EVIDENCE: MIDTERM DISCUSSIONS / EH403 (2017-2018)
OBJECT EVIDENCE Or there was an issue about liquid poison, the murder weapon is
INTRODUCTION
In the beginning of the class, we already emphasized that evidence is
classified into various forms.
CLASSIFICATION OF EVIDENCE BASED ON FORM:
Insofar as classification of evidence based on form, we have three:
1. Object Evidence
2. Documentary Evidence
3. Testimonial Evidence
Take note: The distinctions, although referred to as based on form, it’s
not really the case. The classifications are not really based on form, to
be strict about it. The distinction really lies on the purpose for which the
evidence is being offered.
A clear thing, an object, can be documentary or can be testimonial
depending on the purpose for which it is offered.
So, to determine the classification of evidence, you look at the purpose
for which the evidence is offered; and this is critical because if you get
the wrong classification of evidence then you will get the wrong
exclusionary rules; because each kind of evidence is governed by
different exclusionary rules.
Example:
Like the rule on Best Evidence Rule (BER) – this is exclusively applied
only to Documentary Evidence. If the evidence is offered as object, you
don’t talk about BER. You apply the rule governing Object Evidence,
like the rule on authentication. The rule for authenticating object
evidence is widely different from the rule for authenticating
documentary [evidence].
So it’s really important to determine first the classification. As I’ve said,
the purpose is the critical point.
Example:
An OBJECT EVIDENCE is defined by the Rules as such kind of
evidence which is offered for the purpose of having the court examine
or observe the evidence. In other words, if the evidence is offered for
the purpose of having it examined or observed by the court, then
obviously, that evidence is offered as object.
And when the Rules says “examine or observe”, it simply means that
the evidence presented to the court to allow the court to observe it,
meaning the application of the four ranges of human faculties, like:
 Sense of sight – the object is presented for viewing; or
 Sense of hearing – you offer the evidence so that the court
may hear it; or
 Sense of taste – you want the court to taste it; or
 Sense of smell – you want the court to smell it
If that is the purpose, then obviously, that evidence is offered as object;
so you apply the rules corresponding to Object Evidence.
Example:
There is that recent incident involving Metro Ayala. There have been
rumors circulating that it was a case of arson. Suppose there was a
prosecution for arson now or there was a claim for Insurance and the
Insurance Company denied the claim because it was a case of arson.
The issue is whether or not it was a case of arson.
What could be your possible evidence there? If you’re the proponent
trying to prove that the origin of the fire was arson, you may present
some objects there that may smell like kerosene, recovered from the
site. You present it in Court and have the court smell it, have the judge
smell it. Your purpose there is for the Court to personally observe by
the Judge’s sense of smell. The presence of kerosene in the crime
scene would be an evidence of arson;
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poison. You want the court to taste it. This can kill and you present it to
court for the court to personally taste it – if it’s really poison. If she dies,
then that’s really poison!
Or if you want the court to appreciate the injuries suffered by the
complainant, then you present the complainant himself. The court will
personally examine the actual injuries suffered;
Or you want to prosecute somebody, like your husband having sex
with somebody else, you want the court to personally view how it was
done, you present the video. It’s for the court’s viewing;
Or you obtained a recording of a conversation between two persons
talking about a commission of a crime, you present the video
recording.
That’s object evidence, if that’s the purpose. If it’s not the
purpose, regardless of the form, it cannot be classified as object
evidence.
Example:
Like the human body – normally, a human body is an object. If your
purpose of offering the human body is to prove the existence of some
injury there, that would be for the court to view it, that’s object
evidence. But, depending on the purpose, you can convert it into
documentary.
Why? Because DOCUMENTARY EVIDENCE is defined under the
Rules as such kind of evidence material which contains any writings,
letters, words, numbers, figures, symbols or other forms of written
expressions offered to prove its contents.
Example:
So if the human body, contains some letters, word, figures, numbers,
symbols or modes of written expression and the purpose is to prove
the contents of the human body, meaning the physical body, that’s no
longer offered as object evidence, since the purpose is to prove the
contents of the human body. This would be a kind of documentary
evidence, thus, you apply the rules regarding documentary evidence.
Are you following this TV series, the Blindspot? This involves a lady
with tattoos in her body and each tattoo in her body symbolizes a sort
of a crime to solve. You should watch that show, very exciting. The
name of the lady there is Jane.
So if your purpose with the human body is to show how beautiful the
body of Jane is, that is object evidence; but if the purpose is to prove
the exact symbols of Jane, that’s another thing – documentary
purpose. The body is considered a document in that respect. So you
now apply the Best Evidence Rule, Parole Evidence Rule.
TESTIMONIAL EVIDENCE
Testimonial evidence is often misunderstood as just referring to the
oral testimony of the witness. This is wrong. Testimonial is NOT
synonymous to oral (even if you like the oral more than the testimonial
LOL). Testimonial could be in any form.
What makes a testimonial?
What makes a testimonial is that the evidence consists in the
reconstruction of past events made by a witness. And this
reconstruction of past events is done in any form of expression. It
could be in writing, orally, or body language. So when a deaf-mute
testifies, he/she reconstructs a past event.
Examples:
(a) If this deaf-mute testifies about a rape, he cannot orally testify but
he can testify in some other way, like through body language.
The testimony of the deaf-mute trying to reconstruct a past event
is testimonial in that respect and so apply the rules
corresponding to testimonial evidence.
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(b) If the testimony is done through an affidavit. An affidavit is a
testimonial in writing but it is not documentary evidence if it is
offered as the testimony of the witness trying to reconstruct a
past event. It is classified as testimonial even if it is reduced in a
piece of paper, with writings.
Important: Again, the purpose! By classifying the purpose, the other
party will then be able to interpose the correct or proper objections and
the court will make the proper ruling. It’s not uncommon that a
proponent presents some evidence and the adverse party objects to it
on another ground which is not applicable for the purpose for which it
is offered. That’s the result if the offer is not specified because
exclusionary rules correspond to certain forms of evidence.
CLASSIFICATION OF OBJECT EVIDENCE
Object evidence is further classified into three:
1. Real Object
2. Demonstrative Object
3. Scientific Evidence
REAL OBJECT EVIDENCE
Refers to the thing which is the very subject of the case or the very
thing which proves an issue in the case.
Example:
If it’s about the gun used in the killing, the real object there is the gun
itself which was used as a murder weapon or if the murder weapon is
the knife, the knife itself is the object evidence.
DEMONSTRATIVE EVIDENCE
You want the court to view your evidence, so the court will have a
personal observation of what the murder weapon looks like. When you
present it in Court – that’s object evidence.
But there are cases where you do not present the real object itself.
Instead, you may present its substitute or replica. You are now
referring to demonstrative evidence. The demonstrative evidence is the
replica or the substitute of the real evidence.
Examples:
(a) In the absence of the knife itself, you may present the
photograph of the knife. The knife itself is the real evidence,
while the photograph of the knife is the demonstrative
evidence of the real object evidence. This is allowable.
(b) If you want the injury found in the body of the rape victim
which is found in a sensitive part of her body presented, you
do not present as object evidence the naked body of the
rape victim, but you may present its corresponding
demonstrative evidence, the photograph of the injury. That’s
more acceptable.
AUTHENTICATION OF OBJECT EVIDENCE
For purposes of admissibility, whether it be object, real or
demonstrative evidence, they should undergo the process of
authentication. This is the more important part insofar as object
evidence is concerned.
Take note:
General Rule: No object evidence (real or demonstrative) is
admissible unless duly authenticated, among other requirements.
What are the requisites for admissibility whether real or
demonstrative?
1. It must be relevant. This is a requirement for all types of
evidence.
2. It must be authenticated.
3. It must be authenticated by a competent witness.
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4. It should be formally offered in evidence. This will be further
discussed when we take up Offer and Objection.
For now, we will focus on the requirement of authentication.
What is authentication?
Authentication simply refers to the process of establishing in court that
the evidence or the thing presented in court, is the very same thing that
the proponent claims it to be. Meaning, if the proponent claims it to be
such a thing, then the proponent should prove it that it is such a thing.
Illustration:
Just like when you are having Valentine’s date with someone and then
a friend comes to you, you happen to have a date in the same
restaurant. You introduce your date to your friend telling the latter that
your date is your wife, when she’s not really your wife, but just the
other “wife”.
So you see, there is no authentication there because the one you
introduced to your friend is not really the very one you claim her to be.
In other words, there must be a connection between the thing itself
presented in court and the thing that the proponent claims it to be.
Examples:
(a) Applying this in a murder case, if the proponent claims that
this is the knife used in the killing and recovered in the crime
scene, then the proponent should prove that exactly that
knife is the very same knife recovered from the crime scene.
(b) Or in a prosecution for drugs, if the prosecution claims that
the sachet of shabu presented in court is the very same
shabu recovered from the possession of the accused, then
the prosecution should precisely prove it. That’s the process
of authentication.
How is authentication done?
Authentication is done normally by applying the chain of custody rule.
CHAIN OF CUSTODY RULE
There is a gap from the time it is recovered up to the time the evidence
is presented in court. The court is not aware what happened to the
evidence in between or from the start. All the court is aware of is the
thing offered in court.
But is it really the very thing the proponent claims it to be? The court
does not know unless authentication is effectively and adequately
done.
Chain of custody
It simply means the proponent should establish the condition and the
circumstances of the evidence from the time it was recovered, from the
time it was turned over to the second custodian or possessor then to
the third, up to the time the evidence is presented in court. All these
links must be duly accounted for.
Theoretically, all these custodians and possessors must be able to
account how the evidence was being handled while it was in their
custody.
The purpose being to prove in court that in the interim, during the time
the evidence was in their respective custody or possession, there was
no chance or instance at all that somebody who is not authorized to
take custody of the evidence had access to the evidence as would
make tampering and contamination of the evidence possible.
Precisely, the purpose of chain of custody is to establish that the
evidentiary integrity of the evidence is preserved that it was the same
evidence first recovered until it was offered formally in court. No
chance at all of tampering, switching or contamination. Basically, the
essence of chain of custody.
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3 FORMS OF OBJECT EVIDENCE IN RELATION TO CHAIN OF 2. Testify the specific procedure undertaken to preserve
CUSTODY RULE: the integrity of the seized illegal drugs while it is in his
possession
1. Those easily identifiable or those which have unique
peculiarities. a) To establish that no one, who is not authorized,
took or had accessed to the seized illegal drugs
Example: while it was in his possession
Handgun with a serial number b) Establish the impossibility of tampering, switching,
contamination of the evidence
2. Objects which are non-identifiable by their nature but
can be made identifiable 3. Testify as to the condition of the drugs at the time of
turnover to the next custodian
Example:
A normal kitchen knife has no serial number; kitchen knives look There should be no gap or breach of the entire link. Otherwise, there
exactly the same as those belonging in the same class. This can be will be failure to comply chain of custody, consequently, failure to
made identifiable by placing some marks like initials or markings in the authenticate the evidence as there is no guarantee that the shabu
handle of the knife. By placing this distinguishing mark, the knife now seized is the same shabu presented.
which was normally unidentifiable becomes identifiable by the placing
of the mark, the object now is being segregated from the rest of the IF YOU’RE THE DEFENSE COUNSEL:
other knives of the same class
SEC. 21 of RA 9165. DEFENSE COUNSEL, THIS IS YOUR
3. Unidentifiable by their nature PROVISION. STUDY BY HEART

These are kinds of objects which are by nature, difficult to identify and
segregate from the rest or others of the same class.
Example:
How do you distinguish Mr. Carreon’s blood from Mr. Sanchez’ blood?
Semen of Mr. Carreon from Mr. Sanchez’? One sachet of shabu, how
do you distinguish it from another sachet of shabu? These are non-
distinguishable objects.
General rule (In proving the chain of custody requirement): It is not
required that all custodians and possessors of the object evidence
should testify in court.
But insofar as the so called non-identifiable objects (examples: blood,
liquid, shabu, poison) are concerned, the requirement is more
stringent, with specific reference with drug cases.
It is now indispensable that all the custodians of the seized illegal
drugs must be presented to account for the drugs while the seized
illegal drugs were under their custody.
DEFENSE: FAILURE OF AUTHENTICATION
1. Immediately upon seizure, seizing officer should mark
the seized illegal drug to identify each and every seized
illegal drug from the rest.
If police officer able to seize 10 sachet, each of them should be
marked e.g initials of the suspect (Luis W. Carreon - LWC 1, LWC 2,
LWC 3). This is a situation where an unidentifiable object becomes
identifiable.
How immediate is immediate?
No specific timeframe.
Jurisprudence: immediate means marking it at the place of seizure; if
you do it somewhere else, there might be problem with step no.1. The
marking is critical because this is the initial step of the entire chain
custody
2. After marking, there should be physical inventory

How do you authenticate seized illegal drugs by applying the There is this so called inventory form, the seizing
chain of custody requirement? officer/recorder/inventory officer will list the items seized corresponding
their signatures
Section 21 of RA 9165. That’s the rule on authentication. Sec. 21 and
the Implementing Rules. Pay more particular attention to this provision, Where should this be conducted?
its implementing rules and corresponding jurisprudence. Specially Jurisprudence: it depends:
those of you who want to venture into criminal law practice. There’s a
lot of cases to handle when you become lawyers specially when this a) If search warrant is existing – at the place of seizure, e.g.
current administration will continue this tokhang campaign. house of Mr. C, the inventory must be done in such house

RULE ON AUTHENTICATION OF SEIZED ILLEGAL DRUGS (Sec. b) If no warrant e.g. buy bust operation/entrapment and
21, RA 9165) search incidental of lawful arrest – seized illegal drugs
subject of buy bust (subject of the sale); seized illegal drugs
Fertile source: RA 9165 subject of the incidental search
 The importance of marking is paramount here
DO NOT BE AFRAID TO HANDLE DRUGS CASES (in the future)! because this will distinguish drugs seized from buy
bust or incidental search -- Sec. 5 or 11 RA 9165
What do you do?  If there is discrepancy in the marking, this will
result in the prosecution being unable to establish
CHAIN OF CUSTODY, HOW DO YOU ESTABLISH THIS? which drug is subject of sec 5 or 11.

IF YOU’RE THE PROSECUTOR: c) If the seizure of illegal drugs is not a result of search
Get the witness testify as to the following: warrant – inventory can be done in the nearest police
station or office of the seizing officer (less stringent)
1. Condition of the seized illegal drugs at the time of
seizure; What is the significance of the two?
The seizing officer could be holding office somewhere else, but if there
is police station near the place of seizure, do it in the nearest police
station!
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Example: PDEA has office in Cebu City but seizure took place in
Lapu-lapu, nearest police station in the police station. AS MUCH AS
PRACTICABLE, HOWEVER, do it in the place of seizure
PREVAILING DOCTRINE (no search warrant): Inventory should be
done at the place of seizure (case law). IF NOT PRACTICABLE apply
nearest police station or office, e.g. shootout of suspect because he
resisted
REQUIREMENT FOR INVENTORY:
WITNESSED by the following 3 persons:
1. Accused/representative; AND
2. Either Media representative OR DOJ representative; AND
3. ELECTED government official - NOT APPOINTED
Sec. 21 further requires that these witnesses should be made to sign
the inventory and they should be given copy of the inventory. Burden
of proof of compliance of such is on the police officer.
What would you do Mr. Police if the accused refused to sign then
of course police officer cannot compel him to sign?
Indicate there that the accused refused to sign
DEFENSE COUNSEL, what happens if your client signed the
inventory? How do you assail that?
Apply the rule that receipt is inadmissible without the assistance of
counsel. Normally in buy bust operation, no lawyer is present. So the
common scenario is that the accused signs the inventory without a
lawyer - because it would result in admission of liability which is
inadmissible in the context of miranda rights.
Among other defenses available, you can also attack the receipt
containing the signature of the client as inadmissible under the doctrine
that without the assistance of counsel, it is an admission of liability
because the receipt indicates that these particular items listed in the
inventory are seized from the possession of the suspect. So that’s
really an admission of guilt which is inadmissible in the context of
Miranda Rights.
Okay, what else is required under Sec. 21? These are the
requirements that you, as the prosecutor, need to establish. If you’re
the defense counsel, these are the requirements that you need to
destroy.
3. Taking of photographs of the seized items
Sec. 21 further requires the taking of photographs – photographs of the
seized items.
Regularly, if we look at the literal language of Sec. 21 and its
implementing rules, there is no requirement that the photographs
should include the accused, the witnesses, and everybody who was
present during the operation. What is only required is the taking of
photograph of the seized illegal drugs.
If you are the defense counsel, you can capitalize on a photograph
which does not show the presence of the witnesses.
Now normally, the prosecutor will object and the court will normally
sustain the objection and will say that it is not required that under the
Rules, the photograph of the suspect and the witnesses should also be
taken.
So how do you counter-argue if you are the defense counsel?
Again, you emphasize the purpose. “I’m not trying to prove your honor
that it is required. But I’m trying to prove that these witnesses were not
present during the inventory because had these witnesses had been
present, there is no plausible reason why the police officer would not
take photographs of them.”
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Make sure that the issue as to their presence can be avoided, because
the presence of witnesses is critical for purposes of Sec. 21 as they
are required to witness the actual inventory and not just signing.
What normally happens is that the inventory will contain the signatures
of the supposed witnesses but in actuality, they were not present
during the conduct of the inventory. It’s easy. The police, after the
seizure, will look for a Barangay Official and have him sign the
inventory. I’m not insinuating anything but it happens. So the actual
presence is critical and if you’re the defense counsel, you insist
“where’s the photograph of the witnesses present during the
inventory?” You handle the cross-examination well to create doubt as
to the compliance of Sec. 21, specifically the presence of the
witnesses.
Photographs are taken individually:
Now another thing that you can explore. Some of you will venture into
Criminal Law practice. It’s also possible that there are photographs of
the witnesses present in the place of operation or place of seizure but
the photographs are taken individually. In other words, there is one
photograph of the elected official, one photograph showing the DOJ or
media representative, and one photograph showing the accused.
Authentic but individually taken.
Take note that the rule Sec. 21 requires that there should be inventory
of all the seized illegal drugs and there can only be one inventory and
during the inventory, all these witnesses must be present all at the
same time. So a good point to explore by the defense counsel is “show
us the photograph showing all the witnesses present at the same time
because it’s possible that they were called at the operation one after
the other so one of them must not have actually witnessed the
inventory.” If there was anyone who witnessed, most probably it was
the one who first arrived in that place. Those who arrived later could
not have been witnesses because there was only one inventory.
The presence of witnesses
Now, let me go to another point. The most critical issue relating to Sec.
21 is on the presence of the witnesses.
When is the presence of the witnesses required?
You look at Sec. 21 and the implementing rules. What is only stated
there is they should be present during the inventory. But the inventory
happens after the actual seizure.
There is this one case which I think is critical and this answers the
question. I’m referring to People vs. Larry Mendoza.
PEOPLE vs. LARRY MENDOZA
It is in this case where the Supreme Court ruled that if we are to be
faithful with the purpose of Sec. 21 and its implementing rules, the
presence of the witnesses should be at the time of seizure, marking
and inventory. Take note. Seizure, immediate marking and inventory.
Take note: In all these critical stages, these witnesses should be
present. That’s the only way to achieve the purpose of Sec. 21. The
presence of the witnesses, obviously the purpose there is to prevent
planting of evidence, switching, tampering and contamination of
evidence.
If the presence of these witnesses is only required during the inventory
but not during the seizure and the marking, it cannot possibly achieve
the purpose of preventing tampering. To prevent the unscrupulous
operative planting of evidence before the marking, the witnesses would
need to ensure that these items listed in the inventory that they
witnessed were really recovered from the possession of the suspect.
Because what ordinarily happens is that all the evidence are already
placed on the table and then the operative would call the required
witnesses and the required witnesses would arrive at the crime scene,
everything is already placed on the table. It is then impossible for the
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witnesses to serve the purpose of ensuing the impossibility of
tampering.
So by authority of People vs. Larry Mendoza, as the defense counsel,
you can invoke that at the time of seizure there were no witnesses or
at the time of marking there were no witnesses. Presence of the
witnesses during the inventory, by virtue of the Mendoza doctrine, is
not enough.
SUBSTANTIAL COMPLIANCE RULE:
Although you are also aware of the rule which is also relied upon by
the prosecution: the substantial compliance rule. This is the doctrine
which favors the view that Sec. 21 may not be strictly observed.
Substantial compliance rule presupposes two conditions:
1. The police must admit failure to comply;
2. The police should offer justification for the noncompliance;
The prosecution must be able to prove that the integrity and the
evidentiary value of seized illegal drugs are preserved.
So if you are the prosecutor, you rely on the substantial compliance
rule, you have to establish the three conditions. Get the police to admit
that there was non-compliance but let them explain the noncompliance
and let them prove that the integrity and the evidentiary value, despite
the noncompliance, are reserved.
However, my experience is this: it really depends on the judge. Now,
we can hardly say which one is the prevailing doctrine. If you examine
all the cases decided, it really depends on the ponente.
Are these witnessed required to testify in court?
Sir: That is the prerogative of the prosecutor. So what the defense
counsel normally does is to call the elected official to testify.
Normally, he would say that “I was in my house when the police
knocked at my door and asked me to sign.” Normally, the prosecutor
would not call the elected official because that might prejudice the
case. As the defense counsel, capitalize this.
Take note:
General rule: Failure to authenticate object evidence renders the
object evidence inadmissible.
Exception: If the evidence is illegal drugs because by jurisprudence,
noncompliance of Sec. 21 does not resolve in the illegality of the
seizure nor in the inadmissibility of these illegal drugs.
Take note: So you cannot move for the suppression of the seized
illegal drugs on the ground of noncompliance of Sec. 21.
What normally happens here is proceed to trial and Sec. 21 is
breached, this will normally result in failure of prosecution to
authenticate and consequently, the prosecution fails to authenticate
the corpus delicti. Because the prosecution, for the violations of the
provisions of the Dangerous Drugs Law, should present in court the
drugs involved.
So if the drug itself is not physically offered in evidence, there cannot
be any successful prosecution for Sec. 5 and Sec. 11. That’s why it is
very important to establish the corpus delicti, meaning the drug itself.
And if there is failure to comply with Sec. 21, the rule on authentication,
the result there is that there is no certainty that these drugs offered in
evidence presented physically are the very same illegal drugs allegedly
recovered from the suspect. Therefore, due to reasonable doubt, there
is acquittal. Absence of corpus delicti results in acquittal.
So the relevance of Sec. 21 – its absence or failure to authenticate
– refers to weight and sufficiency, not admissibility. So the usual
mode of motion to suppress evidence is not available in drugs cases.
Normally in cases other than drugs, if the evidence is illegally seized,
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like an unlicensed firearm illegally seized, you can file a motion to
suppress evidence.
You can always file a motion to suppress evidence illegally seized
under the Fruit of a Poisonous Tree Doctrine.
What happens then?
It becomes inadmissible. There can be no case, except if there are
other cases independent of the seized firearms, but normally, there is
none. With the suppression of the illegally seized firearms, the
prosecution cannot be expected to go forward with the case.
But this remedy (Motion to Suppress Evidence Illegally Seized) is not
available, insofar as illegal drugs cases because even if there is failure
to comply with Section 21, RA 9165, the court may not disallow the
admission of the seized illegal drug. The court will nonetheless admit
them. But in the end if the court is really convinced that the integrity is
compromised, the court will acquit the accused, not because the
seized illegal drugs were inadmissible but because of failure to
authentic that results failure to prove the corpus delicti.
The remedy available is either:
1. File a Demurrer to Evidence (After the prosecution has
presented its evidence and offered in evidence the seized illegal
drug) or;
2. Proceed to Trial and Present your own evidence.
After the prosecution shall have presented all its witnesses, it will be
required to offer formally the seized illegal drugs and the defense will
be required to file a comment or objection.
 But you cannot object. Consistent with the rule, the
defense may not object to admission of the seized illegal
drug on the ground of violation of Section 21 of RA 9165
because it is not a ground for inadmissibility.
 But in practice, you should still object to its admissibility, not
based on Section 21 of RA 9165, but based on the Fruit of a
Poisonous Tree Doctrine, especially in buy-bust operations.1
DEFENSES AVAILABLE FOR THE ACCUSED:
1. You should argue that there was no buy-bust.
If you can prove that there was really no buy-bust, then there was no
valid arrest and there was no valid seizure. And so, all evidence that
may have been obtained as a result of this illegal arrest are
inadmissible under the Fruit of a Poisonous Tree Doctrine.
2. Failure to comply with the requirements of Section 21 of
RA 9165
Even if there was a buy-bust operation, the evidence are not sufficient
to establish the corpus delicti because of non-compliance with Section
21 of RA 9165.
For purposes of the Fruit of the Poisonous Tree Doctrine, how do
you destroy the entrapment theory of the prosecution?2
1
In Buy-bust operations, the theory of the police there is entrapment. Buy-bust is
a form of entrapment. It is basically the accused being caught in the act of
committing a crime, which then justifies a search incidental to a lawful
warrantless arrest. So the entire case of the prosecution hinges on the validity of
the alleged buy-bust.
2
The theory of the prosecution runs like this. A police agent pretended to be a
poseur buyer and he met up with the accused. He negotiated for the purchase of
Shabu. After consummation, the poseur buy would execute the signal and the
other members of the team would rush to the crime scene and effect arrest.
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Now the concept entrapment, which is the justification for buy-bust
operations, should be distinguished from instigation.
 Entrapment – is a valid form of police operation, catching
criminals.
 Instigation – is an absolutory cause. It’s a defense.
If you can prove entrapment, there is no liability. So it can be a defense
in a prosecution for illegal drugs if you are able to establish that it was
a case of instigation rather than of entrapment.
2 TESTS IN DETERMINING A VALID ENTRAPMENT:
As ruled in the case of People v. Golia or Dolia, the court uses 2 Test:
1. The Objective Test
Focuses on the act or conduct of the police officer (who transacted
with the suspect)
2. The Subjective Test
Focuses on the act or conduct of the suspect.
AS TO THE SUBJECTIVE TEST:
If you’re the prosecutor, how do you establish compliance with
the subjective test? What’s the element of entrapment? How is
this distinguished from instigation?
 In entrapment, the criminal intent originates from the
suspect. The police merely facilitates its commission.
 In instigation, the criminal intent originates from the police.
But because of inducement, the accused was lured into
committing the offense.
So critical there is the conduct of the accused, so that for purposes of
complying with the subjective test, the prosecution should be able to
establish the predisposition test. That is, that the accused, at the
time of operation or of his arrest, was already predisposed to commit
the crime.
How do you establish predisposition to crime?
Factors to consider:
a) Reputation of the suspect
b) Previous Records (Criminal Record)
c) Regularity of the act
Take note: Prior to buy-bust, there should be preliminary surveillance
to establish the predisposition on the part of the suspect.
On the part of the defense, how do you destroy the element of
predisposition?3
 The critical question to ask the police: Whether they knew
the suspect before the actual entrapment?
 Ask them about the specifics of the surveillance, as to how
did it go or what observation did they get.
AS TO THE OBJECTIVE TEST:
The test: Whether an innocent man would not give in to the
proposition of the police.
 Critical here is the specific act or conduct of the police in
order to induce the suspect into committing the crime.
Example:
A stranger comes to you and offers to buy shabu. (If you are an
innocent, normally you would not agree.) But here, you agreed to the
offer. That now indicates predisposition. As such, based on the factual
scenario of the transaction, it appears that the intent to commit the
3
In order for the police not to pass the Subjective Test in a valid entrapment
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crime really originated from the suspect. The police merely facilitated
the transaction.
On the other hand, if the police took every effort and used every form
of trickery or inducement to make the offer persuasive4 that normally
an innocent person would be tempted to agree, there is then failure to
pass the objective test. Meaning, the crime really originated from the
police.
So if you are the defense counsel, critical there to establish what the
police did in order to convince the suspect to entering into the
transaction.
They were tennis players in high school. So they already knew each
other for a long time. The court acquitted the accused because the
court said it’s really incredible for a suspect to transact illegal drugs
with a known policeman.
So I asked the policeman, “Did you use shabu before the operation?”
Unless he was the regular customer of my client, he would not sell
shabu to him, knowing him to be a police. So I asked him,
“Did you have a transaction before the alleged buy-bust?”
“No.”
“So the accused doesn’t know that you are a user of illegal drugs?”
“Of course I am not a user.”
Eventually the court said, there was no buy-bust. The story is not
credible. If you are a peddler of illegal drugs, you don’t sell to a known
policeman. That’s why the police usually would be in a bind. They
cannot use a poseur-buyer who is known to the suspect. So, their story
is, they were accompanied with someone whom they would call as
confidential informant who they claim to be familiar or known to the
suspect. The storyline there is it was the CI (confidential informant)
who referred him to the suspect. That’s the reason why the suspect,
even if in so far as they were concerned, they were strangers to each
other, but the presence of the CI made it comfortable for the suspect to
transact with the police.
It’s not necessary that the police would be the one to deal; yes, but
who else would? Theoretically there’s no need. In some operations,
the police would utilize a civilian asset or CI. The problem there is the
CI because he is confidential, he would not come forward and testify;
because he would be exposing himself and risking retaliation. So
normally, the CI will remain confidential all throughout.
So what happens there is that the transaction is entered into between
the accused and the CI. And the CI could not come forward to testify to
the transaction so there would be failure to substantiate the alleged
buy-bust. The usual would be that the police would see them from a
distance. But what’s the problem with that? Did you hear their
conversation? Of course they did not. So you did not know what they
were talking about. Normally, two people enter into an illegal
transaction like drugs, they will not do it in the presence of someone
they do not know; especially now. Peddlers now are becoming smart
and creative.
DEMONSTRATIVE OBJECT EVIDENCE
PHOTOGRAPHS
We also have the rule on demonstrative evidence. Photographs, the
most common form of demonstrative evidence, video recording; these
are the common form of demonstrative. They are not the real thing, but
the evidence depicts the real thing.
So a photograph depicts the thing or transaction shown in the photo.
Presenting the photograph is presenting and object evidence.
