Evidence Riano

NOTES ON EVIDENCE
Kenneth & King Hizon (3A) _____________________________________________
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UNIVERSITY OF SANTO TOMAS
Faculty of Civil Law

A.Y. 2012-2013
First Semester
LAW ON EVIDENCE
Chapter 1 PRELIMINARY CONSIDERATIONS truth. Actual truth may not always be achieved in judicial
proceedings because the findings of the court would depend
A. Miscellaneous Basic Principles on the evidence presented before it based on the accepted
rules for admissibility.
RULE 128 General Provisions
Rule 132, Sec. 34. Offer of evidence. The court shall
SECTION 1.Evidence defined. Evidence is the means, consider no evidence which has not been formally offered.
sanctioned by these rules, of ascertaining in a judicial The purpose for which the evidence is offered must be
proceeding the truth respecting a matter of fact. (1) specified. (35)
Note: Not every circumstance which affords an inference as to Thus, a supposed evidence that would undoubtedly show the
the truth or falsity of a matter alleged is considered evidence. innocence of the accused will not be considered if not formally
offered in evidence.
Q: What is required for a circumstance to be considered as
evidence? Q: When is evidence required? When is it not required?
A: It must be sanctioned or allowed by the Rules of Court. It A: As a means of proving fact, its introduction is needed when
is not evidence if it is excluded by law or by the Rules even if it the court has to resolve a question of fact. Where no factual
proves the existence or non-existence of a fact in issue. Thus, issue exists in a case, there is no need to present evidence
hearsay evidence, a coerced extrajudicial confession of the because where the case presents a question of law, such
accused and evidence obtained in violation of constitutional question is resolved by mere application of the relevant
rights even if ultimately shown to correspond to the truth is statutes or rules in this jurisdiction to which no evidence is
not a n evidence. required.
The definition considers evidence not as an end in itself but Note: When the pleadings in a civil case do not tender an issue
merely as a means of ascertaining the truth of a matter of of fact, a trial need not be conducted since there is no more
fact. This applies to judicial proceedings. reason to present evidence. The case is then ripe for judicial
determination through a judgment on the pleadings (Rule 34).
Q: What is the purpose of evidence?
Evidence may also be dispensed with by agreement of the
A: It is to ascertain the truth respecting a matter of fact in a parties. They may agree in writing upon the facts involved in
the litigation and to submit the case for judgment upon the
judicial proceeding. Litigations cannot be properly resolved by
suppositions, or even presumptions, with no basis in evidence. facts agreed upon, without the introduction of evidence (Rule
30, sec. 6).
The truth must be determined by the rules for admissibility
and proof. Thus, the parties must prove a fact in issue thru the
presentation of admissible evidence. It is also not required on matters of judicial notice (Rule 129,
sec.1) and on matters judicially admitted (Rule 129 Sec. 4).
Truth as the purpose of evidence
Q: When are the Rules of evidence applicable?
Yet, the truth referred to in the definition is not necessarily the
actual truth but one aptly referred to as the judicial or the legal A: They apply only to judicial proceedings.
Facultad de Derecho Civil 1

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Note: Please refer to Rule 1, sec.4.

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Technical rules of procedure and evidence are not strictly

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applied and administrative due process cannot be fully

equated with due process in strict judicial terms. Also, reliance Scope of the Rules of Evidence
on the technical rules of evidence in labor cases is misplaced.
Q: Explain the Principle of uniformity.
Ong Chia v. Republic (328 SCRA 749)
A: According to such principle, as a general policy, the rules of
The rule on formal offer of evidence is not applicable to a case evidence shall be the same in all courts and in all trials and
involving a petition for naturalization unless applied by hearings.
analogy or in a suppletory character and whenever practicable
and convenient. Sec. 2.Scope. The rules of evidence shall be the same in all
courts and in all trials and hearings, except as otherwise
Sasan, Sr. v. NLRC (G.R. No. 176240, 2008) provided by law or these rules. (2a)
Technical rules of evidence are not binding in labor cases. Q: Distinguish between evidence in civil cases from evidence
Labor officials should use every reasonable means to ascertain in criminal cases.
the facts in each case speedily and objectively, without regard
to technicalities of law or procedure, all in the interest of due CIVIL CASES CRIMINAL CASES
process. The rules of evidence prevailing in courts of law or
The party having the burden The guilt of the accused has to
equity are not controlling in labor cases.
of proof must prove his claim be proven beyond reasonable
by a preponderance of doubt.
Clarion Printing House, Inc. v. NLRC (461 SCRA 272)
evidence.
The NLRC is not precluded from receiving evidence, even for An offer of compromise is not An offer of compromise by
the first time on appeal, because technical rules of procedure an admission of any liability, the accused may be received
are not binding in labor cases. and is not admissible in evidence as an implied
evidence against the offeror admission of guilt except
(Rule 130, Sec.27). those involving quasioffenses
Bantolino v. Coca-Cola Bottlers, Inc. (403 SCRA 699)
(criminal negligence) or those
allowed by law to be
The rules of evidence are not strictly observed in proceedings compromised
before administrative bodies where decisions may be reached (Rule 130, Sec. 27)
on the basis of position papers only. In this case, the court
Concept of presumption of The accused enjoys the
disregarded the findings of the CA which considered the
innocence does not apply and constitutional presumption of
affidavits of the petitioners as mere hearsay and thus could
generally there is no innocence (Sec. 14, Article 3).
not be admitted in evidence against their employers. The
presumption for or against a
Court unequivocally ruled that in a labor case, it is not
party except in cases
necessary for an affiant to appear and testify and be
provided for by law (Art.
crossedexamined by counsel for the adverse party on his
1756-common carrier).
affidavit. Administrative bodies are not bound by the technical
rules of procedure and the rules obtaining in the courts of law.
Distinction between Proof and Evidence
Within the field of administrative law, while strict rules of
Q: What is proof?
evidence are not applicable to quasi-judicial proceedings,
nonetheless, in adducing evidence constitutive of substantial
A: It is not the evidence itself. There is proof only because of
evidence, the basic rule that mere allegation is not evidence
evidence. It is merely the probative effect of evidence and is
cannot be disregarded.
the conviction or persuasion of the mind resulting from
consideration of the evidence.
Application of the Rules on Electronic Evidence
On the other hand, evidence is the medium or means by which

Sec.2. Cases covered.- These Rules shall apply to all civil
fact is proved or disproved. Proof is the effect of evidence
actions and proceedings, as well as quasi-judicial an
because without evidence there is no proof.
administrative cases.
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Falsus in Uno, Falsus in Omnibus
It means false in one thing, false in everything. It means that

if the testimony of a witness on a material issue is willfully false
and given with an intention to deceive, the jury may disregard
all the witness testimony. The witness in such case is
considered unworthy of belief as to all the rest of his evidence
if he is shown to have testified falsely in one detail.

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Yet, this is not an absolute rule of law and is in fact rarely

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applied in modern jurisprudence. It deals only with the weight Q: What must be established for the defense of alibi to
of the evidence and is not a positive rule of law. The modern prosper?
trend favors more flexibility when the testimony of a witness
may be partly believed and partly disbelieved depending on A:
the corroborative evidence presented at the trial (People v.
Negosa). 1. The presence of the accused in another place at the time
of the commission of the offense; and
Q: When can such maxim be applied? 2. The physical impossibility for him to be at the scene of the
crime at the time of its commission.
A: Before it can be applied, it must be shown that the witness
have willfully falsified the truth on one or more material Note: It is not enough that he is somewhere else when the
points. The principle presupposes the existence of a positive crime was committed. He must prove that it was physically
testimony on a material point contrary to subsequent impossible for him to be present at the crime scene or its
declarations in the testimony. immediate vicinity at the time of its commission.
People v. Letigio (268 SCA 227) People v. Abellera, G.R. No. 166617
The above maxim does not lay down a categorical test of The accused should have proven that he was in some place
credibility. While the witness may differ in their recollections where it was physically impossible for him to at the locus
of an incident, it does not necessarily follow from their criminis during the commission of the crime.
disagreements that all of them should be disbelieved as liars
and their testimonies completely discarded as worthless. People v. Agustin, G.R. No. 175325
People v. Pacapac (248 SCRA 77) When the distance between the place where the crime was
committed and the accused said he was only 1 and km, the
The maxim is not a positive rule of law or of universal accused, who at the time had the use of a motorized vehicle,
application. It should not be applied to portions of the has not established the physical impossibility.
testimony corroborated by other evidence, like where the
false portions could be innocent mistakes. It is not mandatory Alibi is not always false and without merit. Sometimes, the fact
but merely sanctions a disregard of the testimony of a witness that the accused was somewhere else may just be the plain
of the circumstances so warrant. and unvarnished truth.
Alibi Frame Up
As a defense, alibi is inherently weak and crumbles in the light Frame up is also viewed with disfavor as it can easily be
of positive identification by truthful witnesses. It is evidence concocted and is commonly used as a defense in most
negative in nature and self-serving and cannot attain more prosecutions arising from the Dangerous Drugs Act. The legal
credibility than the testimonies of prosecution witnesses who presumption that official duty has been regularly performed
testify on clear and positive evidence. exists. For such claim to prosper, the defense must adduce
clear and convincing evidence to overcome the presumption
Alibi may also serve as a basis for acquittal if it can really be that government officials have performed their duties in a
shown by clear and convincing evidence that it was indeed regular and proper manner (People v. Del Monte).
physically impossible for the accused to be at the scene of the
crime at that time. Self-Defense
It cannot prevail over the positive identification of the accused It is likewise inherently weak because it can easily be
as perpetrator of the crime. Such positive identification fabricated.
destroys the defense of alibi and renders it impotent,
especially where the such identification is credible and Alibi is one of the weakest defenses due to its being capable of
categorical (People v. Dela Cruz, G.R. No. 173308). easy fabrication. It cannot prevail over the positive
identification of the accused as perpetrator of the crime. For it
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to prevail, the defense must establish that was physically

impossible for the accused to have been at the scene of the
crime at the time of its commission, and not merely that the
accused was somewhere else.
Delay and initial reluctance in reporting a crime

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Delayed reporting by witnesses of what they know about the

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crime does not render their testimonies false or incredible, for Positive evidence is more credible than negative evidence. The
delay may be explained by the natural reticence of people and reason for this rule is that the witness who testifies to a
their abhorrence to get involved in a criminal case. More than negative may have forgotten what actually occurred, while it
this, there is always the fear of reprisal. This is a matter of is impossible to remember what never existed (Gomez v.
judicial notice (People v. Navarro, 297 SCRA 331). Gomez-Samson, G.R. No. 156282).
Delay in reporting an incident of rape is not necessarily an A denial evidence is the weakest defense and can never
indiction that the charge is fabricated; it is possible for a rape overcome a positive testimony particularly when it comes
victim to go through what psychologists describe as a state of from the mouth of credible witness. Evidence that is negative
denial which is a way of coping with the overwhelming is self-serving in nature and cannot attain more credibility than
emotional stress of an extremely shocking event. the testimonies of witnesses who testify on clear and positive
evidence. It is inherently weak vis--vis positive identification.
Also, it may be on account of fear of the threats posed by her
assailant. It must be viewed in the context of the victims Factum Probans and Factum Probandum
perception and judgment not only at the time of the
commission of the crime but also at the time of the time Evidence signifies a relationship between 2 facts:
immediately thereafter. A rape victim is sometimes
overwhelmed by fear rather than by reason. a. The fact or proposition to be established (Factum
probandum); and
Ingal v. People (G.R No. 173282) b. Facts or material evidencing the fact or proposition to
be established (Factum probans).
Initial reluctance to volunteer information regarding a crime
due to fear of reprisal is common enough that it has been Q: What is Factum Probandum?
judicially declared as not affecting a witness credibility. Also,
people react differently to emotional stress. There is simply no A: It refers to the fact to be proved; the fact which is in issue
standard form of behavioral response that can be expected and to which the evidence is directed.
from anyone when confronted with a strange, startling or
frightful occurrence. Q: What is Factum Probans?
See: People v. Teehankee, Jr. (249 SCRA 54); People v. Ortoa A: It is the probative or evidentiary fact tending to prove the
(GR. No. 176266); People v. Satioquia (414 SCRA 60); fact in issue.
People v. Sanidad (402 SCRA 381) E.g. Kimmy claims to have been injured by the negligence of
Dora who denies having been negligent, the negligence of
Delay by a witness in divulging what he or she knows about a Dora and the causal connection between such negligence, and
crime is not by itself a setback to the evidentiary value of such the injuries of Kmmy taken as a whole, constitute the factum
witness testimony, where the delay is sufficiently justified by probandum of the suit. The evidence offered by Kimmy
any acceptable explanation. constitute the materials to prove liability of D. The totality of
the evidence to prove the liability refers to the factum
Also, Fear of reprisal or social humiliation are sufficient probans.
explanations. Filipinas, especially those in the rural areas, are
by nature shy and coy, and rape stigmatizes the victim, not the Yet, factum probandum in some cases may be affected by the
perpetrator. Delay is not a sign of fabrication. judicial admissions of a party. If the factum probandum
signifies the fact or proposition to be established, then
Positive and Negative Defenses matters of judicial notice, conclusive presumptions and judicial
admissions cannot qualify as parts of factum probandum of a
In Philippine jurisprudence, a positive testimony normally particular case, because such matters need not be established
enjoys more weight than a negative testimony. A testimony or proved.
that a fact exists enjoys more weight than a testimony that
asserts that the same act does not exist.

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Factum probandum refers to the elements of a cause of action

from the point of view of the plaintiff and the elements of the
defense from the standpoint of the defendant.
Q: What are the factum probandum in a suit for a collection

of money, in the absence of any admission by the defendant?
A:
1. The existence of the debt of the defendant;

2. The maturity of the debt;
3. The demand made by the plaintiff upon the defendant to
pay; and
4. The failure to pay despite the demand.

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NOTE: From the side of the defendant, the fact of payment of Q: How about in case of prosecution for illegal sale of
the obligation or the prescription of the debt or the elements prohibited or dangerous drugs?
of any defense he may interpose would constitute the factum
probandum. A:
1. The identity of the buyer and the seller, the object, and
Q: Under Art. 2176 of the Civil Code, in every tort case, what the consideration
should be proven by the plaintiff? 2. The delivery of the things sold and the payment therefor.
A: Q: Is the presentation of the informant in illegal drug cases

1. The damages suffered by the plaintiff indispensable for a successful prosecution?
2. The fault or negligence of the defendant or some other
person for whose act he must respond A: No, because his testimony would merely be corroborative
3. The connection of cause and effect between the fault and and cumulative.
the damages incurred.
Multiple admissibility
Art. 2176, NCC
Q: When is there multiple admissibility?
XXX
A: There are times when a proffered evidence is admissible for
two or more purposes. Thus, depending upon the
Q: In criminal cases, what does factum probandum include? circumstances, the declaration of a declaration may be
admissible for several purposes. It may be offered as a dying
A: In criminal cases, factum probandum includes all matters declaration, as part of the res gestae, or as a declaration
that the prosecution must prove beyond reasonable doubt in against interest.
order to justify a conviction.
Evidence may also be admissible against one party but not
Q: In case or robbery, what matters should be proven? against another. An extrajudicial statement of a robbery
subject is not admissible against his co-accused under the res
A: inter alios acta rule but may be admissible against the
1. That there be personal property belonging to another declarant himself as an admission pursuant to Sec. 26 of Rule
2. That there is unlawful taking of that property 130.
3. That the taking is with intent to gain
4. That there is violence against or intimidation of persons NOTE: If the testimony is offered to prove that the subject was
or force upon things (Art. 293, RPC) completed pursuant to the contract, it cannot be offered to
prove that the project was delayed.
Q: How about in case of illegal possession of firearms and
explosives? It must be noted that the purposes for which evidence is
offered must be specified because such evidence may be
A: admissible for several purposes under the doctrine of multiple
1. The existence of the subject firearm or explosive which admissibility, otherwise the adverse party cannot interpose
may be proved by the presentation of the subject firearm the proper objection.
or explosive or by the testimony of witnesses who saw
accused in the possession of the same; Q: May a private document be offered and admitted in
2. The negative fact that the accused had no license or evidence both as documentary and as object evidence?
permit to own or possess the firearm or explosive which
fact may be established by the testimony or certification A: A private document may be offered and admitted both as
of a representative of the PNP Firearms and Explosives documentary evidence and as object evidence depending on
Unit that the accused has no license or permit to possess the purpose for which the document is offered. If offered to
the subject firearm or explosive. prove its existence, condition or for any purpose other than
the contents of a document, the same is considered as an
object evidence. When a private document is offered as proof

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of its contents, the same is considered as a documentary

evidence (Sec. 2, Rule 130 of Rules of Court).
Q: To be part of the res gestae, what is the requirement?
A: The statement should have been made by a person while a

startling occurrence is taking place or immediately prior to or
subsequent to such startling occurrence.
Q: How about for a dying declaration?

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A: The statement should have been made while the declarant

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was conscious of an impending death. The facts of the case do A: This kind of evidence is admissible because evidence that a
not clearly show that this essential element of a dying person did certain thing at one time is not admissible to prove
declaration was met. that he did the same thing. If we follow the doctrine of curative
admissibility, the court may be asked to give the party against
Q: When A was stabbed on the chest during a street brawl, whom the evidence was admitted the chance to contradict or
he instinctively shouted for help. B, who was nearby, heard explain the alleged past acts he committed and to show
the shout and immediately ran towards A who, upon inquiry evidence of past acts of diligence of the defendant to
by B, stated that C has stabbed him. What rule or rules of counteract the prejudice which the improperly admitted
evidence could Bs testimony be received, if A dies? evidence may have caused.
A: The testimony could be admitted either as a dying NOTE: If the hearsay evidence prejudicial to the defendant is
declaration or as part of the res gestae. erroneously admitted despite the objection, under the
principle of curative admissibility, the court shall allow hearsay
Conditional Admissibility evidence favorable to the same defendant.
Q: What is conditional admissibility? Q: Does the doctrine of curative admissibility refer to a

situation where incompetent evidence was erroneously
A: It happens frequently enough that the relevance of a piece received by the court despite the objection from the other
of evidence is not apparent at the same time it is offered, but party?
the relevance of which will readily be seen when connected to
other pieces of evidence not yet offered. The proponent of the A: Local case law does not extensively address the matter but
evidence may ask that the evidence be conditionally admitted some American cases, they hold that the doctrine of curative
in the meantime subject to the condition that he is going to admissibility, in its broadest form, allows a party to introduce
establish its relevancy and competency at a later time. If the otherwise inadmissible evidence when necessary to counter
connection is not shown as promised, the court, may upon the effect of improper evidence previously admitted by the
motion of the adverse party, strike out from the record the other party without objection. Another case also allowed
evidence that was previously conditionally admitted. curative evidence even if there was a failure to object to the
objectionable document.
Curative admissibility
It is submitted in our jurisdiction, the doctrine of curative
Q: What is the doctrine of curative admissibility? admissibility should not be made to apply where the evidence
was admitted without objection because the failure to object
A: It allows a party to introduce otherwise inadmissible constitutes a waiver of the admissibility of the evidence. In our
evidence to answer the opposing partys previous introduction jurisdiction, admissible evidence not objected to become
of inadmissible evidence if it would remove any unfair admissible.
prejudice caused by the admission of the earlier inadmissible
evidence (Adams v. Burlington, 1993). NOTE: An objection to an otherwise inadmissible evidence is
not merely suggested but required by the Rules of Court.
Thus, a party who first introduces either irrelevant or
incompetent evidence into the trial cannot complain of the Sec. 36, Rule 130, Rules of Court:
subsequent admission of similar evidence from the adverse
party relating to the same subject matter. Objections to evidence offered orally must be made
immediately after the offer is made and objections to
Q: In an action for damages arising from a car accident, the questions propounded in the course of the oral examination of
plaintiff, despite objections from the defendant, introduced the witnesses shall be made as soon as the grounds therefor
evidence to show that in the past, the defendant had injured shall become apparent.
pedestrians because of his negligence. Is this evidence
admissible? Discuss the effect of the doctrine of curative NOTE: It is only where the objection was incorrectly overruled,
admissibility. the court should allow the other party to introduce evidence
to contradict the evidence improperly admitted in order to
cure the prejudice caused to the other party against whom the

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offered evidence was erroneously admitted. Common reason

suggests that there is a waiver, there is no defect to cure.
Q: What is the reason for the limitation as to the application

of the doctrine of curative admissibility?

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A: If no limitations are placed on the doctrine of curative

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admissibility, the doctrine will predictably be open to abuse Circumstantial evidence may be a basis for conviction and such
and will encourage counsel not to object to an admissible conviction can be upheld provided the circumstances proven
evidence to open the door for him to introduce inadmissible constitute an unbroken chain which leads to one fair and
evidence. The more logical rule should be done which will not reasonable conclusion that points to the accused to the
allow a party to be heard through the offering of inadmissible exclusion of all others as the guilty person.
evidence if he declines or fails to timely object to the other
partys inadmissible evidence. Circumstantial evidence is not a weaker defense vis--vis direct
evidence. As to probative value, the Court considers
One American case puts it: A breach of the rules of evidence circumstantial evidence of a nature identical to direct evidence
by one party does not suspend those rules with respect to the because no greater degree of certainty is required when the
other party evidence is circumstantial than when it is direct. In both types
of evidence what is required is proof beyond reasonable
Direct and Circumstantial Evidence doubt.
Q: What is direct evidence? People v. Darilay (421 SCRA 45)
A: It means evidence which if believed, proves the existence of Direct evidence is not dispensable to prove a crime charged.
a fact in issue without inference or presumption. It proves a It may be proved by circumstantial evidence.
fact without the need to make an inference from another fact.
Bastian v. CA (G.R No. 160811)
Q: What is circumstantial evidence?
Direct evidence of the commission of a crime is not the only
A: It indirectly proves a fact in issue through an inference basis on which a court draws its findings of guilt. Established
which the fact finder draws from the evidence established facts that form a chain of circumstances can lead the mind
(People v. Matito). intuitively or impel a conscious process of reasoning towards a
conviction.
When the evidence is circumstantial, a fact is established by
making an inference from a previously established fact. The If direct evidence is insisted on under all circumstances, the
court, thus, uses a fact from which an assumption is drawn. prosecution of vicious felons who commit heinous crimes in
secret or secluded places will be impossible to prove (People
Conviction by circumstantial evidence v. Sevilleno).
Q: In criminal cases, circumstantial evidence may be People v. Corpuz (412 SCRA 479)
sufficient for conviction if certain requisites are present.
What are they? When the prosecutions evidence rests on circumstantial
evidence alone, it is imperative that the chain of circumstances
A: establish the guilt of the accused beyond reasonable doubt.
1. There is more than one circumstance Accordingly, where the evidence admits 2 interpretations one
2. The facts from which inferences are derived are proven of which is consistent with guilt and the other with innocence,
3. The combination of all the circumstances is such as to the accused must be acquitted.
produce a conviction beyond reasonable doubt.
Amora v. People (G.R. No. 154466)
NOTE: A conviction based on circumstantial evidence must
exclude each and every hypothesis consistent with innocence. Direct evidence is not the sole means of establishing guilt
Hence, if the totality of the circumstances eliminates beyond beyond reasonable doubt. Established facts that form a chain
reasonable doubt the possibility of innocence, conviction is of circumstances can lead the mind intuitively or impel a
proper. conscious process of reasoning towards a conviction. Indeed,
rules on evidence and principles in jurisprudence have long
People v. Bernal 388 SCRA 211 recognized that the accused may be convicted through
circumstantial evidence.

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Q: When is circumstantial evidence resorted to?
A: When to insist on direct testimony would ultimately lead to

setting felons free. For it to be sufficient, the following
requisites must be present:
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c. The combination of all circumstances results in a moral
certainty that the accused, to the exclusion of all others, is
the one who has committed the crime.
People v. Ochate 385 SCRA 353
Q: In the appreciation of circumstantial evidence, what are

the 4 guidelines?

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A: Note: It is usually different from that previously offered but

tends to prove the same fact. E.g. testimonial evidence from
1. It should be acted upon with caution; an eye witness and testimony from an expert who did not
2. All the essential facts must be consistent with the personally witness the signing of the document.
hypothesis of guilt;
3. The facts must exclude every other theory but that of Corroborative testimony is not always required. There is no
guilt; and law which requires that the testimony of a single witness has
4. Facts must establish such a certainty of guilt of the to be corroborated, except where expressly mandated in
accused to convince a judgment beyond a reasonable determining the value and credibility of evidence. Witnesses
doubt that the accused is the one who committed the are to be weighed, not numbered (People v. Pabalan).
offense.
The testimony of a sole eyewitness is sufficient to support
Flight or non-flight of the Accused conviction so long as it is clear, straightforward and worthy of
credence by the trial court (People v. Rama).
The fact that the appellants never fled the locality where the
crime was committed is not by itself a valid defense against the Q: When is corroborative evidence necessary?
prosecutions allegations because non-flight does not signify
innocence. Non-flight is simply inaction. While flight indicates A: It is only when there are reasons to suspect that the witness
guilt, non-flight does not mean innocence falsified the truth or that his observations are inaccurate
(Gulmatico v. People). (Mangangey v. Sandiganbayan).
The defense of non-flight cannot prevail against the weight of Corroboration of the testimony of a child witness
positive identification of the appellants (People v. Dacibar).
Flight alone is not a reliable indicator of guilt without other Under the Rule on Examination of a Child Witness,
circumstances because flight alone is inherently ambiguous corroboration shall not be required of a testimony of a child.
(Valdez v. People). Yet, in a case where the accused escaped His testimony if credible by itself, shall be sufficient to support
from detention during the pendency of the case, flight was a finding of fact, conclusion, or judgment subject to the
considered as an indication of guilt or of his guilty mind: xxx standard of proof required in criminal and non-criminal cases
the wicked flee even when no man pursues, but the righteous (People v. Rama).
stand fast as bold as a lion (People v. Isang).
Positive and Negative Evidence
Cumulative Evidence v. Corroborative Evidence
These categories of evidence have been normally associated
Q: What is cumulative evidence? with testimonial evidence but there is no rule which precludes
their application to other forms of evidence.
A: It refers to evidence of the same kind and character as that
already given and that tends to prove the same proposition. Q: When is it considered as positive evidence?
E.g. Subsequent testimonies of B and C after the testimony of
A. A: It is positive when a witness affirms in the stand that a
certain state of facts does not exist or that a certain event
Q: What is corroborative evidence? happened.
A: It is one that is supplementary to that already given tending Q: When is it considered as negative?
to strengthen or confirm it. It is additional evidence of a
different character to the same point. It is such evidence which A: When the witness states that an event did not occur or that
tends to confirm, validate, or strengthen evidence already the state of facts alleged to exist does not actually exist.
presented. E.g. Findings of the crime laboratory that the gun
bears only the fingerprints of the accused which is NOTE: Positive and negative evidence may likewise refer to the
collaborative of the testimony of A. presence or absence of something. Thus, the presence of
fingerprints of a person in a particular place is positive
evidence of his having been in said place although absence of
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his fingerprints does not necessarily mean he was not in the A: A satisfactory explanation and a subsequent fulfillment of
same place. the requirements have always been required (Barcenas v.
Tomas, 454 SCRA 593).
Q: Is a negative finding on a paraffin test a conclusive
evidence that one has not fires a gun? Absence of a vested right in the rules of evidence
A: No, because it is possible for a person to fire a gun and yet Q: Is there a vested right in the rules of evidence?
bear no traces of nitrates or gunpowder as when the culprit
washes his hands or wears gloves (People v. Cerilla, November A: No, because the rules of evidence are subject to change by
28, 2007). the SC pursuant to its powers to promulgate rules concerning
pleading, practice and procedure.
Q: Is denial a negative or positive evidence?
Q: What is the rule regarding the change in the rules of
A: It is a negative evidence. It is considered by the Court to be evidence?
a very weak form of defense and can never overcome an
affirmative or positive testimony particularly when the latter A: It is subject to the constitutional limitation on the
comes from the mouth of a credible witness. It is a negative enactment of ex post facto laws.
and a self-serving which cannot be given greater weight than
the testimony of credible witnesses who testified on Q: What is an ex post facto law?
affirmative matters (People v. Malicsi, 2008; People v.
Mendoza, 450 SCRA 328). A: It includes that which alters the rules of evidence and
receive less or different testimony than that required at the
NOTE: A mere denial, without any strong evidence to support time of the commission of the offense in order to convict the
it, can scarcely overcome the positive declaration by the other accused (Mekin v. Wolfe, 2 Phil 74).
victim of the identity and involvement of the accused in the
crime attributed to him (People v. Nieto, 547 SCRA 511). Waiver of Rules of Evidence
Greater probative value is given to evidence that is positive in Q: May the rules of evidence be waived?
nature that that which is accorded to evidence that is negative
in character. A: Yes. When an otherwise objectionable evidence is not
objected to, the evidence becomes admissible because of
Q: What is the rule regarding contradictory declarations and waiver.
statements?
Q: May the parties stipulate waiving the rules of evidence?
A: Greater weight is generally given to positive testimonies
than to mere denials. A:
Art. 6 of the NCC
Liberal Construction of the Rules of Evidence
Art. 6. Rights may be waived, unless the waiver is contrary to
Q: How should the rules of evidence be construed? law, public order, public policy, morals, or good customs, or
prejudicial to a third person with a right recognized by law.
A: Like all other provisions under the Rules of Court, the rules (4a).
of evidence must be liberally construed. Rules of Procedure
are merely tools intended to facilitate rather than to frustrate As long as no law or principles of morality, good customs and
the attainment of justice. Strict and rigid application of the public policy are transgressed or no rights are violated, the
rules must always be eschewed if it would subvert their rules of evidence may be waived by the parties.
primary objective of enhancing substantial justice.
Q: What is the rule in the relaxation of the rules?

B. Admissibility of Evidence

_____________________________________________
Rule 128
Sec. 3.Admissibility of evidence. Evidence is admissible

when it is relevant to the issue and is not excluded by the
law of these rules. (3a)
Q: What elements should be present for an evidence to be

admissible?
A:
1. The evidence is relevant
2. The evidence is not excluded by the rules (competent)
Q: What are the two axioms of admissibility by Wigmore?
A:
1. That none but facts having rational probative value are
admissible
2. That all facts having rational probative value are
admissible unless some specific rule forbids them.
NOTE: The first axiom is, in substance, the axiom of relevance

while the second axiom is of competence.

NOTES ON EVIDENCE
Q: Will relevancy alone make the evidence admissible?

NOTES ON EVIDENCE
2. the existence, contents, substance, purport, effect, or

A: No. An item of evidence may be relevant but not admissible. meaning of the communication or spoken word or any
It is not admissible because although relevant, it may be part thereof.
incompetent, i.e., it is excluded by law or by a particular rule
or by both. Q: Does it include the unlawful recording of open and public
communications?
Illustrations
A: No. What the law protects are private conversations and
1. In a prosecution for homicide, the witness swears that the communications.
accused killed the victim because his ever truthful
boyfriend told him so. The testimony although relevant is NOTE: It is considered unlawful to:
not admissible because the witness was not testifying
based on his personal knowledge of the event. The a. secretly overhear
testimony offered is relevant but incompetent. b. intercept
2. In the prosecution for robbery, the wife of the accused c. record private communication or spoken word when
testified that the husband admitted to her in confidence doing so is without the authority of all the parties to such
that it was he who killed their neighbor. This testimony is private communication.
not admissible.
3. A defense witness testifies having actually seen the If there is only one party authorizes the recording and the
alleged victim fire a gun at the accused without the latters other does not, there is a violation of law.
provocation. The testimony is competent and relevant.
4. Documents obtained in violation of constitution Salcedo-Ortanez v. CA
guarantees although containing relevant matters are
inadmissible because they are illegally obtained as when Absent a clear showing that both parties to the telephone
evidence is illegally seized. conversations allowed the recording of the same, the
inadmissibility of the subject tapes is mandatory under R.A.
Inadmissible Evidence under Anti-Wiretapping law (RA 4200.
4200)
People v. Navarro
Q: To what proceedings this rule apply?
This case involves the killing of a reporter preceded by a
A: heated altercation between the accused and the victim in
front of several people in a police station. The SC ruled that the
1. Judicial tape recording is admissible and is not a transgression of the
2. Quasi-judicial provisions of R.A. 4200 because the recorded altercation is not
3. Legislative a private communication. Since the heated discussion
4. administrative occurred in the presence of other persons, it could not be
private.
Q: Is it applicable in impeachment proceedings?
Q: What are the modes of recording private conversations?
A: It is not yet well-settled. According to Chief Justice Puno in
the case Francisco v. House of Representatives, impeachment A:
proceedings are sui generis.
1. To tap any wire or cable;
Q: What do you mean by sui generis? 2. To use a Dictaphone;
3. To use a tape recorder; or
A: It means of its own kind or class, i.e., the only one of its 4. To use any device otherwise described.
kind; peculiar.
Q: Is a telephone extension line embraced by the any devise
Q: What are the kinds of evidence the above rule cover? otherwise described?
A: A: Yes. An extension telephone line cannot be placed under

1. any communication or spoken word the category of the enumerated devices (Ganaan v. IAC).

NOTES ON EVIDENCE

NOTES ON EVIDENCE
The law considers it unlawful to knowingly possess any tape

NOTES ON EVIDENCE
record, wire record, disc record, or any such record, or copies 1. There is probable cause to believe that the crime of
thereof of any communication or spoken word secured or terrorism or conspiracy to commit terrorism has been
obtained in a manner violative of the law. It is even also committed, or is being committed, or is about to be
unlawful to communicate the contents thereof either verbally committed. The finding of probable cause must be shown
or in writing to another. based upon the personal knowledge of the applicant of
facts and circumstances indicating the same.
The acts mentioned as punishable would not constitute a 2. Probable cause to believe that evidence essential to the
violation of the law if done by a peace officer authorized by a conviction of the charged or suspected person, or
written order of the court in cases involving: evidence that would solve or prevent the crime will be
obtained; and
a. Treason 3. There is no other effective means readily available for
b. Espionage acquiring such evidence.
c. Provoking war and disloyalty in case of war
d. Piracy The authorization shall be effective in the written order which
e. Mutiny in the high seas shall not exceed 30 days from the date of receipt of the written
f. Rebellion order by the applicant. It may be renewed for a nonextendible
g. Conspiracy and proposal to commit rebellion period of 30 days upon proper application under the
h. Inciting to rebellion conditions set forth on Sec.9, No. 9373.
i. Sedition
j. Conspiracy to commit sedition The person under surveillance or whose communications are
k. Inciting to sedition and intercepted has the right to be informed of the acts done by
l. Kidnapping the law enforcement authorities or to challenge the legality of
the interception before the CA which issued the written order.
Surveillance of suspects and interception and recording of
communications under the Human Security Act of 2007 Inadmissible evidence in connection with arrests, searches
and seizures
Under the Human Security Act of 2007, the provisions of R.A.
No. 4200 notwithstanding, a police or law enforcement official People v. Aminnudin
may listen to, intercept, and record any communication,
message, conversation, discussion or written or spoken words This case demonstrates the inadmissibility of evidence due to
between: the legal infirmity of an arrest for noncompliance with the
requisites of the flagrante delicto exception. Accordingly, the
a. Members of a judicially declared and outlawed terrorist accused was not, at the moment of his arrest, committing
organization, association, or crime nor was it shown that he was about to do so or that he
b. Group of persons or of any person charged with or had just done so. He was like any of the other passengers
suspected of the crime of terrorism or conspiracy to innocently disembarking from the vessel. Also, from the
commit terrorism. information received by the officers, they could have obtained
a warrant since they had at least 2 days to comply with the bill
Q: Is the written order f the CA necessary? of rights.
A: Yes. Such written order of a division of the CA shall be See: People v. Molina (352 SCRA 174)
granted only upon a written application by a police or law
enforcement official. This official must be one who is Malacat v. CA
authorized by the Anti-Terrorism Council to file such
application. Note that Sec. 8 of R.A. No. 9371 requires only an A warrantless arrest cannot be justified where no crime is
ex parte application. being committed at the time of the arrest because no crime
may be inferred from the fact that the eyes of the person
Q: For the written order to be issued, what are the matters to arrested were moving fast and looking at every person
be established? passing by.
A: See: People v. Mengote (210 SCRA 174)

NOTES ON EVIDENCE
People v. Laguio (G.R. No. 128587)
Reliable information alone, absent any overt act indicative of a

felonious enterprise in the presence and within the view of the
arresting officers, is not sufficient to constitute probable cause
that would justify an in flagrante delicto arrest.
Valdez v. People (G.R. No. 170180)

NOTES ON EVIDENCE
Flight is not a reliable indicator of guilt. When petitioner was

NOTES ON EVIDENCE
arrested without a warrant, he was neither caught in flagrante Relevant Evidence

delicto committing a crime nor was the arrest affected in hot
pursuit. Sec. 4.Relevancy; collateral matters. Evidence must have
such a relation to the fact in issue as to induce belief in its
People v. Dela Cruz (G.R. No. 182348) existence or non-existence. Evidence on collateral matters
shall not be allowed, except when it tends in any reasonable
Q: What are the elements of illegal possession of dangerous degree to establish the probability or improbability of the
drugs? fact in issue. (4a)
A: Evidence to be relevant must have such a relation to the act in

issue as to induce the belief in its existence or nonexistence.
1. The accused is in possession of an item or object which is
identified to be a prohibited drug; Q: Explain the concept of relevance.
2. Such possession is not authorized by law; and
3. The accused freely and consciously possessed the said A: It deals with the rational relationship between the evidence
drug. The possession must be with knowledge of the and the fact to be proved. Thus, the evidence adduced should
accused or animun possidendi existed with the possession be directed to the matters in dispute and any evidence which
or control of said articles. has neither direct nor indirect relationship to such matters
must be set aside as irrelevant.
In this case, since the accused was not in possession of the
illegal drugs when he was arrested, his arrest was illegal and NOTE: The matter of relevance requires the existence of a fact
the confiscated drugs cannot be used in evidence against him. in issue. This fact in issue must be a disputed fact. Thus, it is
obvious that the evidence offered to prove an undisputed fact
Constructive possession is irrelevant, and as such, is inadmissible. Where there is no
issue as to a matter of fact, there exists no purpose for an item
In People v. Torres (501 SCRA 591), it was held that there was of evidence.
constructive possession even when the accused was not at
home when the prohibited drugs were found in the masters Q: What is the test for relevance?
bedroom of his house.
A: If the evidence induces belief as to the existence or the non-
In People v. Tira (430 SCRA 134), there was constructive existence of the fact in issue, the evidence is relevant. If it does
possession when illegal drugs were found concealed in the bed not issue such belief, it is irrelevant.
and room of both accused.
NOTE: Although competency of the evidence is a necessary
People v. Lagman component of admissible evidence, the question that most
often arises in court is the relevance of the evidence. When an
The finding of illicit drugs and paraphernalia in a house or advocate offers a piece of evidence for the courts
building occupied by a particular consideration, he offers the evidence to prove a fact. This may
person raises the presumption of knowledge and either be:
possession thereof. a. Immediate fact in issue
b. Ultimate fact in issue
Also, illegal possession of regulated drugs is mala prohibita,
and as such, criminal intent is not an essential element, but the Q: Jollibee is indebted to BDO. When the obligation falls due,
prosecution must prove the intent to possess. Possession is he fails to pay and the bank sues for collection. As part of the
not only actual. It may be constructive. evidence of BDO, the accountant of Jollibee is placed on the
stand and in the course of his examination he asked if he, in
Q: When does constructive possession exist? turn, is also indebted to BDO. The lawyer of Jollibee
interposes an objection to the question that it is impertinent.
A: It is when he has the right to exercise dominion and control How would you rule on the objection?
over the place where it is found. Exclusive possession or
control is not necessary. A: The objection of Jollibee that the question is impertinent or
irrelevant should be sustained. The issue in the case is the

NOTES ON EVIDENCE
indebtedness of Jollibee to BDO and not the indebtedness of

the accountant of Jollibee to the bank.
Test for determining the Relevancy of Evidence
Q: What should be the test in determining the relevancy of

evidence?

