, was that they could not secure any birth certificate,
because both were born in China. And they did not have any known
relatives in Davao. So, the counsel of the sister had to prove that she is
really the daughter of the deceased -- but how in the absence of any
document?

Until somebody tipped the sisters lawyer. Examine the tombstone of

the parents graves. When they went to see the epitaph, everything was
written in Chinese characters -- and there they found it: x x x survived by
the following x x The sister was mentioned there as one of the children.
Therefore, in this case, the epitaph was used in order to prove pedigree.

SECTION 41. Common reputation. Common reputation

existing previous to the controversy, respecting facts of public or
general interest more than thirty years old, or respecting marriage or
moral character, may be given in evidence. Monuments and
inscriptions in public places may be received as evidence of common
reputation.

EXAMPLE: Reputation in the community. You go to a certain barrio, or

town, and you ask the people there: Where is the next town? They answer
that you would know you are already in the next town when you see a
balete tree. How did they know that? Because that is what everybody in
their town is saying. Since they were still children; even when their parents
were still children, and their parents parents were still children... But if you
ask them they got this information -- they do not know except that this was
what their grandparents told them.

Q: Is the above admissible to prove the truth?

A: Yes -- and most of all as evidence of common reputation. It is hearsay
because everybody just believes in the story without being able to explain
the source of the information.
Take note that evidence of common reputation is not confined to oral
testimony by a resident of the community. The law says that monuments or
inscriptions in public places may be received as evidence of common
reputation.

EXAMPLE: We accept the fact that the Rizal Monument at the Luneta
Park is the spot where Dr. Jose Rizal was executed. It is stated there in the
monument that: On this spot and on this date Jose Rizal was executed. Is
that allowed? No, because that is hearsay. There must be a person
presented who actually was present when Rizal was being executed. But
the problem is, we could never find such a person anymore. That even
happened such a long time ago already.
In the United States, a small street is the place where Thomas
Jefferson read the American Declaration of Independence. This street is
now know as the Wall Street, which is now being referred to as the financial

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center of the world. But here is located a marker which reads that such is
the place where the Declaration of Independence was read. That was over
200 years ago. Obviously, there is no more eyewitness alive to corroborate
the story of that even.

Therefore, the markers and the monuments should be sufficient to

prove events of common knowledge.

Q: What are the justification for this?

A: We go back to necessity and trustworthiness.

1. NECESSITY. because the fact to be proved is of too ancient a date

such that eyewitnesses are no longer available. We are trying to
prove something which started over 30 years ago, and it is very
difficult to look for eyewitnesses who really know the story.

2. TRUSTWORTHINESS. because if the reputation has existed for so

long a time, there must be some truth to it. It must be true, because if
it were otherwise, it would not have lasted. People will somehow
disprove it if it were not really true.

Q: What does common in this Section mean?

A: By common, the Supreme Court said, it is of general or undivided
reputation in the community. Unanimity is not required. For as long as
there is a majority consensus in the community, that is enough. There
might be one in one million who refuses to believe, but this does not mean
to say that there is no common reputation.

Q: What is meant by interest?

A: Interest means a pecuniary interest, or some interest by which legal
rights or liabilities of a community are affected. And when one speaks of
public interest, it means that all the inhabitants of a country have an
interest. General interest means the interest of an entire particular
community.

That is why by proving the boundaries of a private property by

common reputation IS NOT a matter of interest of the community, but of
only a particular landowner; EXCEPT, if that private property is also
affecting the whole community.

Q: What are the requisites in this Section?

(1) the reputation refers to a matter of public or general interest (i.e., it
must be of ancient reputation);
(2) the reputation was formed ante litem motam; and,
(3) the reputation is one formed in the community.

Q: What else may be proved by common reputation?

A: Aside from facts of public or general interest more than 30 years old, the
following may be proved by common reputation:

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 (1) matters respecting facts of public or general interest;
(2) matters respecting marriage;
(3) matters respecting moral character.

BAR PROBLEM: You go to a small town, and you meet there a long-time
resident. He tells you that when he was in his fourth year, his grandparents
were already there in the town. That is why his family knows practically all
the families in that town. Then you ask him abort the family of Mr. X. He
answers that he knows the family of X -- his parents, grandparents, etc. He
knows practically everything about everybody in that town because of its
small size. So, what the resident is trying to prove here is family genealogy
through common reputation. QUESTION: Is the testimony of the resident
admissible as an exception to the hearsay rule? ANSWER: No, because
matters of pedigree cannot be proved by common reputation. they can
only be proven by family reputation. The person testifying must be a
member of the family. A stranger, although he may know your family very
well, is still talking of something that is considered hearsay.

So, again, facts of family history are not provable by common

reputation (Section 41), but should be proved under the provisions of the
previous Section. For pedigree to be proven, the person testifying must be
a member of the family, and not just a member of the community.

exception: the only matter of pedigree which may be proved by common

reputation is MARRIAGE.

EXAMPLE: Consider this conversation:

RALPH:
Are the parents of Vilma legally married?
GINA:
Yes.
RALPH:
Why do you know so? Were you present when they were
married?
GINA:
No, but everybody here says they are legally married.

Actually, the community-member is talking about hearsay. But that is

allowed. The marriage of somebody may be proved through common
reputation. But all the rest of the matters concerning pedigree CANNOT
BE PROVED by common reputation.

The last item which is provable by common reputation is MORAL

CHARACTER.

EXAMPLE:
BENNY:
Do you know Mac?
JUNE:

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 Yes, he is from this town. His family grew up here.
BENNY:
What can you say about Mac?
JUNE:
Mac is a good person.
BENNY:
Why do you say that?
JUNE:
Well, because that is what everybody here says.

BUT, for example:

BENNY:
Do you know Maggie?
APRIL:
Yes, she is from this town. she is a bad person.
BENNY:
What did she did to you? What makes you say that she is a
bad person.
APRIL:
She did not do anything. but everybody here says that she is a
bad person. therefore, she is not a good person.

In other words, her bad character may be proved. How? Through

the reputation that he formed in the community. That is hearsay, but under
the law that is allowed. So, the moral character of a person can be proved
by evidence of common reputation.
Q: What are the requisites?
1. it was formed in the place where the person in question is best known;
2. it was formed ante litem motam.

Q: Why is the above admissible in evidence?

A: According to American jurisprudence: experience has shown that the
good or bad character of a person is accurately determined by the
reputation he has established in his community. The best judge of your
character is your community, where everybody knows you.

Suppose, Lauro went to a town and asked about Maria:

LAURO:
Do you know Maria?
ROMEO:
Well, she is from this town. She grew up here; her family is
from this town.
LAURO:
What can you say about Maria? Is she a good or bad woman?
ROMEO:
Nothing. There is nothing that I can say about her.

Q: What kind of a statement is that? Is that evidence of a good or bad

reputation?

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A: If you have nothing to say about somebody, that is evidence of his good
character. According to American ruling, that is evidence of a good
character because a persons character is not talked about if there is no
fault to be found in him.

SECTION 42. Part of the res gestae. Statements made by a person

while a startling occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances thereof, may be
given in evidence as part of the res gestae. So, also, statements
accompanying an equivocal act material to the issue, and giving it a
legal significance, may be received as part of the res gestae.

This is the sixth exception to the Hearsay Rule.

Among the eleven exceptions, the most important rules are:

dying declaration (in the Bar Exams, most of the questions in Evidence that
are asked are on Dying Declaration)
Res Gestae Rule.

Res Gestae is a Latin term, literally translated as a thing done; an

occurrence; a transaction -- something that happens, an event.
According to the Ballatines Law Dictionary, res gestae refers to matter
incidental to the main fact and explanatory of it, including acts and words
which are so closely connected therewith as to constitute a part of the
transaction, and without a knowledge of which, the main fact might not be
properly understood.

Q: When is a statement part of the res gestae?

A: There are two types of res gestae statements:
statements made by a person while a startling occurrence is taking place,
or immediately prior, or subsequent thereto with respect to circumstances
thereof, may be given in evidence as part of the res gestae. This is known
as SPONTANEOUS EXCLAMATIONS. These are statements made
instinctively.
statements accompanying an equivocal act material to the issue, and
giving it legal significance, may be received as part of the res gestae. This
is popularly known as VERBAL ACTS.
The first type: There is spontaneous exclamation when a statement
is made instinctively -- as in, when you are surprised. You are taken by
surprise because there is a startling occurrence that happened. With that
startling occurrence, you uttered words by instinct. You uttered those
words JUST IMMEDIATELY BEFORE the startling experience, or
immediately AFTER IT.

EXAMPLE: In the case of Pp. vs. Anemias, the victim was stabbed. He
started shouting for help. A person came to him and the victim told him that
it was the accused who stabbed him. The Prosecution now presents as its

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witness the person who came to the victim when the latter was shouting for
help. The witness testifies as to what the victim said.

Q: Is the testimony of the above witness admissible, because actually that

is hearsay?
A: Yes, the statement was made by the victim instinctively. It was a
SPONTANEOUS EXCLAMATION which was made after the stabbing,
which is the startling occurrence.

In the case of Pp. vs. Avila, the statement was made by a shooting
victim to persons who answered his cries for help. The statement that the
accused shot him was considered admissible as part of the res gestae.

In the case of Pp. vs. Gozon, the witness who discovered the crime
pursued the accused immediately thereafter, and pointed to the accused as
the perpetrator of the crime.

In the case of Pp. vs. Alfaro, the declaration made by a person

immediately after being shot; That is the man who shot me! was
considered as a res gestae statement. So people who overheard it can
testify.

Q: What is the difference between a statement which forms part of the res
gestae, and a dying declaration?
A: There is a very close similarity between them. However, in a dying
declaration, there are some requisites which are not present in res gestae
statements. Like, for example, that the statement was made under the
consciousness of an impending death. That is required in a dying
declaration. In res gestae statements, that is not required.

Another example: In dying declaration, the victim or declarant must die.

He believed that he would be dying soon, and he did die. But if he believed
that he would survived when he made the statement, then that si not a
dying declaration.
WITNESS:
Who shot you?
VICTIM:
X shot me.
WITNESS:
We will bring you to the hospital.
VICTIM:
No... I am all right.
(but later on, the victim died)

Q: Would the testimony of the above witness be admissible in evidence as

a dying declaration?
A: No, it is not a dying declaration. The declarant himself thought that he
would still survive. but if such statement that X shot the victim was made
by him (victim) and he claimed that he was dying, but one or five seconds

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after he was shot, he was promptly brought to the hospital and was thus
saved, the statement may be admitted as a res gestae statement. So, here
the case would be frustrated, not consummated. Also the statement cannot
be considered as a dying declaration because the declarants death is not
the subject of inquiry.

Q: Distinguish a dying declaration from a res gestae statement.

A: A statement could either be one of the two, one or the other, or both. A
statement may be inadmissible as a dying declaration for the reason that it
does not meet the requisites under Section 37, however, it may still qualify
as a statement which forms part of the res gestae.

Q: Suppose a person dies after he makes a statement. This may be

offered as a dying declaration, or as a res gestae statement. But this is
dangerous. If you offer this as a dying declaration, that mat be possible.
But what if you are not certain as to one of the requisites, what should you
do?
A: You should offer it as a dying declaration. OR, in the alternative, as a
statement which forms part of the res gestae. MULTIPLE ADMISSIBILITY.
You offer it under both conditions, so that if it is declared inadmissible as a
dying declaration, it can still be admitted as a statement which forms part of
the res gestae.

PRINCIPLE: According to the Supreme Court, a statement which is

admissible as part of the res gestae is a statement made by the person
while a startling occurrence is taking place. Therefore, the person who
heard it may testify about the statement as an exception to the hearsay
rule. These statements are admissible because they were made
instinctively -- immediately before, during, or after. When a statement is
made by instinct, the theory is that it reflects what happened when the
human mind has no time yet to contrive or invent things.

Q: What does startling occurrence mean?

A: It is anything under the sun. In a Philippine case, there was an accident
which happened, for example, today. On the following day, the victim
executed an affidavit, testifying as to what happened last night. Then, the
victim died. QUESTION: Is the statement made by the deceased on the
following day in his affidavit admissible? ANSWER: Not, anymore,
because it was not made immediately thereafter.

Q: What are the justifications for this Rules?

A: Again, necessity and trustworthiness. NECESSITY, because such
natural and spontaneous utterances are more convincing than the
testimony of some person on the witness stand. TRUSTWORTHINESS,
because the statements are made instinctively -- by instinct. The mind has
more time to contrive. If by instinct, it must be true. There was no lapse of
time to invent some other story.
To borrow the language of the Supreme Court in the case of Pp. vs.
Baguio (supra), Res gestae statements are the reflex product of

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immediate, sensual impressions, unaided by the retrospective mental
action x x x pure emanations of the occurrence itself. It is the event
speaking through the witness, not the witness speaking through the event.

BAR PROBLEM: The accused, X, invited a married woman to a fiesta.

While in the fiesta, the accused forced to drag the woman to an isolated
portion of the field where she was abused. There she spend the whole
night crying. The following day, she went home. When she reached her
home, her daughter asked her what happened to her. The woman
answered: I was raped last night by X. During the trial, the daughter
testified about what her mother told her. QUESTION: Is the testimony of
the daughter admissible? -- Meaning, does it fall under any of the
exceptions to the hearsay rule?

ANSWER: (the examiner was pointing to res gestae obviously) No. It was
not made immediately thereafter. The law says that it must be made
immediately thereafter. So, the testimony is hearsay; it is not admissible
because it does not fall under any of the exceptions.

Q: What are the requisites for the admissibility of spontaneous

exclamations?
(1) the principal fact or res gestae is a startling occurrence;
(2) the statements were made before the declarant had time to
contrive or devise; and,
(3) the statements refer to the occurrence in question or to its
immediate attending circumstances.

The second type: Statements accompany an equivocal act material

to the issue and giving it a legal significance, may be received as part of
the res gestae. Statements accompanying an equivocal act.

Q: What is meant by an equivocal act?

A: Equivocal, not clear; there is an ambiguity. An act is equivocal when it
is susceptible of two or more meanings.

ILLUSTRATION: A is seen handing over money to B. That act may be

interpreted as: (a) A is handing over money to B as payment for a debt
(creditor-debtor relationship); (b) A is handing over money to B, as Bs
salary (employer-employee relationship); (c) A is handing over money to B
because A is asking B to buy something for him (principal-agent
relationship), etc... In other words, one cannot really identify the correct
legal transaction by the act alone. However, if the act of giving money is
accompanied by some statement on the part of A, that statement might
clarify what the transaction is all about.

The statement which accompanied the act, which clarifies what the
transaction is all about-- gives legal significance to the correct nature of the
transaction, is covered by VERBAL ACTS.

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Q: What are the requisites for verbal acts?
(1) the res gestae is an equivocal act;
(2) the equivocal act must be material to the issue;
(3) the statement in question must be necessary for the understanding of
the equivocal act; and,
(4) the statement must accompany the equivocal act.

EXAMPLE: A person is occupying a piece of land. What kind of

possession is that? Is that possession as an owner, lessee, tenant, or
squatter? Therefore, the mere act of A in possession of the land is
susceptible of two or more interpretations. Therefore, any statement made
by a person stating the circumstances of his possession may be
considered as a statement which forms part of the res gestae. It is
considered a statement accompanying an equivocal act which could shed
some light on the nature of his possession over the property.

Q: Distinguish spontaneous exclamations from verbal acts.

A: There are 3 distinctions, to wit:

SPONTANEOUS VERBAL ACTS

EXCLAMATIONS

the principal fact is a startling the principal fact is an equivocal act.

occurrence

the statement may precede, statements must accompany the

accompany, or succeed the equivocal act
startling occurrence

the statements need not statements must explain the equivocal act
explain the principal fact, and give it a legal significance.
which is startling

SECTION 43. Entries in the course of business. Entries made at,

or near the time of the transactions to which they refer, by person
deceased, or unable to testify, who was in a position to know the
facts therein stated, may be received as prima facie evidence, if such
person made the entries in his professional capacity or in the
performance of duty and in the ordinary course of business or duty.

This is the seventh exception to the Hearsay Rule.

There are some people who, because of the nature of their work,
make entries in ledgers, etc. These are part of the regular course of their
business. For example, in banks -- ledgers, deposits, withdrawals --
everything is kept and recorded by the accountants or bookkeepers.

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Q: Suppose an entry is made in such a kind of book (journals, ledgers,
etc.) and there is now a case where it is being proved that there was such a
transaction, can such book be presented in order to prove that there really
was or there was no such transaction?
A: As a general rule, the document or book is hearsay. The person who
made the entries must be presented in court so that he may be cross-
examined. However, according to the law, when the person who made the
entry is unable to testify, then the entries made are admissible in evidence
to prove the truth of such entry, without anymore presenting the entrant.
This is admissible on the ground that this is an exception to the hearsay
rule.

Q: What are the requisites in this exception?

(1) the entrant made the entry in his professional capacity, or in the
performance of his duty;
(2) the entry was made in the ordinary course of business or duty;

Q: What is meant by ordinary course?

A: That what was done is part of a regular system of entries
being kept in the establishment. Meaning, it is an entry done
everyday, not simply dated. It is part of a pattern of usual
activities.

(3) the entry was made at or near the time of transaction to which it
relates;
(4) the entrant was in the position to know the facts stated in the entry;
and
(5) the entrant is dead or unable to testify.

Q: What are the justifications?

A: NECESSITY (because the entrant is already dead or unable to testify,
and no equally satisfactory proof of the entry can be had) and
TRUSTWORTHINESS (because a man who makes regular entries for
purposes of business or duty usually makes them with accuracy. If
businessmen can rely upon the accuracy of the entries, there is no reason
why the courts cannot also rely on the accuracy of these entries)

In the United states, the following were considered as falling under

this:
i. records of transfer from slips;
ii. invoices and vouchers;
iii. index cards;
iv. time cards;
v. journal;
vi. ledger entries;
vii. check stubs;
viii. book of accounts...

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 On the other hand, the following were not considered as falling under
this:
i. balance sheets;
ii. profit & loss statements.
The above are also accounting records, but they are not made at or
near the time of the transaction. Also matters primarily connected with
prosecuting and defending a claim such as Employees Accident Report or
Police Report.

PHILIPPINE AIRLINES vs. RAMOS

207 SCRA 461

Facts: Private respondents, Ramos et al., are officers of the

Negro Telephone Company who held confirmed tickets for PAL
Flight 264 from Naga City to Manila on September 24, 1985,
scheduled to depart for Manila at 4:25 in the afternoon. Among
the conditions included in the private respondents tickets is the
following:
CHECK-IN TIME -- Please check in at the Airport
Passenger check-in counter at least one hour before
PUBLISHED departure time of your flight. We will
consider your accommodation forfeited in favor of
waitlisted passengers if you fail to check-in at least 30
minutes before published departure.

Private respondents tickets were canceled and their

seats given to chance passengers because they were late for
their flight. However, they claim that they went to the check-in
counter at least one hour before their published departure time,
but that no one was at the counter until 30 minutes before
departure.

Thus, they seek actual, moral, and exemplary damages,

and attorneys fees for breach of contract of carriage.

The check-in clerk wrote on the plaintiffs tickets the

notation late and the time 4:02 which appeared on the upper
right-hand of the tickets. These notations were presented by
PAL to prove that the private respondents were indeed late for
their flight.

The trial court found PAL guilty of breach of contract of

carriage in bumping-off the courts decision. Hence, the
present petition to the Supreme Court.

Issue: (1) whether or not the notations on the tickets are

admissible as evidence even without presenting the PAL
employee who made them.

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 (2) whether or not the hearsay rule may be invoked to
deem such evidence as inadmissible in court.

Holding: The above evidence is admissible and is not

excluded by the Hearsay Rule, as the said notations are entries
made in the regular course of business, which the private
respondents failed to overcome with substantial and convincing
evidence other than their testimonies.
Private respondents objection that the above document is
self-serving, cannot be sustained. The hearsay rule will not
apply in this case as statements, acts or conduct
accompanying, or so nearly connected with the main
transaction as to form part of the res gestae.

Petition granted. The questioned decision of the CA is

annulled and set aside. Thus, the Supreme Court held that the
notations are admissible either under the res gestae, or entries
in the course of business.

However, so many commentators are attacking the ruling of the

Supreme Court in this case. To qualify as an entry made in the course of
business, is it not that it must be a REGULAR entry in the course of
business? Every time a passenger checks-in at the airport, is it a regular
duty of the clerk in the check-in counter to place on the ticket the time of
the check-in? No, it is not. But this was done for the private respondents
in the above case.

Since that was so, is that part of the course of business? That
element is missing. Thus, it could not be said that the notations are part of
the business to evince regularity. There should be a duly-lined or provided
space on the passengers tickets, which should be ordinarily filled out upon
check-in by the passenger.

Therefore, in order to be an regular entry, every ticket must have a

regular line. In the case, therefore, the notation is an ISOLATED entry, not
a regular entry in the course of business.

As to being part of the res gestae, the notation must either be a

spontaneous exclamation, or a verbal act. A late arrival at the airport is not
a startling occurrence. This happens everyday. If it should be a verbal act,
it should have been an oral statement or utterance which accompanied a
certain act or conduct. A verbal act suggests an oral utterance and does
not include writing or written notations. Thus, it would not qualify under the
res gestae also.

That is why the Supreme Court ruling in this case is very shaky.

SECTION 44. Entries in official records. Entries in official

records made in the performance of his duty by a public officer of the

174
Philippines, or by a person in the performance of a duty specially
enjoined by law, are prima facie evidence of the facts therein stated.

This is the eight exception to the Hearsay Rule.

Section 43 refers to business entries done by private personnel.

Section 44 refers to entries in official records by public officers.

EXAMPLE: The Register of Deeds is a public officer tasked with the duty,
or is enjoined by law to make entries in official books. He records the
transactions regarding real property everyday. The Clerk of Court makes
entries in the Book of Entry of Judgments rendered by the court. The
Sheriff makes entries in logbooks kept in the Sheriffs office. The Civil
Registrar makes entries of records of deaths, births, marriages, etc. The
Assessor makes entries about its findings as to the assessed value of land.

Take note that these transactions concern public officers. They make
entries of documents, notarized in Notarial Books.

EXAMPLE: You wish to prove in court that you were born on this particular
date. So, you go to the Civil Registrar and get a copy of your birth
certificate. The Civil Registrar will give you a CERTIFIED TRUE COPY.
So, you offer your certified official true copy in court to prove your
background, the circumstances of your birth. Then comes the other party
objecting to the admissibility of such documentary evidence on two
grounds:
(1) that it violates the Best Evidence Rule, because the original is not
offered in court;
(2) that it violates the Hearsay Rule, because the Civil Registrar should
be in court to identify this document in his custody.
Are the above objections tenable?
ANSWER: Both objections are untenable.

As to (1) One of the exceptions to the Best Evidence Rule is when the
original is recorded in a public office. A certified true copy is
admissible. Therefore, invoking the Best Evidence Rule is wrong.

As to (2) The objection is wrong, because when the document is an entry

in an official record, the official record or certified true copy is admissible.
There is thus no need for the Civil Registrar to testify in court.

PEOPLE vs. SAN GABRIEL

253 SCRA 84

Facts: On the evening of November 26, 1989, within the

vicinity of Pier 14 at North Harbor, a fistfight ensued between
Jamie Tonog on one hand, and the accused Ricardo San
Gabriel and a certain Ramon Doe on the other. The fight was
eventually broken up when onlookers pacified the protagonists.

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Ricardo and Ramon then hastened towards Marcos Road but
in no time was back with bladed weapons. They approached
Tonog surreptitiously, surrounded him and simultaneously
stabbed him in the stomach.

Prosecuted for murder, San Gabriel contended that it was

a certain Mando who was the real culprit. He leans heavily on
the Advanced Information Sheet prepared by Pat. Steve
Casimiro, which did not mention him at all and named only
Ramon Doe as the principal suspect.

Issue: whether or not a police blotter is admissible as

evidence.

Holding: Entries in official records, as in the case of a police

blotter, are not only prima facie evidence of the facts therein
stated. They are not conclusive. The entry in the police blotter
is not necessarily entitled to full credit for it could be incomplete
and inaccurate. It is understandable that the testimony during
the trial would be more lengthy and detailed than the matters
stated in the police blotter. Significantly, the Advance
Information Sheet was never formally offered by the defense
during the proceedings in the court below. Hence, any reliance
by the accused on the document must fail since the court
cannot consider any evidence which has not been formally
offered.

Parenthetically, the Advance Information Sheet was

prepared by the police officer only after interviewing Camba, an
alleged eyewitness. The accused then could have compelled
the attendance of Camba as a witness. The failure to exert the
slightest effort to present Camba on the part of the accused
should militate against his cause.

Entries in official records made in the performance of his

duty by a public officer or by a person in the performance of a
duty specially enjoined by law are prima facie evidence of the
facts therein stated. But to be admissible in evidence three
requisites must concur: The entry was made by a police officer
or by another person specially enjoined by law to do so;
The entry was made by a police officer in the performance of
his duties, or by such other person in the performance of a duty
specially enjoined by law; and The public officer or other person
had sufficient knowledge of the facts by him stated, which must
have been acquired by him personally or through official
information.
The Advance Information Sheet does not constitute an
exception to the hearsay rule, hence, inadmissible. The public
officer who prepared the document had no sufficient and

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 personal knowledge of the stabbing incident. Any information
possessed by him was acquired from Camba which therefore
could not be categorized as official information because in order
to be classified as such the persons who made the statements
not only must have personal knowledge of the facts stated but
must have the duty to give such statements for the record.

Q: Why are official records admissible?

A: On the grounds of necessity and trustworthiness.

NECESSITY. Because the litigation are numberless, in which the

testimony of a public official is required. Without this exception, every
time a public officer issues a certified true copy, he has to go to court
and testify that the original is among his files, that the document is an
accurate copy, and that the same bears his signature. If that is
necessary, the time will come when public officers cannot anymore
report to work because most of their time will be spent in court
identifying all the documents that they have issued.

TRUSTWORTHINESS. Official records are trustworthiness because

the law reposes a particular confidence in public officials, such that it
presumes that they will discharge their duties with fidelity and
accuracy. The presumption is, that they will really issue a correct
copy. They will not issue a document for which they do not have an
original. They are aware that they can be otherwise held liable for
falsification.

Take note that the law says that the entry is made by a person in the
performance of his duty -- public officers, or BY A PERSON IN THE
PERFORMANCE OF A DUTY ESPECIALLY ENJOINED BY LAW.

An example is where a person is not a public officer, but he makes an

entry in the performance of a duty especially enjoined by law, like a priest
or minister. They solemnize marriages. They are the ones who report to
the Civil Registrar the marriages and supply such office with a record of the
marriage they have performed.
So, in effect, the entries that appears in the Civil Registry are actually
entries made by a priest or minister, which they had reported to the Civil
Registrar. The priest or minister considered as made a person especially
enjoined by law to make the entry.

For example, a birth certificate. You will find a copy of your birth
certificate in the City Hall. But where does a birth certificate actually come
from? From the hospital. And the person who made an entry is a private
physician. So, in effect, private physicians are enjoined by law to make
accurate entries and report the same to the Civil Registrar. That is covered
by this Section on entries in official records.

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Q: What are the requisites in this Section?
1. the entry was made by a public officer, or a person especially
enjoined by law to do so;
2. the entry was made in the performance of a duty, or a duty especially
enjoined by law;
3. the public officer or the person who made the entry had sufficient
knowledge of the facts by him entered, acquired by him personally or
through official information.

Q: Suppose one wishes to prove his age, date of birth and identity of his
parents, can he present his baptismal certificate in lieu of his birth
certificate?
A: No, legally, the public document to evidence ones citizenship,
parentage, civil status, date of birth and place of birth is the birth certificate.
According to the Supreme Court, a baptismal certificate is admitted even if
the birth certificate is the one that is being required.
The law says that these documents are prima facie evidence of their
contents. Meaning, they will suffice to prove the truth of the entries. But
one may prove that they are wrong, because the truth may be rebutted.

Q: Suppose a person is mauled. He is a victim of physical injuries. He is

examined by a physician who issues a medical certificate. Later on, a case
of physical injuries is filed against the accused. During the trial, to prove
the injury and the nature of the injuries, the victim presents as evidence the
medical certificate. Is the medical certificate admissible in evidence by
itself?
A: The long-standing doctrine has been NO. This is hearsay. To prove the
injuries, the doctor who examined the patient must testify. The doctor must
be subjected to cross-examination. So, one of the species of hearsay
evidence is that A MEDICAL CERTIFICATE IS NOT ADMISSIBLE.
However, the following case provides an exception:

PEOPLE vs. LEONES

117 SCRA 382

Facts: Complainant, Irene Dulay, was a salesgirl employed in

the store of Mr. & Mrs. Pepito Leones in San Fernando, La
Union, where she resided. On April 22, 1973, the complainant,
who was having a headache, stayed in her room. Earlier that
day, the members of the Leones family, including the accused-
appellant, and his sister, Elizabeth, had gone to a nearby beach
resort for a picnic.
At around past noon, accused-appellant and Elizabeth
returned to the house. While they were at home, accused-
appellant and Elizabeth entered the room where complainant
was lying down, and forced her to take 3 tablets dissolved in a
spoon, which according to them, were aspirin. Complainant
refused to take the tablets, but were forced into doing so when
the accused-appellant held her mouth while Elizabeth pushed

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 down the medicine. Then, accused-appellant and Elizabeth left
her room. After a while, complainant felt dizzy.
Later the accused-appellant returned to complainants
room and took off her underwear. Then the accused-appellant
went on top of her. The complainant tried to push him away, but
she was too weak and dizzy. Thus, accused-appellant
succeeded in abusing her.
At around 4:30 in the afternoon of the same date,
Natividad Leones, stepmother of accused-appellant, found the
complainant unconscious near her room without any underwear
on. She was then taken to the La Union Provincial Hospital by
the driver of the Leones family.

When admitted to the hospital at around 6:00 PM, the

complainant was semi-conscious, incoherent and hysterical. She
refused to talk and be examined by the doctors. She was irritated
when approached by a male figure. Complainant was attended
to by a government physician who issued a medical certificate
with the following findings, among others:
healing lacerations of the hymen...
smear exam for sperm cell -- NEGATIVE...

Accused-appellant denied the charge imputed to him.

The defense also objected to the admissibility of the medical
certificate as the examining physician who prepared it was not
presented in the stand. Therefore, the medical certificate is
hearsay; thus, inadmissible.

Issue: whether or not the medical certificate is admissible in

court without presenting the examining physician who issued
the same.

Holding: The written entries in the clinical case record

showing: the date of complainants admission to the hospital,
her complaint of vaginal bleeding, and the diagnosis by the
physician, are prima facie evidence of the facts stated therein,
said entries having been made in official records by a public
officer of the Philippines in the performance of his duty
especially enjoined by law, which is that of a physician in a
government hospital.

Very important: The Supreme Court declared that a medical certificate

issued by a physician of a government hospital is considered a PUBLIC
DOCUMENT. The entries therein are considered entries in official record.
They are prima facie evidence of the facts therein stated. Thus, there is
NO NEED TO PRESENT THE ISSUING PHYSICIAN -- this case being an
exception. The general rule is that the physician must testify.

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 The Supreme Court also held that it is permissible for another
physician to testify on a medical certificate issued by another physician.
The physician who issued the medical certificate is unable to testify
because he has left the hospital, or is somewhere else and cannot be
found. The other physician will be merely asked to interpret the said
medical certificate. Such procedure was allowed by the Supreme Court.

The case of Pp. vs. Leones is an exception to the general rule

because the physician in this case is a government physician.

SECTION 45. Commercial lists and the like. Evidence of

statements of matters of interest to persons engaged in an
occupation contained in a list, register, periodical, or other published
compilation is admissible as tending to prove the truth of any relevant
matter so stated if that compilation is published for use by persons
engaged in that occupation and is generally used and relied upon by
them therein.

EXAMPLE: X is a businessman who subscribes to a business journal. He

reads the journal for business use -- data, currency fluctuations, etc. In a
certain case, he wishes to prove that the price of copra three years ago
was higher than last years. As a matter of fact, he wishes to show that the
price of copra is going down by such percent every year. So, he presents
these facts which he gets from the business journal. So, his evidence is
the particular issue or issues of such journal.

Q: Is such evidence admissible?

A: No, the journal(s) is hearsay, because the person who prepared the
data therein, the editor, or publisher, is not presented in court. But under
Section 45, the above evidence is admissible because it is a statement of a
matter of interest to persons engaged in an occupation obtained in a list of
commercial or other published information. However, it is not necessary
that the journal or publication be devoted purely to business, or to the
particular topic being proven in court.

Other examples under this Section are:

business section of the news paper: Everyday the rate of exchange
is published there. If you need to prove the dollar rate on a
particular day, you can present the newspaper. Again, this is
supposed to be hearsay because the editor cannot testify.
However, a daily newspaper can be considered as a LIST,
REGISTER or OTHER PUBLISHED COMPILATION of business
news, rate of exchange or declaration of stocks.
table of logarithms, weights & measures, stock market quotations,
standard price lists, encyclopedia, dictionaries, almanacs, journals,
medical journals. These are covered by this Section.

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Q: What are the justifications?
1. NECESSITY. According to American jurisprudence, commercial lists
are admissible on the ground of necessity. It would be inconvenient
to call the persons who prepared the list to testify. They will be
inconvenienced.

2. TRUSTWORTHINESS. , because these persons who prepared the

list have no motives to falsify. By the long usage of lists in the
practical affairs of life, they have come to be accepted as standard
and undying authority.

Authors of dictionaries, encyclopedia, business journals, etc. have the

tendency to be accurate. They have no reason to falsify. Otherwise, if their
work is found to be inaccurate, they will be disadvantaged. People will not
read and patronize their journals.

SECTION 46. Learned treatises. A published treatise,

periodical or pamphlet on a subject of history, law, science or art is
admissible as tending to prove the truth of a matter stated therein if
the court takes judicial notice, or a witness expert in the subject
testifies, that the writer of the statement in the treatise, periodical or
pamphlet is recognized in his profession or calling as expert in the
subject.

Do not confuse this Section with Section 45. Section 45 refers to

data. Section 46 refers to books, articles, pamphlets, writings on
specialized topics -- for example, those involving history, law, science and
the arts.

EXAMPLES: A book on neuro-surgery (brain damage) written by an expert

neuro-surgeon. A book on fingerprints written by a famous expert. A book
on ballistics written by an expert in that field. There are many things that
one find in these books.

During a trial, X wishes to prove a certain fact on brain damage, or a

certain fact in gunshot wounds. To prove his point, he offers in evidence a
statement found in the book of a particular author. QUESTION: Is the
statement in the book admissible in evidence considering the fact that the
author is not in court?
ANSWER: Yes, under Section 46, it will qualify as a LEARNED
TREATISE. The publication, treatise, periodical or pamphlet is the subject
of history, law, science, or art is admissible as tending to prove the truth of
a matter as stated therein.

Q: What are the justifications?

NECESSITY. According to Wigmore, there is necessity because the
author is probably not available as a witness. Perhaps the author is
already dead. Besides, his work may be based on the studies of others
who long existed. This may be considered as the product of an advancing

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civilization. If the scientist, writer, or expert will be required to testify
personally, he will practically be asked to rely also on the works of others
who have long existed before him. How could you subpoena his
predecessor who may be already dead?

TRUSTWORTHINESS. Because the authority has no motives to

misrepresent. An author of a book in science has no reason to
misrepresent. He will only be condemned by his peers.

Q: How do we know that the writer of the treatise is qualified?

A: There are two ways, according to Section 46. It is admissible as
tending to prove a matter stated therein:
(a) if the court takes judicial notice -- meaning, if the court takes judicial
notice of the controversial matter; or,
(b) if a witness expert on the subject testifies that the writer of the
statement in the treatise, periodical, or pamphlet is recognized in his
profession or calling or calling as expert on the subject.
Either the court takes judicial notice of the qualification of the author.
OR, if the court does not take judicial notice, another expert -- a local guy,
will testify that this is the author and that such author is really an expert in
that field.
EXAMPLE: There is a book on brain damage written by an American
surgeon. The court says that it does not know the author; it is not
convinced that the author is an expert in that field. So, the party presenting
the book as evidence asks a doctor in Davao, who is also a neuro-surgeon,
to testify:
COURT:
What can you say about the author?
DOCTOR:
He is an expert in neuro-surgery. As a matter of fact, his book
is the standard textbook being used in the medical school.

So, the court has identified the author as qualified. Or, if the court
does away with the above procedure, the court may take judicial notice of
the expertise of the author. So, the court may or may not take judicial
notice. CONCLUSION: This is an example of permissive or discretionary
judicial notice as stated in Section 2 of Rule 129.

SECTION 47. Testimony or deposition at a former proceeding.

The testimony or deposition of a witness deceased or unable to
testify, given in a former case or proceeding, judicial or
administrative, involving the same parties and subject matter, may be
given in evidence against the adverse party who had the opportunity
to cross-examine him.

EXAMPLE: In a criminal case against the accused, the offended party

reserved his right to file a separate civil action. So, there are two cases
arising from the same incident. Practically, the witnesses will be the same.
So, the criminal case was tried. The witness for the prosecution testified,

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was cross-examined, etc. Later on, after several months, the civil case is
tried. The same witnesses are subpoenaed to testify for the plaintiff. The
problem is that, between the time of the trial for the civil and criminal cases,
a witness for the plaintiff died. So the plaintiff loses his witness in the civil
case. He turns to the transcript of the witness testimony in the criminal
case. He wishes to use this transcript in the civil case. QUESTION: Will
the transcript be admissible in the civil case, even without presenting the
witness himself?
ANSWER: Yes, this is classified as a testimony in a former trial. Take note
that it is not necessary that what will be offered in evidence is his testimony
in court. Even a deposition would suffice.

This jibes with the law on depositions -- the deposition of a witness is

not admissible in court as a substitute for his oral testimony. It can be used
only for impeachment purposes; EXCEPT, when the witness is dead, or
outside of the Philippines, etc. where the deposition is admissible to take
the place of the witness in the stand. There was no cross-examination in
deposition-taking. Ones presence in court may be waived for as long as a
person is given the opportunity. But if the witness is still alive, he must
testify again. The transcript or stenographic notes in this case cannot take
the place of his testimony. The provision provides that he must be
deceased or unable to testify. Unable does not mean that he is merely
busy.

Q: What if it was the civil case which came first. The witness, after
testifying in such trial, died. Can the transcript of his testimony in the civil
case be admissible to take the place of his testimony in the criminal case?
A: Yes, the accused may object because under the law, in a criminal case,
the accused has the right to confront and cross-examine the witnesses
against him. The transcript may be admissible in a civil case.

Q: How can a transcript be admissible when it cannot be subjected to

cross-examination by the accused?
A: Section 1(f) of Rule 115, which is the exception to the right of the
accused to personal confrontation, provides the reply:
In all criminal prosecutions, the accused shall be entitled:
xxx
(f) to confront and cross-examine the witnesses against him at the trial.
EITHER PARTY MAY UTILIZE AS PART OF ITS EVIDENCE THE
TESTIMONY OF A WITNESS who is deceased, out of or cannot with due
diligence be found in the Philippines, unavailable or otherwise unable to
testify, given in another case or proceeding, judicial or administrative,
involving the same parties and subject matter, the adverse party having
had the opportunity to cross-examine him;
xxx

Q: What are the requisites in this Section?

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 (a) the testimony was given in a former case or proceeding, judicial or
administrative;
(b) the former case or proceeding was between the same parties;
(c) the former testimony relates to the same subject matter or issues;
(d) the adverse party has had opportunity to cross-examine the
witness; and,
(e) the witness is dead or is unable to testify in the subsequent trial.

CONCLUSION: The testimony given in another case is admissible as a

witness testimony in the present case without violating the hearsay rule.

7. Opinion Rule

SECTION 48. General rule. The opinion of a witness is not

admissible; except as indicated in the following sections.

The opinion of a witness is not admissible. When a witness testifies,

what matters should come out from him? Facts, as he saw them. He
should testify on facts which he knows, which he perceived, and which are
his personal knowledge. The OPINION of a witness has no relevance to
the case. Opinion is purely conjecture, speculation. The opinion of a
person is just the same as the opinion of another person. That is why, it has
no value. It is the judge who had the right to render an opinion, in his
decision -- his opinion on what the truth is.