4
E.g If the offer to buy involves huge sums of money or through confidential
informants who claim to be regular customers of the accused.
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AUTHENTICATION OF DEMONTRATIVE EVIDENCE
How do you authenticate demonstrative evidence?
The one who took the photograph is not the only witness who can
authenticate a photograph as demonstrative evidence.
PEOPLE vs. SISON
In PP v. Sison it was not the photographer who authenticated the
photo. Somebody was present when the event depicted in the photo
transpired. He is considered a competent witness.
US vs. TATUM
In US v. Tatum, it was the saleslady not the operator of the regiscope
machine. The Supreme Court said it is not, although ideal, the
photographer or the operator be the one to authenticate but anybody
who is familiar with person, event, transaction printed in the photo can
authenticate.
The saleslady was familiar with the person depicted in the photo. She
testified that she was the one who dealt with the suspect.
SCIENTIFIC EVIDENCE
Now let’s go to scientific. What are the common forms of scientific
evidence? They are also classified as under object evidence, but they
have this unique characteristic.
They are collectively referred to as scientific evidence because this
type of evidence requires specific expertise and training, education and
experience on the witness authenticating the evidence.
What are the common scientific evidence in our jurisdiction?
1. DNA
2. Polygraph test
3. Paraffin test.
DNA TEST
DNA. I’d like you to take to heart the doctrine in Lucas v. Lucas.
Under the provisions on the rules on DNA. DNA testing can be
resorted to under three instances:
1. Before any action is filed.
Meaning, in preparation for an action, you can resort to DNA and on
the basis of the result of the DNA an action can be pursued. If this is
resorted to before any action, the proponent or the party seeking DNA
test may not ask for a court order.
2. During pendency of an action.
If there is a case already filed in court and a party seeks to avail of the
DNA test, the rule requires leave of court and notice to the other party.
The rules provide for certain conditions, e.g. availability of specimen.
Additional Requirement:
The proponent must be able establish the so-called prima facie
evidence of paternity before DNA test may be allowed by the Court
(Lucas vs. Lucas)
It is not enough to establish the requisites provided in the DNA rules
but in addition, the proponent should establish prima facie evidence of
paternity. Meaning, the DNA test applied for should be confirmatory to
the prima facie evidence of paternity.
The doctrine laid down in Lucas v. Lucas likened it to an application for
a search warrant. When the police applies for a search warrant, they
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are required to establish probable cause before the court may issue a
search warrant.
Applying this principle to DNA testing, by way of counter-part of
probable cause, prima facie evidence is required.
Example:
For example, Ms. Gonzaga was impregnated by Mr. Cepedoza and
Mr. Cepedoza denies it to death. So Ms. Gonzaga now files an action
to compel recognition of illegitimate filiation. In case Ms. Gonzaga
wants to avail of DNA testing, she should first establish prima facie
evidence.
How? She should establish their relationship, their sexual relations;
making the result of the DNA test, if positive, confirmatory.
The obvious rationale behind this rule is to avoid abuse and
harassment. Because some people resort to filing paternity suit to
harass people and milk money from the respondents.
Imagine Mr. Cepedoza swarmed with cases for recognition of
illegitimate filiation. People with reputation to protect would rather
silence their complainants for a price rather than go through the
scandal of a public trial. So, to avoid that, the SC said prima facie
evidence of paternity must first be established before DNA testing can
be applied.
3. Post-conviction DNA
This is something new. I am not aware of a case in the Philippines
were the convict was relieved as a result of post-conviction of DNA
unlike in the US.
This is available only when the decision of conviction is already final,
but the accused is still serving his sentence. Not when the accused
has already served his sentence or if the accused has been acquitted.
There’s no point in resorting to DNA in that instance.
Example:
So as an example, your client has convicted of rape, 30 years. On the
20th year, you are able to find DNA samples that you believe would
acquit your client, you can always resort to post conviction DNA. And if
the results vindicate your client, the court is required to release the
suspect and the accused is entitled to the remedy of habeas corpus if
the court refuses to relieve.
LIE DETECTOR/POLYGRAPH TEST
This is very common among politicians. They challenge each other to
take the test to see who among them is lying. This may serve some
political purpose, but evidence-wise, resort to lie detector test is not
admissible in our jurisdiction.
The prevailing doctrine on the matter is that, as of now, lie-detector test
has not been accepted in the scientific community as a reliable test of
determining truth or falsity.
So until then, lie detector test results is of no use in our jurisdiction.
Inadmissible as evidence
The result of a lie detector test is not admissible evidence-wise in our
jurisdiction. The prevailing doctrine is that this test is not accepted as
reliable by the scientific community. But it may have some other useful
purpose aside from evidentiary.
Atty’s Personal Experience on the practical use of lie detector
tests:
He was able to handle that case involving a sex video of two students
that circulated online (the infamous “USJR scandal”). According to his
client (the boy), he claimed that it was taken with consent. He saved it
in his phone, but during a certain night in a drinking session he lost his
phone. The person who picked it up was probably the one who
uploaded it.
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According to the law, the person liable should be the one who
uploaded. But since the NBI had no other lead except the identity of his
client, they tried to pursue him. But Atty. advised the client to remain
silent lest he utter something damning. So there was no other lead for
the NBI. So to put closure on the investigation, the NBI asked him
undergo a lie detector test. When he did, the result was negative (no
lying detected). This erased the suspicion of the NBI and he was
vindicated.
So what this illustrates is that there is really some practical purposes to
the lie detector test although it has no value evidence-wise.
PARAFFIN TEST
This one is commonly used to determine whether the test subject a
gun was fired or not, like in murder, homicide, and other similar crimes.
It determines the absence or presence of nitrates which is a common
ingredient of gunpowder.
The result of a paraffin test is corrobative.
The rule in this jurisdiction is that the result of a paraffin test is
corroborative. It cannot stand by itself on its own but may strengthen
your position depending on what you are trying to prove.
The Supreme Court explained that the science behind nitrates is that
they can be found not only in bullets or gunpowder but some other
sources like medicinal products, plants, and fertilizers. Thus, it does
not necessarily follow that the presence of nitrates is conclusive proof
that the accused fired the gun. But it is still corroborative which can be
taken together with other evidence.
On the other hand, if the result is negative, the same logic follows in
that it does not necessarily mean that the accused did not fire a gun
because nitrates can be wiped out by washing yourself properly. Or for
some reason another, no nitrates may be found on you because of
wind conditions when you fired the gun. So it is corroborative also in
strengthening the defense of the accused that he did not commit the
crime.
What is the evidentiary value of a drug test?
Sir: There is a provision in R.A. No. 9165 that calls for a drug test. This
is resorted to because there is usually no direct evidence of use. If the
test yields a positive result, it may be a basis of prosecution.
Also, based on my personal research, I discovered that
methamphetamine (a substance present in shabu) can also be found
in certain medicinal products (like inhalers). So it may be possible that
once you undergo a drug test, the substance may be found in your
body since you used such medicinal products.
DOCUMENTARY EVIDENCE
What is a “document”?
For the purposes of the Rules, it is any writing or material containing
letters, words, figures, words, numbers, symbols and other forms of
written expression offered as proof of its contents.
“Proof of its contents”
This is the most important part of the definition, because if you don’t
offer a material to prove its contents it is not documentary evidence. It
is probably offered as object or even testimonial evidence.
Written expression
It could be symbols, words, or anything as long as it is a form of written
expression. For example, a book could be offered as documentary
evidence if the purpose is to prove its contents. But if it is offered to
prove the existence of the book or as an instrument of a crime, it is
object evidence since it is not offered as proof of its contents. It could
also be testimonial if the book contains the reconstruction of past
events by a witness and offered as such.
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In relation to documentary evidence, we have exclusionary rules that
govern it. The most common of which is the Best Evidence Rule.
BEST EVIDENCE RULE
It requires that when the contents of a document are subject of an
inquiry, the only acceptable evidence is the “original” document itself.
Thus, a copy or a testimony about such will not be admitted (subject to
exceptions).
Rationale for the Rule:
HEIRS OF PRODON vs. HEIRS OF ALVAREZ
In Heirs of Prodon, the Supreme Court explained that the reason
behind the rule is to avoid the “evils of transmission” and to avoid
fraud.
What does the court mean by “evils of transmission”?
The Court was referring to the fact that when a document is
reproduced or being “transmitted” to another copy, the “transmission”
may not be perfect or accurate. This was in reference to the olden
days when copying documents was done manually, such as doing it
word per word through a typewriter. So there is really a risk of wrong
transmission or error in the copying and copies are deemed unreliable
because of this possibility.
If the issue is about the contents of the document, the court should not
rely on that copy because such copy may not be reflective of the actual
contents due to the possibility of mistransmission.
More so if the contents of the document which are subject of the
inquiry, are being established by a witness. There is more risk of
mistransmission or error if the contents are being established by a
witness because the witness is testifying out of his memory, and
memory is proved to be treacherous.
The testimony of a witness is unreliable. To avoid this evil of
unreliability, to establish what really is the contents of the document,
the BER requires that the only acceptable evidence is the original
document, no other.
WHAT IS AN ORIGINAL DOCUMENT UNDER THE BER?
What is an “original” document?
Rule 140, Section 4. Original of document —
Three forms of “Original” document:
1. The original of the document is one the contents of which
are the subject of inquiry.
2. When a document is in two or more copies executed at or
about the same time, with identical contents, all such copies
are equally regarded as originals.
3. When an entry is repeated in the regular course of business,
one being copied from another at or near the time of the
transaction, all the entries are likewise equally regarded as
originals.
The original of the document is one the contents of which are the
subject of inquiry.
For purposes of the BER, it does not refer to the document first
produced; a photocopy may be original document.
The original nature of the document does not depend on its being the
first (1st) copy or produced document; it can be 2nd, 3rd or 10th
reproduction, so long as the contents are the very subject of inquiry.
Example:
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One Deed of Sale, first copy and signed by the parties. Then, this is
reproduced through a photocopying machine.
Suppose that 10th photocopy is altered and a suit is filed, where the
issue is about the contents of that document allegedly containing an
altered entry, even if it’s the 10th copy, because it is the very same
document the contents of which are the subject of inquiry, for purposes
of the BER, that 10th copy should be one presented; because that is
an original document.
When a document is in two or more copies executed at or about
the same time, with identical contents, all such copies are equally
regarded as originals.
Example:
Copies reproduced by using carbon sheets – common and still
practiced:
Official receipts (OR), they are produced in four (4) copies – the white,
the blue, the yellow and the pink. Under the definition of the 2nd form
of original document, all four (4) copies of the OR are original copies.
Thus, if there is dispute as to the contents of the receipt, any of the 4
can be presented without accounting for the other three (3), because
all of them are considered original.
PEOPLE vs. HON. TAN
Case in point is People vs. Hon. Tan, involving a prosecution for
falsification of official receipts. The prosecution sought the introduction
of the triplicate copies of the OR. The trial court excluded it under the
BER.
The SC said the original contemplated by the law could be either of the
4 copies, the first, duplicate, triplicate or quadruplicate. You don’t need
to account for the loss or unavailability of the other copies.
When an entry is repeated in the regular course of business, one
being copied from another at or near the time of the transaction,
all the entries are likewise equally regarded as originals.
Example:
Financial Records, Journals.
Businessmen usually prepare business records in 2 or 3 copies – one
for the BIR, another for the accountant, and one for the owner. Usually,
these books contain the same entries, the transactions relating to the
business.
Suppose they are issues in the contents in this book, the entries found
in the book kept by the accountant are as original as the entries found
in the book kept by BIR as well as the entries kept by owner.
When do we say that the contents of the document are the
subject of the inquiry?
Take note: Not all instances, where a document is offered as evidence
that calls of the application of BER. Just because your evidence may
consist of Deed of Sale or any form of writing, it does not necessarily
follow that you have to follow BER; because best evidence rules
applies only one the subject of the inquiry is the contents of the
documents.
This was answered in Consolidated Bank and Trust Corp. v. Del Monte
Motor Works Inc.
CONSOLIDATED BANK AND TRUST CORP. vs. DEL MONTE
MOTOR WORKS, INC.
SC held that the BER only applies in a situation where the subject of
the inquiry is the contents of the document. The documents are
deemed to be subject of the inquiry if there is dispute as to the
accuracy of its contents.
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In other words, if a party disputes the actual or correct terms and
conditions of the document, or any entries found in the document –
meaning, one party says one thing and the other says another, one
party says the Promissory Note (PN) says 1 million but the other only
500,000. Obviously, there is a dispute as to the actual amount as
reflected in the PN.
That’s a classic situation that calls for the application of the BER
because the question there is: What does PN contain – is it 500,000 or
is it 1 million? To resolve that question, the only allowable evidence is
the original PN.
But this is not the case in this case, because the defendants did not
dispute the accuracy of the entries in the PN. In fact, their only defense
is that they did not receive any consideration and that their involvement
in the transaction was that they were only officers of the corporation,
and therefore, should not be sued personally.
There is really no issue as to the accuracy of anything found in the PN,
and therefore, the SC said: there is no dispute as to accuracy, and
therefore, the subject of the inquiry does not relate to the contents of
the document; and therefore, its not a situation that calls for the
application of the BER, and therefore, it is not required that plaintiff
should present the original, photocopy is enough.
In fact, the SC said they never disputed the genuineness and due
execution of the PN; and by failing to deny such, they were deemed to
have admitted the accuracy of the contents.
Take note: The accuracy of the contents should be distinguished from
truth or falsity of the contents.
The BER relates to an issue of accuracy of the contents –
meaning, what is claimed by one party should the same as that stated
in the document. If the other party says it is not stated, because what is
stated is different, there is dispute as to the accuracy.
But if the issue is whether he received the 1 million or not, that is not
accuracy. The parties did not dispute, so there is not dispute.
Accuracy, meaning what is stated is what the parties claimed. But if
one party says: Yes, it is stated there that it is 1 million but I never
received the 1 million. That question now relates to truthfulness or
falsity of what is stated in the document. This is not the one
contemplated by the BER. So regardless of the truth or falsity of the
contents, so long as the parties did not dispute what really is found in
the document, the BER does not come into operation. This is the
doctrine enunciated in that case.
INSTANCES WHERE BER DOES NOT APPLY
We can better understand the Best Evidence Rule by understanding
what it is not, meaning, knowing the instances where the BER is
normally mistakenly applied, when these instances are not really
covered by the Rules.
What are these instances usually mistaken?
1. When the writing or material containing words, figures,
numbers, etc. are not offered to prove its contents
The whole concept of BER is premised on the rule that not all
instances where a document is involved requires the application of
BER. Only when the subject of the inquiry is the contents of the
document and it is offered to prove the contents of the document.
If offered for any other purpose, then that should raise red flags. Most
likely, it’s not covered by the BER. You don’t think about the
requirement of submitting the original document. Any form of
document, e.g. testimony of the witnesses or simply a photocopy of the
document involved would suffice the purpose for which it is being
offered.
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2. When the document is only collateral to the fact in issue
(COLLATERAL FACT RULE)
Collateral Fact Rule:
This contemplates of a situation which incidentally involves a
document where the facts sought to be established are not the
contents of the document. The existence of the document in the
dispute is only a collateral matter. That’s why it’s commonly referred to
as the Collateral Fact Rule.
The jurisprudential basis for this rule is Air France vs. Carrascoso.
AIR FRANCE vs. CARRASCOSO
Air France involves an action for damages arising from breach of
contract of carriage. Passenger was bumped off. He instituted an
action against the airline.
During the course of the testimony of the passenger-plaintiff, he
narrated the incident, specifically, he was narrating to the court his
altercation with one of the members of the crew. In the course of his
testimony, he made mention of the fact that in the course of their
altercation, another crew member heard about the altercation and
recorded the incident on his notebook.
The airline objected to the testimony of the plaintiff insofar as the
allegation that this altercation was heard and observed by the other
crew member and recorded the incident on his notebook. It was
argued that this incident can only be proved by presenting the
notebook, because the victim made mention of the notebook which
allegedly contained the report of the crew member.
The Supreme Court, addressing the issue of whether or not this is
covered by the BER, held that BER does not apply because the issue
is not about the contents of the notebook. The issue is the altercation
between the passenger-plaintiff and the crew member as a result of
the passenger being bumped off. There was no dispute at all as to
what the notebook contains.
And so, even without the presentation of the notebook itself, the fact of
the altercation, which was the basis of the complaint for damages
arising from the alleged bumping off of the passenger, can be proven
by the testimony of the witness without having to burden him to present
the notebook. The presence of the notebook is only a collateral
matter.
3. In a situation where the fact sought to be established
has its own existence independent from the document
although that fact may have been evidenced by the
document or such fact may have been reduced into
writing.
This means to say that such particular fact, although it can be proven
by document, but the document is not the only proof to prove its
existence. Any other evidence is admissible to prove such a fact,
because again, the fact has its existence independent from the
document.
Examples:
Fact of Death
Classic example is when the fact sought to be established is the fact
of death. The fact of death can be proven ideally by the presentation
of the death certificate. Disabuse your mind with the erroneous notion
that the only proof of death is the death certificate.
So, if you are the proponent and you want to establish the fact that
someone is dead and you don’t have the death certificate with you, you
can prove the fact by offering other evidence, e.g. testimony of a
witness. It may not be objected to under the BER because the fact of
death has its own existence independent from the death certificate.
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The crime involving a Bohol Municipal Mayor who is allegedly killed by
her own husband – the body was not recovered. Obviously there is no
death certificate there, because who would issue a death certificate
there without seeing the body of the victim? There is no death
certificate.
For one, the death can be proven by a testimony of a witness who saw
the killing;
Or if somebody testifies, “I’m personally aware that someone is dead.”
“How can you be sure he is dead?”
“Of course, I saw his head severed from his body!”
Is that proof enough of the fact of death? So, a witness comes forward
to the court and testify that “I was there during the killing. I saw the
husband shot the victim twice in the head. I was even the one who
disposed of the body.” That’s proof of death.
So, the testimony of the witness as the fact may not be objected to
under the BER in the guise of presenting the death certificate itself;
because as I’ve said, the fact of death can be proven by any evidence
other than the death certificate.
Marriage
Another example is marriage. You want to establish marriage, it’s not
the only evidence although ideally marriage certificate is the best
evidence; but it’s not the only available evidence. Just because you
can’t present the marriage certificate, it doesn’t mean marriage cannot
be established.
So, instead of presenting the marriage contract, you can present the
testimony of the solemnizing officer, your ninongs, ninangs, your
bridesmaids. They can competently attest to the fact of marriage, and
their testimony cannot be objected to under the BER in the guise of
demanding the presentation of the marriage certificate.
In short, this is not covered because there was no issue as to the
wordings, the terms and the contents of the marriage contract; except
however if the issue is about the contents.
4. When the party admits the genuineness and due
execution of the document.
As demonstrated in the case of Consolidated Bank and Trust
Company vs. Del Monte Motor Works.
CONSOLIDATED BANK vs. DEL MONTE MOTOR WORKS
If the party admits, expressly or impliedly, the genuineness and due
execution of the document, it means to say that he did not dispute the
accuracy of the wordings, the terms and the contents of the document.
So, it does not require the application of the BER.
So, the presentation of the photocopy without accounting to the original
may suffice in proving the existence of the loan.
5. When the adverse party against whom the evidence is
offered fails to object; there is waiver on the part of the
adverse party.
So, as is true to any other exclusionary rule, the Best Evidence Rule is
not a self-executing exclusionary rule. It must be invoked by the party
entitled to it and it must be invoked at the proper time. Otherwise, the
document otherwise inadmissible under the Best Evidence Rule
becomes admissible.
You will understand that in the first, second, third and fourth instances,
the common denominator there is no dispute as to the accuracy as to
the wordings in there stipulated in the document.
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BER only establishes rule of preference
The BER is not about weight of evidence. It only establishes a rule of
preference. Meaning, it does not mean that the original is stronger than
the secondary. It simply means that if the original is available, present
the original, not the secondary.
But if the presentation of the secondary is allowed, the secondary is as
good as the original because they belong to the same category only
that the original is given first preference in the order of presentation.
But whether it is the original or the secondary, if it refers to weight and
sufficiency, it’s just the same.
Summary:
When BER does not apply:
1. When the writing or material containing words, figures, numbers,
etc. are not offered to prove its contents
2. When the document is only collateral to the fact in issue
(COLLATERAL FACT RULE)
3. In a situation where the fact sought to be established has its own
existence independent from the document although that fact may
have been evidenced by the document or such fact may have
been reduced into writing.
4. When the party admits the genuineness and due execution of the
document.
5. When the adverse party against whom the evidence is offered
fails to object; there is waiver on the part of the adverse party.
EXCEPTIONS TO THE BER OR WHEN SECONDARY EVIDENCE IS
ADMISSIBLE
There are four exceptions under the rules where secondary evidence
is admissible. Take note, BER requires the presentation of the original
but under these exceptions, secondary is allowed.
This is referred to as the secondary evidence rule. You come across
the terms secondary evidence rule, this actually refers to the
exceptions to the BER.
1. When the original is lost, destroyed, or for any reason
unavailable without bad faith on the part of the offeror.
What are the instances which classify under “unavailable” or
“cannot be produced in court”?
These are instances when the original document is physically not
susceptible to transportation as to bringing the original to the court.
Examples:
Writing on the wall
A disputed document or writing consists of a wall, a concrete wall
containing words, letters, symbols, or other modes of written
expressions. The parties are disputing over the accuracy of this writing.
So this calls for the application of the BER. The BER stipulates that
you have to present to the court the original so the court will see the
disputed document itself. The wall now becomes a document for the
purpose of the BER.
But given the physical nature of the document, you cannot possibly
bring it to court so you may resort to secondary.
What are your possible secondary evidence? A photograph of the wall
containing the disputed writings and submit the photograph instead or
better still, ask for ocular inspection. If Muhammed cannot go to the
mountain, let the mountain go to Muhammed. Ask the court to go to
the site and view the wall containing the disputed writings.
Writing or document that cannot be brought into court for reason
of public policy
The writing or original document for some public policy consideration,
like morality consideration, may not be brought to display in the court.
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Like if the disputed writing is found in the human body, sensitive part of
the human body.
You cannot bring the person himself whose body contains the disputed
writings. You cannot ask him to stand naked before the court so the
court will examine the writings on the body. So for public policy
considerations, it cannot be done.
What you can do is present secondary evidence. Because this is a
situation where the original cannot be produced in court. What do you
do there? Photograph could be an option or testimony of witnesses
who may have seen the writings on the human body because
testimony of a witness is a secondary evidence. The court will be so
glad to conduct an ocular inspection, and that’s what is exactly
prohibited.
Important: It should not be with bad faith on the part of the offerer. In
other words, the loss, destruction, loss or unavailability of the original
should not be due to causes attributable to the proponent.
REQUISITES FOR SECONDARY EVIDENCE TO BE ALLOWED
UNDER THE FIRST EXCEPTION:
Now, what do you do if the original is lost, destroyed or for any
reason not available?
There are requisites for the presentation of your secondary evidence.
Take note: The presentation of your secondary evidence does not
come as an automatic remedy. There are requisites to comply for your
secondary evidence to be allowed insofar as the first exception is
concerned:
a) Establish the existence and due execution of the
original
You can only establish the fact of loss, if you prove the existence of the
original and its due execution.
b) The proponent should establish the fact that the original
is destroyed or lost or unavailable
c) Establish the contents of the lost original
How? Secondary evidence rule comes onto play. You may now
present secondary evidence to prove the contents because that’s
exactly the purpose. The contents are disputed, the proponent now
presents evidence to prove its contents which the proponent claims
them to be.
Kinds of secondary evidence which the proponent may use to
prove the contents:
1) The proponent may present a copy (any copy of the
original)
2) Any recital of the contents found in another authentic
writing.
This refers to an authentic writing or record which contains the recital
of the contents of the original document which is now lost.
Example:
You purchased a piece of land from the seller. Normally, you ask the
title to be transferred to your name. At the office of the RD, for the
transfer of name to take place, the deed of sale, which is the basis of
the transfer, must be submitted to the RD. One of the practices of the
RD is to annotate the contents of the writing on the copy of the title
available in their position. That’s the recital of the contents of the
original document. It’s not the document itself. The record refers to the
title of the property.
That is the recital of the contents of the original of the document. It is
not the document itself. It is the title, the annotation bears the recital of
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the deed of sale. In the absence of deed of sale, now prove the title
certificate bearing the recital of the document.
That is the 2nd form of a secondary evidence. It may be admissible to
prove the contents of a lost deed of sale.
3) In the absence of any record/copy, you may now present
a witness.
He shall testify as to the contents of the documents original of which is
no longer available. He will testify from his memory that at one time he
had the opportunity of taking possession of the document and to his
recollection that document contains this and that.
Case law: the order need not be followed:
a) Copy
b) Recital
c) Witnesses
Remember: Proof of execution, proof of fact of loss, proof of
contents
CITYBANK vs. TEODORO
The SC ruled that before a secondary evidence may be allowed in lieu
of the original under the first exception (lost, destroyed, unavailable),
there must be established that the proponent exerted reasonable effort
in locating or obtaining the original
In this case, the SC applied the BER and disallowed Citybank from
presenting photocopies of invoices which were presented to prove the
existence of the loan. This was an action to recover sums of money
representing purchases made by Teodoro. During the trial, Citybank
merely presented photocopies of invoices.
This was objected on the ground of BER and the Court sustained the
objection concluding that the Citybank failed to prove that it exerted
effort to locate the missing original invoices. Although it was
established that Citybank requested for the production of the original
invoices from the custodian, it was also equally established that
Citybank never made a follow-up.
TAKE NOTE OF THE REQUISITES FOR PRESENTATION OF
SECONDARY EVIDENCE INSOFAR AS THE FIRST EXCEPTION IS
CONCERNED.
Summary:
Requisites for presentation of Secondary Evidence insofar as the
first exception is concerned:
1. Establish the existence and due execution of the original (Proof
of execution)
2. Establish the fact that the original is destroyed or lost or
unavailable (Proof of loss)
3. Establish the contents of the lost original (Proof of contents)
DE VERA vs. AGUILAR
The SC discussed how to prove the requisites, how to prove the
genuineness and due execution of the document, the witnesses who
can prove the due execution of lost original, and how to prove the fact
of loss, possible witnesses who can competently testify as to these
facts.
2. When the original is in the custody of a person against
whom the document is offered who failed to produce it
in court despite reasonable notice.
What to do here if the document is important and in the
possession of the other party?
You resort to this exception.
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Note: Reasonable notice to other party to produce the original (sort of
DEMAND from the other party!)
If he refuses to produce such, resort to secondary evidence.
How should the proponent present the secondary evidence?
The proponent may now resort to the first exception. It will be
considered as lost or destroyed or unavailable. This is your
justification.
a) Prove its genuineness and due execution
b) Prove the fact also that the party failed to produce the
original document despite reasonable effort
c) Prove the contents - by copy, by recital, or by witness.
How do you serve the notice?
1. Through a motion during the hearing
Formally offer your evidence. You can always say that “we intend to
formally offer Exhibit A containing the photocopy of the Deed of Sale
but we believe that the original copy of the deed is with the defendant,
we request the defendant to produce in court the original copy of it”.
Either way, if he denies that he has it in his possession or refuses to
produce such copy, the motion justifies as reasonable notice.
EDSA SHANGRI LA vs. BF HOMES
The notice was done through a motion in the course of trial. SC said
there was reasonable notice, shangrila failed to produce the original,
therefore it was justified on the part of BF homes to present the
photocopies of the receipts or vouchers.
2. Request for a Subpoena Duces Tecum
Actually a court process; it will require the defendant to produce in
court the document. If defendant fails to comply with the subpoena for
some reasons, then that would justify the proponent to secondary
evidence.
3. Mode of discovery - motion for production of
documents, or physical examination/inspection (Rule 27
of ROC)
Note: Despite these processes, the other party still failed to produce
the document, consider such original document as lost, destroyed, or
unavailable pursuant to the first exception.
Despite resulting to this remedy and the adverse party fails to or is
unable to produce the original – which is then considered lost or
destroyed – go back to the 1st exception.
Take note: The adverse party, who refused or failed to produce the
original despite service of reasonable notice, cannot belatedly come
forward and present the original to defeat the secondary evidence that
has already been presented by the proponent. This is based on the
principle of estoppel. The adverse party was already given sufficient
notice and yet he failed to comply with the notice. He is now estopped
in presenting the original.
3. When the original consists of numerous accounts or
other documents which cannot be examined in court
without great loss of time and the fact sought to be
established from them is only the general result of the
whole.
You may happen to prosecute a case or defend a case where your
documentary evidence consists of numerous records. This is usual in
cases involving estafa.
Example:
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A bank sued its employee for estafa. To steal money, the bank
employee falsified accounts or records or bank transactions for the last
5 years. This involves numerous accounts. Under this exception, the
proponent may not present all the original accounts.
The presentation of all numerous records may be dispensed with and
instead, just present a summary of all the entries generated from the
individual numerous accounts. This is usually done by presenting a
summary report like an auditor’s report showing summary of the
findings based on the individual numerous accounts or records.
So instead of presenting numerous accounts or records you may now
just present the few pages of the auditor’s report – the purpose of
which is to establish the general result of all the numerous accounts or
records.
For purposes of the best evidence rule, the auditor’s or the
accountant’s report is the original, without presenting the individual
numerous or voluminous records. This is for practicality purposes.
COMPANIA MARITIMA vs. ALLIED FREE WORKERS
As a requisite, the records and accounts should be made accessible to
the adverse party so that the correctness of the summary may be
tested on cross-examination.
The adverse party cannot be expected to conduct an intelligent cross
examination with a witness using only that summary. Although these
individual numerous records need not be presented in court, access
must be given. The proponent must establish that the adverse party
was given the opportunity to examine the numerous records.
Without proof of giving him access, there may not be enough
compliance for the requisite of presentation of the secondary evidence.
4. When the original is a public record in the custody of a
public officer or is recorded in a public office.
Unless he is ordered by the court through a corresponding subpoena,
the custodian of any public record is not required to take out from his
office the original or official document that is a public record.