NOTES ON EVIDENCE
A: The relevance is a matter of relationship between the

NOTES ON EVIDENCE
evidence and a fact in issue. The determination of relevance is and truthfulness if the witness, his interest or bias, or the
thus, a matter of inference and not of law. The test would reverse (Sec. 6, Rule 132).
therefore be one of logic, common sense and experience.
Q: What are the instances that questions of the
NOTE: The matter of relevance is a matter that is addressed to crossexaminer are circumscribed by the matters taken up in
the Court (People v. Galleno, 291 SCRA 761). Accordingly, there the direct examination and thus questions outside the
is no precise and universal test of relevancy provided by law. subject matter of direct examination are not allowed?
However, the determination of whether particular evidence is
relevant rests largely at the discretion of the court, which must A:
be exercised according to the teachings of logic and everyday 1. An accused may testify as a witness on his own behalf but
experience. subject to cross-examination on matters covered by direct
examination (Sec. 1 [d], Rule 115).
Relevance of Evidence on the Credibility of Witness 2. A hostile witness may be impeached and cross-examined
by the adverse party, but such cross examination must
Q: Evidence on the credibility or lack of it of a witness is only be the subject of his examination-in-chief (Sec. 12,
always relevant. What is the purpose of the same? Rule 132).
A: In every proceeding, the credibility of the witness is always Competent Evidence

an issue. The credibility of the witness has the inherent
tendency to prove and disprove the truthfulness of his Q: What is a competent evidence?
assertion and consequently, the probative value of the
proffered evidence. A: Competent evidence is one that is not excluded by law in a
particular case.
Q: What if the credibility of a witness is found wanting?
Q: What is the test of competence?
A: Sec. 11 of Art. 132, authorizes his impeachment by
contradictory evidence, by evidence that in the past, he has A: It is the law or the rules. If the law or a particular rule
made statements inconsistent with his present testimony or excludes the evidence, it is incompetent.
by evidence that his general reputation for truth, honesty or
integrity is bad. NOTE: Competence, in relation to evidence in general, refers
to the eligibility of an evidence to be received as such.
Q: How should the court assess the testimony of a witness? However, when applied to a witness, the term competent
refers to the qualifications of the witness. In other words,
A: The Court shall be guided by the rule that for evidence to be competence refers to his eligibility to take the stand and to
believed, it must not only proceed from the mouth of credible testify. It is in the context that the term is normally associated
witness, but must be credible in itself such as the common with.
experience of mankind can approve as probable under the
circumstances. Q: Is objection on the ground that it is incompetent an
accepted form of objection?
Q: What is the purpose of cross-examination?
A: No, because it is a general objection. The objection should
A: The importance of the credibility of a witness in a judicial specify the ground for its incompetence such as leading,
proceeding is highlighted by rules which allow the adverse hearsay or parol.
party to test such credibility through a process called
crossexamination. Note that courts neither need nor appreciate generalities.
General objections are viewed with disfavor because specific
NOTE: The adverse party can test the credibility of the witness objections are required by Sec. 36, Rule 132. Thus, for
through cross-examination not only on matters taken up in the purposes of trial objections, evidence is never incompetent. It
direct examination. The broad spectrum of the questions is people who are. It is a sloppy usage to object to a testimony
allowable in a cross examination of a witness includes or a document as incompetent. Such term more appropriately
questions on matters connected with those taken up by direct describes a witness who under evidentiary rules, does not
examination. It includes questions designed to grant the cross- possess the qualifications of a witness or suffers from
examiner sufficient fullness and freedom to test the accuracy disqualification to be one.

NOTES ON EVIDENCE
Competence of electronic evidence
Electronic evidence is competent evidence and is admissible if

it complies with the rules on admissibility prescribed by the
Rules of Court and is authenticated in the manner prescribed
(Sec. 2, Rule 3, Rules on Electronic Evidence).
ADMISSIBLE EVIDENCE CREDIBLE EVIDENCE

Means that the evidence is of Refers to the worthiness of
such character that the court belief, that quality which
is bound to receive it or allow renders a witness worthy of
it to be introduced at the trial. belief. It means
It does not, however, believability.
guarantee credibility.

NOTES ON EVIDENCE
Collateral matters

NOTES ON EVIDENCE
Admissibility and weight of the evidence

Q: When is a matter collateral?
Admissibility Probative value
A: A matter is collateral when it is on a parallel or diverging Refers to the question of Refers to the question of
line, merely additional or auxiliary. This term connotes an whether certain pieces of whether the admitted
absence of a direct connection between the evidence and the evidence are to be evidence proves an issue.
matter in dispute. considered at all
Depends on its relevance and Pertains to its tendency to
For instance, the motive of a person and in some instances, his
competence convince and persuade
reputation are matters that may be considered collateral to
the subject of a controversy. A very strong motive to kill the
NOTE: To admit evidence and not believe it are not
victim does not ipso facto make motive relevant to the issue
incompatible with each other.
of guilt or innocence because the person with absolutely no
motive to kill could be the culprit.
Jurisprudential tenets on probative value and credibility
Evidence of the bad reputation of the accused for being
troublesome and aggressive does not make the evidence 1. Whether or not a witness or evidence is credible is an
admissible to prove his guilt. After all, the culprit could have issue addressed to the judgment of the trial court (People
been the person with the most endearing reputation. v. Castro, 2008).
2. The determination of the credibility of a witness is within
When collateral matters are allowed the domain of the trial court (Llanto v. Alzona, 450 SCRA
288) and is given great weight and respect because the
Q: Are collateral matters allowed? trial court has the opportunity to observe the witness and
their demeanor during the trial.
A: As a rule, evidence on a collateral matte is not allowed. It is 3. However, where the trial judge did not hear the
not allowed because it does not have the direct relevance to testimonies himself, he would not be in a better position
the issue of the case. than SC to assess the credibility of witnesses on the basis
of their demeanor (BPI v. Reyes, 2008). It had the unique
advantage of having personally observed the witnesses,
Q: Is this rule absolute?
their demeanor, conduct, and attitude (People v. Nueva,
2008).
A: No. A collateral matter may be admitted if it ends in any
4. Testimonies or child-victims are normally given full weight
reasonable degree to establish the probability or improbability
and credit, since where a woman, more so if he is a minor,
of the fact in issue.
says that she is raped, she says in effect all that is
necessary to show that rape was committed. There could
While the evidence may not bear directly on the issue, it will
not have been a more powerful testament to the truth
be admitted if it has the tendency to induce belief as to the
than this public baring of unspoken grief (People v.
probability or improbability of the issues of the case as when
Aguilar, 2007).
it would have the effect of corroborating or supplementing
5. No woman, much less one of tender age, would broadcast
facts previously established by direct evidence.
a violation of her person, allow an examination of her
flesh, and endure public trial of her remaining dignity,
In civil cases, evidence of the moral character of a party is
unless she is solely impelled by the desire for redress.
admissible when pertinent to the issue of character involved
Thus, when her testimony is plausible, spontaneous,
in the case. Also, evidence of the good character has been
convincing and consistent with human nature and the
previously impeached.
ordinary course of things, it can indeed beget moral
certainty of the guilt of the violator.
Admissible evidence distinguished from credible evidence
6. The court will not disturb the factual finding of the trial
Competency of witness v. Credibility of witness
court unless there is a showing that the latter had
overlooked, misunderstood, or misapplied some fact or
Also, the competency of witness differs from his credibility. A circumstance of weight and substance that would have
witness may be competent, and yet give incredible testimony; affected the result of the case.
he may be incompetent, and yet his evidence if received, is
perfectly credible.

A. Judicial Notice
NOTES ON EVIDENCE
7. Minor inconsistencies are too trivial to affect the

NOTES ON EVIDENCE
credibility of witness, and these may even serve to Sec. 3.Judicial notice, when hearing necessary. During the
strengthen their credibility as these negate any suspicion trial, the court, on its own initiative, or on request of a party,
that the testimonies have been rehearsed (Ingal v. People, may announce its intention to take judicial notice of any
2008) matter and allow the parties to be heard thereon.
8. Accuracy in accounts had never been applied as a
standard to which credibility of witnesses are tested since After the trial, and before judgment or on appeal, the proper
it is undeniable that human memory is fickle and prone to court, on its own initiative or on request of a party, may take
stresses and passage of time (People v. Tolentino, 2008). judicial notice of any matter and allow the parties to be heard
9. Inconsistencies between the sworn statement and the thereon if such matter is decisive of a material
testimony in court do not militate against the witness; issue in the case. (n)
credibility since the sworn statements are generally
considered inferior to the testimony in open court (People NOTE: There are matters in litigation which must be admitted
v. Bajada, 2008). without need for evidence.
10. The factual findings of quasi-judicial agencies are
generally accorded respect and even finality by the SC if Examples:
supported by substantial evidence in recognition of their 1. That a place where the crime was committed, such as
expertise on specific matters under consideration Quezon City actually exists
(Quiambao v. CA, 454 SCRA 17). 2. There is no need to adduce evidence that the statute
11. A community tax receipt is not credible and reliable in allegedly violated exist because the court is charged with
proving the identity of a person who wishes to have his knowledge of the law it being the product of an official act
document notarized (Baylon v. Almo, 2008). of the legislative department of the Philippines
12. In determining the value and credibility of evidence, 3. There is likewise no need to adduce evidence that there
witnesses are to be weighed, not numbered (Bastian v. are 24 hours in a day and that the sun rises in the east and
CA, 2008). sets in the west.
13. The testimony of a single witness, if positive and credible, 4. The fact the Cebu lies in the Visayan Region needs no
is sufficient to support a conviction even in the charge of further evidence.
murder (People v. Zeta, 2008).
Q: What is the basis of judicial notice?
A: It is based on the maxim, what is known need not be

Chapter II JUDICIAL NOTICE AND ADMISSIONS
proved, hence when the rule is invoked, the court may
dispense with the presentation of evidence on judicially
cognizable facts.
RULE 129
Function of Judicial notice
SECTION 1.Judicial notice, when mandatory. A court shall
take judicial notice, without the introduction of evidence, of Q: What is the function of judicial notice?
the existence and territorial extent of states, their political
history, forms of government and symbols of nationality, the A: To abbreviate litigation by the admission of matters that
law of nations, the admiralty and maritime courts of the need no evidence because judicial notice is a substitute for
world and their seals, the political constitution and history of formal proof of a matter by evidence. It takes the place of
the Philippines, the official acts of legislative, executive and proof and is of equal force. Evidence shall be dispensed with
judicial departments of the Philippines, the laws of nature, because the matter is so well known and is of common
the measure of time, and the geographical divisions. knowledge not to be disputable.
(1a)
NOTE: Judicial notice cannot be used to fill in the gaps in the
Sec. 2.Judicial notice, when discretionary. A court may take partys evidence. It should not be used to deprive an adverse
judicial notice of matters which are of public knowledge, or party of the opportunity to prove a disputed fact.
are capable to unquestionable demonstration, or ought to be
known to judges because of Q: What are the kinds of judicial notice?
their judicial functions. (1a)
A:

NOTES ON EVIDENCE
1. Mandatory- no motion or hearing is necessary for the A:

court to take judicial notice of a fact because this is a 1. The existence and territorial extent of states
matter which a court ought to take judicial notice of. 2. The political history, forms of the government and
2. Discretionary symbols of nationality of sates
3. The law of nations
Q: What matters are subject to mandatory judicial notice? 4. The admiralty and maritime courts of the world and their
5. seals
6. The political constitution and the history of the Philippines
7. The official acts of the legislative, executive and judicial
departments of the Philippines
8. The law of nature
9. The measure of time
10. The geographical divisions
Siena Realty Corporation v. Gal-lang
Even if petitioners did not raise or allege the amendment of the

Rules of Court in their motion for reconsideration, the CA
should have taken mandatory judicial notice of the same.
Under Sec.1 of Rule 129, a court shall take judicial notice
among others, of the official acts not only of the legislative and
executive departments but also of the judicial
department.
DENR v. DENR Region 12 Employees
A court has the mandate to apply relevant statutes and

jurisprudence in determining whether the allegation in a
complaint establish a cause of action. A court cannot disregard
decisions material to the proper appreciation of the questions
before it.
Candido v. CA

NOTES ON EVIDENCE
A document, or any article for that matter, is not evidence

NOTES ON EVIDENCE
when it is simply marked for identification; it must be formally judicially noticed, provided they are of such universal notoriety
offered, and the opposing counsel given an opportunity to and so generally understood that they may be regarded as
object to it or to cross-examine the witness called upon to forming part of common knowledge of every person.
prove or identify it. A formal offer is necessary since judges are
required to base their findings of fact and judgment only and On the other hand, matters which are capable of
strictly upon the evidence offered by the parties at the trial. unquestionable demonstration pertain to fields of professional
Xxx The appellate court will have difficulty reviewing and scientific knowledge. As to matters which ought to be
documents not previously scrutinized by the court below. The known to judges because of their judicial functions, an
pertinent provisions of the Revised Rules of Court on the example would be facts which are ascertainable from the
inclusion on appeal of documentary evidence or exhibits in the record of the court proceedings, e.g., as to when the court
records cannot be stretched as to include such pleadings or notices were received by a party (People v. Tundag, 342 SCRA
documents not offered at the hearing of the case. 704).
Suplico v. NEDA Q: Can a court take judicial notice of a factual matter in

controversy?
In this case the Court took judicial notice of the declaration of
the President that the Philippine government had decided not A: No. Before taking such judicial notice, the court must allow
to continue with the ZTE-NBN Project due to several reasons the parties to be heard thereon (Herrera v. Bollos, 374 SCRA
and constraints. They are official acts and thus, a matter of 107).
mandatory judicial notice under Sec. 1 of Rule 129.
Q: Where does the discretion lie?
When judicial notice is discretionary
Q: When is judicial notice is discretionary?
A: 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 (Sec. 2, Rule 129).
Q: What are the requisites for the principles of discretionary

judicial notice to apply?
A:
1. The matter must be one of common knowledge
2. The matter must be settled beyond reasonable doubt
3. The knowledge must exist within the jurisdiction of the
court.
NOTE: The principal guide in determining what facts may be

assumed to be judicially known is that of notoriety. Judicially
noticed fact must be one not subject to a reasonable dispute
that is either:
a. Generally known within the territorial jurisdiction of
the trial court
b. Capable of accurate and ready determination by
resorting to sources whose accuracy cannot
reasonably be questionable.
Facts which are universally known, and which may be found in

encyclopedias, dictionaries and other publications, are

NOTES ON EVIDENCE
A: Judicial notice rests on the wisdom and discretion of the

NOTES ON EVIDENCE
court. The power to take judicial notice must be exercised with Q: Is judicial notice limited by the actual knowledge of the
caution and care must be taken that the requisite notoriety individual judge or court?
exists.
A: No. A judge must take judicial notice of a fact if it is one
Q: In case of doubt, how should the court resolve the same? which is the proper subject of judicial cognizance even if it is
not within the personal knowledge.
A: Any reasonable doubt on the matter sought to be judicially
noticed must be resolved against the taking of judicial notice A judge may not take judicial notice of a fact which he
(State Prosecutors v. Muro, 236 SCRA 505). personally knows if it is not part of evidence or not a fact
generally known within its territorial jurisdiction.
NOTE: To say that a court will take judicial notice of a fact is
merely another way of saying that the usual form of evidence Q: What is the rule on foreign laws?
will be dispensed with if knowledge of the fact can be
otherwise acquired. This is because the court assumes that te A: Courts of the forum will not take judicial notice of the law
matter is so notorious that it will not be disputed (Land Bank prevailing in another country. Foreign laws must be alleged
of the Philippines v. Wycoco, 419 SCRA 67). and proved.
Sec. 3.Judicial notice, when hearing necessary. During the Stage when judicial notice may be taken
trial, the court, on its own initiative, or on request of a party,
may announce its intention to take judicial notice of any The court can take judicial notice of a fact during or after trial:
matter and allow the parties to be heard thereon. 1. Judicial notice may be taken during the trial of the case.
The court, during the trial, may announce its intention to
After the trial, and before judgment or on appeal, the proper take judicial notice of any matter. It may do so on its own
court, on its own initiative or on request of a party, may take initiative or on the request of any party and allow the
judicial notice of any matter and allow the parties to be heard parties to be heard.
thereon if such matter is decisive of a material
issue in the case. (n) Q: In the above rule, what is the purpose of the hearing?
Q: Can market value be judicially noticed? A: Only for the purpose of determining the propriety of taking
judicial notice of a certain matter and not for the purpose of
A: While the market value may be one of the bases in proving the issues in the case.
determining just compensation, the same cannot be arbitrarily
arrived at without considering the factors to be appreciated in 2. Judicial notice may also be taken by the proper court after
arriving at the FMV of the property. The court should have the trial, and before judgment. Judicial notice may also be
allowed the parties to present evidence thereon instead of taken on appeal. The proper court, on its own initiative or
practically assuming a valuation without the basis. on request of any party, may take judicial notice of any
matter and allow the parties to be heard thereon if such
Judicial knowledge and knowledge of the Judge matter is a decisive of a material issue in the case.
Judicial notice may be taken of a fact which judges ought to Judicial notice of foreign laws;
know because of their judicial functions (Sec. 2, Rule 129). Doctrine of Processual Presumption
Q: Is judicial notice the same as judicial knowledge? Q: What is the rule on foreign laws?
A: No. The mere personal knowledge of the judge is not the A: It is well-settled that our courts cannot take judicial notice
judicial knowledge of the court, and he is not authorized to of foreign laws. Like any other facts, they must be alleged and
make his individual knowledge of a fact, not generally or proved. Australian marital laws for example, are not among
professionally known, the basis of his action (Land Bank of the those matters that judges are supposed to know by reason of
Philippines v. Wycoco, 419 SCRA 67; State Prosecutors v. their juridical functions (Garcia v. Garcia-Recio, 366 SCRA 437).
Muro, 236 SCRA 505).
Q: The rule is foreign laws must be alleged and proved.
NOTES ON EVIDENCE
What is the effect of the absence of proof?
A: Then, the foreign law will be presumed to be the same as

the laws of the jurisdiction hearing the case under the doctrine
of processual presumption (Northwest Orient Airlines v. CA,
241 SCRA 192).

NOTES ON EVIDENCE

NOTES ON EVIDENCE
Q: What if the foreign law is within the actual knowledge of notwithstanding the fact that both cases may have been heard
the court such as when the law is generally well known? or are actually pending before the same judge (Tabuena v. CA,
196 SCRA 650).
A: The court may take judicial notice of the foreign law (PCIB v.
Escolin, 56 SCRA 266). Q: What are the exceptions to this rule?
NOTE: When the foreign law is part of a published treatise, A:

periodical, or pamphlet and the writer is recognized in his
profession, or calling as expert in the subject, the court may 1. When in the absence of any objection, with knowledge of
take judicial notice of the treatise containing the foreign law. the opposing party, the contents if said other cases are
clearly referred to by title and number in a pending action
Judicial notice of the Law of Nations and adopted or read into the record of the latter
2. When the original record of the other case or any part of
Q: What is the rule regarding Judicial notice of the Law of the other case or any part of it is actually withdrawn from
Nations? the archives at the courts discretion upon the request, or
with the consent, of the parties, and admitted as part of
A: When the foreign law refers to the law of nations, said law the record of the pending case (Tabuena v. CA, 196 SCRA
is subject to a mandatory judicial notice under Se. 1 of Rule 650).
129. Under Sec. 2, Art. II of the Constitution, the Philippines
adopts the generally accepted principles of international law Rule on Judicial Notice of Post office practices
as part of the law of the land.
That a registered letter when posted is immediately stamped
Judicial notice of Municipal Ordinances with the date of its receipt, indicating therein the number of
registry, both on the covering envelope itself and on the
Q: What is the rule regarding Judicial notice of Municipal receipt delivered the letter to the office is not a proper subject
Ordinances? of judicial notice. This post office practice is not covered by any
of the instances under the Rules and is not of unquestionable
A: MTCs must take judicial notice of municipal ordinances in demonstration (Republic v. CA, 107 SCRA
force in the municipality in which they sit (U.S. v. Blanco, 37 504).
Phil 126).
Judicial notice of banking practices
An RTC must also take judicial notice of municipal ordinances
in force in the municipalities within their jurisdiction but only Q: May judicial notice be taken of the practice of banks in
so required by law (City of Manila v. Garcia, 19 SCRA 413). conducting background checks on borrowers and sureties?
The CA may take judicial notice of municipal ordinances A: Yes. It is noted that it is their uniform practice, before
because nothing in the Rules prohibits it from taking approving a loan, to investigate, examine, and assess wouldbe
cognizance of an ordinance which is capable of unquestionable borrowers credit standing or real estate offered as security for
demonstration (Gallego v. People, 8 SCRA 813). the loan applied for (Solidbank Corp. v. Mindanao Ferroalloy
Corp., 464 SCRA 409).
Judicial notice of a Courts Own acts and records
Judicial notice of financial condition of the government
A court may take judicial notice of its own acts and records in
the same case (Republic v. CA, 277 SCRA 633). Judicial notice could be taken of the fact that the government
is and has for many years been financially strapped, to the
Q: What is the rule regarding contents of the records of other point that even the most essential services have suffered
cases? serious curtailment (La Bugal-Blaan Tribal Association v.
Ramos, 445 SCRA).
A: The court is not authorized to take judicial notice of the
contents of the records of other cases, even when such cases
have been tried or are pending in the same court, and
NOTES ON EVIDENCE
NOTICE: The official acts of the legislative, executive and

judicial departments are proper subjects of mandatory judicial
notice (DENR v. DENR Region 12 Employees).
Judicial notice of other matters
1. The trial courts can take judicial notice of the general

increase in rentals of real estate especially of business
establishments.
2. A court cannot take judicial notice of an administrative
regulation or of a statute that is not yet effective.
3. Judicial notice of the age of the victim is improper.
B. Judicial Admissions

NOTES ON EVIDENCE
4. In this age of modern technology, the courts may take

NOTES ON EVIDENCE
judicial notice that business transactions may be made by 3. Sec. 4 of Rule 129 does not require a particular form for
individuals through teleconferencing. (Expertravel and an admission. Such form is immaterial because the
Tours v. CA, 459 SCRA 147). provision recognized either a verbal or a written
5. It can be judicially noticed that the scene of the rape is not admission.
always nor necessarily isolated or secluded, for lust is no
respecter of time or place (People v. Tundag, 342 SCRA Q: Where can judicial admissions be made?
147).
6. The court has likewise taken judicial notice of the Filipinas A: A part may make judicial admissions in:
inbred modesty and shyness and her antipathy in publicly
airing acts which blemish her honor and virtue. a. Pleadings;
7. The trial court properly took judicial notice that Talamban, b. During trial, either verbal or written manifestations or
Cebu City is an urban area (Chiongbian-Oliva v. Republic, stipulations; or
2007). c. In other stages of the judicial proceedings.
8. It is of judicial notice that the judiciary is beset with the
gargantuan task in unclogging dockets, not to mention the The stipulation of facts at the pre-trial of a case constitutes
shortage of judges occupying positions in far flung areas judicial admissions. They are binding and conclusive upon
(GSIS v. Vallrar, 2007). them. The veracity of judicial admissions requires no further
9. Judicial notice can be taken of the fact that testimonies proof and may be controverted only upon a clear showing that
during the trial are much more exact and elaborate than the admissions were made through palpable mistake or that
those stated in sworn statements, usually being no admissions were made.
incomplete and inaccurate for a variety of reasons.
10. Judicial notice can be had that drug abuse can damage the Admission in drafted documents
mental faculties of the user.
11. The court cannot be expected to take judicial notice of the An admission made in a document drafted for purposes of
new address of lawyer who has moved or to ascertain on filling as a pleading but never filed, is not a judicial admission.
its own whether or not the counsel of record has been If signed by the party, it is deemed an extrajudicial admission.
changed and who the new counsel could possibly be or If signed by the attorney, it is not even an admission by the
where he probably resides or holds office. party. The authority of the attorney to make statements for
the client extend only to statements made in open courts or in
pleadings filed with the court (Jackson v. Schine Lexington).
Admissions made in pleadings and motions
Rule 129 GENERAL RULE
Sec. 4.Judicial admissions. An admission, verbal or written, Admissions made in the pleadings of a party are deemed
made by the party in the course of the proceedings in the judicial admissions. This includes admissions made in the
same case, does not require proof. The admission may be complaint. Thus, they cannot be contradicted unless there is a
contradicted only by showing that it was made through showing that it was made through palpable mistake or that no
palpable mistake or that no such admission was such admission was made.
made. (2a)
Admissions made in a motion are judicial admissions which are
Q: What are the elements for a judicial admissions be binding on the party who made them. Such party is precluded
considered? from denying the same unless there is a proof of palpable
mistake (Herrera-Felix v. CA, 436 SCRA 87).
A:
1. The same must be made by a party to the case. EXCEPTION
2. The admission to be judicial must be made in the course
of proceedings in the same case. Otherwise, it will be In those rare instances when the trial court, in the exercise of
considered as an extra-judicial admission for purposes of its discretion and because of strong reasons to support its
the other proceeding where such admission is offered. stand, may relive a party from the consequences of his
NOTES ON EVIDENCE
admission. It cannot be contradicted unless it can be shown

that the admission, the allegations, statements, or admissions
contained in a pleading are conclusive as against the pleader
(Heirs of Pedro Clemea v. Heirs of Irene B. Bien, G.R. No.
155508).
An answer is a mere statement of fact which the party filing it

expects to prove, but it is not evidence (Spouses Santos v.
Spouses Lumbao, G.R. No. 169129).

NOTES ON EVIDENCE
An admission made in a pleading may be an actual admission

NOTES ON EVIDENCE
as when a party categorically admits a material allegation admissions, matters of judicial notice, stipulations made
made by the adverse party. An admission may also be inferred during the pre-trial, admissions, and presumptions (Casent
from the failure to specifically deny the material allegations in Realty Development Corporation v. PhilBanking Corporation,
the other partys pleadings. G.R. No. 150731).
Averments in pleadings which are not deemed admissions Admissions in the Pre-trial of civil cases
There are averments in pleadings which are not deemed Admissions in the pre-trial, as well as those made during the
admitted even if the adverse party fails to make a specific depositions, interrogatories or requests for admission, are all
denial of the same like immaterial allegations, conclusions, deemed judicial admissions because they are made in the
non-ultimate facts in the pleading as well as the amount of course of the proceedings of the case.
unliquidated damages.
Admissions in pre-trial briefs are judicial admissions and
Implied admissions of allegations of usury wellsettled is the rule that an admission, verbal or written,
made by a party in the course of the proceedings in the same
Under sec. 11 of Rule 8, if the complaint makes an allegation of case, does not require proof.
usury to recover usurious interest, the defendant must not
only specifically deny the same but must also do so under oath. The parties are bound by the representations and statements
Otherwise, there is an implied admission of the allegation of in their respective pre-trial briefs submission of which being
usury. mandatory in a pre-trial of a civil case.
Rule 8 G.R: The admissions of the parties during pre-trial as embodied

in the pre-trial order are binding and conclusive on them.
Sec. 11 XPN: Unless there is a clear showing that the admission was
entered through palpable mistake.
Implied admission of actionable documents Admissions in the pre-trial of criminal cases (Rule 118)
When an action or defense is founded upon a written An admission made by the accused in the pre-trial of a criminal
instrument, the genuineness and due execution of the same case is not necessarily admissible against him. To be
instrument shall be deemed admitted unless the adverse admissible, the conditions under Sec. 2 of Rule 118 must be
party, under oath, specifically denies them and set forth what complied with:
he claims to be the facts. Otherwise, there is a judicial
admission pursuant to sec. 8, Rule 9. Sec. 2. Pre-trial agreement- All agreements or admissions
made or entered during the pre-trial conference shall be
Failure to deny the genuineness and due execution of an reduced in writing and signed by the accused and counsel,
actionable document does not preclude a party from arguing otherwise they cannot be used against the accused.
against the document by evidence of fraud, mistake,
compromise, payment, statute of limitations, estoppels, and Q: Does the rule requiring an admission made or entered into
want of consideration. He is however precluded from arguing during the trial conference to be reduced in writing and
that the document is a forgery because the genuineness of the signed by the accused and his counsel before the same may
document has been impliedly admitted by his failure to deny be used in evidence against the accused, equally apply to
the same under oath. stipulation of facts made during the trial?
Q: Does the failure of A to file a reply and deny the dacion and A: No, a stipulation of facts entered into by the prosecution
the confirmation statement under oath constituted a judicial and defense counsel during trial in open court is automatically
admission of the genuineness and due execution of the said reduced in writing and contained in the official transcript of
documents? proceedings had in court. The conformity of the accused in the
form of his signature affixed thereto is unnecessary in view of
A: Yes. Also, in resolving a demurrer, the court should not only the fact than an attorney who is employed to manage a partys
consider the plaintiffs evidence. It should also include judicial conduct of a lawsuit has a prima facie authority to make

NOTES ON EVIDENCE
relevant admissions by pleadings, by oral or written stipulation requested. Since the defendant failed to comply with the
which unless allowed to be withdrawn are conclusive. requirements of the Rules, he is deemed to have made an
implied admission of the matters subject of the request for
Q: During pre-trial Bimby personally offered to settle the case admission.
for 1M to the private prosecutor, who immediately put the
offer on record. Is Bimbys offer a judicial admission of his Rule 26
guilt?
Sec. 2
A: Yes. A judicial admission is one that is verbal or written,
made by a party in the course of the proceedings in the same Sec.3
case.
Admissions in amended pleadings
Under Sec. 27 of Rule 130, the judicial admission could be
considered as an implied admission of guilt. When a pleading is amended, the amended pleading
supersedes the pleading that it amends and the admissions in
Sec. 27.Offer of compromise not admissible. In civil cases, the superseded pleading may be received in evidence against
an offer of compromise is not an admission of any liability, the pleader.
and is not admissible in evidence against the offeror.
Nature of admissions in superseded pleadings
In criminal cases, except those involving quasi-offenses
(criminal negligence) or those allowed by law to be Admissions in a superseded pleading are to be considered as
compromised, an offer of compromised by the accused may extrajudicial admissions which must be proven. Pleadings that
be received in evidence as an implied admission of guilt. have been amended disappear from the record, lose their
status as pleadings and cease to be judicial admissions, and to
A plea of guilty later withdrawn, or an unaccepted offer of a be utilized as extrajudicial admissions, they must, in order to
plea of guilty to lesser offense, is not admissible in evidence have such effect, be formally offered in evidence.
against the accused who made the plea or offer.
Admissions in dismissed pleadings
An offer to pay or the payment of medical, hospital or other
expenses occasioned by an injury is not admissible in Admissions made in pleadings that have been dismissed are
evidence as proof of civil or criminal liability for the injury. merely extrajudicial admissions.
(24a)
Hypothetical admissions in a motion to dismiss
Implied admissions in the modes of discovery
A motion to dismiss hypothetically admits the truth of the
Admissions obtained through depositions, written allegations of the complaint (Magno v. CA, 107 SCRA 285).
interrogatories or requests for admission are also considered However, the admission extends only to such matters of fact
judicial admissions. that have been sufficiently pleaded and not to mere epithets
charging fraud, allegations of legal conclusions, or erroneous
Under Sec.3 of Rule 26, any admission made pursuant to the statements of law, inferences from facts not stated, matters of
request for admission is for the purpose of the pending action evidence or irrelevant matters (De Dios v. Bristol Laboratories,
only. The admission shall not be considered as one for any 55 SCRA 349).
other purpose nor may the same be used against him in any
other proceeding. Admissions by counsel
Sec. 2 of Rule 26 requires the other party to file and serve a Q: What is the effect of admissions by counsel?
sworn statement either denying specifically the matter of
which an admission or requested or setting forth in detail the A: They are generally conclusive upon a client (De Garcia v.
reasons why he cannot truthfully either admit or deny those CA, 37 SCRA 129). Even the negligence of counsel binds the
matters. The failure to do so will result into an implied client.
admission of each of the matters of which an admission is

NOTES ON EVIDENCE
Q: What is the exception to the rule?
A: In case where reckless or gross negligence of counsel

deprives the client of due process of law, or when its
application will result in outright deprivation of the clients
liberty, or property, or when the interests of justice so require
(Salazar v. CA, 376 SCRA 459).
NOTE: Admissions made for the purpose of dispensing with

proof of some facts are in the nature of judicial admissions.
Such admissions are frequently those of counsel, or of the
attorney of record, who is, for the purpose of the trial, the
agent of his client. When such admissions are made for the
purpose of dispensing with proof of some fact, they bind the
client, whether made during or even after the trial.
Consequences of judicial admissions
Q: What is the consequence of judicial admissions?
C. Admissions, Confessions, and the Res

Inter Alios Acta Rule
NOTES ON EVIDENCE
A: A party who judicially admits a fact cannot later challenge

NOTES ON EVIDENCE
that fact, as judicial admissions are waiver of proof; production Sec. 27.Offer of compromise not admissible. In civil cases,
of evidence is dispensed with. No evidence is needed to prove an offer of compromise is not an admission of any liability,
judicial admission and it cannot be contradicted unless it is and is not admissible in evidence against the offeror.
shown to have been made through palpable mistake or that no
such admission was made but despite the presence of judicial In criminal cases, except those involving quasi-offenses
admissions in a partys pleading, the trial court is still given (criminal negligence) or those allowed by law to be
leeway to consider other evidence presented because compromised, an offer of compromised by the accused may
admissions may not necessarily prevail over documentary be received in evidence as an implied admission of guilt.
evidence.
A plea of guilty later withdrawn, or an unaccepted offer of a
Q: Under Sec. 4, Rule 129, what are the effects of judicial plea of guilty to lesser offense, is not admissible in evidence
admissions? against the accused who made the plea or offer.
A: An offer to pay or the payment of medical, hospital or other

1. They do not require proof expenses occasioned by an injury is not admissible in
2. They cannot be contradicted because they are conclusive evidence as proof of civil or criminal liability for the injury.
upon the party making it (24a)
Q: What are the exceptions to this? Sec. 28.Admission by third party. The rights of a party
cannot be prejudiced by an act, declaration, or omission of
A: another, except as hereinafter provided. (25a)
1. Upon showing that the admission was made through
palpable mistake Sec. 29.Admission by co-partner or agent. The act or
2. When it is shown that no such admission was made. declaration of a partner or agent of the party within the scope
of his authority and during the existence of the partnership
Q: What do you mean by palpable mistake? or agency, may be given in evidence against such party after
the partnership or agency is shown by evidence other than
A: The mistake that would relieve the party from the effects of such act or declaration. The same rule applies to the act or
his admission is not any mistake. It must be one that is declaration of a joint owner, joint debtor, or other person
palpable, a mistake that is clear to the mind or plain to see. It jointly interested with the party.
is a mistake that is readily perceived by the senses or the mind. (26a)
Q: When can a party use the admission that there is no such Sec. 30.Admission by conspirator. The act or declaration of
admission? a conspirator relating to the conspiracy and during its
existence, may be given in evidence against the coconspirator
A: This may be invoked when the statement of a party is taken after the conspiracy is shown by evidence other
out of context or that his statement was made not in the sense than such act of declaration. (27)
it is made to appear by the other party. Here, what he denies
is the meaning attached to his statement, a meaning made to Sec. 31.Admission by privies. Where one derives title to
appear by the adverse party as an admission. 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. (28)
Sec. 32.Admission by silence. An act or declaration made in

the presence and within the hearing or observation of a party
Rule 130
who does or says nothing when the act or declaration is such
as naturally to call for action or comment if not true, and
Sec. 26.Admission of a party. The act, declaration or
when proper and possible for him to do so, may be
omission of a party as to a relevant fact may be given in
given in evidence against him. (23a)
evidence against him. (22)

NOTES ON EVIDENCE
Sec. 33.Confession. 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. (29a)

NOTES ON EVIDENCE
Sec. 34.Similar acts as evidence. Evidence that one did or

NOTES ON EVIDENCE
did not do a certain thing at one time is not admissible to Q: Explain confession in criminal cases.
prove that he did or did not do the same or similar thing at
another time; but it may be received to prove a specific intent A: Confession is an acknowledgment in express terms, by a
or knowledge; identity, plan, system, scheme, habit, custom party in a criminal case, of his guilt of the crime charged.
or usage, and the like. (48a)
Q: Explain admission in criminal cases.
Sec. 35.Unaccepted offer. An offer in writing to pay a
particular sum of money or to deliver a written instrument or A: It is a statement by the accused, direct or implied, of facts
specific personal property is, if rejected without valid cause, pertinent to the issue, and tending, in connection with proof
equivalent to the actual production and tender of the money, of other facts, to prove his guilt.
instrument, or property. (49a)
NOTE: An admission is something less than a confession, and is
Q: What is an admission? but an acknowledgment of some fact or circumstance which in
itself is insufficient to authorize a conviction, and which tends
A: It is an act, declaration or omission of a party as to a relevant only to establish the ultimate fact of guilt.
fact. It is a voluntary acknowledgement made by a party of the
existence of the truth of certain facts which are inconsistent Admissions v. Declarations against interest
with his claims in an action.
ADMISSION DECLARATION AGAINST
Q: What is confession? INTEREST
An admission is admissible To be admitted as a
A: It is the declaration of an accused acknowledging his guilt of
even if the person making the declaration against interest,
the offense charged, or of any offense necessarily included
admission is alive and is in the declarant must be dead
therein. It is a statement by the accused that he engaged in
court or unable testify
conduct which constitutes a crime.
Made at anytime even during Made before the controversy
Q: What if a person declares in his counter-affidavit that he trial arises
performed an act like shooting the victim but denies that he Admissible as long as it is Made against ones
did so with criminal intent because the shooting was done in inconsistent with his present pecuniary or moral interest
self-defense? claim or defense and need
not be against ones
A: Such is merely an admission and not an admission (Ladiana pecuniary or moral interest
v. People, 393 SCRA 419). Admissible only against the Admissible even against third
party making the admission persons
NOTE: An admission in a general sense includes confessions,
Not an exception to the An exception to the hearsay
the former being a broader term because accordingly, a hearsay rule, and is rule
confession is also an admission by the accused of the fact admissible not as an
charged against him or of some fact essential to the charge. exception to the rule
A confession is a specific type of admission which refers only Effects of admissions

to an acknowledgement of guilt.
Q: What are the effects of admissions?
Q: May admission be implied?
A:
A: Yes, like an admission by silence.
1. An admission by a party may be given in evidence against
him. His admission is not admissible in his favor, because
Q: What about confession? it would be self-serving evidence. Declarations of a party
favorable to himself are not admissible as proof of the
A: No, it should be a direct and positive acknowledgment of facts asserted.
guilt. 2. The act, declaration, or admission of a party as to a
relevant fact may be given in evidence against him. This
NOTES ON EVIDENCE
rule is based on the notion that no man would make any

declaration against himself, unless it is true.
Classification of admissions and confessions
Q: What are the classification of and confessions?
A:
1. Express a positive statement or act.
2. Implied one which may be inferred from the declarations
or acts of a person
NOTE: A confession cannot be implied. It must be a positive

acknowledgment of guilt and cannot be inferred.