The succeeding two sections may be considered as exceptions to the

hearsay rule. In some cases, the opinion of a witness is admissible in
evidence to prove the truth, which is supported by his opinion. These
exceptions are found in Section 49 and 50. The difference between the two
is that Section 49 talks of the opinion of an expert witness; Section 50 is
about the opinion of an ordinary witness.

SECTION 49. Opinion of an expert witness. The opinion of a

witness on a matter requiring special knowledge, skill, experience or
training which he is shown to possess, may be received in evidence.

ILLUSTRATION: The issue in a case is: Whose blood is this particular

blood sample? In the preliminary hearing, the blood expert testifies and
is asked about the probability of the occurrence that the particular blood
sample to be the blood of a specific person.

Or, in the case of physical injuries, the expert witness is asked what
instrument could have caused such an injury. Or, in his opinion as an
expert, from what angle the gun could have been fired, considering the
wounds of the victim. This is because nobody saw the victim being shot.
So, such matters require expert testimony.

Q: What is meant by expert here?

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A: A person or witness is an expert on any matter which requires special
knowledge, skill, experience or training, which he is shown to possess.

Q: How does a person become an expert?

A: A persons field of expertise can be very broad. It could be on any
matter -- science, art, etc. Being an expert is not limited to one who has
been able to undergo further studies. This is not limited only to special
knowledge. It can be acquired through skill, training or experience.
Expertise here is not acquired only by study of books.

EXAMPLE: A mechanic can be considered an expert even if he acquired

his knowledge only through training or experience.

Q: When is expert evidence considered admissible (requisites)?

(1) when the fact to be proved is one requiring expert knowledge;
(2) when the witness is really an expert, that ordinary mortals are not
aware of the complexities of a particular matter.

The first element. Things which are of the general knowledge of mankind
need not be proven. Some matters do not require expert knowledge for
their proof.

Q: Is it necessary to present an expert witness to testify on the law of

gravity? Is it necessary to prove that such law exists?
A: No, the court can take judicial notice of that.

When a matter does not require an expert opinion, expert evidence is

admissible but is not given much weight. But when the matter is very
complicated such that, really, no one knows about it, then expert evidence
is given due weight. However, there are instances when even the experts
themselves have conflicting views regarding a particular matter. Their
expert testimonies may be admitted in evidence, but the court may not
consider them. But if the knowledge on a particular matter is really limited,
the court has no choice but to consider the expert testimonies. Such
testimonies must be taken as true.

The second element. The witness must really be an expert. For all we
know, the witness may only be claiming to be an expert, but is actually not.
The process of showing to the court that the witness is really an expert is
called qualifying the witness. Otherwise, his opinion will not matter.

QUALIFYING THE WITNESS means proving that the witness

presented is an expert and this is done by asking him preliminary questions
as to his education, training, experience, and the like.

Q: How is qualifying the witness done?

A: You cannot just say that the witness is an expert. How would we know
that if that has not been shown? For example, Dr. No is a biologist, or a
surgeon, or is presented as an expert witness in neuro-surgeon. If the

185
other party admits that he is an expert, then there is no problem. But if the
other party does not admit that he is an expert, then you must go through
the process of qualifying the witness.

Ask some questions as, what profession the witness is engaged in,
where he took up Medicine, when he graduated, took the board exams,
when he passed, how many cases of such-and-such type he has
encountered so far, how many times he has testified on such-and-such
matter, etc. In other words, you dig into his bio-data. Has he written books
or articles on the particular matter he is testifying on? An admission that
one is a doctor is not an admission that he is a witness. You must show
that he is an expert.

Q: How does one lay the foundation for expert testimony?

A: Laying the foundation for expert testimony is divided into several parts:
Part I: The foundational elements for the experts qualifications must show
that the witness:
(i) has acquired degrees from educational institutions;
(ii) has had other specialized training in his field of expertise;
(iii) is licensed to practice in the field;
(iv) has practiced in the field for a substantial period of time;
(v) has taught in that field;
(vi) has published in that field;
(vii) belongs to a professional organization in that field;
(viii) has previously testified as an expert in that subject.

Part II: After describing his credentials, the expert explains the general
theory or principle the expert relies on. To lay this element of the
foundation, the proponent should establish the following:

(i) the expert used a particular theory to evaluate the facts in the case;
(ii) the theory in question has been experimentally verified;
(iii) the theory is generally accepted by the majority of experts in the
pertinent scientific specialty.

Part III: If the expert witness testifies on his personal knowledge, the
foundation for his testimony shall include the following:

(i) WHERE the witness observed the fact;

(ii) WHEN the witness observed the fact;
(iii) WHO was/were present;
(iv) HOW the witness observed the fact;
(v) a description of the facts observed.

Part IV: If the expert testifies on the reports of third parties, the foundation
for his testimony should include the following:

(i) the source of the third party report;

(ii) the contents/terms of the report;

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 (iii) that it is customary to consider that type of report.

Part V: The expert witness may now testify on the basis of assumed facts
or give his opinion on hypothetical questions.

When one has done all of the above, the witness is now ready to
testify.
LIM vs. CA
214 SCRA 273

Facts: On November 25, 1987, private respondent filed a

petition for annulment of marriage on the ground that petitioner
has been allegedly suffering from a mental illness called
schizophrenia, before, during, after the marriage, and until the
present.

Private respondents counsel presented three witnesses,

one of whom was the Chief of the Female Services of the
National Mental Hospital. Petitioners counsel filed an
opposition alleging that the testimony sought to be elicited from
the witness is privilege since the latter had examined the
petitioner in a professional capacity, and had diagnosed her to
be suffering from schizophrenia.

Counsel for private respondent contended, on the other

hand, that the witness would be presented as an expert witness
and would not testify on any information acquired while
attending to the petitioner in a professional capacity.

The lower court and the CA denied the motion and

allowed the witness to testify as an expert witness.

Issue: whether or not an attending physician is qualified to be

an expert witness, without violating the physician-patient
privilege communication rule.

Holding: The statutory physician-patient privilege, though duly

claimed, is not violated by permitting a physician to give expert
opinion testimony in response to a strictly hypothetical question
in a lawsuit involving the physical or mental condition of a
patient whom he has attended professionally, where his opinion
is strictly upon the hypothetical facts stated, excluding and
disregarding any personal professional knowledge he may
have concerning such patient. The physician must base his
opinion solely upon the facts hypothesized in the question,
excluding from consideration his personal knowledge of the
patient acquired through the physician-patient relationship.

187
 If he cannot or does not exclude from consideration his
personal knowledge of the patients condition, he should not be
permitted to testify as to his expert opinion.

How about the opinions of people who are not experts? Will their
opinion qualify as admissible in evidence. YES, that is an exception to the
Opinion Rule.

SECTION 50. Opinion of ordinary witness. The opinion of a

witness for which proper basis is given, may be received in evidence
regarding --
(a) the identity of a person about whom he has adequate
knowledge;
(b) the handwriting with which he has sufficient familiarity;
and,
(c) the mental sanity of a person with whom he is sufficiently
acquainted.
The witness may also testify on his impressions of the emotion,
behavior, condition or appearance of a person.
(a) the identity of a person about whom he has adequate knowledge;

For example:
COUNSEL:
Last week, while you were at home, the telephone rang. Your
companion said that it was for you, or that someone on the
telephone would like to talk to you. So, you took the call...
X:
Yes, I did. It was Mr. Y.

Meaning, X identifies Y as the person he was talking to over the telephone.

QUESTION: Is it an opinion when X says that it was Mr. Y who was then at
the other end of the line (X never saw Y while they were talking on the
telephone, hence, he actually does not have personal knowledge of the
identity of such caller)?

Q: Is a witness qualified to identify the caller on the telephone?

A: Yes, if there was a showing that the witness knows very well the caller
and he (witness) can easily recognize his (caller) voice. This is a good
example of Section 50(a).

Principle: When one knows a person very well such that he can readily
recognize him, as well as his voice, even if he tries to camouflage it, the
former may identify him.

Suppose the person testifies that it was very dark due to brownout.
But he could see the other persons silhouette. Then the former is asked
whether or not he could then recognize the person in front of him even in
the dark. The witness says yes. He could recognize the person referred to
because it was his classmate, Z, with whom he was very familiar.

188
 However, one must show the prior basis which is the acquaintance.
He must show that he has adequate knowledge about the other person.

So, there really are persons who can recognize easily the persons
they know. In effect, when one identifies a person as Mr. So-and-so, he is
expressing an opinion. But he must establish first that he has adequate
knowledge of such person. That he knows him very well. One cannot
make the testimony here admissible without proper showing that there is
sufficient familiarity between the witness and the person he is identifying.

(b) the handwriting with which he has sufficient familiarity; and,

Q: In resolving the dispute as to whom a certain signature belongs

(whether it belongs D or to E), the usual next step for a lawyer is to call a
handwriting expert from the NBI. So, the handwriting expert compares the
signatures of D and E. In effect, the handwriting expert is merely giving an
opinion on Ds or Es signatures. Is this admissible?
A: YES, under Section 49. But calling a handwriting expert is actually NOT
NECESSARY. Under the law, an ordinary witness is qualified to render his
opinion on the handwriting of somebody, for as long as he can establish
that he has sufficient familiarity with the handwriting of the person
concerned. So, again, there is no need to go to the NBI.

For example, F produces as his witness his secretary.

COUNSEL:
(shows the signature to the secretary) Do you recognize this
signature?
SECRETARY:
Yes, that is the signature of my boss, Mr. F.
COUNSEL:
Why do you know that? Why are you familiar with his
signature?
SECRETARY:
Well, because I am his secretary. I have been coming across
his signatures everyday for thirty years now.

Q: Is the above testimony admissible in evidence?

A: YES, under Section 50, because counsel has established the witness
familiarity with the signature of somebody.
So, contrary to the common impression, in order to determine
whether or not a signature is forged, or genuine, the NBI need not be called
to examine it. This latter process is expensive and takes time. So, why not
look for somebody who is familiar with the disputed signature, such as the
husband, wife, children, secretary, office mates, etc.? Present such person
in court; they will say the same thing as the expert will. It will have the
same effect as the opinion of an NBI expert. The law does allow that an
ordinary witness identify the signature of somebody. One does not have to

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be an expert in order to identify. But one has to establish familiarity with
the signature.

(c) the mental sanity of a person with whom he is sufficiently

acquainted.
For example, somebody testifies that he knows X.
COUNSEL:
What is your opinion with respect to Xs mental condition at
about this period last year?
WITNESS:
I think he was out of his mind then.
COUNSEL:
Are you a graduate of Psychiatry?
WITNESS:
No.

Q: So, how can the witness give his opinion on whether or not X is
mentally sound?
A: Under the law, it is not necessary that a witness be an expert in
Psychiatry in order to give his opinion on the mental sanity of a person.
Any witness who is sufficiently acquainted with the person who is the
subject matter of the case is qualified.

Q: Why is it that when there is a showing that one person is sufficiently

acquainted with someone, his opinion as to the mental condition or sanity
of such person is admissible?
A: Because, chances are, if one knows the person very well, he will be the
first one to detect some changes in him. If one knows another person very
well, he already knows his pattern of life or behavior. If there be any
change in such persons behavior, it would be easily noticed by people who
are close to him.

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

behavior, condition or appearance of a person.

This portion is an addition to the 1989 Rules. However, in the 1964

Rules, authorities already then considered this as covered. In other words,
such testimony of a witness under this paragraph is considered as
admissible. Note that this is close to the subject matter of Section 50.

ILLUSTRATION:
COUNSEL:
How did A react when he heard the news?
WITNESS:
My friend, A, felt very bad.

The witness here is practically merely stating an opinion. How did he

come to know of his friends actual feeling? So, when one testifies that

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somebody was happy, sad, nervous, or angry, he is practically giving his
opinion of the emotions of somebody.

However, a person can sometimes detect whether another person is

happy, sad, nervous or angry. There is something in his appearance which
could lead one to reach that conclusion or opinion. But one cannot fully
explain why. That, in American jurisprudence, is what is called a testimony
of collective facts. It is a combination of so many factors that you see.
Based on experience, one arrives at a conclusion as to the emotions or
behavior of somebody.

BAR QUESTION: At Ns trial for illegal possession and use of a prohibited

drug, known as shabu, his girlfriend, L, testified that on a certain day she
would see N very alert and sharp, but three days later, he would appear
haggard, tired, and nervous at the slightest sound he would hear. N
objects to the admissibility of the testimony of L, on the ground that L
merely stated her opinion without having been qualified as an expert
witness. Should you as judge exclude the testimony of L?
ANSWER: I will not. I will allow the testimony. It falls under Section 50.
An ordinary witness can testify on his impressions of the emotion, behavior,
condition or appearance of a person.

8. Character Evidence

SECTION 51. Character evidence not generally admissible;

exceptions
(a) In Criminal Cases:
1) The accused may prove his good moral character which is
pertinent to the moral trait involved in the offense charged.
2) Unless in rebuttal, the prosecution may not prove his bad moral
character which is pertinent to the moral trait involved in the
offense charged.
3) The good or bad moral character of the offended party may be
proved if it tends to establish in any reasonable degree the
probability or improbability of the offense charged.
(b) In Civil Cases:
Evidence of the moral character of a party in a civil case is
admissible only when pertinent to the issue of character involved in
the case.
(c) In the case provided for in Rule 132, Section 14.

ILLUSTRATION of Section 51:

Bad Character
Sec. 51(A)(2)
Accused
Criminal Case
good character
Sec. 51(A)(1)

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 Character Offended Party
Evidence of a party Sec. 51 (A)(3)

Civil Case
Sec. 51(b)

Recall that in the order of trial in criminal cases, it is the prosecution which
presents its evidence first (reception of evidence-in-chief or of the main evidence).
The reason for this is because the accused is entitled to the presumption of
innocence.

RULES IN THE PRESENTATION OF CHARACTER EVIDENCE:

1) Character Evidence in Criminal Cases

In criminal cases, the law on evidence is divided into two parts:
(a) the character of the accused - Rule 130, Sec. 51(a)(1) and (2);
(b) the character of the offended party - Rule 130, Sec. 51(a)(3).

2) Character Evidence in Civil Cases:

the governing provision is Sec. 51(b), Rule 130

Q: Is character evidence admissible in criminal cases?

(ILLUSTRATION: A is accused of estafa by means of deceit. The
prosecution, as part of its evidence, tries to prove that A had fooled so
many people in the past. So, it is shown here that A is, by nature, a man of
a bad moral character because he is dishonest. Under the law, is such
type of evidence admissible? Is the prosecution, in presenting evidence to
prove that the accused committed the crime, allowed to present evidence
of his BAD moral character?)
A: NO. That is not allowed because paragraph 2 of Sec. 51 provides that
the prosecution is not allowed to prove an accused moral character which
is pertinent to the moral trait involved in the offense charged.

Thus, the prosecution cannot present evidence of the bad moral

character of the accused, for the following reasons:
1) because of the presumption of innocence;
2) there is no connection between the bad moral character of the
accused and the commission of the crime;
3) to prevent unfair prejudice against the accused.

The third reason is the most important because if the fiscal or

prosecutor is allowed to character assassinates the accused, Justice
Moran in his Commentaries said that, the mind of the judge and the jury
(as in the case of United States) would now be poisoned... Therefore, in
deciding a case, the mind of the judge may already be prejudice against
the accused and that he might convict him not because his guilt is strong

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but because of his bad moral character. The law would like to avoid such a
situation.

Q: So what should the prosecution do?

A: The prosecution should present evidence to prove that the crime was
committed and prove that it was the accused who committed the crime.
But it cannot present evidence to prove that the character of the accused is
bad. That is Rule #1. With that, the prosecution would have to rely on
OTHER EVIDENCE other than bad moral character evidence.
Q: After the prosecution, it is the turn of the accused to present evidence.
Can the accused present evidence of his good moral character?
A: YES, because of Sec. 51 (a)(1).

EXAMPLE: A is accused of estafa by means of deceit. He allegedly used

fraud and deceit to defraud B. A denies the allegation and claims that he
never practices deceit. So, the issue is: Did A employ deceit in his
transaction with B, or not? A says no, so he presents evidence to show
that all throughout his life, he has never fooled anybody. He presents in
court people who know him and who testify that he never exercised fraud
or deceit. A is trying to prove here that his nature is such that he is an
honest and upright person. So, A is presenting evidence of his good moral
character.

Q: Is this allowed?
A: Yes. Because, according to the Supreme Court, such type of evidence
strengthens the presumption of innocence of the accused. That it is
unlikely that a person with such character could commit the crime. It is
naturally improbable for a person who is known to be very honest, upright,
a man of integrity, to employ deceit.

So, doubt will be created in the mind of the court. Thus, the
presumption of innocence is strengthened, which may lead to the acquittal
of the accused. Recall that this is also known as CIRCUMSTANTIAL
EVIDENCE. Moral character is a collateral matter which may tend to prove
the probability or improbability of the fact in issue.

However, take note that when one proves the character of the
accused, what is being proved about the accused must have something to
do with moral trait in the offense charged. For example, the accused is
charged with estafa by means of deceit. Then the defense tries to prove
that the accused is a very peaceful man. What does being a peaceful man
have something to do with being deceitful? Even a peaceful man can
employ deceit. So, there is an incompatibility here. In this case, therefore,
what must be proved should be the honesty and integrity of the accused.
This is Rule # 2.

Q: After the accused has presented evidence of his good moral character,
the prosecution, on rebuttal, presents evidence of the BAD moral character
of the accused. Is this allowed?

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A: YES. This time, it is possible, because the accused has already put his
character in issue in the case. The accused himself had brought out the
fact that he is honest, has integrity, deals with people in a fair manner, and
never fools people, for example. The prosecution may not prove his bad
moral character which is pertinent to the moral trait involved in the offense
charged UNLESS IN REBUTTAL.

Since the accused has already put his own character in issue, the
other party can now prove his bad moral character. If the accused never
presented evidence of his good moral character, then there is nothing to
rebut or refute; the prosecution is thus barred. This is Rule # 3.

So, the following are the three points to remember in the presentation
of the character evidence of an accused in a criminal case:
1) the prosecution cannot initially present evidence of the BAD
moral character of the accused pertaining to the moral trait
involved in the offense charged;
2) on the other hand, if it is already the turn of the accused to
present evidence, the accused is allowed to present evidence
of his GOOD moral character pertaining to the moral trait
involved in the offense charged; and,
1) if the accused presents evidence of his good moral character,
ON REBUTTAL, now the prosecution has the right to present
evidence of the BAD moral character of the accused.

On the other hand, as to the offended party, the victim. Can evidence
of the good or bad moral character of the offended party be allowed in
criminal cases? ANSWER: Paragraph 3. So, the character of the
offended party may be established if it will prove the probability or
improbability of the fact in issue -- collateral matters.

EXAMPLE: One of the elements of rape is that there is sexual intercourse

where there is no consent. The complainant was practically forced. The
defense of the accused is that the complainant consented. The
complainant denies this. So, the question now is: who is telling the truth?
What the accused will now try to establish is that the complainant
consented, as against the complainants claim that she did not consent.
What the accused then does is present evidence in court that the
complainant is a woman of loose moral character. He will present evidence
that she goes with any man even if they are complete strangers to each
other, and that she agrees to have carnal knowledge with these people. He
is presenting her bad moral character.

Why? Does it mean to say that if a woman is a prostitute, she cannot

be raped? Of course not! Even if a prostitute can be a victim of rape, for
as long as she did not consent. But if the woman is of loose morals,
chances are she agreed. So, this creates doubt upon the mind of the court.
If the woman always consent, is it probable that this time she did not
consent? Or, in all probability, did she consent? The answer would depend

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on her character. In the latter case, the possibility that she did not consent
is remote. That is the purpose there.

There was an author who said that in a rape case, there are two
people on trial -- the victim and the accused. Especially if the version of the
accused is that the complainant consented. The defense will prove that the
victim herself consented. They will both attempt to prove each others bad
character.

Another example: X is accused of homicide. X killed Y. X claims that Y is

the aggressor, not him (X). Because the version of the prosecution is that
Y is the aggressor, X will present evidence that the aggressor, Y, is really a
bully. That Y attacks people without provocation, wounds people without
any reason. So, Y is of a violent character. The accused presents people
who can vouch that Y is a person with violent character. Or the rule on
common reputation -- hearsay, may be applied. The moral character of a
person is provable by common reputation (the common reputation in the
community where one is best known). These people can really vouch for a
persons character. When this happens, it is a partys word against the
communitys.

A party is portrayed as a rude person. He shouts in public. So, the

defense, for example, looks for a credible witness to testify that his client is
not a rude person, one who could vouch for his clients character from way
back ten or twenty years. When defense counsel will find him, he will testify
that the client is a good person because, for example, at one instance
when they were together, somebody shouted at them and insulted them
The client could have stood up and hit the person who insulted them. But
he did not. He was pictured at first as a rude or bad person; the witness
had proved that such fact was untrue, that the client is a good person after
all. So, character evidence is used here to prove the improbability of the
offense charged.

IN CIVIL CASES

Q: What is the rule?

A: Evidence of the good or bad moral character is admissible only when
pertinent to the issue involved in the case. In general, it is not admissible.
As an exception, it is admissible only when pertinent to the issue -- the
character is pertinent to the issue in the case. Meaning, if the issue in the
case is whether a party is good or bad, the character of the party. Thus,
evidence may be presented as to a partys character which is good or bad.

Rarely can one find a civil case wherein the issue is the character of
a person. Best example: A case for custody of a minor child. The father
and the mother fight over the child. The issue here is: With whom should
the child stay according to the best interests of the child? The court will
have to determine the character of the parents. The husband, for example,
presents evidence that since the time he and his wife separated, she had

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been going out on dates every night; that she would even bring her
boyfriend to their house; that their child saw everything -- in effect, the
husband is trying to prove the bad moral character of the wife.

What is paragraph (c) all about? The case provided for in Rule 132,
Sec. 14. That refers to character evidence of witnesses. There are two
classes of character evidence provisions:
(a) character evidence of parties;
(b) character evidence of witnesses.
Meaning, a party will present evidence of the good character of the witness
so that the court will believe him. Or, a party will present evidence of the
bad character of the witness, so that the court will not believe him. That is
governed by Rule 132.

Rule 131

BURDEN OF PROOF AND PRESUMPTIONS

SECTION 1. Burden of proof. Burden of proof is the duty of a

party to present evidence on the facts in issue necessary to establish
his claim or defense by the amount of evidence acquired by law.

BURDEN OF EVIDENCE is defined by American jurisprudence as the duty

resting upon a party, by means of evidence to create or meet a prima facie
case.

Q: Distinguish Burden of Proof from Burden of Evidence (bar question)

A: Burden of proof does not shift during the course of trial. It remains with
the party upon whom the law cast it at the beginning of the trial. On the
other hand, burden of evidence shifts or passes from side to side as the
trial progresses and evidence is produced.

ILLUSTRATION:
burden of proof:
Q: In criminal cases, who has the burden of proof, the prosecution or the
defense?
A: The burden of proof rests on the prosecution because of the
presumption of innocence. The prosecution has the burden from the
beginning to end, to show the guilt of the accused beyond reasonable
doubt. The burden of proof does not shift.

burden of evidence: This has something to do with the order of trial.

Q: When trial in a criminal case starts, who presents evidence first?
A: The duty of presenting evidence initially belongs to the prosecution.
The prosecution has the burden of presenting evidence to prove prima
facie the guilt of the accused.

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Q: After the prosecution has rested and has proven the crime, under the
order of trial, who presents evidence next?
A: It is now the turn of the accused to present evidence. The duty of
presenting evidence is shifted to the accused after the prosecution has
rested.

Q: After the presentation of evidence by the accused, under the order of

trial, what follows next?
A: Under the order of trial, the prosecution can present rebuttal evidence.
In other words, the burden of evidence is shifted back to the prosecution to
rebut what the accused has proven. After the rebuttal of evidence, the
accused can present evidence to rebut the rebuttal evidence of the
prosecution.

The presentation of evidence in a trial shifts from one party to

another, from prosecution to defense. That is what burden of evidence
means. It shifts from side to side, but the burden of proof always remains
with the prosecution, or plaintiff in a civil case. That is why American
jurisprudence has another term for burden of proof: the risk of non-
persuasion; burden of evidence is also called as the duty of going forward
with evidence.

PEOPLE vs. MANALO

230 SCRA 309

Facts: On January 24, 1992, a team of the Dangerous Drug

Enforcement Division conducted an entrapment, with Police
Officer Corpuz acting as poseur-buyer. The transaction yielded
from the accused a deck of shabu, a sealed plastic bag
containing an undetermined amount of suspected marijuana
leaves, an improvised glass totter containing suspected shabu
residue, and a P100-marked bill used by the police officers in
the entrapment operation.

Accused was found guilty beyond reasonable doubt for

selling shabu without authority. On appeal, accused-appellant,
in her assignment of errors, contends that there was no
showing by the prosecution that she had no license or authority
to sell shabu which is a regulated drug. Citing the case of Pp.
vs. Pajenado, accused-appellant maintains that since the
absence of a license or authority is an essential ingredient of
the crime, proof of such negative allegation should have been
presented by the prosecution.

Issue: who has the burden of proof in proving a negative

allegation?

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 Holding: The general rule is that if a criminal charge is
predicated on a negative allegation, or a negative averment is
an essential element of a crime, the prosecution has the burden
to prove the charge. However, this rule admits of exceptions.

Where the negative of an issue does not permit of direct

proof, or where the facts are immediately within the knowledge
of the accused, the onus probandi rests upon him. Stated
otherwise, it is not incumbent on the prosecution to adduce
positive evidence to support negative averment the truth of
which is fairly indicated by established circumstances and
which, if untrue, could readily be disproved by the production of
documents or other evidence within the defendants knowledge
and control.

For example, where a charge is made that a defendant

carried on a certain business without a license (as in the case
at bar, where the accused is charged with the sale of a
regulated drug without authority), the fact that he has a license
is a matter which is peculiarly within his knowledge and he must
establish that fact or suffer conviction. Even in the case of
Pajenado, the Court has categorically ruled that although the
prosecution has the burden of proving a negative averment
which is an essential element of a crime, the prosecution, in
view of the difficulty of proving a negative allegation, need only
establish a prima facie case from the best evidence obtainable.
In fact, Pajenado was acquitted of the charge of illegal
possession of firearm, for the court found that, in said case, the
prosecution was not able to establish even a prima facie case
upon which to hold him guilty of the crime charged.

Q: What need not be proved?

A: There are three facts which need not be proved.
(a) judicial notice;
(b) admissions;
(c) presumptions.

Q: What is a presumption?
A: A presumption is an inference as to the existence of a fact not actually
known arising from its usual connection with another which is known. In a
Philippine case, a presumption is defined as a conjecture based on past
experience as to what course human affairs ordinarily take.

The two kinds of presumptions are:

(a) presumption of facts (presumption hominis)
(b) presumption of law (presumption juris)

Q: Distinguish a presumption of fact from a presumption of law.

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A: A presumption of fact is an inference which leaves the trial court at
liberty to infer certain conclusions from a certain set of circumstances. This
is actually not a mandatory deduction. The court is at liberty to lay its
inference. It stands more on logic or human experience. A presumption of
law is a presumption which the law allows to be drawn from ascertained
state of facts. The law lays down the presumptions. This is mandatory.
The court cannot disregard this presumptions.

The main difference between the two is that a presumption of fact is

no more than a permissible deduction which the law allows. It is allowed,
but the law does not require it. A presumption of law is a mandatory
deduction which the law commands to be done.

There are two types of presumptions of law:

(a) conclusive presumptions(presumption juris et de jure)
(b) disputable presumptions (presumptions juris tantum)

Conclusive presumptions are presumptions which the law does not

allow to be contradicted. They are unrebuttable and admit of no proof to
the contrary. In effect, conclusive presumptions belong to the branch of the
rule of substantive law because they are final.

SECTION 2. Conclusive presumptions. The following are

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

Rule 131, Sec. 2(a) lays down the Doctrine of Estoppel. The principle
of estoppel is a conclusive presumption. When a person causes another to
believe that something is true, and the latter is relying upon it and acts
upon such belief, the former cannot later on go against his own
representation.

The second type is self-explanatory. A enters into a contract of

tenancy with B. A is the tenant; he will till the land and will pay B an
amount. That is an admission on the part of A, that B is the owner and A is
the landlord. Then later on, A denies Bs ownership. That is estoppel. He
cannot be a tenant and at the same time deny title of ownership of the
person whose land he is tilling. The same rule holds true in lease
contracts. He cannot enter into a lease contract with somebody whose
ownership he recognizes, and later on denies it. He is in estoppel.

These are the two presumptions laid down in the Rules.

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 Under the old Rules, there was a third type of presumption: the
QUASI-CONCLUSIVE. This was taken from the Civil Code. An example
of this is the presumption on legitimacy.

EXAMPLE: A person born within so many days from the time of the
marriage is presumed to be legitimate. This, the law allows to be disputed
by evidence presented. But the provisions in the Civil Code were changed.
The Family Code changed the language of the law. The so-called Quasi-
Conclusive Presumptions on Legitimacy for children born during the
marriage, were eliminated or removed.
Disputable presumptions are the majority. Ninety-nine percent of
presumptions are disputable, or may be contradicted or overcome by
evidence. Meaning, they can be rebutted. One can present evidence to
prove that they are actually not true. For example, the presumption of
innocence. That is not conclusive. Otherwise, every person who is
accused will be acquitted, because everybody will be presumed innocent.
And their guilt cannot be proven.

Disputable presumptions can be found in the Civil Code, Negotiable

Instruments Law, Criminal Law, Law on Succession, etc.

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;

This is the fundamental presumption of innocence.

Q: Is the presumption of innocence applicable only in criminal cases?

A: NO. When the law says: x x x innocent of crime or wrong, the
wrong could be a cause of action in a civil case. According to the
Supreme Court, the presumption of innocence is a very broad
presumption which carries with it automatically other presumptions. That is
why it is called a mother presumption. There are many other presumptions
arising from it, such as, that good faith is always presumed, as well as
honesty and integrity. There is no such a thing as presumption of bad faith.
There are also presumptions of morality and decency. There is no
presumption of immorality; everybody is presumed to be moral and decent.
As a consequence, there are presumptions of marriage, the legitimacy of
children, and the presumption of chastity of every woman. Included here is
also the presumption that all contracts are legal.

(b) That an unlawful act was done with an unlawful intent;

This is also a very broad presumption. Man is a rational being, has

intelligence and, therefore, knows what is right from wrong. This
presumption, according to the Supreme Court, includes the presumption of
knowledge of the law. Everyone is presumed to know the law. Therefore,

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when one commits a crime, an unlawful act, the presumption is that it was
done intentionally. Remember that in Criminal Law, criminal intent is
presumed from the commission of the criminal act.

Q: Why is it that criminal intent is presumed when one commits a felony?

A: Because of the presumption that x x x an unlawful act was done with
an unlawful intent.

(c) That a person intends the ordinary consequences of his voluntary

act;

This is also of Criminal Law. One intends the consequences of his

actions. That is why in Criminal Law, there is praeter intentionem. A
person is criminally liable even if the wrongful act done be different from
that which he intended. Because the presumption is that one is prepared
for all the effects of his act. These things are considered as risks.

(d) That a person takes ordinary care of his concerns;

A person is presumed to act with the diligence of a good father of a

family. One is presumed to take ordinary care of his won concerns, his
own responsibilities. There is no presumption of irresponsibility. Things
entrusted to a person must be kept by him and he must exercise the due
diligence of a good father of a family in doing so. This is the presumption.

(e) That evidence willfully suppressed would be adverse if produced;

In the course of the trial, X did not present the document in evidence.
He kept it. QUESTION: Will this work against X? ANSWER: YES. X is
suppressing evidence. So, Xs version will not be honored by the court,
because if Xs version were really correct, he would have had the evidence
to show it; but he did not. So, the presumption is: if X presented the
evidence, it would have worked against him. Therefore, there is a
presumption that a person suppresses evidence because the evidence is
against him. That is why he decided to hide it. This is especially important
in criminal cases.

There are some requisites that must be proved in order to establish

this presumption:
(1) the suppression is willful, deliberate, and not due to negligence or
carelessness;
(2) the suppression is not in the exercise of a privilege;

EXAMPLE: A subpoenas Bs lawyer to produce in court all the

documents that are in his possession. Bs lawyer refuses to do so
because he is invoking his clients right against self-incrimination, or
he is invoking the lawyer-client privilege communication. B is barring
his lawyer from testifying. So in this sense, B is suppressing
evidence from A, and A raises such a presumption against B.

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 Q: Is the presumption raised by A proper?
A: NO. There is no suppression of evidence here because the
refusal to produce the documents is done in the exercise of a
privilege. This section will not apply. If a person refuses to produce
documents because he is invoking his right against self-incrimination,
this will not work against him. A right cannot, at the same time, be a
source of a presumption against the same person who has a right. If
there is no privilege, there is no adverse presumption.

(3) the evidence suppressed is not merely corroborative or cumulative.

Meaning, the evidence will support what is there on record.

Generally, this applies when the evidence suppressed will prove
something for the first time. If it is intended to support what is already
proven, there is no suppression. There is no suppression because
what is being presented is merely additional evidence. And it is for
the offeror of the evidence to determine whether it should be
presented or not in court. This should not work against him.

This has happened for several times in buy-bust operations.

For example, there is a team of NARCOM agents. One member
poses as the buyer; the other two hide. When the poseur-buyer gives
the signal, the other two members of the team come out and arrest
the drug pusher. During the trial, the prosecution presents the agent
who posed as the buyer and says that his other companions are
SPO1 A and SPO1 B. Then, the drug dealer is convicted. On
appeal, both SPO1 A and SPO1 B resign. The drug dealer says:
No, that is not the truth; that is not what happened. As a matter of
fact, the evidence for the prosecution is weak. They should have
presented also the other two members of the team. They said there
were three of them during the buy-bust operation. Therefore, they
suppressed evidence from us.

According to the Supreme Court: it is for the prosecution to

determine how many witnesses it will present. If it believed that the
presentation of a witness is not necessary, that is its concern. And if
the accuse believed that the testimonies of SPO1 A and SPO1 B will
favor him, he should have subpoenaed them. But he did not,
Because he knows that their testimonies would be cumulative and
corroborative. They will only serve to support the statement of the
prosecution witness. So, there is no willful suppression of evidence
here. There is, consequently, no adverse presumption arising from
the suppression of evidence.

(4) the evidence is at the disposal of the suppressing party.

There is no way for the other side to question it. One party
cannot say:

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 COUNSEL:
Why did you not present the document in your possession? Your
Honor, since he did not present it, this should work against him. He
should lose.
JUDGE:
Do you have a copy of the document?
COUNSEL:
Yes.
JUDGE:
Well, why did you not present it?

So, the section is not applicable here. The document should

only be at the disposal of the suppressing party.

Take note that there is another presumption which is not found in the
Rules, but is related to this, as laid down by the Supreme Court:
PRESUMPTION OF FABRICATION OF EVIDENCE. When one presents
evidence, such as falsified documents to help him in his case, the Supreme
Court said: the presumption arises that the case is groundless and it
affects the whole mass of evidence presented by the party. Meaning, this
will work against the person who fabricated his evidence. All other
evidence presented in court by him for his defense will be tainted. There is
a presumption that he fabricated his evidence because his case is
groundless.

(f) That money paid by one to another was due to the latter;

This self-explanatory. When one pays to A, the presumption is that

the amount is due A. There is no presumption of payment by mistake,
wrong payment. If one says that A should not have been paid, that the
payment was a mistake, that can be done. But the law presumes that
when one pays to somebody, the money is due him. That is common
sense.

(g) That a thing delivered by one to another belonged to the latter;

If one delivers to another an object, the presumption is that the latter

owns it. There is no presumption of wrong delivery.

(h) That an obligation delivered up to the debtor has been paid;

Said in another manner: Evidence of an obligation is delivered to the

debtor. For example, promissory note. An obligation may be proved by a
promissory note. The promissory note was returned to the debtor. With
that, the creditor has no more evidence to prove the debtors obligation in
his favor. Why was the promissory note returned to the debtor? Because
the debt has been paid.

203
 A specific example of this is where people keep with then the
bouncing checks issued to them. The issuer of the checks redeem the
same by paying the amount of their debts. The checks issued are then
returned to them. The presumption is that the debt has been paid; the
obligation has been extinguished. But when the creditor remains in
possession of the instrument of indebtedness, the presumption is that the
obligation has not yet been paid.

(i) That prior rents or installments had been paid when a receipt for
the later ones is produced;

For example: A rents an apartment unit. He gets a receipt every

month when he pays rentals. If he has in his possession the receipt for the
Payment of Rentals for the Month of August, the presumption is that he had
already paid rentals for the months of June and July. The receipts for the
previous months need not be presented. If one presents as evidence the
latest receipt, the presumption is that he had already paid for the previous
balances. Or, if a receipt for the fourth installment is in the possession of
the debtor, the presumption is that he had already paid for the first, second,
and third installments.

This is how people normally behave in business. When one owns an

apartment which he rents out and his tenant has been in arrears for three
months, the tenant tells him that he would be paying for one month. He
accepts the payment. when he makes out the receipt, the payment would
be applied to the oldest balance. Otherwise, if he applies the payment to
the latest balance, the earlier balances are presumed paid.

A consequence of the above presumption is related presumptions

which have been encountered in the study of Obligations & Contracts:
when one presents a receipt showing payment of the principal obligation,
the presumption is that the interest has already been paid. But a receipt
showing the payment of the interest does not raise the presumption that
the principal has already been paid. However, this is only a disputable
presumption. The trouble is, if one goes against the normal pattern of the
behavior of man, certain presumptions will arise against him.

(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 possesses, or exercises acts of
ownership over, are owned by him;

This provision refers to the Adverse Presumption from Possession of

Stolen Goods. When a certain property is the object of robbery or theft,
and is now found in the possession of A, the presumption is that he is the
robber or thief. There is also a similar presumption in other crimes: The
possessor and the user of a falsified document is presumed to be the
author of the falsification.

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 This has been applied in a certain case. The accused used a falsified
check. It was a dollar check from abroad. The check was genuine, but the
signature of the payee was bogus. It was taken from the post office and
nobody knew how it happened that the check was encashed here in
Davao. It was honestly believed that the person (A) who went to the bank
and encashed it was not the same person who stole it and falsified the
signature. But the trouble was, nobody knew who did it. So, since the
person who deposited the check was the one who used it, the presumption
was that he was the falsifier. The prosecution could not charge other
persons because he did not know who they were. The bank would testify
that A was the one who encashed it; therefore, he must be the falsifier.
The burden of proving that he was not the falsifier was shifted to him.

The possessor of stolen property is deemed to be the robber or thief.

For this presumption to apply, the Supreme Court said that the following
requisites must be established:
(1) the crime of theft or robbery was committed;
(2) that is was committed recently;

For example, stolen property was found in the possession of X,

and Y proved that this was the same property that was stolen before.
When was the robbery or theft committed? Three years ago. The
presumption there is weak. In three years time, the property could
have passed on to so many hands already. The presumption
disappears, or becomes weaker and weaker if there is a big gap
between the time and the alleged robbery or theft was committed,
and the time the stolen property was found in a persons possession.

Suppose the property was stolen at 3:00 in the afternoon. At

3:15 PM, only fifteen minutes later, it was found in the possession of
Z. What is the presumption? In 15 minutes, the property could not
have been disposed of immediately. The lesser is the length of time
between the time it was stolen and the time it was found in
somebodys possession, the stronger is the presumption. That is
what recently means.

(3) that the property which is the object of the crime was found in the
accuseds possession;
(4) that the accused is unable to explain his possession satisfactorily -- he
is unable to give a satisfactory or credible explanation as to how the
property came into his possession.

(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;

This refers to negotiable instruments. For example, X issued a check

payable to the order of Y. The check is now with X. The presumption is

205
that the check has already been paid. It has already been returned by the
bank.

Another example: X issues a check payable to Y or order. It was

given to Y. After three or four months, the check is back with X. The
presumption: To whomever the check was negotiated, it has already been
paid by X. Or, the obligation has already been extinguished by merger. Or,
because the check was indorsed by Y to Z, then Z to A; A indorsed it to B,
and because B owes X a particular amount, B indorsed it to X. So, the
presumption is that the obligation is extinguished by merger or confusion of
debts.