This is why the proponent will just secure a certified copy of the
original. The custodian will have to certify that the copy is a faithful
representation of the original, which is in the possession of the
custodian. That is enough to establish the contents of the document.
The certified true copy will then be considered as an original.
5. When the purpose of the evidence is to prove facts
extraneous to the contents of the document
The purpose is not the contents but facts or matters extraneous. As
such, if the purpose is to prove existence, issuance or delivery, these
are matter extraneous. Meaning, they have nothing to do with the
contents. This is not covered by the best evidence rule.
PEOPLE vs. TANDOY
This case involved the prosecution for sale of marijuana. In the
prosecution for illegal sale of dangerous drugs, the prosecution should
establish the elements of the sale. One of the elements is the
consideration, which in this case was a P10 paper bill. During trial, the
prosecutor presented a photocopy of the P10 bill, not the original. So
what was offered in evidence was just a photocopy of the marked
money. The accused objected to the admission of the photocopy and
argued that there being no proof of consideration, then there cannot be
any successful prosecution of illegal sale of marijuana.
But the Supreme Court said, the purpose of presenting the photocopy
of the P10 bill was simply to prove the existence of the marked money.
There is no dispute at all as to the contents of the marked money. So
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obviously it was not offered to prove the contents but rather, it was
merely offered to prove the fact of existence. The Best Evidence Rule
does not apply.
ARCEO vs. PEOPLE
This case is about a prosecution for BP 22. During trial, the
prosecution presented a photocopy of the check. This was objected to
under the Best Evidence Rule. But the Supreme Court said, the
purpose of presenting the photocopy of the check is just to prove the
fact of its issuance. It was not offered to prove its contents because
there was dispute as to the contents of the check. Nobody raised
inaccuracy in the contents. So it was offered merely to prove that the
accused issued the check. True enough, for purposes of prosecution
under BP 22, the gravamen of the offense is the mere issuance of the
check. So proof of issuance is enough. As such, it is not covered under
the Best Evidence Rule.
US vs. MEYERS
A prosecution for subornation to perjury. The prosecution was trying to
establish the fact of perjury being committed by the witness in the
course of the Senate investigation. The witness there made
inconsistent statements amounting to perjury. In the prosecution for
subornation to perjury, one of the requisites is to establish first that
someone committed perjury.
Summary:
Exceptions to the BER (Secondary Evidence Rule):
1. When the original is lost, destroyed, or for any reason unavailable
without bad faith on the part of the offeror.
2. When the original is in the custody of a person against whom the
document is offered who failed to produce it in court despite
reasonable notice.
3. When the original consists of numerous accounts or other
documents which cannot be examined in court without great loss
of time and the fact sought to be established from them is only the
general result of the whole.
4. When the original is a public record in the custody of a public
officer or is recorded in a public office.
5. When the purpose of the evidence is to prove facts extraneous to
the contents of the document
DIFFERENCE BETWEEN WHEN BER DOES NOT APPLY AND THE
EXCEPTIONS TO THE RULE
Do not confuse these instances with the exceptions because there is a
distinction in the application of the rules.
When the Best Evidence Rule does not apply in a given situation, the
presentation of the original is not required because in the first place
BER does not apply.
Technically, there is no original document to speak of. Original
document is relevant only if the BER is applicable.
You have to distinguish if that particular problem falls under:
d) Instances when the BER does not apply
e) Instances when the exceptions to the BER applies i.e.
Secondary Evidence Rule – there is a need to present the
original
Example:
You offer a death certificate. If a fact sought to be established is death
and there is no dispute as to the contents of the death certificate, you
can offer it as evidence. There is no need to establish the existence of
the death certificate or its due execution.
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This is only required if this situation falls under exceptions to the Best
Evidence Rule. Meaning, there was an original death certificate, but
the death certificate was lost, destroyed or cannot be produced in
court. This is the Doctrine laid down in the case of Heirs of Prodon vs
Heirs of Alvarez.
Under the 1st exception, when the original is lost, destroyed or cannot
be produced, the proponent is allowed to present secondary evidence.
But before presenting the secondary evidence, the proponent
should establish the following conditions:
a) The existence and due execution of the original
b) The fact of loss
What the proponent should do is to prove the fact of loss of all the
original copies.
Example:
If there were 10 original copies, the proponent should establish that all
the 10 original copies have been lost. It’s not enough to prove that 1, 2
or some but not all copies of the originals were lost.
Take note: The proponent should account for the loss of all original
then existing but were lost. This is also the doctrine in the case of De
Vera vs. Aguilar.
DE VERA vs. AGUILAR
Now, the prosecution for subornation to perjury, one of the requisites to
establish there is that first, someone committed perjury, so that another
could be guilty of subornation.
Under our own criminal law, this is referred to as principal by
inducement. But in the US, that amounts to another crime, subornation
to perjury.
So in this case, somebody committed perjury allegedly at the
instigation of another. The instigator now is facing trial for subornation.
So during the course of the trial, the prosecution tries to establish that
the principal by direct participation committed perjury.
How does the prosecution try to prove perjury? They presented a
witness. The officer who presided over the Senate investigation during
which, the principal by direct participation made inconsistent perjurious
statements.
It was contended that the testimony of the hearing officer should not
have been allowed, the best evidence should have been the transcript
of stenographic notes covering the testimony of the principal by direct
participation.
But it was clarified in this case, US jurisprudence that the best
evidence rule does not apply given that the issue is not the contents of
the transcript, the issue is about the fact that somebody committed
inconsistent perjurious statements during the testimony before the
Senate. And this fact, while it can be established and proved by the
transcript, it can also be proved by testimony of witnesses.
So this again demonstrates the situation a certain fact sought to be
established has its own existence. Meaning it can be established
independently from a document although that fact may have been
evidenced by a document.
The custodian of the lost original can be a competent witness. De Vera
v. Aguilar.
For purposes of presenting a certified true copy of a public
record, do we need to present the custodian?
When it comes to public records, it is not required that the custodian
should be presented in court. The reason is obvious. This public
officials or officers have better things to do. What is only required is a
certified true copy. How do you do this? Just present someone who
obtained it from the office.
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Take Note: Public documents or record do not need authentication.
They are already self-authenticating documents. The certification of the
officer is enough to ensure the faithfulness of the certified true copy.
There is a presumption of regularity in the performance of official
functions.
As such, if you are a proponent of a public document, the identification
of the certified true copy can be done by yourself or by the person who
obtained it from the corresponding government office.
ELECTRONIC EVIDENCE RULE
Let’s go to electronic evidence rule.
In relation to the BER, electronic evidence rule has its counterpart
provision. Meaning, for purposes of the best evidence rule, electronic
evidence, particularly electronic documents are also covered although
with some variations.
If the document is not electronic, the applicable is the BER under
the Rules of Court.
If the evidence is electronic, it is both covered by the BER under the
Rules of Court as well as under the electronic evidence rule.
But apply the electronic evidence rule primarily, and the absence of
any specific provisions under EER, apply the Rules of Court in a
suppletory character.
But if the document is not electronic, forget about EER. There is no
way the EER will apply if the document is not electronic. That’s the first
premise of our discussion.
The EER in relation to the BER, if the subject of inquiry is the contents
of the documents, you present the original, even if the document is
electronic.
The problem there now is that the EER defines original differently from
that under the Rules of Court.
As it appears now, even copies under the EER are functional
equivalent of the originals. It is now difficult to differentiate what is
original and what is not. In fact, some would say under the EER all are
original, no more copies. But we will discuss that more thoroughly later.
WHAT IS AN ELECTRONIC DOCUMENT?
But first, what is an electronic document? It is defined under the EER.
It is important that the electronic document should undergo all its
processes electronically. From its creation, transmission, storage
and everything should be done electronically. So that, if there is
manual intervention in the process occurs, the document ceases to be
electronic, therefore, no longer governed by EER.
NPC vs. CODILLA
An action for damages arising from an accident involving a government
barge that rammed against a vessel, National Power Corp tower
barge.
In the course of the trial, NPC presented a bunch of documents
but are all photocopies.
The admission of this documentary evidence was objected to under
the BER because these are mere photocopies. But it was argued by
the government that under EER, photocopies are considered functional
equivalent of the original; and therefore admissible.
How will the SC address this issue? The SC first defined what an
electronic evidence is and it was decided that what makes it
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electronic is its being electronically processed. Everything should
be electronic.
Applying this definition, the SC said, looking at the subject photocopies
of the documentary evidence by NPC, it shows that these documents
were manually signed. These documents consisted of letters signed
manually. So the SC said, it’s obvious that these were not processed
electronically. There appears manual intervention consisting of the
manual signature of the writers of the letters.
These cannot be considered electronic because of the presence of
manual intervention, and since these are not electronic, the principle
that the copy is considered a functional equivalent of the original does
not apply.
Therefore apply BER under Rules of Court, which means that originals
should have been presented. And it is only when the original is lost or
cannot be accounted for that secondary evidence may be admissible.
In case of manual intervention, the printout/document will no longer be
considered an original electronic document and the ordinary Rules of
Court (ROC) will apply which will now require “laying the basis” before
secondary evidence (which is now the status of the document with
manual intervention) may be presented. So the import of the ruling is
that everything should be done electronically including the signature
(through an e-signature).
Under the Rule on Electronic Evidence (REE), there is this so-called
“functional equivalent” of the original which are actually copies. But for
the purposes of the REE they are considered originals which are
different from the ROC which only considers them as secondary
evidence.
Relevant provision:
RULE 4
BEST EVIDENCE RULE
SECTION 1. Original of an electronic document. – An electronic
document shall be regarded as the equivalent of an original document
under the Best Evidence Rule if it is a printout or output readable by
sight or other means, shown to reflect the data accurately.
SECTION 2. Copies as equivalent of the originals. – When a
document is in two or more copies executed at or about the same time
with identical contents, or is a counterpart produced by the same
impression as the original, or from the same matrix, or by mechanical
or electronic re-recording, or by chemical reproduction, or by other
equivalent techniques which is accurately reproduces the original, such
copies or duplicates shall be regarded as the equivalent of the original.
Notwithstanding the foregoing, copies or duplicates shall not be
admissible to the same extent as the original if:
(a) a genuine question is raised as to the authenticity of the original; or
(b) in the circumstances it would be unjust or inequitable to admit a
copy in lieu of the original.
-----------
So every faithful reproduction of the document, as long as they are
accurate, are considered functional equivalents of the original.
Take note: an original electronic document is different from functional
equivalents although they are both considered originals (have the
same evidentiary effect).
ORIGINAL ELECTRONIC DOCUMENT
The original electronic document under Section 1 refers to the
following:
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1. Digital form (Stored data state – e.g. .pdf .docx .mp4)
Example:
So an example is the digital form or file (.docx) of a love letter in your
computer. So how do you present this in court? Before the REE, you
had to present the evidence traditionally which requires you to bring
the computer to court. So you have to manually show it there, start up
your computer, and do an actual demonstration of opening the file.
2. Output readable by sight or other means
With the REE (Rules on Electronic Evidence), the traditional method is
no longer necessary because under the said rule, the proponent may
just do this by bringing a flash drive or any data storage device, then
open the file in another computer. Output readable by sight or other
means refers to the physical display in a screen or some other medium
besides the display from the original source.
This form or method is practical because otherwise, you will need to
resort to the traditional method mentioned above. This is also
considered an original electronic document.
3. Printout
A more common practice is utilizing a printout which is another form of
an original electronic document. So if you print the digital form or file,
the printout thereof is also considered an original electronic document
(although paper-based).
WHAT ARE CONSIDERED FUNCTIONAL EQUIVALENTS
And you may also have these original electronic documents
reproduced by the means and methods mentioned under Section 2
and they will be considered as functional equivalents. Here are some
examples:
1. Counterpart produced by the same impression as the
original, or from the same matrix, or by mechanical or
electronic re-recording, or by chemical reproduction, or
by other equivalent techniques which is accurately
reproduces the original (“Counterpart”)
Example:
Illustration (“electronic re-recording”): Suppose you compose a
document in your computer, so it’s in a digital form. You save it in your
USB and you give it to a friend who then downloads it in his computer.
That file your friend has is a reproduction of the original which is
considered a counterpart of the original and a functional equivalent.
2. When the original consists of two or more copies
executed at or about the same time with identical
contents (“Copies”)
Example:
You send an email to a specific friend but you cc: (electronic carbon
copy feature of the email) it to several other people. Suppose that the
document you sent contains libelous content, so the complainant goes
to court and files a case. So the prosecutor now has to prove the
libelous content of the document. A question will now arise on what
should be presented to the court, such as whether the original email
received by that specific friend is the only document considered as an
original.
Under the REE, the cc: emails received by the other recipients are
identical copies and are all functional equivalents of the original.
Hence, any of those can be presented in court to prove the libelous
content of the document without accounting for the others.
MCC INDUSTRIAL SALES vs. SSANYONG CORP.
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Ssanyong enunciated the rule that, for purposes of facsimile
transmission, you need to distinguish two kinds of facsimile
machine:
(1) Computer-generated fax machine – the resulting copy is
deemed electronic because the originating data is
electronically generated;
(2) Traditional fax machine – the resulting copy is deemed
ordinary paper-based because originating data is from a
similar ordinary paper-based document.
But the ruling in Ssanyong should be circumscribed to the peculiar
circumstances of the case. What is involved in Ssanyong is a facsimile
transmission or copy. But in so far as the reasoning that a document
originating from an ordinary paper-based document cannot be
electronic, it should not be applied in an absolute tenor. That principle
should be applied if the process involved facsimile transmission.
MALIKSI vs. COMELEC; CHATO vs. HRET
Consider also the ruling in the cases of Maliksi vs. Comelec and Chato
vs. HRET. Where, in both cases, the issue is on the nature of the print-
out of the ballots.
This involves the Precinct Count Optical Scanner (PCOS) machine –
the machine operates by scanning the ballots fed to it after the voters
manually fill-up the ballots by shading them. While the ballots are being
scanned, the data – referring to the shadings – are converted into
digital form and stored in the PCOS machine. Now, under the Comelec
rules, in case of election protest, where there is a need for a recount,
what would be considered and used, for purposes of the recount, is the
print out of the paper-based ballots stored in the PCOS.
What is the character/nature of the print out. It is obviously paper-
based document, although it came from the digitally stored data,
but originated from the paper-based ballot?
The SC, in these two cases, considered the print-out as an electronic
document.
How do we account the ruling in Ssanyong?
To reconcile these anomally, maybe we should be specific in our
position.
 If the process involves facsimile, then apply the doctrine in
Ssanyong;
 if the process is scanning, then we can make use the ruling
in Maliksi and Chato.
In relation also to these two controvertial rulings, pay particular
attention to Sec. 2 of Rule 4 Rules on Electronic Evidence. This
provision talks about the counter-part or copies of the original
electronic document, which, for purposes of the BER, are considered
functional equivalents of the original; meaning, treated as originals.
Rule 4, Section 2, REE
Copies as equivalent of the originals – When a document is in two
or more copies executed at or about the same time with identical
contents, or is a counterpart produced by the same impression as the
original, or from the same matrix, or by mechanical or electronic re-
recording, or by chemical reproduction, or by other equivalent
techniques which is accurately reproduces the original, such copies or
duplicates shall be regarded as the equivalent of the original.
This is more or less the same as our concept of original in so far as
paper-based under the Rules of Court.
 First form – the contents of which are the subject of the
inquiry.
 Second form - original consists of two or more copies
executed at or about the same time with identical contents.
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All of the copies are original.
What Sec. 2 of Rule 4 of REE means: Any reproduction of the
original by any of the means mentioned-above is regarded as
original.
Rule 4, Section 1, REE
Original of an electronic document – An electronic document shall be
regarded as the equivalent of an original document under the Best
Evidence Rule if it is a printout or output readable by sight or other
means, shown to reflect the data accurately.
Example:
A Printout: you compose a pleading in your computer, that’s electronic.
While the pleading is in its digital form is electronic.
Under Sec. 1 of Rule 4 of REE, the original of an electronic document
is a printout. A printout is an original; or output readable by sight or
other means, shown to reflect the data accurately.
ORIGINAL ELECTRONIC DOCUMENT UNDER SEC. 1
What is the original of an electronic document?
1. The electronic document/data in its digital form.
Example: The one stored in the computer.
2. A printout.
Example: There is an electronic document in the computer and you
print it out. The printout is an original electronic document.
3. Output readable by sight show to reflect the data
accurately.
Example: Document stored in your computer, the document being
displayed in the screen of your computer.
For purposes of presenting them in court for evidentiary purpose, the
proponent may resort to these originals – bring your computer with you
and exhibit to the court and have it examined; or display it in your
computer and have the court examined it; or bring to court a printout.
This is the original being contemplated in Sec. 1.
ORIGINAL ELECTRONIC DOCUMENT UNDER SEC. 2
What is being contemplated by Sec. 2 Rule 4 of REE?
1. When the original consists of two or more copies
executed at or about the same time with identical
contents.
Example:
a) Typical – you printout several copies. The printer has a
feature where you can choose the number of copies to print.
b) Email – You send an email to a particular addressee, you cc
to all others. This is executed at or about the same time with
identical contents. All these copies, including the CC’s, are
original.
2. Counterpart produced by the same impression as the
original, or from the same matrix, or by mechanical or
electronic re-recording, or by chemical reproduction, or
by other equivalent techniques which are accurately
reproduces the original.
Example:
Say you are required by your prof. to render an individual report, but
there is this one student who is so lazy and dependent on the
classmates work that he just asks them for their report - Mr. Cid is
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asking for a copy, so, Miss Gonzaga gets her USB, saves the report
into the USB from her computer and gave it to Mr. Cid. The latter, in
turn, uploads and saves the report to this computer. So Mr. Cid now is
able to have his own copy of the same report, shown to have the same
data accurately. The copy in the possession of Mr. Cid is a counterpart
or the reproduction, reproduced from the same matrix, from impression
as that of the original.
Movies; this can be reproduced electronically, mechanically using the
CD/DVD burner. For purposes of the BER, these DVD copies,
reproduced from same matrix, are original, even if they are counterfeit.
Take Note: The critical factor there is the reproduction should be
accurate.
The common practice is: print one copy from the printer and have it
reproduced using photocopying machine/Xerox into hundred copies.
How do we now treat the hundred copies reproduced using the
photocopying machine?
Under Sec. 2, this should be regarded as counter-parts or copies
functional equivalent of the original because these copies underwent
the same reproduction process or techniques that reflect the data
accurately.
How do we consider this in relation to Ssanyong?
Ssangyong is the same. It was a reproduction. The resulting copy
received by the recipient is the result of a reproducing technique,
electronic. So Ssanyong is antithetical to Sec. 2.
How do we reconcile this?
Safest approach there is be specific of the process.
REGARDING FACSIMILE
If it’s through ordinary facsimile or traditional fax, copies are not
original.
First Argument:
Your first argument there is by definition – Facsimile transmission is
excluded by the rules.
Telecopy, Telex or Facsimile transmission does not or cannot be
considered electronic under the first ground, by definition.
Second Argument:
Your second argument – here is the problem.
Under the Electronic Evidence Rule (EER), there is no distinction
between the first and the copies or counterparts. In law, they are all of
them are considered original. So any of them may be presented
without accounting for the other. That is the impact of this ruling.
Whereas the document is ordinary paper-based, a copy is a secondary
evidence. In other words, should first present the original before a copy
can be presented.
With the REE/EER, the 1st, which we commonly refer to as the
original, and the succeeding copies reproduced accurately are as good
as the original. There is no requirement that you should first account
for the loss or destruction or unavailability of the first printout. That’s
the purpose of the EER, to eliminate the distinction between the 1st
copy and succeeding copies; all are considered originals.
Now, under the REE, while it provides for a rule on BER, it does not
provided a rule for secondary evidence. The REE is silent on what to
do if the electronic evidence is lost, destroyed or cannot be produced.
It could be possible that your computer is destroyed and your printout
is lost, and contents of the document are in dispute. There is neither
original nor can there be a functional equivalent of the original
available to prove the contents. Can you now prove the contents by
presenting witnesses, testimony of witnesses, which under the BER
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governing ordinary paper-based documents, is acceptable, admissible
so long as the requisites, for the presentation of secondary evidence,
are duly proved. Just proved the requisites.
But obviously and constitutionally, under the Rules of Electronic
Evidence, no such provision is provided for.
Suppletory application of the Rules of Court vis-à-vis REE
Pay attention to that provision in the Rules of Electronic Evidence
which is expressly allow suppletory applications of the Rules of Court,
on matters not expressly specifically provided for by the REE.
Pursuant to the suppletory application rule, in case the original print out
or digital form is lost, destroyed or cannot be produced in court, and
there is a need to prove the contents of the document subject of
inquiry, secondary evidence may be allowed, applying by analogy or
suppletory the Rules under the Rules of Court; and therefore, you may
produce testimonies of witnesses to prove the contents of the disputed
electronic evidence.
Under Rule 4, Sec 2, if you affix you signature on any of those
photocopies, would it be deprived of its being original following
NPC vs. Codilla doctrine?
Sec. 2 presupposes the document is electronic. Sec 2, precisely,
governs a situation where an electronic document is reproduced; the
resulting reproduction is equally regarded as original. So that, if the
printout, which is electronic, but manually signed – affix your signature,
following NPC vs. Codilla, it ceases to be electronic; it becomes an
ordinary paper-based document. If you reproduce it, the resulting copy
will not be electronic because the original is not electronic.
Notice in both Codilla and Ssanyong, the issues there were whether
photocopy documents there involved are admissible, under the
functional equivalent of the original rule, because these documents in
both cases were photocopies. Objected to under the BER, the
proponent argued that it is admissible because they are regarded as
functional equivalent of the originals under the Rules of Electronic
Evidence. Obviously, saying that if it is a photocopy, it should be
regarded as equivalent to the original. A copy of an electronic
document is regarded as a functional equivalent to the original.
But the SC, in resolving this issue, instead of directly ruling whether
these are functional equivalents of the original, they had to first grapple
with issue of whether these documents are electronic; because if they
are not electronic, then there is no point in arguing whether these are
functional equivalents of the original, because the functional equivalent
of the original rule applies only if the document is in the first place
electronic. Functional equivalent rule does not apply if the document is
paper-based. As I said a copy is secondary and not as functional
equivalent.
The point here is be specific in the process involved. Sec. 2, Rule
4 of REE is a general rule that governs counter-parts or copies. If the
problem is specific, follow the ruling in those cases.
Scanning – ballots and election cases.
Facsimile
SC upheld the law with regard to automated election, where the
law specifically provided that the printout of the official ballots is
also an original. Would that be a strong argument to use, that in
the Chato and Maliksi case it was provided in their internal rules?
What is a digital signature?
Atty. T’s take is that the signature should be in digitally created, digital
in all its sense. The signature we do in LTO where we manually sign
and it is transformed electronically is not covered; the one appearing in
the license is still manually affixed.
*Class deliberation. So many people talking. I cannot.*
If print out a copy, a plain one with no signature, that’s original. If you
reproduce it without your signature, that falls under Sec. 2.
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If you print one copy then you signed it, invoking NPC vs. CODILLA,
that’s no longer electronic. You don’t apply Sec. 2, because in
CODILLA case, that’s exactly what happened – communications
signed by the sender, reproduced then presented in court. Objected to
under the BER. It was argued by the proponent that “No, these are
photocopies. These are functional equivalents of the original”, invoking
Sec. 2, Rule 4.
Before we talk about Sec. 2, let’s first determine whether these
documents are electronic by nature. Supreme Court said it’s not.
Sec. 2 presupposes that the original is electronic, because Sec. 2 are
the counterparts of the original electronic [document].
What is the extent of the manual intervention that would make the
character of the electronic document not electronic anymore?
So long it (manual intervention) is involved in the process.
The signature is not electronic anymore, and the definition of an
ELECTRONIC DOCUMENT is that which is –
a) Received
b) Retrieved
c) Stored
d) Transmitted
e) Produced
f) Processed
Electronically.
Under Sec. 2, “at or about the same time”, for example: What if I
printed it today and I photocopied it the next day? Is it still
considered an original?
It can even be considered under both!
So, imagine a document being copied so many times, undergoing one
process to another, all are considered original.
Example:
So, suppose you have a sex video reproduced at that time, circulating.
That’s why Sec. 2, general rule, you have to take into consideration the
decisions, i.e. NPC, Ssanyong, Maliksi.
Take note: If the document cannot be considered electronic, it now
becomes paper-based, e.g. digitally originated but signed – NPC says
it’s no longer electronic. So, you use now the Best Evidence Rule.
Original should first be presented. If the original is lost, destroyed or
cannot be produced, you have to testify the presentation of the copy,
which is the secondary.
Difference from the BER:
If it’s electronic and the first copy is lost, the printout is lost but before it
was lost, you were able to reproduce it through Xerox, then you can
present any photocopy without accounting for the original (the lost
printout). That’s the difference there.
But if it was printed out, you signed it, reproduced 200 copies but the
first printout that you signed was lost and it was the one disputed, you
apply the BER under the Rules of Court. You have to prove the
requisites before you can present any of those photocopies.
If you printed out 5 copies but manually signed only 1, is the
signed copy the only one deprived of its originality or is the other
4 still considered original?
So, not identical contents! First, decide which one is the subject of the
inquiry; but for purposes of Sec. 2, they cannot be considered identical
contents and they cannot even be considered counterparts because
not shown to be reproduced accurately. These are really 2 different
documents – one is paper-based, the other is electronic.
AUTHENTICATION OF ELECTRONIC DOCUMENTS
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The Rules on Electronic Evidence provides for special ways of
authentication of electronic evidence, be it electronic document,
electronic object or the so-called ephemeral electronic communication.
If your document is electronic, it falls under the definition of an
electronic document. One of the requirements for its admissibility is it
should be properly authenticated. The rules for authentication on paper
based documents are different from the rules on authenticating
electronic.
How do we authenticate electronic documents?5
Insofar, as electronic evidence rule, there are three ways to
authenticate electronic document.
1. By evidence that the electronic document is digitally
signed by the person who purportedly signed the
document.
Again, the importance of digital signature. So, if you have evidence
that the document is digitally signed, it is authentication.
2. By evidence that the appropriate security procedures or
devices prescribed by either law or the Supreme Court
having been applied to the document.
Not any just any security or devices, it must be something authorized
by Supreme Court or by law. As of today, I am not aware of any law or
such Circular rules promulgated by the SC. So our available modes of
authenticating electronic evidence is by either number 1 or number 3.
3. Any other means which establish the integrity and
reliability of the document to the satisfaction of the
Court.
So it is a fair game. Any means. The critical aspect there is its reliability
and integrity is established to the satisfaction of the Court.
AUTHENTICATION OF OBJECT ELECTRONIC EVIDENCE
Examples: audio, video recordings, photographs
How are these types of evidence authenticated?
The rules are specific:
It may be authenticated by:
a) One who took them – the photographer, videographer; or
b) Anyone who has personal knowledge thereof
PEOPLE v. NAVARO
FACTS:
This involved a reporter who was killed by a police officer. The
reporters went to a girly bar (hubu-hubu ba! lol). One of the reporters
started taking photographs of naked girls on the floor. They were
approached by a bouncer. A little fight ensued. The reporters went out
and proceeded to the police station to have the incident blottered.
Unknown to them, the desk officer on duty was maybe under the
pocket of the owner of the bar, he was so hostile toward the reporters.
A heated altercation ensued between the reporter and the police
officer. This resulted in a violent fight and the killing of one of the
reporters. The other reporter was able to record through a cellphone.
During the trial, the recorded altercation was presented and
authenticated by the other reporter who took it. The admission of the
5
For purposes of authentication, we will only discuss private electronic
documents. We will discuss that later on when we take up
authentication later.
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testimony of the reporter insofar as the recorded altercation is
concerned was objected to for lack of authentication. But the SC said,
he was the one who took the recording. SC laid down the rules on how
to authenticate a video or audio recording.
These are 3 requisites to authenticate an audio recording:
1. It should be authenticated by the one who took it or
someone who had personal knowledge of the recording
2. He must be able to identify the voice
3. He must testify that the voice captured in the recording
belongs to the person the voice is claimed to belong to
EPHEMERAL ELECTRONIC COMMUNICATION
Ephemeral, so not lasting communication. Just a one night stand.
Quicky quicky. No strings attached.
How does the rule define them?
The rules on Electronic Evidence, define ephemeral electronic
communication by enumeration. It says there, ephemeral electronic
communication refers to:
 Text messages
 Telephone conversations
 Chat sessions
 Video and audio streaming; or
 Other similar forms of electronic communication
This is the most important part: Evidence of which is not stored
or recorded.
In this kind of communication, if the evidence of this communication is
not recorded or it leaves nothing, no trace – that is considered
ephemeral electronic communication.
Because normally, typical situation, if a conversation between two
persons is critical to an issue in a case, there is no recording, that will
be testified of by a party to the conversation or someone who heard
the conversation. Good if there is a recording of that conversation. But
in most situations, these types of communications leave no trace, no
record.
There was this time when cellphone technology is still on its infancy
stage and text messages were not stored. The evidence of these
messages are not stored or recorded. If it’s not recorded, ephemeral
electronic communication. There is a way to authenticate by testimony
of the party to the communication or someone who has personal
knowledge of the communication.
What happens if the text message is recorded or the telephone
conversation is recorded?
If these communications are not stored or recorded, no evidence of
them is retained, apply the rule on ephemeral communication.
But if it happened that the communication is recorded, they now
become object or documentary. So, if it’s a telephone conversation and
recorded, you apply the rule in authenticating object evidence.
The parties privy and persons who have personal knowledge. You go
back to authenticating object evidence. It is a text message and
recorded and the purpose is to prove the contents of the message, it
becomes documentary. So you apply the rule in authenticating
documentary evidence.
The specific rule on authenticating text messages was applied in the
case of PEOPLE v. ENOJAS.
PEOPLE v. ENOJAS
FACTS:
This involves a robbery. One of the conspirators was a taxi driver.