NOTES ON EVIDENCE

NOTES ON EVIDENCE
3. Judicial when made in the course of a judicial proceeding

4. Extra-judicial when made out of court or even in the A: It may be proven by circumstantial evidence but such proof
proceeding other than the one under consideration must be convincing and compatible with the nature of the
5. Adoptive- occurs when a person manifests his assent to case.
the statements of another person. A party may, by his own
words, or conduct, voluntarily adopt or ratify anothers Dangerous Drugs
statement. By adoptive admission, a third persons
statement becomes the admission of the party embracing In the prosecution for illegal sale of dangerous drugs, it is not
or espousing it. enough to prove that the transaction took place and that the
buyer and seller were identified. The corpus delicti must be
Q: When can there be adoptive admission? offered in evidence. The police officer must comply with the
proper procedure in the custody of the seized drugs. After the
A: seizure and confiscation, the drugs must be physically
1. When a party expressly agrees to or concurs in an oral inventoried and photograph in the presence of the accused,
statement made by another and or his representative, who shall be required to sign the
2. Hears a statement and later on essentially repeats it copies of the inventory and be given a copy thereof. Failure to
3. Utters an acceptance or builds upon the assertion of comply with such requirement raises a doubt whether what
another was submitted for laboratory examination and presented on
4. Replies by way of rebuttal to some specific points court were the one actually recovered from the accused.
raised by another but ignores further points which he
or she has heard the other make Theft
5. Reads and signs a written statement made by another
(Republic v. Kenrick Development Corp., 2006). Corpus delicti has 2 elements:
Example: Alleged admissions made by Pres. Estrada when his a. That the property was lost by the owner;
options had dwindled (Estrada v. Desierto, 356 SCRA 108). b. That it was lost by felonious taking
Effect of extra-judicial confession of guilt; Corpus Delicti Illegal possession of firearms
Q: Is extra-judicial confession The corpus delicti in this crime is the accuseds lack of license
sufficient to warrant conviction? or permit to possess or to carry the firearm, as possession itself
is not prohibited by law.
A: An extra-judicial confession, unlike judicial confession is not
sufficient for conviction. The rule requires that the confession People v. Sasota (91 Phil 111)
be corroborated by evidence of corpus delicti.
It is not necessary to recover the body or to show where it can
Q: What is corpus delicti? be found in a case of murder or homicide. There are cases like
death at sea, where the finding or the recovery f the body is
A: It means the body of the crime or the offense. Strictly impossible. It is enough that the death and the criminal agency
speaking, it means the actual commission of the crime and causing it be proven. Also, the element of eath in the corpus
someone criminally responsible therefor. It is the substance of delicti may be established by circumstantial evidence. Thus,
the crime. facts are admissible to show the impossibility of rescue, as at
sea, to show the existence and extent of wounds, and the
Q: What are the 2 elements of corpus delicti? deceaseds condition of health; and to show that the wound
was sufficient to cause death and that the party was reported
A: death.
1. Proof of the occurrence of a certain event 2. Some
persons criminal responsibility for the act (People v. Boco, Murder or Homicide
309 SCRA 42).
It is not necessary to recover the body of the victim or show
Q: How can the corpus delicti be proven? where it can be found.
NOTES ON EVIDENCE
Sec. 2(d) of Republic Act 7438
Q: What are the requirements in order that an admission of

guilt of an accused during a custodial investigation be
admitted in evidence?

NOTES ON EVIDENCE

NOTES ON EVIDENCE
A: significant way. It is only after the investigation ceases to be a

general inquiry into an unsolved crime and begins to focus on
1. Any extrajudicial confession made by a person arrested, a particular suspect, the suspect is taken into custody, and the
detained, or under custodial investigation shall be in police carries out a process of interrogations that lend itself to
writing an signed by such person in the presence of his eliciting incriminating statements, that the rule begins to
counsel or in the latters absence, upon a valid waiver, and operate.
in the presence of any of the parents, older brothers and
sisters, his spouse, the municipal mayor, the municipal Note: R.A. No, 7438 (Sec.2(f)) has extended the meaning of
judge, district school supervisor, or priest or minister of custodial investigation to include the practice of issuing an
gospel are chosen by him; otherwise, such extrajudicial invitation to a person who is investigated in connection with
confession shall be inadmissible as evidence in any an offense he is suspected to have committed.
proceeding.
2. The confession must be corroborated by evidence of People v. Ador (432 SCRA 1)
corpus delicti (Sec.3, Rule 133).
Any waiver of these rights should be in writing and undertaken
Sec. 3.Extrajudicial confession, not sufficient ground for with the assistance of counsel. Otherwise, such admissions are
conviction. An extrajudicial confession made by an barred as evidence even if such confession were gospel truth.
accused, shall not be sufficient ground for conviction, unless
corroborated by evidence of corpus delicti. (3) Admission by silence
Q: Is an oral confession admissible as evidence of guilt? Sec. 32.Admission by silence. An act or declaration made in
the presence and within the hearing or observation of a party
A: The oral confession is not admissible as evidence of guilt. who does or says nothing when the act or declaration is such
The confession is in the nature of an extrajudicial confession as naturally to call for action or comment if not true, and
before an investigator while under custodial investigation. when proper and possible for him to do so, may be
given in evidence against him. (23a)
Note: The above rights refer to an extrajudicial confession of a
person arrested, detained or is under custodial investigation Q: Is admission by silenceadmissible evidence?
because a confession made by the accused before he is placed
under custodial investigation need not comply with the above. A: Yes. The usual pattern for its admissibility involves a
statement by a person in the presence of a party to the action,
People v. Cabiles (284 SCRA 199) criminal or civil. The statement contains assertions against the
party, which, if untrue would be sufficient cause for the party
Thus, if the accused talks to a person (mayor) in a private to deny. His failure to speak against the statement is
meeting and confessed the crime, the constitutional admissible as an admission.
requirements in a custodial investigation do not apply. When
the accused talked to the mayor as a confidant and not as a law The idea of the rule on admission by silence is that if an
enforcement officer, the uncounselled confession did not accusation is made, and a reasonable person would have
violate his constitutional rights. Constitutional procedures on denied the same if it were false, the failure to deny the
custodial investigation do not apply to spontaneous accusation by the person accused may be construed as an
statements, not elicited through questioning by authorities, implied admission of the truth of the accusation and may be
but given in an ordinary manner whereby the accused orally given in evidence against him.
admitted having committed the crime. Thus, the confession is
admissible in evidence against him, even when he did so Not every silence is an implied admission. The silence of a
without the assistance of counsel. person under investigation for the commission of an offense
should not be construed as an admission by silence because of
Aquino v. Paiste (G.R. No. 147782) constitutional reasons (R.A. 7438, Sec. 2 (b)).
Custodial investigation involves any questioning initiated by Q: What are the requisites for admission by silence?
law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any A:
NOTES ON EVIDENCE
1. That he heard and understood the statement;

2. That he was at liberty to make a denial;
3. That the statement was about a matter affecting his rights
or in which he was interested and which naturally calls for
a response;
4. That the facts were within his knowledge; and
5. That the fact admitted from his silence is material to the
issue.

NOTES ON EVIDENCE

NOTES ON EVIDENCE
Res Inter Alios Acta as declarations from one who has personal knowledge of the
facts testified to.
Res inter alios acta alteri nocere non debet literally means that
things done between strangers ought not to injure Exceptions to the Res Inter Alios Acta Rule (first branch)
those who are not parties to them
Q: What are the exceptions to the Res Inter Alios Acta Rule
Q: What are the 2 branches of this rule? (first branch)?
A: A:
1. Admission by a co-partner or agent
1. The rule that the rights of a party cannot be prejudiced by 2. Admission by a co-inspirator
an act, declaration, or omission of another; 3. Admission by privies
2. The rule that evidence of previous conduct or similar acts
at one time is not admissible to prove that one did or did Q: What is the basis for the above admissions?
not do same act another time.
A: The person making the statement is under the same
Sec. 28, Rule 130 circumstances as the person against whom it is offered. Such
circumstances gave him substantially the same interest and
Sec. 28.Admission by third party. The rights of a party the same motive to make a statement about certain matters.
cannot be prejudiced by an act, declaration, or omission of
another, except as hereinafter provided. (25a) Admissions by a co-partner or agent
Sec. 34, Rule 130 Whatever is said by an agent to a third person, during the
course of the agency and within the scope of his actual or
Sec. 34.Similar acts as evidence. Evidence that one did or apparent authority, relative to the business contemplated by
did not do a certain thing at one time is not admissible to the agency, is for legal purposes also the statement of the
prove that he did or did not do the same or similar thing at principal and is therefore, admissible against said principal.
another time; but it may be received to prove a specific intent
or knowledge; identity, plan, system, scheme, habit, custom The declarations of a partner may be admissible against the
or usage, and the like. (48a) other partners of the partnership.
The first branch holds that whatever one says or does or omits Q: Not every declaration or act made or done by a partner or
to do should only affect him but should not affect or prejudice agent is admissible against the other partners or the
others. Mans actions and declarations should affect him alone principal. For the admission of a co-partner or agent to be
and should not affect others. Thus, if X makes a statement admissible, what are the requisites which must concur?
before the media admitting his participation on a murder, his
statement is admissible against him under Sec. 26 of Rule 130. A:
1. The declaration or act of the partner and agent must have
Sec. 26.Admission of a party. The act, declaration or been made or done within the scope of his authority
omission of a party as to a relevant fact may be given in 2. The declaration or act of the partner and agent must have
evidence against him. (22) been made or done during the existence of the
partnership or agency
The rest of his statement pointing to Y and Z as coparticipants 3. The existence of the partnership or agency is proven by
in the murder are not admissible against Y and Z under the first evidence other than the declaration or act of the partner
branch. Under this rule, the statement of X should not affect or agent.
or prejudice Y and Z.
Q: What is the rule regarding any declaration made before the
The above rule has reference only to extrajudicial declarations. partnership or agency existed?
Thus, statements made in open court by a witness implicating
persons aside from his own judicial admissions, are admissible A: They are not admissible against the partners or the principal
but remains admissible against the partner or agent making
NOTES ON EVIDENCE
the declaration. It is also necessary for the application of the

exception that the proof of the agency or partnership be from
an source independent of the declaration made by the partner
or agent.
NOTE: The above rules also apply to the declarations or acts of

a joint owner, joint debtor, or other persons jointly interested
with the party.
Admissions by a co-conspirator
EXTRA-JUDICIAL JUDICIAL
May be given in evidence Admissible against the
against the confessant but declarants co-accused since
not against his co-accused the latter are afforded the
since the latter are not opportunity to cross-examine
afforded the opportunity to the former.
cross-examine him
When the extra-judicial admission of a conspirator is confirmed
at the trial, it ceases to be hearsay.
NOTES ON EVIDENCE
Q: When is there a conspiracy?

NOTES ON EVIDENCE
A: When two or more persons come to an agreement A: On a principle of good faith and mutual convenience, a
concerning the commission of a felony and decide to commit mans own acts are binding upon himself, and are evidence
it (Art. 8, RPC). against him. So are his conduct and declarations.
Q: What is the effect of conspiracy? Admission by privies
A: Once conspiracy is proven, the act of one is the act of all. Q: Who are privies?
Q: What are the requisites? A: They are persons who are partakers or have an interest in
any action or thing, or any relation to another.
A:
1. The declaration or act be made or done during the Examples:
existence of the conspiracy 1. A lessor and a lessee; a grantor and grantee; assignor
2. The declaration or act must relate to the conspiracy and assignee are privies in an estate or contract
3. The conspiracy must be shown by evidence other than the 2. Executor or administrator and the estate of the
declaration or act. deceased are privies in representation
3. An heir and his ascendant are privies in blood or
NOTE: Incriminating declarations of co-conspirators made in succession
the absence or without the knowledge of the others after the
conspiracy has come to an end is inadmissible. Q: What are the requisites for an admission of a predecessor-
in-interest against the successor-in-interest?
G.R.: An extrajudicial confession made by an accused is
admissible against him but not admissible against his A:
coaccused who took no part in the confession 1. There must be an act, declaration or an omission by a
predecessor-in-interest
XPN: When the declarant or admitter repeats in court his 2. The act, declaration, or omission of the predecessor must
extra-judicial confession during the trial and the other accused have occurred while he was holding the title to the
is accorded the opportunity to cross-examine the admitter, property
such confession or admission is admissible against both 3. The act, declaration or omission must be in relation to the
accused. property.
Q: Distinguish judicial and extra-judicial confession. Offer of compromise in civil cases
A: In civil cases, an offer of compromise is not an admission of any

liability, and is not an admission against the offeror.
Offer of compromise in criminal cases
An offer of compromise by the accused may be received in

evidence as an implied admission of guilt.
There is no implied admission of guilt if the offer of

compromise is in relation to:
a. Quasi-offenses (criminal negligence)
b. In those cases allowed by law to be compromised.
Q: The res inter alios acta provides that the rights of a party
cannot be prejudiced by an act, declaration, or admission of
Plea of Guilty later withdrawn
another. Consequently, an extra-judicial confession is binding
only upon the confession and is not admissible against his co-
Q: May the plea of guilty be withdrawn?
accused. What is the basis for this?

NOTES ON EVIDENCE
A: Yes, Sec. 2 of Rule 116 allows the accused, at arraignment,

to plead guilty to a lesser offense with the consent of the
offended party and the prosecutor provided that the lessor
offense is necessarily included in the offense charged. He may
also plead guilty to a lesser offense even after the arraignment
after withdrawing his plea of not guilty.

NOTES ON EVIDENCE
NOTE: In case the accused withdraws his guilty plea, that plea

NOTES ON EVIDENCE
of guilty later withdrawn, is not admissible in evidence against another time; but it may be received to prove a specific intent
the accused who made the plea. or knowledge; identity, plan, system, scheme, habit, custom
or usage, and the like. (48a)
An unaccepted plea of guilty to a lesser offense
Q: What is the purpose of the above rule?
Q: What if the plea of guilty to a lesser offense is not
accepted? A: The rule prohibits the admission of the so-called
propensity evidence which is evidence that tends to show
A: The rule does not provide for an adverse consequence of the that what a person has done at one time is probative of the
unaccepted plea. On the contrary, the rule provides that an contention that he has done a similar act at another time.
unaccepted plea of guilty to a lesser offense, is not admissible Evidence of similar acts or occurrences compels the defendant
in evidence against the accused who made the plea or offer. to meet allegations that are not mentioned in the complaint,
confuses him in his defense, raises a variety of relevant issues,
Q: What is the effect of an offer to pay for the medical, and diverts the attention of the court from the issues
hospital or other expenses? immediately before it. Hence, the evidentiary rule guards the
practical inconvenience of trying collateral issues and
A: It is not admissible in evidence as proof of civil or criminal protracting the trial and prevents surprise or other mischief
liability for the injured party. In other jurisdictions, this is also prejudicial to litigants.
known as the Good Samaritan Rule.
When evidence of similar acts or previous conduct is
Q: What is the Good Samaritan Rule? admissible
A: It refers to the rendering of voluntary aid to a suffering Q: In what purposes may evidence of similar facts is
person. admissible?
Subsequent remedial measures A:

1. Specific intent
No direct legal provision in this jurisdiction addresses the 2. Knowledge
question as it is. Under U.S. Federal Rules of Evidence (FRE), it 3. Identity
is prohibited the admission of evidence of subsequent 4. Plan
remedial measures when offered to prove the negligence of 5. System
the defendant. Evidence of such measures may be admissible 6. Scheme
to prove some other purpose like the fact that the defendant 7. Habit
had ownership of the hotel or control over the same and all the 8. Custom
fixtures therein. 9. Usage and the like
Q: What is the basis of this rule? NOTE: Evidence of similar acts may frequently become
relevant especially in actions based on fraud and deceit,
A: The rule is based on the policy of encouraging potential because it sheds light on the state of mind or knowledge of
defendants to remedy hazardous conditions without fear tat person, his motive or intent, or they may uncover the scheme,
their actions will be used as evidence against them. design, or plan.
Evidence of similar conduct (Second branch) Q: Where will the admissibility of similar acts or previous
conduct?
G.R.: The law will not consider evidence that a person has done
a certain act at a particular time as probative of a contention A: It would depend on the purposes for which such acts or
that he has done a similar act at another time. conduct are offered.
Sec. 34.Similar acts as evidence. Evidence that one did or NOTE: The past acts of the accused are inadmissible to prove
did not do a certain thing at one time is not admissible to that he acted in conformity with such previous acts.
prove that he did or did not do the same or similar thing at
NOTES ON EVIDENCE
Chapter III OBJECT AND DOCUMENTARY EVIDENCE
I. Object Evidence
Rule 130

NOTES ON EVIDENCE
SECTION 1.Object as evidence. Objects as evidence are

NOTES ON EVIDENCE
those addressed to the senses of the court. When an object is of truth, and it ranks high in our hierarchy of trustworthy
relevant to the fact in issue, it may be exhibited to, examined evidence.
or viewed by the court. (1a)
Requisites for admissibility of object evidence
Q: What is object evidence?
Q: What should be the requisites for admissibility of object
A: It is the real thing itself consists of tangible things like gun, a evidence?
broken glass, a piece of bloody clothing or the defective ladder
that caused the fall of the plaintiff. A:
1. The admissibility of object or real evidence like any other
It does not refer to the perception of the witness and evidence requires that the object be both relevant and
recollection of that perception. It is not a reconstruction of competent. To be relevant, the evidence must have a
past events as related by a witness on the stand. It is not a relationship to the fact in issue. To be competent, it must
verbal description of something. It is not a replica or a mere not be excluded by the rules or by law.
representation of something. 2. For the object not to be excluded by the Rules, the same
must pass the test of authentication. The threshold
NOTE: It appeals directly to the senses of the court. Instead of foundation for real evidence is its being authenticated. To
relying on the recollection of the witnesses, an object evidence authenticate the object, it must be shown that the object
will enable the court to have its own first-hand perception of is the very thing that is either the subject matter of the
the evidence. lawsuit or the very one involved to prove an issue in the
case. Also, there must be someone who should identify
Q: What is the effect of object evidence? the object to be the actual thing involved in the litigation.
This someone is the witness.
A: It could have a very persuasive effect on the part of the 3. It must be emphasized that every evidence, whether it be
court. a document or an object, needs a witness. Even object
evidence requires statements from witness to make its
Q: May a human being be a form of real evidence? way into the realm of admissible evidence. In short,
testimonial evidence provides the foundation for all types
A: Yes. Where the racial characteristics of a party is at issue, of evidence. The witness should have actual and personal
the court may, at its discretion, view the person concerned. knowledge of the exhibit he is presenting for admission.
The court may likewise allow the exhibition of the weapon
allegedly used in attacking the victim, the bloody garment of Sec. 36.Testimony generally confined to personal knowledge;
the victim or the personal effect, like the glove, left by the hearsay excluded. A witness can testify only to those facts
supposed assailant in the scene of the crime. which he knows of his personal knowledge; that is, which are
derived from his own perception, except as otherwise
Q: Is object evidence limited to visual alone? provided in these rules. (30a)
A: No, it covers the entire range of human senses: hearing, Thus, the following are the basic requisites for the admissibility
taste, smell, and touch. In a case where the issue is of an object or real evidence:
infringement of a musical composition, the court may listen to
the composition involved. The court may not only look at but a. The evidence must be relevant
also touch the blade of knife to know whether or not it could b. The evidence must be authenticated
have produced the incision characteristic of sharp blades. c. The authentication must be made by a competent witness
d. The object must be formally offered in evidence.
Q: In case of conflict between testimonial and physical
evidence, which should prevail? NOTE: After its authentication, the object needs to be offered
in evidence at the appropriate time. The formal offer of
A: Where the physical evidence runs counter to the testimonial evidence is particularly a vital act before the admission of
evidence, the physical evidence should prevail (BPI v. Reyes, evidence because the court shall consider no evidence which
2008). Physical evidence is a mute but eloquent manifestation has not been formally offered (Sec. 34, Rule 132).

NOTES ON EVIDENCE
Sec. 34.Offer of evidence. The court shall consider no

evidence which has not been formally offered. The purpose
for which the evidence is offered must be specified. (35)
Q: What is the problem with regard the requirement of

relevance and the competence of testimony of the witness?

NOTES ON EVIDENCE
A: The problem commonly lies in showing that the object

NOTES ON EVIDENCE
sought to be admitted is in fact the real thing and not a mere The third category includes drop of blood or oil, drugs in
substitute or representation of the real thing. This problem is powder form, fiber, grains of sand and similar objects. In this
commonly called laying the foundation for the evidence. case, the proponent of the evidence must establish a chain of
custody. The purpose is to guaranty the integrity of the physical
Object evidence and the Right against Self-Incrimination evidence and to prevent the introduction o evidence which is
not authentic but where the exhibit is positively identified the
Q: May the right against self-incrimination be invoked against chain of custody of physical evidence is irrelevant.
object evidence?
Since it is called a chain, there must be links to the chain. The
A: No. In People v. Malimit (264 SCRA 167), the court held that links are the people who actually handled or had custody of the
the right against self-incrimination finds no application in the object. Each link must show how he received the object, how
case because no testimonial compulsion was involved. he handled it to prevent substitution and how it was
Accordingly, such right is a prohibition of the use of physical or transferred to another. Each must testify to make the
moral compulsion, to extort communication from him. It is a foundation complete. This is the ideal way (though this is not
prohibition against legal process to extract from the accuseds absolutely required.
own lips, against his will, admission of guilt. It does not apply
in this case where the evidence sought to be excluded is not an There is a view that the prosecution is not required to elicit
incriminating statement but an object evidence. testimony from every custodian or from every person who had
an opportunity to come in contact with the evidence sought to
Categories of Object Evidence be admitted. As long as one of the chains testifies and his
testimony negates the possibility of tampering and that the
Q: What are the classifications of object evidence? integrity of the evidence is preserved, his testimony alone is
adequate to prove the chain of custody.
A:
a. Objects that have readily identifiable marks (unique Lopez v. People
objects);
b. Objects that are made readily identifiable (objects made As a method of authenticating evidence, the chain of custody
unique); and rule requires that the admission of an exhibit be preceded by
c. Objects with no identifying marks and cannot be marked evidence sufficient to support a finding that the matter in
(non-unique marks). question is what the proponent claims it to be. It would include
the testimony about every link in the chain, in such a way that
If the object has a unique characteristic, it becomes readily every person who touched the exhibit would describe how and
identifiable (a serial number of a caliber 45 pistol). So long as from whom it was received, where it was and what happened
the witness testifies that the object has a unique characteristic, to it while in the witness possession, the condition in which it
he saw the object on the relevant date, remembers its was received and the condition in which it was delivered to the
characteristics, asserts that the object shown to him in court is next link in the chain. The witness would describe the
the same or substantially in the same condition as when he precautions taken to ensure that there had been no change in
first saw it and alleges that those characteristics are those of the condition of the item and no opportunity for someone not
the object he is identifying in court, the authentication in the chain to have possession of the same.
requirement is satisfied.
The chain of custody rule is indispensable and essential when
Otherwise, (like a typical kitchen knife without a serial the item of real evidence is not distinctive and is not readily
number), the witness may be able to testify the same if he identifiable, or when its condition at the time of testing or trial
claims that he made the thing acquire a unique characteristic is critical, or when a witness has failed to observe its
like placing identifying marks on it. All he has to do is to testify uniqueness. The rule also applies in case the evidence is
as to what he did to make the object identifiable and that the susceptible to alteration, tampering, contamination and even
object presented to him for identification in court has the substitution and exchange. Such dictates the level of strictness
characteristics he made on the object. in the application of the chain of custody rule.
Chain of custody A unique characteristic of narcotic substance is that they are

not readily identifiable hence a more stringent standard than

NOTES ON EVIDENCE
that applied to readily identifiable object is necessary. This

standard entails a chain of custody of the item with sufficient
completeness to render it improbable for the original item to
be exchanged with another, contaminated or tampered with.
Xxx More than just the fact of possession, the fact that the
substance said to be illegally possessed is the very same
substance offered in court as exhibit.

NOTES ON EVIDENCE
If the object is not readily identifiable, a chain of custody must

NOTES ON EVIDENCE
be shown. To avoid gaps in the chain of custody and prevent elected public official who shall be required to sign the copies
further evidentiary objections, ideally all the persons who of the inventory and be given a copy thereof (Sec. 1, par.1).
handled the object should be called to the stand although
courts no longer require this rigid process. Note: A mere statement that the integrity and evidentiary
value of the evidence is not enough. It must be accompanied
Unless a specific provision of law or rule provides otherwise, by proof.
the investigator need not testify that the process of sealing the
evidence and the submission to the chemist were done in the People v. Rivera
presence of the accused or his representative. This is because
of the presumption that official duty has been regularly Failure of the prosecution to show that the police officers
performed (Sec. 3 (m), Rule 131). conducted the required physical inventory and photograph of
the evidence confiscated pursuant to said guidelines, is not
Sec. 3 (m) That official duty has been regularly performed; fatal and does not automatically render accuseds arrest illegal
or that the items seized/confiscated from him inadmissible.
People v. Tan (348 SCRA 116) Accordingly, non-compliance with the requirements under
justifiable grounds, as long as the integrity and evidentiary
The court should be extra vigilant in trying a drug cases so an value of the seized items are properly preserved by the
innocent person is not made to suffer the unusually severe apprehending officer/team, shall not render void and invalid
penalties for drug offense. Accordingly, a police buy-but such seizures of and custody over said items.
operation carries a built-in danger for abuse because by its
very nature, anti-narcotics operation involves the need for What is important is the preservation of the integrity and
entrapment procedures and the use of shady characters as evidentiary value of the seized items, as the same may be
informants and the secrecy that shrouds drug deals enables utilized in the determination of the guilt or innocence of the
the planting of marijuana or heroin in the pockets or hands of accused. This is to remove unnecessary doubts as to the
unsuspecting persons. identity of the evidence. The dangerous drugs itself constitutes
the very corpus delicti of the crime and the fact of its existence
Chain of custody in drug cases is vital to a judgment of conviction.
Q: What is chain of custody? Accordingly, the prosecution must show by records or

testimony, the continuous whereabouts of the exhibit at least
A: It means the duly recorded authorized movements and between the time it came into possession of the police officers
custody of seized drugs or controlled chemicals or plant and until it was tested in the laboratory to determine its
sources of dangerous drugs or laboratory equipment of each composition up to the time it was offered in evidence.
stage, from the time of confiscation or seizure to receipt in the
forensic laboratory to safekeeping to presentation in court for
destruction. It shall also include the identity and signature of Q: When will the non-compliance with the procedure shall
the person who held temporary custody of the seized item, the not render void and invalid the seizure of and custody of
date and time when such transfer of custody were made in the drugs?
course of safekeeping and use in court as evidence, and the
final disposition (People v. Obmiranis, G.R. A:
No. 181492).
1. When such compliance was under justifiable grounds;
Article II of R.A. No. 9165 and
2. Integrity and the evidentiary value of the seized are
The apprehending team having initial custody and control of properly preserved by apprehending team.
the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in the presence People v. Del Monte (G.R. No. 179940)
of the accused or the person/s from which such items were
confiscated and/or seized, or his/her representative or The issue if there is non-compliance with the law is not
counsel, a representative from the media and the DOJ, and any admissibility, but weightevidentiary merit or probative
value.
NOTES ON EVIDENCE
Demonstrative Evidence
Q: What is demonstrative evidence?
A: It is not the actual thing but it is referred to as demonstrative

because it represents or demonstrates the real thing. It is not
strictly real evidence because it is not the very thing involved
in the case.
Examples: map, diagram, photograph, model

NOTES ON EVIDENCE
(m)That official duty has been regularly performed;

NOTES ON EVIDENCE
of the operator, a detailed description of the equipment used,

NOTE: It is not separately defined in the Rules of Court and the conditions under which the photograph and the recordings
appears to have been incorporated under the general term were taken. Modern courts however have taken judicial notice
object evidence. of how motion cameras and tape recorders work and their
general reliability and their prevalent use.
Q: Where does the admissibility of demonstrative evidence
depend? NOTE: The person present when the activities of taking the
pictures and recordings should testify that the motion picture
A: It depends on laying the proper foundation for the evidence. accurately, faithfully, represents the place or person it
The rule boils down to one question: Does the evidence purports to identify.
sufficiently and accurately represent the object it seeks to
demonstrate or represent? If it does, the evidence would be Q: Does the authentication process need to involve the
admissible. person who actually made them?
Q: For a photograph to be admissible, what is the rule? A: No, it can be done by some other person as long as he is one
who can testify as to its accuracy.
A: The same must be relevant and competent. It is competent
when it is properly authenticated by a witness who is familiar NOTE: There is also a requirement that the recording be
with the scene or person portrayed and who testifies that the shown, presented, or displayed to the court (Sec. 1, Rule 11,
photograph faithfully represents what it depicts. Rules on Electronic Evidence).
Q: Should the photographer testify? Q: What are the rules regarding diagrams, maps, and models?
A: Some courts insist the photographer to testify but this view A: These types of evidence are presented to indicate the
has been eroded by the tendency of modern courts to admit relative locations, positions of objects and persons. Aside from
as witness one who has familiarity with the scene portrayed the requirement of relevance, a diagram, map, and model
(Sison v. People, 250 SCRA 58). must be identified by a witness who is familiar with what the
evidence depicts, and that the same is an accurate
Q: What are the requirements for photographic evidence of representation of the scene it portrays.
events, acts, or transactions shall be admissible?
NOTE: The question as to the sufficiency of the authentication
A: is a matter of judicial discretion.
1. It shall be presented, displayed, and shown to the court
2. It shall be identified, explained or authenticated by either: Q: What is the rule regarding x-ray pictures?
a. The person who made the recording,
b. Some other person competent to testify on the A: Also known as the skiagraphs or radiographs, x-ray pictures
accuracy thereof (Sec. 1, Rule 11, Electronic Rules of are admissible when shown to have been made under
Evidence) circumstances as to assure their accuracy and where relevant
to a material issue in the case.
NOTE: The admissibility of photographic evidence is within the
discretion of the trial court, and its ruling in this respect will Authenticated x-rays are normally involved in personal injury
not be interfered with except upon a clear showing of an abuse cases to show the location and the extent of the unjury.
of discretion.
Q: Is the testimony of the person who took the x-ray
Q: What is the rule regarding motion pictures and recordings? required?
A: The rules that apply to motion pictures and recordings. A: Because the science of x-ray pictures is now well-founded
Because of the possibility of tampering and distortion, courts and generally recognized, almost all courts no longer require
have traditionally required a stricter standard for laying the testimony as to the reliability of an x-ray machine.
foundation for motion pictures and tape recordings. Courts
then would require detailed testimony as to the qualifications
NOTES ON EVIDENCE
NOTE: In-court reenactment of material events by the witness

has been held permissible to help illustrate the testimony of a
witness.
Ephermal Electronic Communications
Q: What are Ephermal Electronic Communications?

NOTES ON EVIDENCE
A: They refer to telephone conversations, text messages,

NOTES ON EVIDENCE
chatroom sessions, streaming audio, and other forms of Q: What is the rule regarding DNA evidence?
electronic communication, the evidence which is not recorded
or retained. A: In Augustin v. CA (460 SCRA 315), the Court briefly sketched
its past decisions on DNA testing which the Court initially
Thus, a claim that the admission of text messages as evidence considered as not as accurate and authoritative as the
constitutes a violation of the right to privacy is unavailing, the scientific forms of identification evidence such as fingerprints.
messages being evidence under the rules (Vidallon-Magtolis v. However, in 2001, the SC showed signs of opening up to DNA
Salud, 469 SCRA 439). evidence in Tijing v. CA (G.R. No. 125901), when it recognized
the existence of facility and expertise in using DNA test for
Q: How shall Ephermal Electronic Communications be identification and parentage testing, in Tijing case, the SC held
proven? that eventually, courts should not hesitate to rule on the
admissibility of DNA evidence.
A: By the testimony of a person who was a party to the same
or by one who has personal knowledge thereof. In the case People v. Vallejo (382 SCRA 192, 2002), the court
made a landmark decision. It is considered as the first real
Q: What requisites should be proven in order for the audio, breakthrough of DNA as admissible and authoritative evidence
photographic, and video evidence of events, or transactions in Philippine jurisprudence. Vallejo moved towards an open
be admissible? use of DNA evidence in deciding cases.
A: Q: What are the rules or guidelines to be used by courts in

1. That the recording shall be shown, presented or displayed assessing the probative value of DNA evidence?
to the court
2. Shall be identified, explained or authenticated by either: A:
a. The person who made the recording 1. How the samples were collected
b. By some other person competent to testify on the 2. How they were handled
accuracy thereof. 3. The possibility of combination of the samples
4. The procedure followed in analyzing the samples
View of an object or scene 5. Whether the proper standards and procedure were
followed in conducting the tests
Courts have recognized that there are times when a party 6. The qualification of the analyst who conducted the test.
cannot bring an object to the court for viewing in the
courtroom. In such a situation, the court may take a view of an See:
object. The court may take an ocular inspection of a contested People v. Janson, 400 SCRA 584
land to resolve questions of fact raised by the parties. Tecson v. COMELEC, 424 SCRA 277
People v. Yatar, 428 SCRA 504, 2004
NOTE: The court has an inherent power to order a view when
there is a need to do so. Rule on DNA evidence (RDE)
Q: Is this mandatory? Rule on DNA Evidence (RDE) was issued by the Court in A.M.
No. 06-11-5-SC.
A: A view disrupts the usual trial process and is timeconsuming.
Hence, in almost all jurisdictions, trial judge is granted Q: In what situations do RDE apply?
discretion to grant or refuse a request for a view.
A:
NOTE: The inspection may be made inside or outside the 1. Criminal actions
courtroom. An inspection or view outside the courtroom 2. Civil actions
should be made in the presence of the parties or at least with 3. Special proceedings
previous notice to them.
Q: What is DNA?
DNA Evidence
A: It refers to deoxyribonucleic acid which is the chain of
NOTES ON EVIDENCE
molecules found in every nucleated cell of the body
Q: What is DNA pofile?
A: It is the genetic information derived from DNA testing of

biological samples obtained from a person where such
biological sample is clearly identifiable as originating from that
person.
Q: What is DNA evidence?

NOTES ON EVIDENCE

NOTES ON EVIDENCE
A: The totality of the DNA profiles, results and other genetic A: No, it is immediately executor as provided by Sec. 5 of the
information directly generated from the DNA testing of RDE.
biological samples.
Q: Is there an automatic admission of the DNA evidence
NOTE: It is a scientific fact that the totality of an individuals obtained in the testing?
DNA is unique for the individual, except for identical twins.
A: None. The grant of the DNA testing application shall not be
Q: How may an order for a DNA testing be obtained? construed as an automatic admission into evidence of any
competent of the DNA evidence that may be obtained as a
A: A person who has legal interest in the litigation may file an result of the testing. This means that the court will still have to
application before the appropriate court, at any time. evaluate the probative value of the proposed evidence before
its admission.
Q: What are the requisites for the order?
Q: What are the matters to be considered for the
A: determination of the probative value of the DNA evidence?
1. A biological sample exists that has relevance to the case 2.
The biological sample: A:
a. Was not previously subjected to the DNA testing 1. The chain of custody, including how the biological samples
requested were collected, how they were handled, and the
b. If it was previously subjected to DNA testing, the possibility of contamination of the samples.
results may require confirmation for good reasons. 2. The DNA testing methodology, including the procedure
3. The DNA testing uses a scientifically valid technique followed in analyzing the samples, the advantages and
4. The DNA testing has the scientific potential to produce disadvantages of the procedure, and the compliance with
new information that is relevant to the proper resolution the scientifically valid standards in conducting the tests.
of the case 3. The forensic DNA laboratory, including its accreditation
5. The existence of other factors, if any, which the court may and the qualification of the analyst who conducted the
consider as potentially affecting the accuracy and integrity test; if the laboratory is not accredited, the court shall
of the DNA testing. consider the relevant experience of the laboratory in
forensic casework and its credibility shall be properly
Q: What may an order contain? established
4. The reliability of the testing result.
A:
1. Take biological samples from any person or crime scene
evidence Q: If a person has already been convicted under a final and
2. Impose reasonable conditions on the testing to protect executor judgment, may he still avail of DNA testing?
the integrity of the biological sample and the liability of
the test results. A: Yes. The test after his conviction is termed a
postconviction. It may be available to:
NOTE: The court may motu propio order a DNA testing. a. The prosecution
b. To the person conviction by final and executory
Q: Is a court order always required before undertaking a DNA judgment provided that the ff. requisites are present:
testing? 1. A biological sample exists
2. Such example is relevant to the case
A: No. RDE allows a testing without a prior court if done before 3. The testing would probably result in the
a suit or proceeding is commenced at the behest of any party rehearsal of the judgment of conviction.
including law enforcement agencies.
Q: Is a court order required for a post DNA testing?
Q: Is the order of the court granting a DNA testing
appealable? A: No. It may be available without need of prior court order.