(l) That a person acting in a public office was regularly appointed or

elected to it;

(m) That official duty has been regularly performed;

Both are briefly called the PRESUMPTION OF REGULARITY OF

OFFICIAL ACTS. There is a presumption that one is not a usurper; that
one is elected or was duly appointed. There is no presumption of
usurpation, nor neglect of duty, or irregular performance of duty.

This presumption is usually applied in buy-bust operations of the

NARCOM. The defense sometimes assails the validity of the operation by
saying that the evidence was planted, etc. So, who is telling the truth? The
Rules of Court states that there is a presumption of regularity. Normally,
between the story of the arresting officer and that of the accused, the
Supreme Court leans towards the story of men in authority, because of the
presumption of regularity of duty. Although this disputable, the evidence
against it should be clear and strong.

PEOPLE vs. DE GUZMAN

229 SCRA 795

Facts: Accused-appellant has been in the watch list of the

police as a prohibited drug peddler. On two occasions, they
tried to entrap him but without success. The third time,
however, yielded a positive result.

The buy-bust operation was conducted by two policemen,

with one of them acting as a Metro Aide who casually
approached de Guzman and asked him if he could score a
deck of shabu, worth P50.00. In exchange, the accused gave
him an aluminum foil containing crystalline granules, and then
signaled to his companion. Thereafter, the accused was frisked
and the search yielded four aluminum foils which contained
shabu. Both policemen executed a joint affidavit of
apprehension, relating in detail the events leading to the arrest
of the accused.

206
 The lower court found the accused guilty of the crime of
drug pushing and imposed upon him the life sentence. On
appeal, the accused questioned the joint affidavit executed by
the policemen.

Issue: whether or not the court erred in upholding the

credibility of the policemen-witnesses for the prosecution and in
convicting the accused on the basis thereof.

Holding: A disputable presumption has been defined as a

species of evidence that may be accepted and acted on where
there is no other evidence to uphold the contention for which it
stands or one which may be overcome by other evidence.

A presumption of this nature is indulged by the law for the

following fundamental reasons:
(i) innocence and not wrong-doing is to be presumed;
(ii) an official oath will not be violated;
(iii) a republic form of government cannot survive long
unless a limit is placed upon controversies, and a
certain trust and confidence reposed in each
governmental department or agent by every other
department or agent, at least to the extent of such
presumption.

The presumption of regularity of official acts may be

rebutted by affirmative evidence of irregularity or failure to
perform a duty. The presumption, however, prevails until it is
overcome by no less than clear and convincing evidence on the
contrary. Thus, unless the presumption is rebutted, it becomes
conclusive.

Without this presumption, the government would be at a

loss. The people must put or repose trust and confidence upon
their public officers. Therefore, this presumption evidences a
RULE OF CONVENIENT POLICY universally applied and
without which great distress would spring in the affairs of the
government. Society would be more difficult to govern unless
public officers are given this kind of presumption.

(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;

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 There is a presumption that every judge is acting in the exercise of
his authority, and that his decision is valid unless it shows on its face the
lack of jurisdiction. The presumption is, when the court decides a case, all
the issues raised upon it were considered by the court. This is called the
PRESUMPTION OF REGULARITY OF JUDICIAL ACTS. This is similar to
official acts, but this is more specific.

(p) That private transactions have been fair and regular;

This is called the PRESUMPTION OF REGULARITY OF PRIVATE

TRANSACTIONS. When there is a transaction between two businessmen,
the presumption is that it is fair and regular, and that there is no fraud.
There is no presumption of unfairness and irregularity. He who alleges
fraud must prove it.

(q) That the ordinary course of business has been followed;

This is still the presumption of regularity in the ordinary course of

business. The presumption is that everything has been done with sufficient
regularity.

(r) That there was a sufficient consideration for a contract;

If there is no consideration for a contract, it is void. There is no

presumption of lack of cause or consideration. Every contract is presumed
to have a cause or consideration, and is presumed to have been validly
concluded.

(s) That a negotiable instrument was given or indorsed for a

sufficient consideration;

There is no valid negotiation if there is no sufficient consideration.

The presumption is that an instrument was given or indorsed for a sufficient
consideration. If there is a promissory note, it is presumed that there was
an obligation.

(t) That an indorsement of a negotiable instrument was made before

the instrument was overdue and at the place where the instrument is
dated;

(u) That writing is truly dated;

For example, it is dated August 9, 1996. Of course, the date may be

altered to August 11, 1996. A person can write a letter today and antedate
it to August 1, 1996, or he can write a letter on August 1, 1996, and post-
date it to August 5, 1996. But that is not the presumption. The
presumption is that the date that appears on the letter is the real date.

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(v) That a letter duly directed and mailed was received in the regular
course of the mail;

That writing duly addressed to someone was received by him during

the regular course of the mail. That is why the law insists on sending
through registered mail -- so that the letter can still be traced as to the time
when it was delivered or received. This is the reason why the laws on
pleadings require registered mail. But as to registered, or even ordinary or
special, mail for as long as the letter was not returned to the sender, the
presumption is that it was received by the addressee. This considers also
that the letter was properly addressed and properly mailed. If the letter was
not returned to its sender, between the senders word and the addressees,
the presumption remains that the letter was received.

For this provision to apply, the Supreme Court said the following
requirements must be complied with:
1) a letter was written and signed;
2) it was placed in an envelope, sealed and properly addressed;
3) the postage was pre-paid; and,
4) it was deposited in a post office mailbox.

Normally, in the course of the trial, a party is required to narrate the

process of sending the letter. He must establish step-by-step that the
requisites were followed strictly. If there is any requisite that was not
observed, no presumption arises. This process is applicable where there is
a controversy as to whether the letter was received or not.

Q: Does the presumption apply also to telegrams?

A: YES, provided the following requisites are proved and complied with:
a) the telegraphic message was duly or properly addressed;
b) it was duly delivered for transmission;
c) the charges were pre-paid, not collect.
d) there is a receipt to prove payment.

The placing of the senders return address on the envelope is not

necessary in order for the presumption to apply. This is applicable to
lawyers. But this presumption applies to all, even to lay people. But for
purposes of establishing constructive service of notice, motion or
pleadings, under Rule 13, a senders address is important because the
main proof that the letter was not delivered is the Return-to-Sender
certification. So, if the return address of the sender is indicated on the
envelope, the presumption becomes stronger.

(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

209
disappeared after the age of seventy-five, an absence of five years
shall be considered 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 a well-founded belief that the absent spouse is
already dead. In case of disappearance, where there is danger
of death under 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 proceeding 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.

This is called the PRESUMPTION OF DEATH. The substantial law

for this may be found in Articles 390 to 391 of the Civil Code, on the
provisions of Absence. This has not been released by the Family Code.

The general rule is: seven years. So, a person is presumed dead
for all purposes, except for that of succession. For example, X
disappeared for seven years. There was on news of him; his family tried to
look foe him. QUESTION: After 7 years, can the family of X now partition
the properties of X among themselves? ANSWER: NOT YET. They must
wait until after three more years, because for purposes of succession, it
must be ten years (not seven). The period therefore depends upon the
purpose.

However, the period is shortened even for succession, when a person

disappears under extraordinary circumstances -- situations where a person
is in danger of death. Examples: disappearance while on board a vessel
lost on a sea voyage, or in an aircraft that is missing and for four years, the
person has been unheard of -- then he can be presumed dead for all
purposes, even for succession.

The same rule applies if a person disappears while he is fighting in a

war. Four years will be enough to raise the presumption of his death.

210
 The remaining paragraphs of this provision were taken from the
Family Code.

Q: When is a person presumed dead?

A: He is presumed dead, if:
(a) under ORDINARY CIRCUMSTANCES, at the end of the period
prescribed by law;
(b) under EXTRAORDINARY CIRCUMSTANCES, at the time of the
disappearance.

Take note that, according to American jurisprudence, the exact date

of death is a matter of proof. There is no presumption as to the date of
death. There is merely a presumption of death. The law will not venture to
give an exact date as to the death of a person.

(x) That acquiescence resulted from a belief that the thing

acquiesced in was conformable to the law or fact;

When one agrees to something, there is a presumption that what he

agreed to is conformable to law, or is legal. There is no presumption of
agreeing to something illegal. This is a presumption of good faith.

(y) That things have happened according to the ordinary course of

nature and the ordinary habits of life;

The value of this presumption is in weight. This is important in the

discussion of Rule 133. When evidence is submitted and is admissible,
normally, there are more than two versions of the story, which are at times
conflicting. The court is now called upon to decide on which version is to
be given weight. The judge has to use many factors such as witnesses.
But one factor which the Supreme Court keeps on applying is this very
effective guide: How do things normally happen? When something
happens, such-and-such is the normal reaction. The Supreme Court
always presumes that things happen according to the ordinary course of
events and nature.

The test is: What is ordinary? What is normal? Whether or not the
action is conformable with human experience? And if a persons reaction
seems to be abnormal -- of course, it is possible that he might be telling the
truth. But the court will take note that his conduct seemed to be out of the
ordinary, that it did not conform to the normal reaction of persons. With
that, the court will decide which version of the story is true, because it is
natural and normally occurs, as well as conforms with everyday
experience.

Try to read all the decisions of the Supreme Court, and they will often
say that that the case boiled down to the issue of who is telling the truth.
And this presumption is applied. That is why, if a lawyer has been in
practice for so long, and his client tells him an unusual version of the story,

211
the lawyers problem would be how to convince the court of the truthfulness
of the story, considering that it was not in accordance with the ordinary
course of nature. And as between what is probable and improbable, the
court will always lean on what is probable.

To paraphrase this provision, the Supreme Court says: the story of

the victim or accused, as the case be, is logical, natural, probable, and
therefore, has the earmarks of truth. Conversely, what is illogical does not
necessarily pertain to the truth. This means that the story is in accordance
with the ordinary course of nature and in the habits of life.

In criminal cases, such as rape, the usual defense of the accused is

that the reaction of the victim, if not that of reporting the alleged rape until
one week is unnatural. The Supreme Court said that it is a natural
reaction. It is natural for the woman-victim to be silent for a while. She
may be afraid of being embarrassed.

(z) That person acting as co-partners have entered into a contract of

co-partnership;

This is self-explanatory. Partnerships are valid, whether or not it is in

writing. If the members thereof are partners, the law presumes that there
must be a contract of partnership.

(aa) That a man and woman deporting themselves as husband and

wife have entered into a lawful contract of marriage;

This is self-explanatory. There is no presumption that a couple are

merely living together. A man and a woman purporting themselves as
husband and wife are presumed to 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 a
void marriage, has been obtained by their joint efforts, work or
industry;

There is no conjugal or absolute community presumption in this

provision. They acquired the property through their efforts because they
are living together. This is the presumption if they are capacitated to marry
-- meaning, there is no impediment for them to get married. In effect, this is
a co-ownership. But they are not married.

(cc) That in cases of cohabitation by a man and a woman who are not
capacitated to marry each other and who have acquired property
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;

212
Q: What is the difference between paragraphs (bb) and (cc)?
A: The difference is that in paragraph (bb), there is no marriage but the
parties are capacitated to marry. In paragraph (cc), there is a marriage (but
not to each other). They are not capacitated to marry. In this case, their
assets will be divided equally among them. This is also a presumption of
co-ownership.

(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 is born before one hundred eighty days after the
solemnization of the subsequent marriage is considered to have
been conceived during the former marriage, provided it be born
within three hundred days after the termination of the former
marriage;
1) 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
marriage.

This provision is taken from Article 168 of the Family Code. This is
about a widowed woman and how to determine a doubtful paternity.

(ee) That anything once proved to exist continues as long as is usual

with things of that nature;

Briefly, this the PRESUMPTION OF CONTINUITY OF EXISTENCE.

For example, A witness, X, testified. According to him, he was able to
personally see this particular piece of land. Questions were asked of him
with respect to that piece of land:
COUNSEL:
What improvements exist on the land?
X:
There was a house made of concrete. There were 50 durian
trees and 100 coconut trees.
COUNSEL:
When did you see this?
X:
In 1991.
COUNSEL:
From 1991 to the present, were you able to go back to that
land?
X:
No, that was the last time I saw it.

213
 So, based on the testimony, there are durians and coconut trees as
well as a concrete house there. The witness himself admitted that he saw
them in 1991. It is possible, though, that the trees may have already been
felled. But the presumption is that they are still alive. It is for the other
party to prove that they ceased to exist in that piece of land between 1991
and 1999. Therefore, when a thing is proven to have existed before, the
presumption is that it is still existing today. But this provision cannot be
applied to certain objects.

For example, a witness testified that the last time, four years ago, he
saw a block of ice inside a particular house. The presumption cannot be
that the block of ice is still in that house now. Naturally, the ice would have
melted and disappeared by now. That is why the law says: x x x as long
as is usual with things of that nature x x -- meaning, the thing being
referred to is not consumable; it cannot just disappear. Therefore, the
presumption here cannot be applied to all objects.

There are other presumptions not found in the law, but are
recognized in jurisprudence, and which, through common sense, can be
connected to the presumption of continuity of existence.

presumption of continuity of life.

Q: A testifies that X was alive last year. A was able to talk to him.
Although he has not seen X recently, may it be presumed that he is
already dead by now?
A: NO. The presumption is that X is still alive now. It is for the party
interested to prove his death to do so. There is a presumption of
continuity of life.

Q: But what if, during the last time A saw X, the latter was in the
Intensive Care Unit (ICU) of the hospital, and was already gasping for
breath, does the presumption of continuity of life still apply?
A: NO. This is another story. The presumption will not lie.

presumption of continuity of mental condition This is taken from

American jurisprudence. If a person is mentally normal during the last
time he was seen, the presumption is that he is still mentally normal at
this time.

presumption of continuity of physical condition The last time a person

was seen, he was healthy. The presumption is that he is still healthy
now.

presumption of continuity of possession This is taken from the Civil

code. If one was a possessor of a thing in good faith before, the
presumption is that he continues to be the possessor of that thing in
good faith now.

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(ff) That the law has been obeyed;

It is disputably presumed that the law has been obeyed. there is a

presumption by the provision by the provision of law. Every person is
assumed to be law-abiding. It is for the party disputing this presumption to
prove the contrary.

(gg) That a printed or published book, purporting to be printed or

published by public authority, was so printed or published;

For example, you come across a book or pamphlet on which is

indicated that it was printed by the Bureau of Printing of the Republic of
the Philippines. This is according to the official government publication.
Presumption: It is true; it was printed by the public authority as stated
there.

(hh) That a printed or published book, purporting to contain reports

of cases adjudged in tribunals of the country where the book is
published, contains correct reports of such cases;

For example, the SCRA. It is book, the publisher of which claims that
it compiles all decisions of the Supreme Court for the month. It is a private
publication. The presumption is that the cases are ACCURATELY reported.
Since the presumption is that the cases as reported are accurate, the
courts can rely upon them as they are published.

(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;

This is related to the Law on Trusts. For example, when a person is a

trustee, under the law he holds the property for the benefit of the
beneficiary or somebody else. The presumption is that the trustee has
complied with the trust. That he actually conveyed the property to the
beneficiary when such presumption is necessary to perfect the title of such
person of 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 determine from the
probabilities resulting from the strength and 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 of sixty, the younger is deemed to
have survived;

215
 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;
1) If one be under fifteen or over sixty, and the other between those
ages, the latter is deemed to have survived.
This is briefly called the PRESUMPTIONS OF SURVIVORSHIP. This
talks about two people who died in a calamity, quake, battle, fire, etc. It is
highly probable that they died at the same time. But they might not have
died at exactly the same time -- at the same minute and in the same
second. Maybe, one lived a little longer than the other. The question being
settled here is: In all probability, who died first? Which one died before the
other? The law lays down the presumption. Taking into consideration their
ages, sexes, strengths, the probability is that one would live longer than the
other. However, this provision can be applied, EXCEPT FOR PURPOSES
OF SUCCESSION. The court will not apply this for the purpose of
determining who succeeded to whom.

Q: What does for purposes of succession mean?

A: For example, father and son died. Under the Laws of Succession, they
are heirs of each other. If the father died ahead of the son, by operation of
law, the son inherited the fathers properties. But after five minutes, the son
died also. A party is contending now that one died ahead of the other, so
that ones heirs will get the bigger share of the properties.

It is very clear in the opening clause of paragraph (jj) that this

provision will not apply to succession. The phrase except for purposes of
succession was inserted in the 1989 Rules.

(kk) That if there is doubt, as between two or more persons who are
called to succeed each other, as to which of them died first,
whomever 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.

This is called as the presumption of simultaneous death. This

compliments the previous presumption, that of survivorship. For purposes
of succession, when the issue is: Who died first?... Whoever alleges the
death of one or the other shall prove the same. So, the presumption of
survivorship cannot be applied here. What are their distinctions?
A:

SURVIVORSHIP SIMULTANEOUS DEATH

refers to death in calamity this presumption is silent as

how the parties died -- whether
in a calamity or in whatever

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 way

may be invoked only if the applies only if there is doubt as

facts on which they are based to who of several persons who
are known or knowable are called to succeed each
other, died first

Q: What is meant by facts of which they are based are known or

knowable?
A: There is evidence as to ages of the parties and their successors-in-
interests. That is why the presumption is applied based on what is known
-- how old is this person, how is his physical condition -- these are facts that
are known or knowable.

SECTION 4. No presumption of legitimacy or illegitimacy. There

is no presumption of legitimacy or illegitimacy 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.

Q: What happens if a woman is widowed, without remarrying, she

delivered a baby after 300 days, is the child presumed to be the child of the
late husband or not?
A: The law will not render an answer. There is no presumption of
legitimacy or illegitimacy in this case.

POINTS TO BE REMEMBERED REGARDING PRESUMPTIONS

Q: What is a PRESUMPTION?
A: It is defined as an inference on something unknown arising from
something which is known. A presumption cannot be created unless there
is a basis. Based on what is already known, one must relate that inference
to something which is unknown.

A presumption can only be based on facts. A presumption cannot be

made to rest on another presumption. Presumptions are allowed when the
facts from which they are deduced are fully proven. Otherwise, it will lead to
a fallacy. One will merely be going into a series of syllogisms without
definite bases. In this case, one arrives at an absurd conclusion.

Q: What is the role of presumptions in evidence?

A: Presumptions do not constitute evidence. They have no value as such.
They only determine who should present evidence. As a matter of fact, a
presumption need not be proved. Evidence displaces presumption.

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Presumptions merely aid in establishing a prima facie case. But
presumptions are rebuttable.

For example, a person is presumed innocent. That is not yet

evidence because even before being able to do anything, the presumption
is already in his favor. Because of the presumption of innocence, the
prosecution must destroy that first. It helps the defense initially, but once
evidence to the contrary is proven, the presumption will be destroyed.

To borrow the language of American jurisprudence: Presumptions

merely act in establishing a prima facie case and have no probative effect
when the counter-evidence has been offered. Evidence to the contrary can
destroy presumptions, such as the presumption of innocence.

According to American courts: Presumptions may be looked on as

the bats of the law, fleeting in the twilight, but disappearing in the sunshine
of actual facts. At night, the bats fly around; then when the sun comes out,
they hide.

Q: What happens if there is a collision between two presumptions? Which

one prevails?
A: According to American jurisprudence, The weaker presumption has to
kneel to the stronger one. To determine which weaker or stronger
presumption is, one must look at the evidence. If the evidence leans
towards a presumption which is backed up by evidence, it is the stronger
presumption then. The weaker presumption must yield to the stronger one.
So, the relative strength of a presumption can be determine only upon the
evidence presented.

EXAMPLE:
Presumption #1 -- every person accused of a crime is presumed innocent
thereof.
Presumption #2 -- every person found in possession of stolen things is
presumed guilty.

The prosecution must present its evidence first in order to prove that
a crime of theft or robbery was committed. So, there is no conflict. The
second presumption arises only upon the presentation of evidence.

Rule 132

PRESENTATION OF EVIDENCE

This Rule consists of three parts:

A) examination of witnesses (Secs. 1 -18)

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 B) authentication and proof of documents (Secs. 19 - 33)
C) offer and objection (Secs. 34 - 40)

A. EXAMINATION OF WITNESSES

SECTION 1. Examination to be done in open court. The

examination of witnesses presented in a trial or hearing shall be done
in open court and under oath or affirmation. Unless the witness is
incapacitated to speak, or the question calls for a different mode of
answer, the answers of the witness shall be given orally.
The examination of witnesses presented in a trial or hearing
shall be done in open court. There is a rostrum, a portion near the
rostrum where the witness may sit. The witness testifies under oath
or affirmation. There is the crime of false testimony that is why he
has to swear to tell only the truth.

This Section reinforces the Hearsay Rule. Because here, the witness
must be presented in a trial or hearing, he is under oath, and he must give
his testimony orally. In a hearsay testimony, the witness is in court, and he
is just being quoted. So, the Hearsay Rule is violated also. The witness is
not under oath; he is not personally making his testimony. So, affidavits are
not acceptable because they are not done orally, and are not done in open
court.

Q: How is a testimony given?

A: ORALLY. This means that there is a question-and-answer form.

EXCEPTIONS:
unless the witness is incapacitated to speak;
For example, the witness is deaf and dumb. Under the rules of
disqualification, for as long as the witness can perceive, and can
make known his perception to others, he is qualified to testify.
Although his perception cannot be communicated through speech,
because his perception cannot be communicated orally, he can still
do it through sign language. The witness is qualified, even if he can
give his testimony only through sign or body language.

if the questions call for a different mode of answer.

There are questions which call not for oral answers, but for
something else other than oral. For example, the witness is asked:
COUNSEL:
Mr. Witness, what did you see?
WITNESS:
I saw the accused twist the arm of the deceased. While he was
holding it, this was what he did ...
(Witness demonstrates.)

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 This time the question does not call for an oral answer. So, the
demonstration should be recorded, instead of recording an oral answer
given by the witness. There must be someone to interpret the de_3
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______________________________________________healing lacerations of
the hymen...smear exam for sperm cell -- NEGATIVE... Accused-
appellant denied the charge imputed to him. The defense also objected to
the admissibility of the medical certificate as the examining physician who
prepared it was not presented in the stand. Therefore, the medical
certificate is hearsay; thus, inadmissible. Issue: whether or not the medical
certificate is admissible in court without presenting the examining physician
who issued the same. Holding: The written entries in the clinical case
record showing: the date of complainants admission to the hospital, her
complaint of vaginal bleeding, and the diagnosis by the physician, are
prima facie evidence of the facts stated therein, said entries having been
made in official records by a public officer of the Philippines in the
performance of his duty especially enjoined by law, which is that of a
physician in a government hospital. Very important: The Supreme Court
declared that a medical certificate issued by a physician of a government
hospital is considered a PUBLIC DOCUMENT. The entries therein are
considered entries in official record. They are prima facie evidence of the
facts therein stated. Thus, there is NO NEED TO PRESENT THE
ISSUING PHYSICIAN -- this case being an exception. The general rule is
that the physician must testify. The Supreme Court also held that it is
permissible for another physician to testify on a medical certificate issued
by another physician. The physician who issued the medical certificate is
unable to testify because he has left the hospital, or is somewhere else and
cannot be found. The other physician will be merely asked to interpret the
said medical certificate. Such procedure was allowed by the Supreme
Court. The case of Pp. vs. Leones is an exception to the general rule
because the physician in this case is a government physician.

SECTION 45. Commercial lists and the like. (Evidence of statements of

matters of interest to persons engaged in an occupation contained in a
list, register, periodical, or other published compilation is admissible
as tending to prove the truth of any relevant matter so stated if that
compilation is published for use by persons engaged in that
occupation and is generally used and relied upon by them

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therein.EXAMPLE: X is a businessman who subscribes to a business
journal. He reads the journal for business use -- data, currency
fluctuations, etc. In a certain case, he wishes to prove that the price
of copra three years ago was higher than last years. As a matter of
fact, he wishes to show that the price of copra is going down by such
percent every year. So, he presents these facts which he gets from
the business journal. So, his evidence is the particular issue or issues
of such journal.
Q: Is such evidence admissible?
A: No, the journal(s) is hearsay, because the person who prepared the
data therein, the editor, or publisher, is not presented in court. But under
Section 45, the above evidence is admissible because it is a statement of a
matter of interest to persons engaged in an occupation obtained in a list of
commercial or other published information. However, it is not necessary
that the journal or publication be devoted purely to business, or to the
particular topic being prove his case, however, does not refer to criminal
liability. This refers to a cause of action against a civil claim. Meaning, if he
answers the question, he may be held liable because he will be admitting
that he owes his creditor something, which he denies. No, because this
creates a claim against him and this is not an excuse for not answering the
question.

So, do not confuse this with the right against self-incrimination. The
claim here is a cause of action in a civil claim, not criminal liability.

1) To be protected from irrelevant, improper, or insulting questions,

and from harsh or insulting demeanor;

Q: Why should not the witness is asked questions which are irrelevant and
improper?
A: When a witness is asked questions which are irrelevant and improper,
counsel will only be prolonging his stay on the stand. He must not be
insulted, and he must be protected from harsh and insulting demeanor.

Q: What is meant by demeanor?

A: Those are actions, behavior. A good example of this is the bullying
tactics of lawyers. Through their actions or gestures, they bully the
witness. Under the law, the judge should not allow that. As a matter of
fact, the counsel presenting the witness can call the attention of the judge,
and ask the court to protect his witness from insulting questions, and harsh
or insulting demeanor. As counsel, you should object if your witness is
already being insulted or bullied.

In some cases, though, the problem comes in when it is the judge

himself who is bullying your witness. Counsel must object to the demeanor
of the judge and make the same of record. Why so?
ANSWER: The administration of justice has already suffered so much
because many witnesses do not want to cooperate with the proper
authorities. A witness these days must be very bold and civic-minded.

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Ordinary persons would rather not get involved, or else end up being the
target of reprisals. Or, they simply do not want to waste their time testifying
in court.

Therefore, a witness who is willing to help in the administration of

justice and see that justice is done, who is willing to give his time and
cooperation should at least not be insulted in court. He might be
discouraged and may yet altogether refuse to continue testifying.

So, witness must be protected by the judge, or the lawyers, especially

when he appears to be sincere.

2) Not to be detained longer than the interests of justice require;

Unless necessary, do not detain the witness for five days, for
example, on the witness stand. That is why, questions which are
repetitious are objectionable. That is one of the grounds for objection:
Questions that have already been answered. In effect, counsel is
prolonging the testimony of the witness. Why should answer questions that
have already been answered? Under the law, he should not be detained
longer than the interest of justice require.

3) Not to be examined except only as to matters pertinent to the

issue;

This is also related to #1. If the question is not pertinent to the issue,
it is irrelevant. And when the witness is asked immaterial or irrelevant
questions, his stay on the stand is again merely being prolonged.
Therefore, his right in #2 is being violated. Especially when the questions
are very capricious and being asked repeatedly, objections should be
raised.

So, under the law, a witness has the right to free from irrelevant,
immaterial and repetitious questions. He must answer questions which are
relevant to the issue or issues only; otherwise, they will merely confuse the
court.

4) Not to give an answer which will tend to subject him to a penalty

for an offense unless otherwise provided by law;

This is the right against self-incrimination. Do not confuse this with

the opening paragraph of Sec. 3: A witness must answer questions,
although his answer may tend to establish a claim against him x x x .

Q: You must not answer if the answer will subject you to a penalty of an
offense. And a claim against you. How do you reconcile these provisions?
A: The claim under Sec. 3 does not refer to criminal liability. It will tend to
create an admission of a cause of action against you -- this is civil liability,
but not criminal liability. EXCEPT: otherwise provided by law.

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 For example, even if a question is incriminating, a witness is
supposed to answer it. Perfect example: IMMUNITY STATUTES. There
are some laws which compel witnesses to answer questions, even if in
doing so, he is admitting, for example, participation in a crime. But the law
commands him to do it, because the law also gives him a certain type of
immunity.

Specific example: Remember in Criminal Law the special law

granting immunity to bribe-givers? If a person testifies about giving bribes
to a government employee, in effect, he is also incriminating himself to the
crime of corruption. But the law, under certain conditions, allows a person
to testify, and he is not answerable because of an immunity in the
provision.

Another example: Discharge, under the Rules on Criminal

Procedure, of an accused to be a state witness. In effect, he admits his
participation in the commission of the crime. But because of the provision
which grants him immunity, there is also a provision that he must do a
certain act in exchange for his being discharged. He cannot refuse to
answer because he will negate the contract.

5) Not to give an answer which will tend to degrade his reputation,

unless it be to the very fact at issue or to a fact from which the fact in
issue would be presumed. But a witness must answer to the fact of
his previous final conviction for an offense.

This is an extension of paragraph #1. a witness should be protected

from insulting questions, if the answer to the questions will have a tendency
to degrade his character. In this case, the witness has no obligation to
answer. As a matter of fact, the counsel representing the witness may
object. For example, a witness is testifying in a collection case and the
opposing counsel asks: Mr. Witness, is it not a fact that two years ago you
were sick of gonorrhea? This is, in fact, an IRRELEVANT question.

Or, assuming the fact of the illness to be true and proven, what is its
relevant to the issue? The witness is not expected to give an answer which
will tend to degrade his reputation, unless it be the very fact in issue.

Definitely, however, this does not cover the question where counsel is
asking the witness whether or not he has been previously convicted of an
offense. This fact, the witness MUST answer. For example, A is a witness.
Counsel wishes to prove his reputation as a liar. That he has a past record.
COUNSEL:
Mr. A, will you confirm that five years ago, you were convicted,
and sentenced to serve a prison term? That you have in fact
served such term in Criminal Case No. 4789 before the RTC of
Davao City for the crime of false testimony or perjury?
A:

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 I will not answer because the same will degrade my reputation,
and will make me appear as an ex- convict.

The question must be answered. That is a matter of record already,

and the witness cannot deny that. He must answer only yes or no, if the
fact be true or not.

So, when a witness is asked about his bad character, that is irrelevant
and immaterial. But if he is asked whether or not it is true that he has a
past criminal record, he cannot refuse to answer. He cannot refuse on the
basis that such allegation is not in the pleadings. No, because such fact is
already a matter of record which cannot be changed anymore. It has
already become part of the witness life.

Q: How must the witness be examined?

A: Take note that the examination of a witness is ORAL, but it CANNOT be
done in the NARRATIVE form. It has to be conducted in a piece-meal
question-and-answer manner, as a rule.
COUNSEL:
Mr. Witness, do you know why you are here?
WITNESS:
Yes, I am supposed to testify in the murder case where Mr. X is
the accused. It happened on the night of June 1995.
COUNSEL:
Where were you in the night of June 5, 1995? Please tell the
court everything that you saw.
NO. This is not the proper way to examine the witness. The witness
must answer only the questions as they are being asked. If the question is
who, he must answer who. If the question is where, he must answer
where. Otherwise, the rules on examination of a witness are violated.

The examination of a witness must be done in stages.

SECTION 4. Order in the examination of an individual witness.

The order in which an individual witness may be examined is as
follows:
(a) Direct examination by the proponent;
(b) Cross-examination by the opponent;
(c) Re-direct examination by the proponent;
(d) Re-cross examination by the opponent.

Q: Who presents evidence first?

A: The prosecution, or plaintiff; then, the defense.

A witness undergoes four stages of examination:

1st Stage: Direct examination --

This is going to be conducted by the plaintiffs lawyer. That is when
he gives out for the first time the material and relevant story that the plaintiff

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wants to be told. A witness has a story to tell, which he reveals through the
process of direct examination. This is an examination of the witness based
on question-and-answer.

For example:
COUNSEL:
Mr. Witness, do you know the plaintiff?
WITNESS:
Yes.
COUNSEL:
Do you know the defendant?
WITNESS:
Yes.
COUNSEL:
Do you remember having met these people on this day?
WITNESS:
Yes.
COUNSEL:
Is there anything that happened on that day?

Meaning, a story will come out for the first time. After the plaintiffs
lawyer has conducted the direct examination, the next stage:

2nd Stage: Cross-examination --

Defendants lawyer this time conducts the cross-examination. He will
now do the questioning. after that, it can be the plaintiffs turn again:

3rd Stage: Re-direct examination --

After that, back to the defendant:

4th Stage: Re-cross examination.

After re-cross, the next witness is called. Prosecution starts all over
again with the direct examination, etc. After plaintiff has presented all his
witnesses, it is now the turn of the defendant.]

Defendants first witness is X. Defendants lawyer, this time,

conducts the direct examination. Cross-examination will be conducted by
the plaintiff. That is the process.

Q: Must every witness undergo all the four stages?

A: NO. Only if there is a necessity. What the law says merely is that these
are the four stages. It is not saying that the parties must avail of the four.
In most cases, actually, only the direct examination and cross-examination
are availed of. At times, re-direct and re-cross examinations are dispensed
with by the parties. Even cross-examination. These stages are merely
OPTIONAL.

Of course, the question on whether a party should conduct cross-

examination or not, is a matter of Trial Technique. There are books on Trial

225
Technique which provide principles to remember, as learned by the
authors through experience. When should you cross-examine? When
should a party not anymore conduct cross? Because cross is destructive.
This may destroy the witness, and watch out because you might do this to
your own witness.

Should you cross or not? And if you cross, what matters should be
covered, and what techniques should be used in order to be more
effective? All these will be decided by the lawyer. Each process is
governed by certain rules. Every case has its own scope and rules.

Again all these stages are optional, except direct examination. The
direct must, at least, be conducted; otherwise, what is there to talk about in
the trial?

SECTION 5.. Direct Examination. Direct examination is the

examination-in-chief of a witness by the party presenting him on the
facts relevant to the issue.

This is the examination-in-chief. This is part of the partys main

evidence. This is the part when a party elicits from a witness the facts
regarding which he is called to be examined.

For example, a witness saw a shooting incident. What must a

counsel elicit from the witness? The facts: where he was on that date,
what he saw... He must describe what he saw. Counsel must elicit the
facts relevant to the issue.

SECTION 6. Cross-examination; its purpose and extent. Upon

the termination of the direct examination, the witness may be cross-
examined by the adverse party as to any matters stated in the direct
examination, or connected therewith, with sufficient fullness and
freedom to test his accuracy and truthfulness and freedom from
interest or bias, or the reverse, and to elicit all important facts bearing
upon the issue.

This is a follow-up to the direct examination. This is the part where

counsel asks the witness more details on matters covered in the direct
examination.

Q: What is the purpose of cross-examination?

A: To test the witness memory and accuracy, etc. To test whether the
witness is lying, or has an interest in the case. As to the general rule:

Q: May counsel ask a witness matters which are completely alien to what
he has testified on in the direct examination?
A: The general rule is NO. For example, a witness testifies on something
which happened on August 5. In the cross-examination, counsel is going to

226
ask him on matters which happened on July 5. That is not allowed
because the subject matter on the cross-examination was never touched in
the direct. So, the general rule is: MATTERS NOT COVERED IN THE
DIRECT EXAMINATION CANNOT BE COVERED IN THE CROSS.

However, the law does not seem to be strict with respect to the
general rule. Because the law says that upon determination in the direct, a
witness will be cross-examined by the adverse party as to any matter in the
direct examination or
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_______________ This particular rule may be found in the 1985 Rules on
Criminal Procedure:

Rule 115, Rights of the accused: Section 1: In all criminal

prosecution, the accused shall be entitled: x x x (d) To testify as a witness
in his own behalf but subject to cross-examination on matters covered by
direct examination. His silence shall not in any manner prejudice him; x x x

This covers only the cross-examination of an accused in a criminal

case, where the accused on his behalf, he is waiving his right against self-
incrimination. But the law says it covers only matters stated in the direct
examination. There is nothing there which says: x x x or connected
therewith x x x.

If a witness testifies on direct examination, it is definitely within a

partys right to cross-examine him. Suppose counsel fails to cross-examine
him for one reason or another. Subsequently, the witness dies. What
happens now to his testimony in the direct examination? ANSWER: The
answer cannot be found in the Rules of Court. The answer may be found in

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American jurisprudence, borrowed by the Supreme Court. The general rule
is: A motion to strike is the remedy in case the witness dies or becomes
incapacitated to testify when the other party has not yet been given the
opportunity to cross-examine such witness.

A motion to strike out or delete or expunge from the records is the

remedy. However, this must be subject to the following rules:
1) If the witness becomes ill or dies during, or at the end, of the direct
examination, the testimony must be STRICKEN OUT. (Here, the
witness testimony is a total failure; it is given zero value. This is in
accordance with the general rule.)
2) If the witness becomes ill during the cross-examination, the court may
determine from the testimony given whether or not the right to cross-
examination had been exercised.
3) If the witness was not cross-examined because of the postponement
ordered by the court, or at the request of the party calling the witness,
the testimony in the direct examination should be STRICKEN OUT.
4) If the witness was not cross-examined because of the postponement
asked for the party who claims the right to cross-examination, the
direct examination may be used. (The reason for this is that the party
who had the right to cross-examine took the chance in losing it.)

EXAMPLE:
Rule #1: Upon cross-examination, before the same is able to start, the
witness dies of a heart attack.

There was no opportunity to cross-examine. Therefore, under the rule, the

testimony in the direct examination must be stricken out.

Rule #3: During cross-examination, the lawyer of the party who called the
witness in the direct examination moved for the postponement of the
examination. However, on the re-scheduled date, the witness died. His
testimony in the direct examination must be stricken out.

But if the party who will cross-examine the witness is the one who
asked for the postponement, and subsequently the witness dies, then the
testimony in the direct examination may be used. The cross-examining
party will have to bear the loss, because it had the chance to cross-
examine the witness, but it opted for a postponement instead. So, in this
case, the witness statements in the direct examination will remain on
record.

PEOPLE vs. SEERIS

99 SCRA 92

Facts: Private respondent was being prosecuted for the crime

of parricide. On June 7, 1978, the cross-examination
conducted by counsel for private respondent of the prosecution
witness, Mario Nemenio, was not completed in one session for

228
lack of material time. However, on July 3, 1978, the date of the
scheduled continuation of the cross-examination, Nemenio was
shot dead by the Integrated National Police patrols while
allegedly escaping from the San Ramon Prison and Penal
Farm, where he was then serving sentence. Thus, the
completion of the cross-examination became an impossibility.

On July 20, 1978, petitioner, without any motion by the

defense for the striking out of deceased witness testimony, filed
with respondent court a motion praying for a ruling on the
admissibility of the testimony of deceased witness.
On August 4, 1978, respondent judge issued an order
declaring as inadmissible the entire testimony of deceased
witness on the principal ground x x x that the defense was not
able to complete its cross-examination of said witness.

In the present action, petitioner contends that respondent

judge gravely abused his discretion in ruling inadmissible the
testimony of deceased witness.

Issue: whether or not the testimony of the deceased witness

should be altogether rendered inadmissible due to non-
completion of the cross-examination.

Holding: The cause for the non-completion of the cross-

examination of petitioners witness was FORTUITOUS EVENT
as he was killed by the law enforcers. It may be true that the
escape of said witness and his consequent death may be
attributable to the negligence of petitioners agents; but such
negligence may not bind the petitioner so as to prejudicially
affect its cause and interest -- the prosecution of the criminal
offense -- by reason of the generally accepted principle that the
State is not bound by the negligence or tortuous acts of its
agents.

The questioned testimony of deceased witness is

admissible in evidence because private respondents counsel
had already x x x vigorously and extensively cross-examined
witness Nemenio on all essential elements of the crime
charged, all of which have been testified upon by said witness
in his direct examination-in-chief, and consequently the cross-
examination-in-chief has already been concluded. What
remained was merely the cross-examination regarding the price
or reward, which is not an element of parricide, but only an
aggravating circumstance.

While the right to confrontation and cross-examination is

a fundamental right, the same can be waived expressly or

229
 impliedly by conduct amounting to a renunciation of the right of
cross-examination. The conduct of a party which may be
construed as an implied waiver of the right to cross-examination
which may take various forms. But the common basic principle
underlying the application of the rule on implied waiver is that
the party was given the opportunity to confront and cross-
examine an opposing witness but failed to take advantage of it
for reasons attributable to himself alone. Thus, where a party
has had the opportunity to cross-examine a witness but failed to
avail himself of it, he necessarily forfeits the right to cross-
examine and the testimony given on direct examination of the
witness will be received or allowed in the record.