When the robbers struck, the taxi driver left his cellphone in the taxi
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and the police got hold of the cellphone. The police tinkered with the
cellphone and discovered that the taxi driver was in communication
with other suspects. A policeman pretended to be the taxi driver and
communicated with the other suspects. So communication and
exchange of text messages ensued until the police was able to make
an entrapment and arrested the suspects. During the trial, one of the
critical pieces of evidence presented was the testimony of the police on
the text communication he had with the other suspect.
ISSUE:
Whether the police is a competent witness to authenticate the
message
HELD:
YES. Text messages could be authenticated by:
1. Parties to the communication; or
2. Any person who has personal knowledge of the
communication
The police was the one, although the phone did not belong to him,
pretended to be the owner, who was a party to the conversation and so
he was the person deemed to be the party to the subject
communication. That is how you authenticate text messages.
If the issue is admissibility, it is admissible because the rule allows a
party to the communication as a competent witness to authenticate
(referring to People vs. Enojas). But whether if it is credible, it is
another thing.
Screenshot of the text messages
Look into the purpose:
 If established to prove the existence of conversation, object;
 But if the proof of the contents of the screenshot is tried to
establish, documentary.
Take Note: it is not all the time you have to present the original. We
have this wrong notion that everytime a document is involved, best
evidence is invoked. It should not be.
PAROL EVIDENCE RULE
Do not confuse this with Best Evidence Rule
If the issue is what does the document contain? What does the
document say? Because one party may argue that the document
contains this one, but the other may argue that the document contains
another - apply BEST EVIDENCE RULE
If issue is what really is agreed upon by the parties because one party
says we agreed another thing, but the other says ‘no, we agreed with
this thing, look at the document’ - the other party presents evidence
that would prove his argument that their agreement is something that is
not embodied in the document. In this case, under the PER, it cannot
be done because it would vary the terms of their agreement.
What is its purpose?
To preserve the certainty of documents, its integrity, and protect its
liability. Also to avoid fraud. Premised on the universal truth that
human memory is treacherous. You better do it in writing, it is to forget.
PRINCIPLE: When the terms of an agreement are reduced into
writing, there can be, as between the parties and their successors-in-
interest, no evidence of such terms other than the written agreement
itself.
Because the writing is deemed to be the final repository of what they
agreed upon. During negotiation, the parties could talk about a lot of
things (accepts, rejects, offers, counteroffers, so many things). In the
end, those agreed upon by the parties are included in the writing and
those not agreed upon are deemed excluded. By signing the
agreement, they are estopped from disputing their agreement.
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BALUYUT vs. POBLETE
This involves an ordinary loan contract. Promissory notes were signed,
the PN says 1 month for the borrower to pay. When the 1-month
lapsed, the mortgage was foreclosed. When the borrower learned such
foreclosure, he filed an action for nullification of foreclosure as it was
premature because the agreement was the payment must be paid
within one year and not one month (agreement says ONLY 1 month)
SC: YOU CANNOT DO THAT. Parol evidence rule prohibits you from
presenting extraneous evidence that would vary, alter, or contradict the
terms of the written agreement. By introducing evidence that the
agreement on payment is 1 year, you are trying to vary the terms of the
written agreement which clearly says 1-month only.
According to him, the agreement was for him to pay the loan within one
year but the loan document says only one month. This testimony of the
borrower was objected to under the PER as it tends to prove that the
period of payment is one year which contradicts their contract which
provides that payment should be made within one month.
HELD:
Evidence of a prior or contemporaneous verbal agreement is generally
not admissible to vary, contradict or defeat the operation of a valid
contract. While parol evidence is admissible to explain the meaning of
written contracts, it cannot serve the purpose of incorporating into the
contract additional contemporaneous conditions which are not
mentioned at all in writing, unless there has been fraud or mistake.
YU TEK & CO. vs. GONZALES
FACTS:
Yu Tek & Co. entered into a contract with Mr. Basilio Gonzales
obligating Gonzales to deliver a certain quantity of sugar to Yu Tek &
Co. for a consideration and delivery must be made within the period of
three months. Gonzales received payment yet he failed to deliver the
sugar prompting Yu Tek & Co. to file a suit to recover the amount paid.
Gonzales testified that the filing of the case was still premature
because, according to him, the parties intended that the sugar was to
be secured from the crop which Gonzales raised on his plantation, and
that he was unable to fulfill the contract by reason of the almost total
failure of his crop. The trial court objected and refused to permit such
parol evidence.
ISSUE:
Whether the parol evidence of Gonzales should be sustained.
HELD:
NO. Gonzales undertook to deliver a specified quantity of sugar within
a specified time. The contract placed no restriction upon the defendant
in the matter of obtaining the sugar. The condition which Gonzales
seeks to add to the contract by parol evidence cannot be considered.
While parol evidence is admissible in a variety of ways to explain the
meaning of written contracts, it cannot serve the purpose of
incorporating into the contract additional contemporaneous conditions
which are not mentioned at all in the writing, unless there has been
fraud or mistake.
INSTANCES WHEN PER DOES NOT APPLY
A contract is based on the universal theory that a man’s word is his
bond. When parties come into an agreement, they are bound by their
contract. None of them can modify it at the prejudice of another. So
that’s the problem with entering into contracts – especially marriage
contracts (HAHA!).
Because of this underlying concept around which the PER revolves,
we need to remember these specific instances which are critical to the
PER.
2. When the document is not a contract
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3. If at least one of the parties to the suit is not a party to
the written agreement
Even if the party who invokes it is a party to the contract, but he
invokes it against a non-party, Parol Evidence Rule does not apply.
Who are deemed parties for purpose of the Parol Evidence Rule?
a) Those who are signatories to the contract
b) The successors-in-interest
They may not be the ones who signed the contract, their names may
not be found in the contract, but their rights are acquired or originated
from the parties to the contract.
Example:
If the parents are the parties to the contract, the Parol Evidence Rule
may be invoked by or against the children, being the successors-in-
interest.
c) A beneficiary of a stipulation pour autrui
This person is not a signatory but he stands to benefit out of the
contract. Under the Civil Code, he may have the right to enforce the
contract, he having an interest involved in the contract.
For purposes of the Parol Evidence Rule, he is deemed a party and
therefore, he can invoke it or the adverse party can invoke it against
him.
Case in Point: Heirs of Pacres v. Heirs of Ygona
d) A person whose claim is based on the written
agreement
He is not a party but he bases his claim on a contract.
e) A person who asserts a right originating from a written
agreement
HEIRS OF PACRES vs. HEIRS OF YGONA
FACTS:
Pacres is the owner of a property located in Pardo, Cebu City. He died
leaving 6 children. 4 out of the 6 children sold their respective shares
to Ygona. The 2 other children did not sold their shares and one of the
2 is Mario. Then, Mario died and Ygona died. The heirs of Mario
executed an action for specific performance against the heirs of
Ygona. They theorized that during the time the 4 children of the original
owner sold their respective shares to Ygona, the latter made some
undertaking, such as, she would pay the Estate Taxes due on the land,
she would cause the subdivision of the lot, the survey and the issuance
of individual titles, which included the titles covering the share of Mario
and the other sibling who did not sold his share.
During trial, the heirs of Mario tried to prove this alleged undertakings
made by Ygona. The heirs of Ygona objected because these alleged
undertakings or conditions could not be found on the four corners of
the Deed of Sale between the 4 children of the original owner and
Ygona. So, Parol Evidence Rule. Then, the heirs of Mario said that
they cannot be bound by the Parol Evidence Rule because they are
not parties to the Deed of Sale.
HELD:
However, the SC said that while Mario and his heirs were not parties to
the Deed of Sale, by filing the case for Specific Performance, they are
trying to enforce a right based on the alleged undertaking. Obviously,
these alleged undertaking by Ygona, made Mario and the other sibling
as beneficiaries of the agreement.
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They were not parties but they stood to benefit out of the alleged
undertakings.
So the SC said, being beneficiaries of a stipulation pour autrui, Mario
and his heirs (as successor-in-interest) were deemed to be parties to
the alleged agreement or undertaking and therefore, are bound by the
Parol Evidence Rule. As such they cannot, by Parol Evidence, prove
the existence of the alleged undertaking.
PURPOSE OF PER:
To prohibit the introduction of any extraneous evidence that would
establish the existence of other agreement that would, in turn, tend to
vary, alter or modify the terms of a written agreement.
Take Note: This agreement that would tend to vary, alter or modify the
terms must be an agreement that is prior or contemporaneous with the
written agreement.
3. When the prior or contemporaneous agreement is
independent from or not inconsistent with a written
agreement (Collateral Agreement Rule)
So that even if the evidence is extraneous, but it is offered to prove the
existence of other agreement or other terms, but that such other terms
were purportedly executed after the written agreement, this is not
covered by the PER.
Now even if such other term or agreement was executed prior or
contemporaneous with the written agreement, but such other term or
agreement does not vary, alter, modify or contradict, this is not covered
by the PER.
ROBLES vs. HERMANOS
This is the case were the SC enunciated the doctrine of Collateral
Agreement Rule
FACTS:
The hacienda used to be owned by Zacarias Robles Sr. When the
latter died, he was survived by his wife and 6 children, among which is
Zacarias Robles Jr. After the death of Zacarias Sr., the wife took over
the management of the hacienda as the administratrix of the estate. In
such capacity, she entered into a lease contract with Zacarias Jr over
the hacienda. Pursuant and as authorized by the terms of the lease
agreement, Zacarias Jr introduced some improvements to the
hacienda. He installed some farm equipments or otherwise improved
the structure and usefulness of the entire hacienda. The lease contract
between the estate of Zacarias Sr. and Zacarias Jr. was for 6 years. 4
years into that contract, Lizarraga Hermanos came forward and
expressed her interest to buy the hacienda. The problem however was
that Zacarias Jr still had 2 years unexpired portion of the existing lease
and he was unwilling to give up such unexpired portion
It was in this case that the PER prohibits the introduction of extraneous
evidence that would establish the existence of other terms or
agreement prior or contemporaneous to the agreement that would vary
the terms of the agreement.
So that even if such other terms was executed, prior or
contemporaneous with the written agreement, but such other terms or
agreement would not modify, alter, vary, or contradict the terms of the
written agreement, as when such other terms or agreement is
independent from or has nothing to do with the written agreement,
there is no conflict.
PER does not apply and therefore the parties allowed to prove the
existence of such other terms of agreement. The SC said, it is obvious
that the deed of sale involving the hacienda (referring to case
Zacharias Jr. case), only includes the properties that the siblings
(heirs) acquired by virtue of inheritance; meaning, the properties that
they inherited from their late parents. That’s the subject of the deed of
sale, the hacienda.
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But the contract, or the agreement between Zacharias Jr. and
Hermanos, in so far as the compensation, covers properties not
inherited by the heirs. These properties or improvements were owned
by Zacharias Jr. in his own right, not by virtue of succession. And so,
the SC finally ruled, that these alleged terms or agreement, was
independent from the agreement regarding the sale of the hacienda.
Because the sale of the hacienda, covers only properties left by the
deceased parents and inherited by the heirs acquired by them by virtue
of succession.
So if it is an independent contract or agreement, nothing to do with the
written agreement, the evil sought to be avoided by the rule does not
exist because it would not vary the terms of the written agreement; it
being totally independent from the written agreement.
The same principle was also applied in the spouses Amoncio v.
Benedicto.
AMONCIO vs. BENEDICTO
The SC said, other than the lease contract, they agreed upon other
things which was not included in the written agreement consisting of
the lease contract. So SC said, Mr. Benedicto cannot be prohibited to
introduce evidence of the entire transactions of the parties. Include the
written agreement relating to the construction.
More or less, cut from the same cloth with the earlier case of Lizaraga-
Hermanos.
Summary:
Instances when PER does not apply:
1. When the document is not a contract
2. If at least one of the parties to the suit is not a party to the written
agreement
3. When the prior or contemporaneous agreement is independent
from or not inconsistent with a written agreement (Collateral
Agreement Rule)
DIFFERENCE BETWEEN INSTANCES WHEN PER DOES NOT
APPLY AND EXCEPTIONS TO PER
Now these instances we earlier discussed are instances where PER
does not apply because they are not instances contemplated by the
rules.
We have to differentiate this with the cases considered by the rules as
exceptions to PER.
These cases are not really exceptions to PER to be strict about it – the
earlier cases discussed. The cases were the document involved is not
a contract, the case were the parties in the litigation are not parties to
the suit, and this collateral agreement rule.
These instances strictly are not exceptions to PER. They are simply
not covered by PER. But the rules provide for exceptions to PER.
Covered by PER, meaning that the introduction of extraneous
evidence is normally prohibited except that because of the exception, it
may now be allowed. So what are these?
A party may be allowed to present extraneous evidence that may
modify, explain or add to the terms of the written agreement if
that party raises an issue in the pleading the ff:
b. Intrinsic ambiguity, mistake, or imperfection in the written
agreement
c. Failure of the written agreement to express the true intent
and agreement of the parties
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d. Validity of the written agreement
e. Existence of such other terms or agreement executed by the
parties or successors-in-interest after the written agreement
If the problem falls under those instances not covered by PER,
because they are not the ones contemplated by the rule, the party may
present extraneous evidence without violating the prohibition even if
not raised in the pleading.
But if it falls under the exception, the party may only be allowed to
introduce extraneous evidence to modify, alter or contradict the terms
of the written agreement if that party pleads it as an issue in the
pleading in any of those exceptions.
The operative fact there is that the exception should be pleaded in the
pleadings. Meaning, it should be made as an issue in the pleading.
Otherwise, the exceptions cannot be invoked, PER prohibits the
introduction of the extraneous evidence. Let’s go to the first exception.
Intrinsic ambiguity as distinguished from extrinsic ambiguity, the
exception only covers intrinsic ambiguity or mistake in the written
agreement. If extrinsic, not the one allowed.
What is intrinsic ambiguity?
It is the mistake which cannot be corrected by examining the four
corners of the written agreement. It can only be ascertained by looking
at other evidence other than the face of the written agreement.
Case in point was the case of Palanca v. Wilson and Co. This
illustrates this principle of intrinsic ambiguity.
EXCEPTIONS TO PAROL EVIDENCE RULE
1. An intrinsic ambiguity, mistake or imperfection in the
written agreement
PALANCA vs. WILSON & CO.
(Intrinsic Ambiguity)
FACTS:
An old case, wherein Palanca and his company was engaged in the
business of distilling liquor (their flagship brand was “Kulafu”). To
increase their production, Palanca’s company entered into a contract
with Wilson & Co. for the purchase of a distilling apparatus. Their
contract, the distilling apparatus was said to have a “capacity of 6,000
liters/day".
However, when it was tested the apparatus was only able to process
6,000 liters/day of raw materials instead of the expectation of Palanca
that the apparatus will be able to produce 6,000 liters/day of finished
product. Wilson & Co. claimed, on the other hand, that the capacity
referred only to raw materials only. So there was an intrinsic ambiguity.
ISSUE:
What does “capacity of 6,000 liters/day” actually mean?
RULING:
The 6,000 liters/day capacity referred to the capacity to process raw
materials.
In this case, the Court needed to resort to extrinsic evidence to resolve
the issue. It referred to a dictionary in interpreting the true meaning of
“capacity” in the phrase. It further ruled that in business parlance and
common usage, “capacity of 6,000 liters/day” actually refers to raw
materials.
Secondly, it was established by evidence that the distilling apparatus
had the same specifications and market price as that of a distilling
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apparatus with 6,000 liters/day capacity to treat raw materials. So it
was way higher than that of an apparatus that can produce the finish
product with the same capacity. So the Court reasoned out that if what
was really meant was the latter apparatus, the price would have been
higher.
2. The failure of the written agreement to express the true
intent and agreement of the parties thereto
ENRIQUEZ vs. RAMOS
FACTS:
It was about a contract of sale involving 20 parcels of land. Ramos the
buyer could not pay the purchase price in full so they entered into a
real estate mortgage (REM) involving the same parcels of land
conditioned upon the payment of the remaining balance. When Ramos
failed to pay it, Enriquez sought to foreclose the mortgage. But Ramos
opposed it, contending that the proceedings are premature because
the payment of the remaining balance was conditioned upon the
construction of feeder roads in the lots that will provide access to the
high way since these lands were to be developed into subdivision lots.
Enriquez objected to this testimony or allegation under the Parol
Evidence Rule (PER) contending that this agreement regarding the
feeder roads cannot be found in their deed of sale.
ISSUE:
Whether evidence on the agreement of constructing feeder roads is
admissible.
RULING:
Yes. While the general rule is that parol evidence may not be resorted
to to vary or alter the terms of the written agreement, an exception to
this is when written agreement fails to express the true intention of the
parties and such is pleaded as an issue in the pleadings. Which
Ramos did in her Opposition to the foreclosure of the REM.
3. The validity of the written agreement
Take note: The operation of the PER is premised on the fact that the
written agreement itself is valid. So if the written agreement is claimed
to be invalid, then PER will not apply and parties may introduce
extrinsic evidence to prove or disprove its validity.
HEIRS OF URETA vs. HEIRS OF URETA
FACTS:
This involves the property of a certain Alfonso Ureta who had 14
children, one of them was Policronio who was a judge. So Policronio
advised Alfonso that in order to save on estate taxes, the latter could
make it appear that the property was already transferred to his children
in his lifetime. Alfonso heeded his advice and executed a fictitious
deed of conveyances to his children. Four of which were conveyed in
favor of Policronio. When Alfonso died, the administrator included in
the inventory those lands subject of the four deeds of conveyance.
Policronio later on also died, and his heirs also later tried to settle his
estate but they learned that the parcels of land were included in the
inventory of the properties of Alfonso. The Heirs of Policronio instituted
an action for recovery, invoking the deeds of conveyance.
During the trial, the Heirs of Alfonso tried to prove that while the deeds
of conveyance where indeed executed in favor of Policronio, all of
them were fictitious and without consideration. The evidence to this
effect were objected to by the Heirs of Policronio alleging that the
deeds do not reflect such an allegation and that admitting it will
undoubtedly vary the terms of the deeds.
ISSUE:
Whether the evidence regarding the fictitious nature of the deeds is
admissible.
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RULING:
Yes. The PER admits of an exception such as in the case at bar when
the validity of the written agreement itself is contested and the same is
pleaded as an issue. This was precisely done by the Heirs of Alfonso
who pleaded the issue of validity in their Answer. Upon being allowed
to prove the fictitious nature of the transaction, the Court ruled in favor
of the Heirs of Alfonso holding that the deeds were really fictitious.
The Court also said that the case could also be categorized under the
2nd exception (where the written agreement fails to reflect or express
the true intention of the parties) because the deeds of conveyance
made it appear that consideration was paid when the contrary was in
fact true. So the intention of the parties was not really a real sale but
only simulated it to avoid tax liabilities.
4. The existence of other terms agreed to by the parties or
their successors in interest after the execution of the
written agreement
CANUTO vs. MARIANO
FACTS:
This involved a contract of sale with right of repurchase. Canuto sold
the property to Mariano. After the sale and expecting her inability to
exercise her right to repurchase, she approached Mariano to ask for an
extension or grace period and it was granted. However, before the
expiration of the grace period and after Canuto expressed that she was
already capable of paying her obligation for the exercise of her right to
repurchase, Mariano refused it for unknown reasons. Canuto filed an
action in court to compel Mariano to accept the payment and execute
the corresponding deed of repurchase.
During the trial, Canuto tried to prove that while she was not able to
execute her right within the original period, she was given a grace
period by Mariano and that she timely invoked it within such period.
Mariano objected to this under PER
ISSUE:
Whether the PER is applicable.
RULING:
No. This belongs to the exceptions which is when the existence of
such other terms or agreements executed subsequent to the written
agreement is alleged and duly pleaded as an issue. What Canuto here
was trying to prove was that the subsequent agreement entered into
involving the grace period and did not try to alter the original written
agreement. She admits that the terms of the original written agreement
but alleged that there was a subsequent agreement about it and this
was pleaded as an issue in her action.
Summary:
Exceptions to Parol Evidence Rule:
1. An intrinsic ambiguity, mistake or imperfection in the written
agreement
2. The failure of the written agreement to express the true intent and
agreement of the parties thereto
3. The validity of the written agreement
4. The existence of other terms agreed to by the parties or their
successors in interest after the execution of the written agreement
PAROL EVIDENCE RULE IN RELATION TO THE STATUTE OF
FRAUDS
So the Statute of Frauds also relates to extrinsic evidence or parol
evidence (oral evidence). So there are two rules governing it, the one
under the Rules of Court and another one provided for by Art. 1403
under the Civil Code.
The Statute of Frauds prohibits the party from proving the existence of
certain kinds of contracts by oral testimony. The only evidence
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admissible in these types of contract are written evidence or “written
memorandum”.
Here is the question now: one of the exceptions under PER is the
failure of the written agreement to express the true intention of the
parties. Under the exceptions in the PER, all the party needs to do to
be allowed to present oral evidence is to plead this as an issue in the
pleading.
However, the conflict here is when the written agreement or contract
sought to be proved by oral evidence is included in the enumeration
under the Statute of Frauds. So even if it is pleaded as an issue, under
the Statute of Frauds the oral evidence could still not be allowed.
How to resolve this? Take note that Art. 1403 is substantive law as
compared to the Rules of Court is procedural in nature. There is a
conflict between a procedural rule found in a substantive law and a
procedural rule found in a procedural law. Paras is of the opinion that
the Statute of Frauds should prevail. So it is an exception to the 2nd
exception.
Summary:
General Rule: Parol evidence may not be introduced to vary or modify
the terms of a written agreement
Exception: 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 the failure of the written agreement to express the true
intent and agreement of the parties thereto.
Exception to the exception: When the parol evidence sought to be
introduced is oral or testimonial evidence and the true written
agreement or contract sough to be proved is one of those enumerated
under the Statute of Frauds:
Art. 1403. The following contracts are unenforceable, unless they are
ratified:
xxx
(2) Those that do not comply with the Statute of Frauds as set forth in
this number. In the following cases an agreement hereafter made shall
be unenforceable by action, unless the same, or some note or
memorandum, thereof, be in writing, and subscribed by the party
charged, or by his agent; evidence, therefore, of the agreement cannot
be received without the writing, or a secondary evidence of its
contents:
(a) An agreement that by its terms is not to be performed within a year
from the making thereof;
(b) A special promise to answer for the debt, default, or miscarriage of
another;
(c) An agreement made in consideration of marriage, other than a
mutual promise to marry;
(d) An agreement for the sale of goods, chattels or things in action, at a
price not less than five hundred pesos, unless the buyer accept and
receive part of such goods and chattels, or the evidences, or some of
them, of such things in action or pay at the time some part of the
purchase money; but when a sale is made by auction and entry is
made by the auctioneer in his sales book, at the time of the sale, of the
amount and kind of property sold, terms of sale, price, names of the
purchasers and person on whose account the sale is made, it is a
sufficient memorandum;
(e) An agreement of the leasing for a longer period than one year, or
for the sale of real property or of an interest therein;
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(f) A representation as to the credit of a third person.
TESTIMONIAL EVIDENCE
INTRODUCTION
The third classification of Evidence based on form is TESTIMONIAL,
but do not equate TESTIMONIAL EVIDENCE with ORAL
TESTIMONY.
An oral testimony is a testimonial evidence but not all testimonial
evidence are oral testimonies.
What makes evidence testimonial is the fact that the evidence consists
of the witness reconstruction of past events. So, if the witness relates
to the court a past event which he had observed, that's testimonial
evidence.
Although the communication there, with the witness makes known to
the court his perception of the past event, the means of communication
could be in any form:
 It could be orally done
As in oral testimony, when the witness speaks; or
 It maybe done through sign language or physical
demonstration
As in the case where witness is incapable of speaking; or when the
question requires a different mode of answer, as such in that case, the
witness is allowed there to testify through sign language or bodily
gesture;
 It may be in the form of a document or in the form of a
judicial affidavit.
A judicial affidavit is in paper form but classified as testimonial
evidence. As a matter of fact, under existing Rules now, Judicial
Affidavit constitutes a direct testimony of a witness subject to cross-
examination.
The common denominator of all this is that all these
communicated to the court constitutes a reconstruction of past
events that the witness to have perceived.
QUALIFICATIONS OF A WITNESS
There are five requirements for a witness to be allowed to testify, 3
requirements relate to the substantive aspect while the 2 others are
procedural.
SUBSTANTIVE REQUIREMENTS
1. Capacity to perceive
2. Capacity to recall/recollect/remember what he had
perceived (Capacity of recollection, memory!)
3. Capacity to communicate his perception to others
The first 3 requirements are substantial or are referred to as the
substantive requirements pertaining to the witness himself – Capacity
to perceive, capacity of recollection and the capacity to communicate.
PROCEDURAL REQUIREMENTS
4. The witness should take an oath or an affirmation that
they would take the truth, the whole truth and nothing
but the truth
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5. The witness should not be suffering or laboring from
any of the legal disqualifications.
The witness should be equipped with all these qualifications before he
may be allowed to testify.
Take Note: Authority to testify is not one of the requirements.
Example:
So in a situation where the plaintiff presents a witness, the witness not
the plaintiff herself, or the witness is an ordinary witness not a party
into the case, but she is being presented a witness for a party.
Rule: There is no requirement that witness should prove permission or
authority by the party presenting him to testify as a witness.
It is not one of the requirements to disqualify a person from being the
witness.
AFP-RBS vs. REPUBLIC OF THE PHILIPPINES
FACTS:
This is a petition for titling filed by the Armed Forces of the Philippines-
Retirement Benefits System (AFP-RBS). To substantiate the
allegations in the petition, the AFP-RBS presented one of its officers.
The petition was granted but reversed on appeal on the ground that it
was not established that the witness who testified for and in behalf of
AFP-RBS, was duly authorized by the plaintiff or petitioner on its
behalf.
HELD:
SC said, the only qualifications for a witness to be qualified as a
witness are:
1. That the witness can perceive
2. In perceiving he can make known his perception to others
3. Requirement of oath/affirmation
4. None of its disqualifications are present.
THUS, there is no requirement as to authority from the party
presenting the witness as his or her witness.
NOT DISQUALIFICATIONS
Political or religious affiliations are not disqualifications. Neither is
interest in the outcome of the case. So even if the witness is related to
one of the parties or even if the witness stands to benefit out of the
result of the case, that is not a ground to prevent the witness from
taking the stand because by expression of the rules, interest in the
outcome of the case is not a disqualification.
AS FOR CONVICTION OF CRIMES
General rule: Conviction of a crime is not a disqualification
Except:
1. For probate proceedings: A person convicted for a crime
of falsification, perjury or false testimony is disqualified from
testifying in a probate proceeding. The reason being that
under the Civil Code, a person convicted of perjury,
falsification or false testimony cannot be an instrumental
witness to the execution of a will by express provision of the
law.
2. For a State Witness: A conviction of a crime involving moral
turpitude is a disqualification insofar as the witness who is to
testify as a state witness. It is one of the requirements for a
state witness- the absence of conviction of a crime involving
moral turpitude.
So in any other instances, other than these 2 instances, mere
conviction of a crime, however heinous that crime may be, it is not a
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disqualification. Generally, a witness convicted of a crime may not be
disqualified from being a witness in Court.
FIFTH REQUIREMENT: NOT DISQUALIFIED
This is the most important aspect of this rule.
DISQUALIFICATIONS OF A WITNESS
What are the rules disqualifying a witness?
Any witness laboring under these disqualifications may not be allowed
to testify within the parameters of the disqualification rules:
1. Disqualification by reason of insanity
2. Disqualification by reason of immaturity
3. Disqualification by reason of marriage (otherwise referred
also as spousal immunity)
4. Disqualification by reason of death or insanity
5. Disqualification by reason of privileged communication
DISQUALIFICATION BY REASON OF INSANITY
An insane may not be a witness.
Disqualification of an insane from being a witness lies in his lack of
capacity to communicate his perception to others properly.
The reckoning point of insanity is as of the time the witness is called to
testify because as said, the disqualification lies in his inability or lack of
capacity to make known his perception to others.
Insane at the time of perception but sane at the witness stand
So that if the insanity existed at the time of perception but the witness
is sane at the time he took the witness stand, the witness may not be
prevented from taking the stand because he is not disqualified from
being a witness. If a witness is proven to be insane at the perception,
that fact of insanity may be a ground to discredit his testimony but not
to disqualify. In other words, the insanity we are talking about as a
disqualification is insanity insofar as admissibility of his testimony is
concerned.
Summary:
Where DQ lies Reckoning Point
In his lack of At the time the
DISQUALIFICATION BY
capacity to witness is called
REASON OF INSANITY
communicate his to testify
perception to others
In other words, insanity insofar as admissibility of the testimony is
concerned. If insanity existed at the time of perception, insanity is
irrelevant but relevant insofar as weight, sufficiency, and credibility.
DISQUALIFICATION BY REASON OF IMMATURITY
Not insane but just immature.
The DQ lies in two aspects, these are the standards to be
considered to disqualify a person under this ground:
1) Immature person is deemed to have lack of capacity to
perceive events properly;
2) incapacity to communicate truthfully
This kind of witness usually refers to children of tender years or
individuals who are adults by chronological age but children on
account of their mental development
Take Note: The Rule on Examination of a child witness, the
presumption is every child witness is presumed to be competent
witness. It is incumbent upon the adverse party who seeks the DQ of
witness by reason of immaturity particularly the child’s being in tender
years to prove otherwise - competency hearing may be held.
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DEAD MAN’S STATUTE DISQUALIFICATION RULE
Survivorship Disqualification Rule
This applies to instances of death or the party becomes insane.
The situation is that two or more parties entered into a transaction or
involved in a particular incident, one or some of them died and the
others survived. The issue arises out of the transaction or incident.
Under this rule, the surviving party may not testify against the dead
parties as to the facts occurred prior to the death of the other party OR
in case of insanity, the surviving party may not be allowed to testify as
to the facts occurring prior to the time the person became insane.
Reason: since the other party is deceased or insane, the party who is
now insane may no longer be in a position to defend himself. He may
not be able to controvert the testimony of the other party. This would
result in an unfair situation because the deceased’s lips are sealed.