NOTES ON EVIDENCE
Q: What remedy is available to the convict if the results of the

post DNA testing are favorable to him? Q: What is the effect of a negative result?
A: He may file a petition for a writ of habeas data in the court A: The argument that the absence or negative result of
of origin. The court shall then conduct a hearing and in case the gunpowder nitrates from the paraffin test conducted shows an
court finds that the petition is meritorious, it shall reverse or absence of physical evidence that one fired a gun, is untenable
modify the judgment of conviction and order the release of the as it is possible for one to fire a gun and yet be negative as
convict, unless his detention is justified for a lawful cause. The when the hands are washed before the test (People v.
rule also allows the petition to be filed either in the CA or the Cajumocan, 430 SCRA 311).
SC, or with any member of said courts.
Q: What about a positive result?
Q: Are the DNA profiles of a person open to public scrutiny?
A: The presence should be taken only as an indication of a
A: No, they are confidential. possibility or even a probability but not of infallibility that a
person has fired a gun, since nitrates are also found in
Q: To whom they may be released? substances other than gunpowder such as in explosives,
fireworks, fertilizers and pharmaceuticals, tobacco and
A: leguminous plants.
1. The person from whom the sample was taken
2. Lawyers representing parties in the case or action where Q: What is the probative value of paraffin tests?
the DNA evidence is offered and presented or sought to
be offered and presented A: They are merely corroborative, neither proving nor
3. Lawyers of private complainants in a criminal action disproving that a person did indeed fire a gun.
4. Duly authorized law enforcement agencies 5. Other
persons as determined by the Court. Q: What factors may affect the results?
Q: May the person from whom the biological sample was A: Factors such as the wearing of gloves, perspiration of hands,
taken request that the result be disclosed to the person wind direction, wind velocity, humidity, climate conditions, the
designated in his request? length of the barrel of the firearm, the open or closed trigger
guard of the firearm (People v. Buduhan, 2008).
A: Yes, but such request must be in writing and verified and
filed with the court that allowed the DNA testing. Polygraph tests (Lie detector tests)
Q: What is the duty of the Trial courts? Polygraph test operates on the principle that stress causes
physiological changes in the body which can be measured to
A: They are mandated to preserve the DNA evidence in its indicate whether the subject of the examination is telling the
totality, including all biological samples, DNA profiles and truth. Sensors are attached to the subject so that the
results or other genetic information obtained from DNA testing polygraph can mechanically record the subjects physiological
in accordance with the RDE. responses to a series of questions.
Paraffin tests Q: What is the probative value of polygraph tests?
Q: State the rule regarding paraffin tests. A: Courts uniformly reject the results of polygraph tests when
offered in evidence for the purpose of establishing the guilt or
A: Paraffin tests generally have been considered as innocence of the accused of a crime because it has not yet
inconclusive by the court because scientific experts occur in attained scientific acceptance as reliable and accurate means
the view that paraffin tests have proved extremely unreliable of ascertaining truth or deception.
in use. The test can only establish the presence or absence of
nitrates or nitrites on the hand but the test alone cannot
determine whether the source of the nitrates or nitrites was
the discharge of the firearm.
NOTES ON EVIDENCE
II. Documentary Evidence Q: Is the photocopy real (object) evidence or documentary

evidence?
Q: What is the scope of documentary evidence? A: It is a real (object) evidence. Although it is conceded that the
bills contain letters, words or numbers and other modes of
A: Documents as evidence do not necessarily refer to writings. written expression, these facts alone do not make the bills
They may refer to any other material like objects as long as the documentary evidences. To be documentary evidence, the
material contains letters, words or numbers, figures, symbols same must be offered as proof of their contents. The bills are
or other modes of written expression and offered as proof of obviously presented to show that money exchanged hands in
their contents. the buy-bust operations and not prove what is written on the
bills.
Q: What are the categories of documents as evidence?
Q: May a private document be offered and admitted in
A: evidence both as documentary evidence and as object
1. Writings evidence?
2. Any other materials containing modes of written
expressions A: It depends on the purpose for which the document is
offered. If offered to prove its existence, condition or for any
Rule 130 other purpose other than the contents of a document, the
same is considered as an object evidence. When it is offered as
Sec. 2.Documentary evidence. Documents as evidence proof of its contents, the same is considered as a documentary
consist of writing or any material containing letters, words, evidence. The document may be offered for both purposes
numbers, figures, symbols or other modes of written under the principle of multiple admissibility.
expression offered as proof of their contents. (n)
Documents under the Rules on Electronic Evidence
Q: What are the examples under the first category?
Q: What is electronic evidence under Sec. 1 [h] of Rules on
A: Written contracts and wills Electronic Evidence?
Q: What are the examples under the second category? A:It refers to information, or the representation, data, figures,
symbols, or other modes of written expressions, described or
A: Those which are not traditionally considered as writings but however represented, by which a right is established or an
are actually objects but which contain modes of written obligation is extinguished, or by which a fact may be proved or
expressions. affirmed, which is received, recorded, transmitted, stored,
processed, retrieved, or produced electronically. It includes
NOTE: Being writings or materials containing modes of written digitally signed documents and any print-out or output,
expressions do not ipso facto make such materials readable by sight or other means which accurately reflects the
documentary evidence. For such writings be deemed electronic data message, or electronic document. The term
documentary, the same must be offered as proof of their electronic document may be used
contents. If offered for some other purpose, the writings or interchangeably with electronic data message.
materials would not be deemed documentary evidence but
merely object evidence. Q: Does the rule absolutely require that the electronic
document be initially generated or produced electronically?
Q: What if a contract is presented in court to show that it
exists or simply to establish its condition? A: No. A contract for instance which was prepared through the
traditional written way may be converted to an electronic
A: It is not offered to prove its contents, therefore, it is not document if transmitted or received or later recorded
considered a documentary evidence but an object or real electronically.
evidence.
Q:
1. To establish a right

NOTES ON EVIDENCE
2. To extinguish an obligation Rule 132

3. To prove or affirm a fact
Sec. 20.Proof of private document. Before any private
NOTE: Electronic documents are functional equivalents of document offered as authentic is received in evidence, its due
paper-based documents. execution and authenticity must be proved either:
Sec. 1 of Rule 3 of the Rules on Electronic Evidence (a)By anyone who saw the document executed or written; or
(b)By evidence of the genuineness of the signature or
ELECTRONIC DOCUMENTS handwriting of the maker.
SECTION 1. Electronic documents as functional equivalent of Note: If the document is electronically notarized, the manner
paper-based documents. Whenever a rule of evidence of authentication under Sec.3 of Rule 5 will not also apply.
refers to the term of writing, document, record, instrument, When notarized, it is transformed into a public document and
memorandum or any other form of writing, such term shall is to be proved in accordance with the Rules of Court.
be deemed to include an electronic document as defined in
these Rules. Sec. 3, Rule 5
NOTE: The rules of court including the statutes containing rules SEC. 3. Proof of electronically notarized document. - A
of evidence are suppletory to the Rules on Electronic Evidence. document electronically notarized in accordance with the
rules promulgated by the Supreme Court shall be considered
Q: Who has the burden to prove its authenticity? as a public document and proved as a notarial document
under the Rules of Court.
A: Sec. 1, Rule 5 of the Rules on Electronic Evidence:
Sec. 30 of Rule 132
Sec. 2, Rule 5 the Rules on Electronic Evidence
Sec. 30.Proof of notarial documents. Every instrument duly
SEC. 2. Manner of authentication. Before any private acknowledged or proved and certified as provided by law,
electronic document offered as authentic is received in may be presented in evidence without further proof, the
evidence, its authenticity must be proved by any of the certificate of acknowledgment being prima facieevidence of
following means: the execution of the instrument or
document involved. (31a)
(a) by evidence that it had been digitally signed by the person
purported to have signed the same; (b) by evidence that Evidentiary concepts involved in the presentation of
other appropriate security procedures or devices as may be documentary evidence
authorized by the Supreme Court or by law for authentication
of electronic documents were applied to the document; or To be admissible, documentary evidence must be relevant and
(c) by other evidence showing its integrity and reliability to competent. It is subject to general exclusionary rules such as
the satisfaction of the judge. the rule against hearsay, best evidence rule and parol evidence
rule.
Note: The requirements for the authentication of an electronic
document do not apply to all electronic documents. Sec. 2 will Note: Whenever a documentary evidence is involved, the best
only apply when the document is a private electronic evidence rule, the parol evidence rule and hearsay rule, or
document and when the same is offered as an authentic anyone of these rules may come into play. Yet, where the
document. evidence is offered as an object evidence, best evidence rule,
the parol evidence rule and hearsay rule find no application.
If the electronic document is offered simply for what it is or for
what is claimed to be regardless of whether or not it is Q: What are the requisites for admissibility of documentary
authentic. Sec. 2 will not apply. The electronic document has evidence?
only to be identified pursuant to the suppletory application of
Sec. 20, Rule 132. A:

NOTES ON EVIDENCE
1. The document must be relevant;

2. The evidence must be authenticated; The Consolidated Bank and Trust Corporation v.
3. The document must be authenticated by a component Del Monte Motor Works, Inc. (465 SCRA 117)
witness; and
4. The document must be formally offered in evidence. The rule finds no application to a case where a party never
disputed the terms and conditions of the promissory note,
leaving the court to conclude that as far as the parties are
concerned, the wordings or the contents of the note are clear
A. Best Evidence Rule enough and leave no room for disagreement. The defense of
lack of consideration and that the signature in the note was
Despite the word best, the rule does not proclaim itself as made in the personal capacity of the respondent are defenses
the highest and most reliable evidence in the hierarchy of which do not question the precise wordings of the promissory
evidence. The word best has nothing to do with the degree of note which should have paved the way for the application of
its probative value in relation to other types of evidentiary the best evidence rule.
rules. It does not mean most superior evidence. More
accurately, it is the original document, or the primary NOTE: Where the issue is the execution or existence of the
evidence rule. document or other circumstances surrounding its execution,
the best evidence rule does not apply and testimonial evidence
It is not intended to mean that a weaker evidence be is admissible.
substituted by a stronger evidence.
When the subject of the inquiry is the contents of the
The only actual rule that such term denotes is the rule requiring document, no evidence shall be admissible other than the
that the original of a writing must, as a general rule, be original thereof (Magdayao v. People, 463 SCRA 677). Any
produced. substitutionary evidence likewise admissible without need to
account for the original (Chua Gaw v. Chua, 2008).
Sec.3 of Rule 130
Q: What is the reason for the adoption of the best evidence
rule?
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 A: It is to prevent fraud or mistake in the proof of the contents
document itself, except in the following cases: of a writing.
(a)When the original has been lost or destroyed, or cannot Q: What are the 2 requisites for this rule to apply?
be produced in court, without bad faith on the part of the
offeror; A:
(b)When the original is in the custody or under the control of
the party against whom the evidence is offered, and the latter 1. The subject matter must involve a document; and
fails to produce it after reasonable notice; 2. The subject of the inquiry is the contents of the document.
(c)When the original consists of numerous accounts or other
documents which cannot be examined in court without great Thus, where the content of a document is not the issue, the
loss of time and the fact sought to be established from them rule cannot be invoked and more so when the evidence does
is only the general result of the whole; and (d)When the not involve a document.
original is a public record in the custody of a
public officer or is recorded in a public office. (2a) The best evidence rule applies only when the subject inquiry is
the contents of a document. It applies only when the purpose
There is no reason to apply this rule when the issue does not is to establish the terms of a writing. When the evidence
involve the contents of a writing. The rule will come into play introduced concerns some external fact about a writing like its
only when the subject of inquiry is the contents of a existence, execution or delivery without reference to its terms,
document. The rule cannot be invoked unless the contents of the rule cannot be invoked.
a writing is the subject of judicial inquiry, in which case, the
best evidence is the original writing itself.
NOTES ON EVIDENCE
Where the subject inquiry is to prove some fact like its the original writing has been lost or destroyed or cannot be
existence, or the size of the matter on which it is written, the produced in court. Such photocopies must be disregarded,
writing is not a documentary evidence but a mere object being inadmissible evidence and barren of probative weight.
evidence. The best evidence rule does not apply to an object
evidence. Thus, the original need not be presented. The Waiver of the Rule
existence or condition of that writing may be proved by any
other evidence like oral testimony. Sy v. CA (330 SCRA 550)
Note: The subject of inquiry is the contents of a writing, not the Although the marriage certificate, license, and other pieces of
truth thereof. Where the truth is in issue, the hearsay rule will documentary evidence were only photocopies, the fact that
now be invoked. these have been examined and admitted by the trial court,
with no objections having been made a to their authenticity
Q: Is the photocopy admissible in evidence? and due execution, means that these documents are deemed
sufficient proof of the facts contained therein.
A: The photocopy of the bills being object evidence, is
admissible in evidence without violation of the best evidence Q: What to do to apply the Best evidence rule?
rule. The rule applies only to documentary evidence and not to
object evidence. A: First, determine the matter inquired into. The procedural
compliance of the rule requires the presentation of the original
Q: When a document is merely collateral in issue, will the rule document, and not a copy of that document. So long as the
apply? original document is available, no other evidence can be
substituted for the original.
A: No. A document is collaterally in issue when the purpose of
introducing the document is not to establish its terms but to Q: What if the original cannot be presented in evidence?
show facts that have no reference to its contents like its
existence, condition, execution or delivery. A: The second step will now come into play. First, find an
adequate legal excuse for the failure to present the original;
If a witness testifies that the victim was writing a letter when and second, present a secondary evidence sanctioned by the
he was shot by the accused, the judge will rule against the Rules of Court.
party who insists on the presentation of the letter because the
letter is not the subject of an important issue in the case and Present the original, except when you can justify its
thus is merely collateral. unavailability in the manner provided for by the Rules of Court.
Reason for the Best Evidence Rule Excuses for not presenting the original document (Please
refer to Sec. 3, Rule 30)
Primarily, it is the need to present to the court the exact words
of a writing where a slight variation of words may mean a great (a)When the original has been lost or destroyed, or cannot be
difference in rights. Secondly, it is the prevention and produced in court, without bad faith on the part of the offeror;
detection of fraud. It is to avoid unintentional or intentional (b)When the original is in the custody or under the control of
mistaken transmissions of the contents of a document through the party against whom the evidence is offered, and the latter
the introduction of selected portions of a writing to which the fails to produce it after reasonable notice;
adverse party has no full access. (c)When the original consists of numerous accounts or other
documents which cannot be examined in court without great
It is also to prevent erroneous interpretations or distortions of loss of time and the fact sought to be established from them is
a writing, an objection based on this rule prevents a party from only the general result of the whole; and
proving the contents of a writing by a copy thereof or by oral (d)When the original is a public record in the custody of a public
testimony if the original writing itself is available. officer or is recorded in a public office.
As long as the original evidence can be had, the court should Loss, destruction or unavailability of the original
not receive in evidence that which is substitutionary in nature,
such as photocopies, in the absence of any clear showing that

NOTES ON EVIDENCE
This exception does not only cover loss or destruction but also Jarabe (22 SCRA 1247).
other reasons for the failure to produce the original in court
even if the original is not lost or destroyed, as when the Q: What should be the order of the presentation of secondary
original is beyond the territorial jurisdiction of the court. evidence by the prosecution?
The exception also applies where the original consists of A:

inscriptions on immovable objects and monuments such as 1. A copy of the original
tombstones because they cannot be produced in court. 2. A recital of the contents of the contents of the document
in some authentic document
Sec. 5 of Rule 130 3. By the testimony of witnesses
Sec. 5.When original document is unavailable. When the NOTE: The hierarchy of preferred secondary evidence must be
original document has been lost or destroyed, or cannot be strictly followed.
produced in court, the offeror, upon proof of its execution or
existence and the cause of its unavailability without bad faith Q: What is secondary evidence?
on his part, may prove its contents by a copy, or by a recital
of its contents in some authentic document, or by the A: It refers to evidence other than the original instrument or
testimony of witnesses in the order stated. (4a) document itself (EDSA Shangri-La Hotel v. BF Corp., 2008).
Q: What are the requisites so that secondary evidence may Q: May the presentation or the offer of the original be
be admitted? waived?
A: A: Yes. If the party against whom the secondary evidence is

1. The offeror must prove the execution and existence of the offered does not object thereto when the same is offered in
original document; evidence, the secondary evidence becomes primary evidence.
2. The offeror must show cause of its unavailability; and But even if admitted as primary evidence, its probative value
3. The offeror must show that the unavailability was not due must still meet the various tests by which its reliability is to be
to its bad faith. determined.
Q: State the correct order of proof. Original is in the Custody or control of the adverse party
A: Q: The party who seeks to present secondary evidence must

1. Existence; lay the basis for its introduction. What are the proofs required?
2. Execution;
3. Loss; and A:
4. Contents 1. That the original exists
2. That said document is under the custody or control of the
Q: The due execution and authenticity of the document may adverse party
be proved by? 3. That the proponent of secondary evidence has given the
adverse party reasonable notice to produce the original
A: document
1. Anyone who saw the document executed or written; or 4. That the adverse party failed to produce the original
2. By evidence of the genuineness of the signature or document despite the reasonable notice.
handwriting of the maker.
Q: How may notice be given?
The burden of proof in establishing loss or destruction of the
original is on the proponent of the secondary evidence. The A: The notice may be in the form of a motion for the production
loss of the original need not be shown to be beyond all of the original, or made in open court in the presence of the
possibility of mistake. A reasonable probability of its loss is adverse party, or via a subpoena duces tecum, provided that
sufficient like by showing that there was a bona fide and the party in custody of the original has sufficient time to
diligent but fruitless search for the document (Paylago v. produce the same.
NOTES ON EVIDENCE
Sec. 4.Original of document.

When the original consists of numerous accounts (a)The original of the document is one the contents of which
are the subject of inquiry.
Q: What are the exceptions to the rule regarding secondary (b)When a document is in two or more copies executed at or
evidence or when is such admissible? about the same time, with identical contents, all such copies
are equally regarded as originals.
A: (c)When an entry is repeated in the regular course of
1. If the original consists of numerous accounts or other business, one being copied from another at or near the time
documents of the transaction, all the entries are likewise equally
2. They cannot be examined in court without great loss of regarded as originals. (3a)
time
3. The fact sough to be established from them is only the NOTE: An original, under the laymans concept, is the first one
general result of the whole. written and from which mere copies are made, transcribed, or
imitated. Thus, there can only be one original. This is not
Q: What is the reason for the exceptions? however so. When an entry is repeated in the regular course
of business, one being copied from another at or near time of
A: The reason lies in the determination by the court that transaction, all the entries are equally regarded as originals.
production of the original writings and their examination in
court would result in great loss of time considering that the Q: To be considered as originals, what are the requisites?
evidence desired from the voluminous accounts is only the
general result of the whole like a summary of accounts. A:
1. There must be entries made and repeated in the course of
NOTE: The voluminous records must be made accessible to the business
adverse party so that the correctness of the summary of the 2. The entries must be at or near the time of the transaction.
voluminous records may be tested on cross-examination
(Compania Maritima v. Allied Free Workers Union, 77 SCRA Thus, when a lawyer writes a pleading in two or more copies
24). which are executed at the same time, with identical contents,
each document is an original. So are writings with identical
Original document is a public record contents made by printing, mimeographing, lithography and
other similar methods executed at the same time. Thus, each
Public records are generally not to be removed from the places newspaper sold in the stand is an original in itself.
where they are recorded and kept. Thus, the proof of the
contents may be done by secondary evidence. This evidence is Q: What if carbon sheets are inserted between two or more
a certified true copy of the original. This certified copy is to be sheets of paper, and the signature on the first sheet being
issued by the public officer in custody of the public records. reproduced in the sheets beneath by the same stroke of the
pen or writing medium?
Q: What is the effect of not offering a document in evidence
after calling for its production and inspection? A: All sheets are deemed as originals.
A: No unfavorable inference may be drawn from such failure. NOTE: Where a document is executed in duplicate or
This is because under the law, a party who calls for the multiplicate form, each one of the parts is primary evidence of
production of a document is not required to offer it. the contents of the document, and the other need not to be
produced. In such case, each is deemed an original.
Rule 130
If several copies of a document are made at the same time by
Sec. 8.Party who calls for document not bound to offer it. inserting in each page a carbon paper and only one of them is
A party who calls for the production of a document and signed, the signed copy is the original and the others are only
inspects the same is not obliged to offer it as evidence. (6a) copies.
Meaning of original (Rule 130) Q: Which is the original in case of telegraph company who
failed to transmit a message?

NOTES ON EVIDENCE
(a) a genuine question is raised as to the authenticity of

A: The original is the message submitted to the company for the original; or
transmission. But if the suit is for damages by sender against (b) in the circumstances it would be unjust or
the company because of delay, the original would be the inequitable to admit a copy in lieu of the original.
message as received by the recipient.
Original printout of facsimile transmissions
Q: In an action to collect the promissory note, which is the
original copy? Q: Is a printout of a facsimile transmission an electronic data
message or electronic document?
A: The original is one typed and signed by both parties and
which was lost. A: No, it does not include a facsimile transmission. It is not the
functional equivalent of an original under the Best Evidence
Q: Can the photocopies in the hands of the parties be Rule and is not admissible as electronic evidence.
considered as duplicate originals?
Moreover, a photocopy of such fax transmission cannot be
A: No. They cannot be deemed as having been made at the considered as an electronic evidence.
same time with the original because they were not signed
unlike the original. Garvida v. Sales, Jr. 338 Phil 484
Originals under the Rules on Electronic evidence A facsimile is not a genuine and authentic pleading. It is, at
best, an exact copy preserving all the marks of an original.
Q: What is the original under the Rules on Electronic Without the original, there is no way of determining on its face
evidence? whether the facsimile pleading is genuine and authentic and
was originally signed by the party and his counsel. It may in
A: It is the print-out or output readable by sight or other fact, be a sham pleading.
means, provided it is shown to reflect the data accurately
Sec. 1, Rule 4, Rules on Electronic evidence

B. Parol Evidence Rule
BEST EVIDENCE RULE
SECTION 1. Original of an electronic document. An Among the various evidentiary rules, it is the parol evidence
electronic document shall be regarded as the equivalent of an rule that has direct application to the law on contracts.
original document under the Best Evidence Rule if it is a
printout or output readable by sight or other means, shown Q: When is the rule applicable?
to reflect the data accurately.
A: It applies only to contracts which the parties have decided
Sec.2 to set forth in writing, i.e. as Sec. 9 of Rule 130 provides:
SEC. 2. Copies as equivalent of the originals. When a Rule 130

document is in two or more copies executed at or about the
same time with identical contents, or is a counterpart Sec. 9.Evidence of written agreements. When the terms of
produced by the same impression as the original, or from the an agreement have been reduced to writing, it is considered
same matrix, or by mechanical or electronic rerecording, or as containing all the terms agreed upon and there can be,
by chemical reproduction, or by other equivalent techniques between the parties and their successors in interest, no
which is accurately reproduces the original, such copies or evidence of such terms other than the contents of the written
duplicates shall be regarded as the equivalent of the original. agreement.
Notwithstanding the foregoing, copies or duplicates shall not
be admissible to the same extent as the original if: However, a party may present evidence to modify, explain or
add to the terms of written agreement if he puts in issue in
his pleading:
NOTES ON EVIDENCE
(a)An intrinsic ambiguity, mistake or imperfection in the NOTE: Not all writings will trigger the application of the parol
written agreement; evidence rule. That writing must embody an agreement.
(b)The failure of the written agreement to express the true
intent and agreement of the parties thereto; Q: Should the writing that embodies the agreement of the
(c)The validity of the written agreement; or (d)The existence parties be in a particular form?
of other terms agreed to by the parties or their successors in
interest after the execution of the written agreement. A: No, it only makes reference to writing, not a public writing
or private writing.
The term "agreement" includes wills. (7a)
Application of the Rule only to parties and their
Q: What if the agreement is oral? successorsin-interest
A: It does not apply. Q: Who are bound by the parol evidence rule?
NOTE: The contract does not define a contract as a document, A: Only the parties. The rule that the terms of an agreement
a deed or an instrument. The document or the deed or are to be proven only by the contents of the writing itself refers
instrument are merely the tangible evidences of a contract. It to suits between parties to the contract and their successors in
is the meeting of the minds between the parties that interest. The rule does not bind suits involving strangers to the
constitutes the contract. contract.
Q: Is a written form required for the existence of a contract? Application of the Rule to Wills
A: No. The law provides that contracts shall be obligatory, in The parol evidence rule applies to contractual obligations. But,
whatever form they may have been entered into, provided all it also includes wills. There can therefore, be no evidence of
the requisites for their validity are present such as: the terms of the will other than the contents of the will itself.
a. Consent
b. Object Q: May an express trust concerning immovable or any
c. Cause interest therein be proved by parol evidence?
Q: When a written agreement is entered, any extraneous or A: No.

parol evidence will be inadmissible for what purposes?
How to introduce parol evidence
A:
1. To modify Q: Is the rule prohibiting parol evidence absolute?
2. To explain
3. To add to the terms of the written agreement. A: No.
Q: What is the purpose of the parol evidence rule? Q: What are the exceptions?
A: It forbids any addition to, or contradiction of, the terms of a A: A party may present evidence to modify, explain, or add to
written agreement by testimony or other evidence purporting the terms of the written agreement:
to show that different terms were agreed upon by the parties, 1. An intrinsic ambiguity, mistake, or imperfection in the
varying the purport of the written contract. Whatever is not written agreement
found in the writing is understood to have been waived and 2. The failure of the written agreement to express the true
abandoned (SeaOil Petroleum Corp. v. intent and agreement of the parties thereto.
Autocorp Group, 2008; Estrada v. Ramos, 468 SCRA 597). 3. The validity of the written agreement
4. The existence of other terms agreed to by the parties or
In general, the parol evidence rule is designed to give certainty their successors-in-interest after the execution of the
to written transactions, to preserve the reliability and to written agreement.
protect the sanctity of written agreements.
Q: What do you mean by introducing parol evidence?
NOTES ON EVIDENCE
same date which modify, alter, or contradict the stipulations

A: It means offering extrinsic or extraneous evidence that written into the Dec.22 agreement are not admissible since
would modify, explain or add to the terms of the written these constitute parol evidence. On the other hand, a January
agreement but parol evidence may only be allowed of any of 5 the agreement would be admissible because subsequent
the matters mentioned above is put in issue in the pleadings. agreements were not barred by parol evidence rule.
Otherwise, parol evidence cannot be introduced.
The parties to a written agreement may show written
Q: What are the issues which should be put before the agreement, they have entered into an oral contract tending to
amendments can be introduced? waive, dissolve, or annul the former agreement, or in any
manner to add to, or subtract from or vary or qualify the term
A: thereof.
1. Mistake or imperfection in the writing
2. The failure to express the true agreement of the parties The rule prohibiting the admission of evidence aliunde or
and the validity of the agreement. extrinsic evidence did not prohibit proof of an agreement
entered into after the written instrument was executed,
It is not the province of the courts to amend a contract by notwithstanding that such agreement may have the effect of
construction, or to make a new contract for the parties by adding to, changing or modifying the written agreement of the
interjecting material stipulations, or even to read into the parties. Thus, parol evidence on subsequent agreements may
contract words which it does not contain. It is only where a be admitted.
party puts in issue in the pleadings the failure of the written
agreement to express the true intent of the parties thereto Intrinsic ambiguity in the writing
said party may present evidence to modify, explain or add to
the terms of the written agreement. An instance when evidence aliunde or parol evidence may be
allowed to modify, explain or even add to the written
To justify the introduction of parol evidence a party must agreement is when an intrinsic ambiguity exists in the written
establish that an alleged agreement failed to express the true agreement. Yet, mere existence of n intrinsic ambiguity will not
intent of the parties. Until and unless this has been successfully authorize the admission of parol evidence. It is important tha
carried out, there is no right in esse to speak of. Accordingly, the intrinsic ambiguity be put in issue in the partys pleading. It
parol evidence cannot serve the prupoe of incorporating into is the raising of the issue of intrinsic ambiguity which will
the contract additional contemporaneous conditions which authorize the introduction of parol evidence.
are not mentioned at all in writing unless there has been fraud
or mistake. Q: What is intrinsic or latent ambiguity?
Pilipinas Bank v. CA (G.R. No. 141060) A: It is one which is not apparent on the face of the document
but which lies in the person or thing that is the subject of the
For parol evidence to be admissible to vary the terms of the document or deed. Ambiguity is intrinsic or latent when the
written agreement, the mistake or imperfection thereof or its language of the writing is clear and intelligible and suggests but
failure to express the true agreement of the parties should be a single meaning but some matter extraneous to the writing
put in issue by the pleadings. Accordingly, when the terms of creates the ambiguity.
an agreement have been reduced to writing, it is considered a
containing all the terms agreed upon and there can be, In this type of ambiguity, the document is clear on its face but
between the parties and their successors-in-interest, no matters extraneous to the agreement create the ambiguity.
evidence of such other terms other than the contents of the
written agreement. Note: Where the ambiguity is patent or extrinsic, parol
evidence will not be admitted even if the same is put in issue
Prior, contemporaneous and subsequent agreements in the pleading.
Traditional rules limit the inadmissibility of parol evidence or Q: What is extrinsic or patent ambiguity?
extrinsic evidence to prior or contemporaneous stipulations.
Hence, if a written agreement was executed by the parties on A: It is that which appears on the very face of the instrument,
Dec.22, 2008, agreements before that date or even on the and arises from the defective, obscure, or insensible language

NOTES ON EVIDENCE
used. Parol evidence is not admissible to explain the ambiguity

otherwise the court would be creating instead of construing a
contract.
Note: The rule only allows parol evidence in the case of an

intrinsic or latent ambiguity.

NOTES ON EVIDENCE
Mistake or imperfection in the writing and failure to express

NOTES ON EVIDENCE
the true agreement of the parties 1. The parties have agreed on the size of the land subject of
the sale. By an act of fraud, a smaller area is indicated in
The admission of evidence aliunde may be justified where the deed.
there is a mistake or imperfection in the written agreement. 2. An instrument may be reformed if the instrument does
This mistake or imperfection must be put in issue in the not express the true intention of the parties because of
pleading by the party who wants to prove the defect in the lack of skill of the person drafting the instrument
writing. 3. If the parties agree upon mortgage or pledge of property,
but the instrument states that the property is sold
Failure of the writing to express the true agreement of the absolutely or with the right to repurchase, reformation is
parties is another ground for admitting parol evidence as long proper
as the issue is raised in the pleadings.
Q: Reformation of the instrument cannot be brought to
Q: What does mistake or imperfection in writing here mean? reform certain things. Give examples:
A: This only means that despite the meeting of the minds, the A:
true agreement of the parties is not reflected in the 1. Simple donations inter vivos wherein no condition is
instrument. imposed
2. Wills
Q: What are the other reasons which made the instrument 3. When the agreement is void
unable to express the true intention of the parties?
A: Q: Distinguish between Best Evidence Rule and the Parol

1. Fraud Evidence Rule.
2. Inequitable conduct
3. Accident A:
4. Ignorance
5. lack of skill BEST EVIDENCE RULE PAROL EVIDENCE RULE Establishes
6. negligence a preference for Not concerned with the the
7. bad faith on the part of the person drafting the instrument original document over a primacy of evidence
(Arts. 1359 and 1364 of the NCC) but secondary evidence thereof presupposes that the
original is available Precludes the admission of
Q: What is the remedy if there is a meeting of minds of the Precludes the admission of secondary evidence if the
parties but their true intention is not expressed in the other evidence to prove the original document
instrument because of the above-mentioned causes? is terms of a document other available than the
contents of the document itself for the purpose of
A: One of the parties may ask for the reformation of the varying the terms of the writing
instrument (Art. 1359, NCC). Can be invoked by any Can be invoked only by the litigant to an
action whether parties to the document and or not said litigant
Q: What if there is no meeting of minds? is party to their successors-in-interest the document involved
Applies to all forms of writing Applies to written
A: The proper remedy is not reformation of the instrument but agreements (contracts)
an action for annulment (Art. 1359, NCC).
Waiver of Parol Evidence Rule
Q: What is an action for reformation?
Q: Can the parol evidence rule be waived?
A: It presupposes that there is nothing wrong with the contract
itself because there is a meeting of minds of the parties. Art. A: Yes:
1359 does not in fact refer to a reformation of the contract but 1. by failure to invoke the benefits of the rule
of the instrument. 2. by failure to object to the introduction of evidence
aliunde.
Examples:
NOTES ON EVIDENCE
Probative value
Q: What are the requirements for the authentication of an
Admissibility is not the equivalent of probative value or electronic evidence?
credibility.
A:
C. Authentication and Proof of Documents (Rule 132) 1. By evidence that it had been digitally signed by the person
purported to have signed the same
Concept of authentication 2. By evidence that other appropriate security procedures or
devices as may be authorized by the SC or by law for
Authentication occupies a vital place in the presentation of authentication an electronic documents were applied to
evidence. the document
3. By other evidence showing its integrity and reliability to
the satisfaction of the judge (Sec.2, Rule 5, Rules on
Q: What may be the object of authentication?
Electronic Evidence)
A: Not only documents but also objects introduced in evidence
Concept of document
need to be authenticated.
Authentication is the preliminary step in showing the Q: What is a document?

admissibility of an evidence.
A: It means a deed, instrument, or other duly authorized paper
Example: A weapon is found in the crime scene. To be by which something is proved, evidenced or set forth.
admissible in evidence, it must be authenticated. This means
that it must be shown to the satisfaction of the court that the Q: When may documents be considered as documentary
weapon in court is the very same weapon found in the scene is evidence?
the same. Thus, the court must call someone to authenticate
the same. He could be the police investigator or someone else A: Only when it is offered as proof of their contents. Otherwise,
who handled the evidence. it is a mere object when the purpose is merely to prove its
existence.
Q: Is litigation involved in the authentication of either object
or documentary evidence? Q: What are the classifications of documents?
A: Yes, it is always involved. A:

1. Public
Q: What is the presumption under our jurisdiction? 2. Private
A: That objects and documents presented in evidence are, as a Rule 132

rule, counterfeit. Thus, evidence is not presumed to be
authentic. Sec. 19.Classes of Documents. For the purpose of their
presentation evidence, documents are either public or
Q: Does authentication of a private document require a seal? private.
A: No. There shall be no difference between sealed and Public documents are:
unsealed private documents insofar as their admissibility is
concerned. (a)The written official acts, or records of the official acts of
the sovereign authority, official bodies and tribunals, and
Authentication under Rules on Electronic Evidence public officers, whether of the Philippines, or of a foreign
country;
Q: Who bears the burden of proof? (b)Documents acknowledge before a notary public except
last wills and testaments; and
A: The person seeking to introduce an electronic evidence. (c)Public records, kept in the Philippines, of private
documents required by law to the entered therein.
NOTES ON EVIDENCE
All other writings are private. (20a) may be presented in evidence without further proof, the
certificate of acknowledgment being prima facieevidence of
Q: Do written official acts, or records of the official acts of the the execution of the instrument or
sovereign authority refer only to those of the Philippines? document involved. (31a)
A: No. They refer also to those of a foreign country. Documents Notarized documents, being public documents, do not require
acknowledged before a notary public except last wills and authentication, unlike private documents. They also enjoy
testaments which are private documents even if notarized. prima facie presumption of authenticity and due execution. It
enjoys the presumption of regularity. It is a prima facie
NOTE: In the case of a public record of a private document evidence of the truth of the facts stated therein and a
required by law to be entered into a public record, the public conclusive presumption of its existence and due execution. To
document does not refer to the private document itself but the overcome this presumption, there must be sufficient, clear and
public record of that private document. convincing evidence as to exclude all reasonable controversy
as to the falsity of the certificate. In the absence of such proof,
Q: What is a private document? the document must be upheld.
A: The law does not give any exact definition. The one who denies the due execution of deed where ones
signature appears has the burden of proving that contrary to
Church registries the recital in the jurat, one never appeared before the notary
public and acknowledge the deed to be a voluntary act.
It is well-settled that Church registries of birth, marriages, and
deaths made subsequent to the promulgation of General Agagon v. Bustamante (A.C. No. 5510)
Orders No. 68 and Act No. 190 are no longer public writings,
nor are they kept by duly authorized officials. They are private The notarial seal converts the document from private to public,
writings and their authenticity must be proved, as are all other after which it may be presented as evidence without need for
private writings. proof of its genuineness and due execution.
Importance of knowing whether a document is Rule 132

public or private ( Rule 132)
Sec. 23.Public documents as evidence. Documents
Sec. 20.Proof of private document. Before any private consisting of entries in public records made in the
document offered as authentic is received in evidence, its due performance of a duty by a public officer are prima facie
execution and authenticity must be proved either: evidence of the facts therein stated. All other public
documents are evidence, even against a third person, of the
(a)By anyone who saw the document executed or written; or fact which gave rise to their execution and of the date of the
(b)By evidence of the genuineness of the signature or latter. (24a)
handwriting of the maker.
When a public officer in the performance of his duty makes an
Any other private document need only be identified as that entry in the public record, the document of such entry is
which it is claimed to be. (21a) deemed prima facie evidence of the facts stated in the entry.
In case of public document, the facts stated therein constitute
Before the admission of a private document in evidence that is evidence of the facts that gave rise to the execution of such
offered as authentic, its due execution and authenticity must documents and of the date of the execution of the same.
be proved. This does not apply to a public document which is
admissible without further proof of its due execution and Evidence of official records of official acts; attestation
genuineness.
While a public instrument does not require the authentication
Rule 132 imposed upon a private document, there is a necessity for
showing to the court that indeed a record of the official acts of
Sec. 30.Proof of notarial documents. Every instrument duly official bodies, tribunals or public officer exists.
acknowledged or proved and certified as provided by law,
NOTES ON EVIDENCE
Rule 132 a. By the original record; or

b. By a copy thereof, attested by the legal custodian of the
The record of a public document may be evidenced by: record, with an appropriate certificate that such officer
has the custody (Sec. 27 of Rule 132).
Sec. 24.Proof of official record. The record of public
documents referred to in paragraph (a) of Section 19, when Sec. 27.Public record of a private document. An authorized
admissible for any purpose, may be evidenced by an official public record of a private document may be proved by the
publication thereof or by a copy attested by the officer having original record, or by a copy thereof, attested by the legal
the legal custody of the record, or by his deputy, and custodian of the record, with an appropriate
accompanied, if the record is not kept in the Philippines, with certificate that such officer has the custody. (28a)
a certificate that such officer has the custody. If the office in
which the record is kept is in foreign country, the certificate Q: How to prove the lack of record?
may be made by a secretary of the embassy or legation,
consul general, consul, vice consul, or consular agent or by A: Proof of lack of record of a document consists of written
any officer in the foreign service of the Philippines stationed statement signed by an officer having custody of an official
in the foreign country in which the record is kept, and record or by his deputy. The written statement must contain
authenticated by the seal of his office. the ff. matters:
(25a)
a. There has been a diligent search of the record;
Sec. 25.What attestation of copy must state. Whenever a b. That despite the diligent search, no record of entry of
copy of a document or record is attested for the purpose of a specified tenor is found to exist in the records of his
evidence, the attestation must state, in substance, that the office.
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 The statement must be accompanied by a certificate that such
seal of the attesting officer, if there be any, or if he be the officer has the custody of official records.
clerk of a court having a seal, under the seal of
such court. (26a) Sec. 28.Proof of lack of record. A written statement signed
by an officer having the custody of an official record or by his
Sec. 26.Irremovability of public record. Any public record, deputy that after diligent search no record or entry of a
an official copy of which is admissible in evidence, must not specified tenor is found to exist in the records of his office,
be removed from the office in which it is kept, except upon accompanied by a certificate as above provided, is admissible
order of a court where the inspection of the record is as evidence that the records of his office contain no such
essential to the just determination of a pending case. (27a) record or entry. (29)
Special power of attorney executed abroad Last wills and testament
A notary public in a foreign country is not of those who can Last wills and testaments must undergo an authentication
issue the certificate mentioned in Sec.24. Non-compliance process even if they are notarized in accordance with Art. 806
with such rule will render the special power of attorney of the NCC.
inadmissible in evidence. The argument that the lack of
consular authentication is a mere technicality that can be Art. 806, NCC
brushed aside in order to uphold substantial justice is
untenable. Failure to have the SPOA authenticated is not a Art. 806. Every will must be acknowledged before a notary
mere technicality but a question of jurisdiction. public by the testator and the witnesses. The notary public
shall not be required to retain a copy of the will, or file
Q: What are the evidence of public record of a private another with the Office of the Clerk of Court. (n)
document?
The Rules while declaring that the term public document
A: A public record of a private document may be proved by any includes one acknowledged before a notary public, it
of the following: nonetheless expressly excludes last wills and testaments (Rule
132, Sec.19 (b).
NOTES ON EVIDENCE
Sec. 19.Classes of Documents. For the purpose of their

presentation 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 acknowledge before a notary public except last
wills and testaments; and
(c)Public records, kept in the Philippines, of private
documents required by law to the entered therein.
All other writings are private. (20a)
Also, substantive law provides that no will shall pass either real
or personal property unless proved and allowed in the proper
court. The same rule is echoed in Sec. 1 of Rule 75.
Art. 838, NCC
Art. 838. No will shall pass either real or personal property

unless it is proved and allowed in accordance with the Rules
of Court.
The testator himself may, during his lifetime, petition the

court having jurisdiction for the allowance of his will. In such
case, the pertinent provisions of the Rules of Court for the
allowance of wills after the testator's a death shall govern.
The Supreme Court shall formulate such additional Rules of

Court as may be necessary for the allowance of wills on
petition of the testator.
Sec. 1 of Rule 75
Sec.1. Allowance of will necessary. Conclusive as to

NOTES ON EVIDENCE
Subject to the right of appeal, the allowance of the will, either

NOTES ON EVIDENCE
during the lifetime of the testator or after his death, shall be with writings admitted or treated as genuine by the party
conclusive as to its due execution. (n) execution.No will against whom the evidence is offered, or proved to be
shall pass either real or personal estate unless proved and genuine to the satisfaction of the judge. (23a)
allowed in the proper court. Subject to the right of appeal,
such allowance of the will shall be conclusive as to its due Heirs of Amado Celestial v. Heirs of Editha G. Celestial
execution.
The rule does not require expert testimony to prove the
Poof of a Private Document (Rule 132) handwriting of a person. It may be proven by any witness who
believes it to be the handwriting of a person because:
Sec. 20.Proof of private document. Before any private
document offered as authentic is received in evidence, its due a. he has seen the person write; or
execution and authenticity must be proved either: b. has seen writing purporting to be his upon which the
witness has acted or been charged, and has thus acquired
(a)By anyone who saw the document executed or written; or knowledge of the handwriting of such person;
(b)By evidence of the genuineness of the signature or c. by a comparison made by the witness or the court, with
handwriting of the maker. writings admitted or treated as genuine by the party
against whom the evidence is offered, or proved to be
Any other private document need only be identified as that genuine to the satisfaction of the judge.
which it is claimed to be. (21a)
Ancient documents (Rule 132)
Where the private document is offered in evidence as
authentic, there is a need to prove its due execution and Sec. 21.When evidence of authenticity of private document
authenticity. Sec. 20 recognizes 2 ways of proving the due not necessary. Where a private document is more than
execution and genuineness of a private document: thirty years old, is produced from the custody in which it
would naturally be found if genuine, and is unblemished by
a. Rely on the personal knowledge of the witness (he any alterations or circumstances of suspicion, no other
personally witnessed the execution or writing of the evidence of its authenticity need be given. (22a)
document); and
b. The witness testifies or shows evidence that the This is the exception to the rule requiring proof of the
signature or handwriting of the maker is genuine. genuineness and due execution of a private document.
Accordingly, when a document is ancient, evidence of its
The rule only applies when a private document is offered as authenticity need not be given. There is no necessity for
authentic as when it is offered in evidence to prove that the observance of the authentication process. Yet, it must be
document was truly executed by the person purported to have established that document is ancient and that it has the
made the same. Thus, where it is offered in evidence not as characteristics of a document provided in Sec. 21. When all
authentic, its genuineness and due execution need not be these are done, no other evidence of its authenticity need be
proven as when the only purpose is for the efferor to show that given.
a certain piece of document exists.
Q: When is a document considered as ancient?
Q: How to prove the genuineness of a handwriting?
A: A private document is considered as ancient when it is more
A: Sec. 22 of Rule 132 than 30 years old, is produced from a custody in which it would
naturally be found if genuine and is unblemished by any
Sec. 22.How genuineness of handwriting proved. The alterations or circumstances of suspicion. Yet, while a witness
handwriting of a person may be proved by any witness who is not needed to prove the due execution and authenticity of
believes it to be the handwriting of such person because he the document, a witness is needed to identify the same.
has seen the person write, or has seen writing purporting to
be his upon which the witness has acted or been charged, and Note: If the authenticity of a private document has been
has thus acquired knowledge of the handwriting of such admitted by the parties, the rule requires no further
person. Evidence respecting the handwriting may also be authentication.
given by a comparison, made by the witness or the court,

NOTES ON EVIDENCE
Q: How to explain alterations in a document? the court or judicial officer, (b) collusion between the parties,
or (c) fraud in the party offering the record, in respect to the
A: Sec. 31 of Rule 132 proceedings. (30a)
Sec. 31.Alteration in document, how to explain. The party Registration of contracts

producing a document as genuine which has been altered and
appears to have been altered after its execution, in a part Where a contract is required by law to be registered, the same
material to the question in dispute, must account for the must be, as a rule, in a public document. For example, for
alteration. He may show that the alteration was made by purposes of registration and convenience, acts and contracts
another, without his concurrence, or was made with the which have for their object the creation, transmission,
consent of the parties affected by it, or was otherwise modification or extinguishment of real rights over immovable
properly or innocent made, or that the alteration did not property must appear in a public document.
change the meaning or language of the instrument. If he fails
to do that, the document shall not be admissible in Sec. 23 of Rule 132
evidence. (32a)
Sec. 23.Public documents as evidence. Documents
The party introducing the document as genuine but which consisting of entries in public records made in the
bears alterations after its execution has the duty to account for performance of a duty by a public officer are prima facie
any alteration found in the same. He may show any of the evidence of the facts therein stated. All other public
following: documents are evidence, even against a third person, of the
fact which gave rise to their execution and of the date of the
a. that the alteration was made by another, without his latter. (24a)
concurrence;
b. that the alteration was made with the consent of the
parties affected by it;
c. that the alteration was otherwise properly or Chapter IV TESTIMONIAL EVIDENCE
innocent made, or that the alteration did not change
the meaning or language of the instrument.
A. Qualifications of Witnesses
Failure to do any of the above will make the document
Nature of Testimonial or Oral Evidence
inadmissible in evidence.
Q: What are testimonial or oral evidence?