Another issue: X, plaintiff, filed a case against A and B. Every defendant is

represented by his own lawyer. After defendant A testified, he was cross-
examined by plaintiffs lawyer. However, the lawyer of defendant B asked
that he too be allowed to cross-examine his co-defendant. The lawyer of A
claims that B cannot cross-examine his client because they are not adverse
parties. They are co-defendants, are on the same side. The lawyer of B
claims that he should be allowed because even if his client and A are on
the same side, it does not necessarily mean that they are together. So, the
issue here is: Does the defendant have the right to cross-examine a co-
defendant? Who may examine the plaintiff?

According to an American author:

Rule #1: If there is more than one party on each side, and each is
represented by separate counsel, each counsel must be allowed to
cross-examine the witness.
Rule #2: If there are two parties on one side, each represented by
separate counsel, and one of them takes the stand, the attorney for the
other can cross-examine him, even though he is a co-party. However,
leading questions cannot be asked. (Thus, based on this rule, the
answer to the above-raised issue is: YES, a co-defendant has the right
to cross-examine his other co-defendant.)
Rule #3: If the two parties on each side are represented by the same
counsel, they have no right to cross-examine each other.

SECTION 7. Re-direct examination; its purpose and extent. After

the cross-examination of the witness has been concluded, he may be
re-examined by the party calling him, to explain or supplement his
answers given during cross-examination. Or re-direct examination,
questions on matters not dealt with during the cross-examination,
may be allowed by the court in its discretion.

The purpose of a re-direct examination is to ask the witness to clarify,

amplify, or supplement whatever answers he made during the cross-
examination. Because sometimes, the answers given in the cross-
examination are vague or ambiguous, or may create unfavorable

230
impressions, which, if not properly explained, may mislead the judge into
misinterpreting the answer.

Normally, a cross-examiner will not allow the witness to give details to

the answers, or the questions. When the witness answers, Yes, and
believes that such answer was not the way he meant it to be said, so he
begins to explain. The cross-examiner says: I did not ask you to explain.
I asked only for a yes or no answer. It is now the duty upon re-direct to
ask him to explain. So, it goes like this: You said Yes as your answer in
the cross-examination. Could you explain what you meant by that?

Again, the purpose of re-direct is to explain, supplement or amplify

the answers given on cross-examination. Can questions not touched on in
the cross-examination be asked during re-direct?
ANSWER: NO. Counsel cannot ask the witness questions on a point not
brought out on cross-examination. But there is an exception: Such
questions may be allowed according to the judges discretion. Meaning,
counsel must first ask the court; otherwise, he is not allowed to ask.

So, actually, there is still a certain liberality. But the general rule is
still that counsel cannot ask questions in the re-direct bearing on matters
not touched on cross.

SECTION 8. Re-cross examination. Upon the conclusion of the

re-direct examination, the adverse party may re-cross-examine the
witness on matters stated in his re-direct examination, and also on
such other matters as may be allowed by the court in its discretion.

In re-direct, if there is anything that the witness said which favored

again the plaintiff, counsel may further supplement the same.

Q: What may be asked on re-cross?

A: General rule: Counsel may ask on re-cross only on matters brought out
in the re-direct. Thus, he cannot ask questions on new matters
which were never brought out in the re-direct.

However, again, based on the liberal spirit of the Rules, the contrary
may be allowed for as long as the same is addressed to the discretion of
the court, and the latter allows it.

ILLUSTRATION: Suppose on direct examination, the witness touched on

ten major points. Upon cross-examination, he may be asked questions on
those ten areas. But, suppose the cross-examiner limited himself only to
six areas; he never touched on the other four. On re-direct, out of the six
points touched on the cross, the re-direct examiner confined himself to only
two points -- 2 out of 6. On re-cross counsel is confined only to those two
points. What has not been touched, nobody has the right to touched. That
is the general rule. Of course, the exception applies when the discretion of
the court is invoked. However, the rules must always be followed.

231
 The proper mode of objection is: Your Honor, improper on re-direct;
not touched on recross! That is the very common objection which the court
may sustain, or overrule.

SECTION 9, Recalling witness. After the examination of a witness

by both sides has been concluded, the witness cannot be recalled
without leave of court. The court will grant or withhold in its
discretion, as the interest of justice may require.

Q: Suppose a witness was already examined in court; he had already

gone through the four stages: direct, cross, re-direct and re-cross. After
that, no further questions were asked of him. Then, he was excused. Then
counsel asks the court: Your Honor, there are certain points that we failed
to ask the witness about. Can the witness be recalled?
A: The general rule: The questions must be asked while the witness is on
the stand. Take note that under Sec. 3, one of the rights of a witness is not
to be detained longer than the interest of justice require. Once the witness
has been discharged, one cannot say: Please come back. We have
additional questions in cross, re-direct or re-cross... That should not be
allowed. But the law says that it can be done; provided, there is LEAVE
OF COURT. The last sentence of the provision states: The court will grant
or withhold leave in its discretion, as the interests of justice may require. It
is all up to the court to allow that or not.

In a decided case, the Supreme Court laid down the policy that the
recall of a witness should not be allowed unless there is a very valid reason
or ground:

PEOPLE vs. RIVERA

200 SCRA 786

Facts: Wilfredo Sembrano is the accused in a case of arson.

Among the witnesses presented by the State to demonstrate
the accuseds culpability was Benjamin Lee. The prosecution
had completed its presentation of its evidence-in-chief. But
before it could rest its case, two months or so after Lee had
completed his testimony, there was a substitution of defendants
counsel. The new counsel filed a motion to recall Lee for
further examination for the reason that, after having reviewed
the record of Lees testimony, he came to the conclusion that
there seems to be many points and questions that should have
been asked but were not propounded by the other defense
counsel who conducted (the cross-examination).

Over the objections of the prosecution, the trial court

granted the motion. Hence, the action at bar instituted by the
Office of the Solicitor General.

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 Issue: whether or not the motion to recall the witness Lee was
properly granted.

Holding: The trial court acted with grave abuse of discretion in

authorizing the recall of witness Lee over the objections of the
prosecution and in later striking out said witness testimony for
want of further cross-examination.

Under Sec. 9 of Rule 132, a trial court has the discretion

to grant leave for the recall of a witness. However, the
discretion to recall a witness is not properly invoked or
exercisable by applicants mere general statement. Obviously,
that discretion may not be exercised in a vacuum, as it were,
entirely isolated from a particular set of attendant
circumstances. The discretion to recall a witness is not
properly invoked or exercised by an applicants mere general
statement that there is a need to recall a witness in the interest
of justice or in order to afford a party full opportunity to present
his case or that, as in the case at bar, there seems to be many
points and questions that should have been asked in the earlier
interrogation. To regard express generalities such as these as
sufficient ground for the recall of witnesses would make the
recall of witnesses no longer discretionary but ministerial.

Something more than the bare assertion of the need to

propound additional questions is essential before the courts
discretion may rightfully be exercised to grant or deny recall.
There must be a satisfactory showing of some concrete,
substantial ground for the recall. There must be a satisfactory
showing on the movants part, for instance, that particularly
identified material points were not covered in the cross-
examination, or that particularly described vital documents were
not presented to the witness whose recall is prayed for, or that
the cross-examination was conducted in so inept a manner as
to result in a virtual absence thereof. Absent such particulars,
to repeat, there would be no foundation for a trial to authorize
the recall of any witness.

SECTION 10. Leading and misleading questions. A question

which suggests to the witness the answer which the examining party
desires is a leading question. It is not allowed, except:
a) On cross-examination;
b) On preliminary matters;
c) When there is difficulty in getting direct and intelligent answers
from a witness who is ignorant, or a child of tender years, or is of
feeble mind, or a deaf-mute;
d) Of an unwilling or hostile witness; or,

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e) Of a witness who is an adverse party or an officer, director, or
managing agent of a public or private corporation or of a
partnership or association which is an adverse party.
A misleading question is one which assumes as true a fact not
yet testified to by the witness, or contrary to that which he has
previously stated. It is not allowed.

Q: Are leading questions allowed?

A: General rule: NO, except in the following: (a), (b), (c), (d), and (e).

Q: What is a leading question?

A: A leading question is a question which suggests to the witness the
answer which the examining party desires. It is a question which already
suggests the answer.

Another way of putting it: The question itself leads the witness to the
answer. The question suggests how it should be answered.

One of the best examples of a leading question is when the premise

is given by counsel and the witness is only asked to confirm or deny. For
example: Mr. Witness, on the night of January 10, 1999, you were
standing on the corner of San Pedro and Bolton Streets, is that correct?
That is a leading question. That is objectionable. Actually, counsel is
already suggesting that the witness was, on the particular date and on that
particular time, at that particular place. The details must come from the
witness himself.
COUNSEL:
Mr. Witness, where were you on the night of January 10, 1999?
Can you recall?
WITNESS:
Yes.
COUNSEL:
Please, tell the court about it.
WITNESS:
I was on the corner of San Pedro and Bolton Streets.
COUNSEL:
When you were there, you saw Pedro pass by, is that correct?
OPPOSING COUNSEL:
Objection, your Honor. Leading!
COURT:
Alright, reform.
COUNSEL:
When you were there, did you see anyone?
WITNESS:
Yes.
COUNSEL:
Who?
WITNESS:

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 I saw my friend, Pedro, pass by.
COUNSEL:
Was he carrying a gun?
OPPOSING COUNSEL:
Objection! Leading again.

So, those are what you call LEADING QUESTIONS. If the court
allows such line of questioning, the effect would be this: (A is the Fiscal.
He is trying to prove that a crime was committed by Pedro against Juan.
This is how the examination would go:)
FISCAL:
Mr. Witness, on the night of January 10, 1999, you were
standing on San Pedro Street, near the Cathedral, correct?
WITNESS:
Yes.
FISCAL:
While you were there, you saw Pedro and Juan, correct?

WITNESS:
Yes.
FISCAL:
Pedro was carrying a gun, is that correct?
WITNESS:
Yes.
FISCAL:
Then, Pedro aimed his gun at Juan and shot him, is that
correct?
WITNESS:
Yes.

So, who is actually testifying here? Is it the fiscal or the witness?

In the case of Pp. vs. Belibet (199 SCRA 587), the Supreme Court
said: A leading question is one which suggests to the witness the answer
desired. Thus, it is correct to say that a leading question propounded to a
witness may by reacting to an inference in his mind, cause him to testify in
accordance with the suggestion conveyed by the question and that his
answer may be merely an echo of the question.

According to an American author: A leading question is really a

statement ending with a question mark. It is not really a question.

The primary rule is that leading questions are not allowed on direct
examination. The witness must be allowed to freely testify on what he is
supposed to say. In other words, counsel must QUESTION; he must not
lead the witness.

Q: Why is it that there should be no leading questions on direct and re-

direct examinations?

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A: Because the witness is the direct examining partys witness. He is
supposed to be cooperative to the direct examiner. Before he is presented
on the witness stand, the direct examiner must already have an idea of
what he is going to say. Since he is supposed to cooperate, there must be
no need to help him. The direct examiner is supposed to bring out the facts
through him. Let him come out with the story.

The general rule is that leading questions are not allowed. The
witness himself must be allowed to testify on his own. But there are
exceptions. In these exceptions, leading questions may be asked:

1) On cross-examination;

Leading questions are allowed on cross-examination.

CONCLUSION: leading questions are not allowed on direct examination.
Conversely, leading questions are not allowed on re-direct but allowed on
re-cross.

Q: Why is it that on cross-examination, leading questions are allowed?

A: Because the witness is not the cross-examining partys witness. He is
expected to be adverse or hostile to the cross-examiner. And he is not
expected to cooperate. The only way to read between the lines is precisely
through leading questions.

For example, in the direct examination:

DIRECT EXAMINER:
Where were you on the night of January 10, 1999?
WITNESS:
I was at the Ateneo campus on the night of January 10, 1999.
DIRECT EXAMINER:
Who were your companions?
WITNESS:
My companions were Mr. X and Mr. Y. There were three of us.

What actually happened is that the witness was also with Mr. Z, a fourth
companion. But the witness failed to mention this. He deliberately chose
to be silent about this in the direct examination. Now the cross-examiner
wishes to point out that the witness testimony was not really 100%
accurate.
If the cross-examiner would not be allowed to ask leading questions,
or suggestions, this is how it would happen:
CROSS-EXAMINER:
Mr. Witness, you said that there were three of you together on
the night of January 10, 1999 -- Mr. X, Mr. Y, and yourself.
Are you sure that there were only three of you?
WITNESS:
Yes.
CROSS-EXAMINER:
You really had no fourth companion that night?

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 WITNESS:
None.
CROSS-EXAMINER:
Are you definite about that?
WITNESS:
That is what I said!

So, the cross-examiner will now have to resort to leading questions...

CROSS-EXAMINER:
Mr. Witness, is it not true that aside from Mr. X and Mr. Y, you
had another companion whom you did not mention?

So, this time, the cross-examiner is suggesting. He is suggesting that

what the witness said was incomplete. He is suggesting that Mr. Z was
present also. The witness better confirm or deny this. Witness cannot say
that he forgot. Cross-examiner will refresh his memory, in that case.
Witness is not really expected to cooperate. He will attempt to throw the
other party off-guard.
CROSS-EXAMINER:
Are you sure?
WITNESS:
Yes, I am sure.

Cross-examiner cannot get out of that. That is why the witness position
must be destroyed, by suggesting that what he is saying is incomplete.
CROSS-EXAMINER:
And then, on that night, you said that nothing happened. Try to
recall.
WITNESS:
I cannot remember anything anymore. None!
CROSS-EXAMINER:
Let me refresh your memory then. Is it a fact that while the
three of you were there, there was trouble in the other table
next to yours?

Actually, the cross-examiner is suggesting. Otherwise, if he asks the

question this way: On that night, while you were drinking together with
your companions, did anything unusual happen? The witness could
answer that nothing unusual happened. He will deliberately suppress the
fact. So, cross-examiner must make a suggestion now that this is what
happened. Obviously, this is a leading question:
CROSS-EXAMINER:
Is it not a fact that in the next table, a quarrel erupted in which
you even participated?... You are under oath, and you know
what is right or wrong... (bring out the matters of false testimony
or perjury)
WITNESS:
Yes.

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 That is the purpose of a leading question. Because the cross-
examining party does not expect the witness to cooperate with him. And he
is not expecting him to try to claim that he does not remember. That is why,
in order to compel him to remember, the cross-examiner must make
suggestions. That is the reason why on cross-examination, leading
questions are allowed.

2) On preliminary matters;

Meaning, if the question deals on a matter that is not really the main
fact in issue, leading questions are ALLOWED. For example, the issue is:
While X was walking towards a particular store, he saw the crime being
committed. So, what is important here is the fact that X saw the crime as it
was committed. Here is how the direct examination:
DIRECT EXAMINER:
Mr. Witness, where were you on this particular day?
X:
I stayed in the house.
DIRECT EXAMINER:
Did you go out of that house during the day?
X;
Yes.
DIRECT EXAMINER:
While you were going to the store to buy something, what did
you see?
OPPOSING COUNSEL:
Objection, your Honor! Leading, the question is suggesting that
the witness went to the store.

But that is only a preliminary issue. The fact is that the witness went to the
store is not the fact in issue. In other words, the direct examiner is merely
hastening up matters. Sometimes, a direct examiner really has to suggest
to the witness a particular topic, but not necessarily a particular answer.

For example:
DIRECT EXAMINER:
Mr. Witness, where were you on January 10, 1999 , at 7:00 in
the evening?
OPPOSING COUNSEL:
Objection! Leading!
DIRECT EXAMINER:
Yes, that is leading, but I am not leading the witness to an
answer. I am leading him only towards a particular time.

Otherwise, the witness has to recount everything that happened on

the day of January 10, 1999, from the time he woke up until the particular
time which is material to the issue. Actually, the other details are not
relevant. So, they should not be asked in court in order to save time and

238
effort. Lading questions may be asked, as in this exception, in order to go
directly to the point which the witness is supposed to be testifying on.

Take note: What may be asked is a leading question, a question which

merely suggest a SUBJECT. Otherwise, it would be impossible to examine
a witness without resorting to or suggesting upon which he is supposed to
answer.

3) When there is difficulty in getting direct and intelligent answers

from a witness who is ignorant, or a child of tender years, or is of
feeble mind, or a deaf-mute;

People who are ignorant or feeble-minded cannot be expected to

posses the IQ of a normal person. A normal person, when presented as a
witness, knows why he is there. But when a person is feeble-minded, or is
a child, chances are, he will not know what his purpose is for being on the
witness stand.

For example, the witness is a four-year old child. He is not

disqualified from testifying because he is capable of perceiving and is
capable of making known his perception, although his mind is not mature
enough. So, he may not understand what the issue in the case he is
testifying for is:
COUNSEL:
Where you in school on this date?
WITNESS:
I was in school.
COUNSEL:
What do you see?
WITNESS:
I saw my friends playing on the playground.

Actually, these matters are irrelevant. What is important is the fact that
while the child-witness was in school on that day with his friends playing,
he witnessed a shooting incident.
COUNSEL:
What else did you see?
WITNESS:
I saw my friends running around.
In other words, this line of questioning will get nowhere.

COUNSEL:
So, while you were there, did you see any putok-putok or baril-
baril?
WITNESS:
Yes.
So, there. Counsel suggested that the child saw an incident. The child
may not have thought that the shooting he saw was important. That is why
he has to be led.

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 In the case of Pp. vs. Tomentos ( 211 SCRA 212), the Supreme Court
said: The child has been convincingly, categorically and scientifically
proven to be a mentally retarded woman whose mind is likened to the mind
of an 8 to 10-year old, and is a very dull child, thus, entitled to some
leading questions.

4) Of an unwilling or hostile witness;

This refers to the DIRECT EXAMINATION of an unwilling or hostile

witness. Meaning, for example, X is the star witness. He is the only one
who can help the prosecution. But he refuses to testify. X knows that the
accused is not really the one who committed the crime, but somebody else.
But X does not want to get involved. So, the prosecution subpoenas him.
This is the direct examination:
COUNSEL:
Mr. Witness, where were you on the night of January 10, 1999?
WITNESS:
I cannot remember.

Counsel cannot do anything now. Obviously, the witness refuses to

cooperate. So, how should X be pushed in order to help?
COUNSEL:
Mr. Witness, is it not true that on the night of January 10, 1999,
you were inside the Ateneo campus, in the gazebo, with these
people?
(this is actually a suggestion)
COUNSEL;
Then, while you were there, was there anything that happened?
WITNESS:
None.
COUNSEL:
Is it not a fact that there was an incident there that happened
just three meters away from you involving a shooting?

Q: So, how does counsel make such a witness cooperate? If he applies

the normal rules of procedure (i.e., he should not ask leading questions),
he will not be able to get anything from the witness.
A: If the witness is unwilling or hostile, the only way to force him to
cooperate is through leading questions.

5) Of a witness who is an adverse party or an officer, director, or

managing agent of a public or private corporation or of a partnership
or association which is an adverse party.

Q: How do you distinguish this from paragraph (d)?

A: In paragraph (e), the witness is hostile also. Because he is the
opponent. For example, the prosecution will call the opponent as its own
witness. Suppose the opponent is a corporation. Plaintiff files a case

240
against the corporation. The corporation cannot be called to the witness
stand. The officers and managing directors of the corporation are
considered as taking the place of the adverse party.

Q: What is purpose of calling the opponent? Why, in the first place, call
the adverse party to testify, when the prosecution or plaintiff does not
expect him to testify for them?
A: General rule: when a witness is called, the party calling is bound by his
testimony. When a party calls a witness, it is relying on him; he is
supposed to help the former. Therefore, if he says something which goes
against the party presenting him, the latter is bound. However, when a
party calls its own opponent to the witness stand, everything that he says in
the presenting partys favor, and against the opponent, will not bind the
presenting party.

Q: Why should he be called?

A: Because if the party calls him as its witness. it is 100% definite that he
will not expect that. When a defendant goes to court, and it is the turn of
the plaintiff to testify, what the defendant will expect is that the plaintiff will
first present its own witnesses. The defendant will not expect for the
plaintiff to call him.

Therefore, the purpose here of the plaintiff, for example, in calling the
defendant, is to ask questions which presumably will be answered in his
favor, but which do not bind him. But since he is not prepared, then there is
a possibility for his tongue to slip; and that he will make an admission
favorable to the plaintiff, and the defendant is bound under the rules on
admissions.

So, just in case he might say something in the plaintiffs favor. And
since he is the adverse party, the plaintiff will be allowed to ask leading
questions because the witness is a hostile witness. So, in effect, when a
party calls an adverse party, he is merely probing, searching for a loophole.
He is engaged in a fishing expedition, which is a concept found under
deposition-taking. Precisely, because this belongs to the family of
deposition-taking. Only, the deposition is taken inside the courtroom, right
there during trial. Deposition-taking is done before the trial -- to try to
discover before the trial what the witness knows, more or less. But in this
provision, counsel is probing it right in the middle of a trial. But this applies
only when a party calls the adverse party to the witness stand.

This jibes with the law on deposition. The deposition of a witness can
only be used for impeachment purposes. But the deposition of a party, or
the officer of a corporation can be used for ANY purpose. It may be used
for impeachment; it may be used as evidence to prove an admission.

This is actually what happens: X is the plaintiff. Defendant knows

that the first part of the trial is for X to present his evidence. X will present
his witnesses. It is only after X will have finished presenting his witnesses

241
that it would be the defendants turn. So, the defendant does not prepare.
So, he will be surprised and unprepared in the plaintiff calls him as its first
witness.

EXAMPLE: In a case of forcible entry. Plaintiff claims that he is the real

owner of the land; that he had inherited the same from his parents, etc. But
he does not have title. Meaning, this is unregistered land. However,
somehow, somebody, probably in cahoots with authorities, succeeded in
having the property titled, and is now claiming the property to be his.
Suddenly, this stranger just entered the land and took over it, using the title
as proof of his authority to do so. He was able to eject the plaintiff from the
land who has been there for years. So, plaintiff filed a case of forcible entry
against this stranger.

During the trial, plaintiffs lawyer, psychologized the defendant. The

defendant, being a layman, probably does not know the distinctions
between forcible entry, accion publiciana, accion reivindicatoria, etc. He
will not be able to distinguish one from the other. What the defendant
knows is laymans logic: I am the owner because I have the title.
Therefore, I am entitled to possession, and I am entitled to drive out the
persons occupying the property. But he does not know that he is liable for
forcible entry because the issue is: who was in prior physical possession?

Plaintiffs lawyer calls the defendant as their first witness. The

defendants lawyer objects and says that his client will be presented at the
proper time. But remember that it is the right of a party to call the adverse
party. So...
PLAINTIFFS LAWYER:
Mr. Defendant, you are the owner of this registered land,
correct?
DEFENDANT:
Yes.
PLAINTIFFS LAWYER:
This is the title and it is in your name, correct?
DEFENDANT:
Yes.

PLAINTIFFS LAWYER:
You assert the fact that you are the owner, and somebody has
been enjoying the property two years ahead of you, correct?
DEFENDANT:
Yes.
PLAINTIFFS LAWYER:
He has been gathering the fruits, coconuts, durian, etc.?
DEFENDANT:
Yes.
PLAINTIFFS LAWYER:

242
 So, as an owner, you believe that it is your right to occupy the
property that you own, correct?
DEFENDANT:
Yes.
PLAINTIFFS LAWYER:
You went in one morning. You drove out the occupant because
he is not the title-holder; whereas you are the title-holder, etc.
Correct?

That is forcible entry! Practically, the defendant admitted everything.

Then, the plaintiff asks the court for a writ of preliminary mandatory
injunction. Finished! The defendant killed himself with his own misgiving.
The plaintiff succeeded in doing this by employing the element of surprise,
by using this provision.

This provision may also be used when the plaintiff wishes to establish
something, but he does not have the evidence to prove it. He can lead the
adverse party to make certain admissions, which will work in plaintiffs
favor. That is the beauty of this provision.

Paragraph (e) is related to the concept of depositions. Counsel

examines the adverse party with the hope of getting something. But the
deposition is done before the trial, before the deposition officer. Paragraph
(e) is actually, in effect, a deposition-taking in the middle of the trial right
inside the courtroom.

There are many procedures in the Rules which belong to the generic
concept of depositions. Recall: Rule 39, the examination of the judgment
debtor as a remedy in aid of prosecution under Civil Procedure. The
judgment creditor can ask for an order requiring the debtor to appear in
court so that the formers counsel may cross-examine him. The purpose
here is to elicit certain admissions to determine where his properties are
being kept, who are the people indebted to him so that he can garnish the
debtors accounts, or levy upon his properties. In effect, counsel here is
engaged in a fishing expedition. This is also found in the concept of
deposition-taking. So, they belong to the same family, the same species.

CHAVEZ vs. CA
24 SCRA 663

Facts: In a criminal case, the prosecution presents evidence

first to prove the guilt of the accused by the elements of a
crime. The fiscal announced in court that for its next witness
they are calling for the accused for the accused to take to the
stand. Of course, defense counsel objected on the ground that
one of the rights of an accused is the right not to testify
because this would be violative of his right against self-
incrimination.

243
 According to the prosecution: (1) it has the right to call
for the accused because under the Rules on Evidence, it is a
right of a party to call the adverse party; and, (2) invoking the
right against self-incrimination is premature because he does
not yet even know what will be the question. So, in order to
invoke the right against self-incrimination, one has to wait for
the incriminating question to be asked. So, the accused cannot
invoke it until after the incriminatory question is asked because
under the Rules on Evidence, a witness has the obligation to
answer all questions asked of him; although it is his right not to
testify if the answer to the question will tend to subject him to a
penalty for an offense. Meaning, for as long as the question is
not incriminatory, he must answer. If the question is
incriminatory, that is the time when the right may be invoked.

Issue: Can the defendant invoke the right against self-

incrimination even when the prosecution has not asked any
question?

Holding: The prosecution is wrong. The prosecution has no

right or authority to call the accused to the witness stand
because it is violative of the accuseds right against self-
incrimination. What is the purpose why the prosecution wishes
to ask the accused to take the witness stand?

(1) Insofar as the accuseds right against self-

incrimination is concerned, the right includes the right to refuse
to take the witness stand. This provision of the Rules, which
gives a party the right to call the adverse party, DOES NOT
APPLY, for this is a criminal case, and the prosecution is calling
the accused. Otherwise, it will collide with the accuseds
constitutional right.

(2) The accused does not have to wait for the

incriminating question to be asked in order to invoke the
constitutional right against self-incrimination. This right includes
a blanket authority to refuse to take the witness stand and
answer any questions.

Thus, this provision is applicable only with regard to ordinary

witnesses. Such does not comprehend an accused in a criminal case. In
effect, there must be a distinction between the right of a witness against
self-incrimination and the right of an accused in a criminal case against
self-incrimination.

If a person is a witness who is not the accused, he cannot invoke the

right against self-incrimination until the incriminating question is asked. If
the question is not humiliating, he must answer. But if it is about the
accused in a criminal case, his rights are different. He does not have to

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wait for the incriminating questions to be asked before he can invoke the
right.

There are two types of questions: (1)leading question; and (2)

misleading question. A leading question should not be confused from a
misleading question. A leading question suggests to the witness the
answer which the examining party desires. A misleading question is
different. It is a question that assumes as a fact something not yet
established or prove. Or, the other type of a misleading question -- it
assumes a fact something different from that which the witness is testifying
on. In other words, in misleading question, counsel is attributing to the
witness statements that he never made . Counsel is putting words into
the witness mouth.

EXAMPLE:
1) The first type of misleading question:
COUNSEL:
Mr. Witness, where were you on the night of January 5, 1999?
WITNESS:
I was at home.
COUNSEL:
Did you have a companion?
WITNESS:
No, I was alone.
COUNSEL:
While you were at home watching television, what happened?

This is misleading! The witness never said that he was watching television.
Counsel is assuming as a fact one not testified to by the witness. So, if
counsel were to establish that fact:
COUNSEL:
What were you doing at home?
WITNESS:
I was watching television.
COUNSEL:
While you were watching television, what happened?

That is the proper way to go about it. In other words, counsels premise is
what the witness said. He cannot use as a premise something that the
witness did not say. Otherwise, counsel is assuming as a fact something
not yet testified to by the witness. This is a misleading question -- counsel
is putting words into the witness mouth.

2) The second type --

COUNSEL:
What were you doing at home?
WITNESS:
I was watching television.
COUNSEL:

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 So, while you were sleeping that night, as you said...

This is misleading! That is not what the witness said; the witness said that
he was watching television. So, counsel seems to be changing the fact.
He is attributing to the witness a statement different from what he (witness)
actually said. That is what is called a misleading question.

The rule on misleading questions is that they ARE NOT ALLOWED;

never on direct, cross, re-cross, or re-direct. Unlike leading questions --
they are not allowed on direct, but are allowed on cross; they are not
allowed on re-direct, but are allowed on re-cross. In leading questions,
counsel is not attributing anything new to the witness; he is merely
suggesting something. He is not assuming any fact. Some lawyers and
judges cannot distinguish a leading from a misleading question.
EXAMPLE:
COUNSEL:
Where were you on this date?
WITNESS:
I was in Ateneo campus.
COUNSEL:
Who were your companion?
WITNESS:
My companions were X and Y.
(Actually, counsel wants to prove that such is not what the
witness said on cross- examination. Counsel wants to prove
that they had a fourth companion.)
COUNSEL:
Mr. Witness, you said that on that night, you were with two of
your classmates, X and Y. Is it not a fact that there was another
person, W, also with you that night?
OPPOSING COUNSEL:
Objection, your Honor! Misleading!

Actually, that is not a misleading question. That is a LEADING

QUESTION.

COUNSEL:
You said that on that night, you were with three of your
classmates, X, Y and Z...
That is a MISLEADING QUESTION. Counsel is assuming a fact what the
witness never said.

The tragedy of such misconception is when the court sustains that

the question is misleading, when actually it is not. It is difficult when the
judge himself cannot distinguish leading from misleading. A party cannot
be able to get a correct ruling because of that.

Q: What is the effect of failure to object?

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A: The testimony or statement will be allowed; it will be admitted. The
problem there is that the court may now assume that it is true. The witness
may say that he never said that, or may not have noticed that he ever said
that, but it is already on record. That is damaging; that is why counsel must
object before the witness answers. Otherwise, the partys only remedy
would be on re-direct.

In failure to object, facts which are not supposed to be placed on

record are now on record. The most that counsel can do is to go to the
weight and credibility of the story. He must object before the answer is
given because it should not be given. It will only confuse the record.

SECTION 11. Impeachment of adverse partys witness. A

witness may be impeached by the party against whom he was called,
by contradictory evidence, by evidence that his general reputation for
truth, honesty, or integrity is bad, or by evidence that he has made at
other times statements inconsistent with his present testimony, but
not by evidence of particular wrongful acts, except that it may be
shown by the examination of the witness, or the record of the
judgment, that he has been convicted of an offense.

To impeach a witness simply means to attack the credibility of a

witness. Counsel of opposing party will try to discredit him. When counsel
impeaches a witness, he tries to discredit that witness. Deposition may be
used to check if what the witness will say on the witness stand is going to
be the same version as his deposition.

Q: Under the Rule, what are the modes of impeaching the adverse partys
witness?
A: There are three general modes of impeachment:
(1) by presenting contradictory evidence. Meaning, the party will present
evidence which is an exact opposite of what the witness said. In effect,
counsel is destroying his credibility; that his story cannot be accepted
because there is evidence to the contrary. If the evidence to the
contrary is more forceful, then the witness has been impeached.

(2) by evidence that his general reputation for truth, honesty or integrity is
bad. This is tantamount to CHARACTER EVIDENCE. Practically, this
is an attack upon the qualification of a witness, his capacity to tell the
truth. However, under Section 11, evidence of particular wrongful acts
cannot be presented. A party can impeach a witness by evidence that
is his general reputation for truth, honesty or integrity, but not evidence
of particular wrongful acts. Meaning, a party cannot prove a witness
reputation or general character by presenting a single slight thing which
may be wrong in him.

One particular wrongful act of a person is NOT CONCLUSIVE

of his character. One act does not prove the character or reputation
of a person. Even the nicest person can commit at least one or two

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 mistakes in his life. So, a slight mistake does not per se prove a
persons general reputation. Character is built by a particular pattern
of acts in ones life; not by one or two wrongful acts. Except,
however, that it may be shown by examination of the witness, or the
record of the judgment that he has been convicted of the crime of
perjury. This is a particular act.

This jibes with Section 3 of this Rule. It says that a witness is

not bound to give an answer that would tend to blacken his
reputation, unless it be to the very fact in issue, or to a fact from
which the fact in issue would be presumed. But a witness must
answer to the fact of his previous conviction for an offense. One
cannot hide a conviction, anyway. A conviction is already a matter of
record.

When evidence of ones past conviction for an offense is

presented by a party, it is not destroying his character. Such
evidence is not destructive of ones character because the conviction
is already a matter of record. It is already a part of the persons life.
So, this is not objectionable. When counsel of a party asks the
witness whether or not it is true that he has a criminal record, or that
he has been convicted by final judgment of a certain crime, this is
allowed. If he denies it, the party asking may present evidence of
such criminal record. This is not considered as character
assassination; this is allowed by law.

(3) by evidence that he has made, at other times, statements inconsistent

with his present testimony. Briefly, this is called EVIDENCE OF PRIOR
INCONSISTENCY (or Inconsistent Statements). Meaning, the party
presents evidence that before the witness said something which is in
direct conflict with what he is saying now. This is what he said before;
this is what he is saying now. Thus, he is vulnerable to impeachment;
how can one trust such a witness?

For example, in depositions. In a deposition, the witness testified as

to a particular fact. He cannot be called again to testify. Remember that
the deposition may be used to impeach the testimony of a partys
opponent. There is already a record. Therefore, when the witness testifies
in court, the parties will not anymore be surprised because they already
know how he will answer most, if not all, of the questions -- because his
deposition was previously taken.

The same rule goes for the testimony of a witness in a criminal case,
who executed his sworn statement in the fiscals office during the
preliminary investigation. The witness there presents affidavits for the
purpose of the preliminary investigation. These are statements under oath.
Curing the trial, the witness will testify again. The parties already know
what he will talk about because of the affidavits that he had already

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submitted. So, the witness can now be impeached by presenting the
affidavits in the criminal case, if there are inconsistencies in his statements.

Although not found in the law, there are other modes of impeachment
which can be inferred by common sense. Examples of these other modes,
which are acceptable, are the following:
By showing that there is a defect in the observation, memory or
narration by the witness. The witness memory is tested, but he
cannot remember. His credibility may be attacked by showing that he
has a defective memory, observation or narration.
By showing that there is an inconsistency in the witness conduct.
That his behavior at that time does not jibe with what he is claiming
now.
By showing that he is biased or prejudiced. Impeach him on the
basis of bias or prejudice, that he is closely linked with the party in
whose favor he is testifying. For example, that he is a relative. It
does not automatically mean, though, that when a witness is a
relative, he is biased. However, this is still a factor to consider.
Remember that the purpose of cross-examination is to determine if a
witness is free from bias or prejudice.

Q: What are the effects of impeachment?

A: One effect is that the witness will not be believed. His credibility will be
affected adversely.

Let us proceed to WEIGHT now. A witness testimony is admissible.

His testimony cannot be excluded simply because he has been impeached.
But the question is: How much weight will the court give to such
testimony? The court may totally disbelieve him. The purpose of
impeachment is to make a witness not credible.

SECTION 12. Party may not impeach his own witness. Except
with respect to witnesses referred to in paragraphs (d) and (e) of
Section 10, the party producing a witness is not allowed to impeach
his credibility.
A witness may be considered as unwilling or hostile only if so
declared by the court upon adequate showing of his adverse interest,
unjustified reluctance to testify, or his having misled the party into
calling him to the witness stand.
The unwilling or hostile party so declared, or the witness who is
an adverse party, may be impeached by the party presenting him in
all respects as if he had been called by the adverse party, except by
evidence of his bad character. He may also be impeached and cross-
examined by the adverse party, but such cross-examination must
only be on the subject matter of his examination-in-chief.

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Q: May a party impeach its own witness?
A: The general rule is: NO. A party producing a witness is not allowed to
impeach his credibility, except with respect to witnesses referred to
paragraphs (d) and (e) -- hostile, unwilling witnesses or the adverse party.

In the case of the exceptions, while it is true that the party called the
witness, in reality, the witness is not the witness of the party producing him.
That is why they can impeach him. But normally, when a person is called
as a witness, the party presenting him cannot impeach his credibility.
However, sometimes, there is a need to impeach him, if he has turned
hostile at the last moment, or has misled the party into calling him to the
witness stand. This is what the second paragraph is talking about.

EXAMPLE: Here is a person, X, witness of the defense. The counsel for

the defendant knows that he was present when the crime occurred. The
defense counsel interviewed him, and asked him if he could still remember
the incident that he witnessed. He said yes, and talked about what he saw.
In other words, he is in favor of the defendant because what he is saying is
exactly the same as the version of the accused. That is why the defense
called him to the stand. However, when the defense counsel asked him
who shot the victim, he pointed to the accused. In other words, X betrayed
the party for whom he was supposed to be testifying.

Now, if that is what happens, defense counsel might as well impeach

X so that is (defense) will not be bound by his testimony. DEFENSE
COUNSEL MAY IMPEACH HIM AFTER ASKING THE COURT TO GIVE A
DECLARATION OF HOSTILITY, that the witness misled the party into
calling him to the witness stand.

Q: Why should the defense impeach him?

A: So that the defense will not be bound by the witness testimony.

Q: How should the witness be impeached?

A: He should be impeached according to the Third Paragraph -- THE
UNWILLING OR HOSTILE WITNESS SO DECLARED, OR THE
WITNESS WHO IS AN ADVERSE PARTY, MAY BE IMPEACHED BY THE
PARTY PRESENTING HIM IN ALL RESPECTS AS IF HE HAD BEEN
CALLED BY THE ADVERSE PARTY, under Section 11, except by
evidence of his bad character. He must be impeached on the basis of
contradictory evidence, by evidence of prior inconsistent statements--by
evidence of his bad character. He must be impeached on the basis of
contradictory evidence, by evidence of prior inconsistent statements -- that
is why the party calling him was misled.

Always remember that in this case, a party is not allowed to prove

that the witness general reputation for truth, honesty or integrity is bad.
That is not allowed.

Q: Why is that not allowed?

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A: When a witness is called to the stand, then suddenly he turns hostile,
the party calling him must impeach him because at the last minute he
turned hostile, misled the party into calling him to the witness stand. So,
the party will prove that the witness general reputation for truth, honesty
and integrity is bad. But suppose he did not turn hostile, suppose he
cooperated with the party calling him, will such party try to prove that his
reputation for truth, honesty and integrity is bad? Chances are, the party
will not. So, it is unfair. The party all along knew that its witness reputation
for truth, honesty and integrity was bad -- however, since he was on its side
and was willing to help, the party will hide such reputation. But now that he
has turned hostile, the party will decide to bring out that bad reputation.
That is unfair.

Generally, a party may impeach its own witness if his testimony is

adverse to such party. Find out if there is a substantial difference between
what the witness said before and what he is saying in court. If the
distinction differs only in variation, the court cannot grant the declaration of
hostility. Remember that the court has to be convinced that the witness is
hostile. If the difference between what he said then and now is not really
on a very important point, it would be difficult for the party to secure a
declaration of hostility. If what the witness is saying now is radically
different, or if the substance of his testimony has been altered, that is a
different matter. He is now testifying against the party not on minor
variation, when actually, he was supposed to be for such party.

It is unethical when a party manufactures or twists facts. It is not

unethical when a party merely selects what facts which are unfavorable to
it. Definitely, a party already has an idea of what a witness testimony is
going to be. That is why in direct examination, leading questions are not
allowed because the witness is its own witness. There is a presumption
that he has already been rehearsed. That is also why there is a re-direct
examination -- so that if in the cross-examination something that was
brought out was not clear, it may be asked again in re-direct. That is the
rule on questioning of witnesses.

Q: At what stage of the presentation of evidence may a witness be

impeached? By what mode? For example, a party wishes to impeach a
witness who turns against it. What if, for example, the truth or some facts
surfaced during the cross-examination?
A: Normally, this happens on cross-examination because how can a party
direct a leading question unless he is in the witness stand? But that is not
the only mode of impeachment.