Purpose:
1. Level the playing field
2. To avoid the commission of perjury because no one would
controvert the surviving party’s testimony
To level the playing field
So that if the deceased can no longer testify – his lips sealed by death
– the Rules deem it fair to the parties to disallow the surviving party
from telling his tale. Level the playing field.
To prevent perjury
Given the absence, incapacity, insanity or death of the other, the
surviving party is now placed in a situation where he is likely to commit
perjury. No one is there to controvert his testimony. He is likely to
succumb to perjury. In order to prevent this, the Rules deem it prudent
to disqualify the surviving party from testifying.
REQUISITES FOR DEAD MAN STATUTE TO APPLY:
1. The defendant must be sued in his representative
capacity as:
a) Executor
b) Administrator
c) Heir
d) Any person acting as agent or representative acting
for or in behalf of the estate.
He must not be sued in his own right nor on his own personal liability.
He must be representing the real defending party-in-interest, which is
the estate of the deceased or of the insane. If the defendant is sued in
his personal capacity, the disqualification rule will not apply.
GUERRERO vs. ST. CLARE
FACTS:
A piece of land is owned by Isidoro. During his lifetime, he conveyed
his property to his son Andres. Andres took possession over the
property and then he entrusted the enjoyment and possession over the
property to his sister Christina Guerrero.
Subsequently, Andres died, and his surviving heirs succeeded. The
surviving heirs discovered that the land was titled in the name of their
cousin, Manuel Guerrero, on the basis of a “Deed of Sale of Land”
purportedly executed by their Aunt Cristina. The heirs of Andres then
went to court and filed an action to recover the property.
During this time, the property was already owned by St. Clare, who
bought it from the relatives of Manuel Guerrero, who in turn bought the
property from Manuel Guerrero himself. There were already series of
transfers, from Manuel Guerrero to St. Clare.
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The petitioners or the heirs of Andres alleged that Manuel Guerrero did
not acquire ownership over the property, because, Christina who
purportedly executed a deed of sale in favor of Manuel Guerrero, was
not the real owner as the real owner was Andres Guerrero and that
Andres merely entrusted her with the possession of the property. They
also alleged that the actual transaction entered into was not a sale but
a mortgage to guarantee the loan obligation of Cristina.
The petitioners or the heirs of Andres presented the children of
Christina to testify and substantiate their claims. The testimonies of
these children were objected to under the dead man’s statute because
Manuel Guerrero was already dead and the children were testifying as
to the fact that occurred prior to the death of Guerrero.
RULING:
Dead man statute rule does not apply. SC overruled the objection
ruling that dead man’s statute applies only if the defending party is
sued in his representative capacity. In this case, St. Clare was sued in
its personal capacity.
In this case, the defendant was sued in its personal capacity.
This case illustrates the rule that if the defendant is not sued in his
representative capacity as administrator or executor of the estate of
the deceased, the Dead Man Statute does not apply.
2. The action must involve a claim or demand against the
estate of the deceased or the estate of the insane
person.
The estate must be the defending party. As such, if the estate of the
deceased person is the party initiating the action, the Dead Man
Statute does not apply.
Case in Point: TONGCO vs. VIANZON
TONGCO vs. VIANZON
FACTS:
This involves properties owned by the Spouses Tongco. During the
lifetime of the husband, the spouses participated in a Casdastral
proceeding, seeking that they be declared the owners of certain
properties. During the pendency of the action, the husband died.
Eventually, the properties claimed by the spouses were declared in the
name of both spouses. But for one reason or another, the wife moved
for the amendment of the title. Seeking that the properties be declared
in her name alone, claiming that the properties were her exclusive
paraphernal properties. When the administratix of the husband (his
niece) learned about this, she instituted an action for the recovery of
the properties against the wife.
During the trial, the wife testified that the properties covered were
exclusive paraphernal properties. But this testimony was objected to
under Dead Man statute, considering that the husband was already
dead.
HELD:
But the SC ruled that the Dead Man Statute does not apply because
the estate of the husband was the one initiating the action. The Dead
Man Statute applies only if the estate is the defending party. Here, it is
the reverse.
RAZON vs. IAC
FACTS:
This case involves shares of stock purchased by Mr. Chiudian. At the
time of the purchase, Mr. Chiudian had not sufficient funds to pay for
the value of the shares of stock. So he entered into an arrangement
with Mr. Razon, one of the stockholders of the corporation, to advance
payment for the shares of stock subject to reimbursement by Mr.
Chiudian. To protect the interest of Mr. Razon pending reimbursement,
it was agreed that Mr. Razon would take possession of the certificate
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of stock evidencing Mr. Chiudian’s ownership over the shares of stock.
Then, Mr. Chiudian died without having been able to reimburse Mr.
Razon of the value of the shares of stock. So the estate of Mr.
Chiudian, represented by the administrator, iniated an action against
Mr. Razon to recover possession of the certificate of stocks.
During trial, Mr. Razon testified that during the lifetime of Mr. Chiudian,
they had an agreement that pending reimbursement of the money that
he had advanced in the purchase of the shares of stock, Mr. Razon
should take custody or possession of the certificate of stocks. This
testimony was objected to under the Dead Man Statute.
HELD:
The SC overruled the objection, holding that the Dead Man Statute
applies only if the action involves a claim or demand against the estate
of the deceased, not when the estate of the deceased is the party
initiating the action, being the plaintiff or claimant in the case.
3. The witnesses should be the plaintiff, assignor or the
person whose behalf the action is prosecuted. If the
witnesses do not belong to the three then it does not
apply.
Not all witnesses are disqualified under the DMS. The witnesses
disqualified are specific. They are the plaintiff, the assignor of plaintiff,
or the person in whose behalf the action is prosecuted. There are only
three witnesses disqualified under this rule.
Case in point: GUERRERO vs. ST. CLAIRE
GUERRERO vs. ST. CLAIRE
Other than enunciating the rule that DMS applies only if the defendant
is sued in his representative capacity, the SC in this case also ruled
that the witnesses who were the children of Christina are not
disqualified under the DMS because these witnesses are ordinary
witnesses. Meaning, they are not the plaintiffs, assignors, or the
person in whose behalf the action was prosecuted. Not being those
mentioned in the rules, the disqualification rule does not attach to
them.
4. The testimony should relate to a fact occurring before
the death of the decedent.
Even if the witness is the plaintiff, the assignor of plaintiff, or person in
whose behalf the action is prosecuted; but his testimony does not
relate to any fact occurring before the death of the decedent, this
disqualification rule does not apply.
IOW, this witness can only be disqualified if his testimony relates to a
fact that occurred prior to the death of the decedent and not when the
testimony relates to something else.
Like facts occurring after the death or facts nothing to do with the
defendant; facts that even if defendant was alive, has no personal
knowledge of.
The very purpose of the DMS is to level the playing field, meaning had
the defendant been alive, the defendant would have been able to
controvert the testimony of the surviving party. So that if the defendant,
even if he were alive, just the same he would not be able to controvert
the testimony of the surviving party because he had no knowledge
about it then this disqualification rule does not apply.
You have to be very careful of the word facts occurring prior to the
death.
This was interpreted by the SC as referring to POSITIVE FACT, not
negative. So that if the testimony of the plaintiff, assignor of plaintiff, or
person in whose behalf the action is prosecuted, relates to the non-
occurrence of a fact, or that a particular fact did not happen or did not
take place, is not covered by the disqualification.
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Case in point: MENDEZONA vs. VDA. DE GUITIA
MENDEZONA vs. VDA. DE GUITIA
Doctrine: Dead Man’s Statute (DMS) only prevents the plaintiff,
assignor of plaintiff, or person in whose behalf the action is prosecuted
from testifying as to a positive fact that occurred prior to the death of
the decedent and does not cover a negative fact.
The danger in this ruling is that when the plaintiff sues the defendant
estate for non-payment of a loan and he testifies as a witness that the
deceased did not pay the loan (a negative fact), then the DMS will
possibly not applied pursuant to this doctrine.
Take note: Even if it seems amusing or sounds stupid, this ruling is
still a good case law. Up to now, there is no recent jurisprudence that
has expressly overturned it. In fact, it is still cited on some materials
pertaining to the DMS.
Going back to one of the exceptions wherein the DMS will not
apply if the fact testified to is not within the personal knowledge
of the deceased, how do you exactly prove that such a fact is
indeed not within his personal knowledge?
It could be that you could prove that the transaction did not involve the
deceased at all since he was not present. So this is something that he
has no personal knowledge of. Remember, that what is contemplated
by the rule is a transaction that both the plaintiff and the deceased
entered into.
This is so because the deceased defendant is in the best position to
controvert the allegations, and since he is no longer around, his
interest will no longer be adequately protected without the DMS.
However, take note that when the plaintiff or the surviving party enters
into a transaction with the deceased defendant but the latter was
represented by an agent, then the DMS will also not apply because the
evil sought to be avoided by the rule is not present (i.e. someone is in
a position to controvert the allegations and protect the interest of the
deceased). This was the ruling in Goni v. CA.
GONI vs. CA
FACTS:
This involved the property of Villanueva who during his lifetime
conveyed to a certain Vicente, parcels of land for the services of the
latter. The said transaction was entered into by Goni in behalf of
Villanueva. When Villanueva died, Goni as administrator still included
the said parcels of land in the inventory of Villanueva’s estate. Vicente
sued to recover these properties.
ISSUE:
Whether or not the Dead Man’s Statute is applicable as to prevent
Vicente from testifying about his transaction with the deceased through
Goni
RULING:
No, the DMS is inapplicable. The purpose of the DMS is to level the
playing field and to prevent one party from taking advantage of the
other. In here, the evil sought to be avoided is not present because of
Goni who transacted in behalf of the deceased. Thus, Goni was in the
best position to testify on the matter and protect the interest of the
deceased.
The purpose of the Dead Man’s Statute is to level the playing field.
Hence, the surviving party should not be allowed to take advantage of
the death, inability or absence of the defendant.
The evil sought to be avoided, does not apply in this case because,
even if Villuanueva was already dead, his agent, Goni, was alive and
was the one who transacted with Gaspar Vicente on behalf of his
principal, Mr. Villanueva. Being the one who actually transacted with
Gaspar, Goñi was in the best position to testify on the matter and to
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COMPLETE VERSION
protect the deceased Villanueva. That illustrates the situation where
the matter testified about can be testified by a witness on behalf of the
deceased. The Dead Man’s Statute may not be applied.
What if it is alleged by the stockholder that he promised distribute
the dividends, is this positive?
He promised to distribute but he did not distribute, that is still negative.
Precisely, he did not distribute. In collection of sums of money, the
testimony there would be: the defendant borrowed money from the
plaintiff; he promised to pay, but despite demand, he never did. That’s
negative, non-payment.
Example:
He stole the amount, he misappropriated the amount or he breach the
contract.
Dangerous precedent. Maybe the unofficial reason there is the SC
must have been so convinced that the legitimacy of the [inaudible]; that
disallowing there testimony would result in the gave miscarriage of
justice, the claimants there would not be able to prove their claims.
And that is why the SC in that decision said that Dead Man Statute
cannot be used as an instrument to perpetuate injustice.
The wording of the rule is as to “facts occurring,” not “facts not
occurring”.
Take Note: As a pointed out earlier, the only witness disqualified under
this rule is the plaintiff, assignor or person on whose behalf the action
is prosecuted.
What is the rule if the plaintiff happens to be a juridical entity,
because, for the purposes of filing suit, the plaintiff can either be
natural or juridical? Good if the plaintiff is natural, because,
obviously, he cannot be allowed to testify. But, juridical entities like
corporations, they act through their officers or representatives. Now
what happens if the corporation is the plaintiff and to prove its claim
against the estate of the deceased, the corporation presents an officer
as a witness?
LICHAUCO vs. ATLANTIC GULF
The SC ruled that employees, officers or directors of the corporation,
who testify as witnesses, are not covered by the disqualifications
because they are not the plaintiffs, not the assignors or not the persons
on whose behalf the action is prosecuted.
Here the SC emphasized the rule that a corporation has a personality
distinct and separate from the persons composing it. For purposes of
this rule, the corporation and its employees, representatives and
officers, are treated differently.
If the corporation is the plaintiff, in effect, Dead Man Statute does not
apply because no one can be disqualified because a juridical entity
cannot be a witness.
Is it not the Secretary or agent files the case?
Yes, but the plaintiff there is the corporation. While filing of the suit, the
pleading there will be X corp. as represented by Mr. X. The latter there
is not the plaintiff; he is just suing as the representative of the
corporation.
In so far as the defendant is concern, it usually is the executor or
administrator of the estate.
In so far as the witness disqualified, he must be the plaintiff, assignor
or person on whose behalf the action is prosecuted.
DISQUALIFICATION BY REASON OF MARRIAGE / SPOUSAL
IMMUNITY
Marital disqualification, otherwise referred to as “Spousal Immunity”.
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Under this rule, neither the husband nor the wife may testify for or
against the other without the consent of the affected spouse during the
marriage, EXCEPT:
a) In a civil case between the parties;
b) Or in a criminal case for a crime committed by one against
the other or against the other spouse’s direct ascendants or
descendants
General Rule: The husband or the wife cannot testify for or against
each other
Take Note: The disqualification applies regardless if the testimony is
favorable or adverse to the affected spouse.
The disqualification is coterminous to the existence of the
marriage, meaning as long as the marriage is subsisting, neither of the
spouses can testify for or against the other without the consent of the
affected spouse.
Exceptions:
1. When there is consent
2. Civil case between the parties; or
3. Criminal case of a crime committed by one against the other;
or against the other’s relatives – direct ascendants or direct
descendants
THE DISQUALIFICATION APPLIES WHETHER OR NOT THE
TESTIMONY OF THE SPOUSE INVOLVES CONFIDENTIAL
INFORMATION.
Take Note: This disqualification is different from the disqualification by
reason of privileged communication between spouses. Here, the
disqualification applies whether it would entail disclosure of confidential
information or whether it doesn’t involve any confidential information at
all.
The disqualification attaches to the relationship. The fact that the
party is the spouse of the other, the disqualification applies.
Reason behind the disqualification:
1. To preserve marital relations and protect or promote
domestic peace or tranquility.
That is why neither the husband or the wife may testify against the
other because this would disturb marital relation, this would disrupt
domestic peace and tranquility between the spouses.
2. To prevent perjury
The law recognizes that the relationship between the spouses may
drive the other to commit perjury just to advance the interest of the
other spouse to the point of committing false testimony. That is why,
for this reason, neither the husband nor the wife may testify for or in
favor of the other.
For or against, the disqualification applies.
Take Note: While the law provides that the disqualification is
coterminous with marriage, this disqualification only applies when the
relationship of the spouses is not strained, meaning while there is
harmony between the two – the husband or the wife.
So that, if there is no marital harmony, there is no more marital or
domestic peace to preserve, because the relationship between the
spouses is already strained, even if the marriage is legally existing or
intact, this disqualification does not apply; therefore, either of them
may testify for or against each other.
Case in point: MAXIMO ALVAREZ vs. RAMIREZ
This case came out three times in the Bar Examinations already. The
landmark case insofar as marital disqualification rule is concerned.
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COMPLETE VERSION
MAXIMO ALVAREZ vs. RAMIREZ
FACTS:
Husband and wife separated de facto for a considerable time already.
The wife lives with her sister; but the husband, obviously could not let
go of the wife, could not move on, so he followed the wife. Failing to
get his wife back, the husband, out of desperation, set the house of his
sister-in-law where his wife was living on fire. So, he was prosecuted
for arson.
During the trial, the star witness for the prosecution was her estranged
wife. Her testimony was objected to under marital disqualification
because the wife would be testifying against the husband who was the
accused and the marriage still existed.
RULING:
In this case, the Supreme Court had the occasion to discuss the
rationale behind the marital disqualification rule. The purpose of the
marital disqualification rule is to protect, maintain marital relations and
preserve domestic peace and tranquility.
So that when the spouses themselves are no longer in good terms, the
relationship being strained already, there is no more marital relations to
preserve, there is no more domestic peace to protect; therefore, the
purpose of the rule does not exist, the rule itself ceases to exist.
In other words, the wife was allowed to testify against her own
husband.
Let it be emphasized: The ruling in Alvarez vs. Ramirez should not be
extended to privileged communication rule between spouses, because
these two disqualification rules operate in two different settings.
Difference between Marital Disqualification Rule and Privileged
Communication between Spouses
The Alvarez vs. Ramirez doctrine should be circumscribed to Marital
Disqualification Rule, but it should not apply to privileged
communication rule between spouses; because relationship is
irrelevant insofar as privileged communication rule is concerned
because its purpose is not really to preserve marital relations but to
protect confidential information or communication between spouses.
That why under Marital Disqualification Rule, the disqualification
is coterminous with the marriage, so that when marriage is
dissolved – whether by death or by any other legal cause – this
rule ceases to apply.
But this is not true insofar as Privileged Communication Rule between
spouses are concerned because this privileged communication
survives marriage, so that even if the marriage – by death or by any
other legal cause – the prohibition against the spouse to testify or
disclose marital disqualification still subsists.
DO NOT CONFUSE THIS RULING TO THAT OF THE PRIVILEGED
COMMUNICATION RULE.
This rule applies if the marriage is valid.
This is premised on the existence of a valid marriage.
This marital disqualification rule applies whether or not the
witness spouse is a party to the case.
Whether the witness spouse is a party to the case or not, it does not
matter. What matters is the other spouse, the affected spouse, is a
party to the case. Take note of the physiology and the language of the
rule. “Without the consent of the affected spouse.” The affected spouse
there refers to the spouse who is a party to the case where the
testimony of the witness spouse is offered for or against the affected
spouse.
So, if the other spouse is not a party to the case, this disqualification
rule does not apply. Hence, the witness spouse is not disqualified from
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testifying in the case so long as the other spouse is not a party to the
case.
Differentiate this from privileged communication rule between spouses.
In this rule, it doesn’t matter – whether the witness spouse is a party to
the case or not and whether or not the other spouse is a party to the
case. It doesn’t matter. What is prevented here is that either spouse is
prevented from disclosing any confidential information that one
received from the other during the marriage.
Take note of the distinction between Marital Disqualification and
Privileged Communication between Spouses.
In marital disqualification, it doesn’t matter when the other
spouse learned of the information from the affected spouse.
It’s possible that the information that the witness spouse may disclose
during the testimony may have been obtained by the witness spouse
before the marriage.
Example:
It’s possible that when they are still dating, the witness spouse learned
of some confidential matters from the other; and subsequently, they
got married and during their marriage, the wife was called to testify
against the husband, and in that testimony, the wife was asked to
disclose confidential information that the wife received from the
husband before the marriage.
The privileged communication rule obviously does not apply, because
in privileged communication rule, the information which is prohibited
from being disclosed must be received by one from the other during
the marriage. So, you cannot invoke privileged communication rule.
However, the marital disqualification rule is the appropriate ground
because as I said, this rule applies regardless whether the testimony
would include or disclose confidential information.
Even if the information is received before or during the marriage, it
does not matter. In fact, it even applies even if the witness spouse
would not disclose any confidential information received by him/her
from the other. The witness spouse may be sought to testify on matters
not involving information she received from the other. The
disqualification applies.
Example:
If the wife witnessed the commission of a crime by the husband. There
is no communication at all. The wife just simply saw the commission of
the crime. There is no information involved there.
Privileged communication rule does not apply because, obviously,
there is no information to speak of there. But the wife may be
prevented from testifying under the marital disqualification rule.
Take note of the nuances in Marital Disqualification Rule and the
Privileged Communication Rule if you are confronted with the
problem involving these two exclusionary rules.
You try to test the problem based on the parameters of both, because
the objection may not be based on one but applicable on the other.
The witness may be disqualified under marital disqualification or he
may not be disqualified under marital disqualification but disqualified
under privileged communication.
Katong imong gi-ask sa orals, Sir ba, katong naay raid unya naay
shabu under the table and the wife was asked ka-kinsa to then
she knew it was her husband’s…
That’s precisely my point! If the husband is not a party to the case, that
disqualification does not apply. In that example, if I’m not mistaken, it
was the wife who got sued and the husband got away. He was not
impleaded in the case.
So, she can disclose that the shabu belongs to the husband and she
cannot be disqualified from testifying because, as I’ve said, marital
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COMPLETE VERSION
disqualification applies only if the affected spouse is a party to the
case, meaning, the husband is a party to the case.
If the husband is not a party to the case, legally, he cannot be
considered an affected spouse. He cannot be bound by the testimony
of the wife in that proceeding because only the wife is the party to the
case. One who is not a party to the case cannot be bound by the
judgment of that case. Basic. Due process.
But if both of them were sued, that’s another thing because the
husband now is an affected spouse.
So, in that reason, Sir, the wife was accused of possession of
drugs. She claimed that her husband was the owner. The case
was dismissed then the husband was then accused. Can the
testimony of the wife in the previous case be used against the
husband in the present case?
The husband now is being prosecuted? The answer is NO! Because
the husband now is the affected spouse in that case. But the testimony
of the wife may given in the case filed against her. It’s a different case.
Situation:
Suppose the wife learned about the ownership of the shabu because
the husband told her so. It’s a different thing now. The wife came to
know of the shabu because the husband told her, “I bought the shabu
from Mr. Carreon. I placed it inside the sofa. I’ll deliver this tomorrow to
my suki, Mr. Cid.”
Suppose Mr. Carreon could deliver it the following day to Mr. Cid, the
residential house was raided by the police. And so, the shabu were
seized. The wife was arrested. The husband got away. So, the wife
now is being charged with possession of illegal drugs.
Can the wife disclose the information the husband related to her
obviously in confidence that the shabu belongs to her husband?
The answer is NO because the applicable provision there is privileged
communication rule, and in privileged communication rule between
spouses, it doesn’t matter whether the affected spouse is a party to the
case or not; because what is protected is the confidential information
between the two.
Who will invoke, sir? Who will invoke the rule?
The other party! The source of the information, because his interest is
being protected there.
Summary:
Difference between Marital Disqualification and Privileged
Communication between Spouses (based on the discussion)
Marital Disqualification Privileged Communication
Relationship is relevant Relationship is irrelevant
Coterminous to the relationship Survives the relationship
What is protected is the
What is protected is the
confidential information or
relationship
communication
The affected spouse should be a Not necessary that the affected
party to the case spouse is a party to the case
It doesn’t matter when the The confidential information
confidential information was should be received during the
received (before or during) marriage
DISQUALIFICATION BY REASON OF PRIVILEGED
COMMUNICATION
INTRODUCTION
We need to remember the principle common to all forms of
privileged or confidential information:
Only the privileged holder may invoke the privileged communication
rule. It is personal to the privileged holder and no one else can invoke.
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EXCEPTIONS WHERE OTHERS MAY INVOKE:
1. If the privileged holder dies.
Privileged communication survives the relationship. So even if one of
the spouses dies, the surviving spouse may not be examined to any
confidential information that he or she received while the other was still
alive because the privileged communication rules still subsists. It
survives the marriage.
With the death of the other now, who may invoke?
Rule is if the privileged holder is dead, or unable, or incapacitated, it is
the executor, administrator or representative of the estate of the
deceased who will invoke; or in case of incapacity or insanity, the
guardian.
What if the surviving spouse is the administrator or executor, how
will they invoke the privilege? Is it during the time the questions
are being asked?
This contemplates of a situation where the testimony of a spouse is
being offered in evidence. When you are the proponent of the
testimony of the spouse, you will have to state your purpose. The
adverse party or the executor or the representative will then know that
the testimony of the wife is prejudicial to the interest of the husband
who is now deceased. So the executor may now invoke his objection
to the testimony to disqualify under the privileged communication rule
because the testimony would entail disclosure of confidential
information. That’s the way you do it in court.
The spouse is still required to tell the truth but then pwede ra ma
object?
You will know the tenor of the testimony based on the offer because
when you formally offer the testimony of the witness you have to state
the gist of the testimony. You will say: “Your Honor, this is offered to
prove that during the lifetime of the husband, the husband disclosed to
her that bla bla bla…” You will know that it is really covered by the
privileged communication rule. So the other party will know that it’s
time to disqualify or object the testimony of the witness. In that sense,
the wife may not be able to take the witness stand.
So if the privileged owner is dead, or otherwise incapacitated, the
privileged communication rule may be invoked by the executor,
administrator or representative. In case of insane, by the guardian.
2. If the privileged holder is not dead neither is he insane,
but is simply not present in the proceedings where the
confidential information is sought to be disclosed
because he is not physically present but he did not
waive the right to object.
Now who can invoke the privilege in behalf of the absent privilege
holder?
The privilege may be invoked by the other spouse or the recipient of
the information. In case of a lawyer-client, the lawyer himself may
invoke in behalf of the client because the privileged holder is the client.
In case of physician-patient, the privileged holder is the patient. The
physician can invoke it in behalf of the absent patient or the court itself.
If the court learns that the testimony of the witness might involve
disclosure of confidential information and the privileged holder is not
around to invoke it himself, the court may invoke it in behalf of the
privileged holder. This is consistent with the rule that the privileged
communication rule even survives the relationship.
If that is a privilege, can’t that be waived?
A privilege can be waived. You can even waive a right.
So if he’s not there to exercise his right, won’t that [privilege] be
waived?
It’s not a waiver. Mere absence is not a waiver. The court will
determine. If there is a waiver, then the testimony will be allowed. But if
there is no waiver, we cannot presume. Waiver should be positively
established. Mere absence does not amount to a waiver. That is why
the court or the recipient of the confidential information may be allowed
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COMPLETE VERSION
to invoke it in behalf of the privileged holder. So if the privileged holder
comes forward and waives it himself, then that is the end of the story.
When you say absence, does it have to mean legal absence or
pwede ra like the privileged holder has escaped or is evading the
law?
Absence caused by other than death or insanity.
Example:
The wife is called to testify in a particular proceeding where the
husband is not a party. So the husband may not be expected to be
present in that proceeding. But in the course of the testimony of the
wife, she may be asked to disclose information which she may have
learned in confidence from the husband.
So this will now involve a possible disclosure of the privileged
communication, but the husband is not around to invoke it. So what
can the wife do? The wife may say “Your Honor, this is privileged
communication.” Or the Court may say, “The husband is not here, this
may violate the privileged communication rule.”
So what will happen there is that the husband will probably be notified
and required to manifest for the record if he is waiving it or he is
opposing the disclosure of the information. That is a possible fact
situation that this problem might occur. Because as I said, this
privileged communication rule applies even if the privileged holder is
not a party to the case. That is the purpose of this rule.
Next principle applicable.
This exclusionary rule covers only information relayed in
confidence from one to the other. Only confidential information.
WHEN THE PRIVILEGED COMMUNICATION COMES INTO THE
HANDS OF A THIRD PARTY
What’s the relevance of this principle? What happens if the
information relayed by one to the other, meaning relayed by one
spouse to the other spouse, or to the client to the lawyer, or the
patient to the physician or by the penitent to the priest comes into
the hands of a third party?
What if the penitent, Mr. Carreon, while enumerating his sins to
the priest, the sacristan was hiding behind the confessional booth
and overhearing all the confessions made by Mr. Carreon? Can
the sacristan disclose?
The rule is when a privileged communication comes into the hands of a
third party, whether legally or illegally, that information, otherwise
privileged ceases to be privileged and therefore privileged
communication rule does not apply. Take note, when a privileged
communication falls into the hands of a third party, it ceases to be
privileged. It may now be disclosed without violating the privilege
communication rule.
IMPORTANT: I have to emphasize the phraseology of the rule -
“legally or illegally”. It does not matter how the confidential
information was received by the party, whether legally or illegally.
Insofar as the confidentiality of the information, it ceases to be
confidential.
But this only applies:
(1) In the absence of collusion on the part of either; or
(2) In the absence of voluntary disclosure on the part of the
parties.
Example:
The client confides to the lawyer some confidential information,
incriminating information about the case that the lawyer is handling.
But the lawyer cannot be trusted, told his other clients about it.
Voluntary told his clients about it. This otherwise confidential
information that the lawyer received from the client comes into the
hands of the other party, the other clients of the lawyer.
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Can the other clients of the lawyer, who received this information
or who got this information from the lawyer himself be
disqualified from disclosing this information?
The rule is that other clients, the third party, who got the information
from the lawyer is also covered because the lawyer himself breached
the confidentiality by sharing it with a third party. There is here a
voluntary disclosure made by a party who himself was the very party
disqualified from disclosing it. Otherwise, it would be absurd to render
that information no longer confidential just because the lawyer, the
person disqualifying it precisely disclosed it. So, it would be absurd
It’s only when the third party learns the information without the
participation of the lawyer. Not collusion, not voluntary disclosure.
Example:
A third party steals it or overhears it and was surreptitiously listening.
That’s no longer covered. Not when there is voluntary disclosure on
the part of the parties concerned.
PRIVILEGED COMMUNICATION RULE BETWEEN SPOUSES
For this disqualification rule to apply, there has to be a valid
marriage. The information must be given in confidence DURING
the marriage not before or after the marriage.
The disqualification attaches beyond marriage and it can be invoked by
the holder.
Who is the holder of the privilege?
The spouse who is the source of the information
Who is disqualified from testifying?
The spouse who received the confidential information.
You look at the purpose of the rule – to protect the source of the
information. He is the source of the information who conveyed it to the
other in confidence. It’s precisely to protect him.
Otherwise, the spouses may not be expected to perform his or her duty
towards the other if the possibility of disclosure hangs in the balance.
To encourage the free flow of communication, in the intercourse of
ideas, the law deems it prudent to disqualify the souses from disclosing
confidential information.
The privilege holder is the source of the information and the witness
disqualified is the spouse who received or the recipient spouse. He is
the one disqualified or prevented from disclosing it. If the recipient
spouse offers to testify, he may not testify and disclose this information
without the consent if the other spouse, who is the source of the
information because he is the holder of the privilege.
If the recipient spouse refuses to disclose but the spouse who is the
source of the information consents to the disclosure, the recipient
spouse may be compelled to disclose it in court. Privileged
communication rule does not apply because there is a consent, which
is waiver. That’s why the law says “without the consent of the other”.
LAWYER-CLIENT PRIVILEGED COMMUNICATION
Privilege holder is the client
This is to protect the interest of the client.