Q: How to prove documents in an unofficial language?
A: It is evidence elicited from the mouth of a witness as

A: Sec.33 of Rule 132
distinguished from real and documentary evidence. It is also
called as viva voce which means living voice. In this evidence,
Sec. 33.Documentary evidence in an unofficial language.
a human being is called to the stand, is asked questions, and
Documents written in an unofficial language shall not be
answers the questions asked of him. He is called the witness.
admitted as evidence, unless accompanied with a translation
into English or Filipino. To avoid interruption of proceedings,
Competent witness means evidence that is not excluded by law
parties or their attorneys are directed to have such
or by rules. As a applied to a witness, competence means that
translation prepared before trial. (34a)
the witness is qualified to take a stand and testify. It means
that he is fit or he is eligible to testify on a particular matter in
Impeachment of judicial record a judicial proceeding.
Judicial record refers to the record of judicial proceedings. It If a witness cannot perceive or even if he can perceive he
does not only include official entries or files or the official acts cannot remember what he has perceived, he is incompetent to
of a judicial officer but also the judgment of the court. testify. If he has no personal knowledge of an event the truth
of which he wants to prove, he is also incompetent to testify.
Sec. 29.How judicial record impeached. Any judicial record Competence of a witness therefore, refers to his personal
may be impeached by evidence of: (a) want of jurisdiction in
NOTES ON EVIDENCE
qualifications to testify. Competence also includes the absence A person is not qualified to be a witness if he is incapable of
of any factor that would disqualify him from being a witness. understanding the duty to tell the truth. An oath or affirmation
is necessary for the witness to recognize the duty to tell the
The presentation and introduction of every kind of evidence truth. It signifies that he is swearing to the Creator to tell the
needs the intervention of a witness. It is a legal truth that truth and nothing but the truth and that if he does not, he will
identification precedes authentication. Being inanimate, a later on answer for all the lies he is guilty of. This
document or an object cannot speak for itself. understanding is not necessarily inferred from the age of the
witness.
Presumption in favor of competence of a witness
Ability to perceive
A person who takes the stand as a witness is presumed to be
qualified to testify. A party who desires to question the A witness must be able to perceive an event. It would be
competence of a witness must do so by making an objection as absurd to ask a blind man what he saw, or of a deaf person
soon as the facts tending to show incompetency are apparent. what he heard. The witness must also have personal
knowledge of the facts surrounding the subject matter of his
Qualifications of a witness (Rule 130, Sec. 20) testimony. Otherwise, he lacks the competence to testify.
Sec. 20.Witnesses; their qualifications. Except as provided Rule 130, Sec. 36.Testimony generally confined to personal
in the next succeeding section, all persons who can perceive, knowledge; hearsay excluded. A witness can testify only to
and perceiving, can make their known perception to others, those facts which he knows of his personal knowledge; that
may be witnesses. is, which are derived from his own perception, except as
otherwise provided in these rules. (30a)
Religious or political belief, interest in the outcome of the
case, or conviction of a crime unless otherwise provided by Ability to make known the perception to others
law, shall not be ground for disqualification. (18a)
Q: What are the factors involving the ability to make known
Q: What are the qualifications of a witness? the perception of the witness to the court?
A: A:
1. Ability to remember what has been perceived; and 2. The
1. He can perceive; and in perceiving ability to communicate the remembered perception.
2. He can make known his perception to others.
3. He must take either an oath or an affirmation (Sec. 1, People v. Tuangco
Rule 132); and
4. He must not possess the disqualifications imposed by Deaf-mutes are not necessarily incompetent as witnesses.
law or the rules. They are competent where they:
Oath or affirmation (Rule 132) a. Can understand and appreciate the sanctity of an
oath;
SECTION 1.Examination to be done in open court. The b. Can comprehend facts they are going to testify to; and
examination of witnesses presented in a trial or hearing shall c. Can communicate their ideas through a qualified
be done in open court, and under oath or affirmation. Unless interpreter.
the witness is incapacitated to speak, or the questions calls
for a different mode of answer, the answers Competency and Credibility
of the witness shall be given orally. (1a)
Competence Credibility
The willingness to take an oath or affirmation is an essential A matter of law or a matter Nothing to do with the law or
qualification of a witness. No court would and should allow the or rule rule
testimony of someone who desires to testify but who refuses In deciding competence of Refers to the weight and the
to swear or to make an affirmation. witness, the court will not trustworthiness or reliability

NOTES ON EVIDENCE
inquire into the of the testimony trustworthiness

of the witness.
Has reference to the basic Refers to the believability of
qualifications of a witness as the witness and has nothing his
capacity to perceive and to do with law or the rules. his
capacity to communicate his perception to others. It includes
the absence of any of the disqualifications imposed upon a
witness.
Note: One who has contradicting testimony is still competent

witness.
Sec. 20-24 of Rule 130
Sec. 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. (19a)

NOTES ON EVIDENCE
Sec. 22.Disqualification by reason of marriage. During their

NOTES ON EVIDENCE
marriage, neither the husband nor the wife may testify for or
against the other without the consent of the affected spouse, Q: Is bias a basis for declaring a witness incompetent to
except in a civil case by one against the other, or in a criminal testify?
case for a crime committed by one against the
other or the latter's direct descendants or ascendants. (20a) A: No.
Sec. 23.Disqualification by reason of death or insanity of NOTE: Persons covered by the Survivorship Disqualification
adverse party. Parties or assignor of parties to a case, or Rule (Dead Mans Statute) cannot testify as to any matter of
persons in whose behalf a case is prosecuted, against an fact occurring before the death or insanity of the adverse
executor or administrator or other representative of a party.
deceased person, or against a person of unsound mind, upon
a claim or demand against the estate of such deceased person Drug abuse will not render a person incompetent to testify. It
or against such person of unsound mind, cannot testify as to becomes relevant only if the witness was under the influence
any matter of fact occurring before the death of such of drugs at the same time he is testifying or at the time the
deceased person or before such person became of events in question were observed.
unsound mind. (20a)
Q: What is the rule regarding questions concerning the
Sec. 24.Disqualification by reason of privileged credibility of witnesses?
communication. The following persons cannot testify as to
matters learned in confidence in the following cases: A: They are best left to the sound discretion of ht trial court as
it is in the best position to observe his demeanor and bodily
(a)The husband or the wife, during or after the marriage, movements.
cannot be examined without the consent of the other as to
any communication received in confidence by one from the G.R.: The findings of the trial courts on the credibility of
other during the marriage except in a civil case by one against witnesses deserve a high degree of respect and will not be
the other, or in a criminal case for a crime committed by one disturbed
against the other or the latter's direct descendants or
ascendants; XPN: When the trial court had overlooked, misunderstood, or
(b)An attorney cannot, without the consent of his client, be misapplied some facts or circumstances of weight and
examined as to any communication made by the client to substance which could reverse a judgment of conviction.
him, or his advice given thereon in the course of, or with a
view to, professional employment, nor can an attorney's Q: What is the reason for the general rule?
secretary, stenographer, or clerk be examined, without the
consent of the client and his employer, concerning any fact A: The trial courts had observed the witnesses deportment
the knowledge of which has been acquired in such capacity; and manner of testifying, the furtive glance, blush of conscious
(c)A person authorized to practice medicine, surgery or shame, hesitation, flippant or sneering tone, calmness, sigh, or
obstetrics cannot in a civil case, without the consent of the the scant or full realization of an oathall of these are useful
patient, be examined as to any advice or treatment given by aids for an accurate determination of a witness honesty and
him or any information which he may have acquired in sincerity.
attending such patient in a professional capacity, which
information was necessary to enable him to act in capacity, Other factors that do not affect the competency of witness
and which would blacken the reputation of the patient; (d)A
minister or priest cannot, without the consent of the person
Q: What are the factors which do not, as a general rule, affect
making the confession, be examined as to any confession
the competency of witness?
made to or any advice given by him in his professional
character in the course of discipline enjoined by the church to
A: Sec. 20 of Rule 130:
which the minister or priest belongs;
(e)A public officer cannot be examined during his term of
a. Religious or
office or afterwards, as to communications made to him in
b. political belief,
official confidence, when the court finds that the public
interest would suffer by the disclosure. (21a) c. interest in the outcome of the case, or

NOTES ON EVIDENCE
d. conviction of a crime unless otherwise provided by

law
Q: Give an example under the phrase conviction of a crime

unless otherwise provided by law?
A: Those who have been convicted of falsification of a

document, perjury or false testimony are disqualified from
being witnesses at a will (Art. 821, NCC). As a consequence,
these persons may not also testify as witnesses in the probate
of a will where the subject of the testimony is the very fact of
execution of the will in their presence.
B. Disqualification of witnesses
Sec. 21 of Rule 130

NOTES ON EVIDENCE
Q: Does relationship of a witness with a party render him,

NOTES ON EVIDENCE
ipso facto, biased? Competency of a child witness
A: No (Northwest Airlines v. Chiong, 2008). Q: What is the presumption under the law?
A: Every child is presumed qualified to be a witness. This is

based on Sec. 6, Rule on Examination of a Child Witness, A.M.
No. 004-07-SC.
Sec. 21.Disqualification by reason of mental incapacity or
immaturity. The following persons cannot be witnesses: Q: Who has the burden of proof to rebut this presumption?
(a)Those whose mental condition, at the time of their
production for examination, is such that they are incapable of A: The party challenging his competence.
intelligently making known their perception to others;
(b)Children whose mental maturity is such as to render them NOTE: When the court finds that substantial doubt exists
incapable of perceiving the facts respecting which they regarding the ability of the child to perceive, remember,
are examined and of relating them truthfully. (19a) communicate, distinguish truth from falsehood, or appreciate
the duty to tell the truth in court, the court shall conduct a
Q: What requisites must concur in order to disqualify a competency examination of a child.
witness by reason of mental incapacity?
Q: How will the court conduct the competency examination
A: of a child?
1. The person must be incapable of intelligently making
known their perception to others A: Motu propio or on motion of a party.
2. His incapacity must exist at the time of his production for
examination. Q: What proof is required to prove the necessity of a
competency examination of a child?
Q: What is thus the test to disqualify him?
A: Proof of such necessity must be grounded on reasons other
A: The question is: Is the mental condition of the proposed than age of the child because such age in itself is not a
witness at the time he is to testify such that he is of his sufficient basis for a competency examination of a child.
perception to others? The answer to this question will
determine whether or not a person is a mentally competent Q: Is the competency examination of a child open to the
witness. public?
Child witness meaning A: No.
Q: Who is a child witness? Q: Who are allowed to attend the examination?
A: Any person who at the time of giving testimony is below the A:

age of 18 years old (Sec. 4 [a], Rule on Examination of a Child 1. The judge and necessary court personnel
Witness, A.M. No. 004-07-SC). 2. The counsel for the parties
3. The guardian ad litem
Q: What if he is over 18 years of age, can he be considered as 4. One or more support persons for the child
a child? 5. The defendant, unless the court determines the
competence can be fully evaluated in his absence.
A: Sometimes, he may. If he is found by the court as unable to
fully take care of himself or protect himself from abuse, Q: Who shall conduct the competency examination of a child?
neglect, cruelty, exploitation or discrimination because of
physical or mental disability or condition (Sec. 4 [a], Rule on A: Only by the judge. If counsels of the parties desire to ask
Examination of a Child Witness, A.M. No. 004-07-SC). questions, they cannot do so directly. They are allowed to
submit questions to the judge which he may ask the child in his
discretion.
NOTES ON EVIDENCE
Q: What should be the nature of the questions?

NOTES ON EVIDENCE
A: They shall be appropriate to the age and developmental

NOTES ON EVIDENCE
level of the child. The questions shall not be related to the 3. The witness is the plaintiff or an assignor of that party, or
issues at the trial but shall focus on the ability of the child to a person in whose behalf the case is prosecuted
remember, to communicate, to distinguish between truth and 4. The subject of the testimony is as to any matter of fact
falsehood and to appreciate the duty to testify truthfully (Sec. occurring before the death of such deceased person or
6, [e] Rule on Examination of a Child Witness, A.M. No. before such person became of unsound mind.
004-07-SC).
Q: What is the purpose of this rule?
NOTE: The assessment is designed to be a continuing one.
A: To level the playing field between the lucky survivor and the
Q: When may the court order that the testimony of a child be poor deceased, the law-makers devised a rule that would seal
taken by live-link television? the lips of the survivor by declaring him incompetent to testify
on the transaction between him and the deceased. The rule
A: If there is a likelihood that the child would suffer trauma does not protect the survivor even at the risk of not paying a
from testifying in the presence of the accused, his counsel or just and valid claim because it is the survivor who has the
the prosecutor as the case may be. stronger reason to file a false claim. The rule is for the
protection of the guy who died (Tan v. CA, 295 SCRA 755).
Q: What kind of trauma is contemplated on?
Q: How will the rule be applied?
A: Such that would impair the completeness or truthfulness
of the testimony of the child A:
1. Determine first who the defendant is. He is the executor
Survivorship Disqualification Rule or the or administrator or other representative of a deceased
Dead Mans Statute (Rule 130) person, or against a person of unsound mind.
2. The rule will not apply if the plaintiff is the executor or
Sec. 23.Disqualification by reason of death or insanity of administrator or other representative of a deceased
adverse party. Parties or assignor of parties to a case, or person, or the plaintiff is of unsound mind
persons in whose behalf a case is prosecuted, against an 3. The rule contemplates a suit against the estate, its
executor or administrator or other representative of a executor or administrator and not a suit filed by the
deceased person, or against a person of unsound mind, upon administrator or executor of the estate.
a claim or demand against the estate of such deceased person 4. When a counterclaim set up by the executor or
or against such person of unsound mind, cannot testify as to administrator of the estate, the case is removed from the
any matter of fact occurring before the death of such operation of the dead mans statute.
deceased person or before such person became of 5. The case should be one upon a claim or demand against
unsound mind. (20a) the estate of such deceased person or against such person
of unsound mind
Q: Where does this rule apply? 5. The rule does not apply when the action brought is not
against the estate or not upon a claim or demand against
A: the estate.
1. Civil case
2. Special proceeding Q: What is the nature of the case?
Q: What are the elements for its application? A: It is a civil case, not criminal because the estate itself cannot
be criminally liable.
A:
1. The defendant in the case is the executor or administrator Q: Who are these persons enumerated by the law?
or other representative of a deceased person, or against a
person of unsound mind, A: These are the persons who had previous dealings with the
2. The suit is upon a claim or demand against the estate of deceased or the person of unsound mind. It does not prohibit
such deceased person or against such person of unsound a testimony by a mere witness to the transaction. Thus,
mind offering a disinterested witness is not a transgression of the

NOTES ON EVIDENCE
rule since the prohibition extends only to the party or his 1. There is identity of interests between the husband and
assignor or the person in whose behalf the case is prosecuted. wife
2. If one were to testify for or against the other, there is a
Q: To what matter does the incompetency is imposed upon consequent danger of perjury
the witness? 3. The policy of law is to guard the security and confidences
of private life, even at the risk of an occasional failure of
A: On any matter of fact occurring before the death of such justice, and to prevent domestic disunion and
deceased person or before such person became of unsound unhappiness
mind. Hence, if the subject of the testimony is on some other 4. Where there is want of domestic tranquility there is
matter, the witness may testify on such matter as when the danger of punishing one spouse through the hostile
subject of the testimony is on a fact which transpired after the testimony of the other.
death of such person. Thus, a testimony favorable to the estate
or to the insane person is not barred since the rule is designed Q: What is the scope of the rule?
to protect the interest of the estate or to the insane person.
A: The rule forbids each spouse to testify for or against the
Q: How may this rule be waived? other without the consent of the affected spouse except in
cases authorized by the rule. The prohibition extends not only
A: to a testimony adverse to the spouse but also in favor. It also
1. Failing to object to the testimony extends both criminal and civil cases because the rule does not
2. Cross-examining the witness on the prohibited testimony distinguish.
(Santos v. Santos, 366 SCRA 395) 3.
Offering evidence to rebut the testimony. Q: What is the important requisite to claim this privilege?
Q: True or False: The surviving parties rule bars Maria from A: It is essential that they be validly married. It requires not
testifying for the claimant as to what the deceased Jose has only a valid marriage but the existence of that valid marriage
said to her, in a claim filed by Pedro against the estate of Jose. at the moment the witness-spouse gives the testimony.
A: False. The rule bars only a party plaintiff or his assignor or a Q: Does not apply to illicit cohabitation?
person in whose behalf a case is prosecuted. Maria is merely a
witness and is not one of those enumerated as barred from A: No.
testifying.
NOTE: The prohibited testimony is one that is given or offerd
Marital Disqualification Rule (Spousal Immunity) (Rule during the existence of the marriage. Thus, it no longer applies
130) after the marriage is dissolved.
Sec. 22.Disqualification by reason of marriage. During their Q: Should the facts subject of the testimony occurred or came
marriage, neither the husband nor the wife may testify for or to the knowledge of the witness before the marriage?
against the other without the consent of the affected spouse,
except in a civil case by one against the other, or in a criminal A: It does not matter if the facts subject of the testimony
case for a crime committed by one against the occurred or came to the knowledge of the witness before the
other or the latter's direct descendants or ascendants. (20a) marriage. The affected spouse may still invoke the rule by
objecting to the testimony as long as the testimony is offered
Q: What is the purpose of this rule? during the marriage.
A: It is based on the societys intent to preserve the marriage Q: What if there was no objection on the part of the other
relations and promote domestic peace. It is intended to spouse?
discourage the commission of perjury.
A: The testimony is admissible where no objection is
Alvarez v. Ramirez (473 SCRA 72) interposed by the spouse who has the right to invoke the
prohibition.

NOTES ON EVIDENCE
Q: So, may the rule be waived? How? Q: May a spouse testify in a trial where the spouse is a
coaccused?
A: Yes, either expressly or impliedly.
A: The disqualification is between the husband and the wife,
Q: Does the rule apply only to testimony? but the rule does not preclude the wife from testifying when it
involves other parties or accused. The court stressed that the
A: No, it also covers production of documents (State v. testimony cannot be used against accused-appellant directly
Bramlet). or through the guise of taking judicial notice of the proceedings
in the murder case without violating the marital privilege.
Exceptions to the Marital disqualification rule What cannot be done directly cannot be done indirectly
(People v. Quidato, 297 SCRA 1).
Q: What are the Exceptions to the Marital disqualification
rule? Testimony be the estranges spouse
A: When the marital and domestic relations are so strained that

1. in a civil case by one against the other, or there is no more harmony to be preserved nor peace and
2. in a criminal case for a crime committed by one against tranquility which may be disturbed, the reason based on such
the other or the latter's direct descendants or ascendants harmony and tranquility fails. In such case, identity of interests
disappears and the consequent danger of perjury based on the
Q: What is the landmark decision under Ordoo v. Daquigan identity is non-existent (Alvarez v. Ramirez, 2005; People v.
(62 SCRA 270)? Castaeda, 271 SCRA 504).
A: The court allowed the wife to testify against her husband Marital Privileged Communications
who was accused of raping her daughter. Accordingly, The
better rule is that, when an offense directly attacks or directly Q: What are the 2 codal provisions which cover marital
and vitally impairs the conjugal relations, it comes within the disqualifications?
exception to the statute. The rule that the injury must amount
to physical wrong upon the person is too narrow. A:
1. Sec. 22 of Rule 130.
Q: What is the rule regarding a spouses testimony in a civil 2. Sec. 24 (a) of Rule 130:
case?
Sec. 24.Disqualification by reason of privileged
A: It contemplates of a situation where one spouse is a plaintiff communication. The following persons cannot testify as to
or a petitioner and the other spouse is a defendant or matters learned in confidence in the following cases:
respondent. Where the civil case is between a spouse and the
direct ascendants or descendants of the other, the marital (a)The husband or the wife, during or after the marriage,
disqualification rule still applies. cannot be examined without the consent of the other as to
any communication received in confidence by one from the
Q: How about in criminal cases? 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
A: The privilege of one to testify against the other is not against the other or the latter's direct descendants or
confined to crimes committed by one against the other, but ascendants;
covers crimes committed by one against the direct
descendants or ascendants of the latter such as the child or the Q: For the rule to apply, what are the requisites which should
parents. However, crimes committed against a spouses be present?
collateral relatives such as uncles, aunties, and cousins or
nephews and nieces are not covered by the exception because A:
they are neither direct ascendants nor descendants. 1. There must be a valid marriage between the husband and
wife
Testimony where spouse is accused with others 2. There is a communication received in confidence by one
from the other
NOTES ON EVIDENCE
3. The confidential communication was received during the

marriage.
Zulueta v. CA (253 SCRA 699)
The law insures absolute freedom of communication between

the spouses by making it privilege. Neither may 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.
Since the application of the rule requires confidential

information received by one spouse from the other during the
marriage, information acquired by a spouse before the
marriage even if received confidentially will not fall squarely
with Sec. 24(a) but divulging the same may be objected to
under Sec. 22 of Rule 130. The tenor of Sec. 22 distinguish as
to when the information subject of the testimony was acquired
and thus, may cover matters which occurred or adverse
information acquired prior to the marriage. It is sufficient that
the witness-spouse testifies during the marriage. It is unlike
sec. 22(a) which requires that the confidential information be
received during the marriage.
Note: Sec.22 (a) is clear: confidential information received

from a third person is not covered by the privilege.
For the information to be confidential, it must be made during

and by reason of the marital relations and is intended not to
be shared with others. Otherwise, it is not confidential.
Communications in private between husband and wife are
presumed to be confidential. But if a third person is present
with the knowledge of the communicating spouse, this
stretches the web of confidence beyond the marital pair, and
the communication is unprivileged. If the children are present
this also deprives the conversation of protection unless the Sec. 24(a) Sec. 22
children are too young to understand what is said.
Marital Privilege Marital Disqualification Rule
Communication Rule
Sec. 24(a) applies only to Sec. 22 includes facts,
testimonies of a confidential occurrences or information
nature received by 1 spouse even prior to the marriage
from the other during the unlike Sec.24(a) which applies
marriage and obviously does only to confidential
not include acts merely information during the
observed by 1 spouse unless marriage. The Sec 24(a) is
such acts are intended as a broader because it prevents
means of conveying testimony for or against the
communication by one to the spouse on any fact and not
other. merely disclosure of
confidential information.
When sec. 24(a) applies, the Rule 22 on the other hand,

spouse affected by the can no longer be invoked
disclosure of the information once marriage is dissolved. It
NOTES ON EVIDENCE
Yet, this may be waived by failure of the claimant to object

NOTES ON EVIDENCE
timely to its presentation or by any conduct that may be Sec. 24(a) prohibits the Under Sec. 22, the prohibition
construed as implied consent (Lacurom v. Jacoba, A.C. No. examination of a spouse as to is a testimony for or against
5921). matters received in the other.
confidence by one from the
Q: May the court admit the testimony and affidavits of the other during the marriage.
wife against her husband in the criminal case involving child
prostitution?
Attorney-Client Privilege (Rule 130)
A: If the testimony and affidavit are evidence of the case

Sec. 24 (b)An attorney cannot, without the consent of his
against her husband for child prostitution, the evidences are
client, be examined as to any communication made by the
admissible. The marital privilege communication rule under
client to him, or his advice given thereon in the course of, or
Sec. 24 of Rule 130 and the marital disqualification rule under
with a view to, professional employment, nor can an
Sec. 22 of Rule 130 do not apply to and cannot be invoked in a
attorney's secretary, stenographer, or clerk be examined,
criminal case committed by a spouse against the direct
without the consent of the client and his employer,
descendants of the other (Ordono v. Daquigan).
concerning any fact the knowledge of which has been
acquired in such capacity;
Explanation of distinction between Marital Disqualification
Rule and Marital Privilege Communication Rule
Q: What are the requisites for the privilege to arise?
Sec. 24(a) has reference to confidential communications

A:
received by one spouse from the other during the marriage.
1. There must be a communication made by the client to his
Sec.22 does not refer to confidential communication between
attorney or an advice given by the attorney to his client;
spouses. It will not come into play when the fact pattern in a
2. The communication or advice must be given in
problem makes reference to confidential communications
confidence; and
between H and W during the marriage. Sec. 24(a) will instead
3. The communication or advice must have been given either
apply.
in the course of the professional employment or with a
view to professional employment.
Yet, communications that are not intended to be confidential
because they were uttered in the presence of third parties are
Q: Does the rule require a perfected relationship?
not deemed confidential even when made during the
marriage, but Sec. 22 could apply instead of Sec. 24 (a) when
A: No. Also, the communication between the attorney and
used as parts of a testimony for or against the party-spouse.
client no longer need to be in the course of an actual
professional employment. It is enough that the
Q: Give the distinctions between the 2 rules.
communication or advice be with a view to professional
employment. Thus, privilege is extended to communications
A:
made for the purpose of securing the services of counsel even
or testimony may object even may be asserted only during if the counsel later refuses the professional relationship. This
after the dissolution of the the marriage. includes preliminary negotiations within the privilege.
marriage. The privilege does
not cease just because the The relationship between the attorney and the client is said to
marriage has ended. exist where a person employs the professional services of an
Sec. 22 requires that the This is not required Sec. 24(a) attorney or seeks professional guidance, even though the
spouse for or against whom and applies regardless of lawyer declines to handle the case (Kier v. State).
the testimony is offered is a whether the spouses are
party to the action. parties or not. The privilege is predicated upon the clients belief that he is
consulting a lawyer in that capacity and has manifested his
intention to seek professional legal advice. For the privilege to
exist, payment of a fee is not essential.
US v. Tedder

NOTES ON EVIDENCE
Where a person consults an attorney not as a lawyer but A: Yes, as in an action filed for the payment of attorneys fees
merely as a friend, or a participant in a business transaction, or for damages against the negligence of the attorney, the
the consultation would not be one made in the course of a privilege is removed from the attorneys lips.
professional employment or with a view to professional
employment would not be within the ambit of the privilege. Note: The communication would still be privileged were the
suit is by or against a third party.
The privilege is also not confined to communications regarding
actual pending cases. It may refer to anticipated litigations or In relation to the attorney, the privilege is owned by the client.
may not refer to any litigation at all. It is sufficient that the It is he who can invoke the privilege. The privilege is personal
statements have been made in the course f legitimate and belongs to the client. If the latter waives the privilege, no
professional relationship between the A and the C. the one else can invoke it.
communication may be oral or written but it also extends to
other forms of conduct like physical demonstration as long as Q: Will the death of the client extinguish the privilege?
they are intended to be confidential. Furthermore, the
communication is not deemed lacking in confidentiality solely A: The protection of the privilege will generally survive the
because the communication is transmitted by facsimile, death of the client. Yet, where there is an attack on the validity
cellular telephone, or other electronic means. of the will, communications made to the attorney on the
drawing of the will, while confidential during the lifetime of the
It does not extend to communications where the clients client are not intended to require secrecy after his death.
purpose is the furtherance of a future intended crime or fraud
or for the purpose of committing a crime or a tort. Canon 21 of the Code of Professional Responsibility
Q: Does the privilege preclude inquiries into the fact that the A lawyer shall preserve the confidence and secrets of his client
lawyer was consulted? even after the attorney-client relation is terminated.
A: No, they are not privileged. Even the identity of the client is Accordingly, the relation between A and C is one of trust and
not privileged as well as that of the lawyer. Yet, under the last- confidence of the highest degree. A lawyer becomes familiar
link doctrine, non-privilege information, such as the identity of with all the facts connected with his clients case. He learns
the client is protected if the revelation of such information from his client the weak points of the action as well as the
would necessarily reveal privilege information. strong ones.
Q: Do the statements have to be made personally? Mercado v. Vitriolo (p.286)
A: The statements of the client need not have been made to It is the glory of the legal profession that its fidelity to its client
the attorney in person. Those made to the attorneys can be depend on, and that a man may safely go to a lawyer
secretary, clerk or stenographer for transmission to the and converse with him upon his rights or supposed rights in
attorney for the purpose of the professional relationship or any litigation with absolute assurance that the lawyers tongue
with a view to such relationship or those knowledge acquired is tied from ever disclosing it.
by such employees in such capacity are covered by the
privilege. Q: What are the factors essential to establish the existence of
the privilege?
Note: For the statements to be privilege, the same should be
confidential. If the communications made by the client to his A:
attorney were also made to third persons, the intention of
secrecy does not appear. There can be no attorney-client
1. Where legal advice of any kind is sought,
privilege where the information is given with the expectation
2. From a professional legal adviser in his capacity as
that it will be revealed to others.
such,
3. The communications relating to that purpose,
Q: Does the privilege apply in suits between the attorney and
4. Made in confidence,
the client?
5. By the client,

NOTES ON EVIDENCE
6. Are at his instance permanently protected, 7. From

disclosure by himself or by the legal advisor,
8. Except the protection be waived.
Q: Are matters disclosed by a prospective client to a lawyer

protected by the rule?

NOTES ON EVIDENCE

NOTES ON EVIDENCE
A: Yes, even if the prospective client does not thereafter retain of the public in criminal prosecution shall be deemed more
the lawyer or the latter declines the employment. important than the secrecy of the communication.
Q: Why is such covered by the rule? Q: What is the purpose of the privilege?
A: To make the prospective client free to discuss whatever he A: To encourage the patient to freely disclose all the matters
wishes with the lawyer without fear that what he tells the which may aid in the diagnosis in the treatment of a disease or
lawyer will be divulged or used against him, and for the lawyer an injury. For this purpose, it is necessary to shield the patient
to be equally free to obtain information from the prospective from embarrassing details concerning his condition (Falkinburg
client. v. Prudential Insurance, Co.).
NOTE: A communication from a prospective client other than It is designed to promote the health and not the truth. The
on account of the prospective lawyer-client relation is not patient is the person to be encouraged and he is the holder of
privileged (Pfeider v. Palanca, 35 SCRA 75). the privilege (Metropolitan Life and Insurance Co v.
Kauffman).
Q: What is a confidential communication?
Q: What are the kinds of information which are prohibited
A: It refers to information transmitter by voluntary act of from disclosure?
disclosure between attorney and client in confidence and by
means which, so far as the client is aware, discloses A:
information to no third person other than one reasonably 1. Any advice given to the client
necessary for the transmission of the information or the 2. Any treatment given to the client
accomplishment of the purpose for which it was given. 3. Any information acquired in attending such patient
provided that the advice, treatment or information was
Q: Is a compromise agreement prepared by a lawyer pursuant made or acquired in a professional capacity and was
to the instruction of his client and delivered to the opposing necessary to enable him to act in that capacity
party, an offer by client to his counsel for settlement, or a 4. That the information sought to be disclosed would tend to
document given by a client to his lawyer not in his blacken the reputation of the patient.
professional capacity covered by the confidentiality rule?
Q: Does the rule require that the relationship be a result of a
A: No, the element of confidentiality not being present. contractual relationship?
Physician-Patient Privilege (Rule 130) A: No. It could be a result of a quasi-contractual relationship as

when the patient is seriously ill and the physician treats him
Sec. 24.Disqualification by reason of privileged even if he is not in a condition to give his consent as in the
communication. The following persons cannot testify as to situation described in Art. 2167 of the NCC.
matters learned in confidence in the following cases:
Art. 2167 of the NCC
(c)A person authorized to practice medicine, surgery or
obstetrics cannot in a civil case, without the consent of the Q: Are the results of the autopsy deemed covered by the
patient, be examined as to any advice or treatment given by privilege?
him or any information which he may have acquired in
attending such patient in a professional capacity, which A: No, autopsies are not intended for treatment.
information was necessary to enable him to act in capacity,
and which would blacken the reputation of the patient; Q: When can it be said that the physician is acting in a
professional capacity?
Q: Do this privilege apply to criminal case?
A: When he attends to the patient for either curative or
A: It applies to civil cases, whether the patient is a party or not. preventive treatment.
The phraseology of the rule implies that the privilege cannot
be claimed in a criminal case presumably because the interest Q: Does the privilege survive the death of the patient?
NOTES ON EVIDENCE
A: Yes. Death does not permit the living to impair the

deceaseds name by disclosing
communications held confidential by law (Westover v. Aetna
Life Ins. Co.).
Q: May the privilege be waived?