Remember: First, to impeach a witness, a party must first get a declaration

of hostility. It is now allowed to ask leading questions on direct
examination. Obviously, what is being contemplated in this situation is that
the witness is being impeached on the stand.

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 The witness may still be impeached through another mode later. By
presenting another witness (or witnesses) who can contradict him. But
normally, the witness is impeached there on the stand, and the party must
get a declaration of hostility for purposes of impeachment.

For example, X is the opponent of Y. Y calls him to the witness stand.

Ys counsel conducts the direct examination. After that, the cross-
examination follows. So, who conducts the cross-examination? X will be
cross-examined by his own counsel. He may also be impeached in the
cross-examination by the adverse party. But such cross-examination must
only be on the examination-in-chief. Meaning, Xs lawyer may cross-
examine him, but only on matters touched on Ys direct examination.
Matters not touched cannot be covered on cross.

Q: But what if Xs lawyer believes that X has more things to say?

A: So, Xs lawyer may call him back to the witness stand when he
conducts his own direct examination.

RULE: If X calls Y, a witness, to the stand as an ADVERSE WITNESS, and

he conducts the direct, Ys lawyer may cross-examine Y. But his questions
are limited only to the subject matter covered in the direct examination. If
Ys lawyer wants him to testify on other points, later on he can call back Y
to the witness stand.

Q: Here is one rule not found in the Rules, but is implied. When a party
calls the adverse party to the witness stand, what are the rules to be
followed?
A: The direct examination is conducted by the presenting party, which is
the adverse party. LEADING QUESTIONS MAY BE ASKED. Why?
Because the witness is not presenting partys own witness (Remember that
in the usual procedure, leading questions are not allowed on direct
examination) Then, the witness will be cross-examined by his own lawyer.
THIS TIME, LEADING QUESTIONS ARE NOT ALLOWED. So, the
procedure is reversed. (Normally, on cross, leading questions are allowed)
That is the rule.

So, when the party calls his own opponent, he will conduct the direct
examination. THE DIRECT EXAMINATION HERE WILL BE GOVERNED
BY THE RULES ON CROSS-EXAMINATION. On the other hand, when
his own lawyer cross-examines him, THE CROSS-EXAMINATION SHALL
BE GOVERNED BY THE RULES ON DIRECT EXAMINATION, where
leading questions are not allowed.

So, the rules are somewhat reversed. When a party calls the
adverse party, this is actually a cross-examination disguised as a direct
examination. Therefore, the questioning is very limited to only certain
points, the right of the witness lawyer to cross-examine is curtailed. But
since the witness is the cross-examiners client later on when it is his turn
to present evidence, he can ask the witness to go back to witness stand to

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testify on other matters. That is the meaning of the phrase but such cross-
examination must only be on the subject matter of his examination-in-chief.
Meaning, on the subject matter of his direct examination.

The general rule on cross-examination is Section 6 of this Rule. Is

the cross-examination really confined to matters stated in the direct
examination, or connected therewith with sufficient fullness and freedom?
ANSWER: The rule on cross-examination is very broad. It is not really
confined to matters stated in the direct because our judicial system adheres
to the English Rule (Under the English Rule, a cross-examination is not
strictly confined to matters stated in the direct examination.)

Q: When do we apply the American Rule? When is cross-examination

confined strictly to matters stated in the direct?
(a) Under Rule 115 of the 1985 Rules on Criminal Procedure -- when an
accused himself takes the witness stand to testify on his behalf.
Definitely, he can be cross-examined on matters stated in the direct
examination. Matters only connected therewith are not included.
(b) Under Section 12 of Rule 132: when a party has been called by the
adverse party on the stand, and he was interrogated by leading
questions on direct examination, he may be cross-examined later by
his lawyer, but only on matters stated in the direct examination.
Under this rule, in the cross, leading questions are prohibited
because the witness is the cross-examiners own client. This is
governed by the rules on direct.

SECTION 13. How witness impeached by evidence of inconsistent

statements. Before a witness can be impeached by evidence that he
has made at other times statements inconsistent with his present
testimony, the statements must be related to him, with the
circumstances of the times and places and the persons present, and
he must be asked whether he made such statements, and if so,
allowed to explain them. If the statements be in writing they must be
shown to the witness before any question is put to him concerning
them.

Impeachment must be done while the witness is still testifying on the

witness stand. How does one impeach by evidence of prior inconsistent
statements? Section 13 refers to the third mode of impeachment. This is a
continuation of Section 11 -- that the witness has made, at other times,
statements inconsistent with his present testimony. Briefly, this is called
IMPEACHMENT BY PRIOR INCONSISTENCY. There have already been
examples given related to previous provisions of the Rules.

Example of a prior statement which may be used for impeachment: a

deposition. Normally, the deposition of a witness is good only for
impeachment purposes.

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 Another good example: Impeachment of a witness in a criminal case
because there is an inconsistency between what he testified to in court
during the trial, and the contents of his affidavit which was submitted to the
prosecutor during preliminary investigation. An affidavit is a prior statement
of the same witness under oath. However, Section 13 must be observed,
which is called the process of laying the predicate. One cannot effectively
impeach a witness by evidence of prior inconsistency without observing the
said procedure.

Q: What is the procedure?

A: Counsel must confront the witness with his prior statements. He must
be asked whether or not he admits making that statement, the
circumstances of person, time and place, and he must be asked having
made the statement earlier by confronting him with the deposition. If the
statement is in writing, like an affidavit, the affidavit must be shown to the
witness before he can be effectively impeached -- by asking him to confirm
whether or not he signed it; whether that is really his signature; confront
him with the statements in his affidavit which counsel claims are
inconsistent with what he is saying now, and give him the chance to explain
the inconsistency. Without following this procedure. Laying the predicate,
then could be no valid mode of impeachment.

On the other hand, the Supreme Court said that Section 13 is only
required if counsel is confronting the witness with his prior statement
precisely for the purpose of discrediting his statements given out now.

There is another purpose for the use of a deposition, which is not

necessarily for discrediting the witness, but for the purpose of proving an
admission under Section 26 of Rule 130. The act, declaration or omission
of a party as to a relevant fact may be used in evidence against him.
Meaning, counsel will present in evidence a prior statement of a party to
prove that he made an admission. X is denying now that he owes Y and
amount of money. But actually, during the deposition-taking, X admitted
that he owed Y money. So, counsel will present in evidence the admission,
the deposition of the party, to prove that he made an earlier statement.

Q: Can opposing counsel object to the evidence on the ground that the
presenting counsel did not confront the witness?
A: NO, because this time the purpose is not to discredit the witness
present testimony, but to prove an admission on his part.

This jibes with the rule on deposition. The deposition is not

admissible in evidence, but is admissible merely for the purpose of
impeaching his testimony. The witness has to testify all over again. But for
impeachment purposes, the deposition may be used. Under the rule on
deposition, the deposition of an adverse party can be used for ANY
purpose. Meaning, it may be used for impeachment, or it may be used to
prove an admission made by the party in the past.

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 So, counsel will offer in evidence the witness deposition as evidence
to prove that he already earlier admitted his liability, for example. This does
not require laying the predicate because the purpose here is to prove an
admission; not to prove a prior inconsistency.

Or, another example: Request for Admission. Another mode of

discovery. Counsel sends the witness questions then he admits. Counsel
offers in evidence the answer/reply to the request for admission where he
admitted a fact which was put to question. Counsels purpose here is not
to use it to impeach the witness, but to BIND him to his admission. If this is
the purpose, then laying the predicate need not be followed by the
presenting party.

SECTION 14. Evidence of good character of witness. Evidence

of the good character of a witness is not admissible until such
character has been impeached.

For example: Counsel presents Mr. X as its witness. He starts

proving that X is a good man -- that he is not a lair, etc. Is that allowed?
NO, because counsel is presenting evidence of the good character of a
witness. Under the law, a party can present evidence of the good character
of a witness if the other party has attempted to discredit his character.

Q: How?
A: By presenting evidence that the witness reputation for truth, honesty or
integrity is good. Because if the other party attempted to prove that the
reputation of the witness for truth, honesty or integrity is bad, he is
impeaching the witness under Section 11. In effect, the party is now afraid
that the credibility of its witness will be destroyed. The court might believe
now that he really is a liar. So, counsel now goes through the process of
rehabilitating its witness.

Q: What is meant by rehabilitation of a witness?

A: It is the process of trying to restore the credibility of the witness.

Q: How can the rehabilitation be done?

A: By proving the contrary. That to the contrary, the witness is a good
man; that he has a good character. So, counsel cannot present evidence
of the witness good character unless the other party presents evidence of
his bad character. Do not confuse that with Section 51, Rule 130 --
Character Evidence of Parties in Criminal Cases.

The prosecution cannot present evidence of bad character, unless

the defense presents evidence of the good character of the accused.
Evidence of the good character of the accused comes first; then evidence
of bad character comes in during rebuttal by the prosecution. So, it is the
other way around. The other party must first impeach the character of the
presenting partys witness, before the latter can present evidence of good
character.

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Q: What seems to be the dividing line?
A: In Section 51 of Rule 130, the law talks about the character evidence of
the party itself to the case, whether criminal or civil. Under the present
Section, the law talks about the character evidence of ordinary witnesses.
That is why Section 14 of Rule 132 is also mentioned in Section 51, Rule
130.

RULES: If we are talking about the character of the adverse partys

witness, you apply there Section 11 of rule 132 -- that you can impeach him
by presenting evidence that his reputation for truth, honesty or integrity is
bad. But not by evidence of particular wrongful acts; except, that it may be
shown by examination of the record of the witness that he has been
convicted before for an offense.

Q: What is the rule on evidence to prove the bad character of a witness?

That is found in Section 12. Can a party impeach its own witness?
A: The law says: the unwilling or hostile witness so declared, or the
witness who is adverse party may be impeached by the party presenting
him in all respects as if he had been called by the adverse party. EXCEPT,
by evidence of bad character.

Even if your witness has become hostile, or has misled you into
calling him to the stand, you are not allowed to impeach his credibility by
evidence of bad character.

Q: On the other hand, how about evidence of good character of a witness?

A: The applicable provision is Section 14 of Rule 130, which says:
evidence of the good character of a witness is not admissible, until such
character has been impeached.

So these are the different provisions of the Rules, referring to

character evidence of witnesses.

SECTION 15. Exclusion and separation of witnesses. On any

trial or hearing, the judge may exclude from the court any witness not
at the time under examination, so that he may not hear the testimony
of other witnesses. The judge may also cause witnesses to be kept
separate and to be prevented from conversing with one another until
all shall have been examined.

EXAMPLE: Today is the trial of Xs case. It is his turn to present his

witnesses. He has three witnesses: A, B and C. Counsel for X calls Z as
their first witness. Under this provision, the court may order B and C to
leave the courtroom. They are not allowed to hear the testimony of A. Of
course, after his testimony is given, A may remain in the courtroom.

So, B is called. When B testifies, he never heard the testimony of A.

But C is still out. Afterwards, C is called. They are not supposed to hear

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each others testimonies. QUESTION: Why is it that, as a rule, witnesses
should not be allowed to hear each other? ANSWER: Especially on cross-
examination, when counsel goes into details, he asks the witness questions
on matters to test his credibility, to test the accuracy of his story. So, if B
did not hear A, when B testifies, he will be asked the same questions -- to
find out whether his answer will be the same.

The rule actually is that if the witnesses do not jibe on minor points,
this is harmless. But if they do not concur, or they conflict on material
points, then that is a sign that something is wrong. So, this is one way of
testing the credibility, accuracy, or memory of a witness. By testing their
stories on details without hearing each other. If the stories will really jibe,
then they must be true.

However, the law says that this provision is NOT MANDATORY. The
usual practice is for the adverse party to ask for an order for the exclusion
of a witness. For example:
COUNSEL:
Your Honor, we will present our first witness, A.
OPPOSING COUNSEL:
May we know if there are other witnesses?
COUNSEL:
Yes, there is Mr. B.
OPPOSING COUNSEL:
Your Honor, may we ask that Mr. B be excluded from this court?
JUDGE:
Alright, Mr. B, please step out...
The exclusion is normally initiated by the adverse party.

BAR PROBLEM: When a witness was about to testify, the court ordered
all other succeeding witnesses to step out of the courtroom. Now, B is a
witness, but he did not step out. He just sat there and listened. Later on,
counsel called B. The other party said: No, you violated the order! So,
the other party moved to disqualify B for violating the order of exclusion.
QUESTION: If you are the judge, would you disqualify B from testifying
because he violated Section 14 -- as a matter of fact, he violated an order
of the court?
ANSWER: He is not disqualified because the qualifications of a witness
are very clear. that he can perceive, and perceiving, can make known this
perception to others. Unless he is a minor, incompetent, or insane. The
presence of B in the courtroom, while the other witnesses were testifying
might affect the credibility of his testimony, but this is not sufficient in order
to make inadmissible his testimony.

SECTION 16. When witness may refer to memorandum. A

witness may be allowed to refresh his memory respecting a fact, by
anything written or recorded by himself or under his direction at the
time when the fact occurred, or immediately thereafter, or at any other

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time when the fact was fresh in his memory and he knew that the
same was correctly written or recorded; but in such case the writing
or record must be produced and may be inspected by the adverse
party, who may, if he chooses, cross-examine the witness upon it,
and may read it in evidence. So, also, a witness may testify from
such a writing or record, though he retain no recollection of the
particular facts, if he is able to swear that the writing or record
correctly stated the transaction when made; but such evidence must
be received with caution.

There are two parts to this provision:

PART I: The first sentence.
PART II: The second sentence.

PART I:
Q: When a witness is testifying in court, especially during cross-
examination, is the witness allowed to read his notes while he is being
examined?
A: General rule: NO. In other words, the witness should answer the
questions without reading any thing. Why? How can one test his memory
if he is reading? Precisely, the purpose of the examination is to test the
recollection of a witness. He should not be allowed to read anything. And
he should answer in his own words. That is why leading questions are not
prohibited. Because if a witness is allowed to read in the course of
answering a question, then this is what the lawyer will do: Before the trial,
he will write the questions, write the answers, have two copies, and he
gives the witness the other copy. The following day, when the lawyer
conducts the direct examination, the lawyer will be reading. When the
witness answers, he will also be reading. So, this becomes a reading
session between two people! (The stenographer might just request for a
copy of what they are reading so that he would not need anymore to take
down notes.)

So, how can the recollection of the witness be tested if he is allowed

to read his testimony? This is even worse than a leading question!
Because here, the answer is supplied by the lawyer, and the witness is
merely reading it out. So, in order to make the witness testimony more
credible, the lawyer asks the questions and the witness has to answer in
his own words. This is the general rule.

Suppose the event happened a long time ago, and the witness claims
that he has forgotten. But he admits that on the same day the incident
happened, he wrote about it, for example, in his diary. He says that it is his
habit to write on his diary. So, he will be asked that if he is shown the diary,
would he be able to recall? He says he would try. So the diary is shown to
him, and he admits that it is his diary, his signature is there.
COUNSEL:
When did you write that?
WITNESS:

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 That same day.
Under the law, the memorandum or diary must be written or recorded
by himself or under his direction at the time when the fact occurred, or
immediately thereafter, or at any other time when the fact was fresh in his
memory, and he knew that the same was correctly written or recorded.
COUNSEL:
You read it.
WITNESS:
(reads.)
COUNSEL:
Now, after reading it, do you remember?
WITNESS;
Ah, yes!

So now counsel may ask him about it. This is one instance when the
law allows the witness to read. The law allows him to refer to his notes or
memorandum. If they were not exactly written by him, but under his
direction at that time -- in this case, this is a memorandum.

Another example which has happened for several times: Counsel is

examining a traffic investigator who investigated a traffic accident which
occurred thirteen years ago... That would be very hard to remember.
COUNSEL:
How long have you been an investigator?
WITNESS:
For thirty years now.
COUNSEL:
How many traffic accidents have you investigated?
WITNESS:
Every week, approximately 30. So, around 30,000.
COUNSEL:
So, do you remember a traffic accident in which two vehicles
bumped each other at the corner of Ponciano and Rizal
Streets?

WITNESS:
I cannot remember that anymore because there are so many!
In that particular place alone, I have investigated over 100
cases already. But I will affirm that after every investigation, I
write down everything in my report.
COUNSEL:
So, you must have written down that particular investigation...

Q: Is that allowed?
A: YES. So, the traffic investigation report will be allowed.

Q: What is now the evidence before the court? Is it the memorandum?

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A: The evidence is the witness testimony as he narrated it. The
memorandum was used only as an INSTRUMENT to revive his memory. In
other words, the memorandum is not to be presented in evidence. It is not
really the evidence to prove the fact in issue, but it is the testimony of the
witness. However, it is the right of the other party to inspect that
memorandum who may, if he chooses, cross-examine the witness upon it,
and may read it in evidence.

So, a party has the right to inspect the memorandum, and cross-
examine the witness upon it. For example:

COUNSEL:
Why is it that it seems that your signature here appears
differently from your signature before?

This is allowed. Or, counsel may say: I will read, for the record, your
Honor, what appears here on the memorandum...

This can be done. but the real evidence is not the memorandum but
the testimony of the witness. The portion of this rule is called PRESENT
RECOLLECTION REVIVED. This is based on Wigmores Comments.

PART II:
X does not anymore remember the incident he is being asked to
recall because it happened back twenty-five years ago. But he admits that
it is his habit to write on his diary. He records events that happen to him on
a day. He is confronted now with a very old diary. He admits that he writes
entries every night before going to bed. He is made to read some entries in
the old diary, but he still cannot remember.

In Part I of this rule, after the witness is asked to read the entry, he
remembers. But here in Part II, even after reading, he still does not
remember.
WITNESS:
I am sorry, Sir. I cannot remember anything despite reading
this. My mind is still in a blank.
COUNSEL:
But you would swear that since you admit that you wrote this 25
years ago -- and you admit that you write entries immediately
after an incident, when the fact was still fresh in your memory,
so what can you say about this diary that you can remember?
WITNESS:
That the events indicated therein must have happened.
Because why would I write about them if they really did not
happen? If I wrote them 25 years ago, then the events must
really have happened as written there. But I am sorry; right
now, I have no recollection of them.
(In that case, the lawyer would say...)

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 COUNSEL:
Your Honor, we offer in evidence the diary to prove the fact in
issue.

Q: This time, what is the evidence to prove the fact of the event or
transaction?
A: It is the written note or document itself. This time the memorandum is
not merely a vehicle to trigger the witness memory, but is the very
evidence to prove the fact in issue. The law says: But such evidence must
be received with caution. Because, how can counsel effectively cross-
examine the witness if he maintains that he cannot recall? Since the
witness has no more recollection, what he wrote down becomes the
evidence. Admissible, but it must be received with caution.

This is part of the rule which is called as the rule on PAST

RECOLLECTION RECORDED.

Q: Distinguish present recollection revived from past recollection

recorded.
A: In present recollection revived, a witness is allowed to read a
memorandum, and if his memory is triggered, the evidence before the court
is his testimony. If he cannot recall, there is no choice but to offer in
evidence the memorandum.

Q: Can the court participate or intervene in the trial? Some judges just
listen; others interrupt once in a while. And there are other judges who talk
so much that around 80% of the questioning is done by him. So,
practically, it is now the court doing the questioning. Or, for example in the
cross-examination, the witness was not properly impeached. But when the
judge began the questioning, his testimony was destroyed.

So, practically, there are three possibilities:

(a) the judge will just keep silent;
(b) the judge will ask questions once in a while;
(c) the judge takes over the questioning.

So, what is the proper attitude of judges?

A: The Supreme Court laid down the rules in many cases. The judge
should participate, but not to the extent of acting as counsel. there are
many cases in which the Supreme Court ruled for the judges participations:

VENTURA vs. YATCO

105 Phil. 287

While judges should as much as possible refrain from

showing partiality to one party and hostility to another, it does
not mean that a trial judge should keep mum throughout the
trial, and allow parties to ask the questions that they desire, on
issues which they think are the important issues, when the

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former are improper and the latter, immaterial. If trials are to be
expected, judges must take a leading part therein, by directing
counsel to submit the evidence on the facts in dispute, by
asking clarifying questions, and by showing an interest in a fast
and fair trial. Judges are not merely referees like those of a
boxing bout, only to watch and decide the results of a game.
They should have as much interest as counsel in the orderly
and expeditious presentation of evidence, calling attention of
counsel to points at issue that are overlooked, directing them to
ask question that would elicit the facts on the issue involved,
clarifying ambiguous remarks by witnesses, etc. Unless they
take an active part in trials in the above form and manner, and
allow counsel to ask questions whether pertinent or impertinent,
the speedy administration of justice which is the aim of the
Government and of the people cannot be attained.

PEOPLE vs. IBASAN, JR.

129 SCRA 695

A judge should not allow personal prejudices to influence

his refusal to defenses request to call additional witnesses.
The emotional outburst of the presiding judge is rather
unfortunate. Even if a judge sincerely believes that a counsel is
deliberately exasperating or inciting him through the
introduction of witnesses publicly known to be personally
anathema to the judge and not because their testimony may
prove or disprove matters in issue, the judge should avoid any
unseemingly display of shortness of temper or other
unbecoming behavior. A judge should not allow himself to be
led by counsel or witnesses into showing that he can be moved
by pride, prejudice, passion, or pettiness in the performance of
his official functions (Austria vs. Masaquesl, 20 SCRA 1247). It
is precisely during such trying moments that a judge should be
studiously careful about his conduct and in the measures he
takes to uphold the courts authority or dignity. However, the
actuations of the trial judge showing some impatience against
the appellants did not preclude them from adequately
presenting their case. The court has examined the records
carefully and it finds that the appealed decision was not based
on any matter improperly elicited by the trial judge during his
examination of the witnesses, nor has it been affected by the
quoted remarks. Appellants were given all the opportunity to
present their evidence.

Judges undue interference, impatience or participation in

the examination of witnesses or a severe attitude on the courts
part towards the witnesses, especially those who are excited or
terrified by the unusual circumstances of a trial MAY TEND to
prevent the proper presentation of the cause or ascertainment

262
of the truth in respect thereto (Pp. vs. Catindihan, 97 SCRA
1968). Thus, a judge should exercise more care and patience
in conducting a case, his right to intervene to be used sparingly,
if at all. He must bear in mind that witnesses may easily be
intimidated by an overly inquisitive judge considering the
unusual circumstances which they find themselves in,
especially when testifying in criminal cases.

PEOPLE vs. HATTON

210 SCRA 1

We read the transcript of the stenographic notes and

indeed, it is true that the judge was overzealous in controlling
the conduct of the hearing. He asked more questions than did
counsel of the accused or the fiscal. It is conceded, though,
that the trial judge did not manifest any bias in favor of the
prosecution in asking the witnesses for the prosecution nor any
hostility or malice against the defense witnesses. We note also
that the questions asked by the court were clarificatory
questions aimed to paint a clearer picture of what was testified
to by the witnesses.

It is difficult to win in court when ones opposing counsel

is the one holding the gavel and wearing the judicial robe.
Counsel must object when the judge is taking over the
questioning, especially when the questions are irrelevant. Of
course, the judge will not rule in favor of the objecting party, but
at least the latters objection is placed on record. Upon appeal,
such matter may be tackled by the appellate court. Remember
that failure to object constitutes waiver. So, when the judge
seems to be impartial, counsel must object.

TABUENA vs. SANDIGANBAYAN

268 SCRA 332

This Court has acknowledged the right of a trial judge to

question witnesses with a view to satisfying his mind upon any
material point which presents itself during the trial of a case
over which he presides. But not only should his examination be
limited to asking clarificatory questions. The right should be
sparingly and judiciously used; for the rule is that the court
should stay out of it as much as possible, neither interfering nor
intervening in the conduct of the trial. Here, these limitations
were not observed. Hardly in fact one avoid the impression that
the Sandiganbayan had allied itself with, or to be more precise,
had taken the cudgels for the prosecution in proving the case
against Tabuena and Peralta when the Justices cross-examined

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 the witnesses, their cross-examinations supplementing those
made by Prosecutor Viernes and far exceeding the latters
questions in length. The cold neutrality of an impartial judge
requirement of due process was certainly denied Tabuena and
Peralta when the court, with its overzealousness, assumed the
dual role of magistrate and advocate.

In this connection, the observation made in the dissenting

opinion to the effect that the majority of this Court was unduly
disturbed with the number of court questions alone, is quite
inaccurate. A substantial portion of the TSN was incorporated
in the majority opinion not to focus on number alone, but more
importantly to show that the court questioned were in the
interest of the prosecution and which thus depart from the
common standard of fairness and impartiality.-

SECTION 17. When part of transaction, writing or record given

in evidence, the remainder admissible. When part of an act,
declaration, conversation, writing or record is given in evidence
by one party, the whole of the same subject may be inquired into
by the other and when a detached act, declaration,
conversation, writing or record is given in evidence, any other
act, declaration, conversation, writing or record necessary to its
understanding may also be given in evidence.

When part of a transaction, writing or record is given in

evidence, the remainder is admissible. For example, there was a
conversation between two parties. A witness testifies about such
subject. There are ten statements. Statements numbers 1 - 5 are
favorable to the plaintiff. But Statements numbers 6 - 10 are not
favorable to the plaintiff. As a lawyer, why would plaintiffs counsel
present the entire conversation when the entire matter will not help
his clients case? So, he will offer in evidence only Statements
numbers 1 - 5.

Here comes the other party. It is the right of the other party to
bring out the other half of the conversation. If a party presents a
detached part of the conversation or story, the other party has the
right to present the other parts to complete the picture.

The same rule goes for documents. If only Pages 1- 3 favor the
plaintiff, but 4 and 5 do not, plaintiffs counsel will not present the
latter. But this does not prevent the other party from presenting the
other parts. If part of an act, declaration, conversation, writing or
record is given in evidence by one party, the whole of the same
subject may be inquired into by the other party. It is a partys right to
inquire. Somehow, this is one of the purposes of a direct
examination. The direct examiner may cover only some points such
as, for example, he will claim that the witness never mentioned in the

264
direct examination that they have additional companion. The witness
probably did not mention the additional companion because he was
never asked by the direct examiner about it. Now, the cross-
examination is the opportunity for the adverse party to ask about it. It
is the right of the adverse party to ask the other portions of the story,
in order to get the entire picture. This is what the law says.

Q: But why is it that a lawyer is allowed to not present the entire fact
of a matter?
A: Lawyers are not allowed to lie. They only arrange the truth in
order for it to favor his client. Why should he arrange the truth in
such a way that his client is disabled? He will definitely refrain from
asking questions that are against the interests of his client. The
lawyer will not ask his client to falsify the truth. He will just not touch
on some matters.

Q: Why does the lawyer not present or touch on certain matters?

A: it is the lawyers obligation to help the cause of his client. That is
what is called ETHICS. If the other party fails to present the other
half of the story, that is their problem. The law would have allowed
them to do so. The important principle to remember is that when a
lawyer arranges the truth, he does not commit malpractice. The court
may even clear doubts. The lawyer is under no obligation to present
everything.

Another example: There are six witnesses in a case. The first

three are favorable to the defendant, for example. Then the defense
will obviously use only the three witnesses. If Witness numbers 4 - 6
will not help the defendants cause, why should the defendant present
them? AS to Witnesses numbers 4 -6, whom the defense will not be
presenting as their witnesses, it is up to the prosecution to look for
them. But definitely, the defense cannot prevent them from testifying.
In the first place, nobody knows who is telling the truth.

In the process of cross-examination where the truth of the

testimonies is tested, it is the presenting partys burden to assert the
truth. It is also the burden of the other side to prove the truth of their
own testimonies.

That is really what happens in a trial. It is the duty of the lawyer

to see to it in court that his perception is correct. It is the duty of the
judge to see through whose perception is correct. That is the role of
a neutral party. This provision is but fair. For example:
PROSECUTOR:
Did you kill the man?
ACCUSED:
Yes.
PROSECUTOR:

265
 Why did you kill him?
ACCUSED:
Because he tried to kill me.

The prosecutor should not have asked the second question. It is the
duty of the other party to bring that out.

SECTION 18. Right to inspect writing shown to witness.

Whenever a writing is shown to a witness, it may be inspected by the
adverse party.

Q: Why is it that a document presented needs to be shown?

A: For identification and authentication. Each time a document is
presented, the other party has the right to inspect it. They
inspect it, look for defects in the instrument, or in order for them
to prepare for cross-examination. for example, after inspection.

With that, the subject on presentation of a witness is closed.

Q: First of all, what do we mean by documentary evidence?

A: Section 2 of Rule 130 defines documentary evidence as a set
of writings or any material containing letters, words, numbers,
figures, symbols or other modes of written expression offered as
proof of their contents. Therefore, this includes agreements,
contracts, etc.

B. AUTHENTICATION AND PROOF OF DOCUMENTS

SECTION 19. Classes of documents. For the purpose of

their presentation in evidence, documents are either
public or private.
Public documents are:
(a) The written official acts, or records of the official acts
of the sovereign authority, official bodies and tribunals,
and public officers, whether of the Philippines, or of a
foreign country;
(b) Documents acknowledged before a notary public
except last wills and testaments; and,
(c)Public records, kept in the Philippines, of private
documents required by law to be entered therein.
All other writings are private.

For purposes of the law on evidence, there are only two

types of documents: public; and private. Other laws may give
other types of documents, such as commercial or private.

Q: What are the public documents?

a) the written official acts;

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 b) documents acknowledged and notarized, except last wills
and testaments;
c) public records or private documents required by law to be
entered therein.

So, when a contract is notarized, or has been acknowledged

before the law, it becomes a public document. A contract without
an acknowledgment is a private document. EXCEPTION: Last
wills and testaments. Even if in a will there is notarization, or an
acknowledgment, it is still private. It is not considered as a public
document for this simple reason: If the will becomes a public
document, then everybody can get a copy of it. But a will is
something personal. Naturally, a person would not just want to
show it to anybody. But once the person dies, this becomes an
exception.

As to the third type of a public document, which is required

by law to be entered as a public document. Meaning, it is a
private record, but the law requires it to be entered into a public
record. So, it becomes now a public record. The best example as
to the third type of public document is the income tax return.
How does one prepare an income tax return? It is usually
prepared at home or in the office. So, that is a private document.
Then, it is filed with the BIR. From the moment it is filed, it
becomes now a public document.

Another example: When one wishes to put up a business, he

accomplishes a certain form. After it is filled out, it must be
submitted. It becomes now a public record.

Birth certificate. The hospital prepares the record of a

persons birth. That is a private document. But the record must
be filed with the civil registrar. It becomes now a public record.

Q: What are private documents?

A: Documents not mentioned in paragraphs (a), (b) and (c) are
private documents. There are so many. For example, a check
issued to somebody is a private document. A letter is private. A
contract signed without it being notarized is private.

Q: What is the importance of distinguishing a public document

from a private document? How does this affect the rules on the
admissibility of evidence?
A: The reason is found in Section 20.

SECTION 20. Proof of private document. Before any

document offered as authentic is received in evidence, its
due execution and authenticity must be proved either:

267
(a) By anyone who saw the document executed or
written; or,
(b) By evidence of the genuineness of the signature or
handwriting of the maker.
Any other private document need only be identified
as that which it is claimed to be.

In other words, the distinction between a public and private

document is important in order to determine the necessity for
AUTHENTICATION. A private document which has not been
authenticated is not admissible in evidence.

A public document need not be authenticated. For example,

X offers in evidence an official communication from the City
Mayor of Davao. X needs to authenticate the signature of Mayor
de Guzman. If he believes it to be forged, then he must prove it.
It is presumed, though, by law to be genuine.

Suppose a document is private, like a promissory note. It is

offered in evidence:
DEFENSE:
Mr. Plaintiff, how come you know the defendant?
PLAINTIFF:
He borrowed money from me.
DEFENSE:
Was there a promissory note executed?
PLAINTIFF:
Yes.
DEFENSE:
I am showing the plaintiff this promissory note. Whose
signature is this on the promissory note?
PLAINTIFF:
It is that of the defendant.
DEFENSE:
Why do you know that?
PLAINTIFF:
He signed it in my presence.

If defense counsel offers in evidence the promissory note not

duly authenticated, it is not admissible in evidence. Unless, of
course, if the signature has already been admitted as genuine by
the defendant beforehand.

In Civil Procedure, for example, the plaintiff attaches an

actionable document. If the same is not denied by the defendant
under oath, it is deemed admitted. But if the defendant denies

268
the authenticity of the signature, then there is a need for it to be
authenticated in order to be admissible.

When one talks of authenticity, according to Wigmore, it

pertains to the genuineness of a document, if the purpose is to
prove its genuineness. But if the purpose is to prove that the
writing is forgery, then it must be proved as a forgery. But that is
still authentication. Because the common perception is that
authentication is only for the purpose of proving that a document
is genuine.

The principle to remember. A private document cannot be

admitted in evidence if it has not been duly authenticated. But if
the document is public, it may be received in evidence without
authentication.

Q: How is a private document authenticated?

(1) by anyone who saw the signature as it was made;
(2) by evidence of the genuineness of the signature or
handwriting of the maker.

Meaning, by other evidence or by other modes.

Q: What is the meaning of the last sentence? (x x x any other

private document need only be identified as that which it is
claimed to be.)
A: This sentence was inserted only in the 89 Rules. This means
that the document is SELF-AUTHENTICATING. By looking at it, it is
already authenticated. The best example is the next section,
which is a self-authenticating private document.

SECTION 21. When evidence of authenticity of private

document not necessary. Where a private document is
more than thirty years old, is produced from a custody in
which it would naturally be found if genuine, and is
unblemished by any alterations or circumstances of
suspicion, no other evidence of its authenticity need be
given.

This provision talks about an ancient document. This kind of

a document is self-authenticating because, in the first place, one
might not anymore find anybody who was present when the
document was signed. For example, if the document was signed
in 1895, all the witnesses are sure to be dead by now. One who
wishes to present as evidence such document needs to prove it.
But since the document is already more than 100 years old, no
proof is needed. If it appears to be signed by Juan de la Cruz, the
law says it is the signature of Juan de la Cruz.

269
 An ancient document is similar to one of the exceptions to
the Hearsay Rule --Common Reputation, reputations existing more
than 30 years old.

There was a case which happened in Digos years ago, where

a private document was produced and written, supposedly by two
people. The document was dated in 1950. The paper used was
old. But the words were written in ballpen ink. Was the ballpen
invented already in 1950? So, in this case, there was a
circumstance for suspicion.

If the document appears to have erasures or alterations --

these are what are called blemishes. These are matters which
would incite suspicion that there was an attempt to show that the
document is an ancient document, when actually it was prepared
only recently. Like, for example, Y will present a document dated
1930, typewritten. Surely there was no typewriter yet in 1930!
Or the paper used is old, but when you look at the prints they
were done using an electronic typewriter or computer! Clearly,
there is something wrong here.

People can easily determine whether or not a document is

ancient -- the paper is already brownish in color, the characters or
prints are square, the ink has scattered and somehow dried up,
and even the breadth of the ink is already blurred. So, this is an
exception.

The rule: A private document must be properly authenticated,

but the rule on authentication is not necessary when it comes to
private document classified as ancient.

Q: What are the requisites in order for a document to be

considered as ancient?
a) that the document is more than 30 years old;
b) that it was produced in the custody where it would naturally
be found if genuine;
c) that it is unblemished by any alteration or suspicion of
alterations ( that there are no circumstances that will arouse
the suspicion that it has been tampered with).

Wigmore actually gives another kind of a document which is

self-authenticating.
AUTHENTICATION BY CONTENTS. If a document is known only to
a particular person and a writing appears to be making express
reference to that fact, the presumption is that the writing is the
genuine writing of that person. The best example for this is a
REPLY LETTER. For example, X writes a letter to his friend, Y in

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 Manila. There is only one copy of such letter. After a few
weeks, X receives a letter purportedly written by Y. The
presumption is that Y received the earlier letter which X sent
him. Meaning, if X wrote only one letter to Y, and here comes
now a letter making reference to that letter, that means that
the letter is genuine. Even if X is not familiar with the
handwriting of Y, it is presumed to be genuine.

Q: When may a private document be admissible without

authentication?
(a) when the other party admits the due execution of the
document. This is based on Civil Procedure. When the
genuineness of a document has already been admitted by the
other party, there is no need for authentication. For example,
actionable documents. If one wishes to deny their
authenticity, they must do it under oath, otherwise, they are
deemed admitted.

(b) request for admission, under Rule 26. A party requests the
other party to admit certain facts, answer certain questions,
interrogatories, etc. The party must reply within 10 days... And
what is admitted need not be proved anymore.

(c) when the private document is immaterial or irrelevant to the

issue or issues in the case.

SECTION 22. How genuineness of handwriting proved.

The handwriting of a person may be proved by any
witness who believes it to be the handwriting of such
person because he has seen the person write, or has seen
writing purporting to be his upon which the witness has
acted or been charged, and has thus acquired knowledge
of the handwriting of such person. Evidence respecting
the handwriting may also be given by a comparison, made
by a witness or the court, with writings admitted or
treated as genuine by the party against whom evidence is
offered, or proved to be genuine to the satisfaction of the
judge.

Q: How does one prove that a particular handwriting is the

handwriting of a person?
(a) by a witness who has seen the person write;
(b) by one who is familiar with the handwriting of that
person; or,
(c) by comparison made by a witness or the court with a
genuine handwriting of the person.

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Example of the first mode: Proof of authentication in a document
--
COUNSEL:
Whose signature is this appearing on the document?
WITNESS:
That is the signature of Mr. X.
COUNSEL:
How did you know that?
WITNESS:
I was present when that was written.

In a contract, there are witnesses. The purpose there is for

authentication of the contract later on.

Example of the second mode: The witness is not present;

however, he can identify the signature or handwriting of a person
because he is familiar with it --

COUNSEL:
Mr. Witness, I am showing to you a letter. Whose
signature appears here?
WITNESS:
That is my boss signature.
COUNSEL:
How did you know that?
WITNESS:
I have been his secretary for the past twenty-five years.

Q: Should that be allowed? But the other party may object, and
contend that the witness is not an expert.
A: The testimony should be allowed. As to the objection, recall
Rule 130, Sec. 50: The opinion of a witness on a matter requiring
special knowledge, skill, experience or training which he is shown
to possess, may be received in evidence. So, a person need not
be an expert in order to give an opinion on the handwriting of a
person. Familiarity with the handwriting of such person is
enough.

Example of the third mode: By comparison with a genuine

handwriting of a person. Meaning, the witness is presented with
the signature which he is supposed to identify. And counsel or the
court will compare this signature with another signature of the
same person found in another document -- and which everybody
admits to be such persons signature. The law does not require
that an expert do this.

That was the comment of the Supreme Court in the case of

Alcos vs. IAC (162 SCRA 823). The question being settled here

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was: whether or not the disputed signature was the authentic
signature of somebody. When the court examined the signature
by comparison, the court concluded that it was. The trouble here
was that an expert was hired by the opposing party, who opined
that the signature was false. So, the court was confronted with
the problem as to which view to believe.

The Supreme Court said that the court should stick to what it
believes. The authenticity of signatures in questioned documents
has frequently been the subject of proffered expert testimony.
Such issue, however, is not a highly-technical issue in the same
sense that questions concerning, e.g., quantum physics or
topology or molecular biology, would constitute matters of a
highly technical nature. The opinion of a handwriting expert on
the genuineness of a questioned signature is certainly much less
compelling upon a judge than an opinion rendered by a specialist
on a highly technical issue. The signatures on a questioned
document can be sighted by a judge who can and should exercise
independent judgment on the issue of authenticity of signatures.

According to Chief Justice Moran in his standard treatise, the

test of genuineness ought to be the resemblance, not formation
of the letters in some other specimen or specimens, but to the
general character of writing, which is impressed on it as the
involuntary and unconscious result of constitution, habit, or other
permanent course, and is, therefore, itself permanent.

SECTION 23. Public documents as evidence. Documents

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

A public document need not be authenticated. There is also

a presumption that what a public officer has written in the
document is true. This must be correlated with Sec. 44 of Rule
130, Entries in official records made in the performance of his
duty by a public officer of the Philippines, or by a person in the
performance of a duty especially enjoined by law, are prima facie
evidence of the facts stated therein. This provision is one of the
exceptions to the Hearsay Rule.