The one disqualified from disclosing is the lawyer.
He is prevented from disclosing any matter received in confidence from
the client or any advice he may have given to the client.
If the client does not object to the disclosure, the lawyer cannot invoke
the privilege. He may be compelled to disclose. But if the lawyer offers
to disclose upon the objection of the client, the lawyer may not
disclose.
EVIDENCE COMMITTEE: Alegado / Almerino / Carreon / Cid / Langomez / Layague / Monsanto / Sarucam
COMPLETE VERSION
Take Note: PC applies only to a past act or crime, NEVER present or
future act or crime.
Example:
If C commits acts of lasciviousness, he asked Atty. Cid for legal advice.
Any confidential matter c relayed to atty. Cid, the latter may not
disclose it because the crime is related to a crime that is already
committed.
Scenario:
Supposed during the pendency of the case that Ms. G filed the case
against Mr. C for acts of lasciviousness, Mr. C is so certain that he will
be convicted as testimony of Ms. G is unshaken. Suppose he confided
with his lawyer in order to get him off the hook, he intends to silence
Ms. G. This is no longer covered because the information relates to a
future crime, killing. In other words, the lawyer may not be prevented
from disclosing such information before the court.
What is the reckoning point to determine whether the employment
or information relates to past or future?
The time the information was given or received. NOT the time the
witness called to disclose the information.
In the first example, it is covered because it relates to the crime of
acts of lasciviousness.
In the second example, no longer covered as it relates to a future
crime because when he informed his lawyer that he would kill Ms. G,
the killing has not yet happened.
PEOPLE vs. SANDIGANBAYAN
This involves congressman Paredes, the testimony of his lawyer who
offered to be a state witness was questioned by Paredes under lawyer-
client privilege rule. Paredes argued that Atty. Sansaid may not be
allowed the state witness because it would violate lawyer client
privileged communication.
SC said that argument is wrong. Lawyer-client privileged
communication rule covers only information relating to past act or
crime not present or future.
But Paredes argued that it is past already because the testimony was
given before the filing of the case. SC said no, the reckoning period is
not the time that the testimony is to be given or filing of the case, but at
the time when the information was given.
The information here relates to the meeting of Atty. Sansaid and
Paredes where they plan to falsify court records. At the time the plan
was cooked by Paredes in the presence of Atty. Sansaid, the plan was
not yet committed. It relates to a future crime.
SC said privilege comm. rule applies only if the info is given or
received in pursuit of a legitimate purpose "in pursuit of professional
employment (for legitimate purpose)". Hence, not covered by the
privilege.
Continuing crime is present/future. Someone is kidnapped, the
kidnapper asked you if you have extra house where he can keep his
victim.
Client jumped bail - the lawyer cannot be prevented from disclosing
such because it is a present act.
Communication --- "this is what I intend to do" what is involved here is
the communication
What this rule is all about is the disclosure of information
regardless whether the information was committed or not.
Example:
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Somebody died, no witness present during the killing but it happens
that the accused confided with the lawyer that i will kill the witness. Not
covered because it is a future crime.
The purpose of privilege is to protect the client. If the client honestly
believes that the person to whom he is relaying the information is a
lawyer, he should not be punished. Lawyer-client privilege
communication shall still apply. The pretentious lawyer should not
disclose the information.
Such privilege is extended to the employees or secretary of the lawyer
who are acting in such capacity when the information is acquired.
Reason is that they are considered extension of the lawyer.
How about driver of a lawyer?
I always go for the reason behind the law. If information is received by
the driver because of his being driver, he should be covered.
Take Note: NO EXCEPTION as to lawyer-client privileged
communication unlike in the case of spouses privileged communication
But if you look at CANON 21, it provides for several exceptions:
1) Required by law
2) Necessary for the lawyer to collect his fees; LCPC was
never designed to impoverish lawyers
3) When it is necessary to defend the lawyer/lawyer's
employees (conflicting interest between lawyer and client)
4) By judicial action
Take note of the exceptions.
Sir: Relate this to Canon 21 of the Code of Professional Responsibility
Take Note:
Rule 21.01 - A lawyer shall not reveal the confidences or secrets of his
client except;
a) When authorized by the client after acquainting him of the
consequences of the disclosure;
b) When required by law;
c) When necessary to collect his fees or to defend himself, his
employees or associates or by judicial action.
DISCUSSION ON THE EXCEPTIONS:
1. When required by law
2. When necessary to collect the lawyer’s fees
The Lawyer-Client Privileged Communication Rule was not designed
to impoverish the lawyer. At least with this respect, the Rules are
lawyer-friendly. We can always collect our fees without violating the
Privileged Communication Rule when in the process, the lawyer will
disclose whatever confidential information, which the client relayed to
the lawyer, that is necessary for the collection suit.
3. When necessary to defend the lawyer himself, his
employees or associates
When the interest of the lawyer is in conflict with the interest of the
client, the lawyer also has the right to defend himself – even to the
extent of disclosing his client’s confidence and secrets.
4. By judicial action
For the Rule to apply, there must be a lawyer-client relationship. This
relationship takes place:
a) In the course of professional employment, or
b) With a view to professional employment
This includes any preliminary information given by the client
to the lawyer even before the contract was finalized.
EVIDENCE COMMITTEE: Alegado / Almerino / Carreon / Cid / Langomez / Layague / Monsanto / Sarucam
COMPLETE VERSION
COMMON DEFENSE RULE OR JOINT INTEREST PRIVILEGE
Refers to the information given by the client, not to his lawyer, but to
the lawyer of his co-defendant.
Example:
Mr. Cid and Mr. Carreon are accused of rape. Ms. Gonzaga is the
victim. In the prosecution, the two accused have common defense.
Their defense was that it was consensual – it was a case of
threesome. The accused each had his own lawyer. However, Mr. Cid
had a meeting with Mr. Carreon’s lawyer. This is still covered by the
privileged communication rule even though Mr. Carreon’s lawyer was
not a hired lawyer of Mr. Cid.
Mr. Carreon’s lawyer cannot disclose any information revealed to
him by Mr. Cid under the COMMON DEFENSE RULE OR JOINT
INTEREST PRIVILEGE.
Reason: Both have a common defense. The client who made the
disclosure to a co-defendant’s lawyer would not have made such
disclosure were it not for the fact that he shared the same defense with
the client of the lawyer. So they are treated as having been
represented by the same lawyer.
U.S. vs. MCPARTLIN
FACTS:
Benton (VP of Ingram Corp) acting with the knowledge of Frederick
Ingram (chairman of the board of Ingram Corporation) bribed McPartlin
(Illinois legislator) to cause a sludge-hauling contract to be awarded to
Ingram Corporation and one of its subsidiaries, and later bribed the
same officials to secure favorable treatment under the contract and
modifications of the contract. The federal grand jury commenced an
investigation of the events surrounding the sludge-hauling contract.
Throughout the period covered by the indictment, Benton kept diaries,
or appointment calendars, in which he made notes concerning
meetings and telephone conversations, naming the persons involved
and often recording the substance of the conversations. The Benton
diaries figured prominently in the government's case, for they
corroborated much of his testimony.
Destroying Benton's credibility was important to Ingram, as it was to
the other defendants. Such an effort was made, and Frederick Ingram
and McPartlin cooperated in that effort. McPartlin confided confidential
information to the investigator hired by Ingram's counsel. At trial, when
Ingram offered evidence of these statements, McPartlin's counsel
objected on the ground, inter alia, of the attorney-client privilege, and
the court sustained this objection.
ISSUES:
1. Whether the statement made by McPartlin is covered under
the lawyer-client privilege communication.
2. Whether the statement was covered by the privilege since it
was made to an investigator rather than an attorney.
HELD:
1. YES, the statements made by Mcpartlin cannot be
disclosed because they remain protected by the
attorney-client privilege.
McPartlin was entitled to the protection of the attorney-client privilege,
because his statements were made in confidence to an attorney for a
co-defendant for a common purpose related to both defenses. They
were made in connection with the project of attempting to discredit
Benton, a project in which Ingram and McPartlin and their attorneys
were jointly engaged for the benefit of both defendants.
Communications by a client to his own lawyer remain privileged when
the lawyer subsequently shares them with co-defendants for purposes
of a common defense. This is known as the common-defense rule
which has been recognized in cases. Uninhibited communication
among joint parties and their counsel about matters of common
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concern is often important to the protection of their interests. In criminal
cases it can be necessary to a fair opportunity to defend. Therefore,
waiver is not to be inferred from the disclosure in confidence to a co-
party's attorney for a common purpose.
2. YES. The investigator was an agent for Ingram's
attorney so it is as if the communication was to the
attorney himself. It has been ruled that that the privilege
protects communications to the attorney's agents for
rendering his services.
PHYSICIAN-PATIENT PRIVILEGED COMMUNICATION
REQUISITES:
1. Applies only to civil cases.
Among all the privileged communication rules, this is the only rule that
is applicable only to civil cases. There is no Physician-Patient
Privileged Communication Rule in criminal cases. Hence in criminal
cases, the physician may be compelled to disclose information that he
may have received from the patient or any medical advice or treatment
that he has given to the patient. Reason: the duty of the State to
prosecute crimes takes precedence over the individual right of the
patient. That’s why this Rule is only applicable to civil cases where only
private rights are involved.
2. May only be invoked against a person authorized to
practice medicine, surgery or obstetrics.
KROHN vs. CA
FACTS:
The husband was able to secure a copy of the confidential psychiatric
report which he presented in evidence in a petition for annulment of
marriage against his wife grounded on psychological incapacity. The
witness testifying on the report is the husband who initiated the
annulment proceedings, not the physician who prepared the report.
The wife objected to under patient-physician privilege.
RULING:
The privilege only covers person authorized to practice medicine,
surgery or obstetrics. The husband does not fall under any of the three,
therefore, not covered by the privilege.
3. Covers only information that if disclosed, will blacken
the reputation of the patient.
Favorable information is not covered. Only those derogatory to the
patient are covered.
4. Covers any information relayed by the patient,
preventive or curative treatment or advice given in the
course of a professional employment.
If the treatment is not preventive or curative, it is not covered by the
privilege. Any medical record that pertains to anything that is not
preventive nor curative can be disclosed. An autopsy report is not
covered by the privilege because it is not a report for treatment.
5. Treatment must be given in the doctor’s professional
capacity.
The information, advice or treatment must be for a legitimate purpose,
and not in furtherance of some criminal activity or other purpose.
Otherwise, the privilege will not apply.
How about those MedTechs who read the results of test that was
ordered by the Doctor?
EVIDENCE COMMITTEE: Alegado / Almerino / Carreon / Cid / Langomez / Layague / Monsanto / Sarucam
COMPLETE VERSION
There is waiver or authority there. In that context, the result
administered by the Medtech carries with it the instruction that the
physician who instructed it should be furnished with the result.
What if the patient is a minor and he was accompanied by his
parents, is it still covered by the Physician-Patient Privilege
Communication?
You apply the rule on parental authority.
What if the patient is of age and accompanied by his parents?
KROHN vs. CA
Based on the case of Krohn, the wife there was accompanied by her
father. The SC that it is not confidential because when the interview
was conducted, the father was present and listening. That was also
one of the grounds why the SC said that the Physician-Patient
Privilege Communication does not apply, because it was not intended
to be confidential in the first place.
US vs. GORDON-NIKKAR
In the same case of US v. Gordon-Nikkar, about a lawyer who was
giving advice to a client in the presence of another person. The SC
said insofar as that information is concerned, it was not confidential
because it was given in the presence of another person who is not
even a client.
With regard to the Krohn case, he was able to get the record. Can
it be argued that the record itself if privilege because the records
are the memorial of the Physician where they write their findings
so it can be still considered as the testimony of the Physician?
Yes but the one who testified in the report was not the Physician but it
was the husband. But as to how the husband managed to get his
hands of the report, it was not clarified in the case.
PRIEST-PINITENT PRIVILEGED COMMUNICATION
This applies to a minister or a priest. The privilege holder is the
Penitent. The disqualification is imposed upon the priest or minister
who heard the confession
This covers information relayed by the penitent to the priest or minister
in confidence or advice given by the priest or minister to the penitent. It
must be given in the course of the discipline enjoined by the priest’s or
minister’s church. It must be for a legitimate purpose.
In the case of Cults, does it cover them?
The rules do not qualify. So if a cult is a religion or denomination, then
the provision applies.
Take Note: If the information is given in the course of a friendly
conversation, then it is not covered. Again, the reason behind the rule
on privilege communication is to promote the free flow of information
so that the parties would be able to effectively perform their respective
duties insofar as the Lawyer, Physician or Priest are concerned. On
the other hand, to encourage the privilege holder to disclose relevant
information that would enable the Lawyer, Physician or Priest to
perform their duties.
PRIVILEGED COMMUNICATION OF PUBLIC OFFICERS
Public Officers are prevented or may not be examined as to any
matters obtained from them in confidence during their term or in the
course of the performance of their official functions.
This prohibition applies during or after the termination of their service.
Take Note: Unlike the other privilege communication rules, this rule
applies only if the court finds that public interest would suffer from the
disclosure. A Public Officer may disclose, except if the court prohibits
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it. It should be the court that determines whether the disclosure may or But if the parent or child wishes to testify, he/she may do so without
may not be allowed. violating any law on the matter.

EXECUTIVE PRIVILEGED COMMUNICATION FILIAL PRIVILEGE UNDER ARTICLE 215 OF THE FAMILY CODE
(This is different from the one in the Rules of Court, which involves
This is the power or the privilege of the government or executive both parental and filial privilege)
department to withhold certain information from the public or even from
the Congress. This only provides for Filial privilege, which refers to the right of the
child not to be compelled to testify against his parents or grandparents
in a criminal case.
US V. NIXON
General Rule: This only applies in a criminal case.
The SC enunciated the rule that Executive Privilege may not be Exception: When the testimony is indispensable in a criminal case for
invoked in its general sense. The invocation must be justified by a crime committed against the child or by one parent against the other
military, diplomatic and national security. It cannot be invoked as a parent.
blanket authority.
Take Note: Both the Parental and Filial Privilege under the ROC and
NERI vs. SENATE COMMITTEE ON ACCOUNTABILITY the Filial Privilege under the Family Code are privileges and not
disqualifications.
In this case, executive privilege was also invoked when Neri was
compelled to disclose his conversation with then President GMA ADMISSION
regarding the National Broadband Network controversy. The SC
sustained the invocation of executive privilege because it was justified ADMISSION AGAINST INTEREST
in the interest of diplomatic relations between the Philippines and
China. Under Section 26, an act, declaration or omission made by a party as
to a relevant fact may given in evidence against him. This refers to an
NEWSMAN’S PRIVILEGE extrajudicial admission. This contemplates of a situation where the
witness is not the declarant.
Under this rule, publishers, editors, columnists and accredited
There are 2 persons involve here.
reporters may not be compelled to disclose the source of any report or
 The witness
information found in any newspaper, magazine or the like.
 The declarant
However, this is without prejudice to civil or criminal liability of the
In section 26, there are two persons involved:
publisher, editor, columnist or reporter in case the disclosure of the
 The witness; and
information constitutes a crime or wrongdoing (like Libel). But while the
 The declarant.
reporter, publisher, editor or columnist may be convicted or charged
with criminally, administratively or civilly, they cannot be compelled to
The witness is not the declarant. He is simply a person who heard the
disclose the identity of the source.
declaration made by the declarant out of court. And this witness merely
relayed to the court what he heard from the declarant outside.
EXCEPT when the court or committee in Congress find that the
disclosure is to the best interest of national security.
Example:
So if Mr. Carreon out of court informs Mr. Cid that it is true that he
Example:
committed acts of lasciviousness against Ms. Gonzaga, and Mr. Cid
If the reporter has an information given to him by an ISIS operative,
now is in court reiterating what he heard from Mr. Carreon, Mr. Cid
about the bomb in capitol that is about to explode, he may be
now is testifying on the extra-judicial admission made by Mr. Carreon.
compelled to disclose the source so as to prevent the explosion of the
bomb. (National Security)
RULE 26 says the testimony of Mr.Cid as to the extrajudicial admission
of Mr. Carreon is admissible – admissible to prove the truth of the
Does the confidentiality extends even if the reporter has retired or
admission, not just to prove the fact that the admission was made.
has been fired?
Yes. Consistent with the privilege communication rule, it survives the
In other words, the testimony of Mr. Cid is admissible to prove that
relationship. That’s why insofar as public officers, even after the end of
indeed Mr. Carreon is guilty of acts of lasciviousness. This is so even if
their terms, privilege communication still applies. As I’ve said, the
Mr. Cid has no personal knowledge of the fact that Mr. Carreon
purpose of the rule is to protect the confidential nature of the
committed the acts of lasciviousness against Ms. Gonzaga.
information.
Obviously the testimony of Mr. Cid in so far as this statement is
PARENTAL AND FILIAL PRIVILEGED COMMUNICATION concerned is hearsay, and yet it is admissible to prove the truth of the
statement that Mr. Cid heard from Mr. Carreon. So it is an admissible
PARENTAL PRIVILEGE hearsay.
The right of the parent not to be compelled to testify against his/her
children or other direct descendants. You may wonder why?
Take note of sec. 26, Rule 130 is not among the exceptions in Hearsay
FILIAL PRIVILEGE Evidence Rule enumerated in Secs. 37-47 of Rules of Court
The right of the child not to be compelled to testify against his parents (Exceptions to Hearsay evidence)
or other direct ascendants.
ESTRADA vs. DESIERTO
Take Note: This applies to all cases. More importantly, unlike the other
privilege communication rules, Parental or Filial Privilege is not a
In the case of Estrada v. Desierto, the SC ruled that sec. 26 Rule 130,
disqualification. It’s just a privilege on the part of the would-be witness
admission against interest, is an exception to hearsay, so officially it is
not to be compelled to testify.
now declared by jurisprudence as an exception to hearsay.

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Why is this so?
Hearsay evidence is supposed to be inadmissible as a general rule,
because of the absence of cross-examination.
Example: (Illustration for Sec. 28)
Prosecution for acts of lasciviousness where the victim is Ms. Gonzaga
and the accused is Mr. Carreon, the witness is Mr. Cid, but the
declarant is Ms. Lim. Mr. Cid is called to the stand that on such and
such a date during his comfy meeting with Ms. Lim, Ms. Lim confided
to him that she was present when Mr. Carreon sexually attacked Ms.
Gonzaga.
So, there are three players here:
 The accused (Carreon);
 The witness (Cid); and
 The declarant (Lim).
The one testifying is Mr. Cid about the statement of Ms. Lim. Normally,
Mr. Carreon should be allowed to cross-examine the source of the
statement but Ms. Lim is not the one on the stand. She is afraid to take
the stand so she just did it outside and informed Mr. Cid about it.
So is the testimony of Mr. Cid admissible?
The answer is no, because obviously this is hearsay. Mr. Carreon
cannot cross-examine Ms. Lim because she is not the one taking the
stand.
So it is the absence of that cross-examination that makes the
testimony of Mr. Cid, in so far as the statement he heard from Ms. Lim,
inadmissible. Compare this to Section 26 because this example is an
illustration of Section 28, hearsay.
Compare this with Section 26.
Example: (Illustration for Sec. 26)
Mr. Carreon is the accused, Mr. Cid is the witness, Ms. Gonzaga the
victim. Mr. Cid testifies that on such and such a date, during his
meeting with Mr. Carreon, Mr. Carreon bragged about sexually
assaulting Ms. Gonzaga.
This statement, unlike in the first example, is that the statement came
from Ms. Lim, a third party. But the statement now being testified to by
Mr. Cid, came from Mr. Carreon himself, the supposed cross-
examiner. The person supposed to cross-examine Ms. Lim, but this
time around there is no Ms. Lim to speak of. There is only Mr. Cid, the
witness, and him the source of the statement. So physically, and
procedurally cross examination is impossible here because Mr.
Carreon cannot be expected to cross-examine himself.
Unlike in the first example, where Mr. Carreon should be given the
opportunity to examine Ms. Lim, here, he cannot be given the
opportunity to cross-examine himself because that is legally absurd;
the party cross-examining himself. Since cross-examination is not even
required, the reason for the inadmissibility of hearsay evidence does
not apply or does not exist.
Therefore, the testimony of Mr. Cid as to the admission of Mr. Carreon
is admissible even if in that respect it is hearsay. It cannot be rendered
inadmissible under the same ground that renders hearsay inadmissible
because precisely no cross examination is possible in that respect.
That is the reasoning advance by the SC in the case of Estrada v.
Desierto.
But is it not that Mr. Carreon is prejudiced by the testimony of Mr.
Cid?
Yes, but his remedy is not to cross-examine himself but to present
evidence to controvert the testimony of Mr. Cid. Mr. Carreon can testify
in court and say that I never had that meeting with him, or I had this
conversation with him but he took this statement out of context.
EVIDENCE COMMITTEE: Alegado / Almerino / Carreon / Cid / Langomez / Layague / Monsanto / Sarucam
COMPLETE VERSION
OFFER OF COMPROMISE
There are other forms of admissions. It can be express or implied.
Now under the Rules there is that kind of implied admission, it is called
offer of compromise.
An offer of compromise as a general rule is an admission of guilt
or liability subject to the following rules:
1. In civil cases, it is not an admission of liability where an
offer to settle is made. It is not admissible as evidence
of liability in case the offer is rejected by the other party.
Example:
So in a suit for collection of sum of money for 1M, the defendant
comes to the plaintiff and offers to pay 800k but the plaintiff rejects the
offer and the plaintiff testifies in court that on such date the defendant
came to me and offered to me the discounted amount of 800k and I
reject it.
Under this rule, even if the defendant made an offer to settle, that may
not be considered in court that the defendant is liable because in civil
cases, compromise is encouraged. The rule is offer to settle does not
amount to an implied admission of liability. So do not be afraid to
settle, it will not be taken against you in civil cases.
2. In criminal cases, the general rule is an offer of
compromise is admissible as evidence as implied
admission of liability or guilt.
Example:
So in a case for murder, the accused offers the family of the victim
monetary consideration for dropping the case, if that offer is rejected
by the complainant or family of the victim, that offer may be considered
by the court as evidence of guilt or liability. For no one in his right mind,
would make such an offer unless he believes he or she is guilty.
Exceptions:
a) Exception if it is quasi-offenses. Crimes committed thru
negligence.
Example:
Reckless driving. Offer of compromise may not be taken against you
as admission of guilt.
b) When law authorizes compromise like in Tax.
There is a provision in the NIRC that offers compromise on tax
liabilities. There are criminal provisions in the NIRC but offer to settle
that liability may not be admissible as implied admission of liability
because the law itself allows compromise.
3. An offer to plead guilty to a lesser offense but rejected.
Pleading guilty to a lesser offense is not a matter of
right.
This is subject to consent by the prosecutor and the other party.
Example:
So if accused offers to plead guilty to a lesser offence from Rape to
Acts of Lasciviousness but this offer is rejected, it is not admissible as
implied admission of liability by express provision of the Rules.
4. Pleading guilty and then withdrawing; improvident plea
of guilty.
The accused plead guilty when arraigned but changed his heart after
and moved for the withdrawal of his earlier guilty plea. That may not be
taken against him. It is not admissible as evidence of guilt.
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5. When the Good Samaritan Rule applies.
An offer to pay hospital or medical bills and other expenses
occasioned by injury is not admissible as admission of guilt in any civil
or criminal case.
Example:
So if Mr. Carreon causes injury and he offers to pay for the damage, or
offers to pay for the hospital expenses, or he made actual payment to
the hospital expenses, this actual payment may not be admissible to
prove guilt or liability on the part of Mr. Carreon by express provision of
the Rules. The purpose is to encourage people to render help to
persons injured.
Summary:
Rules on Offer of Compromise:
1. In civil cases, it is not an admission of liability where an offer to
settle is made. It is not admissible as evidence of liability in case
the offer is rejected by the other party.
2. In criminal cases, the general rule is an offer of compromise is
admissible as evidence as implied admission of liability or guilt.
3. An offer to plead guilty to a lesser offense but rejected. Pleading
guilty to a lesser offense is not a matter of right.
4. Pleading guilty and then withdrawing; improvident plea of guilty.
5. When the Good Samaritan Rule applies.
FORMS OF OFFER OF COMPROMISE
What are the forms of offer of compromise? This may take
various forms and shape.
1. Offer of marriage
Example:
In rape cases; so if Mr. Carreon is complained of rape, complainant is
Ms. Gonzaga, and during the pendency of the case offers to marry Ms.
Gonzaga, that is admissible if rejected. Ms. Gonzaga may testify and
disclose to the court Mr. Carreon’s offer to marry and this may be
considered by the court as implied admission of Mr. Carreon’s criminal
liability.
2. Plea for forgiveness
If you happen to be the accused, never ask for forgiveness if you are
not certain that your forgiveness will be accepted by the complainant;
because if your plea for forgiveness is rejected, you will stand the risk
of being found guilty because that offer is tantamount to an offer of
compromise which is admissible as implied admission of liability in
criminal cases. Never ask forgiveness unless you are certain that it will
be accepted.
3. Offer to pay money
This is a common form of compromise, if rejected, admissible.
4. Offer to restitute
Example:
Mr. Carreon is accused of stealing a cellphone and the cellphone is no
longer available. Mr. Carreon would offer to restitute and buy another
cellphone for the complainant. This offer is a form of offer of
compromise admissible as implied admission of liability in criminal
cases.
So how may you safeguard your interest if you are the accused or
representing the accused and you want to explore the possibility
of settlement to abort or obviate criminal prosecution?
Take note: settlement is the best defense. A bad settlement is always
better than a good court case. So if you can settle, you go for it. But be
EVIDENCE COMMITTEE: Alegado / Almerino / Carreon / Cid / Langomez / Layague / Monsanto / Sarucam
COMPLETE VERSION
careful on the rule of offer of compromise because that might
boomerang and be taken against the offeror.
So how do you safeguard the interest of your client if your client
thinks of exploring settlement?
There are safeguards where you can lean on.
SAFEGUARDS IN AN OFFER OF COMPROMISE
1. Employ an independent third person to give the offer
In order for the compromise to constitute as an implied admission of
guilt, it must be made by the accused himself or any of his
representative or upon his acquiescence thereof. As defense counsel,
you may want to offer a compromise but want to avoid the negative
consequences of it. So you employ the help of a third person who
would serve as your emissary in offering the compromise. Only that,
you instruct the said third person that he must do so by expressly
stating that he is doing this on his own volition. So that if the offer is
rejected the accused can always deny involvement. This was the
import of the ruling in People v. Godoy.
PEOPLE V. GODOY
FACTS:
Accused was charged with rape. An imam tried to convince the
complainant to marry the accused for the charge to be dropped. This
offer of marriage is a form of offer of compromise which is considered
an implied admission of liability or guilt by the offeror.
ISSUE:
Is the offer admissible in evidence against the accused?
RULING:
No. It was not established in this case that the imam made to offer in
behalf of the accused or with the consent nor acquiescence of the
latter.
2. Premise your offer of settlement or compromise with the
express statement that it is not an admission of
guilt/liability
So you explicitly state that the offer is only to buy peace and avoid
unnecessary litigation. So it is an offer of compromise with a
disclaimer. Some courts view offers like this favorably and will not take
it against the offeror if the same is rejected.
RES INTER ALIOS ACTA OF THE FIRST BRANCH (SECTION 28,
RULE 130 OF THE RULES OF COURT)
The rule that the rights of a party cannot be prejudiced by an act,
declaration, or omission of another.
There are three persons involved here:
1) The witness
2) The declarant; and
3) The person to whom against it is offered (e.g. accused in a
criminal case)
So the declarant here makes an assertion or admission that is also
prejudicial to the accused and the witness testifies about the
declarant’s statement and offers it against the accused.
The RES INTER ALIOS ACTA (RIAA) doctrine prevents the
admission of this testimony in evidence. The basis for this rule is the
lack of cross examination and observation of due process.
So:
 If it is an admission by the party himself (Sec. 26, Rule 130)
– admissible.
 But if it is an admission by a third party that is also prejudicial
against another (RIAA, 1st branch) – inadmissible.
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EXCEPTIONS
1. Admission by co-partner or agent (Sec. 29, Rule 130)
The act or declaration of a partner or agent of the party may be given
in evidence against such party, provided that the following are proved:
(1) The act or declaration was within the scope of his authority;
(2) During the existence of the partnership or agency; and
(3) The partnership or agency is shown by evidence other than
such act or declaration (independent proof of partnership).
The same rule applies to the act or declaration of:
(1) A joint owner
(2) Joint debtor; or
(3) Other person jointly interested with the party.
Example:
Mr. Carreon was sued for non-payment of taxes for their partnership
business. During trial, the BIR presented Mr. Cid who testified that Ms.
Lim, a co-partner, admitted that their partnership was not paying taxes.
Normally this would have been inadmissible. But under the exceptions,
it is.
This is so because under the eyes of the law, the persons enumerated
therein are considered as a single entity because of the oneness of
their interest. So the admission of one is also the admission of another.
Thus, it is like an admission under Sec. 26 (Admission of a party). This
is also applicable under a principal-agent relationship.
2nd element: During the existence of the partnership or agency
When must the partnership or agency exist for the exception to
apply (the time the testimony is given or the time the admission
was made)?
The partnership must still legally exist (i.e. the declarant and the other
partner must still be partners) and must not be dissolved when the
admission of the co-partner was made.
Take Note: From this, it can be inferred that it does not matter if they
were no longer partners or that the partnership was already dissolved
when the testimony about the admission was given in court. It will still
be admissible.
3rd element: Independent proof of partnership (how proven)
In the example, the admission of Ms. Lim by itself cannot be used to
also prove the existence of the partnership. Such that if it is offered
without the independent proof being first established, it may be
objected to. Let’s say you want it to still be admitted, what can you do?
Invoke the rule on conditional admissibility. Ask the court that it be
admitted first while promising that you will present independent proof of
partnership to support the admission. Hence, if you are unable to fulfill
the promise, the testimony will simply be stricken off the record.