NOTES ON EVIDENCE
A: Yes, either expressly or impliedly. When the patient answers

NOTES ON EVIDENCE
questions on cross on matters which are supposed to be

privileged, the waiver exists. Also, when there is disclosure by Privileged Communications to Public Officers (Rule 130)
the patient of the information, there is necessarily a waiver.
Q: Can there be a waiver by operation of law? communication. The following persons cannot testify as to
A: Yes. Under Rule 28 of the Rules of Court, the court in which
the action is pending may in its discretion order a party to (e)A public officer cannot be examined during his term of
submit to a physical or mental examination. This happens office or afterwards, as to communications made to him in
when the mental or physical condition of a party is in dispute. official confidence, when the court finds that the public
The party examined may request a report of the examination. interest would suffer by the disclosure. (21a)
By doing so, he waives any privilege he may have.
Q: When is the communication privileged?
Priest/Minister-Penitent Privilege (Rule 130)
A: When the court finds that the disclosure would adversely
Sec. 24.Disqualification by reason of privileged affect the public interest. It is in the interest of the public that
communication. The following persons cannot testify as to is sought to be protected by the rule.
Hence, the disclosure or non-disclosure is not dependent on
(d)A minister or priest cannot, without the consent of the the will of the officer but on the determination by a competent
person making the confession, be examined as to any court.
confession made to or any advice given by him in his
professional character in the course of discipline enjoined by Q: When is the privileged applicable?
the church to which the minister or priest belongs;
A: It can only be invoked not only during the term of the office
Q: Who holds the privilege? of the public officer but also after.
A: The person making the confession holds the privilege and NOTE: National security and state secrets are confidential and
the priest or minister hearing the confession in his professional a court will most likely uphold the privilege.
capacity is prohibited from making a disclosure of the
confession without the consent of the person confessing. Executive Privilege: Presidential communications privilege
Q: What is the scope of the privilege? Q: What is the origin of the executive privilege?
A: It also covers not only a confession made by the penitent A: It originated in the case Senate of the Philippines v. Ermita
and any advice given by the minister or priest. It must have (488 SCRA 1).
been given pursuant to the course of the discipline of the
denomination or sect to which the minister or priest belongs. Q: What is executive privilege?
Thus, the priest must be duly ordained or consecrated by his
sect. A: It is the power of the government to withhold information
from the public, the courts, and the Congress.
Q: Are all kinds of confession covered?
NOTE: It was originally used in Almonte v. Vasquez (244 SCRA
A: No, the communication must be made pursuant to 286). The court acknowledged that there are certain types of
confessions of sins. The rule states any advice given by him in information which the government may withhold from the
his professional character or in a spiritual capacity. public like military, diplomatic, and national security secrets.
Q: When a penitent discusses business arrangements with Q: What is the basis of the privilege?
the priest, is this covered by the privilege?
A: It is rules that the President and those who assist him must
a: No. be free to explore alternatives in the process of shaping
NOTES ON EVIDENCE
policies and making decisions and to do so in a way many

would be unwilling to express except privately.
Q: What are the matters involving state secrets?
A:
1. Military
2. Diplomatic
3. Other national security matters

NOTES ON EVIDENCE
NOTE: The right to information does not also extend to

NOTES ON EVIDENCE
presidential conversations, correspondences, and discussions Section 7, Art. III of the Bill of Rights
in closed-door cabinet meetings.
xxx
Executive Order 464
Q: What matters may be disclosed in relation to the right to
1. Conversation and correspondences information on matters of public concern?
between the
President and the public official covered by the EO A: The standard to be employed in determining whether there
2. Military, Diplomatic, Other national security matters is a sufficient interest in favor of disclosure is the strong
which in the interest of national security should not be sufficient showing of need which must be shown whether
divulged that party is Congress or a private citizen.
3. Information between inter-government agencies prior to
the confusion of treaties and executive agreements 4. When the government has claimed executive privilege, and it
Discussions in closed-door cabinet meetings has established that the information is indeed covered by the
5. Matters affecting national security and public order same, then the party demanding it, if it is to overcome the
privilege, must show that the information is vital, not simply
Q: Who are covered by the EO? for the satisfaction of its curiosity but for its ability to
effectively and reasonably participate in social, political and
A: economic decision-making.
1. Senior officials of executive departments who in the
judgment of the department heads are covered by the See:
Exec. privilege Chavez v. PCGG, 384 SCRA 152
2. General and flag officers of the AFP and such other officers Akbayan v. A quino, 2008
who in the judgment of the Chief of Staff are covered by Neri v. Senate Committee on Accountability of Public
the Exec. Privilege Officers and Investigations, 2008
3. PNP officers with rank of chief superintendent or higher
and such other officers who, in the judgment of the Chief Q: What are the elements of presidential communications
of PNP are covered by the Exec. Privilege. privilege as mentioned under U.S. v. Nixon?
4. Senior national security officials who in the judgment of
the National Security Adviser are covered by the Exec. A:
Privilege 1. The protected communications must relate to a
5. Such other officers as may be determined by the quintessential and non-delegable presidential power
President. 2. The communication must be authored or solicited and
received by a close advisor of the President or the
Q: What will be secured to disclose the information? President himself. The judicial test is that an advisor must
be in operational proximity with the President
A: It requires that all public officials enumerated above shall 3. The Presidential communications privilege remains a
have to secure prior consent of the President prior to qualified privilege that may be overcome by a showing of
appearing before the House of Congress to give effect to the adequate need, such that the information sought likely
purpose of the EO. contains important evidence and by the unavailability of
the information elsewhere by an appropriate investigating
Q: When the Congress exercises its powers of judicial inquiry, authority.
are the department heads exempt by the mere fact that they
are department heads? Q: According to Chief Justice Puno, what are the 2 standards
which must be met to show specific need for the information
A: No, only one executive official may be exempted from the on the part of the branch of the government seeking its
power of inquiry of Congressthe President upon whom the disclosure?
executive power is vested is beyond the reach of Congress
except through the power of impeachment. A:
1. Evidentiary
2. Constitutional

NOTES ON EVIDENCE
Privileged communications under the Rules on electronic

evidence
Sec. 3 of the Rules on electronic evidence
SEC. 3. Privileged communication. The confidential

character of a privileged communications is not solely on the
ground that it is in the form of an electronic document.
Parental and Filial Privilege (Rule 130)

NOTES ON EVIDENCE
Sec. 25.Parental and filial privilege. No person may be

NOTES ON EVIDENCE
compelled to testify against his parents, other direct any communication received in confidence by one from the
ascendants, children or other direct descendants. (20a) 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
Q: What are the 2 privileges embodied under the above against the other or the latter's direct descendants or
provision? ascendants;
(b)An attorney cannot, without the consent of his client, be
A: examined as to any communication made by the client to
1. Parental privilege rule him, or his advice given thereon in the course of, or with a
2. Filial privilege rule view to, professional employment, nor can an attorney's
secretary, stenographer, or clerk be examined, without the
Q: What is parental privilege rule? consent of the client and his employer, concerning any fact
the knowledge of which has been acquired in such capacity;
A: A parent cannot be compelled to testify against his child or (c)A person authorized to practice medicine, surgery or
direct descendants. obstetrics cannot in a civil case, without the consent of the
patient, be examined as to any advice or treatment given by
Q: What is filial privilege? him or any information which he may have acquired in
attending such patient in a professional capacity, which
A: A child may not be compelled to testify against his parents information was necessary to enable him to act in capacity,
or direct ascendants. 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
Q: May the person voluntarily testify against his parents or
made to or any advice given by him in his professional
children?
character in the course of discipline enjoined by the church to
which the minister or priest belongs; (e)A public officer
A: Yes.
cannot be examined during his term of office or afterwards,
as to communications made to him in official confidence,
Q: What is the scope of this rule?
when the court finds that the public interest would suffer by
the disclosure. (21a)
A: It applies to both criminal and civil cases since the rule does
not make any distinction.
Q: What are the different types of disqualifications by reason
of privilege communication?
Art. 215 of the Family Code
A:
Q: Under the F.C. no descendant shall be compelled to testify 1. Communication between husband and wife;
against his parents and grandparents. What are the
2. Communication between attorney and client;
exceptions?
3. Communication between physician and patient;
4. Communication between priest and patient; and
A:
5. Public officers and public interest
1. When such testimony is indispensable in a crime
committed against said descendant
Others:
2. In a crime committed by one parent against the other
(Art. 215, Family Code)
1. Editors may not be compelled to disclose the source of
published news;
Other privileged communications not found in the Rules of
2. Voters may not be compelled to disclose for whom they
Court (Rule 130)
voted;
3. Trade secrets;
4. Information contained in tax census returns; and
communication. The following persons cannot testify as to
5. Bank deposits.
6. Under Art. 233 of Labor Code, information and statements
made at the conciliation proceedings shall be treated as
(a)The husband or the wife, during or after the marriage,
confidential;
cannot be examined without the consent of the other as to
NOTES ON EVIDENCE
7. According to the Anti-Money Laundering Law (Sec.6),

institutions covered by the law and its officers and
employees who communicate a suspicious transaction to
the AMLC, are barred from disclosing the fact of such
report to other persons.
C. Examination of Witness

NOTES ON EVIDENCE
Open Court examination

NOTES ON EVIDENCE

NOTES ON EVIDENCE
SECTION 1.Examination to be done in open court. The

examination of witnesses presented in a trial or hearing shall A: It is a substitute for an oath and is a solemn and formal
be done in open court, and under oath or affirmation. Unless declaration that the witness will tell the truth.
the witness is incapacitated to speak, or the questions calls
for a different mode of answer, the answers Q: What if the witness refuses to take either?
of the witness shall be given orally. (1a)
A: The testimony in such case may be barred.
The Rule provides for the examination of the witness in open
court and unless the question calls for a different mode, the No special wording is necessary for an affirmation, provided
answer of the witness shall be given orally. This allows the that the language used is designed to impress upon the
court to observe the demeanor of the witness and also allows individual the duty to tell the truth. It may be an abuse of the
the adverse party to cross-examine the witness. courts discretion to require the use of the words swear or
affirm in the oath if the language would violate the witness
Q: What are those testimonies which need not be given in religious beliefs where the witness could otherwise testify
open court? truthfully.
A: Examination of witness and record of proceedings
1. Under the Rules of Summary Procedure, the affidavits of The examination of witnesses presented in a trial or hearing
the parties shall constitute the direct testimonies of the shall be done in open court, and under oath or affirmation.
witnesses who executed the same (Sec.15); Unless the witness is incapacitated to speak, or the questions
2. In civil cases, the parties are required to submit the calls for a different mode of answer
affidavits of their witnesses and other pieces of evidence
on the factual issues, together with their position papers, The questions propounded to a witness and his answers
setting forth the law and facts relied upon (Sec.9); thereto, the statements made by the judge or any of the
3. Depositions need not be taken in open court. They may parties, counsel, or witnesses with reference to the case, shall
also be taken before a notary public or before any person be recorded by means of shorthand or stenotype or by other
authorized to administer oaths; means of recording found suitable by the court (Sec. 2, Rule
4. In criminal case, either party may utilize the testimony of 132).
a witness who is deceased, out of the country, or one who
is unavailable or unable to testify despite the exercise of In fact the entire proceedings of the trial or hearing must be
due diligence, even if the testimony was one used in recorded.
another case or proceeding, judicial or administrative,
provided the said proceeding involved the same parties A transcript of the record of the proceedings made by the
and subject matter and the adverse party had the official stenographer, stenotypist or recorder and certified as
opportunity to cross-examine the witness (Sec. 1(f), Rule correct by him shall be deemed prima facie a correct
115). statement of such proceedings.
Oath or affirmation Rights and obligations of a witness (Rule 130)
The witness must take either an oath or an affirmation but the Sec. 3.Rights and obligations of a witness. A witness must
option to take an oath or affirmation is given to the witness answer questions, although his answer may tend to establish
and not to the court. a claim against him. However, it is the right of a witness:
(1)To be protected from irrelevant, improper, or insulting
Q: What is an oath? questions, and from harsh or insulting demeanor; (2)Not to
be detained longer than the interests of justice require;
A: It is an outward pledge made under an immediate sense of (3)Not to be examined except only as to matters pertinent to
responsibility to God or a solemn appeal to the Supreme Being the issue;
in attestation of the truth of some statement. (4)Not to give an answer which will tend to subject him to a
penalty for an offense unless otherwise provided by law; or
Q: What is an affirmation? (5)Not to give an answer which will tend to degrade his
NOTES ON EVIDENCE
reputation, unless it to be the very fact at issue or to a fact A: The examination of a child witness presented in a hearing or
from which the fact in issue would be presumed. But a any proceeding shall be done in open court. The answer of the
witness must answer to the fact of his previous final witness shall be given orally, unless the witness is
conviction for an offense. (3a, 19a) incapacitated to speak, or the question calls for a different
mode of answer.
Q: What is the foremost among the rights of the witness?
The court may exclude the public and persons who do not have
A: The right not to give an answer which will tend to degrade a direct interest in the case, including the members of the
his reputation, unless otherwise provided by law. press.
Republic Act 6981 Witness Protection, Security, and Benefit Q: What shall be the order?
Act
A: It shall be determined by the court on the record to testify
Q: What is the effect of the admission to the witness in open court would cause psychological harm to him, hinder
protection program? the ascertainment of truth, or result in his inability to
effectively communicate due to embarrassment, fear or
A: A witness admitted to the witness protection program timidity.
cannot refuse to testify or give evidence or produce books,
documents, records, or writings necessary for the prosecution Q: When a child does not understand the English or Filipino
of the offense for which he has been admitted on the ground language or is unable to communicate in said languages due
of the right against self-incrimination (Sec. 4, RA 6981). to his developmental level, fear, shyness, disability, or other
similar reason, what is the rule?
Q: Is there a violation of the right of the accused when blood
samples would be extracted from his veins to determine A: An interpreter whom the child can understand may be
whether he has HIV? appointed by the court, motu propio or ipon motion to
interpret for the child.
A: No (Tijing v. CA, 354 SCRA 17). The right against
selfincrimination applies only to testimonial evidence. Q: What if the court determines that the child is unable to
understand or respond to questions asked?
Q: What is the right of a witness against being degraded?
A: The court may appoint a facilitator who may:
A: It refers to the right to refuse not to give an answer that will a. Child psychologist
degrade him. b. Psychiatrist
c. Social worker
Q: What are the exceptions of the rule? d. Guidance counselor
e. Teacher
A: f. Religious leader
1. If the degrading answer is the very fact in issue g. Parent
2. If the degrading answer refers to an act from which the act h. Relative
in issue would be presumed (Sec. 3 [5], Rule 132).
NOTE: A child testifying at a judicial proceeding or making a
NOTE: But if the witness is the accused, he may totally refuse deposition shall have the right to be accompanied by two or
to take the stand. This is not the case of a mere witness more persons of his own choosing to provide him emotional
(Bagadiong v. Gonzales, 94 SCRA 906). support (Sec. 11, Rule on Examination of A Child).
Examination of a Child Witness An application for the child may be made for the testimony of
the child to be taken in a room outside the courtroom by the
Q: What is the rule regarding the Examination of a Child prosecutor, counsel or guardian ad litem at least 5 days before
Witness? the trial.

NOTES ON EVIDENCE
The court may order that the testimony of the child be taken Sec. 8.Re-cross-examination. Upon the conclusion of the
by live-link television. re-direct examination, the adverse party may re-
crossexamine the witness on matters stated in his re-direct
Q: When can a live-link television testimony be made? examination, and also on such other matters as may be
allowed by the court in its discretion. (13)
A: If there is a likelihood that the child would suffer trauma
from testifying in the presence of the accused, his counsel or Q: What are the kinds of examinations?
the prosecutor as the case may be.
A:
The testimony of the child shall be preserved on videotape, 1. Direct examination- Direct examination is the
digital disc, or other similar disc. examination-in-chief of a witness by the party presenting
him on the facts relevant to the issue. It is actually the
Q: Who are allowed to attend the examination? procedure for obtaining information from ones own
witness in an orderly fashion. The purpose is to illicit
A: facts about the clients cause of action or defense
1. Members of the court staff for administrative use
2. The prosecuting attorney 2. Cross-examination- Upon the termination of the direct
3. Defense counsel examination, the witness may be cross-examined by the
4. The guardian ad litem adverse party as to many matters stated in the direct
5. Agents of investigating law enforcement agencies examination, or connected therewith, with sufficient
6. Other persons as determined by the court fullness and freedom to test his accuracy and truthfulness
and freedom from interest or bias, or the reverse, and to
Other pertinent provisions of Rule on Examination of A Child elicit all important facts bearing upon the issue.
Sec.31 [d] [g] Q: What is the scope of a cross-examination?
xxx A: As a rule, the scope of the cross examination is not confined

to the matters stated by the witness in the direct examination.
Kinds of examinations (Rule 132)
Q: What is the reason for this rule?
Sec. 5.Direct examination. Direct examination is the
examination-in-chief of a witness by the party presenting A: The rule allows questions designed to test the accuracy and
him on the facts relevant to the issue. (5a) truthfulness of the witness, his freedom from interest and bias,
or the reverse and to illicit all important facts bearing upon the
Sec. 6.Cross-examination; its purpose and extent. Upon the issue.
termination of the direct examination, the witness may be
cross-examined by the adverse party as to many matters Q: What is the exception to this rule?
stated in the direct examination, or connected therewith,
with sufficient fullness and freedom to test his accuracy and A: Where the witness is an unwilling or a hostile witness as so
truthfulness and freedom from interest or bias, or the declared by the court, he may be cross-examined only as the
reverse, and to elicit all important facts bearing upon the subject matter of his examination-in-chief (Sec. 12).
issue. (8a)
Q: What are the 2 basic purposes of cross-examination?
Sec. 7.Re-direct examination; its purpose and extent. After
the cross-examination of the witness has been concluded, he A:
may be re-examined by the party calling him, to explain or 1. To bring out facts favorable to counsels not established
supplement his answers given during the crossexamination. by the direct testimony
On re-direct-examination, questions on matters not dealt 2. To enable counsel to impeach or to impair the credibility
with during the cross-examination, may be allowed by the of the witness.
court in its discretion. (12)

NOTES ON EVIDENCE
3. Re-direct examination- this is conducted after the cross Sec. 10.Leading and misleading questions. A question
examination of the witness. The party who called the which suggests to the witness the answer which the
witness on direct examination may re-examine the same examining party desires is a leading question. It is not
witness to explain or supplement his answers given during allowed, except:
the cross-examination. It is the examination of a witness
by counsel who conducted the direct examination after (a)On cross examination;
the cross examination. Accordingly, the counsel may elicit (b)On preliminary matters;
testimony to correct or repel any wrong impression or (c)When there is a difficulty is getting direct and intelligible
inferences that may have been created on the cross- answers from a witness who is ignorant, or a child of tender
examination. It may also be the opportunity to rehabilitate years, or is of feeble mind, or a deaf-mute;
a witness whose credibility has been damaged. In its (d)Of an unwilling or hostile witness; or
discretion, the court may even allow questions on matters (e)Of a witness who is an adverse party or an officer, director,
not touched in the crossexamination. or managing agent of a public or private corporation or of a
partnership or association which is an adverse party.
4. Re-cross examination- examination conducted upon the
conclusion of the re-direct examination. Here the adverse A misleading question is one which assumes as true a fact not
party may question the witness on matters yet testified to by the witness, or contrary to that which he
stated in the re-direct examination has previously stated. It is not allowed. (5a, 6a, and 8a)
Death or absence of witness Q: What is a leading question?
If the witness dies before his cross-examination is over, his A: It is one that is framed in such a way that the question
testimony on the direct may be stricken out only with respect indicates to the witness the answer desired by the party asking
to testimony not covered by the cross-examination. The the question.
absence of the witness is not enough to warrant the striking
out of his testimony for failure to appear for further It is not appropriate in direct and re-direct examinations
crossexamination where the witness has already been particularly when the witness is asked to testify about a major
sufficiently cross-examined and the matter on which cross- element of the cause of action or defense. Yet, it is allowed in
examination is sought is not in controversy. cross and re-cross examinations. In fact, it is the type of
question that should be employed in a cross examination.
If the witness was not cross-examined because of causes
attributable to the cross-examining party and the witness had Q: Explain why a why question should not be asked in cross-
always made himself available for cross-examination, the examination?
direct testimony of the witness shall remain in the record and
cannot be ordered stricken off the cross-examiner is deemed A: It is because such kind of question allows a witness to
to have waived the right to cross-examine. explain his or her position, emphasize key points of harmful
testimony and control the pace and scope of the examination.
Recalling of a witness It invites the witness to deliver an unwanted lecture in the
courtroom.
Sec. 9.Recalling witness. After the examination of a
witness by both sides has been concluded, the witness cannot Q: When are leading questions allowed
be recalled without leave of the court. The court will grant or in direct examination?
withhold leave in its discretion, as the interests of justice may
require. (14) A:
In the exercise of such discretion, the court shall be guided by 1. On a preliminary matters;
the interests of justice. 2. When the witness is ignorant, or a child of tender years,
or is feeble-minded or a deaf-mute and there is difficulty
Leading questions in getting direct and intelligible answers from such
witness;
3. When the witness is a hostile witness; or
NOTES ON EVIDENCE
4. When the witness is an adverse party, or when the witness Q: What is an impeachment?
is an officer, director, managing agent of a corporation,
partnership or association which is an adverse party. A: It is basically a technique employed usually as part of the
cross-examination to discredit a witness by attacking his
Leading questions to a child witness credibility. Destroying credibility is vital because it is linked
with a witness ability and willingness to tell the truth.
Under this rule, the court may allow leading questions in all
stages of examination of a child under the condition that the Q: What are the rules in impeaching a witness?
same will further the interest of justice.
A:
Thus, a leading question may be asked of a child a direct and 1. The impeachment of a witness is to be done by the party
intelligible answer. against whom the witness is called (Sec. 11, Rule 132)
2. Subject to certain exceptions, the party producing the
Misleading questions witness is barred from impeaching his own witness (Sec.
12)
Q: What is a misleading question? 3. By way of exception to the immediately preceding rule, if
the witness is unwilling or hostile, the party calling him
A: One which assumes as true a fact not yet testified to by may be allowed by the court to impeach the witness. But
witness, or contrary to that which he has previously stated. It it is not for the party calling the witness to make a
is not allowed in any type of examination. determination that the witness is unwilling or hostile.
Whether or not a witness is hostile, is addressed to judicial
D. Impeachment of a witness evaluation and the declaration shall be made only if the
court is satisfied that the witness possesses an interest
Sec. 11.Impeachment of adverse party's witness. A witness adverse to the party calling him or there is adequate
may be impeached by the party against whom he was called, showing that the reluctance of the witness is unjustified
by contradictory evidence, by evidence that his general or that he misled the party into calling him as a witness. A
reputation for truth, honestly, or integrity is bad, or by party may also be allowed to impeach his own witness
evidence that he has made at other times statements when said witness is an adverse party or is an officer,
inconsistent with his present, testimony, but not by evidence director, or managing agent of a corporation, partnership
of particular wrongful acts, except that it may be shown by or association which is an adverse party.
the examination of the witness, or the record of the 4. It is improper for the party calling the witness to present
judgment, that he has been convicted of an offense. (15) evidence of the good character of his own witness. The
same is allowed only if the character
Sec. 12.Party may not impeach his own witness. Except
with respect to witnesses referred to in paragraphs (d) and Q: How to impeach a witness?
(e) of Section 10, the party producing a witness is not allowed
to impeach his credibility. A:
1. By contradictory evidence
A witness may be considered as unwilling or hostile only if so 2. By evidence that his general reputation for truth, honesty,
declared by the court upon adequate showing of his adverse and integrity is bad
interest, unjustified reluctance to testify, or his having misled 3. By evidence that he has made at other times statements
the party into calling him to the witness stand. inconsistent with his present testimony (Sec. 11, Rule
132).
The unwilling or hostile witness so declared, or the witness
who is an adverse party, may be impeached by the party Q: May a witness be impeached by evidence of particular
presenting him in all respects as if he had been called by the wrongful acts?
adverse party, except by evidence of his bad character. He
may also be impeached and cross-examined by the adverse A: No, except evidence of his final conviction of an offense as
party, but such cross-examination must only be on the disclosed by his examination or by the record of the judgment.
subject matter of his examination-in-chief. (6a, 7a) Thus, the witness cannot be impeached by enumerating in
court specific wrongful acts he had committed.

NOTES ON EVIDENCE
Q: May an unwilling or hostile witness be impeached by A:

evidence of his bad character? 1. the statements must be related to him, with the
circumstances of the times and places and the persons
A: No. present. If the statements are in writing they must be
shown to him;
Impeachment by contradictory evidence 2. he must be asked whether he made such statements, and
if so, allowed to explain them if he admits making those
Fairness demands that the impeaching matter be raised in the statements.
cross-examination of the witness sought to be impeached by
allowing him to admit or deny a matter to be used as the basis Q: Is the mere presentation of the prior declarations of the
for impeachment by contradictory evidence. witness without the same having been read to him while
testifying in court sufficient for the desired impeachment of
This mode of impeachment may also be used to contradict his testimony if he was not given the ample opportunity to
conclusions made by expert witnesses during their explain the supposed discrepancy?
testimonies. Usually the adverse party may also call another
expert to testify to a contrary conclusion, A: No.
Impeachment by prior inconsistent statements (Rule 132) Q: What is the purpose of the laying the predicate?
Sec. 13. How witness impeached by evidence of inconsistent A: To allow the witness to admit or deny the prior statement
statements. Before a witness can be impeached by and afford him an opportunity to explain the same.
evidence that he has made at other times statements
inconsistent with his present testimony, the statements must Impeachment by showing bad reputation
be related to him, with the circumstances of the times and
places and the persons present, and he must be asked NOTE: Not every aspect of a persons reputation may be the
whether he made such statements, and if so, allowed to subject of impeachment.
explain them. If the statements be in writing they must be
shown to the witness before any question is put to him Q: What may be the aspect for the impeachment of bad
concerning them. (16) reputation due to the persons bad reputation?
Q: What are prior inconsistent statements? A:

1. For truth
A: They are statements made by a witness on an earlier 2. For honesty
occasion which contradict the statements he makes during the 3. For integrity (Sec. 11, Rule 132)
trial.
Q: What is the presumption under the law?
These statements are admissible to impeach the credibility of
the witness making them. This is the most commonly used A: A witness is presumed to be truthful and of good character,
method because of its simplicity and the impact it makes when the party presenting him does not have to prove he is good
properly used. because he is presumed to be one. It is only after his character
has been attacked, can he prove his being good.
This requires a laying the proper foundation for the
impeachment. Rule 132
Q: What is the other term for laying the foundation? Sec. 14. Evidence of good character of witness. Evidence of
the good character of a witness is not admissible until such
A: Laying the predicate. It is a preliminary requirement character has been impeached. (17)
before the impeachment process prospers.
NOTE: The rule that bars evidence of the good character of the
Q: What are the elements of this foundation? witness who has not yet been impeached has reference only
NOTES ON EVIDENCE
to a mere witness. It does not refer to an accused in a criminal not at the time under examination, so that he may not hear
case. the testimony of other witnesses.
In a criminal case, the accused may prove his good moral The judge may also cause witnesses to be kept separate and
character relevant to the offense charged even before his to be prevented from conversing with one another until all
character is attacked. However, the prosecution cannot initiate shall have been examined. (18)
proof of bad character of the accused. It can only do so by way
of rebuttal. When the witness may refer to a memorandum
No impeachment by evidence of particular wrongful acts Sec. 16. When witness may refer to memorandum. A
witness may be allowed to refresh his memory respecting a
Sec. 11, Rule 142 fact, by anything written or recorded by himself or under his
direction at the time when the fact occurred, or immediately
Just as a witness cannot testify on specific acts of misconduct thereafter, or at any other time when the fact was fresh in his
committed by the witness being impeached, the latter cannot memory and knew that the same was correctly written or
also be examined on particular wrongful acts done by him. To recorded; but in such case the writing or record must be
do so would be a contravention of the tenor of Sec. 11 of Rule produced and may be inspected by the adverse party, who
132. may, if he chooses, cross examine the witness upon it, and
may read it in evidence. So, also, a witness may testify from
There is however, a particular wrongful act that is admissible such writing or record, though he retain no recollection of the
in evidence under the same sectionhis prior conviction of an particular facts, if he is able to swear that the writing or
offense. record correctly stated the transaction when made; but such
evidence must be received
Q: The prior conviction of a witness is shown in what ways? with caution. (10a)
A:
1. By his examination, i.e., by cross-examining him
2. By presenting the record of his prior conviction E. Character Evidence
Examining another witness to elicit from his lips the prior Inadmissibility of Character Evidence
conviction of another witness is not the correct procedure
unless the witness is one who is competent like an official Q: What is character?
custodian of records.
A: It is the aggregate of the moral qualities which belong to and
Impeachment of the adverse party as a witness distinguish an individual person; the general results of ones
distinguishing attributes. It refers to what a man is and
Q: Does the fact that the witness is the adverse party depends on the attributes he possesses.
necessarily mean that the calling party will not be bound by
the formers testimony? Q: Is it the same as reputation?
A: No. The fact remains that it was at his instance that his A: No. The reputation depends on the attributes which others
adverse was put into the witness stand. Under the rule believe one to possess. Character signifies reality while
permitting the impeachment of an adverse witness, although reputation signifies what is accepted to be reality at present.
the calling party does not vouch for the witness veracity, he is
nonetheless bound by his testimony if it is not contradicted or CHARACTER REPUTATION
remains unrebutted (Gaw v. Chua, 2008). What the person really is What he is supposed to be in
accordance with what people
Exclusion and separation of witness (Rule 132) say he is, and is dependent on
how people perceive a
Sec. 15. Exclusion and separation of witnesses. On any trial person to be
or hearing, the judge may exclude from the court any witness
NOTES ON EVIDENCE
(2)Unless in rebuttal, the prosecution may not prove his bad

Q: Is character of the accused admissible? moral character which is pertinent to the moral trait involved
in the offense charged.
A: No. The rule is that the character or reputation of a party is
regarded as legally irrelevant in determining a controversy, so Q: What is the reason for this rule?
that evidence relating thereto is not admissible (People v. Lee,
2002). A: It prevents a pronouncement of guilt on account of his being
a bad man and instead anchors a conviction on the basis of the
Rule 130 sufficiency of evidence of his guilt. It also prevents the
inference that being a bad person the accused is more likely to
Sec. 51. Character evidence not generally commit a crime. The rule likewise discourages the presentation
admissible; exceptions: of the so-called propensity evidence evidence that one acts
in accordance with ones character.
(a)In Criminal Cases:
(1)The accused may prove his good moral character which is Evidence of good moral character of the accused
pertinent to the moral trait involved in the offense charged.
(2)Unless in rebuttal, the prosecution may not prove his bad Sec. 51. Character evidence not generally
moral character which is pertinent to the moral trait involved admissible; exceptions:
in the offense charged.
(3)The good or bad moral character of the offended party may (a)In Criminal Cases:
be proved if it tends to establish in any reasonable degree the
probability or improbability of the offense charged. (1)The accused may prove his good moral character which is
(b)In Civil Cases:
Evidence of the moral character of a party in civil case is The rule does not apply to the accused who is allowed to offer
admissible only when pertinent to the issue of character evidence of his good character. Not all aspects of the character
involved in the case. of the accused may be proven.
(c)In the case provided for in Rule 132, Section 14, (46a, 47a)
Q: What may be proven?
Evidence of bad moral character of the accused
A: Only those moral traits involved in the offense charged are
Q: Can the prosecution prove the bad character of the provable. In doing so, an accused may advance more than one
accused? character trait as evidence so long as each trait is germane to
some issue in the case.
A: In a criminal case, the prosecution cannot prove the bad
moral character of the accused in its evidence-in-chief. It can Q: May he prove his character by evidence of specific
only do so in rebuttal. instances of good conduct?
This means that the prosecution may not offer evidence of the A: No.
character of the accused unless the accused himself has
offered evidence of his good character. NOTE: The accused may prove his moral character which is
Q: State the relevant provision. Thus, this may strengthen the presumption of innocence, and
where good character and reputation are established, an
A: inference arises that the accused did not commit the crime
charged.
Sec. 51. Character evidence not generally
admissible; exceptions: Q: What is the reason for the rule?
(a)In Criminal Cases:

NOTES ON EVIDENCE
A: This is intended to avoid unfair prejudice to the accused who Evidence of good moral character of a witness
might otherwise be convicted not because he is guilty but
because he is a person of bad character. Evidence of good moral character of a witness is not admissible
until such character has been impeached.
Evidence of character of the offended party
Sec. 51. Character evidence not generally

admissible; exceptions: F. Opinion Evidence
(a)In Criminal Cases: Rule 130
(3)The good or bad moral character of the offended party may Sec. 48. General rule. The opinion of witness is not
be proved if it tends to establish in any reasonable degree the admissible, except as indicated in the following sections.
probability or improbability of the offense charged. (42)
NOTE: This provision pertains only to criminal cases, not to Sec. 49. Opinion of expert witness. The opinion of a witness
administrative cases. on a matter requiring special knowledge, skill, experience or
training which he shown to posses, may be
The character evidence must be limited to the traits and received in evidence. (43a)
characteristics involved in the type of an offense charged.
Sec. 50. Opinion of ordinary witnesses. The opinion of a
Character evidence in child abuse cases (Sexual Abuse witness for which proper basis is given, may be received in
Shield Rule) evidence regarding
(a)the identity of a person about whom he has adequate
Q: What pieces of evidence are not admissible in any criminal knowledge;
proceeding involving alleged sexual child abuse? (b)A handwriting with which he has sufficient familiarity; and
(c)The mental sanity of a person with whom he is sufficiently
A: A.M. No. 004-07-SC, Sec. 30 acquainted.
1. Evidence offered to prove that the alleged victim engaged The witness may also testify on his impressions of the
in other sexual behavior emotion, behavior, condition or appearance of a person.
2. Evidence offered to prove the sexual predisposition of the (44a)
alleged victim
Admissibility of opinion evidence
Q: What is the exception to this?
Q: Is the opinion of the witness admissible?
A: Evidence of specific instances of sexual behavior by the
alleged victim is admissible to prove that a person other than A: As a rule, no.
the accused was the source of semen, injury, or other physical
evidence.
Q: Why is such the rule?
Character evidence in civil cases

A: This is because when a witness testifies, a witness does so
with respect to facts personally observed by him and it is for
Q: In civil cases, when is the evidence of the moral character the court to draw conclusions from the facts testified to.
of a party admissible?
Q: What is the exception to this rule?
A: In civil cases evidence of the moral character of a party is
admissible only when the pertinent to the issue of character A: When the opinion is that of an expert (Expert testimony).
involved in the case. Thus, evidence of a partys intemperance
may be admitted when his intemperance to the issues
Q: What is an expert testimony?
involved.

NOTES ON EVIDENCE
A: The opinion of a witness requiring special knowledge, skill, Chapter V HEARSAY EVIDENCE (Rule 130)
experience, or training which he is shown to possess, it may be
received in evidence. Sec. 36. Testimony generally confined to personal knowledge;
hearsay excluded. A witness can testify only to those facts
Q: Is the court bound by the opinion of an expert such as a which he knows of his personal knowledge; that is, which are
handwriting expert? derived from his own perception, except as otherwise
provided in these rules. (30a)
A: No. Expert opinion evidence is to be considered or weighed
by the court like any other testimony, in the light of its own Q: What is the basis of the reliability of a witness?
general knowledge and experience upon the subject of inquiry.
The probative force does not lie in a mere statement of his A: It is based on the personal knowledge of the witness. If a
theory or opinion but rather in the aid that he can render to witness testifies on the basis of what others have told him, and
the courts in showing the facts which serve as a basis for his not on facts which he knows of his own personal knowledge,
criterion and the reasons upon which the logic of his the testimony would be excluded as hearsay evidence (Mallari
conclusion is founded (Dizon v. Tuazon, 2008). v. People, 446 SCRA 74).
Q: Is the resort to expert witnesses mandatory? Q: When is an evidence called a hearsay?
A: No. A: When its probative force depends, in whole or in part, on

the competency and credibility of some persons other than the
NOTE: Experts opinions are not ordinarily conclusive. When witness by whom it is sought to produce it (Estrada v.
faced with conflicting expert opinions, courts give weight and Desierto, 356 SCRA 108).
credence to that which is more complete, through and
scientific (Bacalso v. Padigos, 2008). Q: What are the exceptions to the rule that hearsay evidence
is inadmissible also known as admissible hearsay?
Opinion of an ordinary witness; when admissibe
A:
Q: When is the opinion of an ordinary witness admissible? 1. The rule on statements that are parts of the res gestae
2. The rule on dying declarations
A: 3. The rule on admissions against interest
1. The identity of a person about whom the witness has
adequate knowledge Q: What is the basis for excluding hearsay evidence?
2. The handwriting of the person of which the witness has
adequate knowledge A: It rests mainly on the ground that there is no opportunity to
3. The material sanity of a person with whom he is cross-examine the outside declarant.
sufficiently acquainted
4. The impressions of the witness on the emotion, behavior, Q: What will be violated in case such is admitted?
condition or appearance of a person (Sec. 50, Rule 130).
A: It will violate the constitutional right of the accused to
Q: If the police officer will testify that he notices Candida to confront the witnesses testifying against him and
be hysterical and on the verge of collapse, would such crossexamine them (People v. Mamalias, 328 SCRA 760).
testimony be considered as opinion, hence, inadmissible?
The hearsay rule therefore bars the admission of evidence that
A: The testimony would be admissible even if it would be an has not been given under oath or solemn affirmation and more
opinion. The opinion of an ordinary witness is admissible when important, has not been subjected to crossexamination by
such testimony refers to his impressions of the emotion, opposing counsel.
behavior, condition or appearance of a person (Sec.
50, Rule 130). Q: Can it be waived?

NOTES ON EVIDENCE
A: If not objected to, it is admissible. However, even if that conduct is intended by the actor as an assertion.
admitted, it has no probative value (Mallari v. People, 446 The statement must not be made by the declarant in
SCRA 74). the hearing or trial.
2. Statement made out of court is repeated and offered
When evidence is hearsay by the witness in court to prove the truth of the
matters asserted by the statement.
NOTE: It is the purpose for which the evidence is offered which
would determine whether the same is hearsay or not. Implied from an out-of-court statement is the fact that the
witness has no personal knowledge of the matter testified too.
Robles v. Lizarraga Hermanos, Estrada v. Desierto It is someone outside the court and who at the same time is
not in the stand who has personal knowledge of the fatcs. That
A ban on hearsay does not include statements which are someone outside the court cannot be questioned. His
relevant independently of whether they are true or not, like perception cannot be tested. His capacity to remember what
statements of a person to show, among others, his state of he perceived cannot be accurately determined. Neither can his
mind, mental condition, knowledge, belief, intention, ill-will, capacity to communicate his remembered perceptions
and other emotions. because he is not in court and if he is not in court cannot be
crossed-examined.
Q: What is the problem under Sec. 36 of Rule 130?
When the second element is absentthe out-of-court
A: It incompletely describes the essence of the hearsay rule statement is not offered to prove the truth of the matter
because of its failure to embody the element of purpose. As asserted, it is said that the statement is offered for a
written, it appears more to be a definition of the first-hand nonhearsay purpose. If it is offered, it is hearsay because it is
knowledge rule which although similar to hearsay rule, is offered to prove a hearsay purpose. Where a statement is not
traditionally distinct from it. offered for the truth of the matter asserted but is offered for
an evidentiary purpose not dependent on the truth of the
Q: What is the clearer definition of the hearsay rule under the matters asserted, the statement is non-hearsay, Q: Why must
Federal Rules of Evidence? a witness testify to matters of his personal knowledge?
A: It is a statement, other than the one made by the declarant A: The witness credibility, accuracy of perception and
while testifying at the trial or hearing, offered in evidence to recollection, can be tested before the court through
prove the truth of the matter asserted. crossexamination. Those of the out-of-court declarant cannot.
The latters statements are unreliable. His statements lack the
Q: What are the elements to constitute hearsay? indicacia of trustworthiness.
A: Q: Distinguish between hearsay evidence and opinion

evidence.
1. An out-of-court statement, oral, written or non-verbal
conduct, made by one other than the one made by the
declarant or witness testifying at the trial A: Hearsay evidence is one that is not based on ones personal
2. The out-of-door court statement must be offered to prove perception but based on the knowledge of others to prove the
the truth of the matter asserted in out-of-court statement. truth of the matter asserted in an out-of-court declaration.
People v. De Marco An opinion evidence is based on the personal knowledge or

personal conclusions of the witness based on his skill.
Training or experience (Sec. 49, Rule 130).
Hearsay is an out of court statement offered for the truth of
the matter asserted.
Rule 130
Q: What are the specific elements of Hearsay evidence?
Sec. 49.Opinion of expert witness. The opinion of a witness
on a matter requiring special knowledge, skill, experience or
A:
training which he shown to posses, may be
1. There must be an out-of-court statement. It may be
received in evidence. (43a)
oral or written. It may even be a conduct, as long as
NOTES ON EVIDENCE
Where the statement is not offered for the truth of the matter
Examples of non-hearsay evidence asserted, but merely to show what was said, the statement is
not hearsay.
1. A statement that is offered to show its patent falsity, so as
to suggest the defendants conscious guilt; Beyond the mere fact that the words were uttered, the
2. Statements relating to the state of mind of the declarant statement proves nothing as to its averments because the out-
and the statements relating to the state of mind of the of-court declarations relevance is independent of the truth of
listener. This constitute circumstantial evidence of an its assertion.
assertion and where the making of the statement is the
significant fact because it either gives rise to the inference Independent relevant statements
about the declarants state of mind or indicates its effect
on the hearer. The truth of the statement is not the issue It is a rule that a declarants statement may have relevance to
here. an issue in a case from the mere fact that the words were
spoken or written, irrespective of the truth or falsity of the
Out-of-court statements offered to prove mental state of assertion. This is known as independently relevant
the declarant statements. These statements are admissible for some
relevant reason independent of their truth or falsity. They are
As long as an out-of-court statement is offered for a relevant because the statement itself is either the very fact in
nonhearsay purpose (a purpose other than to prove the truth issue or a circumstantial evidence of a fact in issue. Some
of the matter asserted), the statement is admissible if it has authorities call such statements as the operative acts which
relevance to the matter in issue. give rise to legal consequences.
E.g. a statement which demonstrates by inference from the They are not hearsay. Thus, a witness may be asked questions
tenor of the statement the state of mind of the speaker or the concerning what the accused told him that other persons are
declarant. involved in the conspiracy if the purpose of the testimony is
not to prove that such persons were really involved but only to
Out-of court statement offered to prove its effect on the prove what the accused had mentioned (People v. Cusi, Jr., 14
listener/hearer SCRA 944).
An out-of-court statement may be offered not only to prove Their relevance to the matter in issue is not dependent on their
the state of mind of the declarant. It may also be used to show truth or falsity. Its relevance lies in its tenor or the fact that it
the state of mind of the hearer or listener. It described in terms was said.
of the effect of the declarants statement on the hearer and
why the listener acted in a particular manner. E.g: Prior-out of court declarations of a witness inconsistent
with his testimony on the stand are admissible, not to prove
When the statement is offered for the truth of the matter the truth of what was said. What is important is that the
asserted but is offered to show the mental effect of the statements were uttered.
statement on the hearer, the statement is not a hearsay.
Words offered to prove the effect on the hearer are admissible Estrada v. Desierto
when they are offered to show their effect on one whose
conduct is at issue. It is the bearers reaction to the statement Q: What are the 2 classes of independently relevant
which is sought to be proved. It is his reaction to the statement statements?
that is relevant, not the truth of the assertion in the statement.
Since the hearer is present in court, he can be crossed- A:
examined on whether or not he heard the statement
accurately, believed the statement to be true, and whether or 1. Those statements which are the very facts in issue; and
not he really acted in conformity with his belief. 2. Those statements which are circumstantial evidence of
fact in issue.
Out-of-court statement offered to prove that the statement a. Statements of a person showing his state of mind
was made his mental condition, knowledge, belief, intention, ill-
will and other conditions;
NOTES ON EVIDENCE
b. Statements of a person which shows his physical A: No, they are hearsay evidence but they are deemed
condition, as illness and the like; admissible hearsay for certain reasons. Under appropriate
c. Statements of a person from which an inference may circumstances, a hearsay statement may possess
be made as to the state of mind of another circumstantial guarantees of trustworthiness sufficient to
knowledge, belief, motive, good or bad faith, etc. of justify non-production of the declarant in person. Another
the latter; justification may be simply dictated by the necessity to admit
d. Statements which may identify the date, place and an out-of-court statement.
person on question; and
e. Statements showing the lack of credibility of a Q: Give examples of these exceptions.
witness.
A:
Q: Is a newspaper clipping of the report to the reporter who 1. Declaration against interest
was present during the press conference during the press 2. Act or declaration about pedigree
conference stating that X admitted the robbery admissible? 3. Entries in the course of business
4. Entries in official records
A: Yes. It is a non-hearsay evidence offered for the purpose of 5. Commercial lists
showing that the statement of X was made to a reporter 6. Learned treatises
regardless of the truth or falsity of the statement. The
admissibility depends now on whether the fact that the NOTE: Their admissibility is predicated on a compelling
statement was made is relevant to the case. It would be necessity
hearsay if offered to prove the truth that X was the robber.
Also, the statement made by X to a reporter may be admitted Dying declarations (Rule 130)
as an admission under Sec. 26, Rule 130.
Sec. 37.Dying declaration. The declaration of a dying
Rule 130 person, made under the consciousness of an impending
death, may be received in any case wherein his death is the
Sec. 26.Admission of a party. The act, declaration or subject of inquiry, as evidence of the cause and surrounding
omission of a party as to a relevant fact may be given in circumstances of such death. (31a)
evidence against him. (22)
Q: What is a dying declaration?
Q: What are the exceptions to the hearsay rule?
A: It is also known as the ante mortem statement. It is an
A: evidence of the highest order and is entitled to utmost
credence since no person aware of his impending death would
1. Dying declarations (Sec. 37, Rule 130); make a careless and false accusation.
2. Declaration against interest (Sec. 38, Rule 130);
3. Act or declaration against pedigree (Sec. 39, Rule Q: What may be the purpose of a dying declaration?
130);
4. Family reputation or tradition regarding pedigree A: To provide the identity of the accused and the deceased, to
(Sec.40, Rule 130); show the cause of death of the deceased and the
5. Common reputation (Sec.41, Rule 130); circumstances under which the assault was made upon him.
6. Part of the res gestae (Sec.42, Rule 130);
7. Entries in the course of business (Sec.43, Rule 130); Q: Why are their admissible?
8. Commercial lists and the like (Sec.45, Rule 130);
9. Learned treatises (Sec.46, Rule 130); and A: On the ground of necessity and trustworthiness. Necessity
10. Testimony or deposition at a former trial (Sec.47, Rule because the declarants death renders it impossible his taking
130) the witness stand. Allowing it therefore, prevents a failure of
justice.
Q: Is it correct to assert that the exceptions to the hearsay
rule are not hearsay? Trustworthiness, because the declaration is made in extremity,
when the party is at the point of death and when every motive
NOTES ON EVIDENCE
to falsehood is silenced and the mind is induced by the most

powerful considerations to speak the truth.
People v. Cerilla (539 SCRA 251)
The law considers the point of death as a situation so solemn

and awful as creating an obligation equal to that which is
imposed by an oath administered in court.
Q: In what proceedings a dying declaration admissible?
A: As originally conceived, they are admissible only in criminal

cases particularly in homicide cases. However, because of the
changes under the Rules of Evidence in 1989, the law allowed
the use of dying declarations even in non-criminal cases.
Today, the Rules of court no longer places any limitation on the
type of action in which a dying declaration may be introduced.
As long as the relevance is clear, a dying declaration may now
be used or introduced in a criminal or a civil action and the
relevance is satisfied where the subject of inquiry is the death
of the declarant himself.
Q: How should the objection be made?