SECTION 24. Proof of official record. The record of

public document referred to in paragraph (a) of Section
19, when admissible for any purpose, may be evidenced
by an official publication thereof or by a copy attested by

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the officer having the legal custody of the record, or by
his deputy, and accompanied, if the record is not kept in
the Philippines, with a certificate that such officer has the
custody. If the office in which the record is kept is in a
foreign country, the certificate may be made by a
secretary of the embassy or legation, consul general,
consul, vice consul, or consular agent or by any officer in
the foreign service of the Philippines stationed in the
foreign country in which the record is kept, and
authenticated by the seal of his office.

Q: What are the records referred to in this provision?

A: The written official acts of persons in authority, or the records
of official tribunals.

Q: How may they be proved?

(a) through official publication in the Official Gazette, or by
publication in a public newspaper;
(b) by getting an official true copy of the document from the
custodian;
(c) if the document was executed abroad, it must be
authenticated by an official of the embassy or consulate.

For example, a document was notarized in California, USA; it

is a public document. But if the same document is offered in
evidence in the Philippines, it must be authenticated by an official
of the Philippine embassy there in California. It must be
guaranteed as authentic by an official in the embassy, or
notarized or authenticated by the consul.

SECTION 25. What attestation of copy must state.

Whenever a copy of a document or record is attested for
the purpose of evidence, the attestation must state, in
substance, that the copy is a correct copy of the original,
or a specific part thereof, as the case may be. The
attestation must be under the official seal of the attesting
officer, if there be any, or if he be the clerk of a court
having a seal, under the seal of such court.
Correlate this with Sec. 3 of Rule 130: When the subject of
inquiry is the contents of a document, no evidence shall be
admissible other than the original document itself, except in the
following cases: x x x (d) When the original is a public record in
the custody of a public officer or is recorded in a public office.

The original is not needed, precisely, because this is an

exception to the Best Evidence Rule. The certified true copy will
do. Sec. 7 of Rule 130: When the original of a document is in the
custody of a public officer or is recorded in a public office, its

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contents may be proved by a certified copy issued by the public
officer in custody thereof.

SECTION 26. Irremovability of public record. Any public

record, an official copy of which is admissible in evidence,
must not be removed from the office in which it is kept,
except upon order of a court where the inspection of the
record is essential to the just determination of a pending
case.

This is another reason why certified true copies of public

documents are sufficient evidence without violating the Rules.
Under the law, a public document should not be removed from
the custody of the public officer. A public document cannot be
taken outside of the court premises. The exception is: x x x
upon order of a court where the inspection of the record is
essential to the just determination of a pending case. Meaning,
here in the exception, there is no choice but to see the original.

EXAMPLE: The document to be offered in evidence is a deed of

sale executed in 1910. It is in the custody of the Register of
Deeds. But the paper has already become so brittle. It was not
clear in photocopy, either. Therefore, in this case, the court had
to see the original.

SECTION 27. Public record of a private document. An

authorized public record of a private document may be
proved by the original record, or by a copy thereof,
attested by the legal custodian of the record, with an
appropriate certificate that such officer has the custody.

This refers to public documents mentioned in Section 19(c)

of this Rule: x x x public records, kept in the Philippines, of
private documents required by law to be entered therein.

EXAMPLE: Birth certificate or Income Tax Return. If one wishes to

prove that he was born on this particular date, or he wishes to
prove that he is a citizen of the Philippines, he will present as
evidence his birth certificate.

Q: What shall he present in court?

A: He may present the duplicate original copy of his birth
certificate which was given to his parents, if this is still available.
But if this cannot be done, another possibility is that of presenting
a copy of such birth certificate attested to by the legal custodian
of the record, with an appropriate certification that such officer
has the custody of the original. So, this may be secured from the
Office of the Civil Registrar. Ask for a certified true copy and for

275
the certificate. This is allowed under Rule 130, Sec. 3. This is an
exception to the Best Evidence Rule.

SECTION 28. Proof of lack of record. A written

statement signed by an officer having the custody of an
official record or by his deputy that after diligent search
no record or entry of a specified tenor is found to exist in
the records of his office, accompanied by a certificate as
above provided, is admissible as evidence that the
records of his office contain no such record or entry.

EXAMPLE: X wishes to take the Bar Examinations. One of the

requirements is a copy of his birth certificate. He goes to the
Office of the Civil Registrar to ask for a certified true copy. But the
Civil Registrar says that they no longer have the records because
at a certain period, the office with all its records got burned. So,
he asks for a certification that he has no record in such office
because of a fire. The certification is called Certification of Lack
of Record.

According to the Supreme Court: We will now apply the

substitute requirement. You get affidavits of two disinterested
persons who will state under oath and attest to the fact and
circumstances of your birth. That they know you very well -- since
your birth and childhood, who your parents are, the citizenship of
your parents, etc. You may avail of this only if you have a
Certification of Lack of Record.
SECTION 29. How judicial record impeached. Any official
record may be impeached by evidence of: (a) want of
jurisdiction in the court or judicial officer; (b) collusion
between parties, or (c) fraud in the party offering the
record, in respect to the proceedings.

The best example here is a court decision.

Q: How does one impeach a judicial record, or attack a judicial

record or judgment?
A: By proving:
a) lack of jurisdiction (this may be raised at anytime because
the judgment is void);
b) collusion between parties;
c) fraud in the party offering the record (extrinsic fraud. This
is why there is an action for annulment of judgment. Fraud
is a good ground for impeaching or attacking a judicial
record, which includes judgment).

Q: Compare this provision with Sec. 50 of Rule 39:

Recall:

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 Sec. 50, Rule 39. The effect of a judgment of a tribunal of
a foreign country, having jurisdiction to pronounce the judgment
is as follows:
(1) In case of a judgment upon a specific thing, the judgment is
conclusive upon the title to the thing;
(2) In case of a judgment against a person, the judgment is
presumptive evidence of a right as between the parties and
their successors-in-interest by a subsequent title; but the
judgment may be repelled by evidence of want of
jurisdiction, want of notice to the party, collusion, fraud, or
clear mistake of law or fact.

Sec. 50 of Rule 39 is about whether or not a judgment

rendered by a foreign court can be enforced or should be
respected in the Philippines. Yes, it can be enforced in the
Philippines; except, that if it will show that the foreign judgment is
void because of lack of jurisdiction, fraud, etc. This rule is the
manner of impeaching a FOREIGN JUDGMENT. Section 29 of Rule
132 is the manner of impeaching a DOMESTIC JUDGMENT. They
have very close similarities.

SECTION 30. Proof of notarial documents. Every

instrument duly acknowledged or proved and certified as
provided by law, may be presented in evidence without
further proof, the certificate or acknowledgment being
prima facie evidence of the execution of the instrument or
document involved.

Obviously, this refers to Section 19, paragraph (b):

Documents acknowledged before a notary public except last wills
and testaments x x x When a contract is signed by two persons,
that is a private document. But once that is acknowledged before
a notary public, that is converted into a public document.

The advantage of a contract which contains a notarial

acknowledgment is, according to Section 30, is that it may be
presented in evidence without further proof. Meaning, there is no
need to authenticate it just like any other public document,
because of the notarial acknowledgment. So, one may see the
importance of the responsibility or the duty of a notary public.
Notaries public are careless when they notarize contracts without
even seeing or requiring the parties to be present, and it turns out
that the documents are fake. That can be done at times; the law
may be violated at times, if the lawyer is sure that such is really
the signature of the party. The lawyer knows the party, and is
familiar with the latters signature. The party cannot go to the

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lawyers office because he is too busy. the lawyer may be liable
for falsification of a public document if the document turns out to
be a fake, because he notarized the same even without the party
present. A lawyer can even be disbarred for that, especially if he
is found to be in bad faith.

The advantage of notarization of a document is explained by

the Supreme Court in the case of Dinoy vs. Rosal (235 SCRA 419):
Notarization of a private document converts such document into
a public one and renders it admissible in court without further
proof of its authenticity; courts, administrative agencies and the
public at large must be able to rely upon the acknowledgment
executed by a notary public and appended to a private
document.

SECTION 31. Alterations in document, how to explain.

The party producing a document as genuine which has
been altered and appears to have been altered after its
execution, in a part material to the question in dispute,
must account for the alteration. He may show that the
alteration was made by another, without his concurrence,
or was made with the consent of the parties affected by it,
or was otherwise properly or innocently made, or that the
alteration did not change the meaning or language of the
instrument. If he fails to do that, the document shall not
be admissible in evidence.

If one offers as exhibit a document which contains

alterations, erasures, insertions, changes, handwritten words,
etc... the general rule is: Before the document can be admitted in
evidence by the party offering it, it must give a credible
explanation as to why there are such alterations Because,
otherwise, these alterations are indications of falsification, that
there have been changes made. That is why, the law gives the
offering party the burden of explaining the nature of said
alterations. The law says that if one fails to do that, the
document shall not be admissible in evidence for being tampered
with.

Q: What are the possible explanations?

(1) he may show that the alteration was made by another without
his concurrence;
(2) that the alteration was made with the consent of the parties
affected by it.
Normally, when the parties to a contract decide at the
last minute to change the stipulation, by erasing it, for
example, to show that there was mutual consent, they will
authenticate the changes made. Like, they affix their

278
 signatures, or initial the alterations, as in a check. If a check
contains some erasures, the bank requires the drawer to
authenticate the erasure by affixing thereon his signature --
to indicate that this was made with his concurrence.

(3) that the alteration was properly or innocently made (there was
no bad faith; that it was an innocent alteration);
(4) that the alteration did not change the meaning or language of
the instrument (meaning, the alteration is harmless and did
not destroy the integrity of the document)

SECTION 32. Seal. There shall be no difference

between sealed and unsealed private documents insofar
as their admissibility as evidence is concerned.

Normally, public documents are sealed. Examples: Seal of a

public officer, or a document notarized by a notary public. The
document then becomes a public document. But whether a
private document is sealed or unsealed, there is no effect. Its
admissibility is the same. Documents, whether sealed or
unsealed, are admissible. Sealing a document is merely
according to a persons custom or wish. The law does not require
it.

SECTION 33. Documentary evidence in an unofficial

language. Documents written in an unofficial language
shall not be admitted as evidence, unless accompanied
with a translation into English or Filipino. To avoid
interruption of proceedings, parties or their attorneys are
directed to have such translation prepared before trial.

Under Article IV, Section 7 of the 1987 Constitution: For

purposes of communication and instruction, the official language
of the Philippines are Filipino and, until otherwise provided by law,
English.

Q: Is it illegal, therefore, to enter into a contract in the Visayan

dialect?
A: Of course, not! In fact it is more proper.

Q: Can this be offered in evidence?

A: Of course! But the requirement is this: If one offers this in
evidence, there has to be translation into English or Filipino, which
normally the law says, must be prepared in advance. When this is
offered in evidence, this must be offered together with the
translation because counsel of the other party might object to the
translation -- i.e., the translation is inaccurate.
Q: Why should there be a translation?

279
A: For the reason that the trial judge might not understand the
dialect in which the testimony is said. He must understand what
the contract means or what a witness is trying to say, in order for
him to consider these matters in arriving at a decision.

Q: Suppose the trial judge understands the dialect, is a

translation still necessary?
A: YES, for the purpose of the appeal. The trial court judge may
not need the translation because he understands the dialect. So,
he will merely have to disregard this part when he reads the
stenographic notes. But the case may not end in the trial court
level. There may be an appeal. In case of an appeal, whether to
the CA or to the Supreme Court, all these documents are
elevated. The justices of the CA and the SC are naturally not
expected to know or understand all of the dialects. So, if there is
no translation, it would be very difficult for them to decide. For all
we know, even if the justice assigned to the case hires somebody
to translate it for him from the dialect, the translation of such
person may not be accurate. Or, they may not agree on the
translation.

So, this is more for the benefit of the people in the trial and
appellate courts who may not understand the dialect. There are
some judges who are merely assigned to places, the dialect of
which they do not know. The translation must begin on the trial
court level. It must be offered by the party producing it, and the
other party will admit it as genuine.

Q: Does Filipino language mean Tagalog?

A: For the moment, Filipino has been equated to Tagalog. But
Filipino language is supposed to be a further developing.
Filipino is supposed to be a conglomeration of many words not
only Tagalog. So, Tagalog is considered as a primitive dialect by
linguists around the world, and they are ashamed if they know
such dialect. Filipino is much to the level of the Cebuano
language. Take note that Cebuano, as contra-distinguished from
other Visayan dialects, is not a dialect but a language.

C. OFFER AND OBJECTION

SECTION 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.

EXAMPLE:

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 COUNSEL:
I will show to the witness a photocopy of the contract.
Mr. Witness, I am showing to you this contract, a
photocopy. Is this the contract you were referring to?
WITNESS:
Yes.
COUNSEL:
Your Honor, we ask that this document be marked as
Exhibit A.
OPPOSING COUNSEL:
Objection, your Honor! That is violative of the Best
Evidence Rule. What they are using is merely a
photocopy, when there is no showing that the original
has been lost or destroyed.

Q: Is the objection here proper?

A: Actually, the objection is premature. There has been no formal
offer yet. Counsel was merely identifying the document.
Opposing counsel should not have objected yet. By expressing
his ground for his objection (which was tenable) when the party
was not yet formally offering the evidence, opposing counsel gave
it the opportunity to cure the defect (violation of the Best
Evidence Rule).

Counsel can answer the objecting party in this manner:

Why are you objecting? I am not yet offering; I am merely
marking the evidence. And if the offering party did not realize
his mistake, the premature objection gave him the chance to
realize that now.

No evidence shall be considered unless it has been formally

offered. The purpose for which the evidence is offered must be
specified. It is not for the court to guess what is reason behind a
particular piece of evidence.
COUNSEL:
We are offering in evidence this Deed of Sale.

This is not enough. Counsel must state the purpose of the offer.

COUNSEL:
We are offering this Deed of Sale to prove that the
vendor is married to his wife.

Of course, not! Then if that is the purpose, it should have been

the marriage contract which should be offered. The ruling of the
court will be based only on what the offeror has said. So, in this
case, obviously the court will deem the evidence as irrelevant.

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Thus, the court will reject it for the purpose of proving the fact of
the vendors marriage.

COUNSEL:
We are offering this Deed of Sale to prove a sale.

This could be a valid offer. The court will only be guided by what
the offeror will say about the evidence. That is why the principle
of multiple admissibility is important. Under this principle, a piece
of evidence is offered for two or more purposes, such that if the
court does not admit the same for the first purpose, it may still be
admitted for the second, third or fourth purpose. But the court
can rule on multiple admissibility only if the purposes are stated.
Otherwise, if the party does not state the purpose(s), then there is
no way for the court to know what the evidence intended to
prove.

SECTION 35. When to make offer. As regards the

testimony of a witness, the offer must be made at the
time the witness is called to testify.
Documentary and object evidence shall be offered
after the presentation of a partys testimonial evidence.
Such offer shall be done orally unless allowed by the court
to be done in writing.

The law distinguishes evidence that is oral testimony from

object or documentary evidence. If the evidence is the oral
testimony of a witness, the law says: the offer must be made at
the time the witness is called to testify.

Q: So, how is the offer of oral testimony done here?

A: Illustration:
COUNSEL:
Your Honor, I am formally offering in evidence the
testimony of B, our witness for the following purposes...

So, when B testifies, the court as well as the opposing

counsel already have a birds eyeview of what B is going to be
testifying on. This is a new rule. Under the old rules, counsel
would simply say: Our next witness is B. Then the witness
takes the oath, and then they begin the examination. In the old
procedure, nobody knew -- not even the court, knew what was the
purpose for which the testimonies of their witnesses are to be
presented.

Q: What are the advantages with this new provision?

A: One advantage is that the other party may admit proffered
testimony, or the court might rule that it is merely corroborative

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evidence, in which case the testimony may be dispensed with.
And of course, the other effect is that the waste of the courts
time is averted if it can be determined immediately that the
testimony of the witness is going to be hearsay or irrelevant.

Illustration:
COUNSEL:
Our first witness, your Honor, is Mr. C. The purpose of
his testimony is to prove the amount of expenses paid
by the plaintiff in the hospital.
OPPOSING COUNSEL:
If that is the purpose, your Honor, that the plaintiffs
expenses in the hospital amounted to P100,000.00 we
are admitting that.

So, in this case, there is no need for the witness to testify.

The other party already admitted what the presenting party
meant to prove through Mr. C. So, Mr. C need not testify. This
saves everybody time and effort.

Or, if it is based on the purpose:

OPPOSING COUNSEL:
Your Honor, if that is the purpose of the witness
testimony, it will totally be inadmissible because the
proffered testimony is hearsay or completely irrelevant,
or is covered by the physician-patient privilege
communication...

Why waste the courts time when the testimony is actually

hearsay. So, the court can immediately rule upon the objection.
So, that is the advantage in knowing beforehand the purpose of
the witness testimony. Otherwise, if counsel objects in the
middle of the examination on the ground that the witness
testimony has no value, and this is upheld by the court,
everybodys time has just been wasted.

PEOPLE vs. CADOCIO

228 SCRA 602

Issue: whether or not the trial court gravely erred in

admitting the testimony of a witness, on the ground
that the prosecution did not first offer it at the time he
was called to the witness stand, in contravention of the
provisions of Sections 34 and 35 of Rule 132.

Holding: Indeed, Section 34 of Rule 132 requires that

for evidence to be considered, it should be formally
offered and the purpose specified. This is necessary

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 because a judge has to rest his findings of fact and his
judgment only upon the evidence offered by the parties
at the trial.

Under the new procedure, as spelled out in Section

35 of Rule 132 (a rule which became effective on July 1,
1989), the offer of the testimony of a witness must be
made at the time the witness is called to testify. The
previous practice was to offer the testimonial evidence
at the end of the trial after all the witnesses had
testified. With the innovation, the court is put on notice
whether the witness to be presented is a material
witness and should be heard, or a witness who would
be testifying on irrelevant matters or facts already
testified to by other witnesses and should, therefore, be
stopped from further testifying.

Furthermore, when the party presenting a witness

states the purpose of his testimony, it does not mean
that the party must give a synopsis of the story.
Counsel need not describe the matters the witness is
supposed to testify on. Otherwise, this would be an
indirect violation of the rule against leading questions in
direct examination. Take note that stating the purpose
is not the same as giving the synopsis of a story.

Q: When should documentary or object evidence be offered?

A: Documentary and object evidence shall be offered after the
presentation of a partys testimonial evidence. Such offer shall be
done orally unless allowed by the court to be done in writing.

ILLUSTRATION: The party has three witnesses: X, Y, and Z. The

party is going to offer three documents, each one to be identified
by each of the witnesses. Exhibit A will be identified by X; Exhibit
B by Y; Exhibit C by Z.
COUNSEL:
Whose signature appears on this contract?
X:
That is the signature of Juan de la Cruz.
COUNSEL:
Why do you say that?
COUNSEL:
I was present when he signed the contract.
COUNSEL:
Your Honor, we mark this contract as Exhibit A.
(then there is no more cross-examination.)
JUDGE:
Are you offering that evidence by marking?

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 COUNSEL:
No, your Honor. We are not yet offering; we are merely
marking or authenticating it.
JUDGE:
Alright, call your next witness.
COUNSEL:
Our next witness, your Honor, is Y. Such-and-such is
the purpose of his testimony, and he is going to
authenticate another document.
(...questions on examination ....)

COUNSEL:
Our third witness is Z and we are going to formally
offer his testimony to prove this documents and thus,
authenticate the third document...
(because of Zs testimony, Exhibit C is
authenticated. Then , he will be cross-examined. No
re-direct and re-cross.)
JUDGE:
Call your next witness.
COUNSEL:
Z is our last witness, your Honor.
JUDGE:
Alright, since he is your last witness, you formally offer
now your exhibits.
COUNSEL:
Your Honor, we would like to offer in evidence the
following: Exhibit A is offered which is a deed of sale
duly identified and authenticated by our first witness,
X, to prove this...etc.....With the admission of all these
documentary exhibits, your Honor, the plaintiff is
resting his case.

So, this is the proper time for a party to make its formal offer of
evidence. Make the formal offer when a party is about to rest.
That is the proper procedure. That is what the second paragraph
means.

Five Stages in the Presentation of Documentary Evidence:

(1) identification of the document -- a proof that the document
being presented is the same one referred to by the witness in
his testimony.

(2) the marking thereof -- all exhibits should be marked to

facilitate their identification. The marking may be made at the
pre-trial or during trial. The plaintiff, or the prosecution, as the
case may be, use capital letters (i.e., Exhibit A, Exhibit B, etc.);

285
 while the defendant, or the accused, use Arabic numbers (i.e.,
Exhibit 1, Exhibit 2, etc.). If the exhibit is in connection with an
incident, like in support of, or in opposition to a motion to
dismiss, the words Motion to dismiss should be added after the
letter or number.

Sometimes, a party presents a documentary exhibit not

to prove a fact during the hearing of a motion, like a motion
to dismiss. In a motion to dismiss, there could be a hearing
-- like if a party wishes to prove that the obligation has been
extinguished, or barred by the statute of limitations. Exhibits
are already presented during the hearing of the motion to
dismiss. So, for example, Exhibit A - Motion to Dismiss --
meaning, this is being offered in connection with Exhibit A.

In a hearing for a preliminary injunction, the party may

want to present evidence or exhibits. So, if this is the
plaintiff: Exhibit A - Preliminary Injunction; Exhibit B -
Preliminary Injunction. If this is the defendant: Exhibit 1 -
Preliminary Injunction; Exhibit 2 - Preliminary Injunction.

(3) the authentication -- authentication is the proof of the

documents due execution and genuineness if the purpose is to
show that it is genuine, or the proof of its forgery, if the
purpose is to prove that it is a forgery.

(4) the inspection -- Section 18 of Rule 132: Whenever a writing

is shown to a witness, it may be inspected by the adverse
party.

(5) the formal offer of the exhibit by specifying the

purpose for which it is presented -- after the termination of
the testimonial evidence, the proponent will then make a
formal offer of the documentary evidence and state the
purpose for which the document is presented.

(D presents B as his witness. One of the purposes

of his testimony is to identify and authenticate a
letter that he, as plaintiff, wrote to the defendant. After
testifying, D asks B.)
COUNSEL:
Mr. Plaintiff, when the defendant did not pay his loan,
what did you do next?
PLAINTIFF:
I wrote a demand letter.
COUNSEL:

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 I am showing to you a letter dated September 5, 1998.
What is the connection between this letter and the
letter of demand that you mentioned earlier?

PLAINTIFF:
That is the same one. (with this, the document has
been identified.)
COUNSEL:
At this juncture, your Honor, we pray that this letter,
identified by the witness, be duly marked in order to
form part of our exhibits.
(so, the document will be given to the clerk of
court to be marked)
COUNSEL:
Mr. Plaintiff, there is a signature here on the letter.
Whose signature is this?
PLAINTIFF:
That is mine.
(the document has been authenticated)
COUNSEL:
After that, Mr. Plaintiff, did the defendant settle with you
his account?
PLAINTIFF:
No.
COUNSEL:
That will be all, your Honor. No further questions.
OPPOSING COUNSEL:
No cross, your Honor.
JUDGE:
The witness is excused.

(After the plaintiff will have presented all of its

witnesses)
JUDGE:
Now, make your offer.
(this is the time to make the offer of all your
exhibits)

BAR QUESTION: In the course of the trial, the lawyer told the
plaintiff: Did you make this letter? Yes, sir. Then the letter
was marked. Then the lawyer said, Your Honor, for the record,
we are quoting this letter. He, then started to read the letter
verbatim. Of course, this was all recorded. But after the
presentation of all his witnesses, he did not formally offer the
letter in evidence. May the court, in arriving at a decision,
consider such documentary evidence which was quoted by the
lawyer?

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ANSWER: In the case of Tabuena vs. CA, (196 SCRA 650), the
Supreme Court said: even if there be no formal offer of an
exhibit, it may still be admitted against the adverse party if:
a) it has been duly identified by testimony duly-recorded;
b) it has itself been incorporated in the records of the case.

Meaning, if the letter was properly authenticated and the

contents were quoted word for word, even if the letter was not
formally offered, the court may consider it. In other words, this is
a relaxation of the rule on formal offer.

The mere fact that a particular document is marked as an

exhibit does not mean it has thereby already been offered as part
of the evidence of a party. It is true that the exhibits were marked
at the pre-trial of the case, but this was only for the purpose of
identifying them at that time. They were not by such marking
formally offered as exhibits.

At the trial on the merits, a party may decide to formally

offer the exhibits if it believes they will advance its cause, and
then again it may decide not to do so at all. In the later event,
such documents cannot be considered evidence, nor can they be
given any evidentiary value.

In the more recent case of Pp. vs. Padilla (233 SCRA 46),
when the fiscal offered his evidence in court, he inadvertently
skipped Exhibit I. After he offered Exhibit H and its
submarkings, he proceeded to offer Exhibit J and its sub-
markings, thereby omitting to offer Exhibit I. The accused
maintains that under Section 35 of Rule 132, evidence not
formally offered cannot be considered by the court.

According to the Supreme Court: although an exhibit was

not formally offered, such oversight could not be fatal to the
cause of the prosecution if its entire evidence had been recorded,
and the witness who was competent to testify on the matter had
properly identified the challenged exhibit.

SECTION 36. Objection. Objection to evidence offered

orally must be made immediately after the offer is made.
Objection to a question propounded in the course of
the oral examination of a witness shall be made as soon
as the grounds therefor shall become reasonably
apparent.
An offer of evidence in writing shall be objected to
within three (3) days after notice of the offer unless a
different period is allowed by the court.

288
 In any case, the grounds for the objections must be
specified.

ILLUSTRATION:
COUNSEL:
Your Honor, we would like to present X, our witness. the
purpose of his testimony is as follows: 1.. 2.. 3.. 4..
OPPOSING COUNSEL:
Your Honor, in that case, we objecting. Because if those
are the purposes of the witness testimony, then it
would be irrelevant.

In this case, the evidence being referred to is oral. the

objection must be made immediately after the offer of the
evidence is made.

Q: How about individual questions in the course of the oral

examination?
A: Objections to questions propounded in the course of the oral
examination of a witness shall be made as soon as the grounds
therefore shall become reasonably apparent.

Objections made at the start of the testimony of a witness is

different. Here, the party objecting objects to the witness
testimony in general. the party objecting is asking the court to
disallow the testimony of the witness, or to not allow the witness
to testify at all. This is what the first paragraph means.

Under the second paragraph, on the other hand, the witness

is allowed to testify. the objection here is to individual questions.
for example: if the ground for the objection is that the question
calls for a hearsay answer. So, objections in this case must be
made as soon as the ground for the objection becomes
reasonably apparent.

Q: When does the ground for the objection become reasonably

apparent?
A: After the question is asked. How does one know this? He
must listen to the question first. He must let the party examining
the witness finish his question. Then the objection may be raised.
The party objecting must be quick enough. The objection must be
raised before the witness answers the question. Between the
question and the answer may be a gap of only one or two
seconds. Otherwise, it is too late.

Although sometimes while the examining party is still in the

middle of his question, the other party already detects a ground

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for an objection. but of course, the party examining must be
allowed to finish first his question. some trial lawyers object right
away, even if the party examining is yet in mid-sentence. Others,
as a matter of technique, let the party examining finish his
question first before objecting. They want the question as well as
the objection to be recorded. The usual reason here is that in
case the objection is overruled by the judge, and the party
objecting losses in the case because of the evidence objected to,
the losing party may bring this issue up on appeal. At least,
everything will appear in the transcript.

If the evidence offered is documentary, and the offer is done

in writing, the party offering gives the other party a copy of the
formal offer. The other party should also register its objections, if
any, in writing.

Under the law, three days is given for the written objection
to be registered, unless the court allows a different period.
normally, the court allows a different period.

In any case, the grounds for the objection must be specified.

Sometimes, when the ground is obvious, the court already knows.
but as a general rule, the party objecting must always state the
grounds for its objection so that the court can immediately rule on
it.
Objections may be based:
on the ground of its FORM -- example: that the question is
leading, or argumentative. In this type of objection, when
sustained by the court, the party propounding the question may
reform the same and ask it again in a more acceptable form;
on the ground of its SUBSTANCE -- examples: That the question
calls for a hearsay answer, or that the question deals on a
matter covered by privilege communication. This type of
objection, if sustained by the court, cannot be asked again.

Q: Why do we have to object? For what purpose(s)?

(a) for the protection of the witness. For example, during the
cross-examination, the cross-examiner is bullying the
witness with his manner of questioning. Recall that one of the
rights of a witness is that he should be protected from
insulting, irrelevant or improper questions;
(b) to preserve error for review in the event that the objection is
overruled. For example, I object to a particular evidence. My
objection is overruled. since that is on record, when I appeal, I
can bring that out as an issue.

For example: in a civil case, I objected to the evidence of

the defense on the ground that it is merely a photocopy and there

290
was no showing that the exception applied. but the court
admitted the evidence, and I lost mainly because of that
particular piece of evidence. So, on appeal, I will attack the
admissibility of that piece of evidence. If my objection is
sustained, the court will order that such evidence be deleted.
With that, there will be no more basis for the courts earlier
decision.

The Supreme Court discusses objections in the case of

Catuira vs. CA (236 SCRA 398): where the proponent offers
evidence deemed by counsel of the adverse party to be
inadmissible for any reason, the latter has the right to object. But
such right is a mere privilege which can be waived. Necessarily,
the objection must be made at the earliest opportune time, least
silence when there is opportunity to speak may operate as a
waiver of objections.

Thus, while it is true that the prosecution failed to offer the

questioned testimony when private respondent was called to the
witness stand, petitioner waived this procedural error by failing to
object at the appropriate time, i.e., when the ground for objection
became reasonably apparent the moment private respondent was
called to testify without any prior offer having been made by the
proponent.

Q: Why must the specific grounds for the objection be cited?

A: According to American jurisprudence, it is necessary for a
party to cite the grounds for his objection:
1) to enable the court to consider the rule on the exact point
raised. When the party cites a certain provision in the Rules
of Court as a ground for his objection, he must cite the
specific provision, so that the court can focus in on that
provision -- whether or not it applies. The party cannot say
that the ground is the rules on Evidence. Which provision,
specifically? But when the party says that he is objecting on
the ground of hearsay, then the court will already
understand that.
2) to inform the opposing counsel offering the evidence what
defects he must overcome. And so that he will know if the
law applies or not. So that he can now formulate a theory to
answer the opposing party.
3) to save the time of the court and the opposing counsel of the
labor of searching for possible grounds of the objection.

Q: How should a party respond to an objection?

(a) he can attack the objection by arguing that it does not apply;
(b) he can obviate the objection by demonstrating that an
exception applies;

291
(c) he can request that the evidence be admitted conditionally,
postponing a determination of its admissibility (recall:
principle of conditional admissibility)
(d) if the objection is sustained, he can make an offer of proof to
lay the foundation for a possible appeal;
(e) if the objection is sustained, he should seek to prove the facts
by methods that will not be objectionable.

SECTION 37. When repetition of objection unnecessary.

When it becomes reasonably apparent in the course of the
examination of a witness that the questions being
propounded are of the same class as those to which
objection has been made, whether such objection was
sustained or overruled, it shall not be necessary to repeat
the objection, it being sufficient for the adverse party to
record his continuing objection to such class of questions.

This is known as the CONTINUING OBJECTION. For example:

COUNSEL:
Did you talk to Juan?
WITNESS:
Yes.
COUNSEL:
What did you talk about?
WITNESS:
We talked about a murder incident that he witnessed
earlier in the evening, somewhere in El Rio.
COUNSEL:
What did he tell you about the murder?
OPPOSING COUNSEL:
Objection, your Honor! The question calls for a hearsay
answer.
JUDGE:
Objection overruled. The witness may answer.
WITNESS:
According to Juan, there was a shooting incident in El
Rio involving two people, A and B...

So, the judge made a mistake. The objection of counsel is

tenable. Here, the answer which should not have been allowed in
the first place was admitted. Never mind the mistake of the
judge. What is important is that counsel made a timely objection.
On appeal, when counsel attacks the ruling, and he is sustained,
all these answers will be erased. Even if the court makes a wrong
ruling, that is not really fatal.

COUNSEL:

292
 Why? What did he tell you? Who shot whom?
OPPOSING COUNSEL:
Objection, your Honor! The same ground...
Q: Does counsel have to keep on standing up each time and
state his objection?
A: NO. Under Section 37, there is no need for counsel to object
every time a similar question, or a question along the same class,
is asked.

Q: Why?
A: Because under the law, counsels first objection is
automatically considered as an objection to all subsequent related
questions asked. This is the concept of a continuing objection.

SECTION 38. Ruling. The ruling of the court must be

given immediately after the objection is made, unless the
court desires to take a reasonable time to inform itself on
the question presented; but the ruling shall always be
made during the trial and at such time as will give the
party against whom it is made an opportunity to meet the
situation presented by the ruling.
The reason for sustaining or overruling an objection
need not be stated. However, if the objection is based on
two or more grounds, a ruling sustaining the objection on
one or some of them must specify the ground or grounds
relied upon.

When there is an objection, the court has to give its ruling

immediately after the objection UNLESS the court shall decide to
make the decision after a reasonable period of time. The law
allows this after hearing both sides.

Q: When a judge makes a ruling -- sustained or overruled, must

he always state his reasons for doing so?
A: There is no need for that. The presumption is that the grounds
for the objection is the reason for the ruling. Remember that in
Section 36, the law provides that the grounds for an objection
must be specified by the party objecting. However, if the
objection is based on two or more grounds, a ruling sustaining the
objection on one or some of them must specify the ground(s)
relied upon. The reason for the latter rule is so that, on record,
the parties will know what is the basis for the courts ruling.

This complements Wigmores Principle of Multiple

Admissibility. Under this principle, when the evidence is not
admissible for the other purposes, but is admissible for the
others, the judge must specify on which grounds the evidence

293
was deemed admissible. This is necessary in order to later on
show for what the evidence is in the case.

Q: Can a party attack the ruling of the judge?

A: YES. That is precisely the purpose of the ruling.

On appeal, the losing party maintains that the court

committed an error when the court overruled his objection. The
admission of the evidence objected to made him lose the case,
and, therefore, he attacks this on his appeal. The losing party
contends that the evidence should not have been admitted in the
first place. If the appellate court holds that the evidence is
admissible, so the decision is reversed -- especially of the
evidence excluded in the appellate level is really material to the
issue.

SECTION 39. Striking out answer. Should a witness

answer the question before the adverse party had the
opportunity to voice fully its objection to the same, and
such objection is found to be meritorious, the court shall
sustain the objection and order the answer given to be
stricken off the record.
On proper motion, the court may also order the
striking out of answers which are incompetent, irrelevant,
or otherwise improper.

Q: When should you object to a question propounded in the oral

examination?
A: The law says objections to a question propounded in the
course of the oral examination of a witness shall be made as soon
as the grounds therefor shall become apparent after the question
is asked. Once a question is asked, you should already know if you
have an objection and the ground(s) therefor. Raise it
immediately and do not wait for the witness to answer, so that
the court can also immediately make its ruling.

However, there are some witnesses who answer very fast.

They give out their answers even before you can voice out your
objection. Sometimes while the examining party is still asking his
question, you already detect an objection. So, you wait for the
other party to finish with his question, but you already make signs
to the court that you are going to object. But the problem is that
the witness answers the question too fast. What should you do in
this case? Others will say that there has already been a waiver;
your objection came too late.

Take note that Section 39 refers only to offer of oral

testimony; this does not apply to offer of documentary or object

294
evidence, which you should have enough time to study. So, under
Section 39, the correct procedure is to MOVE TO STRIKE the
witness answer. The remedy is a Motion to Strike Out his Answer
because the same was given before you had the opportunity to
completely voice out your objection. You ask that the answer be
deleted from the records. If the court will sustain your motion,
the order is immediately given to strike out the witness answer,
as if the witness did not give any answer at all.

As to the last paragraph of this Section, aside from answers

made to the question which are given out immediately without
giving the opposing party the opportunity to object, there are
other types of answers which are to be stricken out:
incompetent, irrelevant or otherwise, improper answers. There
are other instances when there is nothing wrong with the question
propounded; but it is the answer which is defective.

EXAMPLE:
COUNSEL:
Mr. Witness, are you aware of the incident which
happened on this date?
WITNESS:
Yes.

COUNSEL:
What happened on this date?
WITNESS:
blah... blah... blah...
COUNSEL:
How come you know about this?
WITNESS:
That is what my friend, B, told me.

So, everything he said has actually been hearsay all along. In

this, the question asked is correct; there is nothing wrong with the
question. As it is, it does not call for a hearsay answer. You
cannot object to questions when they are proper. but it turned
out that it is the answer which is improper. So, the answer must
be stricken out.

Based on American jurisprudence, the following are other

matters which can be stricken out:
(1) a non-responsive answer meaning, the answer given by the
witness is different from the question asked. The one who can
detect a non-responsive answer is the one who propounded
the question. Example:
COUNSEL:

295
 Where were you on the night of this particular date?
WITNESS:
You see, I graduated last year.
(the answer is so far from the question)

(2) a responsive answer to an improper question that has been

answered too quickly. This could be deleted. The best
example is Section 39.
(3) a responsive answer to a proper question which contains
inadmissible matter. Meaning, the question as well as the
answer are proper, but they contain some portions which are
inadmissible or incompetent. So you must move to delete only
the inadmissible portion.
(4) evidence conditionally admitted subject to promise to prove
foundation later but which promise is not fulfilled. This refers
to evidence admitted subject to a condition that its basis will
be shown later. If the basis cannot be shown, then the
evidence must be removed from the records. Example:
COUNSEL:
We ask that the evidence be admitted subject to the
condition that the conspiracy will be proved later.
JUDGE:
Alright.
x x x x x x
OPPOSING COUNSEL:
Objection, your Honor! The evidence is in violation of
the Res Inter Alios Acta Rule. According to counsel,
there is a conspiracy. But so far, he has proven none. I
therefore move that the witness testimony be deleted
from the records.

(5) evidence apparently admissible when given, but which clearly

appears later to be inadmissible
(6) volunteered statements. Like, when the witness goes beyond
what the question is asking for. Otherwise, this would be
tantamount to depriving the other party of the right to object.
Answers given which go beyond the scope of the questions
asked may be asked to be deleted.
(7) cases where the basis for the objection appears only in the
cross-examination. This basis for the inadmissibility will
surface only later. For example, the witness has been
testifying for one hour already. He is giving a very detailed
and vivid testimony. It seems that he really was present when
the crime took place. So, now, on cross:
COUNSEL:
Mr. Witness, is it not a fact that all these things were
only narrated to you by somebody else?
WITNESS:

296
 Yes.

In this case, the examiner must move to delete the entire

direct testimony of the witness on the ground that the same is
hearsay. The inadmissibility here was detected only later during
the cross-examination.

SECTION 40. Tender of excluded evidence. If documents

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

ILLUSTRATION:
COUNSEL:
We would like to offer in evidence Exhibit A, a
document.
OPPOSING COUNSEL:
Objection, you Honor! It violates the Parol Evidence
Rule.
JUDGE:
Sustained.
(Other lawyers just accept the ruling of the court
and proceed. but others would insist...)
COUNSEL:
If that is the ruling, your Honor, we would just ask that
the document be attached.

The evidence would still be there with a marking. when the

judge decides, he does not have to consider it. But when the case
is on appeal, counsel will bring out as an issue -- that evidence
should have been admitted. If the appellate court decides that
the evidence should have been admitted, then that is favorable to
counsel.

So, the importance there of having the document attached is

for the appellate court to determine if your argument regarding
the admissibility of the evidence is tenable. The evidence was
not admitted in the trial court because the court ruled it so. But
you must still request that the evidence be attached for the
purposes of appeal. Because if you appeal and the evidence is
not there, the court will not even bother to ask counsel to bring
over to them such evidence so that they can consider it.

297
 In practice, this provision is also known as offer of proof.
Even if your evidence is denied admission, you still ask the court
to allow it to be submitted not for the trial court, but for the
purpose of the appellate court, which might yet consider the
evidence and reverse the adverse decision.

As to the second sentence of this provision, if the evidence

excluded is oral:
COUNSEL:
questions... questions...
OPPOSING COUNSEL:
Objection, your Honor!
JUDGE:
Sustained.
(So, the witness cannot continue answering)
COUNSEL:
Your Honor, we would like to state that, for the record,
the witness would have given this answer...
(As the offeror of the evidence, counsel will state
how the witness would have answered the question.)
COUNSEL:
questions... questions...
OPPOSING COUNSEL:
Objection.
JUDGE:
Sustained.
COUNSEL:
Your Honor, we are making an offer of proof. Had the
question asked been answered, it would have been like
this...