2. Admission by a conspirator (Sec. 30, Rule 130)
The act or declaration of a conspirator may be given in evidence
against the co-conspirator, provided:
(1) The act or declaration relates to the conspiracy;
(2) Such act or declaration was made during its existence; and
(3) The conspiracy is shown by evidence other than such act of
declaration (independent proof of conspiracy).
2nd Element: Such act or declaration was made during its
existence
So the act or declaration must be made while the conspiracy still
exists. So the question now is when is a conspiracy still considered
existing?
EVIDENCE COMMITTEE: Alegado / Almerino / Carreon / Cid / Langomez / Layague / Monsanto / Sarucam
COMPLETE VERSION
To answer this, we need to look at the definition of “conspiracy” under
the Revised Penal Code.
Under the RPC, there is conspiracy when two or more persons get
together to commit a felony and decided to commit it. Conspiracy
simply refers to the planning stage. When two or more persons
commit a crime that is conspiracy.
Based on that provision of the Rules, the admission made by the
conspirator should be done during the planning stage; not during the
commission of the crime nor after the consummation of the crime
because conspiracy ends when the crime begins. When the stage of
the execution begins, conspiracy is no longer in the planning stage.
Example:
Let’s say: Miss Lim and Mr. C planned to rape Miss Gonzaga. Miss
Lim: Oh Mr. C, you take the lead, I will just make it convenient for you;
I will just hold the hands and legs and you do the rest. Now, their plan
was to do it the following morning. While on her way, Miss. Lim was in
the company of Miss Mali. In her conversation, Miss Lim blurted it out
that she just came from a meeting with Mr. C and during that meeting
they planned to rape Miss Gonzaga the following morning. True
enough, they succeeded in committing the crime, subject of their
conspiracy. One of them got caught. So they are now prosecuted. One
of the star witness is Miss Mali. Miss Mali testified that, the night before
the rape, she had a conversation with Miss Lim to the effect that Miss
Lim and Mr. C had conspired to rape Miss Gonzaga the following
morning.
The admission of Miss Lim, done before the crime, is an admission
made by a conspirator. This admission came from Miss Lim and not
from Mr. C. But under this exception, that admission of Miss Lim is also
admissible against Mr. C, provided the conspiracy must be established
independently by evidence other than the declaration of Miss Lim.
Usual occurrence (reality): Admission made by conspirator are
usually done after the commission of the crime, or one or some of
them got caught, and while in detention they would execute extra-
judicial confession admitting to the crime and implicating the other
conspirator.
Example:
Let’s say: the following morning, both of them succeeded in committing
the crime. But two days later, Miss Lim got caught and during her
detention, she broke down and confessed to her participation as well
as implicated Mr. C. The admission of Miss Lim was heard by the
investigator, Mr. Cid. And so during the trial, Mr. Cid testified that on
such and such a date, when he arrested and interrogated Miss Lim,
with assistance of counsel, Miss Lim confessed to the crime and
implicated Mr. C.
Under RES INTER ALIOS ACTA, the admission made by Miss Lim
may not be admissible against Mr. C because this does not fall
under the exception.
Rather, it falls under the general rule under Section 28 of Rule 130 of
the Rules of Court – The declaration of Miss Lim may not be
admissible against Mr. C because the admission was made after the
termination of the conspiracy, or, worse, after the consummation of the
crime, subject of the conspiracy. This is what happened in People vs.
Yatco.
3. Admission by privies
When a party derives title to property from another, the act or
declaration made by the latter relating to, and while holding, the title to
the property is admissible against the former.
In other words, when a successor derives his title from his
predecessor, the act or declaration made by predecessor relating to,
and while holding, the title to the property is admissible against the
successor.
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The reason behind is, in law, the successor and the predecessor are
the same; the successor simply steps into the shoes of the
predecessor. Although, physically, they are two different individuals,
the law treats them as one person for purposes of the rule; and
therefore, an admission made by the successor is binding upon and
admissible against the successor-in-interest.
Remember these two qualifications:
(4) The admission of the successor must relate to the title of the
property, and should not relate to anything else; and
(5) Most importantly, it should be made, the declaration or
admission, while the successor was still holding title to the
property, not before nor after.
Case in point: CITY OF MANILA vs. DEL ROSARIO
CITY OF MANILA vs. DEL ROSARIO
This involves a piece which the City of Manila claims as its own. It
happens that this property was claimed by Jacinto. During the trial,
initiated by the City of Manila, the latter, to substantiate its claim,
presented two letters that Lorenzo prepared: the First letter was sent to
the mayor and the second letter was sent to the City council. In the first
letter, Lorenzo offered to buy the property from the City of Manila,
while, in the second letter, Lorenzo offered to buy the property from the
City of Manila.
It was argued that Lorenzo, by offering to buy the property from the
City of Manila, must have admitted that the property belongs to the City
of Manila. It was established that Lorenzo, subsequently, sold the
property to his brother, Jacinto, who is now the present possessor-
claimant.
The admission of these letters was objected to under RES INTER
ALIOS ACTA because the letters were prepared by Lorenzo. The party
is Jacinto. RES INTER ALIOS ACTA. The right of Jacinto may not be
prejudiced by the act or declaration of Lorenzo. But the City of Manila
invoke the exception – Admission by privies – because Jacinto derived
his property to the property from Lorenzo; Lorenzo his predecessor
and Jacinto, successor. And so, it was argued that any admission
made by Lorenzo, acknowledging the ownership of the City of Manila,
is admissible against Jacinto, the predecessor.
The SC rule that for this exception to Res Inter Alios Acta – admission
by privies to apply, it is required that the admission must be made by
the predecessor while the latter is still holding title to the property, that
is, he was still the owner of the property. In this case, the SC said:
1.) The first letter was sent to the City Mayor by Lorenzo before
he bought the property;
2.) The second letter was sent to the City Council of Manila by
Lorenzo after he sold the property to his brother, Jacinto.
1st letter, which contain the admissions, was made before Lorenzo
became the owner.
2nd letter, which contain the same admissions, was made after
Lorenzo ceased to be the owner.
On each count, the letters did not fall under the exceptions.
DIFFERENCE BETWEEN SEC. 28 (ADMISSION BY PRIVIES) AND
SEC. 38 (DECLARATION AGAINST INTEREST)
Clarification: Sec. 28 – Admission by Privies – may be so confusingly
similar with Sec. 38 – Declaration against interest.
Sec. 28 is an exception to Res Inter Alios Acta.
EVIDENCE COMMITTEE: Alegado / Almerino / Carreon / Cid / Langomez / Layague / Monsanto / Sarucam
COMPLETE VERSION
Sec. 38 is an exception to Hearsay Evidence Rule.
They operate in different context but their application may be
confusing.
In a DECLARATION AGAINST INTEREST (SEC. 38), it says there:
The act or declaration of deceased person or unable to testify is
admissible in evidence if it is at the time it was made contrary to the
interest of the declarant. Any reasonable man would not have made
such declaration unless he believes it to be true.
Admissible against the declarant, his heirs, successors-in-
interest or third party. So when a person makes an admission
against/adverse/contrary to his own interest, and he dies or unable to
testify, someone who heard this declaration may testify in court; and
his testimony, in so far as that declaration, is admissible even if it
hearsay under that exception.
In ADMISSION BY PRIVIES (SEC. 28), it may contemplate a situation
where the predecessor is already deceased; because it is not required
that at the time of the presentation of the evidence, the predecessor is
still be alive; so it is possible that successor or predecessor is still alive
or is already dead.
Example:
In a situation where the predecessor is already dead, and the
successor made an admission, contrary to his interest, a predecessor,
while holding title to his property, made a declaration contrary to his
own interest, and then the property he owned was conveyed it to this
successor.
Under ADMISSION BY PRIVIES, that admission made by the
predecessor is admissible against the successor.
Applying the same set of facts, but this time around focus our attention
to Section 38: The successor there is the person who made the act or
declaration against his interest, but dies or, otherwise, incapacitated to
testify; so, someone who testifies as to that admission.
UNDER THIS RULE – DECLARATION AGAINST INTEREST, the
declaration of the deceased-declarant, now being testified to by
witness, may be admissible, not only against the declarant but against
his heirs, successors in interest or third party.
So the same set of facts, both exclusionary rules.
The problem here is they cannot be applied at the same time because
the rule is, Res Inter Alios Acta and the other Hearsay.
What happens if the declarant is not dead but alive?
 The declarant is dead, both principle apply.
Admission by privies does not require that the declarant (predecessor)
is alive.
If the testimony of the witness is now offered to prove the
declaration made by the predecessor, which principle do you
invoke? If you invoke Sec. 28 – Admission by Privies, what is the
effect?
It’s binding if you apply Hearsay Evidence Rule.
If the declarant is dead, no problem; it has the same effect:
 You apply admission by privies, admissible against the
successor.
 You apply the declaration against interest, admissible
against the successor because it’s an exception Hearsay.
Example:
Suppose the declarant is alive. If it is alive, admissible against the
successor, if you invoke admission by privies; not admissible if you
invoke declaration against interest because it is required that the
declarant must be dead.
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How to address if the proponent offers the testimony of Mr. Cid?
Of course, you will invoke admission by privies because that will be in
your interest.
But there is the other party would object under Hearsay because it
does not fall under exception to Hearsay because the declarant is still
alive. If it does not fall under the exception – declaration against
interest – then it is Hearsay, inadmissible.
The other party is invoking this rule, the other invoking another.
They cannot operate together.
This is where the importance of offer lies because of the principle of
multiple admissibility of evidence. An evidence may be admissible for
one purpose, inadmissible for another purpose.
If you are the proponent, it is admissible against Admission by privies,
so yours should be as an exception to Res Inter Alios Acta, particularly
admission by privies. And therefore, it is the offer made by the
proponent, any objection to the admission should be tested on the
basis of the offer.
It should not be tested on basis of other rules because it was not
the purpose for which it was being offered. So the other party
may not invoke hearsay because it is not the offer.
So, whether the testimony of Mr. Cid is admissible or not, it should be
tested in the basis of Res Inter Alios Acta rule. It does not matter if that
same evidence is inadmissible in other rules are concern.
Summary:
Difference between Admission by Privies and Declaration against
Interest:
DECLARATION AGAINST
ADMISSION BY PRIVIES
INTEREST
Exception to Hearsay Evidence
Exception to Res Inter Alios Acta
Rule
The declaration of the deceased-
declarant, now being testified to
Admission made by the
by witness, may be admissible,
predecessor is admissible against
not only against the declarant but
the successor.
against his heirs, successors in
interest or third party.
Does not require that the
The declarant should be dead
declarant is alive or dead
Focus on the purpose for which the evidence is offered.
HEARSAY EVIDENCE RULE
INTRODUCTION
The basic rule in evidence is the witness may only testify as to those
facts which are only known by him based on his personal knowledge,
meaning, the knowledge derived by the witness through his or her own
perception.
General Rule: If the witness testifies as to something he has no
knowledge about, the testimony is inadmissible and therefore, it can be
objected to by reason of hearsay evidence rule.
There are, of course, exceptions to the rule.
But first, let’s understand why hearsay evidence is inadmissible
in the first place.
In the street parlance, we refer to this commonly as “chismis” but
“chismis” is so commonplace; but in law, especially in Evidence, that is
not admissible.
EVIDENCE COMMITTEE: Alegado / Almerino / Carreon / Cid / Langomez / Layague / Monsanto / Sarucam
COMPLETE VERSION
As what is commonly said, “When there is fire, there is smoke.” This
doesn’t hold true in law, particularly in Evidence; because the law
requires that the witness, the source of the information, should be an
authentic source – the very source of the information should be the
one who obtained the information directly through his or her own
senses. He should be the one who had smelled it, seen it, heard it, so
on and so forth.
WHY IS HEARSAY INADMISSIBLE IN THE FIRST PLACE?
There are three (3) reasons, actually:
1. Absence of Cross-Examination
2. Absence of Demeanor Evidence
3. Absence of an Oath or Affirmation
Absence of any of these renders the evidence as hearsay.
Why are these (Cross-Examination, Demeanor Evidence and Oath
or Affirmation) necessary, such that non-compliance with these
requirements renders the testimony inadmissible on the ground
of hearsay?
The explanation behind the rule is this: A proponent of a witness is
required under the law to not just present any witness but a quality
witness.
So, the testimonial quality of a witness is tested on the following
bases:
1. The witness’ sincerity and willingness to testify
truthfully
The witness’ willingness and sincerity to be honest with his words –
veracity. So a quality witness is one who is sincere and honest in his
testimony.
2. The ability of the witness to testify
These are two different things – the willingness to testify truthfully and
the ability to testify. It’s not enough that the witness is honest because
he is sincere, he is willing to bear all, no holds barred; but the witness
should be competent to testify.
He should have the ability to testify, and this ability to testify
depends on three basic factors:
a) Capacity for observation/perception
Witness may be willing, may be sincere but he has no capacity to
observe.
Example:
He claims to have heard the conversation of the accused and the other
accused but it so happens that he is deaf-mute. He is sincere but
obviously, he has no capacity to testify, given that he has no faculty of
observation – hearing, in that respect.
So, capacity to perceive is a factor to consider to test the ability of the
witness to testify. So, the question there insofar as that factor is
concerned: “Did the witness perceive the event which he claims to
have witnessed?”
If the witness claims that he saw the killing of X by Y, the question
there is, “Did he really observe it? Did he really perceive it?” and if
he did, “Did he really perceive it accurately? Did he really observe
it accurately?” because he may have some observations, but the
observation may not be accurate because of some defects in his
faculty of observation.
Example:
Like an eye witness who claims to have positively identified the
assailant but it so happened that he was too far away from the scene
of the crime, the place was not properly lighted, and he might have
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some defects in his vision, impaired vision. He may have some
observations there but is the observation accurate? Reliable?
So, it has to be tested in that respect.
So, the capacity for observation – whether the observation was
possible and whether the observation, if possible, was accurate.
b) Capacity to remember what the witness has perceived
(Memory)
This refers to memory. The witness may have claimed to have
witnessed an incident but when he was asked to recount the incident,
the witness would say, “I do not remember!” or “I could not really
remember it well. My memory in this respect is sketchy.” So, there may
be some memory there, there may be some capacity to recollect the
event but not complete and not accurate.
So, again, this is a factor relating to capacity to memory. So the
question here is, “Has the witness retained an accurate impression
of the event he has claimed to have witnessed?” So, it relates to
his capacity to retain the impression of the event that he is now
describing to the court.
c) Capacity to communicate or make known his perception
to others (Transmission)
So, the witness may have a good sense of observation. He may have
also a good sense of memory, but there might be some difficulty in his
language; such that, he may not be able to convey accurately through
his language the event or the impression of the event that he had
perceived.
Example:
Remember this anecdote of a policeman: a policeman was assigned
as the officer on duty one time. When you are an officer on duty, you
are supposed to be responsible in making entries of the police blotter.
So one day, this police officer, Police Officer Carreon, while on duty,
somebody came to the precinct to report a stabbing or incident. The
reporter, having a good observation of the incident and obviously
having a good impression of the incident he had witnessed, narrated to
the police all the details of what he saw.
As described by the witness, the witness said, “X killed Y using a knife.
The problem there is that the police on duty, Police Officer Carreon,
had a difficulty in entering the correct spelling of “KNIFE”. And so,
when the police blotter was prepared and presented in court, Police
Officer Carreon, instead of writing “KNIFE”, wrote in there “SMALL
BOLO”.
Small bolo and a knife – two different things. A good cross-examiner is
really good at cross-examining the witness and it could spell the
difference between acquittal and final conviction. See? Critical fact
referring to the murder weapon. The witness may not be consistent in
this police blotter.
Of course, during the testimony, the witness was straightforward in
saying that it was really a knife, but the police blotter says it was a
small bolo. A small bolo, no matter how small, cannot be a knife. You
don’t call a knife a small bolo.
And that is to illustrate the point that a witness may not be able to
convey through his language what he really actually perceived. He was
meaning something but the language used was different. It deviated, at
variance with what he really wanted to describe.
So, that refers to facility of communication. That’s why details, always
details, always ASK for details; because the description may be
different from what the witness wanted to actually portray.
So, all these – you have:
a) Capacity for Observation
b) Memory
EVIDENCE COMMITTEE: Alegado / Almerino / Carreon / Cid / Langomez / Layague / Monsanto / Sarucam
COMPLETE VERSION
c) Communication
Why are these factors relevant now insofar as the Rule on
Hearsay Evidence?
Obvious!
 In relation to the requirement of an oath or affirmation
As what I pointed out earlier, one of the reasons why hearsay evidence
is inadmissible is the absence of an oath of affirmation. Now, what’s
the relevance of an oath or affirmation?
An oath or affirmation is designed to ensure that the witness would be
constrained to testify truthfully because testifying falsely would incur
adverse consequences.
This requirement relates to the first factor, the ability to testify truthfully
or the veracity, the willingness or sincerity to testify truthfully. That’s the
reason why oath or affirmation is required as one of the qualifications
of a witness. That is designed, aimed, ensuring that the witness must
be sincere and willing to testify truthfully.
 In relation to demeanor evidence
DEMEANOR EVIDENCE refers to the conduct of the witness in court
as observed by the judge. Sometimes or most of the times, truth is not
what the witness says, but it is in how the witness says it.
Testifying is also an art. If the witness is testifying falsely, there might
be physical manifestations there like the Judge might observe how the
eyes of the witness rolled in the course of the testimony. The witness
displays being fidgety, nervous, perspiring profusely. The witness may,
during the course of the testimony, stammers, hesitates.
These manifestations – so-called demeanor evidence – play a vital role
in the court’s appreciation of the witness credibility, if the witness is
testifying truthfully or whether he is testifying falsely. This can only be
ably achieved by the court, meaning the court can only obtain
demeanor evidence, if the witness testifies personally in court.
So, demeanor evidence and the requirement that the witness should
personally testify is relevant in testing the testimonial quality of a
witness. This refers to demeanor evidence relating to the first –
willingness and sincerity to tell the truth. It refers to the sincerity of the
witness, factors in determining whether the witness is testifying
truthfully.
 In relation to cross-examination
Why is cross-examination necessary? As a matter of fact the absence
of cross-examination is one of the reasons why hearsay evidence is
inadmissible. Very important because by cross-examination it is only
then that the three factors referring to the ability to testify (the witness’
capacity for observation, memory and communication) can be tested.
How else do you test the witness’ observation if he is not cross-
examined? How else do we test the witness’ memory if he is not cross-
examined? How else do we test the witness’ transmission and
communication if he is not cross-examined on the details of his
testimony?
So, very important to establish this second factor in determining the
testimonial quality of a witness and I’m referring to the ability or
capacity to testify which depends on these three factors.
That’s why when we want to discredit the witness because we believe
that he has no accurate reconstruction of the event, then cross-
examine him on the details and establish that it was not possible for
him to retain an accurate impression of the event because of some
limitations.
Example:
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You can establish that the incident took place in a dark place – no
sufficient illumination, he was so far away from the incident, he was in
a hurry, he was so scare as to observe it intently – these are matters
you can establish, and in the end, prove that the witness’ observation
of the incident that he described in court could not be accurate. If the
court buys your argument, the court may discredit the witness.
So, that’s the reason why cross-examination is important – exactly to
ensure that all these testimonial qualities, which depend on these
factors, are properly tested so as to ensure that the proponent or the
adverse party would be in a position to determine or especially the
court, whether the witness could be relied upon with his testimony.
So, hearsay again, if it is not based on his personal knowledge, it is
inadmissible because of hearsay; but the determination of whether the
evidence is hearsay of not depends on, again I have to emphasize this,
on the purpose for which the evidence is offered.
You apply Hearsay Evidence Rule and therefore exclude or object to
the admission of any testimony or evidence not based on the personal
knowledge of the witness when the purpose of the testimony of the
witness is to prove the truth of the statement, assertion or declaration.
Hearsay Purpose
Take Note: If that is the purpose of the testimony, the formal offer of
the testimony of the witness, to prove the truth of the statement,
assertion or declaration, then you have here a situation that calls for
the application of Hearsay Evidence Rule.
So, you now determine whether he is testifying based on his personal
knowledge. Otherwise, the testimony is hearsay.
Non-Hearsay Purpose
On the other hand, if the purpose, the formal offer, is for NON-
HEARSAY PURPOSES, forget about Hearsay Evidence Rule! HER is
not applicable.
So, what’s non-hearsay?
A NON-HEARSAY PURPOSE refers to a purpose other than to prove
the truth of the statement or assertion. Simply put, non-hearsay
purpose refers to a purpose that the evidence is offered to prove that a
statement or a declaration was in fact made.
So, the difference is so simple:
HEARSAY PURPOSE NON-HEARSAY PURPOSE
If the purpose is to prove that the
statement was made, regardless
If the purpose is to prove the truth
of the truth of the statement
of the statement
(Independently Relevant
Statement)
Covered by Hearsay Evidence
Not covered by HER
Rule
INDEPENDENTLY RELEVANT STATEMENT
This is where lawyers and judges are commonly mistaken.
INDEPENDENTLY RELEVANT STATEMENT (IRS) is not hearsay,
because the purpose there is to prove that the statement was made.
The witness there has personal knowledge as the making of the
statement. Insofar as the witness is concerned and insofar as the
purpose for which his testimony is being offered, he has personal
knowledge. It’s not hearsay; because in that sense, the truth of the
statement doesn’t matter. What matters is whether or not that
statement was actually made.
WHEN IS A STATEMENT DEEMED TO BE AN INDEPENDENTLY
RELEVANT STATEMENT?
There are two (2) instances:
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1. If the making of the statement is the very issue in the
case, regardless of the truth of the statement.
Examples:
In a prosecution for libel
Carreon circulated rumors, defamatory stories and allegations against
Gonzaga. He said that Gonzaga is an easy girl and hops from one
man to another and changes boyfriends like how she changes her
wardrobe. Gonzaga instead of feeling proud about it, felt defamed,
humiliated. Gonzaga now initiated a criminal case for oral defamation,
grave slander against Mr. Carreon.
The first witness presented by the prosecution is Lim. Lim testifies that
on such and such a date, Carreon told her, “You know, I bedded
Gonzaga so many times but I left her because I learned she hops from
one man to another and I cannot take it.” Of course, Lim has no
personal knowledge whether that statement of Carreon is true about
the sexual inclination or moral depravity of Gonzaga. In the first place,
she does not even personally know Gonzaga.
But, in the prosecution for grave oral defamation, the pivotal issue
there is whether or not a statement claimed to be defamatory was
actually made by Carreon because if it is not proven that Careon did in
fact make that statement, then there is no case. So the fact that the
statement allegedly defamatory was made by Carreon is the very issue
in case. It does not matter if Lim has a personal knowledge of the truth
of the statement, what matters there is Carreon did in fact make such
statement. The testimony of Lim as to the making of such statement by
Carreon may not be objected under hearsay because it was obviously
offered to prove the fact that it was made insofar as Lim is concerned.
She has personal knowledge that Carreon made such a statement.
Grave Threats
Carreon instituted an action against Acusar. They were having a tug of
war over a girl and in the process, Acusar threatened Carreon with a
gun. Grave threats! And then told Carreon, “If you do not leave her
alone, I will see you in hell!” A witness was presented in the course of
the trial. The witness presented was Alegado, who was present when
the threats were uttered by Acusar. She testified from what she heard
from Acusar. The issue in the prosecution for grave threats is whether
or not the allegedly threatening remarks were actually uttered by
Acusar. Regardless of whether he really meant it. He told Carreon,
“You son of bitch, I’ll see you in hell!” It does not matter whether
Carreon is really a son of a bitch. The thing is Alegado personally
heard Acusar uttering the allegedly threatening words that is the only
thing that matters for grave threats. That’s the very issue, the making
of the statement claimed to be threatening is the issue in the case.
2. The making of the assertion, declaration or statement is
not the very issue in the case but it is a circumstantial
evidence of the fact in issue in the case, not the direct
issue but just circumstantial evidence of a fact in issue.
Instances that illustrates this principle:
Prosecution for murder
Carreon and Acusar had a violent fight over a girl. Again, in the
process, Acusar with a gun, threatened Carreon telling him, “You son
of a bitch! If you don’t leave my girl alone, I’ll see you in hell!” Feeling
threatened, feeling that his safety was in danger, Carreon pulled out
his gun and shot Acusar to death. As it is now, he is now facing a
criminal case for murder or homicide.
His defense was self-defense to unlawful aggression. Someone
pointed a gun at him threatening. The issue here is whether or not
insofar as self-defense interposed by Carreon is concerned, whether or
not he was justified in killing Acusar. Under the principle of self-
defense, you are justified in killing, if you honestly believe that your life
was in danger and there is unlawful aggression. It’s important there
that the frame of mind of the accused was justified based on his frame
of mind at that time for him to kill the assailant.
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How do you prove the frame of mind of Carreon at the time? That
he really felt threatened that he should by instinct to preserve
himself?
By the statements made by the assailant! When the assailant tells you
with a gun in his hand, pointing at you, “Son of a bitch, I’ll see you in
hell!”, that will prove the state of mind of the listener, Carreon, that he
was really afraid and that he really believed that his life was in danger.
That justifies him to kill the assailant.
So my point is the issue is whether or not the frame of mind of the
assailant is that that would justify the invocation of self-defense. The
statements made here is circumstantial evidence to prove the state of
mind of Carreon.
Circumstantial, not the very issue. Circumstantial only. The very issue,
insofar as the defense is concerned is his frame of mind or the frame
of mind of the declarant.
State of Mind: Probate of a will
Carreon, very naked roams around announcing to the whole world that
he is Brad Pitt and that he is the ex-husband of Angelina Jolie.
Supposed around the time Carreon was seen and heard roaming
around telling the whole world that he was Brad Pitt, he executed a last
will and testament. Acusar is the executor. During the probate
proceedings, you have to prove the extrinsic validity of the will
including the capacity of the testator. Particularly that the testator was
of sound and disposing mind at the time the will was executed. The
issue is whether or not the testator was of sound and disposing mind.
But by the introduction of the statement by the testimony of Gonzaga
who has seen and heard Carreon say that he was Brad Pitt, this would
be a circumstantial evidence that perhaps Carreon was not of a sound
and disposing mind at the time the will was executed because that
statement is proof of the state of mind, the condition of mind on the
part of Carreon at that time. It’s a circumstantial evidence that Carreon
was not of sound mind.
CIRCUMSTANTIAL EVIDENCE OF PROOF THAT A PERSON WAS
IN A PARTICULAR PLACE AT A PARTICULAR TIME:
In a prosecution for rape, Carreon was charged in a crime of rape of
Gonzaga that took place in Cebu but the defense of Carreon is that he
could not have committed the crime because on such and such a date
the crime was committed, he was in Basilan. He was in Basilan, as a
matter of fact, he was preaching there. He now becomes an imam. So
to substantiate his defense of alibi, somebody came forward, Mali, a
member of Carreon’s flock. She testified that on February 14, 2017,
she attended a religious gathering among Muslims and one of the
preachers there was imam Carreon and during his preaching, this is
what he said and so on and so forth. The witness may testify on the
facts of the statement as part of her narration of facts on the event the
she claimed she had witness. The truth of the statement does not
matter. What matters here is the fact that he had made that statement
that on such date, and on such place, Carreon was in Basilan and
therefore, he could not have committed the rape in Cebu city,
regardless of the truth of what he said.
IMPEACHING THE CREDIBILITY OF THE WITNESS:
 By proving the inconsistency of the witness.
Example:
A witness, after the incident reported to the police and he was
interviewed by the police and said that, “I saw X shot to death by
someone, an unidentified man. I could not recognize him because he
was wearing a bonnet.” That’s the statement in the affidavit executed
by the witness but during the trial, the witness now has a different
testimony.
The witness now during the trial testifies that he is very certain that the
assailant was Carreon. There’s really a variance between his
testimony in court and the affidavit he executed before the police.
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You’re the cross-examiner, you can impeach the testimony of the
witness by confronting him with his affidavit which is contrary to his
testimony now in count. Now the affidavit would contain several
statements and assertions, some of them he may not have personal
knowledge bur that is not relevant for the purposes of proving that
indeed the witness made an earlier affidavit which happens to be
inconsistent with his testimony in court.
This is circumstantial evidence that the witness is testifying falsely. It is
not the issue in the case but the fact that he had made a statement
earlier contrary to his testimony is a circumstantial evidence of his
being incredible witness, a falsified perjured witness.
These are the common instances where the testimony of the witness
as to the fact of making a declaration assertion or statement may not
be objected to under the hearsay evidence rule because it is offered as
an independently relevant statement.
EXCEPTIONS TO HEARSAY EVIDENCE RULE
1ST: DYING DECLARATION (SECTION 37)
It says there the declaration of a dying person under consciousness of
an impending death concerning the cause and circumstances of his
death may be received in evidence in any case where the death of the
declarant is the subject of inquiry.
What is the reason behind this dying declaration as an exception
of hearsay?
This contemplates of a situation where someone is dying. He made
some declarations heard by someone else, and the declarant dies. The
one who herd the declaration is now being presented in court. He will
now be testifying in court as to what he had heard from the dying man
now dead. That’s obviously hearsay if the purpose is to prove the truth
of the statement that the witness obtained or heard from the declarant.
If the case falls under exception to hearsay, it is admissible as proof of
the truth of the statement even if it is hearsay. Precisely it is an
exception. We’re talking here of a situation where the statement is
offered as proof of the truth of the statement.
So obviously the witness has no personal knowledge because he was
not there when the incident took place. The testimony as to the cause
and the surrounding circumstances of the death of the declarant, the
witness has no personal knowledge, but because it falls under the
exceptions, it is admissible.
REQUISITES:
1. It must be made by the declarant under consciousness
of an impending death.
How do we determine the declarant was under the consciousness
of an impending death?
This is what the police would usually do. They cannot take chances or
else the testimony would not be declared as a dying declaration. To
comply with the requirement, this first requisite, the police have this
standard. They would ask the dying man whether he is consciousness
of an impending death. “Do you think you will die?” Scary question. If
the declarant says, “I will die. I’m gonna die.” That’s consciousness of
an impending death.