NOTES ON EVIDENCE
A: It should be premised on any of the requisites for its

NOTES ON EVIDENCE
admissibility embodied under Sec. 37. Thus, a counsel who It would be unfair to restrict the use of dying declarations by
wants to exclude the same must have to deal with the primary the prosecution. It is well-settled that it will be received on
question of whether or not the evidentiary foundations for the behalf of the defendant (Mattox v. U.S.).
introduction of a dying declaration where met.
Elements of a dying declaration
Examples:
Objection your honor, there is no foundation for the NOTE: A dying declaration is admissible where the proponent
declaration Objection, of the evidence shows compliance with the following
no basis evidentiary foundations:
Objection, predicate not laid
Objection. No foundation. Declarant was not under 1. That the declaration is one made by a dying person
consciousness of an impending death 2. That the declaration was made by said dying person under
a consciousness of his imminent death
Q: Is mere consciousness of death enough? 3. That the declaration refers to the cause and circumstances
surrounding the death of the declarant and not of anyone
A: No, every one of us, at one time or another, has become else
conscious of death. The kind of death of which the declarant 4. That the declaration is offered in a case where the
should be conscious is a death that is impending. The declarant declarants death is the subject of inquiry
must be certain that death is near at hand, and what is said 5. The declarant is competent as a witness had he survived
must have spoken in the hush of its impending presence. 6. The declarant should have died.
People v. Brioso, 37 SCRA 336 Q: Fallen by a bullet upon being fired at, Santos before
expiring told Romero, a passerby who came to his rescue, I
To admit a dying declaration in evidence, it must be shown was shot by Pablo, our neighbor. May Romeros testimony
that the declarant believed at the time the statement was on what was told to him by Santos be offered and amitted in
made, that he was in a dying condition and had given up the the separate civil action for damages brought by the heirs
hope of surviving. against Pablo?
NOTE: It is conceded that in determining the consciousness, A: The statement is admissible. A dying declaration as in the
the attendant circumstances should be carefully weighed in facts in the case at bar, may be offered in a civil case that the
determining the consciousness of the impending death and the cause and circumstances of the death of the declarant are the
sincerity of such belief. subjects of the inquiry.
Example: the fatal quality of the wound, the statements made Q: What is the rationale behind the admissibility of the dying
by the physician that his situation is hopeless, etc. declaration?
Q: If declatants statement was made under consciousness of A: As held in the case People v. Lamasan, no person who knows
an impending death, will a subsequent belief in recovery of careless or false accusation.
before his actual death bar the admissibility of his statement?
Q: Does the dying declaration need to be directed to a
A: No. The admissibility only depends upon whether at the particular person?
time of the declaration was made the deceased believed that
the injury received is fatal. A: The dying declaration of the deceased need not be directed
to a particular person inquiring from the declarant as to the
Q: Will the remark I do not knowI do not know who circumstances of his death. Anyone who has knowledge of
stabbed me admissible? what the declarant said, whether it be directed to him or not,
whether he had made inquiries from the declarant or not, can
A: Yes, there is nothing in the rules which prohibits the testify thereto (People v. Valdez, 347 SCRA 594).
admissibility of a dying declaration that is favorable to the
accused. Assailing a dying declaration

NOTES ON EVIDENCE
Q: Is a dying declaration create a conclusive presumption of

credibility of the admitted declaration?
A: No. No evidentiary rule grants a dying declaratipm a favored

status in the hierarchy of evidence. It may be attacked in the
same manner as on would do to a testimony in open court. It
may be impeached through the normal methods provided for
under the rules.

NOTES ON EVIDENCE
1. For instance, it may be shown that the declarant had

NOTES ON EVIDENCE
previously made a statement inconsistent with his

supposedly dying declaration. Res gestae under the Rules of Court
2. The objecting counsel may also demonstrate that the
declarant has no personal knowledge as to the identity of Sec. 42.Part of res gestae. Statements made by a person
the assailant. while a starting occurrence is taking place or immediately
3. It may also be shown that the declarant would not have prior or subsequent thereto with respect to the
been a competent witness even if he had survived. circumstances thereof, may be given in evidence as part of
4. The counsel may show that deceased was in an irrational res gestae. So, also, statements accompanying an equivocal
state because he was under the influence of large dose act material to the issue, and giving it a legal
of sedatives administered in hospital significance, may be received as part of the res gestae. (36a)
People v. Ador (432 SCRA 1) Q: Under our jurisdiction, the res gestae is limited to what
matters?
The declaration must identify the assailant; otherwise, it loses
its significance. A:
1. Spontaneous statements
Parts of the Res Gestae 2. Verbal acts
Q: What is the etymological meaning of res gestae? While the term remains in our rules, its application is restrictive
and no other statement, act or evidence may qualify as part of
A: It means things done. It was originally used by the courts in the res gestae.
the other side of the world in the early 1800s to create hearsay
exceptions whenever it was difficult to justify the admission of Talidanao v. Falcom Maritime, 2008
a piece of hearsay evidence at a time when the hearsay theory
was far from being developed in the law of evidence. In spontaneous exclamation or statements, the res gestae is
the startling occurrence, whereas in verbal acts, the res gestae
It was used as a justification to escape from the strict are the statements accompanying the equivocal act.
application of the hearsay rule.
Res gestae is said to have reference to events speaking by

themselves through the instinctive words and acts of A. Spontaneous statements
participants when narrating the events. What is done or said
by the participants under the immediate spur of transaction Q: What should be the characteristics for a spontaneous
becomes part of the transaction. statement to be admitted?
Q: What is the rationale behind the concept? A:

1. That there is a startling event or occurrence taking place
A: It is the event that speaks for itself through the spontaneous 2. That while the event is taking place or immediately prior
words or instinctive words or conduct of the witness and not to or subsequent thereto, a statement has been made
the witness for and about the event. 3. The statements were made before the declarant had the
time to contrive or devise a falsehood
The use of the term res gestae has falledn out of favor and acts 4. That the statement relates to the circumstances of the
formerly called parts of the res gestae are now designated by startling event or occurrence or that the statements must
specific names. concern the occurrence in question and its immediate
attending circumstances.
The judicial dislike for use of the term res gestae is clearly
expressed in an Amercian case when it considered the phrase Q: Where is the admissibility of a spontaneous statement
as accountable for so much confusion that it had best be anchored on?
denied any place whatever in legal terminology; if it means
anything but an unwillingness to think at all, what it covers
cannot be put in less intelligible terms (U.S. v. Matot).
NOTES ON EVIDENCE
A: It is anchored on the theory that the statement was uttered

under the circumstances where the opportunity to fabricate is
absent. The statement is a reflex action rather than a
deliberate act, instinctive rather than deliberate. Thus, the
declaration was made under the conditions suggestive of the
truth.
The justification for the excited utterance exception is that a

spontaneous declaration of an individual who has recently
suffered an overpowering and shocking experience is likely to
be truthful.

B. Verbal Acts
NOTES ON EVIDENCE
Q: Can the statement and the event be taken separately in

NOTES ON EVIDENCE
case of a spontaneous statement? conduct that is equivocal or ambiguous, one which in itself
does not signify anything when taken separately. It acquires
A: No. The statement alone without the event will not qualify meaning or legal significance only because of the statements
for admission, because it is the circumstances surrounding the that accompany the act. It is the statement contemporaneous
making of the statement which makes said statement with the act that identifies or indicates the character, purpose
admissible. or motive of the act.
The principle rests on the common experience that utterances Q: Under this rule, what are the requisites to be admissible?
made under such circumstances are devoid of selfinterest and
are in the same category as exclamations. The probability of A:
falsehood is too remote as to be negligible (People v. Ricaplaza, 1. The principal act to be characterized must be
23 SCRA 374). equivocal;
2. The equivocal act must be material to the issue;
NOTE: A counsel who intends to object to the presentation of 3. The statement must accompany the equivocal act,
a spontaneous statement as evidence, need to analyze the and
evidence sough to be admitted by strictly weighing it according 4. The statement gives a legal significance to the
to the standards set by Sec. 42 of Rule 130. equivocal act.
A declaration by a deceased person concerning the E.g. A witness testifying that he saw the P give money to the D.
circumstances of his health may not be considered a dying Yet, this is an equivocal act. Is the money intended as a bride?
declaration if it cannot be established that he uttered his Is it a payment for debt? We do not know. The act of receiving
statement while conscious of his impending death but the money in itself has no definite meaning or significance. But the
utterance of the victim made immediately after sustaining act of receiving money acquires legal significance when the
injuries may be considered the incident speaking through the defendant said thank you. Ill pay you after a year. Now, the
victim. While it may not qualify as a dying declaration, it may witness is testifying to that out-ofcourt statement and it is
nonetheless be admitted in evidence as part of the res gestae. offered to prove the truth of that statement, that the money
handed over is a loan to the defendant. It is hearsay, but it is
Q: When is a declaration made spontaneously after a startling admissible hearsay as part of the res gestae.
occurrence deemed as part of the res gestae?
Q: Distinguish between spontaneous statement and a verbal
A: act.
1. When the principal act, the res gestae, is a starting
occurrence; A: A Spontaneous statement may be prior to, simultaneous
2. The statements were made the declarant had time to with, or subsequent to the startling event or occurrence. This
contrive or devise; and is not so in a verbal act. The statement in the latter must
3. Statements concern the occurrence in question and its accompany the equivocal act which evidently means that it
immediately attending circumstances (People v. Pea, 376 must be contemporaneous with the act.
SCRA 639).
Entries in the course if business (business records rule)
Under the Rules, statements made by a person while a startling
occurrence is taking place or immediately prior or subsequent Rule 130
thereto with respect to the circumstances thereof, may be
given in evidence as part of the res gestae. Sec. 43.Entries in the course of business. Entries made at,
or near the time of transactions to which they refer, by a
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
Q: What is a verbal act? professional capacity or in the performance of duty and in
the ordinary or regular course of business or duty. (37a)
A: It is a statement accompanying an equivocal act material to
the issue, and giving it a legal significance. It presupposes a
NOTES ON EVIDENCE
This is commonly encountered in breach of contract suits for

collection of a sum of money.
In this exception, the necessity for the admissibility of such

evidence arises from the absence of the person who has
personal knowledge of the facts. He is absent because he is
dead, outside of the jurisdiction of the court, or otherwise,
unable to testify.

NOTES ON EVIDENCE

NOTES ON EVIDENCE
Q: What are the elements of this exception? People normally speak freely and with untruth when the
statement is in their interest, but are usually unwilling to speak
A: falsely against their interest.
1. Entries were made at, or near the time of the
transactions referred to; This is founded on the necessity on account of the impossibility
2. Such entries were made in the regular course of of obtaining other evidence from the same source, the
business; declarant being unavailable in person to testify on the stand on
3. The person making the entries was in a position to account of death, absence from the jurisdiction or serious
know the facts stated in the entries; illness.
4. The person making the entries did so in his
professional capacity, or in the performance of duty It refers to a declaration made by a person who at the time of
and in the regular course of business; and his declaration is presented in evidence is already dead or is
5. The person making the entry is now dead or unable to unable to testify. It must be one which when made, was known
testify. to the declarant himself to be against his interest, pecuniary or
moral, and which would not have been made unless he
Notes: Entries in the payroll, being entries in the ordinary believed it to be true. It is not enough that a declaration against
course of business enjoy the presumption of regularity. interest was made. It is necessary that the declarant knew that
the statement was against his interest and which he would not
The Rules on Electronic Evidence also expressly exempt have made had it not be true.
business records from the hearsay rule:
E.g. a statement by the debtor that he owes the creditor a sum
RULE 8 of money, or an acknowledgement by the principal that he
BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE received the money previously entrusted to his agent, are clear
declarations against the interest of the person making the
SECTION 1. Inapplicability of the hearsay rule. A statement.
memorandum, report, record or data compilation of acts,
events, conditions, opinions, or diagnoses, made by Q: Will the same rule apply if the declarant is available as a
electronic, optical or other similar means at or near the time witness?
of or from transmission or supply of information by a person
with knowledge thereof, and kept in the regular course or A: No. The declarant must be dead or is unable to testify.
conduct of a business activity, and such was the regular
practice ot make the memorandum, report, record, or data Q: What kind of unavailability is sufficient reason to justify
compilation by electronic, optical or similar means, all of the application of the exception?
which are shown by the testimony of the custodian or other
qualified witnesses, is excepted from the rule or hearsay A:
evidence. 1. Being outside the territorial jurisdiction of the
countryunavailability if the exact whereabouts
Declarations against interest (Rule 130) abroad are unkown. If known, his deposition may be
taken and the exception will not apply.
Sec. 38.Declaration against interest. The declaration made 2. Serious physical and mental impairments.
by a person deceased, or unable to testify, against the
interest of the declarant, if the fact is asserted in the If the declaration is favorable to the interest of the declarant,
declaration was at the time it was made so far contrary to it is a mere self-serving statement and does not fall as an
declarant's own interest, that a reasonable man in his exception to the hearsay rule.
position would not have made the declaration unless he
believed it to be true, may be received in evidence against Also, the declaration could be against ones penal interest
himself or his successors in interest and against third because if one admits to a crime, he is also civilly liable, a
persons. (32a) liability that is pecuniary (People v. Toledo, 51 Phil. 826).
Declaration about pedigree (Rule 130)

NOTES ON EVIDENCE
Sec. 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 fast occurred, and the
names of the relatives. It embraces also facts of family
history intimately connected with pedigree. (33a)

NOTES ON EVIDENCE
Q: To be admissible as an exception to the hearsay rule, what

NOTES ON EVIDENCE
must be shown? A: It is when such reputation refers to a matter of public or

general interest, or respecting marriage or moral character and
A: said matter is more than 30 years old. It must exist prior to the
1. That the declarant is dead, or unable to testify; controversy. It may be established by monuments and
2. That the declarant is related by birth or marriage to inscriptions.
the person whose pedigree is in issue;
3. The declaration was made before the controversy; Common reputation is hearsay but is admissible because of
and trustworthiness.
4. The relationship between the 2 persons is shown by
evidence other than such act or declaration. Q: Can common reputation establish pedigree?
Q: What does pedigree include? A: No. This is established by reputation in the family and not in
the community.
A: It includes relationship, family genealogy, birth, marriage,
death, the dates when and the places where these facts Entries of official records (Rule 130)
occurred, and the names of the relatives. It also embraces facts
of family history intimately connected with pedigree. Sec. 44.Entries in official records. Entries in official records
made in the performance of his duty by a public officer of the
Family reputation or tradition regarding pedigree (Rule 130) Philippines, or by a person in the performance of a duty
specially enjoined by law, are prima facie evidence of the
Sec. 40.Family reputation or tradition regarding pedigree. facts therein stated. (38)
The reputation or tradition existing in a family previous to the
controversy, in respect to the pedigree of any one of its Q: When are entries admissible in evidence?
members, may be received in evidence if the witness
testifying thereon be also a member of the family, either by A: When they are made in official records by public officer in
consanguinity or affinity. Entries in family bibles or other the Philppines or in the performance of a legal duty. They are
family books or charts, engravings on rings, family portraits admissible as prima facie evidence of the facts stated in the
and the like, may be received as evidence of pedigree. (34a) entries.
Q: What does this exception involve? Q: What are the requisites for admissibility under this rule?
A: A:
1. A statement by a member of the family either by 1. That the entry was made by a public officer, or by
consanguinity or affinity; another person specially enjoined by law to do so;
2. The statement is about the reputation or tradition of 2. That it was made by the public officer in the
the family in respect to the pedigree of any member performance of his duties, or by such other person in
of the family; and the performance of a duty specially enjoined by law;
3. The reputation or tradition is one existing previous to and
the controversy. 3. That the public officer or other person had sufficient
knowledge of the facts by him stated, which must
Common reputation (Rule 130) have been acquired by him personally or through
official information.
Sec. 41.Common reputation. Common reputation existing
previous to the controversy, respecting facts of public or Commercial lists and the like (Rule 130)
general interest more than thirty years old, or respecting
marriage or moral character, may be given in evidence. Sec. 45.Commercial lists and the like. Evidence of
Monuments and inscriptions in public places may be statements of matters of interest to persons engaged in an
received as evidence of common reputation. (35) occupation contained in a list, register, periodical, or other
published compilation is admissible as tending to prove the
Q: When is reputation admissible in evidence? truth of any relevant matter so stated if that compilation is
published for use by persons engaged in that occupation
NOTES ON EVIDENCE
and is generally used and relied upon by them therein. (39) 3. The former case involved the same subject as that in the
present case, although in different causes of action
Q: What is the rule for such commercial lists and reports of 4. The issue testified to by the witness in the former trial is
matters of interest be admissible? the same issue involved in the present case
5. The adverse party has an opportunity to cross-examine
A: They must be made by persons engaged in that occupation the witness in the former case (Manliclic v. Calaunan,
and are generally used and relied upon by them and those lists 2007).
and reports are published.
Exception to the hearsay rule under the rule on examination
Learned treatises (Rule 130) of a child witness
Sec. 46.Learned treatises. A published treatise, periodical Q: What requisites should be present for a statement made
or pamphlet on a subject of history, law, science, or art is by a child, in a child abuse case, not otherwise admissible
admissible as tending to prove the truth of a matter stated under the hearsay rule to be admitted in evidence in a
therein if the court takes judicial notice, or a witness expert criminal or non-criminal proceeding?
in the subject testifies, that the writer of the statement in the
treatise, periodical or pamphlet is recognized in his A:
profession or calling as expert in the subject. (40a) 1. The proponent shall make known to the adverse party the
intention to offer such statement and its particulars to
History books, published findings of scientists fall within this provide him a fair opportunity to object
exception if an expert on the subject testifies to the expertise 2. If the child is available the court shall upon motion of the
of the writer or if the court takes judicial notice of such fact. adverse party, require the child to be present at the
presentation of the hearsay statement for
Testimony or deposition at a former proceeding (Rule 130) crossexamination by the adverse party
3. When the child is unavailable, the fact of such
Sec. 47.Testimony or deposition at a former proceeding. circumstance must be proved by the proponent and the
The testimony or deposition of a witness deceased or unable hearsay testimony shall be admitted only if corroborated
to testify, given in a former case or proceeding, judicial or by other admissible evidence (Sec. 28, Rule on
administrative, involving the same parties and subject Examination of a Child Witness).
matter, may be given in evidence against the adverse party
who had the opportunity to cross-examine Q: What must be shown in order for the court to admit
him. (41a) videotaped and audiotaped interviews as evidence?
Q: What is the testimony contemplated under this provision? A:

1. The child witness is unable to testify
A: One given in a former case or proceeding, judicial or 2. The interview was conducted by duly trained members of
administrative involving the same parties and subject matter. a multi-disciplinary team or representatives of law
The testimony was given by one who is now deceased or enforcement or child protective services
unable to testify. Said testimony may be given in evidence
against the adverse party provides the latter had the Q: Also, what are the foundations which must be established?
opportunity to cross-examine the witness who gave the
previous testimony (Samodio v. CA, 454 SCRA 463, 2005). A:
1. That the party offering the videotape or audiotape, must
Q: What requisites should be present for Sec. 47 to apply? disclose the identity of the individuals present, and at all
times, include their images and voices
A: 2. That the statements of the child were not made in
1. The witness is dead or unable to testify response to a questioning calculated to lead the child to
2. His testimony or deposition was given in a former case or make a particular statement
proceeding, judicial or administrative, between the same 3. That the videotape or audiotape or device is shown to be
parties or those representing the same interests capable of recording the testimony

NOTES ON EVIDENCE
4. That the person operating the device was competent to A: No. The burden of proof, under clear terms of Sec. 1 of Rule
operate it 131 is the duty of a party to present evidence not only to
5. The videotape or audiotape is authentic and correct establish a claim but a defense.
4. That the recording has been duly preserved (Sec. 29, Rule
on Examination of a Child Witness). Northwest Airlines v. Chiong, 2008
Although initially, the burden of proof was with the passenger

to prove that there was a breach of contract of carriage, the
Chapter VI burden of evidence shifter to the airline when the former
BURDEN OF PROOF, QUANTUM OF EVIDENCE AND adduced sufficient evidence to prove the fact alleged.
PRESUMPTIONS
BPI v. Sps. Royeca, 2008
A. Burden of Proof and Burden of evidence
In civil cases, the party having the burden of proof must
Q: What is burden of proof? establish his case by preponderance of evidence, or evidence
which is more convincing to the court as worthy of belief than
A: Onus probandi refers to the obligation of a party to the that which is offered in opposition thereto. Thus, the party,
litigation to persuade the court that he is entitled to whether the plaintiff or plaintiff, has the onus to prove his
relief. assertion in order to obtain a favorable judgment.
Rule 131 Q: Who has the burden of proof in a case involving

nonpayment of obligation?
SECTION 1.Burden of proof. Burden of proof is the duty of
a party to present evidence on the facts in issue necessary to A: The general rule is that the burden rests on the defendant
establish his claim or defense by the amount of evidence to prove payment, rather than on the plaintiff to prove
required by law. (1a, 2a) nonpayment. The debtor has the burden of showing with legal
certainty that the obligation has been discharged by payment.
For the defendant, an affirmative defense is one which is not a
denial of an essential ingredient in the plaintiffs, but one Q: Who has the burden of proof in case of eminent domain
which, if established will be a good defensei.e., an avoidance case?
of the claim (Supreme Transliner v. CA, 370 SCRA 41).
A: The local government that seeks to expropriate private
Q: To whom the burden of proof lies? property has the burden to show the existence of compliance
with elements for the valid exercise of the right of eminent
A: It lies with the party who alleges the existence of a fact or domain (JIL Christian Foundation v. City of Pasig, 466 SCRA
thing necessary in the prosecution or defense of an action. 235).
A mere allegation is not evidence, and he who has the burden Q: Who has the burden of proof in termination cases?
of proving his allegation with the requisite quantum of
evidence (Clado-Reyes v. Limpe, 2008). A: It rests upon the employer to show that the dismissal is for
a valid and just cause.
NOTE: In civil cases, plaintiffs have the burden of proving the
material allegations of the complaint when those are denied Q: Who has the burden of proof in disbarment cases?
by the answer, and the defendants have the burden of proving
the material allegations in the answer when they introduce A: It rests on the complainant as held in Santos v. Dichoso (84
new matters. SCRA 622). Moreover, the case must be established by clear,
convincing and satisfactory proof. Indeed, considering the
Q: Is it correct to say that the burden of proof solely rests on serious consequences of the disbarment or suspension of a
the shoulders of the plaintiff? member of the Bar, the SC has held that clearly preponderance
of evidence is necessary to justify the imposition of the
administrative penalty.
NOTES ON EVIDENCE
Q: Distinguish burden of proof and burden of evidence.

Q: Who has the burden of proof in accident insurance?
A:
A: The insureds beneficiary has the burden of proof in
demonstrating that the cause of death is due to the covered BURDEN OF PROOF BURDEN OF EVIDENCE
peril (Vda. De Gabriel v. CA, 264 SCRA 137). The obligation of a party to The duty of the party to go
present evidence on the facts forward with the evidence to
Q: How about in question as to constitutionality of a law?
in issue necessary to establish overthrow any prima facie
his claim or defense by the presumption against him
A: The one who attacks the constitutionality of a law has the
amount of evidence required
onus probandi to show why the law is repugnant to the
constitution. The reason for the rule is the presumption that
the legislature intended to enact a valid, sensible, and just law Equipoise rule or equiponderance doctrine
and one which operates no further than may be necessary to
effectuate the specific purpose of the law (Perez v. People, Q: What is the basis of the Equipoise rule or equiponderance
2008). doctrine?
Test for determining where the burden of proof lies A: It is based on Sec. 1 of Art. III of the Constitution which
provides that no one shall be deprived of life, liberty or
Q: What is the test for determining where the burden of proof property without due process of law.
lies?
Q: What is the Equipoise rule or equiponderance doctrine?
A: It is to ask which party to an action or suit will fail if he offers
no evidence competent to show the facts averred as the basis A: It refers to a situation where the evidence of the parties are
for the relief he seeks to obtain (Aznar Brothers Realty v. Aying, evenly balanced or there is doubt on which side the evidence
458 SCRA 496). preponderates. In this case the decision should be against the
party with the burden of proof.
The burden of proof lies on the party who wants to establish a
legal right in his favor. If he claims a right granted by law, he Q: Apply the Equipoise rule or equiponderance doctrine in a
must prove his claim by competent evidence, relying on the criminal case.
strength of his own evidence and not upon the weakness of
that of his opponent (China Banking Corp. v. Ta Fa Industries, A: The Equipoise rule or equiponderance doctrine provides
2008). that where the evidence is evenly balanced, the constitutional
presumption of innocence tilts the scales in favor of the
Q: Where is the burden of proof fixed? accused. Thus, where the inculpatory facts and circumstances
are capable of 2 or more explanations one of which is
A: It is fixed by the pleadings. The claim of the plaintiff which consistent with the innocence of the accused and the other
he must prove is spelled out in his complaint. The defendants consistent with his guilt, then the evidence does not fulfill the
defenses which he must prove are to be found in his answer to test of moral certainty and is not sufficient to support a
the complaint. conviction. Where then evidence in a criminal case is evenly
balanced, the constitutional presumption tilts the scales in
NOTE: The burden of proof may shift from one side to the other favor of the accused.
as the exigencies of the trial require and shifts with alternating
frequency. As the trial progresses, one party may have When moral certainty as to culpability hangs in the balance,
presented evidence that weigh heavily in his favor and acquittal on reasonable doubt inevitably becomes a matter of
sufficient to convince the court of the justness of the claim. If right (Malillin v. People, G.R. No. 172953).
this occurs, the other party has the burden to come forward in
his own evidence to counteract whatever positive impression However, the rule does not apply where evidence presented is
which the evidence of the other party may have been created not equally weighty, such as where the evidence of the
in the mind of the court. prosecution is overwhelming (Malana v. People, G.R. No.
173612).
NOTES ON EVIDENCE
It means evidence which is more convincing to the court as

Ubales v. People, G.R. No. 175692 worthy of the belief than that which is offered in opposition
thereto.
It is better to acquit ten guilty individuals than to convict one
innocent person. Every circumstance against guilt and in favor Q: What should the court consider to determine the existence
of innocent must be considered. Also, an accused should not of preponderance of evidence?
be convicted by reason of the weakness of his alibi. It is
fundamental that the prosecution must prove its case beyond A:
reasonable doubt and must not rely on the weakness of the 1. All the facts and circumstances of the case;
evidence of the defense. 2. The witness manner of testifying, their intelligence, their
means and opportunity of knowing the facts to which they
Mayon Hotel and Restaurant v. Adana (458 SCRA 609) are testifying, the nature of the facts to which they testify,
the probability or probability of their testimony;
In labor cases, if doubt exists between the evidence presented 3. The witness interest or want of interest, and also their
by the ER and the EE, the scales of justice must be tilted in favor personal credibility so far as the same may ultimately
of the latter. The policy is to extend the doctrine to a greater appear in the trial;
number of employees who can avail of the benefits under the 4. The number of witnesses, although does not mean that
law, which is inconsonance with the avowed states policy to preponderance is necessarily with the greater number.
give maximum aid and protection to labor (Nicario v. NLRC, 295
SCRA 619). Note: To persuade by preponderance of evidence is not totake
the evidence quantitatively but qualitatively.
PROOF BEYOND REASONABLE DOUBT

B. Quantum of Evidence
Sec. 2.Proof beyond reasonable doubt. In a criminal case,
RULE 133 Weight and Sufficiency of Evidence 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, excluding
PREPONDERANCE OF EVIDENCE
possibility of error, produces absolute certainly. Moral
certainly only is required, or that degree of proof which
SECTION 1.Preponderance of evidence, how determined.
produces conviction in an unprejudiced mind. (2a)
In civil cases, the party having burden of proof must establish
his case by a preponderance of evidence. In determining
It is the constitutional presumption of innocence that lays such
where the preponderance or superior weight of evidence on
burden upon the prosecution. The prosecution must prove its
the issues involved lies, the court may consider all the facts
case beyond reasonable doubt and must not rely on the
and circumstances of the case, the witnesses' manner of
weakness of the evidence of the defense.
testifying, their intelligence, their means and opportunity of
knowing the facts to which there are testifying, the nature of
Yet, when the accused invokes a justifying circumstance like
the facts to which they testify, the probability or
self-defense, the burden of proof rests upon the defense to
improbability of their testimony, their interest or want of
prove that the killing was justified.
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 Note: Proof beyond reasonable doubt does not mean such a
preponderance is not necessarily with the greater number. degree of proof that excludes all possibility of error. Only moral
(1a) certainty is required.
Q: What do you mean by preponderance of evidence? Reasonable doubt does not refer to any doubt or a mere
possible doubt because everything in human experience is
subject to possible doubt. It is that state of case which, after a
A: It is a quantum of evidence applicable to civil cases. It means
comparison of all the evidence , does not lead the judge to
greater or superior weight of evidence. It is more convincing
have in his mind, a moral certainty of the truth of the charge.
and more credible than the one offered by the adverse party.

NOTES ON EVIDENCE
Where there is reasonable doubt as to the guilt of the accused, support administrative charges against judges should thus be
there must be an acquittal. more than substantial and requires proof beyond reasonable
doubt.
People v. Ganguso (250 SCRA 268)
This was later on extended to administrative proceedings
Reasonable doubt standard is demanded by the due process against judicial employees like sheriffs.
clause of the constitution which protects the accused from
conviction except upon proof beyond reasonable doubt of Q: Distinguish preponderance of evidence and substantial
every fact necessary to constitute the crime which he is evidence.
charged. Xxx Moral certainty is only required, or that degree of
proof which produces conviction in an unprejudiced mind. The A:
conscience must be satisfied that the accused is responsible for
the offense charged. PREPONDERANCE OF SUBSTANTIAL EVIDENCE
EVIDENCE
People v. Santiago, 420 SCRA 248 (p. 416)
Applies to civil cases Applies to cases filed before
administrative or qua-judicial
SUBSTANTIAL EVIDENCE
bodies
It means greater or superior Requires that in order to
Sec. 5.Substantial evidence. In cases filed before
weight of evidence. It is the establish a fact, the evidence
administrative or quasi-judicial bodies, a fact may be deemed
more evidence that is more should constitute the amount
established if it is supported by substantial evidence, or that
convincing and more credible of relevant evidence which a
amount of relevant evidence which a reasonable mind might
than the one offered by the reasonable mind might
accept as adequate to justify a
adverse party. accept as adequate to
conclusion. (n) support a conclusion
Q: In what cases does this degree of evidence apply?

Quantum of evidence in a petition for a writ of amparo
A: This applies to administrative cases-those filed before

Q: What is the quantum of evidence in a petition for a writ of
administrative and quasi-judicial bodies and which requires
amparo?
that in order to establish a fact, the evidence should constitute
that amount of relevant evidence which a reasonable man
A: The parties shall establish their claims by substantial
might accept as adequate to support a conclusion.
evidence (Sec. 17, The Rule on the Writ of Amparo).
Tongko v. Manufacturers Life Insurance Company (G.R. No.
Effect of Failure to prove administrative liability on the
167622)
criminal case
The settled rule that in administrative and quasi-judicial

Q: What is the effect of the failure to prove administrative
proceedings, proof beyond reasonable doubt is not required
liability on the criminal case?
in determining the legality of the ERs dismissal of an EE, and
not even a preponderance of evidence is necessary as
A: The findings and conclusions in one should not necessarily
substantial evidence is considered sufficient. Substantial
be binding on the other. The evidence presented in the
evidence is more than a mere scintilla of evidence or relevant
administrative case may not necessarily be the same evidence
evidence as a reasonable mind might accept as adequate to
to be presented in the criminal case. The prosecution is
support a conclusion, even if other minds, equally reasonable,
certainly not precluded from, adducing additional evidence to
might conceivably opine otherwise.
discharge the burden of proof required in the criminal case.
Duduaco v. Laquindanum, 466 SCRA 428
Also, the dismissal of the criminal case is not per se bar to
administrative sanctions (Paredes v. CA, 2007).
Administrative proceedings against judges are highly penal in
character and are to be governed by the rules applicable to
criminal cases. The quantum of evidence proof required to
NOTES ON EVIDENCE
Clear and convincing evidence A person claiming moral damages must prove the existence of
bad faith by clear and convincing evidence for the law
Q: When is an evidence clear and convincing? presumes good faith.
A: If it produces in the mind of the trier of fact a firm belief or Evidentiary weight of electronic evidence
conviction as to allegations sought to be established. It is
intermediate, being more than preponderance, but not to the Q: What factors should be considered in assessing the
extent of such certainty as is required beyond reasonable Evidentiary weight of electronic evidence?
doubt as in criminal cases.
A:
Government of Hong Kong Special Admin. Region v. 1. The reliability of the manner in which it was generated,
Olalia, 2007 stored or communicated
2. The reliability of the manner in which its originator was
This standard should be lower than proof beyond reasonable identified
doubt but higher than preponderance of evidence. 3. The familiarity of the information and communication
system
Q: What is the quantum of evidence to prove allegations of 4. The familiarity of the witness or the person who made the
bias? entry with the communication and information system
5. The nature and quality of the information which went into
A: Bare allegations of bias and partiality of the judge are mot the communication and information system 6. Other
enough in the absence of clear and convincing evidence to factors which the court may consider (Sec.1, Rule 7, Rules
overcome the presumption that the judge will undertake his on Electronic Evidence).
noble role to dispense justice according to law and evidence
without fear or favor. Extrinsic evidence is required to establish Q: How may matters relating to the admissibility and
bias, bad faith, malice or corrupt purposes, in addition to the evidentiary weigh of an electronic document be established?
palpable error that may be inferred from the decisions of the
decision or order itself (Rivera v. Mendoza, A.M. No. RTJ-06- A: By an affidavit stating facts of direct personal knowledge of
2013, 2006. the affiant or based on authentic records. The affidavit must
affirmatively show the competence of the affiant to testify on
Q: What should be the quantum in case of annulment or the matters contained.
reconveyance of title?
A: A party seeking it should establish not merely by

preponderance of evidence but by a clear and convincing that C. PRESUMPTIONS
the land sought to be reconveyed is his.
Q: What is a presumption?
Q: What should be the quantum in case of allegation of
frame-up and extortion? A: It is an assumption of fact resulting from a rule of law which
requires such fact to be assumed from another fact or group of
A: To substantiate the defense, including instigation, the facts founded or otherwise established in the action.
evidence must be clear and convincing.
It is an inference of the existence or non-existence of a fact
NOTE: Denial is a weak form of evidence, particularly when it which courts are permitted to draw from proof of other facts.
is not substantiated by clear and convincing evidence.
Q: Is presumption an evidence?
A notarized instrument enjoys the presumption of due
execution. Only a clear and convincing evidence to the A: No. They merely affect the burden of offering evidence.
contrary can overcome this presumption (Viaje v. Pamintel,
2006). NOTE: A presumption is an inference which is mandatory
unless rebutted.