So, what is the purpose here? So that if the judge in the trial
court sustained the objection, on appeal, there is a chance that
the appellate court might see the point of counsel. But how can
this be possible if it does not appear on the records?

So, this is an offer of proof, or a tender of excluded evidence.

ANOTHER EXAMPLE:
COUNSEL:
We would like to offer in evidence, your Honor, the
testimony of this witness to prove that...
OPPOSING COUNSEL:
Objection, your Honor! If that is the purpose of his
testimony, then the witness testimony is irrelevant.
JUDGE:
Yes, his testimony is irrelevant.

298
 COUNSEL:
In that case, your Honor, we would like to make an offer
of proof. This witness, your Honor, is Juan de la Cruz,
47 years old. Had the witness been allowed to testify,
this would have been his testimony...(counsel must be
the one to summarize)

So, that on appeal, if the appellate court decides that the

witness testimony should have been allowed, the witness does
not need to be called back in order to give his testimony. The
summary was already given by counsel.

Q: Distinguish offer of evidence from offer of proof

A: Offer of evidence represents that phase of a judicial
proceeding before a party concludes his case where he formally
submits to the court for admission his various exhibits (Sec. 34,
Rule 132). Offer of proof, or tender of excluded evidence is found
in Section 40 of Rule 132.

Rule 133
WEIGHT AND SUFFICIENCY OF EVIDENCE

Q: Distinguish admissibility from weight of evidence.

A: Admissibility simply means whether or not the court will allow
and consider the evidence presented. It is based on compliance
with two factors: relevancy and competency. On the other hand,
weight means whether or not the court will believe the evidence --
credibility, whether the court will believe it wholly, partially, or not
at all. Such matter is left to the courts own appreciation.

We are through with Part I -- on admissibility. We now

proceed on Part II -- on weight.

Q: Is it possible that the manner a judge is appreciating a

particular case be different from the manner another judge would
with respect to the same case?
A: YES. What is believable to one judge may not be believable to
another. Judges will appreciate differently the same evidence
because they have individual differences. However, the law
provides us with a guide, or has laid down rules in determining
weight so that the variations in appreciation will not be too
deviant from each other. These rules may be found in Rule 133,
or in jurisprudence.

299
 SECTION 1. Preponderance of evidence, how determined.
In civil cases, the party having the burden of proof must
establish his case by a preponderance of evidence. In
determining where the preponderance or superior weight
of evidence on the issues involved lies, the court may
consider all the facts and circumstances of the case, the
witnesses manner of testifying, their intelligence, their
means and opportunity of knowing the facts to which they
are testifying, the nature of the facts to which they
testify, the probability or improbability of their testimony,
their interest or want of interest, and also their personal
credibility so far as the same may legitimately appear
upon the trial. The court may also consider the number of
witnesses, though the preponderance is not necessarily
with the greater number.

Q: What is meant by preponderance of evidence?

A: It simply means that evidence adduced by one side, as a
whole, is superior to that of the other. The best analogy here is
the scale, which is frequently used as a symbol of justice.

The following are the ingredients or factors to be considered

or weighed by the judge:
(1) all the facts and circumstances of the case. In other
words, what the whole story is, what happened.
(2) the witness manner of testifying or demeanor. Cases
may be won or lost by the appearance of the witnesses.
Judges are observant. For example, hearsay evidence is
admissible because in this sense the judge cannot see the
real witness. Also, the sincerity of a person may be detected
by really looking at the person. Observe the way he talks,
narrates and you would be able to detect, more or less, if he is
nervous or sincere. So, these are some factors to consider in
order to size up the credibility of some witnesses.
(3) their intelligence. Consider the mental aptitude of the
witnesses. One mat expect much from a professional, but not
much from a non-professional. Persons degrees of intelligence
are not the same, so they should not be presumed equal.
(4) their means and opportunity of knowing the facts to
which they are testifying. Are they in the position to know
what all these matters are about? Or, are they merely
guessing? Were they near or far from the scene of the crime?
Was it dark? Were there any obstructions between the witness
and the object?
(5) the nature of the facts to which they testify. Are these
facts supposed to be within their knowledge? Or, are these
supposed to be beyond their understanding?

300
(6) the probability or improbability of their testimony. That
is why there is burden of proof, and there are presumptions. It
is presumed that things happen in the ordinary course of
nature, or in the ordinary habits of life. What is probable may
be disproved; what is improbable may yet be proven. Could
the story really have happened?
(7) their interest or want of interest, or biases. Are the
witnesses interested in any way in the outcome of the case?
Are they relatives of any of the parties? Friends?
(8) their personal credibility so far as the same may
legitimately appear upon the trial. Meaning, the personal
qualifications or background of the witnesses. Like, for
example, if the witness has been convicted of false testimony
-- then his personal credibility may be looked upon with
wariness.
(9) also the number of witnesses, although the
preponderance is not necessarily with the greater
number. Witnesses are weighed; they are not numbered.
The weight of their respective testimonies are determined by
the evidence presented.

There is no law which commands a party to produce more

witnesses in order to win the case, except in the crime of treason.
So, having fifteen witnesses whose testimonies are weak is
nothing compared to only one witness whose testimony is strong
and supported by evidence. In the case of rape, one witness,
usually the victim, is enough. Therefore, it is not the number of
witnesses, but the quality of the witnesses testimonies which
counts.

Q: What is meant by equiponderance of evidence (sometimes

also known as the equipoise doctrine)?
A: It means that when the scale stands upon EQUIPOISE, and
there is nothing in the evidence which shall incline to or the other
side, the court will find for the defendant.

In other words, if the judge finds a 50-50 chance of

conviction to acquittal -- that both sides of the scale are equal,
and the balance is perfect from the viewpoint of the judge, then
he will have to decide for the defendant.

Under the 1964 Rules, in the definition of burden of proof,

there was a sentence to this effect: The burden of proof belongs
to the party who shall stand to lose if no evidence is offered by
either side. Therefore, if you are the defendant, you only have to
aim to equal or match the degree of strength of the evidence
presented by the other party. Then, you win. So, the goal is only
50% if you are the defendant. If you are the plaintiff, you should

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aim for at least 51% in order to win the case. So, if it is only 50-
50, the plaintiff should lose because he failed to meet the burden.

SECTION 2. Proof beyond reasonable doubt. In a

criminal case, the accused is entitled to an acquittal,
unless his guilt is shown beyond reasonable doubt. Proof
beyond reasonable doubt does not mean such a degree of
proof as, excluding possibility of error, produces absolute
certainty. Moral certainty only is required, or that degree
of proof which produces conviction in an unprejudiced
mind.

In proof beyond reasonable doubt, the Supreme Court

requires MORAL CERTAINTY, addressed to the reason and
conscience of those who are called to act upon a case.

Q: In determining whether the evidence of the accused or the

prosecution has achieved the degree of proof beyond reasonable
doubt, what factors should the court consider?
A: The factors to be considered are actually the same as in
Section 1 of Rule 133. So, the rules in civil and criminal cases in
determining the weight of evidence are the same.

The only difference, according to the Supreme Court, is only

in the DEGREE OF PROOF required.

Q: What does proof beyond reasonable doubt mean?

A: In civil cases, if the chances of the plaintiff winning over the
defendant is 51-49, the plaintiff wins. In criminal case, 51%
pointing towards the conviction of the accused and 49% in favor
of doubt as to innocence is not proof beyond reasonable doubt. In
this case, the accused should be acquitted. The same goes with
60-40, even with 99-1, there is still basis for an acquittal here.

Q: So, does proof beyond reasonable doubt mean 100% absolute

certainty?
A: NO. The law says that absolute certainty is not required.
What is required is moral certainty. Absolute certainty means
being totally free from error, a complete infallibility that the
accused is really guilty. Thus, absolute certainty is almost
impossible to attain. In this case, it would then be next to
impossible to convict a person, if this is the criterion.

But one has to judge based on human standards, which is

not absolute. Moral certainty is the criterion -- that ones
conscience and heart are telling him that the accused is indeed
guilty.

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 The accused could be innocent, but the judges conscience is
telling him that there is a greater possibility that the accused is
guilty. So, a judge does not have to be absolutely certain that the
accused is guilty; he need only be morally certain in order to
convict him.

So, reasonable doubt, according to the Supreme Court, is

defined as: That doubt engendered by an investigation of the
whole proof and inability after such investigation to let the mind
rest easy upon the finding of certainty of guilt.

What is important for a judge in making his decision is that

he was unprejudiced, and employed his conscience in arriving at
the decision. But judges may come up with different decisions
even if they apply the same set of guidelines. Especially, when
the case is elevated to the appellate court, the majority may say
that an accused is guilty, with one or two members dissenting.

The case of People vs. Ladrera (150 SCRA 113) involved

a kidnapping for ransom. A child was kidnapped. Ransom was
demanded; when the family members failed to come up with the
ransom money, the kidnappers killed the boy. The kidnappers,
using the same vehicle, passed by the house of the victim and
threw out the cadaver. The kidnappers were never apprehended,
except one. The investigators suspected that the gardener of the
family was part of the conspiracy. He was tried and convicted,
and was meted with the penalty of reclusion perpetua or death.
The Supreme Court, en banc, reviewed the evidence and affirmed
the lower courts decision, except for Justice Cruz, who dissented.
How is it possible that fifteen people who have the same training,
the same knowledge of the law, arrive at two opposing
conclusions? This is what is called individual differences.

Justice Cruzs point in his dissent is that it is possible that the

accused was guilty, but his conscience could not seem to accept
that. J. Cruz said: Whoever killed that little boy deserves the
strongest condemnation and punishment, but this must come
from another Court still higher than this one. Lacking its infallible
and omniscient certainty, we as mortal judges, going only by the
evidence at hand, can convict only if the bloodied hand is bared
beyond the whisper of a doubt.

Justice Cruz expressed the same idea in the case of People

vs. Ignacio (211 SCRA 796). He commented again on moral and
absolute certainty. We do not find that the prosecution has
succeeded in proving the guilt of the accused-appellant with the
exact quantum of proof that is needed to convict. The accused-
appellant must be set free because the evidence against him is

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not sufficient to overcome the constitutional presumption of
innocence in his favor. If indeed he is guilty, it is not for us to
pronounce his conviction. That judgment must be made by an
omniscient, higher tribunal whose justice is far wider than that of
this earthly court.

In the recent case of People vs. Salangga (234 SCRA

407), the Supreme Court commented on the test of moral
certainty in criminal cases: The courts must be guided by a rule
of long-standing consistency that if the inculpatory facts and
circumstances are capable of one or more explanations, one of
which is consistent with the innocence of the accused and the
other consistent with his guilt, then the evidence does not fulfill
the test of moral certainty and is not sufficient to support a
conviction.

To paraphrase an American justice: The complete truth is

not the prerogative of the human judge.

Q: Distinguish presumption of innocence from reasonable doubt.

A:
PRESUMPTION OF REASONABLE DOUBT
INNOCENCE

a conclusion drawn by the law in a condition of the mind produced

favor of an accused by proof resulting from evidence
presented in the case

regarded as evidence introduced the result of insufficient proof

by the law to be considered by
the court

While weight or sufficiency is for the judge to appreciate, it is

conceded that individual appreciation may not be identical. And
the law aims to limit these variations in appreciation by
prescribing guidelines. These guidelines are used to determine
the weight of evidence -- what to believe or what not to believe,
are not confined in the Rules. Some of these guidelines also come
from jurisprudence.

Following are some of the leading principle in the determination of

the weight of evidence.

1) plaintiff, or prosecution, must rely on the strength of

his evidence and not on the weakness of the defense

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Q: Does the weakness of the defendants evidence favor the
plaintiff?
A: NO. The plaintiff cannot win the case simply because the
defendants evidence is weak. Principle: In a civil case, the
plaintiff must rely on the strength of his evidence and not on the
weakness of the defendants evidence. In civil cases, the burden
of proof lies with the plaintiff. With more reason for this principle
to be applicable in criminal cases.

In the case of People vs. Fernando (156 SCRA 35), the

Supreme court said that the accused comes before the court with
all the cards stacked against him as it were, to answer charges
that have already been established prima facie. His accuser is
the People of the Philippines. The full capacity of state authority
is marshaled against him. He usually faces a skilled and
experienced prosecutor. It is therefore only fair to tilt the scales
in his favor by presuming his innocence and thereby lessen the
heavy odds against him. The rule is that he can be convicted not
because his defense is weak but only if the prosecution is strong.

Justice Fernando says: Accusation is not synonymous with

guilt.

2) in a collision between positive and negative evidence,

positive evidence must prevail

EXAMPLE: X accuses Y of stealing something. A witness says he

saw Y take the property. This is positive testimony. Y says that
for every witness presented by X saying that he saw him steal the
property, he can present one hundred witnesses to testify that
they did not see him do it. But the weight of evidence is with the
witnesses who saw what actually happened.

The Supreme Court uses the term negative evidence to

prove denial. Counsel asks: Who committed the crime? A
witness answers: He did. I was there, and I saw it. Then comes
the accused: I did not do it. I was not even there. So, who is to
be believed; who wins?

According to the Supreme Court: the positive assertion

identifying the accused as having committed the crime prevails
over the negative denial. As between positive evidence and the
self-serving denial of the accused, positive evidence will prevail.
These are established rules on the determination of the weight of
evidence. A denial is expected; that is why the accused must
support such denial with something complete and strong.
In the case of People vs. Espinoza (228 SCRA 143), the
Supreme Court says, As between the positive declarations of the

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prosecution witnesses and the negative statements of the
appellants, the former deserve more credit and weight than the
latter. In this case, we give full credit on the factual findings of
the trial court considering that it is in the best position to weigh
conflicting declarations of witnesses as it was able to observe
their demeanor and conduct while giving their testimonies.

3) the number of witnesses does not determine

preponderance of evidence

There is no law giving a specific number. As it has been

mentioned, witnesses are weighed, not numbered. A lone
witness whose testimony is clear, convincing and probable is
enough to meet the test of preponderance of evidence. It would
even be better if corroborative evidence can also be presented.

The same rule applies in criminal cases. If the testimony of a

witness is very convincing and reaches the standard of moral
certainty, there is no reason for such testimony not to be deemed
as a basis for a decision.

There is no law which says that in order to have somebody

convicted; a party must present more than one witness, except
under Article 114 of the Revised Penal Code (treason). Outside of
treason, there is no other law which specifies the number of
witnesses.

The Supreme Court said that if a woman says that she has
been raped, that is enough because no decent Filipino woman will
dare to expose herself publicly and allow the examination of her
private parts by a physician, unless it is true.

In rape cases, we are guided by three principles:

Rape is an accusation which is easy to make and hard to
disprove on the part of the accused, even if he is innocent.
Since conviction depends only on the uncorroborative
testimony of one person, her testimony must be subjected to
the most minutest searching questions.
The prosecution must derive its strength from its own
evidence and not rely on the weakness of the accused.

4) in a collision between oral and documentary evidence,

the documentary evidence deserves more weight

Evidence given orally is more susceptible to lapses. But if

the evidence is in writing, it is difficult to alter. But this is not
absolute. Otherwise, there would be cases which can never be
won, such as those based on Parol Evidence Rule, or the

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reformation of an instrument. Oral evidence must be supported
by facts. But if there are none, documentary evidence generally
carries more weight.

A writer commented before: The Chinese are wont to say

that the palest ink is better than the most retentive memory. In
the ordinary course of life, the human memory usually plays a
trick upon us. There are numerous factors which vie for pre-
eminence in our subconscious that sometimes, certainty turns out
to be altogether misplaced. But what has been recorded through
writing remains consistent and unchanged unless altered by
some malevolent hands. This is so in life; so it is in law.

What has been rendered in black and white posses supreme

primacy in probative value and trustworthiness than the mere
recital of such matter or event through that often most biased and
unreliable source, the human memory. Judges should not be
passive. They should also participate in the trial to promote
expeditious trial, and to clear some matters.

5) in a collision between a document made under oath

and a document not made under oath, the former carries
more weight

According to the Supreme Court: The documentary

evidence under oath shall prevail in accordance with consistent
judicial practice, as against simple certificates. When a document
is not under oath, it is a simple declaration which is unverified.
So, if the statement is done under oath, there can be sanctions.
In case of falsity, the declarant can be held liable for perjury. But
if the statement is not done under oath, there is no sanction.
Therefore, the court will give more weight to statements made
under oath.

6) leading questions not objected to are deemed waived

Q: What happens if the answer elicited through a leading

question is not objected to? Then the answer incident of such
suggestion is definitely admissible.
A: According to the Supreme Court, Even if the answer is
admissible, it carries little weight just the same because of the
said question itself. It may have passed admissibility merely
because of the failure to object.

7) if an evidence admits of two interpretations, the

interpretation which favors the accused must be adopted

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 The Supreme Court has constantly ruled: The alternative
which is favorable to the accused will be the one that will be
adopted, because it is compatible with the presumption of
innocence. In the case of a criminal case, that alternative
interpretation or construction which is favorable to the accused,
should be given more weight.

8) the court must consider everything that the witness

said

By considering what the witness said in the direct, the cross,

the re-direct and the re-cross, the judge would better understand
what the witness was really meaning to convey in his testimony.
The principle to remember is that the testimony of a witness
should be considered as a whole. Everything that he said in the
direct, cross, re-direct and re-cross should be considered as an
entirety. According to the Supreme Court: there must be no
selection of isolated parts of the testimony. Its general must be
taken altogether. The witness manner of testifying must also be
considered. It is like a contract -- it must be taken as a whole.
Otherwise, if parts of the testimony are taken individually, this
might be misleading or conflicting with each other.

9) when a witness has willfully falsified the truth, his

testimony upon other points may be disregarded

This is equivalent to the Latin maxim: falsus in uno, falsus in

omnibus. ILLUSTRATION: A witness is testifying in a trial on five
major points. Then it was discovered that he lied on one point.
Under the maxim, the court may disregard the witness entire
testimony. This is akin to the statement to the effect that one
rotten apple destroy the others in the basket. The theory behind
this maxim is that if it can be shown that a person lied on one
point, there is no guaranty that he will not lie on the other points.

The Supreme Court, however, said that in the application of

the maxim, we must consider the following factors:
the witness intentionally and deliberately falsified the truth on
a material point;
the remaining portions of his testimony are not corroborated
by circumstances or other unimpeached evidence.

If a person made a mistake in his testimony because of

negligence, or because he was careless in giving his answer, the
maxim does not apply here. The maxim applies only where the
mistake was committed by the witness INTENTIONALLY.
However, courts are not mandated or ordered to apply this
rule or maxim. This is merely directory, depending upon the

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courts appreciation of the evidence. So there is nothing which
would prevent the court from rejecting a portion of the witness
testimony and accepting the other portions.

In the case of People vs. Pacis (130 SCRA 540), the

Supreme Court said: The maxim of falsus in uno, falsus in
omnibus is not a positive rule of law. Neither is it an inflexible
one of universal application. So, the maxim is not really a
universal rule. If part of a witness testimony is found true, it
cannot be disregarded entirely. The testimony of a witness may
be believed in part and disbelieved in part. So, that is the
contrary rule.

In the case of Angelo vs. CA (210 SCRA 402), the

Supreme Court commented: There is no rule of law which
prohibits the court from crediting part of the testimony of a
witness as worthy of belief and from simultaneously rejecting
other parts which the court may find incredible or dubious. This
maxim FALSUS IN UNO, FALSUS IN OMNIBUS, is not a rule of law,
let alone a presumption. It is merely a latinism describing the
conclusion reached by a court in a particular case after ascribing
to the evidence such weight or lack of weight that the court
deemed proper.

10) when witnesses contradict each other on minor

details, they should be believed

Minor contradictions strengthen the witnesses testimonies.

The explanation is that they do not expect witnesses to testify
identically down to the last minor detail. Minor inconsistencies
between witnesses do not destroy their credibility. As a
matter of fact, their credibility is enhanced. That shows that they
did not rehearse their testimonies. That just shows that the
witnesses did not compare notes with each other before they
testified.

As a matter of fact, according to the Supreme Court, it is

more dangerous when two or more witnesses testified identically
in every detail with the same words. So, the usual technique of
defense lawyers in criminal cases is to discredit the prosecutions
witnesses testimonies (e.g., color of shirt of the accused, what he
wore that night, etc.). But for as long as the witnesses agree on
the material points, it is alright even if they disagree on trivial or
minor details.

According to the Supreme Court, if they jibe on minor

details, when the witnesses agree as to every detail of the
transaction and testified precisely with the same words, that will

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set suspicious circumstances, absolute uniformity in details is a
badge of untruthfulness.

If witnesses agree on every detail -- practically down to the

last detail, they even use the same words-- then there is a
concert of witnesses. In a concert, there are many players of
instruments: the piano, violin, timpani, etc. So, there are
different instruments, but if you hear them, they blend. And they
cannot achieve this without rehearsing. Meaning, these witnesses
were merely taught on what to testify on and how to testify, so
that they would blend.

11) there is no presumption of abnormal events

Q: What is the effect of inherent improbability in the testimony of

a witness?
A: There is a presumption that things happen in the ordinary
course of nature, in the ordinary habits of life. The inherent
improbability in the testimony of a witness destroys the value of
his testimony. This the maxim which the court keeps on
repeating: Evidence, to be believed, must not only proceed from
the mouth of credible witnesses, but it must be credible in itself.
Why? Because such is the common experience and observation
of mankind. There is no better test of human testimony than its
conformity to common knowledge, observation and experience.

What is probable is believable; what is improbable is within

the realm of fiction.

12) alibi cannot prevail against positive identification

Alibi is a very common defense in criminal cases. Eighty to

ninety percent of the defenses in criminal cases is alibi.
ILLUSTRATION: H was charged with committing homicide on
January 1, 1999, at around 9:00 in the evening. He denies the
charge and claims that he was with his family celebrating the New
Year at that particular time.
The principle to remember about alibi:
(a) that alibi is the weakest defense;
(b) that alibi cannot prevail over positive identification
(c) that alibi is a defense which is easy to concoct and hard to
disprove.
According to the Supreme Court: For alibi to succeed, you
must prove that you were not only not at the scene of the crime
at the time the crime is committed, but also that it was physically
impossible for you to be present at the scene of the crime.

EXAMPLE:

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 COUNSEL:
At the time the crime occurred in the Ateneo campus,
where were you?
ACCUSED:
I was in Toril. It is impossible for me to have been in the
Ateneo campus at Jacinto also at that time. Many
people can testify that they saw me there in Toril that
day.
COUNSEL:
The crime occurred at 7:00 in the evening.

ACCUSED:
I was already in Toril as early as 6:00 that evening. I
was attending a party there. I stayed there until 10:00
in the evening.

But the court can say: That is easy. You went to Toril at
6:00 that evening. And then you slipped out from the party, took
the bus, went to Jacinto, and went back to Toril. Thus, in this
case, the alibi does not serve as good and strong defense.

According to the Supreme Court: Alibi is a reason with a bad

reputation. Rarely does it succeed. It is not 100% unsuccessful,
though. There are indeed certain instances when it can be a
successful defense. In the case where the evidence of the
prosecution is mostly circumstantial, and there is no direct
evidence for the prosecution, alibi may be strong. The
prosecution must rely on its strong evidence; the accused must
not be convicted because the defense is weak. We should also
not be prejudiced against alibi because of the doctrine that it is a
weak defense.

Because if we should remember, under the Rules, that the

prosecution has to rely on the strength of its evidence and not
upon the weakness of evidence of the defense. If the evidence of
the prosecution is weak, it should not win simply because the
evidence of the defense is weak. Otherwise, we are convicting
the accused because of the weakness of its evidence, rather than
the strength of the prosecution.

The rule that alibi is a weak defense is not to be interpreted

to mean that the burden of proof is shifted to the accused.

13) trial courts findings of facts are conclusive upon the

appellate court

The rule is: The findings of fact of the trial court are almost
conclusive upon the appellate court. The appellate does not

311
review findings of fact of the trial court unless there appears in
the record some fact or circumstance of weight and influence
which have been overlooked by the trial court, or the significance
of which has been misinterpreted.

According to the Supreme Court: The trial court had the

opportunity to watch the witnesses, to see them, their manner of
testifying, whereas, the appellate court does not have the same
advantage. Because the appellate court reviews only the
transcripts. And as it has been earlier mentioned, in determining
the weight of the evidence, especially in criminal proceedings, the
judge has to consider the witnesses manner of testifying -- their
demeanor.

PEOPLE vs. ESPINOZA

180 SCRA 393

The demeanor of the person on the stand can

draw the line between fact and fancy, the forthright
answer or the hesitant pause, the quivering voice or the
angry tone, the flustered look, or the sincere gaze, the
modest blush or the guilty blanch -- these can reveal if
the witness is telling the truth or lying in his teeth.

PEOPLE vs. AMINNUDIN

163 SCRA 402

The trial judge had the immediate access of the

testimony of the witnesses and had the opportunity to
weigh their credibility on the stand. Nuances of tone or
voice, meaningful pauses and hesitation, flush of face
and dart of eyes, which may reveal the truth or expose
the lie, are not described in the impersonal record. But
the trial judge sees all these, discovering for himself the
truant fact and the falsities.

PEOPLE vs. DE GUZMAN

188 SCRA 407

In the resolution of the factual issues, the court

relies heavily on the trial court for its evaluation of the
witnesses and their credibility. Having the opportunity
to observe them on the stand, the trial judge is able to
detect that sometimes thin lines between fact and
prevarication exist that will determine the guilt or
innocence of the accused. That line may not
discernible from a mere reading of the impersonal
record by the reviewing court. The record will not

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reveal those telltale signs that will affirm the truth or
expose the contrivance, like the angry flush of an
insisted assertion or the sudden pallor of a discovered
lie or the tremulous mutter of a reluctant answer of the
forthright tone of a ready reply. The record will not
show if the eyes have darted in evasion or looked down
in confession or gazed steadily with a serenity that has
nothing to distort or conceal. The record will not show
if tears were shed in anger, or in shame, or in
remembering the pain of feigned innocence. Only the
judge trying the case can see all these on the basis of
his observations arrive at an informed and reasoned
verdict.

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 PEOPLE vs. RIVERA
227 SCRA 36

Timidity, forthrightness, surliness, belligerence,

indignation, embarrassment, hesitancy, glibness,
evasiveness, insolence -- these and many other indicia
define the credibility of the witness on the stand. The
opportunity of the trial judge to observe all these
characteristics places him in a better position than the
appellate court in resolving controverted issues of fact.
This is the reason why his findings thereon are received
on appeal with great respect if not indeed as conclusive
on the higher court.

SECTION 3. Extrajudicial confession, not sufficient ground

for conviction. An extrajudicial confession made by an
accused, shall not be sufficient ground for conviction,
unless corroborated by evidence of corpus delicti.

Let us go back to the concept of confession: Section 33 of

Rule 130 - The declaration of an accused acknowledging his guilt
of the offense charged, or of any offense necessarily included
therein, may be given in evidence against him.

There are two types of confession:

judicial confession;
extrajudicial confession

judicial confession
Rule 119, Rules of Criminal procedure

Admissibility
CONFESSION Sec. 12,
Art. III, 1987 Constitution

extrajudicial

Weight
Rule 133, Sec. 3, Revised Rules on Evidence

Voluntary confession is a plea of guilt. Normally, when an

accused enters a plea of guilty, there is no more trial. Because
there nothing more to prove.

As a general rule, in Criminal Procedure, unless the offense is

capital, after the accused pleads guilty, the promulgation of the
decision follows. but suppose a person, after he is arrested,
confesses. He executes an affidavit of confession before a fiscal

314
and signs it. Then, during trial, he pleads that he is not guilty. so,
the trial will proceed.
Q: What is an extrajudicial confession?
A: It is a confession made by the accused other than a plea of
guilty.

Sec. 12(3), Art. III, 1987 constitution: Any person

under investigation for the commission of an offense shall have
the right to remain silent and to have a competent and
independent counsel preferably of his own choice. If the person
cannot afford the services of counsel, he must be provided with
one. These rights cannot be waived, except in writing and in the
presence of counsel.

Q: What happens if one does not comply with this provision?

A: Sec. 12(3), Art. III, 1987 Constitution: Any confession or
admission obtained in violation of this or the preceding section
shall be inadmissible against him.

This is the rule on admissibility. Sec. 12, Art. III of the 1987
Constitution was taken from American jurisprudence, particularly
the case of Miranda vs. State of Arizona -- thus the Miranda
Doctrine or the Miranda Warnings. The Supreme Court, in that
case, interpreted that the right against self-incrimination is not
only available during trial but even from the time a person is
arrested. Therefore, such person must be informed of his rights.
From the moment he begins talking... because his confession may
be used as evidence. And he might not be aware of this. Had he
known that he had such rights, he probably would not have such
a confession.

Prior to the 1973 Constitution, the Supreme Court rejected

the application of the Miranda Warnings. The Miranda Warnings
espoused the theory that confessions obtained without their
benefit (without the person being informed of his rights) are void.
The Supreme Court then said that just because the provisions of
the Philippine Constitution were similar to that of the US, it does
not follow that we were bound by what the United States said.

So, the provision on the Miranda Warnings was formally

incorporated into the 1987 Constitution in order to make the
same applicable here. Presently, the Miranda Doctrine is already
institutionalized in the 1987 Constitution. It is no longer a mere
doctrine, but is already a constitutional provision (in the US, the
Miranda Doctrine continues to be a mere ruling).

There are some modifications on the language used in the

1973 and 1987 Constitutions. As a matter of right, the 1987

315
Constitution says: These rights cannot be waived except in
writing in the presence of counsel. The rights being referred to
here are the rights to remain silent and to have a competent and
independent counsel.

Q: Can the right to counsel be waived?

A: YES. A person may waive his right to be assigned by counsel,
but the waiver must be made in the presence of a lawyer, and in
writing. This portion is not found in the Miranda Doctrine. This is
the part where the Philippine Supreme Court went beyond the
original Miranda Doctrine. This portion of the present doctrine is
called the GALIT DOCTRINE, taken from the case of People vs.
Galit (135 SCRA 465). So, actually Section 3 of Rule 133 is a
mixture of the Miranda and Galit Doctrines.

Q: Where does the Constitution guarantee the right to counsel?

A: Under the Bill of Rights, there are three instances:
during trial. Meaning, when a person is charged, he is
entitled to counsel. If he cannot afford one, the court will
appoint one for him. This is a right which, however, may be
waived for as long as the court is satisfied that the person can
protect himself.

when a person is under custodial investigation for the

commission of a crime. A person may be assisted by
counsel. The right to counsel here may also be waived.

when a person is waiving his right to counsel during

custodial investigation. The law provides that waiver of the
right to counsel must be done in the presence of counsel. This
time the right to counsel CANNOT be waived. The law requires
that a person be assisted by counsel in making his waiver of
the right to counsel during the investigation. Otherwise, the
waiver will be void.
That the Constitution is strict about the above rule is evident
in the following Supreme Court pronouncements:

PEOPLE vs. RAMIREZ

169 SCRA 711

Police and prosecutors are reminded that

statements obtained in violation of Article III, Section
12(1) of the Constitution are completely useless except
possibly as evidence against them for violation of the
suspects constitutional rights. Thus, if one tries to
secure a confession from the accused without
complying with the rule, the former cannot profit from
this. The confession is not admissible in court, and its

316
 only value is only as evidence against him for violating
the rights of another.

Policemen usually know about this. The problem is that these

policemen prepare confessions automatically. Then they just let
the person sign. It is only when the investigation is started that
the rights are mentioned. Or, the rights are on paper, but they
were never mentioned to the accused. The affidavit only
indicated that the accused had been informed of his rights, and
that he has waived them.

PEOPLE vs. JARA

144 SCRA 516

The usual long-winded and artificially stated

advice appearing in the confession before police
officers wherein the detainee waives his rights, does
not create an expression of voluntariness. These
stereotyped advice appearing in practically all
extrajudicial confessions which are later repudiated has
assumed the nature of a legal form. Police investigators
either automatically type it together with the curt opo,
yes, or oo as the answer, or ask the accused to sign it
even to copy it in his own handwriting. Its style --
continuous, fixed and artificially stated -- does not
create the impression of voluntariness or a better
understanding on the part of the accused. The showing
of this continuous and unconstrained giving up of a
right is missing.

OLAES vs. PEOPLE

155 SCRA 486

In the separate sworn statements taken from

petitioners, it appears they were, before made to sign,
specifically informed of their right to the assistance of
counsel which should be provided by the investigating
office at their request. Asked if they understood, they
said yes, and affixed their signature opposite their
answer. This was followed by a statement in which they
said that they would not need the assistance of counsel
which they also signed. It was only after these
preliminary precautions have been taken that the
interrogation began. There is no claim that any force,
violence, intimidation or threat in any means vitiating
the free will was employed against them. They do not
aver that they were not apprised of their right to
counsel or that they were denied the assistance of

317
 counsel when they asked for it. For indeed, they have
not asked for it.

Meaning, they were informed of their rights; they waived

their right to counsel; they were not forced into doing so;
everything was done voluntarily. But why are confessions
assailed as void here? The only objection to the extrajudicial
confessions in this case is that they were obtained without the
assistance of counsel.

According to the Supreme Court, Even so. The investigation

does not conform with the requirements laid down in Pp. vs. Galit.
So, this is fatal.

In the case of People vs. de Jesus (213 SCRA 345): The

issue here is that admissions were obtained during custodial
investigation without the benefit of the Miranda Warnings, and
there was no lawyer. QUESTION: Are the written admissions
valid? ANSWER: No, they are not admissible. The right to
counsel attaches upon the start of an investigation. That is, when
the investigating officer starts to ask questions to elicit
information or an admission from the accused.

PEOPLE vs. CABINTOY

247 SCRA 442

The main issue in this appeal is the admissibility of

the two confessions executed by the San Mateo Police.
The prosecution claims that prior to the taking of the
extrajudicial confessions, both appellants signed written
waivers of their constitutional rights to remain silent
and to be assisted by counsel, in the presence of Atty.
Pozon of the PAO.
After carefully examining the record of this case,
the Court finds that these waivers were signed by Atty.
Pozon on the 27th of May, 1991 as indicated by the date
written by Atty. Pozon himself beside his signature.
There is no dispute, on the other hand, that the
confessions of appellants were executed in the evening
of the 26th of May, 1991. These facts tend to confirm
the testimonies of accused-appellants that they brought
before Atty. Pozon after they had already signed the
extrajudicial confessions, and belie the assertion of the
prosecution that the waivers were signed ahead of the
confessions on the same evening of the 26 th of May,
1991. The purported waivers, it should be noted, are
set out in the same documents setting out the
respective confessions of the two appellants.

318
 From the foregoing, one is led to the inevitable
conclusion that at the time the questioned confessions
were executed, there were no prior valid waivers of
their constitutional rights by Cabintoy and Fernando.
This defect alone is sufficient to render the confessions
inadmissible in evidence against accused-appellants.
Moreover, the confessions do not indicate that both
accused were represented by counsel during
investigation. The settled rule is that an uncounselled
extrajudicial confession without a valid waiver of the
right to counsel -- i.e., in writing and in the presence of
counsel -- is inadmissible in evidence.

We are aware that the trial court noted that the

confessions are interlocking and replete with minor
details indicating that they were voluntarily given. This
Court, however, has ruled before in a number of cases
that even if the confession of the accused were gospel
truth, if it was made without the assistance of counsel
and without a valid waiver of such assistance, the
confession is inadmissible in evidence regardless of the
absence of coercion or even if it had been voluntarily
given.

The question may be raised whether the waivers,

though in fact executed on May 26, 1991 by Cabintoy
and Fernando, could be deemed to have been
subsequently validated by the signature of Atty. Pozon
of the PAO the next day. We must answer this question
in the negative. There is nothing in the record to
indicate that Cabintoy and Fernando intended to
validate retroactively their uncounselled waiver and
confession when they were brought into the office of
Atty. Pozon at the time Atty. Pozon signed the
confession document. To the contrary, the two
appellants here explicitly rejected their extrajudicial
confessions when they testified before the trial court;
such rejection makes it very difficult to assume any
intent to own and adopt retroactively their extrajudicial
confessions. Any suggestion that an uncounselled
confession and waiver were subsequently validated by
the later signature of counsel for the accused, must be
taken with extreme care lest the constitutional right
involved be eroded into an empty formality.

PEOPLE vs. COMPIL

May 15, 1995

319
 The belated arrival of the CLAO lawyer the
following day even if prior to the actual signing of the
uncounseled confession does not cure the defect. For
the investigators were already able to extract
incriminatory statements from accused-appellant. The
operative act, it has been stressed, is when the police
investigation is no longer a general inquiry into an
unsolved crime but has begun to focus on a particular
suspect who has been taken into custody by the police
to carry out a process of interrogation that lends itself
to eliciting incriminatory statements, and not the
signing by the suspect of his supposed extrajudicial
confession.

Thus, in People vs. de Jesus, we said that an

admission obtained during custodial interrogations
without the benefit of counsel although later reduced to
writing and signed in the presence of counsel are still
flawed under the Constitution.

The following are cases wherein the Supreme Court adopted

a more relaxed or liberal approach, where initially there were
some defects, but subsequent developments cured the errors:

ESTACIO vs. SANDIGANBAYAN

183 SCRA 12

While it is true that Estacios waiver of his rights to

remain silent and to assistance of counsel was not
made in the presence of counsel, the defect was cured
and the requirement laid down by the Galit case was
substantially complied with when Estacios lawyer
arrived at the closing stage of the interrogation, read
the statement and talked to Estacio before the latter
signed it.
As respondent court aptly ruled, if the accused had
not voluntarily waived his constitutional rights prior to
the investigation or had wanted to change his mind by
availing of his right to remain silent after his counsel
arrived and read the statement before the accused
signed it, he could easily have refused to sign the same
and demand possession of the unsigned statement.

PEOPLE vs. LUVENDINO

211 SCRA 36

320
 A confession with defective waiver of the right to
counsel is generally inadmissible in evidence, but if the
same waiver is repeated by the accused at the office of
the prosecutor with the aid of counsel and in the
presence of his mother, there is ratification.

In other words, the accused may be deemed to

have, in effect, ratified the extrajudicial confession and
the waiver of the right to counsel which he had earlier
signed without the presence of counsel, before the
prosecutor and with the aid of counsel in the police
station.

This is in direct conflict with the Olaes decision.

PEOPLE vs. MOLAS
218 SCRA 470

Issue: whether or not there was a valid waiver.

Holding: While it is true that the appellants

extrajudicial confession was made without the advice
and assistance of counsel, hence, inadmissible in
evidence, it could be treated as a verbal admission of
the accused which can be established in the testimony
of the persons who heard or who conducted the
investigation.

Q: Is there a presumption that the Miranda Warning is given? Is it

the burden of the prosecution to prove compliance with the
requirements laid down by the Constitution? How is this
reconciled with the presumption of compliance with official duty
on the part of public officers?
A: It is the burden of the prosecution to prove compliance with
the constitutional requirements. In the case of People vs.
Nicandro (141 SCRA 289), the Supreme Court said: The duty
to inform the suspect of his constitutional rights should not be a
mere ceremonial exercise. The police officer must explain his
rights. Waiver of the right against self-incrimination is not
effective unless it is made knowingly and intelligently. The fiscal
has the duty to adduce evidence that there is no presumption of
compliance.

In the case of People vs. Cabangaan (175 SCRA 160),

the Supreme Court said: In view of the peremptory character of
the constitutional admonition about giving free interrogation
advisories, there must be clear proof that they were given. The
presumption of regular performance of official duty that might

321
otherwise arise from the making of an admission or confession to
a police officer will not suffice.

Take note that under the law, the accused is entitled to a

lawyer. He is entitled to independent counsel, preferably of his
own choice.