NOTES ON EVIDENCE
Presumptions under the Rules of Court

Q: Differentiate inference from a presumption.
Q: What are the presumptions under the Rules of Court?
A:
INFERENCE PRESUMPTION A:
It is a factual conclusion that Mandated by law and can
rationally be drawn from establishes a legal relation 1. Conclusive or presumptions et de jure
other facts between or among the facts 2. Disputable or disputable presumptions or presumptions
One that is a result of the It is a conclusion which a rule juris tantum
reasoning process. It need directs shall be made from not have
a legal effect proof of certain facts because it is mandated by Q: When is a presumptive conclusive?
law.
A: When the presumption becomes irrebuttable upon the
Kinds of presumption presentation of the evidence and any evidence tending to
rebut the presumption is not admissible. This is a rule of
Q: What are the kinds of presumptions? substantive law.
A: It is an inference which the law makes so peremptory that it

will not allow them to be overturned by any contrary proof
1. Presumptions of law or presumption juris however strong.
a. Conclusive
b. Disputable Q: When is a presumption disputable or rebuttable?
2. Presumptions of fact or presumption hominis A: It may be contradicted or overcome by other evidence.

They are satisfactory if uncontradicted, but may be
Q: When is a presumption one of law? contradicted and overcome by other evidence.
A: It is an assumption which the law requires to be made

from a set of facts
Q: When is it one of fact?
A: When the assumption is made from the facts without any

direction or positive requirement of law.
Q: How would you categorize the presumption that an

accused is innocent until proven guilty?
A: Presumption of law. It is one embodied in the Constitution
Sec. 14 [2], Art. III of the Constitution
Q: What is the effect of a presumption?
A: A party in whose favor the legal presumption exists may rely

on and invoke such legal presumption to establish a fact in
issue. One need not introduce evidence to prove the fact for a
presumption is prima facie proof of the fact presumed.

NOTES ON EVIDENCE
Q: What if the evidence that rebuts the presumption is

NOTES ON EVIDENCE
introduced? 2. Intent, or at least expectation, that this conduct shall be

acted upon by, or at least influence, of the real facts
A: The force of the presumption disappears. 3. Knowledge, actual or constructive of the real facts
Conclusive presumptions under the Rules of Court (Rule Q: What are the elements in relation to the party claiming the
131) estoppel?
Sec. 2. Conclusive presumptions. The following are A:

instances of conclusive presumptions: 1. Lack of knowledge and of the means of knowledge of the
(a)Whenever a party has, by his own declaration, act, or truth as to the facts in question
omission, intentionally and deliberately led to another to 2. Reliance, in good faith, upon the conduct or statements of
believe a particular thing true, and to act upon such belief, he the party to be estopped
cannot, in any litigation arising out of such declaration, act or 3. Action or inaction based thereon of such character as to
omission, be permitted to falsify it: change the position or status of the party claiming the
(b)The tenant is not permitted to deny the title of his landlord estoppel, to his injury, detriment or prejudice (PNB v,
at the time of commencement of the relation of landlord and Palma, 2005).
tenant between them. (3a)
NOTE: In estoppel, it is important that the person invoking it
Q: What is the basis of the Conclusive presumptions under has been influenced or relied on the representations or
the Rules of Court? conduct of the person sought to be stopped (Kalalo v. Luz).
A: They are based on the doctrine of estoppel. Under this Q: What is the basis of the doctrine?
doctrine, the person making the representation cannot claim
benefit from the wrong he himself committed. A: It is based on the grounds of public policy, fair dealing, good
faith and justice, and its purpose is to forbid one to speak
Q: What is the common term for the first conclusive against his own act, representations, or commitments, to the
presumption? injury of one to whom they were directed and who reasonably
relied thereon (Harold v. Aliba, 2007).
A: Estoppel in pais or estoppel by conduct.
Disputable presumptions
Estoppel
Example: The presumption that official duty has been regularly
Q: What is estoppel? performed. This includes the presumptions of regularity of
service of summons.
A: It is an equitable principle rooted upon natural justice,
prevents persons from going back on their own acts and Q: Does the presumption that official duty has been regularly
representations, to the prejudice of others who have relied on performed applicable to a petition for a writ of amparo?
them.
A: No. Under Rule 17 of the Rule on the Writ of Amparo, the
The essential elements of Estoppel in pais may be considered respondent public official cannot invoke the presumption that
in relation to the party sought to be estopped, and in relation official duty has been regularly performed to evade
to the party invoking the estoppel in his favor. responsibility or liability.
Q: What are the essential elements of estoppel? NOTE: The presumption of innocence of the accused prevails
over the presumption that law enforcement agents were in the
A: regular performance of their duty.
1. Conduct amounting to false representation or
concealment of material facts; or at least calculated to Examples of Disputable presumptions
convey the impression that the facts are otherwise than,
and inconsistent with, those which the party 1. That a person is innocent of a crime or a wrong
subsequently attempts to assert; 2. That an unlawful act was done with unlawful intent
NOTES ON EVIDENCE
3. That a person intends the ordinary consequences of his

voluntary act
4. That a person takes ordinary care of his business
5. The evidence willfully suppresses would be adverse if
produced;
6. That money paid by one another was due to the latter;
7. That a thing delivered by one to another belonged to the
latter;

NOTES ON EVIDENCE
8. That an obligation delivered up to the debtor has been

NOTES ON EVIDENCE
paid;
9. That prior rents or installments had been paid when a The absentee shall not be considered dead for the purpose of opening his
succession till after an absence of ten years. If he disappeared after the age
receipt for the latter ones is produced
of seventy-five years, an absence of five years shall be sufficient in order that
10. That a person acting in a public office was regularly his succession may be opened.
appointed or elected to it;
11. That official duty has been regularly performed; The following shall be considered dead for all purposes including the division
12. That a court, or judge, acting as such, whether in the of the estate among the heirs:
Philippines or elsewhere, was acting in the lawful exercise
of jurisdiction; (1) A person on board a vessel lost during a sea voyage, or
an aircraft with is missing, who has not been heard of for four
13. That private transactions have been fair and regular; years since the loss of the vessel or aircraft;
14. That the ordinary course of business has been followed; (2) A member of the armed forces who has taken part in
15. That there was a sufficient consideration for a contract; ] armed hostilities, and has been missing for four years;
(3) A person who has been in danger of death under other
16. That a negotiable instrument was given or indorsed for a
circumstances and whose existence has not been known for four
sufficient consideration. years;
(4)If a married person has been absent for four consecutive years,
Disputable presumptions under Sec.3, Rule 131 the spouse present may contract a subsequent marriage if he or
she has well-founded belief that the absent spouse is already
death. In case of disappearance, where there is a danger of death
Sec. 3.Disputable presumptions. The following presumptions are the circumstances hereinabove provided, an absence of only two
satisfactory if uncontradicted, but may be contradicted and overcome by years shall be sufficient for the purpose of contracting a
other evidence: subsequent marriage. However, in any case, before marrying
again, the spouse present must institute a summary proceedings
(a)That a person is innocent of crime or wrong; as provided in the Family Code and in the rules for declaration of
(b)That an unlawful act was done with an unlawful intent; presumptive death of the absentee, without prejudice to the
(c)That a person intends the ordinary consequences of his voluntary act; effect of reappearance of the absent spouse.
(d)That a person takes ordinary care of his concerns;
(e)That evidence willfully suppressed would be adverse if produced; (x)That acquiescence resulted from a belief that the thing acquiesced in was
(f)That money paid by one to another was due to the latter; conformable to the law or fact;
(g)That a thing delivered by one to another belonged to the latter; (y)That things have happened according to the ordinary course of nature and
(h)That an obligation delivered up to the debtor has been paid; (i)That prior ordinary nature habits of life;
rents or installments had been paid when a receipt for the later one is (z)That persons acting as copartners have entered into a contract of
produced; copartneship;
(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
(aa)That a man and woman deporting themselves as husband and
which a person possess, or exercises acts of ownership over, are owned by
wife have entered into a lawful contract of marriage;
him;
(bb)That property acquired by a man and a woman who are
(k)That a person in possession of an order on himself for the payment of the
capacitated to marry each other and who live exclusively with
money, or the delivery of anything, has paid the money or delivered the thing
each other as husband and wife without the benefit of marriage
accordingly;
or under void marriage, has been obtained by their joint efforts,
(l)That a person acting in a public office was regularly appointed or elected
work or industry.
to it;
(cc)That in cases of cohabitation by a man and a woman who are
(m)That official duty has been regularly performed;
not capacitated to marry each other and who have acquire
(n)That a court, or judge acting as such, whether in the Philippines or
properly through their actual joint contribution of money,
elsewhere, was acting in the lawful exercise of jurisdiction;
property or industry, such contributions and their corresponding
(o)That all the matters within an issue raised in a case were laid before the
shares including joint deposits of money and evidences of credit
court and passed upon by it; and in like manner that all matters within an
are equal.chanrobles virtua law library
issue raised in a dispute submitted for arbitration were laid before the
(dd)That if the marriage is terminated and the mother contracted
arbitrators and passed upon by them;
another marriage within three hundred days after such
(p)That private transactions have been fair and regular;
termination of the former marriage, these rules shall govern in
(q)That the ordinary course of business has been followed;
the absence of proof to the contrary:
(r)That there was a sufficient consideration for a contract; (s)That a
(1) A child born before one hundred eighty days after the
negotiable instrument was given or indorsed for a sufficient consideration;
solemnization of the subsequent marriage is considered to have
(t)That an endorsement of negotiable instrument was made before the
been conceived during such marriage, even though it be born
instrument was overdue and at the place where the instrument is dated;
within the three hundred days after the termination of the former
(u)That a writing is truly dated;
marriage.
(v)That a letter duly directed and mailed was received in the regular course
(2) A child born after one hundred eighty days following
of the mail;
the celebration of the subsequent marriage is considered to have
(w)That after an absence of seven years, it being unknown whether or not
been conceived during such marriage, even though it be born
the absentee still lives, he is considered dead for all purposes, except for
within the three hundred days after the termination of the former
those of succession.
marriage.

NOTES ON EVIDENCE
(ee)That a thing once proved to exist continues as long as is Q: When does the presumption that evidence when willfully
usual with things of the nature; (ff)That
suppresses would be adverse if produced not apply?
the law has been obeyed;
(gg)That a printed or published book, purporting to be printed or
published by public authority, was so printed or published; A:
(hh)That a printed or published book, purporting contain reports 1. If the evidence is at the disposal of both parties;
of cases adjudged in tribunals of the country where the book is
published, contains correct reports of such cases; (ii)That a
2. If the suppression was not willful;
trustee or other person whose duty it was to convey real property 3. If it is merely corroborative or cumulative; and
to a particular person has actually conveyed it to him when such 4. If the suppression is an exercise of a privilege such as it is
presumption is necessary to perfect the title of such person or his covered by the privileged communication between
successor in interest;
(jj)That except for purposes of succession, when two persons
physician and patient.
perish in the same calamity, such as wreck, battle, or
conflagration, and it is not shown who died first, and there are no Intent is a state of mind, and is hidden from the judicial eye.
particular circumstances from which it can be inferred, the Courts are left to evaluate the overt acts, and on their basis to
survivorship is determined from the probabilities resulting from
the strength and the age of the sexes, according to the following form a conclusion as to the actors intentions. Accordingly,
rules: men intend the natural consequences of their voluntary acts
and that unlawful acts are done with unlawful intent.
1.If both were under the age of fifteen years, the older
is deemed to have survived;
A document acknowledged before a notary public enjoys the
2.If both were above the age sixty, the younger is
deemed to have survived; presumption of regularity. It is a prima facie evidence of the
3.If one is under fifteen and the other above sixty, the facts therein stated. Accordingly, titles in the name of a person,
former is deemed to have survived; having been registered under the Torrens system, are
4.If both be over fifteen and under sixty, and the sex generally a conclusive evidence of the ownership of the land
be different, the male is deemed to have survived, if
the sex be the same, the older; referred to therein and a strong presumption exists at the titles
5.If one be under fifteen or over sixty, and the other are regularly issued and valid (Medina v. Greenfield
between those ages, the latter is deemed to have Development Corporation, 443 SCRA 150).
survived.
(kk)That if there is a doubt, as between two or more persons who
are called to succeed each other, as to which of them died first, When a mail is sent by registered mail there exists a
whoever alleges the death of one prior to the other, shall prove presumption that is was received in the regular course of mail
the same; in the absence of proof, they shall be (Sec.3 (v), Rule 131). To raise the presumption, the following
considered to have died at the same time. (5a)
facts must be proven:
Presumption of innocence a. That the letter was properly addressed with postage
paid; and
The presumption of innocence is founded upon the first b. That it was mailed.
principles of justice. Its purpose is to balance the scales in what
could otherwise be an uneven contest between the lone Note: A direct denial of the receipt of the letter shifts the
individual pitted against the People and all the sources at their burden upon the party favored by the presumption to prove
command. The accused must be acquitted and set free if his that the mailed letter was indeed received by the addressee.
guilt cannot be proved beyond the whisper of a doubt.
Accordingly, conflicts in evidence must be resolved upon the Cawaling v. COMELEC, 368 SCRA 453
theory of innocence rather than upon a theory of guilt when it
is possible to do so (People v. Alvario, G.R. No. Every statute has in its favor the presumption of
120437). constitutionality which is rooted in the doctrine of separation
of powers which enjoins upon the 3 coordinate departments
People v. Mingming, G.R. No. 174195 of the Government a becoming courtesy for each others acts.
The grounds for nullity must be beyond reasonable doubt, for
This presumption is enjoyed by the accused until final to doubt is to sustain.
conviction and in this regard, the prosecutions case must rise
and fall on its own merits and cannot draw its strength from Bare allegations, when unsubstantiated by evidence,
the weakness of the defense. documentary or otherwise, are not equivalent proof under our
Rules of Court.

NOTES ON EVIDENCE
Article 164 of the Family Code is clear. A child who is conceived

or born during the marriage of his parents is legitimate. As a
guaranty in favor of the child and to protect his legitimacy
status, Art. 167 of the FC provides:
Article 167 of the Family Code
The child shall be considered legitimate although the mother

may have declared against its legitimacy or may have been
sentenced as an adultress.
The law requires that every reasonable presumption be made

in favor of legitimacy. It is grounded on the policy to protect
innocent offspring from the odium of illegitimacy.
Art. 213 of the Family Code (p. 442)
The so-called tender age presumption under Art. 213 of the FC

may be overcome only by compelling evidence of the mothers
unfitness.
Q: Under what instances is the mother presumed to be

unsuitable to have custody of her children?

NOTES ON EVIDENCE
A:
Art. 1602, NCC

NOTES ON EVIDENCE
A:
1. Neglect 1. When the price of a sale with right to repurchase is usually
2. Abandonment inadequate
3. Unemployment 2. When the vendor remains in possession as lessee or
4. Immorality otherwise
5. Habitual drunkineness 3. When upon or after the expiration of the right to
6. Drug addiction repurchase another instrument extending the period of
7. Maltreatment of a child redemption or granting a new period is executed
8. Insanity 4. When the purchaser retains for himself a part of the
9. Affliction with a communicable disease. purchase price
5. When the vendor binds himself to pay the taxes on the
Whoever alleges fraud or mistake in a transaction must prove thing sold
the same since it is presumed that a person ordinarily takes 6. In any other case where it may be fairly inferred that the
care of his concerns and private transactions have been fair real intention of the parties is that the transaction shall
and regular. Yet, in Article 1332 of the NCC, if mistake or fraud secure the payment of a debt or the performance of any
is alleged, and one of the parties is unable to read, or if the other obligation.
contract is in a language not understandable to him, the
person enforcing the contract must show that the terms therof Q: For the above presumptions to apply, what are the
have been fully explained to the former (Cayabyab v. requisites?
IAC, 232 SCRA 1).
A:
Article 1332 of the NCC 1. That the parties entered into a contract denominated as a
sale
Article 1381 (3) of the NCC 2. That their intention was to secure an existing debt by way
of mortgage.
Article 1387 of the NCC
NOTE: The rule is that he who alleges that a contract does not
Q: In what occasions will the law presume that there is fraud reflect the true intention of the parties thereto may prove the
of creditors? same by documentary or parol evidence.
A: The petitioner is burdened to prove, by clear and convincing

1. There is alienation of property by gratuitous title by the evidence, the terms of the writings, not by simple declarations
debtor who has not reserved sufficient property to pay his of the parties, but by proof of facts and circumstances,
debts contracted before such alienation inconsistent with the rule of absolute purchase, otherwise,
2. There is alienation of property by onerous title made by the solemnity of deeds would always be exposed to the
the debtor against whom some judgment has been slippery memory of witnesses.
rendered in any instance of some writ of attachment has
been issued. From the tenor of the law, the decision or Q: What is the reason behind the above rule?
attachment need not refer to the property alienated and
need not have been obtained by the party seeking A: The presumption is that the contract is what it purports to
rescission be; and to establish its character as a mortgage, the evidence
must be clear, unequivocal and convincing which reasons
Q: Is there a presumption of the compensability of an tending to show that the transaction was intended as a security
ailment? for debt; and thus to be a mortgage must be sufficient to satisfy
every reasonable mind without hesitation.
A: No.
If there is doubt as to the fact whether the transaction is in the
nature of a mortgage, the presumption, in order to avoid a
Q: When will the law presume the existence of an equitable
forfeiture is always in favor of a position to redeem, to
mortgage?
subserve abstract justice and avert injurious consequences.

NOTES ON EVIDENCE
Q: What is the presumption regarding judgment or final order

against a person rendered by tribunal of a foreign country
with jurisdiction to render said judgment or final order?

NOTES ON EVIDENCE
A: It is a presumptive evidence of a right as between the parties
Presumptions of Death

NOTES ON EVIDENCE
and their successors in interest. If the judgment is upon a shall not be considered dead if the purpose is the opening
specific thing, said judgment or final order is conclusive upon of his succession
the title to the thing. The presumptions are not, however, 3. Absence of 5 years- in relation to the immediately
irrefutable. preceding number, if the absentee disappeared after the
age of 75 years, his absence for 5 years is sufficient for the
Q: How may such judgment be repelled? purpose of opening his succession in which case, it is not
necessary to wait for the lapse of 10 years.
A: 4. Absence of 4 years- A person is deemed considered dead
1. Want of jurisdiction for all purposes even for the purpose of the division of his
2. Want of notice to the party estate among his heirs under certain extraordinary
3. Collusion circumstances after a relatively shorter time than any of
4. Fraud the above periods. In any of the following cases:
5. Clear mistake of law or fact
a. If the person on board a vessel lost during a sea
Q: What is the presumption among common carriers? voyage, or an aircraft with is missing, who has not
been heard of for four years since the loss of the
A: Common carriers are presumed to have been at fault or to vessel or aircraft;
have acted negligently, unless they prove that they observed b. If the person is a member of the armed forces who
extra-ordinary diligence as required by Art. 1733 of the NCC. has taken part in armed hostilities, and has been
missing for four years;
Q: What is the presumption in case a driver is found guilty of c. If the person who has been in danger of death under
reckless driving or violating traffic regulations at least twice other circumstances and whose existence has not
within the next preceding two months? been known for four years;
d. If the person is married and has been absent for four
A: It is presumed that a driver was negligent. consecutive years, the spouse present may contract a
subsequent marriage if he or she has well-founded
Q: What is the doctrine of res ipsa loquitur? belief that the absent spouse is already death. In case
of disappearance, where there is a danger of death
A: The doctrine establishes a presumption of negligence the circumstances hereinabove provided, an absence
against the defendant and furnishes a substitute for a specific of only two years shall be sufficient for the purpose of
proof of negligence. contracting a subsequent marriage. However, in any
case, before marrying again, the spouse present must
institute a summary proceedings as provided in the
Q: What are the four requisites for the doctrine of res ipsa
loquitur to apply? Family Code and in the rules for declaration of
presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent
A:
spouse.
1. The accident is of a kind which ordinarily does not occur in
the absence of someones negligence
Absence of presumption of legitimacy or illegitimacy
2. It is caused by an instrumentality within the exclusive
(Rule 131)
control of the defendant or defendants
3. The possibility of contributing conduct which would make
the plaintiff responsible is eliminated (Ramos v. CA, 321 Sec. 4.No presumption of legitimacy or illegitimacy. There
SCRA 584). is no presumption of legitimacy of a child born after three
hundred days following the dissolution of the marriage or the
separation of the spouses. Whoever alleges the legitimacy or
1. Absence of 7 years- if it is known whether or not the
illegitimacy of such child must prove his allegation. (6)
absentee is still alive, he is considered dead for all
purposes but not for the purpose of succession
2. Absence of 10 years- the absentee shall be considered
dead for the purpose of opening his succession only after
an absence of 10 years. Before the lapse of 10 years, he

NOTES ON EVIDENCE
The reason for sustaining or overruling an objection need not

be stated. However, if the objection is based on two or more
Chapter VII grounds, a ruling sustaining the objection on one or some of
OFFER OF EVIDENCE AND TRIAL OBJECTIONS (Rule 132) them must specify the ground or grounds relied
upon. (38a)
Sec. 34. Offer of evidence . The court shall cons ider no
evidence which has not been formally offered. The purpose Sec. 39.Striking out answer. Should a witness answer the
for which the evidence is offered must be specified. (35) question before the adverse party had the opportunity to
voice fully its objection to the same, and such objection is
Sec. 35.When to make offer. As regards the testimony of a found to be meritorious, the court shall sustain the objection
witness, the offer must be made at the time the witness is and order the answer given to be stricken off the record.
called to testify.
On proper motion, the court may also order the striking out
Documentary and object evidence shall be offered after the of answers which are incompetent, irrelevant, or otherwise
presentation of a partys testimonial evidence. Such offer improper. (n)
shall be done orally unless allowed by the court to be done
in writing. (n) Sec. 40.Tender of excluded evidence. If documents or
things offered in evidence are excluded by the court, the
Sec. 36.Objection. Objection to evidence offered orally offeror may have the same attached to or made part of the
must be made immediately after the offer is made. record. If the evidence excluded is oral, the offeror may state
for the record the name and other personal circumstances of
Objection to a question propounded in the course of the oral the witness and the substance of the
examination of a witness shall be made as soon as the proposed testimony. (n)
grounds therefor shall become reasonably apparent.
Importance of Offer of Evidence
An offer of evidence in writing shall be objected to within
three (3) days after notice of the unless a different period is Q: What is the importance of a formal offer of evidence?
allowed by the court.
A: It is important because without such offer, the court cannot
In any case, the grounds for the objections must be determine whether the evidence is admissible or not.
specified. (36a)
Yet, where the absence of an offer of a testimonial evidence
Sec. 37.When repetition of objection unnecessary. When it was not objected to as when the witness was cross-examined
becomes reasonably apparent in the course of the by the adverse party despite failure of counsel to make an offer
examination of a witness that the question being of the testimony of the witness, the court must consider the
propounded are of the same class as those to which objection testimony.
has been made, whether such objection was sustained or
overruled, it shall not be necessary to repeat the objection, it A document, or any article for that matter, is not evidence
being sufficient for the adverse party to record his continuing when it is simply marked for identification; it must be formally
objection to such class of questions. offered, and the opposing counsel given an opportunity to
(37a) prove or identify it. A formal offer is necessary since judges are
required to base their findings of fact and judgment only and
Sec. 38.Ruling. The ruling of the court must be given strictly upon the evidence offered by the parties at the trial.
immediately after the objection is made, unless the court
desires to take a reasonable time to inform itself on the Q: What is the distinction between the identification of
question presented; but the ruling shall always be made documentary evidence and its formal offer as an exhibit?
during the trial and at such time as will give the party against
whom it is made an opportunity to meet the situation A: The former is done in the course if the trial and is
presented by the ruling. accompanied by the marking of the evidence as an exhibit,
while the second is done only when the party rests its case/

NOTES ON EVIDENCE
Q: When is a formal offer of evidence not required?
A:
1. In a summary proceeding because it is a proceeding where
there is no fill-blown trial;
2. Documents judicially admitted or taken judicial notice of;
3. Documents, affidavits and depositions used in rendering a
summary judgment;
4. Documents or affidavits used in deciding quasi-judicial or
administrative cases;
5. Lost objects previously marked, identified, described in
the record, and testified by witness who had been subject
of cross-examination in respect to said objects.
People v. Matte
Q: What are the requirements for an evidence not formally

offered is allowable?
A:
1. The evidence must have been duly identified by testimony
duly recorded; and
2. The same must have been incorporated in the records of
the case.
People v. Libnao, G.R No. 136860
People v. Diaz

NOTES ON EVIDENCE
While under the Rules of Court, the court shall consider no

NOTES ON EVIDENCE
evidence which has not been formally offered, this is true only
when the failure to offer an evidence has been objected to. The The court shall consider the evidence solely for the purpose for
failure to object to the omission of the prosecutor and the which it is offered, not for any other purpose.
cross-examination of the witness by the adverse party, taken
together, constitute a waiver of the defect. Purpose of objections
Q: When is an evidence considered offered? Q: What is the purpose of objections?
A: As to when the offer f evidence is made depends upon the A:

nature of the evidence: 1. Objections are made to keep out inadmissible evidence
that would cause harm to a clients cause. The rules of
a. As regards the testimony of witness, the offer is made at evidence are not self-operating and hence, must be
the time the witness is called to testify (Sec. 35); invoked by way of an objection;
b. As regards documentary and object evidence, they are 2. Objections are interposed to protect the recordto
offered after the presentation of a partys testimonial present the issue of inadmissibility of the offered evidence
evidence. The offer is orally made unless allowed by the in a way that if the trial court rules erroneously, the error
court to be in writing (Sec. 35); can be relied upon as a ground for a future appeal;
3. Objections may be made to protect a witness from being
Hence, the presentation of a documentary or object evidence embarrassed on the stand or from being harassed by the
for marking and identification during the course of the trial is adverse counsel;
not the offer contemplated in the rules. Failure to object to the 4. Objections are interjected to expose the adversarys
evidence at this time should not be construed as a waiver of unfair tactics like his consistently asking obviously leading
the objection to the evidence. questions;
5. Objections may be made to give the trial court an
Macasiray v. People, 291 SCRA 154 opportunity to correct its own errors and at the same time
warn the court that a ruling adverse to the objector may
Q: When is an objection to a documentary evidence needed supply a reason to invoke a higher courts appellate
to be made? jurisdiction; and
6. Objections are made to avoid a waiver of the
A: Objections to a documentary evidence shall be made after inadmissibility of an otherwise inadmissible evidence.
it is offered and the offer of such evidence shall be made after
the presentation of a partys testimonial evidence. General and Specific Objections
A party is not deemed to have waived objection to admissibility An objection must point out the specific ground of the
of documents by his failure to object to the same when they objection, and if it does not do so, no error is committed in
were marked, identified and then introduced during the trial, overruling it.
because objection to documentary evidence must be made at
the time it is formally offered and not earlier. NOTE: The objection should be specific. Hence, an objector
must be explicit as to the legal ground he invokes. He cannot
The mere fact that a document is marked as an exhibit does simply manifest that he is interposing an objection. He has to
not mean that it has thereby already been offered as part of precisely state the exclusionary rule that would justify his
the evidence of a party. Yet, where the accused fails to object opposition to the proffered evidence.
to the admissibility of certain items during their formal offer,
he is deemed to have waived his right against their Q: Give examples of general objections.
admissibility.
A:
Q: How is an offer of evidence made? 1. Objection, the evidence is incompetent
2. Objection! Inadmissible!
A: When a party makes a formal offer of his evidence, he must 3. Objection: Incompetent, irrelevant, and immaterial
state the nature or substance of the evidence, and the 4. Objection: Improper.
specific purpose for which the evidence is offered.
NOTES ON EVIDENCE
Q: Why are they considered general?
A: They do not clearly indicate to the judge the ground upon

which the objections are predicated. They assign no grounds
to the objection.
FORMAL SUBSTANTIVE
One directed against the Objections made and
alleged defect in the directed against the very
formulation of the question. nature of the evidence, i.e., it
is inadmissible either because
it is irrelevant or incompetent
or both
Examples: Examples:
Ambiguous questions, Parol; not the best evidence,
leading and misleading hearsay privileged
questions, repetitious communication not
questions, multiple authenticated, opinion, res
questions, argumentative inter alios acta

NOTES ON EVIDENCE
NOTE: An objection that evidence is incompetent, irrelevant,
Formal and substantive objections

NOTES ON EVIDENCE
or immaterial is ordinarily regarded in most jurisdictions, in the

absence of any statutory provision to the contrary, as not Q: What is the earliest opportunity?
sufficiently definite to present any question for review.
A: The earliest opportunity depends on the manner the
Q: How should a specific objection be made? evidence is offered.
a. If the evidence is offered orally, objection to the evidence
A: The Rule does not provide for such. Practical reasons must be made immediately after the offer is made
however tell us that the objection must be specific enough to b. An objection to a question propounded in the course of
adequately inform the court the rule of evidence or the oral examination of the witness shall be made as soon
substantive law that authorizes the exclusion of the evidence. as the grounds therefor shall become reasonably present
c. An offer of evidence in writing shall be objected to within
Q: Give examples of specific objections? 3 days after notice of the offer unless a different period is
allowed by the court.
A:
1. Question calls for a hearsay answer NOTE: It is presumed that an objection to the evidence before
2. Witness cannot testify on a privileged communication it is offered is premature and no adverse inference may be had
3. The question calls for a conclusion against a party who does not object to the evidence before it
4. The question is beyond the scope of the direct is offered.
examination
5. Impeachment is improper Motion to strike
Q: Is the rule that general objection can never be allowed Q: What will the counsel do in case the witness is so quick to
absolute? answer even before the question is over?
A: No. The rule on specificity is dictated largely by the need to A: The counsel must nevertheless object, state his reason, and
allow the court to intelligently rule on the objection and give move to strike out the answer. This is a technique which the
the other party an opportunity to withdraw the evidence or to lawyer avails when he does not have the opportunity to object
correct an error in his presentation. before the witness responds.
There is no compelling or an absolute need to specify the Sec. 39, Rule 133
ground if the ground is for exclusion should have been obvious
to the judge or to counsel. There are cases where the Sec. 39. Striking out answer. Should a witness answer the
incompetency of the evidence is so palpable that a mere question before the adverse party had the opportunity to
general objection is deemed sufficient, and where the portion voice fully its objection to the same, and such objection is
of evidence objected to is clearly pointed out, and its illegality found to be meritorious, the court shall sustain the objection
is apparent on its face, then the objection must be allowed. 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
Q: Distinguish Formal and substantive objections. improper. (n)
A: Q: When should you use a motion to strike?
questions A:
1. When the answer is premature
Objections must be timely 2. When the answer of the witness is irrelevant, incompetent
or otherwise improper
Q: When should objections be made? 3. When the answer is unresponsive
4. When the witness becomes unavailable for
A: It should be timely. The objection must be made at the crossexamination through no fault of the cross-examining
earliest opportunity. party
NOTES ON EVIDENCE
5. When the testimony was allowed conditionally and the A: No. It does not also mean that the non-objecting party
condition for its admissibility was not fulfilled. waives his right to present controverting evidence. It only
waives objection of 2 matters:
If the answer to a question is damaging, then relief may be a. Relevance
obtained by a motion to strike. b. Competence of the evidence
Waiver of objections; Belated Objections Rule 128
Q: What is the nature of a waiver? Sec. 3. Admissibility of evidence- Evidence is admissible

when it is relevant to the issue and is not excluded by the
A: Waiver implies the existence of a right a claim, a privilege,
law or these rules
or something one is entitled to. It is by its nature a unilateral
act.
People v. Valero, 112 SCRA 661
Q: Does it have to be a positive act?
Admissibility of evidence should not be equated with weight of
evidence.
A: No. A waiver may result from failure to perform an act.
When the claim, or privilege is abandoned, repudiated,
renounced, or not asserted, there is a waiver. Q: Does the rule of waiver by failure to object applicable to
the admission of documentary evidence?
Applied to objections, there is a waiver there is failure to point
out some defect, irregularity, or wrong in the admission or A: Yes. Failure to object waives an objection that there was an
exclusion of evidence. Such failure may take various forms and irregularity in the taking of an affidavit or deposition, that the
may either be expressed or implied. document is not what it purports to be on its face, or that it is
not relevant.
Q: What if no objection is made to an otherwise inadmissible
evidence? Rulings on objections
A: The objection is deemed to have been waived by the party Q: When should the ruling of the court be given?
upon whom making the objection is incumbent.
A: Immediately after the objection is made except when the
Note that the right to object is merely a privilege which the court desires to take a reasonable time to inform itself on the
party may waive. Thus, once admitted, the testimony is in the question presented. However, the court must give its ruling
case for what it is worth, and the judge has no power to during the trial and at such time as will give a party an
disregard it for what it is worth, and the judge has no power to opportunity to meet the situation presented by the ruling.
disregard it for the sole reason that it could have been
excluded if objected to, nor can he strike it out on his own NOTE: Words like submitted or the objections are noted
motion (Marella v. Reyes. 12 Phil 1). are not appropriate rulings and neither sustains or overrules
the objections.
Extent of waiver for failure to object
Q: What do you mean by sustained?
Q: When an objection to evidence is deemed waived, what
A: The judge considers the question as improper and the
exactly does the non-objecting party waive?
witness will not be allowed to answer the question. This means
the exclusion of a testimonial evidence.
A: He waives objections to its admissibility. The evidence
becomes admissible but the waiver involves no admission that
Q: What do you mean by overruled?
the evidence possesses the weight attributed to it by the
offering party.
A: This means that for the court, the question is proper and the
witness will be allowed to answer.
Q: Is waiver an admission that the evidence is credible?

NOTES ON EVIDENCE
NOTE: The ruling sustaining the objection must specify the Rules of Court. The counsel shall state for the record the
ground or grounds relied upon. name and personal circumstances of the witness.
2. By using the question and answer form
Tender of excluded evidence (Offer of proof) (Rule 132)
NOTE: Whichever method is to be used lies in the discretion of
the trial court. Whichever method of tender is used, the
Sec. 40. Tender of excluded evidence. If documents or
advocate must see to it that the offer must be specific enough
things offered in evidence are excluded by the court, the to contain the facts and circumstances of the matter sought to
offeror may have the same attached to or made part of the be proved by the excluded evidence.
record. If the evidence excluded is oral, the offeror may state
for the record the name and other personal circumstances of Note that the first method has the advantage of brevity and
the witness and the substance of the efficiency but it does not create as clear a record as the second
proposed testimony. (n) method.
Q: Why make a tender of excluded evidence? Q: May an objection be interposed to the manner of tender
of excluded evidence?
A:
1. To allow the court to know the nature of the testimony A: The rules are silent on this issue. However, there is no
or the documentary evidence and convince the trial cogent reason to disallow the objection. If the document
judge to permit the evidence or testimony tendered is not described, or identified, its substance stated in
2. Even if he is not convinced to reverse his earlier ruling, vague and general terms or when the purpose for which it is
the tender is made to create and preserve a record for offered is not declared, then the evidence has to be objected
appeal to. If the testimony is in the form of conclusion, thus, it fails to
disclose sufficient information to enable the court and the
Q: How is the tender done? other party to determine its admissibility, the same may be the
target of an objection.
A: It depends. If documents or things offered in evidence are
excluded by the court, the offeror may have the same attached Q: Distinguish formal offer of evidence from offer of proof.
to or made part of the record. If the evidence excluded is oral,
the offeror may state for the record the name and other A:
personal circumstances of the witness and the substance of
the proposed testimony. Formal offer of evidence Offer of proof
Refers either to the offer of The process by which a the
NOTE: The offering counsel must produce, describe, identify testimony of a witness proponent of an excluded prior
the object or document and in case of the latter, to state the to the latters evidence tenders the same. if
contents of the document that is sought to be admitted where testimony, or the offer of the what has been excluded is
the substance of the same is not apparent on its face. Reading documentary and object testimonial
the substance of the document is an accepted way of stating evidence, the evidence after a party has tender is
its contents for the record in states which recognize a tender. made by stating for presented his testimonial
A disclosure of the contents is necessary in order for the court the record the name and evidence other personal
to determine its competence and relevance. circumstances of the proposed witness and the
substance of his proposed testimony. If the
The next step is to state the purpose for which the object or evidence excluded is documentary or things,
document sought to be attached is offered, and to ask that it the offer of proof is made by having the same attached to or
be marked for identification and have it attached to the record. made a part of the record.
Q: What are the 2 traditional methods of making the tender?

--END
A:
1. Where the counsel tells the court what the proposed
testimony will be. This is the method prescribed in the

NOTES ON EVIDENCE
REFERENCE:
Riano, Willard B., EVIDENCE: The Bar Lecture Series, 2009, Rex
Book Store.


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NOTES ON EVIDENCE

Kenneth & King Hizon (3A) _____________________________________________

Faculty of Civil Law

Facultad de Derecho Civil 1

Note: Please refer to Rule 1, sec.4.

Facultad de Derecho Civil 2

Technical rules of procedure and evidence are not strictly

Facultad de Derecho Civil 3

applied and administrative due process cannot be fully

On the other hand, evidence is the medium or means by which

Falsus in Uno, Falsus in Omnibus

It means false in one thing, false in everything. It means that

Facultad de Derecho Civil 5

Yet, this is not an absolute rule of law and is in fact rarely

Facultad de Derecho Civil 6

to prevail, the defense must establish that was physically

Delay and initial reluctance in reporting a crime

Facultad de Derecho Civil 8

Delayed reporting by witnesses of what they know about the

Facultad de Derecho Civil 9

Facultad de Derecho Civil 10

Factum probandum refers to the elements of a cause of action

Q: What are the factum probandum in a suit for a collection

1. The existence of the debt of the defendant;

Facultad de Derecho Civil 11

Facultad de Derecho Civil 12

A: Q: Is the presentation of the informant in illegal drug cases

Facultad de Derecho Civil 13

of its contents, the same is considered as a documentary

Q: To be part of the res gestae, what is the requirement?

A: The statement should have been made by a person while a

Q: How about for a dying declaration?

Facultad de Derecho Civil 14

A: The statement should have been made while the declarant

Facultad de Derecho Civil 15

Q: What is conditional admissibility? Q: Does the doctrine of curative admissibility refer to a

Facultad de Derecho Civil 16

offered evidence was erroneously admitted. Common reason

Q: What is the reason for the limitation as to the application

Facultad de Derecho Civil 17

A: If no limitations are placed on the doctrine of curative

Facultad de Derecho Civil 18

Q: What is direct evidence? People v. Darilay (421 SCRA 45)

Facultad de Derecho Civil 19

Q: When is circumstantial evidence resorted to?

A: When to insist on direct testimony would ultimately lead to

People v. Ochate 385 SCRA 353

Q: In the appreciation of circumstantial evidence, what are

Facultad de Derecho Civil 20

Facultad de Derecho Civil 21

A: Note: It is usually different from that previously offered but

Q: What is the rule in the relaxation of the rules?

Facultad de Derecho Civil 23

Sec. 3.Admissibility of evidence. Evidence is admissible

Q: What elements should be present for an evidence to be

Q: What are the two axioms of admissibility by Wigmore?

NOTE: The first axiom is, in substance, the axiom of relevance

Facultad de Derecho Civil 24

Q: Will relevancy alone make the evidence admissible?

Facultad de Derecho Civil 25

2. the existence, contents, substance, purport, effect, or

A: A: Yes. An extension telephone line cannot be placed under