Q: Normally, if a person is investigated as a suspect, and he has

no lawyer, the police officers would ask for the assistance of
lawyers from the Public Attorneys Office (PAO). Or, if the suspect
wishes to waive his rights, the waiver would be done in the
presence of a PAO lawyer. Is there compliance with the
requirement of providing the accused a lawyer?
A: In the case of People vs. Olviz (154 SCRA 513), all the
accused executed extrajudicial confessions before the NBI. They
were assisted by a certain Atty. Navarro, whom the NBI requested
to extend legal assistance to the accused. The Supreme Court:
The confessions should be rejected. There is nothing that would
show that the lawyer presented was the accuseds choice or
reference. On the contrary, it is clear that the lawyer was
summoned by the NBI. He cannot be said to have been acting on
behalf of the accused when he made his presence in the place
where the confession was made.

The Supreme Court said that the accused is entitled to

effective counsel -- meaning, the lawyers independence of mind,
integrity, capacity and willingness to work for the interest of the
suspect.

In another case, People vs. Saludaz (188 SCRA 189), the

Supreme Court said: The appearance of a PAO lawyer during
custodial investigation is not enough. He should be engaged by
the accused or by the latters relatives, or other person
authorized by him to file such petition.
So, a lawyer from the PAO is not sufficient compliance with
the law, unless the suspect consents to such lawyers
representation; or unless the suspect really requested this. A
suspect cannot just be forced to avail of the services of a public
attorney.

In the case of People vs. Jimenez, (204 SCRA 719), the

police again sought the help of a lawyer. According to the
Supreme Court: The lawyer who assists the suspect under
custodial investigation shall be of the latters own choice and not
that lawyer who the police investigators had requested.

In this case, the lawyer did not ask the suspect whether or
not he would like her to assist him. She just told the suspect that

322
she was there because she was summoned to assist him. This is
not the mode of solicitation of legal assistance contemplated by
the Constitution.

PEOPLE vs. BANDULA

232 SCRA 566

The Constitution also requires that counsel be

independent. Obviously, he cannot be a special
counsel, public or private prosecutor, counsel of the
police, or a municipal attorney whose interest is
admittedly adverse to the accused.
Granting that Atty. Zerna assisted accused when
they executed their respective extrajudicial confessions,
still their confessions are inadmissible in evidence
considering, that Atty. Zerna does not qualify as an
independent counsel. As a legal officer of the
municipality, he provides legal assistance and support
to the mayor and the municipality in carrying out the
delivery of basic services to the people, including the
maintenance of peace and order. It is thus seriously
doubted whether he can effectively undertake the
defense of the accused without running into conflict of
interests. He is better than a fiscal or prosecutor who
cannot represent the accused during custodial
investigation.

In the following case, however, the Supreme Court held that there
was a waiver.

PEOPLE vs. PAROJINOG

203 SCRA 673

It is very clear from Section 12, Paragraph 1,

Article III of the Constitution, that a person in an
investigation for the commission of an offense may
choose his own counsel; if he cannot afford one, he
must be provided with counsel.

So, the accused really has the final choice, as

he may reject counsel chosen for him by the
investigating officers. He may ask for another counsel.
In the instant case, the records show that no objection
was voiced by the accused throughout the entire
proceeding of the investigation and afterwards, when
he subscribed to its veracity before the city prosecutor.
Thus, he apparently acquiesced to the choice of the

323
investigators. He complained only during the trial that
the lawyer was not his own choice, and that there was
no waiver on his part.

PEOPLE vs. BARASINA

229 SCRA 450

Accused-appellant maintains that he procured the

services of Atty. Romeo Mendoza in the course of the
custodial investigation, but it turned out that it was
Atty. Abelardo Torres who assisted him during the
investigation upon the directive of PC/Lt. Suzara.
Accused-appellant concludes that the extrajudicial
statement cannot be thus utilized against him for want
of competent, independent counsel of his own choice.

The claim of accused-appellant that he was

assisted by counsel not of his own choice is belied by
the records. During the custodial investigation, he
failed to indicate in any manner and at any stage of the
process that he wishes to consult with an attorney of
his own preference before speaking, or giving any
statement. Indeed, there was no showing that he
manifested any resistance when he was assisted by
Atty. Torres.

Withal, the word preferably under Sec. 12(1),

Art. III of the 1987 Constitution does not convey the
message that the choice of a lawyer by a person under
investigation is exclusive as to preclude other equally
competent and independent attorneys from handling
his defense. If the rule were otherwise, then, the tempo
of a custodial investigation will solely be in the hands of
the accused who can impede, nay, obstruct the
progress of the interrogation by simply selecting a
lawyer who for one reason or another, is not available
to protect his interest. This absurd scenario could not
have been contemplated by the framers of the charter.

PEOPLE vs. REMOLLO

227 SCRA 375

A person under investigation for the commission of

an offense may choose his own counsel but if he cannot
afford the services of counsel, he must be provided with
one. While the initial choice of the lawyer in the latter

324
 case is naturally lodged in the police investigators, the
accused really has the final choice as he may reject the
counsel chosen for him and ask for another one. In this
case, the records show that no objection was voiced by
the accused throughout the entire proceedings of the
investigation and afterwards when he subscribed to its
veracity before the City Prosecutor. He complained for
the first time that Atty. Fuentes was his choice only
during trial. Thus, it was too late.

Q: What is really the job of the lawyer in a custodial

investigation? Is it his job to tell the client not to talk?

PEOPLE vs. LAYUSO

175 SCRA 47

There is a widespread misconception that the

presence of a lawyer under the right to counsel
provision of the Constitution is intended to stop the
accused from saying anything which might incriminate
him. The right to counsel is intended to preclude the
slightest coercion as would lead the accused to admit
something false. The lawyer, however, should not
prevent the accused from freely and voluntarily telling
the truth. Whether it is an extrajudicial statement or
testimony in open court, the purpose is always
ascertainment of the truth. The obligation of a lawyer
is to see to it that the client is not coerced.

Q: What investigation is covered by the constitutional provision?

A: The Supreme Court said in the case of People vs. Albano
(145 SCRA 555): The word investigation is not confined to
police investigation, but it includes inquest-preliminary
investigation before the fiscal.

NAVALLO vs. SANDIGANBAYAN

254 SCRA 175

Accused-appellant claims to have been deprived of

his constitutional rights under Sec. 12, Article III of the
1987 Constitution. Well-settled is the rule that such
rights are invocable only when the accused is under
custodial investigation or is in custody investigation
which we since defined as nay questioning initiated by
law enforcement officer after a person has been taken
into custody or otherwise deprived of his freedom of
action in any significant way. A person under a normal
audit examination is not under custodial investigation.

325
 An audit examiner himself can hardly be deemed to be
the law enforcement officer contemplated in the above
rule.

In any case, the allegation of his having been

pressured to sign the examination report prepared by
the audit examiner appears to be belied by his own
testimony. Navallo may have been persuaded, but
certainly not pressured, to sign the auditors report as
he himself testified.

A person can be arrested and detained without a warrant,

but there is a limited period fir his detention. Otherwise, the
arresting officer will be liable for delay in the delivery of the
detained. Under the law, there could be no case filed in the RTC
without preliminary investigation being conducted. This is right.
The confession of the accused during the preliminary
investigation in the absence of his counsel cannot pass the test of
fundamental fairness, and thereby rendered inadmissible the
confession made therein.

Q: Does the fiscal also have the obligation of informing the

accused of his rights in an inquest-preliminary investigation?
A: YES. Although the term is custodial, it does not literally
mean only when one is under custody. It includes investigation of
a person not yet arrested.

326
 PEOPLE vs. MAQUEDA
242 SCRA 563

While we commend the efforts of the trial court to

distinguish the rights of a person under Sec. 12(1), Art.
III, and his rights after a criminal complaint or
information had been filed against him, we cannot
agree with its sweeping view that after such filing an
accused no longer has the right to remain silent and to
counsel but he has the right to refuse to be witness and
not to have any prejudice whatsoever result to him by
such refusal. If it were so, then there would be a
hiatus in the criminal justice procedure where an
accused is deprived of his constitutional rights to
remain silent and to counsel and to be informed of such
rights. Such a view would not only give a very
restrictive application to Sec. 12(1); it would also
diminish the said accuseds rights under Sec. 14(2) of
Art. III. The exercise of the rights to remain silent and
to counsel and to be informed thereof under Sec. 12(1)
of Art. III are not confined to the period prior to the
filing of a criminal complaint or information, but are
available at the stage when a person is under
investigation for the commission of an offense.

The Sinumpaang Salaysay of Maqueda taken

after his arrest was taken in palpable violation of his
rights under Section 12, Article III of the Constitution.
As disclosed by a reading thereof, Maqueda was not
even told of any of his constitutional rights under the
said section. The statement was also taken in the
absence of counsel. Such uncounselled Sinumpaang
Salaysay is wholly inadmissible.

However, the extrajudicial admission of Maqueda

to Ray Dean Salvosa stands on a different footing. It
was given voluntarily and freely to a private person.
The provisions of the Bill of Rights are primarily
limitations on government, declaring the rights that
exist without governmental grant, that may not be
taken away by government and that government has a
duty to protect, or restrictions on the power of
government found not in the particular specific types of
action prohibited, but in the general principle that
keeps alive in the public mind the doctrine that
governmental power is not unlimited. They are the
fundamental safeguards against aggressions of
arbitrary power, or state tyranny and abuse of

327
 authority. In laying down the principles of the
government and fundamental liberties of the people,
the Constitution did not govern the relations between
individuals.

In the case of Galman vs. Pamaran (138 SCRA 294), the

Supreme Court said: To be entitled to his rights, the accused need
not be in their custody because the Constitution does not mention
the word custodial. The investigation contemplated is that one
which ceases to be a general inquiry, and suspicion starts to focus
on a particular individual.

PEOPLE vs. ANDAN

269 SCRA 45

(This is the much-publicized rape-slay case

against Pablito Andan where he, after raping neighbor
Marianne Guevarra, smashed her face with a hollow
block. He is supposed to be executed on May 28, 1999,
the second man to die by lethal injection; but the
President had given him a one month reprieve. God
have mercy on their souls.)

Facts: Mariannes gruesome death drew public

attention and prompted Mayor Trinidad of Baliuag,
Bulacan to form a crack team of police officers to look
for the criminal. Evidence found all around Mariannes
body led the police to Pablito Andan. He was
immediately taken in for questioning.

By this time, people and media representatives

were already gathered at the police headquarters
awaiting the results of the investigation. Mayor Trinidad
arrived and proceeded immediately to the investigation
room. Upon seeing the Mayor, Andan broke down and
admitted the crime. The Mayor first asked for a lawyer
to assist Andan. But since no lawyer was available, he
ordered the proceedings photographed and videotaped.
In the presence of the Mayor, the police, media and
Andans own wife and son, accused-appellant confessed
his guilt.

On arraignment, however, he entered a plea of

not guilty. Nevertheless, he was convicted and
sentenced to death.

In this automatic review, accused appellant

attacked the admissibility of the testimonies of the (1)

328
police investigator, (2) the Mayor and (3) reporters on
the alleged admission of the accused during custodial
investigation, he not being assisted by counsel in
violation of the constitution.

Held: (1) It should be stressed that the rights under

Section 12, Article III of the 1987 Constitution are
accorded to any person under investigation for the
commission of an offense. An investigation begins
when it is no longer a general inquiry into an unsolved
crime but starts to focus on a particular person as a
suspect, i.e., when the police investigator starts
interrogating or exacting a confession from the suspect
in connection with an alleged offense. As intended by
the 1971 Constitutional Convention, this covers
investigations conducted by police authorities which
will include investigations conducted by the municipal
police, the PC and the NBI and such other police
agencies in our government.

When the police brought appellant into the

investigation room, they were no longer engaged in a
general inquiry about the death of Marianne. Indeed,
appellant was already a prime suspect even before the
police found him at his parents house. Therefore,
appellant was already under custodial investigation
when he confessed to the police. It is admitted that the
police failed to inform appellant of his constitutional
rights when he was investigated and interrogated. His
confession is inadmissible in evidence.

(2) However, it cannot be successfully claimed

that appellants confession before the Mayor is
inadmissible. It is true that a Mayor has operational
supervision and control over the local police and may
arguably be deemed a law enforcement officer for
purposes of applying Sec. 12(1) and (3) of Art. III.
Nevertheless, appellants confession to the Mayor was
not made in response to any interrogation by the latter.
In fact, the Mayor did not question appellant at all. No
police authority ordered appellant to talk to the Mayor.
It was appellant himself who spontaneously, freely and
voluntarily sought the Mayor for a private meeting. The
Mayor did not know that appellant was going to confess
his guilt. When appellant talked to the Mayor as a
confidant and not as a law enforcement officer, his
uncounselled confession to him did not violate his
constitutional rights. Thus it has been held that the

329
 constitutional procedures on custodial investigation do
not apply to a spontaneous statement, not elicited
through questioning by the authorities, but given in an
ordinary manner whereby appellant orally admitted
having committed the crime. What the Constitution
bars is the compulsory disclosure of incriminating facts
or confessions. The rights under Section 12 are
guaranteed to preclude the slightest use of coercion by
the state as would lead the accused to admit something
false, not to prevent him from freely and voluntarily
telling the truth.

(3) Appellants confession to the media were

likewise properly admitted. The confessions were made
in response to questions by news reporters, not by the
police or any other investigating officer. We have held
that statement spontaneously made by a suspect to
news reporters on a televised interview are deemed
voluntary and are admissible in evidence.
The news reporters acted as news reporters when
they interviewed appellant. They were not acting under
the direction and control of the police. They were there
to check appellants confession to the Mayor. They did
not force appellant to grant them an interview and
reenact the commission of the crime. In fact, they
asked his permission before interviewing him. They
interviewed him on separate days not once did
appellant protest his innocence. Instead, he repeatedly
confessed his guilt to them. He even supplied all the
details in the commission of the crime, and consented
to its reenactment. All his confessions to the news
reporters were witnessed by his family and other
relatives. There was no coercive atmosphere in the
interview of appellant by the news reporters.

In the case of People vs. Ayson (175 SCRA 216), the

Supreme Court said: The rights mentioned in the Constitution
exist only in custodial interrogation which means questioning
initiated by law enforcement officers. In this case, it is not the
police who investigated the person, but the PAL management.
There is no obligation on the part of the management to give the
Miranda Warnings. Where the employee is investigated by the
employer in order to find out whether he is to be dismissed with
cause, the employee cannot just be silent. For how can he be
investigated if he will remain silent?

330
 The case of People vs. Dimaano (209 SCRA 819),
reiterated the doctrine laid down in Gamboa vs. Cruz (162
SCRA 602), involving the police line-up of an accused. The
Supreme Court said that a police line-up is not part of custodial
inquest. Appellant is not yet entitled to counsel. However, the
Supreme Court seems to reversed its views on police line-up in
the recent case of --

PEOPLE vs. MACAM

238 SCRA 306

Historically, the counsel guarantee was intended

to assure the assistance of counsel at the trial,
inasmuch as the accused was confronted with both the
intricacies of the law and the advocacy of the public
prosecutor. However, as a result of the changes in
patterns of police investigation, todays accused
confronts both expert adversaries and the judicial
system well before his trial begins. It is therefore
appropriate to extend the counsel guarantee to critical
stages of prosecution even before the trial. The law
enforcement machinery at present involves critical
confrontations of the accused by the prosecution at pre-
trial proceedings where the result might well settle the
accuseds fate and reduce the trial itself to a mere
formality. A police line-up is considered a critical
stage of the proceedings.

After the start of the custodial investigation, any

identification of an uncounselled accused made in a
police line-up is inadmissible. This is particularly true in
the case at bench where the police officers first talked
to the victims before the confrontation was held. The
circumstances were such as to impart improper
suggestions on the mind of the victims that may lead to
a mistaken identification. Appellants were handcuffed
and had contusions on their faces.

In the case where the victim together with the accused were
presented before a police officer, and the victim was the only one
asked questions regarding the offense committed by the accused,
the latter is not yet entitled to a lawyer.

However, in the case of People vs. Banding (226 SCRA

299), the suspected drug pusher was made to sign the booking
sheet and arrest report without a lawyer, and also the receipt of
the property seized. ISSUE: whether or not they are admissible in
evidence. The Supreme Court ruled: The first two are admissible

331
because there is no admission of the commission of an offense.
The receipt is not admissible as it amounts to a declaration
against interest -- an admission of the crime charged.

Q: What are the requirements for the admissibility of extrajudicial

confessions?
(a) the giving of the warning: Right to counsel, waiver thereof
must be in writing and in the presence of counsel;
(b) under Sec. 12(2), Art. III, 1987 Constitution: No torture,
force, violence, threat, intimidation or any means which
vitiate the free will shall be used against him.

BAR QUESTION: A man was murdered. X was arrested as the

suspect. First, he denied involvement, but when tortured and
threatened and could no longer bear the physical violence
inflicted upon him, he confessed. The confession is offered as
evidence in court. Accused contended that the evidence is
inadmissible because it was obtained through force, threat,
violence, etc. Is the evidence admissible?
ANSWER: The Supreme Court in the past has ruled YES. For the
confession to be admissible on the ground of involuntarily made,
two requisites must concur:
(a) that there was torture, force, violence, etc.;
(b) the confession is false.

Therefore, if there was violence and you were compelled to

make the confession -- it was coerced and the confession turned
out to be true -- the confession is ADMISSIBLE, but without
prejudice to the filing of a case against the policeman. The
admissibility of the evidence was not affected by the manner it
was obtained.

The Constitution NOW does not distinguish whether the

confession is true or false. What matters is that it was procured
involuntarily, and therefore inadmissible.

The Supreme Court said: In order for the confession to be

considered involuntary, on the ground of force, violence, etc., it is
not required that the force or violence be directly employed
against the person of the accused. It is enough that force or
violence was employed upon the person of his co-accused in the
presence or within his observation, such that he had reasonable
ground to believe that he will suffer the same consequence.

For example, X and Y are accused of a crime. They are

arrested and are interrogated in the same room. X was tortured
and almost died, so he confessed. After this, the policemen then
turned to Y and asked him if he wanted to confess also. The

332
Supreme Court said: A threat of bodily harm or injury and
accompanied by overt acts, showing determination to carry on
the threat, is enough to consider the confession inadmissible.

A confession is void also if it was obtained through a promise

of reward or leniency. This is a ground to invalidate such
confession. Promise of reward or leniency from criminal
prosecution made by a person who is in a position to grant the
same is a ground to vitiate consent.
In the 1990 case of People vs. Flores (186 SCRA 303):
Flores house was raided one early morning while he was sound
asleep. He was arrested. In the precinct, he started talking.
Here, the Supreme Court said: Consent was vitiated. Flores was
probably half-asleep, or he might not yet have been in his proper
senses when he was being questioned in the precinct. The Court
considered the confession as inadmissible because the consent
was vitiated. There may have been no threat, torture or violence,
but the atmosphere was such that, in the manner it was
conducted, consent was vitiated. The fact alone that accused
was taken by armed men in the wee hours is a kind of compulsion
that indeed makes a man do things they would not have
voluntarily done.

Q: Is there a particular form prescribed by law for a confession?

A: NONE. The law does not prescribed that a confession be in
legal form. In the case of People vs. Logronio (214 SCRA
519), the Supreme Court said: We are not aware of any provision
of law that requires confessions or admissions against interest to
be excluded from the record unless they be under oath. Signed
written confessions are not rendered inadmissible nor bereft of
probative value by the simple failure to subscribe to them under
oath. The evidentiary value of extrajudicial confession rests upon
the fact that it was made by the accused himself voluntarily and
against his own interest.

Q: There are two suspects in a crime. One confessed voluntarily

and he implicated the other. Is the confession admissible against
the other suspect?
A: NO. The principle of Res Inter Alios Acta will apply. The
confession made by one binds only himself and not his
companions. EXCEPTIONS:
(i) conspiracy;
(ii) admission by a third party;
(iii) admission by co-partner or agents;
(iv) admission by privies;
(v) admission by silence;
(vi) failure to object.

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 PROSECUTOR:
We are offering, your Honor, the extrajudicial
confession of the accused, A. We are offering it to
prove the guilt of A and his co-accused, B.
JUDGE:
Counsel for A, what do you say?
COUNSEL FOR A:
No objection, your Honor.
JUDGE:
Counsel for B?
COUNSEL FOR B:
No objection.
In this case, the confession of A binds B for failure to object.

However, when the confession of the accused implicating his

co-accused is made judicially at a joint trial, it is admissible
because the implicated co-accused has the right to cross-examine
the implicator, and present evidence on his behalf. In open court,
the principle of Res Inter Alios Acta will not apply.
Where several accused, without collusion, made extrajudicial
confessions which are identical in all essential details and
corroborated by other evidence, each confession is admissible
against the other. This is the doctrine of inter-locking confessions.

A, B, and C are suspects in a robbery. A is the first one

called to the witness stand and admits that B was with him in the
crime:
PROSECUTOR:
When did you plan this?
A:
A month ago, we met in this place. My role was
supposed to be...
After two months, B is apprehended in Gen. Santos City. When he
is questioned, he admits to being part of the group of A and
confirms that the latter was his companion in the crime. Thus,
the details are identical to what A said before. Then, after six
months, C is caught and confesses also. The details of his
confession are identical with those of A and B. Their confessions
interlocked. Under this doctrine, the confession of A is admissible
against B and C, the confession of B is admissible against A and
C; the confession of C is admissible against A and B.

In the case of People vs. Victor (181 SCRA 818), the

Supreme Court said: An extrajudicial confession is admissible
against a co-accused where the confession is used as
circumstantial evidence to show the probability of participation by

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the co-conspirator and where the co-conspirators confession is
corroborated by other evidence. So, take note that it is only to
show PROBABILITY.

Q: If two persons execute two confessions which conflict with

each other, will such conflict negate the admissibility of both?
A: NO. Otherwise, each person accused of a crime who signs a
confession will simply execute a second one which will conflict
with the first so that he would be released from liability. The
Supreme Court said: It will not invalidate the admissions but the
court will have to determine which of the two is probably true.
The two are still admissible, but the court will have to assess
based on the facts the probability of which among the
confessions is false.

Q: Suppose X confesses to a crime extrajudicially, may this be a

basis for his immediate conviction? Can this be a basis for
conviction if, during the trial, it was proven that X made an
extrajudicial confession?
A: The law says YES; provided that it is accompanied by
evidence of corpus delicti. Thus, the formula is:

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 Extrajudicial Confession + Corpus Delicti = Possible
Conviction

If there is no corpus delicti, and the only evidence is extrajudicial

confession, there is no basis for conviction.

Q: What is meant by corpus delicti?

A: Literally translated into English: the body of the crime. The
real concept is: the actual commission of the crime charged.
Corpus delicti refers to the fact that a crime has been committed.
It does not refer to the corpus (body) only, but to the fact of the
crime, the fact of the death.

For example, in the crime of homicide or murder, the corpus

delicti is the death of the victim. If nobody died, then there could
be no homicide or murder. In robbery, the corpus delicti is the
fact of loss -- that personal property was taken. In arson, the
corpus delicti is the fact of burning of the property -- that the
property was burned.

For example, X goes to the police and tells them:

X:
I would like to make an extrajudicial confession. I
robbed a bank this afternoon. I got P1,000,000.00.
POLICEMAN:
Which bank did you rob?
X:
I robbed PNB.
POLICEMAN:
Is that really true?
X:
Yes.
POLICEMAN?
Is this voluntary?
X:
Yes.

(So, the policeman calls up PNB and inquires if

there really was a robbery that took place that
afternoon.)
PNB:
There was no robbery. We are not robbed.

In effect, X confesses to committing a robbery which never

happened. Therefore, there is no corpus delicti here. And if X is
charged in court and his confession is presented in evidence,
which he admits as voluntarily made, and which he does not
challenge, may the court convict X on the basis of this?

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NO. Because there was no robbery in the first place -- there was
no corpus delicti.
Or, Y confesses that he killed A. So, he was charged with
homicide. During trial, A was actually watching:
Y:
I killed Mr. A.
COUNSEL:
Really?
Y:
Yes, I killed Mr. A.
COUNSEL:
Where is Mr. A now?
A:
Me? I am here!

So, the crime Y confessed to is non-existent. The fact of the

death of the victim is the corpus delicti. But the victim is not
dead, so there is no corpus delicti.

Q: In homicide or murder, must the cadaver be seen? Or, can the

fact of death be established without a death certificate, without
recovering the body of the victim?
A: Normally, the body must have been recovered, or the death
certificate must be presented. But there are some cases in which
the Supreme Court sustained otherwise.

BAR QUESTION: Where the testimony of the witness was: In the

middle of the sea, X stabbed B while they were on the boat. X
threw the body of B into the sea which was shark-infested. The
body of B was never recovered. Nobody saw him dead, but there
was evidence that he was stabbed, thrown into the sea, and that
portion of the sea was shark-infested. According to the Supreme
Court, it is too much to expect that B is still alive. The corpus
delicti is established although there is no death certificate; there
was no cadaver.

In the case of People vs. Puloc (202 SCRA 179), the issue
was: Can a person be convicted of robbery or theft when the
property was never recovered and never presented in evidence?
The Supreme Court said: The law does not require the production
of the things stolen or taken as a condition sine qua non for the
conviction of a person accused of robbery or theft.

As early as the case of People vs. Patricio, a 1947 case,

the Supreme Court said: The well-settled rule is that when the
fact of asportation has been established beyond reasonable
doubt, the conviction of the accused is justified even if, as in this

337
case, the thing subject of the robbery was abandoned by the
accused and recovered by the owner.

In the case of Santos vs. CA (229 SCRA 524), the

Supreme Court said: There is no rule which requires the
prosecution to offer in evidence the subject matter of the crime,
as long as it is sufficiently described.

An interesting case on the issue of corpus delicti is what is

called special complex crimes, such as robbery with homicide.
For example, C is charged with robbery with homicide under
Article 294 of the Revised Penal Code. During the trial, the fact
that the victim died was established. but there was doubt as to
whether or not there was robbery. Was anything taken from the
house or not? The Supreme Court ruled: If the evidence for the
robbery is not clear -- in other words, the corpus delicti for the
robbery is not so clear, what is clear is the killing, then there
could be homicide or murder, as the case may be. There was lack
of corpus delicti to sustain robbery, although there was corpus
delicti to sustain the homicide.
However, there was also another case wherein the Supreme
Court ruled: When somebody is killed and the suspect confessed,
he executed an extrajudicial confession that he really killed the
victim and also robbed the victim, there can be a conviction for
the complex crime of robbery with homicide because this time,
this is a special complex crime which should be treated together.

When a person is charged with the special complex crime of

robbery with homicide, and he confessed to the robbery but not
for homicide, for as long as there is corpus delicti for one and
there is none for the other, there could be a conviction for
everything. It is different when it is based on a trial where there
is a plea of not guilty. In this case, the prosecution has to
establish the corpus delicti for both robbery and homicide. But
this time, the confession will cure the absence of corpus delicti.
there must be corpus delicti for at least one of the components of
the crime.

SECTION 4. Circumstantial evidence, when sufficient.

Circumstantial evidence is sufficient for conviction if:
a) There is more than one circumstance;
b) The facts from which the inferences are derived are
proven; and,
a) The combination of all the circumstances is such as
to produce a conviction beyond reasonable doubt.

Indirect evidence is circumstantial evidence. These are

evidence of collateral matters which are only intended to prove

338
the probability or improbability of the fact in issue. EXAMPLES:
Character evidence, Res Inter Alios Acta to prove identity, plan
habit, custom, etc.

Q: In order to convict a person, must there be a direct witness to

the crime? What happens if there was no such witness?
A: A person may be convicted even if there is no direct
eyewitness to the crime because it can be proven by indirect or
circumstantial evidence.

If direct evidence cannot satisfy the criterion of proof beyond

reasonable doubt, the following are the elements which must be
satisfied in order to convict based on the circumstantial evidence:
(a) There is more than one circumstance. The more
circumstance, the better.
(b) The facts from which the inferences are derived are proven.
These facts, which would form the basis for the inference,
should be clearly established because a presumption is
being made here. Thus, this must be based on solid facts.
(a) The combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt. Meaning, all
of them, taken together, would satisfy the requirement of
proof beyond reasonable doubt. To borrow the language of
the Supreme Court: All of them taken together will lead
to the hypothesis of guilt of the accused inconsistent
with the hypothesis of innocence.

The theory of circumstantial evidence is that indicia

or circumstances that are separately or of little
importance may, by their concordant combination and
cumulative effect, satisfy the legal requirement of proof
beyond reasonable doubt. These things when separately
taken would mean nothing. Together they may satisfy the
requirement.

ANALOGY: What is the value of one drop of water? It has none. It

is not even enough to quench ones thirst. It cannot even put out
a little fire. but leave a pail under a leaking faucet; after a while,
when you come back it is already almost full. Now, you can do
something out of it. Just like circumstantial evidence --
individually, these pieces of evidence mean nothing. But if they
are taken together and compose an entire picture, this can
amount to very strong evidence.

Another example: A strand of abaca string has no value. Try

to get a hundred or so of these strands of string and wind them
together, such that you come up with a rope. This rope can now

339
hold even the biggest of ships. But taken singly, each strand
means nothing.

Other analogies: jigsaw puzzle, broom, a storm (which starts

out as an ordinary air coming from the Pacific that develops from
a low-pressure area and can become strong enough to destroy
and topple houses). It is their cumulative effect that matters.

PEOPLE vs. CABRERA

241 SCRA 28
Facts: In the early morning of August 27, 1989, while
the Lim spouses were sleeping in the same room where
the child and its baby-sitter were also sleeping, three
men knocked on the door. Glerissa, the baby-sitter,
opened the door and recognized the three men because
they were employed as helpers in the Lim household,
and the light was on when she opened the door. Two of
the accused were armed with steel bars. Accused
grabbed Glerissaa arms, threatened to kill her if she
shouted and forcibly dragged her out of the room.
Glerissa tripped on a box, fell down, and subsequently
lost consciousness. When she recovered, she hid. After
five minutes, she went back to the room and found the
lifeless bodies of her employers on their bed.

Accused-appellant asserts his innocence. He

claims that he was merely forced by his co-accused to
go with them and was warned that they would implied
him in whatever wrongdoing they had done. So, he
went with them due to fear. Accused-appellant,
together with the other two co-accused, were charged
with the crime of robbery with homicide.

Issue: whether or not Glerissas testimony is

admissible in evidence as she did not directly see
accused-appellant and his other co-accused kill her
employers.

Holding: The evidence of the prosecution, albeit

circumstantial, is of sufficient quantum to establish the
guilt of the accused. The chain of circumstances
proved sustains his guilt. The facts from which the
inferences are derived abound, the combination of
which produces a conviction beyond reasonable doubt.

The presence of conspiracy need not be proved by

direct evidence. Proof of previous agreement to
commit the crime is not essential to establish a

340
 conspiracy. It is sufficient that the accused be shown to
have acted in concert pursuant to the same objective.
Lack of motive does not preclude conviction when the
crime and participation of the accused are definitely
shown, that is, there is no doubt as to the identities of
the perpetrators of the crime.

Circumstantial evidence is akin to a tapestry; it

should be made up of strands which create a pattern
when interwoven. To pluck out one strand and consider
it alone will not evince any probative value. In this
case, a resort to circumstantial evidence became
essential because there was no eyewitness at the
precise moment the victims were killed. The trial court
only ascertained the guilt of the accused-appellant
through the testimony of the prosecutions main
witness whom it found sincere and candid.

Q: Which is stronger -- direct or circumstantial evidence?

A: The general rule: That which is direct is stronger than
circumstantial. But the cumulative effect of circumstantial
evidence is stronger because, as the Supreme Court said,
circumstantial evidence comes from different sources. Thus, they
are least susceptible of fabrication than direct evidence. And
when it constitutes an unbroken chain of natural and rational
circumstances corroborating each other, it cannot be overcome
by inconcrete and doubtful evidence submitted by the opposite
party.

In direct evidence, there is a witness. The case of the party

producing that witness will rise or fall upon that witness alone. If
that witness is believable, well and good. But if the witness is not,
then there is a problem. So, try not to rely on only one source.

In the case of Calde vs. CA (233 SCRA 376), the Supreme

Court said: It is accepted that there are three sources from which
a tribunal may properly acquire knowledge for making its
decision, namely:
circumstantial evidence;
testimonial evidence; and,
real or autoptic proference.

SECTION 5. Substantial evidence. In cases filed before

administrative or quasi-judicial bodies, a fact may be
deemed established if it is supported by substantial
evidence, or that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a
conclusion.

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Q: What is meant by substantial evidence?
A: It simply means that there is something to support the
decision. This is the criterion used in assessing decisions of quasi-
judicial or administrative bodies, such as the NLRC, labor arbiter,
etc. The only requirement to make an NLRC decision valid is that
it must be based on substantial evidence.

EXAMPLE: D is an employee of the XYZ Corporation. He is

terminated by his employer after investigation because he
allegedly stole something from the company. So, he is fired from
the company. Aside from this, his employer files a criminal case
against him for theft. D is acquitted in court. The court says that
the evidence to prove that D committed theft is insufficient; his
guilt is not proved beyond reasonable doubt. On the basis of such
acquittal, D disputes before the NLRC the right of his employer to
terminate him. He claims that the fact that the criminal case
against him in court was dismissed should mean that he did not
commit theft, and because there was no theft, his employer has
no reason or right to terminate him.

The Supreme Court said: Of course not. Despite his

acquittal, the employer can terminate him. To convict him of theft
under the RPC, what the law requires is proof beyond reasonable
doubt. But in order to terminate him, what the law requires is
only substantial evidence. Substantial evidence means that there
is something to support the decision. It will not try to find out
which evidence is stronger. What matters is whether the
conclusion is supported by the documents.

Q: If substantial evidence does not amount to proof beyond

reasonable doubt, does it mean preponderance?
Preponderance -- meaning, at least, that the evidence of the
employer is superior to that of the employee, or vice versa?
A: According to the Supreme Court: NO. Preponderance is not
necessary. What is necessary only is that there is something to
support that decision. Regardless of whether the other side is
stronger or weaker.

In the case of Santos vs. CA (229 SCRA 324), the

Supreme Court commented on substantial evidence: Only
substantial evidence is necessary in an administrative
proceeding, i.e., such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion, even if other
minds equally reasonable might conceivably opine otherwise.

342
 In the case of Manalo vs. Roldan-Confesor (215 SCRA),
the Supreme Court said: In the hierarchy of evidence, there are
four levels:
(a) Proof beyond reasonable doubt;
(b) Clear and convincing evidence;
(c) Preponderance of evidence; and,
(d) Substantial evidence.

Clear and convincing proof is more than mere

preponderance but not to the extent of such certainty as is
required beyond reasonable doubt as in criminal cases, while
substantial evidence consists of more than mere scintilla of
evidence but may be somewhat less than a preponderance.

So, clear and convincing evidence is higher than

preponderance, but less than proof beyond reasonable doubt.
Substantial evidence, on the other hand, is not equivalent to
preponderance of evidence. Consequently, in the hierarchy of
evidentiary values, we found proof beyond reasonable doubt at
the highest level, followed by clear and convincing evidence,
preponderance of evidence and substantial evidence, in that
order. That is why, substantial evidence is the only criterion
required in quasi-judicial bodies.

According to the Supreme Court: As a general rule, we do

not review the findings of quasi-judicial bodies because what is
only required is substantial evidence, unless it will show that
there is 100% to support the decision. But normally, the courts
do not interfere with the appreciation by quasi-judicial bodies.

In cases filed before administrative or quasi-judicial bodies, a

fact may be deemed established if it is supported by substantial
evidence. Meaning, there is something to support the decision.

SECTION 6. Power of the court to stop further evidence.

The court may stop the introduction of further testimony
upon any particular point when the evidence upon it is
already so full that more witnesses to the same point
cannot be reasonably expected to be additionally
persuasive. But this power should be exercised with
caution.

Q: Does the court have the power to interfere with a lawyers

way of proving his case?
A: As a general rule, NO, except this Section.

EXAMPLE: A lawyer says that he will present four witnesses to

prove his case. The court cannot say, No, you cannot do that.

343
Of course, during the pre-trial in civil cases, the parties may
discuss the limitations on the number of witnesses to be
presented. This is a matter of agreement between the parties.
Otherwise, if the court tells the parties how many witnesses they
may present, that would be interference already.

If after a party has presented its second witness only, the

court says, No, I am already convinced with the first witness
testimony. So, the party waives its right to present its other
witnesses... The other p[arty appeals, where the CA states that it
is not convinced with the testimony of the first partys witness,
that the same is insufficient to prove the point, that there is no
corroboration. But this is not the fault anymore of counsel of the
first party who tried to present the other witnesses. In other
words, the court here interfered. So, the court is not allowed to
interfere with the manner of presentation of evidence of a party.

Section 6 is an exception. If the point has been over proved

already, if the party adds more witnesses, it will not help such
partys case.

For example: In the middle of a basketball game, in the

center of the basketball court where there were three thousand
spectators, A killed B. So A was prosecuted. The prosecution
presented twenty witnesses who all said the same thing. He
plans on presenting 2, 980 witnesses more who will all say the
same thing. The trial will never be over, in this case. So the court
can tell the prosecution to stop this because the point has been
over proved. This is like a bucket of water which is already full --
no matter how much water you add in, the water will just be
wasted because it will only overflow.

But this power of the court must be exercised with caution.

It must be exercised only in extreme cases.
This is also where Section 35 can come into play. You must
state the purpose of a witness testimony. If the purpose of
Witness # 20s testimony is to corroborate what Witnesses #s 1
to 19 have said, then the court can tell the prosecution that there
is no more need for Witness # 20 to testify. Stating the purpose is
necessary so that the court can immediately formulate an opinion
on whether or not there is a need to listen to a witness. If the
court can decide that the witness testimony is immaterial, why
listen to him at all?

SECTION 7. Evidence on motion. When a motion is

based on facts not appearing on record, the court may
hear the matter on affidavits or depositions presented by
the respective parties, but the court may direct that the

344
matter be heard wholly or partially on oral testimony or
depositions.

The general rule in evidence: Affidavits are not considered

as evidence because they are considered as hearsay. The witness
himself must take the witness stand. However, this rule is not
absolute. To prove a fact on the basis of the motion, affidavits will
do. Affidavits are evidence to prove the ground in motion.

For example, in a Motion to Lift an Order of Default, you

must support your motion with an Affidavit of Merits where you
must state fraud; accident, mistake or excusable negligence, and
that you have a meritorious cause of defense. In this case, the
affidavits will suffice, but only to prove a motion.

EXAMPLE: In a Motion for Summary Judgment, the motion may

be proved on the basis of affidavits -- that the action is false, or
that the defense is dilatory. This may be done by affidavits or
depositions.

So, to say that affidavits are completely useless as evidence

is not really true because Section 7 allows affidavits as evidence
to prove ones ground in a motion.

For example, a party asked for a Motion to Postpone because

its witness got sick. Only an affidavit of the doctor or a medical
certificate under oath is necessary. Or, under the Summary Rules,
a civil case is arrived at by affidavits only. This is a battle of
affidavits -- position papers -- no more oral testimonies. So, even
the Summary Rules allow the main action to be proved by
affidavits alone. In a Motion for Summary Judgment, the movant
can win the case from pure affidavits.
But the court may direct that the matter be heard wholly or
partially on oral testimony or depositions. If the court says that
affidavits will do, so that is understood. but the court may say
that it wants to hear the witnesses testimonies, but the party
may present them on the witness stand.

EXAMPLE: An affidavit in support of a Petition for Preliminary

Injunction. This may be decided on the basis of affidavits only,
but the court may let the witness take the stand. Or, in a Motion
for New Trial: These are affidavits, your Honor. No, I want to
hear the witnesses. Put them on the stand. So, this is possible
also.

So, as a matter of exception, affidavits are allowed to prove

the main case, such as in the Summary Rules, in a Motion for
Summary Judgment. but nothing can prevent the court from

345
requiring oral testimony if the court is not satisfied with the
affidavits.

In the case of Bravo, Jr. vs. Borja (134 SCRA 466): In the
petitioners Motion for Bail, he alleged that he was a minor of 16;
this averment was never challenged by the prosecution. In his
memorandum in support of the Motion for Bail, petitioner
attached a copy of his birth certificate. Respondent judge refused
to take cognizance of petitioners unchallenged minority allegedly
because the birth certificate was not offered in evidence.
According to the Supreme Court: This was error because
evidence of petitioners minority was already a part of the
record of the case. It was properly filed in support of a
motion. It would needless formality to offer it in
evidence. Respondent Judge therefore acted with grave
abuse of discretion in disregarding it.

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