But in instances where the consciousness is not expressed, how
is consciousness of an impending death determined?
This can be determined by a lot of factors, common of which is the
nature and extent of the injury. If the injury is so fatal and serious,
normally that would make the declarant conscious of an impending
death. The statements of the declarant like the declarant would now
confide to the listener some matters obviously leaving them some
information. That’s obvious. When you are dying, you would reveal
your secrets tom someone who is listening.
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Example:
Carreon was involved in a violent fight and he was dying. One of the
witnesses, Sanchez came to him. Conscious of his impending death,
Carreon told Sanchez, “Jaime I have that sex video in my cabinet,
please retrieve it and destroy it. I do not want to scandalize my family.”
This is an indication that he is conscious of an impending death. So
why would he reveal this very private secret to a friend? This is
indicative of a consciousness of an impending death.
IMPORTANT: Consciousness of an impending death is not determined
by the rapid succession of death at a point of time. How many minutes,
how many houses, how many days. There is no fixed rule. The only
standard there was whether when the statement was made, the
declarant has abandoned all hopes of recovery. He is already
hopeless. That’s the determining factor, not the succession. It cannot
be determined by a fixed formula as to time. In relation to this
requirement, do not forget the concept of ratification.
DOCTRINE OF RATIFICATION
This was enunciated in the case of PEOPLE v. BABIERA.
PEOPLE vs. BABIERA
FACTS:
Involving a prosecution for murder. The victim there after the incident
made a declaration identifying the assailant and the circumstances of
the incident. But at the time he made the statement, he was not
conscious of an impending death. In fact, he even said to the
policeman, “I’m gonna survive.”
A day after, the policeman visited him, and this time around the
complainant realized that he would die and so the policeman
confronted him with his earlier affidavit and asked him if he would
confirm it or change anything. And he said that he confirms what he
said earlier and then the victim died. Then the affidavits were
presented during trial but objected to under hearsay evidence rule.
Prosecution argues that this falls under the exception.
HELD:
SC said while the first affidavit could not be admitted under dying
declaration because it was obviously made when the declarant still
believed he would survive, the second affidavit was the one which
confirms the earlier one. SC said that when a statement was made at
time when the person is not conscious of an impending death and later
on confirms it, reiterates it at the time he is conscious of an impending
death, he is deemed to have ratified the earlier one.
When a witness made certain statements at the time the witness is not
conscious of the impending death but later on confirms it or reiterates it
at the time that he is already conscious of the impending death, he is
deemed to ratify the earlier one. Therefore, that statement is
admissible under the dying declaration as an exception.
2. Declarant who is already dead must be competent.
Since the declarant is already dead, the witness who heard the
declaration takes over the shoes of the declarant. It is as if the
declarant is testifying through the witness because the witness is
merely a messenger, delivering the message.
So that if the declarant is not competent to testify even if he survived
for whatever reason, the witness who heard the declaration is equally
incompetent to testify (even if witness is competent).
IF SOURCE IS POLLUTED, THE SPRING IS POLLUTED AS WELL.
The fruit cannot fall far from the tree.
ARIATE vs. PEOPLE OF THE PHILIPPINES
Involving the prosecution for murder. A neighbor of one family reported
to them about the body of their father lying dead somewhere. It was
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learned that the neighbors were responsible for the killings. Nobody
came forward to testify as to the killing, the only evidence presented by
the prosecution was the testimony of the witness who claimed that he
had heard the victim making a statement, identifying the neighbor as
the assailant. That’s the only evidence presented by prosecution.
SC: Rejected the testimony of the witness. The alleged dying
declaration of the victim cannot be admitted as dying declaration as an
exception of the hearsay evidence rule because even if the victim
himself survived, he was not competent to testify as to whether the
party responsible for the killing was the neighbors. Further, there was
no evidence at all to establish the circumstances of the killing. It cannot
be established that the victim saw the neighbors attacking him. If he
was not in the position to observe or to see the identity of the assailant,
even if he were alive, he would not be able to identify them. Therefore,
when the victim dies, the witness who heard his declaration cannot be
allowed precisely because the victim himself is not competent.
Take Note: Determine first if the victim at the time of the making of the
declaration is competent. Test: “Had the victim been alive, would he
be a competent witness?”
3. The dying declaration should relate to matters that
concern the cause or surrounding circumstances of the
death of the declarant, not any matter unrelated to the
killing, particularly the identity of the assailants, any
statements made before, during, or after the attack.
Example:
Statements that would determine the motive of the attack, statements
that would determine the premeditated nature of the attack, or the
emotion of the assailant at the time the attack was made. These
matters could be proved by the declaration of the victim.
Example:
Mr. Carreon was attacked and dying. He whispered to Mr. Sanchez
“take care of my daughter, I have my illegitimate daughter, I’ve been
supporting her since 5 years ago. She’s now in school, please take
care of her.”
Suppose, Mr. Carreon is married and an issue as to the
legitimacy/illegitimacy/filiation of the child came up and brought up in
Court.
Can the testimony of Mr. Sanchez be admitted as to the
admission of Mr. Carreon regarding his illegitimate daughter?
No. The fact of declaration of Mr. Carreon having sired the daughter
out of marriage has nothing to do with his death.
4. The dying declaration is admissible only in a case where
the subject of inquiry is the death of the declarant.
Otherwise, it the dying declaration rule does not apply.
Take Note: It should be only in a case where the subject of inquiry is
the death of declarant and not someone else.
Most common cases where subject of inquiry is death - murder,
homicide, parricide. In fact, in most jurisprudence, the SC would limit
the application of dying declaration in cases of murder, homicide,
parricide.
BUT IF YOU LOOK AT THE RULE SEC 37: It is admissible in “any”
case so long as the subject of inquiry is the death of the declarant.
In ARIATE vs. PEOPLE, it adhered to the literal meaning of Sec. 37
which is the application of the rule in “any” case. In PEOPLE vs.
CERILLA, the Court limited the application of dying declaration to
murder, homicide, parricide.
Sir’s take: Ariate is more consistent with provision of Rule 37. Not only
in criminal cases of murder, homicide, parricide because there can
also be civil cases that the subject of inquiry is the death of the
declarant e.g. insurance claim.
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Example:
Mr. Carreon took a life insurance over his life, the beneficiary is Ms.
Gonzaga, his wife. Mr. Carreon died, Ms. Gonzaga claims for the
insurance proceeds, the insurance company denied the claim arguing
that Mr. Carreon committed suicide. Suicide is an excepted risk, a
ground to decline payment of the proceeds. So the death is subject to
inquiry there. How he died. To prove that it was not a suicide and it
was a case of murder, Mr. Sanchez who heard the declaration of Mr.
Carreon (referring to the previous example) may be presented as a
witness in court to testify as to the declaration of Mr. Carreon to
establish the plain case of murder and not suicide - but this is done in a
civil case, action to compel release of insurance proceeds.
Mr.Carreon was stabbed, grasping for air. Mr. Sanchez arrived, Mr.
Carreon made declaration identifying Mr. Acusar as an assailant under
consciousness of an impending death but Mr. Sanchez rushed Mr.
Carreon to the hospital and due to adequate medical attandance
administered, he survived. So while in the hospital, when Mr. Carreon
was told by the attending physician that he is now safe and stable,
then Mr. Carreon got so excited and happy, he suddenly suffered a
heart attack, he dies.
IN THIS CASE, DYING DECLARATION DOES NOT APPLY
BECAUSE THE CAUSE OF DEATH IS NOT INCIDENT WHICH
GAVE RISE TO THE DYING DECLARATION. (He died not because
of stabbing, but because of heart attack)

DOCTRINE OF COMPLETENESS
This came out in the bar.
For a dying declaration to be admissible, it must be a full expression of
what the declarant wanted to convey. If incomplete, no way.
Take Note: Supervening event takes away the admissibility of the
dying declaration as an exception to the hearsay rule.
Can it fall under res gestae instead, Sir?
The rule is that if the declaration does not under this exception,
chances are it falls under res gestae. They come together.

Note that the reason for dying declaration as an exception even if
it is hearsay is:
1. Trustworthiness
Reliability of the dying declaration because there is a presumption in
law that a person who is in the brink of death is likely to be honest.
Honesty is the virtue of a dying man. It takes death for one to be
honest. Death is now an equivalent of oath, sincerity.
2. Necessity
The best obtainable evidence of the crime could only be the testimony
of the victim. Since the victim is now gone, no one will come to
prosecuty. In order to prevent miscarriage of justice, dying declaration
as an exception to hearsay may be admitted.
In relation to the completeness test, the SC held that if the witness was
not able to convey the word that they wanted to express. The
declaration could not invoke the presumption of veracity because if it is
not complete, it is not reliable. It is possible that the words already
uttered may have been qualified by the words unuttered.
If the declarant merely conveyed part of what she wanted to say, the
part which the declarant prevent from saying could have changed the
meaning of the words that the declarant was able to convey.
What if the dying declaration was made but comatose (brain
dead)?
Unable to testify is not a requisite, under this rule, the declarant should
be dead. I don’t want to split hair on comatose and death, there is only
one death I know and it is death.
BOTTOMLINE: IF THE INCIDENT IS THE PROXIMATE CAUSE, IT
IS NOT COVERED. IT SHOULD BE IMMEDIATE :)
2nd: DECLARATION AGAINST INTEREST (SEC. 38, RULE 130)
Reasons why it is an exception to the Hearsay Evidence Rule:
1. Trustworthiness/Reliability
The presumption is that no one would make a declaration or assertion
against himself. So when one makes such kind of statement – which is
adverse to his interest, the presumption in law is that statement must
be true.
2. Necessity
There is necessity because the declarant is dead or is unable to testify.
Allowing the declaration against his interest despite it being hearsay
would prevent miscarriage of justice, when such declaration might be
the only or best obtainable evidence under the circumstances.

PEOPLE vs. DE JOYA TAKE NOTE: DO NOT CONFUSE THIS WITH ADMISSION
AGAINST INTEREST SEC 26, RULE 130
A lola was robbed and killed but at the time when she was gasping for
heir, the apo arrived. The grandson asked the lola “apo, apo, what Differences:
happened?”, and the lola replied, “si paqui, si paqui.” Paqui
happened to be the neighbor of the victim and so he was charged of DECLARATION ADMISSION
the crime of robbery and killing of the lola. The prosecution presented AGAINST INTEREST AGAINST INTEREST
the apo to testify on the dying declaration of the lola. (Sec. 38, Rule 130) (Sec. 26, Rule 130)
As to the
SC: We disallow the testimony of the apo purporting to establish the requirement that
dying declaration of the lola on this principle: Required Not required
declarant is dead
1. It is incomplete. It is not the full expression of what the lola or unable to testify
wanted to convey Admissible against:
2. It is not responsive to question. The question was “what (1) Declarant
happened, lola?” and the answer was “si paqui, si paqui.” Admissible only
As to admissibility (2) Successors-
against the Declarant
in-interest
Hence, it cannot be admitted under dying declaration rule. (3) 3rd parties

What if the cause of the death…..there are supervening events? Similarities:

Dying declaration applies only insofar as the death is caused by the 1. Both are extrajudicial statements because the source is not
incident that gave rise to the dying declaration. the one testifying in court
2. Both are exceptions to hearsay
Example:  Sec. 38: as expressly provided by the Rules

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 Sec. 26: as provided by jurisprudence Estrada vs.
Desierto
3RD: ACT OR DECLARATION ABOUT PEDIGREE (SEC. 39)
Reasons why it is an exception to the Hearsay Evidence Rule:
1. Trustworthiness/Reliability
This is trustworthy because this involves a declaration of a family
member regarding the pedigree of another family member.
PEDIGREE relates to family relationships, genealogy, birth, marriage,
death, the dates when and the places where these facts occurred, and
the names of relatives.
These are matters that are personal to the individual concerned and
who better knows the personal circumstances of an individual but his
own family members. So family members are presumed in law to know
the personal circumstances and even secrets of their fellow family
members. These matters can be answered by the family members
because of the proximity of their relationship. So there is an element of
trustworthiness.
2. Necessity
the declarant is dead or unable to testify. So the same justifications
with the first two exceptions.
There are so many requisites but I need you to pay more
particular attention to the last requisite and that is the
requirement of independent evidence of pedigree.
Under this 4th exception, this act or declaration about pedigree is only
admissible as an exception to HER if the relationship between the
declarant and the person whose pedigree is questioned can be
established by evidence other than the act or declaration of the
declarant.
But this requirement applies only if the claimant seeks to recover or to
establish his or her pedigree with the defendant through the testimony
of a common relative.
What is the situation covered by this exception?
It simply relates to a situation where let’s say Mr. Carreon has fathered
an illegitimate daughter, Ms. Chelsea Salera. Ms. Salera knocked at
his door to ask for support because she’s studying law and she needed
some financial support from the father. But an irresponsible and
heartless father as he is, Mr. Carreon refused and declined the request
of his illegitimate daughter and worse, he even had the gall to deny
paternity.
And so hurt and her ego bruised, Ms. Salera went to court and filed an
action to compel Mr. Carreon to recognize her as an illegitimate
daughter. The issue here is whether Ms. Salera is an illegitimate
daughter.
Obviously, the question of pedigree or relationship. Ms. Salera, in
order to prove that she is indeed an illegitimate daughter of Mr.
Carreon, presented a witness. Ms. Gonzaga is the sister of Mr.
Carreon. Ms. Mali is the witness and her testimony is: she’s close to
Ms. Gonzaga. Best friends forever.
And during the lifetime of Ms. Gonzaga, Ms. Gonzaga told Ms. Mali
that she’s the sister of Mr. Carreon and that she knew for a fact that
Mr. Carreon has an illegitimate daughter by the name of Chelsea
Salera. Ms. Mali has no personal knowledge of the relationship. She is
merely reiterating to the court what she has heard from Ms. Gonzaga.
Ms. Gonzaga is the declarant and she’s declaring and is making an
assertion regarding the pedigree of Mr. Carreon in relation to Ms.
Chelsea. So a relative making a declaration about the pedigree of her
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other relatives. Ms. Chelsea is obviously trying to establish her
pedigree with respect to the defendant Mr. Carreon as her illegitimate
father by the declaration of Ms. Gonzaga, the sister of Mr. Carreon.
If Ms. Gonzaga is dead, the testimony of Ms. Mali may be admissible
under this exception. But for this to be admissible, Ms. Chelsea must
comply with the 4th requisite, among others: the pedigree or
relationship between the declarant and the person whose
pedigree is in dispute, must be established by evidence other
than Ms. Gonzaga’s own declaration. There should be an
independent evidence of pedigree.
Another Example:
Ms. Mali testified that at a certain time, Mr. Carreon admitted that
Chelsea is her illegitimate daughter with Ms. Lim.
Who is the declarant now?
Mr. Carreon himself. And Ms. Chelsea is asserting a claim against Mr.
Carreon who himself is the declarant.
So Ms. Chelsea is trying to prove her pedigree with respect to Mr.
Carreon using Mr. Carreon’s own declaration.
Is independent evidence of pedigree required?
This time around, such requirement no longer applies because the
declaration here is made by the person whose pedigree is in question.
Of course, it is assumed that Mr. Carreon is dead and the action is
against the estate.
Take note of that. The reasoning there is when the declarant himself is
the person whose pedigree is in dispute, that declaration must be the
best evidence under the circumstances because that concerns the
person himself. Who knows the person better than himself? So no
need for independent evidence. This was the ruling in Tison vs. CA.
TISON vs. CA
FACTS:
This involves a property of Teodora. Teodora was married and then
she died ahead of the husband. She was survived by her husband,
niece and nephew. The parent of the niece and nephew is the brother
of Teodora who died ahead of her. So by right of representation, the
niece and nephew succeed to Teodora.
The problem here is that the husband adjudicated unto himself alone
the property left by Teodora. He did not share the property to
Teodora’s niece and nephew who are also her heirs.
And so the niece and nephew went to court and filed an action of their
share to her property. The property is now bought by a third party
Domingo. It was sold by the husband. So Domingo was sued and the
defense of Domingo was that the plaintiffs, the niece and nephew of
Teodora, were not really the legitimate heirs of Teodora. So their
pedigree was disputed.
In trying to establish their relationship with Teodora, one of the
plaintiffs, the niece, testified. According to the niece’s testimony,
Teodora admitted to her that they are her niece and nephew – being
the children of their father who died ahead of Teodora. The testimony
was objected to under hearsay. But its admission was sought under
this exception. It was argued that it cannot be under this exception
because of the lack of an independent evidence of the pedigree.
RULING:
The independent evidence of pedigree is only relevant if a claimant
seeks to establish a relationship with the defendant through the
testimony or declaration of a common relative and not of the claimant
who seeks recovery, or the one who asserts a claim against the
defendant, using or through the defendant’s own declaration. So in this
case, the testimony of Corazon, the niece, to the declaration of
Teodora was admitted under this exception of declaration of pedigree.
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Take note: For this to apply, the declarant must be dead or is unable
to testify.
JISON vs. CA
FACTS:
This involves an action to compel the recognition of illegitimate filiation
filed by Monina against her illegitimate father Atty. Francisco. To prove
her filiation, Monina presented in court the letters that she received
from the brothers and sisters of Francisco. And in their letters, the
brothers and sisters recognized Monina as the illegitimate daughter of
their brother Francisco. The admission of the letters was justified under
act or declaration of pedigree because the act or declaration was of
common relatives – the brothers and sisters of Francisco.
SC: The letters cannot be admitted under this exception as there was
no proof that the brothers and sisters were already dead or unable to
testify. That requirement is essential.
4TH: FAMILY REPUTATION OR TRADITION REGARDING
PEDIGREE (SEC. 40)
Take Note: This should not be confused with Sec. 39. Although both
provide for exceptions to hearsay insofar as evidence of pedigree is
concerned, these are two different rules.
Sec. 40 provides for 2 ways to prove pedigree:
1. Testimonial evidence
The witness who gave the testimonial evidence is a family member
and the witness testifies as to the pedigree of another family member.
Here, it doesn’t involve a dead relative. The relative is testifying about
the pedigree of another family member.
2. Family possessions
Proof of pedigree here includes family bibles or other family books or
charts, engraving on rings, family portraits and the like. These could be
evidence of pedigree. In family bibles, the dates of birth of a family
member is written there. As to engraving on rings, the date of marriage
is engraved. The date of marriage is a proof of the matter of pedigree.
This may be testified by family members.
JISON vs. CA
The letters of the brothers and sisters of Francisco were offered by
Monina under this Rule. It was argued that under Sections 39 and 40,
the letters should be admitted as exceptions to hearsay. But the SC
rejected this.
SC: Sec. 40 consists of 2 parts:
1. Testimonial
It cannot fall under this part because the authors of the letters were not
the ones testifying. It was only Monina who testified in court and
identified these letters coming from the brothers and sisters of
Francisco.
2. Family possessions
It also cannot fall under this part because letters cannot be considered
as family possession. Applying the statutory construction principle of
ejusdem generis, only those enumerated can be considered as family
possessions.
NOTE: Read the case of FERRER vs. DE YNCHAUSTI. This case
also illustrates the 2nd part of Sec. 40. There was this issue of the
pedigree of a certain relative on whether this girl was an illegitimate
daughter. It was important to determine the issue of succession in the
interest of the estate of a decease grandmother.
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FERRER vs. DE YNCHAUSTI
FACTS:
It was important to determine the issue of succession, about interest of
the estate of the deceased grandmother.
ISSUE:
Whether or not Rosa was really the illegitimate daughter of Isabel.
HELD:
In ruling that Rosa is not the illegitimate daughter of Isabel, the SC
used as basis the diary of one of the family members, where it stated
in the diary that one time there was this 3-year old child which was left
at the doorstep of their house. Since, the girl was taken care of by
Isabel and treated her as the daughter, whom was Rosa. The diary of
that family member was testified to by another relative belonging to the
same family and it was admitted by the court under Act or declaration
regarding pedigree, specifically on the family possession principle.
5TH: COMMON REPUTATION (SEC. 41)
A common reputation existing prior to the controversy on matters of
public or general interest for more than 30 years old or regarding
marriage or moral character, is admissible in evidence.
Take Note: As distinguished from Sections 39 and 40 where the
declarations should come from family member, here in Section 41
involves the general public and not merely limited to the family
members.
Example:
 EDSA revolution. (The date it occurred, the circumstances of
its occurrence, etc.)
Any witness may testify about this common reputation.
2 Matters than can be proved by common reputation:
a) Matters of general and public interest
 This must be existing for more than 30 years
b) Marriage or Moral character
 Without need of the 30-year requirement
 Fact of marriage or non-marriage (No need to
prove that this reputation existed for more than 30
years)
Take Note: Marriage could be part of pedigree. As such, can be
proven under Sections 39 and 40.
Marriage is the only kind of family relation that can be proven by
non-family members.
Example on Moral Character:
Mr. Carreon is prosecuted for acts of lasciviousness. The prosecution,
during rebuttal, wants to establish the reputation of Mr. Carreon as
really a sick and serial sex offender. Mr. Sanchez came forward to
establish that the common reputation of Mr. Carreon in the community
is such that he is a serial sex offender. Mr. Sanchez may not have
personal knowledge of the specific acts committed by Mr. Carreon as
proof of his having committed several sex offenses. But what Mr.
Sanchez knows about is the common reputation existing in the
community. If that is what Mr. Carreon is known for in the community,
even if hearsay, it’s admissible under this exception.
6TH: RES GESTAE
Justification:
1. Trustworthiness or Reliability
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 It is such because it is a statement made
instinctively by the declarant, without opportunity
to concoct or fabricate his/her declaration. If
something is said without thought, it’s presumed in
law to be the truth, reliable by its very nature.
 Based on the spontaneity of the act or statement.
2 FORMS:
1. Spontaneous Statements
2. Verbal Acts
FIRST FORM: Spontaneous Statements
Refers statements made spontaneously or instinctively during a
startling occurrence or immediately prior or subsequent to a startling
occurrence.
The declarant makes a spontaneous statement that is heard by
someone else. The one who heard the statement is the one being
presented in court. Although hearsay, it is admissible under this
exception.
RES GESTAE: the starling occurrence
THE PART OF RES GESTAE: The statement (the one admissible)
Who could be the declarant?
 The victim
 The assailant
 A bystander (who witnessed the startling occurrence and his
spontaneous statement is heard by another bystander)
Take Note: The statement should be done under circumstances where
there was no opportunity on the part of the declarant to concoct or
fabricate his/her statement.
DBP POOL vs. RMN
The communication facilities of RMN destroyed by fire and persons
accused of being responsible were the members of NPA. The
communication facilities were insured against fire but the problem was
that rebellion was an excepted risk in the insurance policy. As such,
the insurance company refused to pay, contending that the situation
falls under the excepted risk because the persons responsible were
members of the NPA in pursuit of rebellion. To prove their defense that
it falls under the excepted risk, the insurance company presented the
report of the investigator who interviewed witnesses.
But the SC said that this report of the investigators cannot be admitted
under Res Gestate because it was established that when the
witnesses were interviewed, there was a great possibility that they
were influenced by outside factors (idle talks, exchange of information,
etc) in answering the questions of the investigation. There was no
clear-cut case of spontaneity on the statements of the witnesses.
Take Note: In this first form of Res Gestae, there is no specific time
frame. However, the nearer, the better.
Determining factors:
1. The influence of the startling occurrence in the mind of the
declarant; and
2. The absence of outside/external influencing factor.
(At the time the statement was made, the declarant was still in a state
of shock. That state of shock characterizes the statement as
spontaneous.)
CASE OF RAPE OF A MINOR BY A FATHER
The girl confided to her cousin that she had been raped repeatedly by
her own father. In turn, the cousin reported this to the mother and the
latter then confronted the daughter about it who confirmed it. The
mother brought the daughter to the barangay hall where the latter was
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interviewed by the tanods. Then, the daughter was brought to the
police station where was again interviewed. During the interviews, the
daughter positively identified the father as the one responsible the
repeated rapes. However for one reason or another, the mother and
the daughter desisted from pursuing the criminal case. However the
court insisted on the case as it is a heinous crime. So the prosecution
and the court had to continue with the trial.
To prove the fact of rape, the prosecution presented the tanods and
the police who heard the statements made by the daughter identifying
the father as the rapist. The introduction of the testimonies of the
tanods and the police was sought under Res Gestae. The declaration
was done less than 24 hours.
It was established in this case that when the daughter proceeded to
the barangay hall, being interviewed, she was with her mother. The SC
said that it was possible that during the time the daughter was in the
company of her mother, she was already influenced by her mother,
who wanted to punish the father for his sins. As such, the SC said that
the element of spontaneity is tainted. The victim could not be said to
have made a spontaneous statement of the incident. So the accused
was acquitted, due to the absence of proof of rape.
SECOND FORM: Verbal Acts
RES GESTAE: The unequivocal act
THE PART OF RES GESTAE: The statement accompanying the
unequivocal act
What is unequivocal act?
An act that is susceptible to 2 or more interpretations
Without the accompanying statement, it would be difficult to decipher
what that act really means. As such, it is the accompanying statement
that gives the act its legal meaning.
Example:
Mr. Carreon touches the face of Ms. Gonzaga. By just the act of Mr.
Carreon touching, it could mean a lot of things. But if accompanying
the act is a statement “There’s dirt.” Then, its meaning is clear.
In applying Res Gestae to the example, whatever statement that
accompanies the act is considered admissible as part of the res
gestae.
Another Example:
The act of handing money by one to another. By its act alone, it could
mean a lot of things. It could mean that the one handing it over to
another is paying his debt. It could also mean that the one handing it
over is bribing the other. (But if a statement is accompanying the act of
handing the money, that statement defines the act.)
If while handing it over, the person says “Thank you for your
generosity,” then that’s obviously a payment of a debt.
But if while handing it over, the person say “Make sure I’ll win the
case,” then that’s something else, probably bribery.
Take Note: For purpose of verbal acts, it should be established that
the statement should accompany the verbal act. If you cannot establish
simultaneity of the statement with the performance of the act, it may
not fall under verbal acts. This was the Ruling in the case of Talidano
v. Falcon Maritime and Allied Services
.
TALIDANO vs. FALCON MARITIME AND ALLIED SERVICES
This involves a seaman who was terminated from employment, for
gross neglect of duty. He was supposed to be on guard during his
duty. But because he failed to report to his post, the vessel intruded
into another lane.
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The SC had the occasion to submit the admissibility of the ship
captain’s logbook to the test of res gestae on both counts because it
was sought to be admitted under res gestae.
As to the first count, the SC said, it cannot be considered as part of
res gestae in the first form in startling occurrence; because in startling
occurrence, the first form, it is essential to establish that the statement
be made in the course of a startling occurrence during or immediately
prior or subsequent. Now let’s say, in that incident, the startling
occurrence was the failure of the complainant to report to his post. And
the statement sought to be admitted under res gestae is the ship
captain’s report.
Now, the SC said, the ship captain’s report does not bear any date as
to when the entries were recorded; so it cannot be established as to
when the statements found in the ship captain’s book where made and
therefore it cannot be established if the statements were made during
the time that the complainant was absent from his post; whether
immediately or immediately after the time of the incident. So failure to
establish this requirement cannot fall under the first form of res gestae.
As to the second count, the SC said, let’s suppose the verbal act
there was the absence of the complainant from his post. And the
accompanying statements again is the report contained in the ship
captain’s logbook. SC said, again the logbook does not bear any date
as to when the entries were recorded and so it cannot be determined
that the statements found in the captain’s logbook were made
accompanying the verbal act- referring to the complainant’s absence
from his post.
For failure to prove the requirement of simultaneity it cannot be
considered res gestae of the second form.
7TH: ENTRIES MADE IN THE OFFICIAL COURSE OF BUSINESS
Justifications:
1. Reliability and trustworthiness.
Why? Because these entries were made in the course of official or
regular business; so presumption of regularity, presumption of veracity.
2. Necessity
Entrant is dead or unable to testify. This is one of the exceptions to
hearsay where the declarant is required to be dead or unable to testify
for the rule to apply.
So these are two justifications that are the bases for this exception.
Take note, the declarant must be dead or unable to testify.
CANAQUIE vs. CA
The SC said, not admissible under entries in the course of business
because the entrant is not dead or unable to testify. As a matter of fact,
he is alive, he is the one who testified, the entrant.
In entries in the course of business to be admissible as an exception to
hearsay, it is required that the entrant must have personal knowledge
of the entries he made. It was established that the entries that the
bookkeeper recorded in the book of collectible accounts were not
based on his personal knowledge but based on the reports submitted
to her by the project manager. So on two counts, the entrant was still
alive, and the entrant has no personal knowledge of the entries. This
provision does not apply.
8TH: OFFICIAL RECORDS
Justification:
1. Trustworthiness
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Because the entries in the official records are recorded in the
performance of an official duty. There is presumption of regularity,
presumption of veracity.
What do you need to remember in so far as this provision is
concerned?
In the entries in the course of business, the entrant must have personal
knowledge of the facts contained in the entries; otherwise it is not
applicable.
In official records, the entrant here must have:
1. Personal knowledge of the entries, facts, or if not
personal knowledge, official information may be
sufficient.
If knowledge was obtained through official information, that can classify
under official records.
What is an official information? What constitutes the information
as to qualify the evidence under official records?
The information is deemed to be official if it is submitted or provided by
someone who is specifically required by law to make that report.
In other words, the entrant in the official records should have obtained
the facts in the entries from someone specifically enjoined by law to
make the report which is now the basis of the entry in the official
records. Without that specific law that requires the provider of the
information to make that report, the entry cannot be considered
admissible under official records.
Common problem that will involve this principle is a police blotter. This
is common in criminal cases. A police blotter is a regular feature in
court proceedings.
Example:
A killing happens, the suppose eyewitness reports the incident to the
police, the police records it in the blotter. So you are in the trial, let’s
say the witness is no longer around for some reason, the one
presented is the police who was responsible for the recording of the
report.
So SP04 Sanchez was the one who recorded the report given by an
eyewitness Mr. Carreon. Obviously PO Sanchez has no personal
knowledge of the killing incident because it was merely reported to him
by Mr. Carreon, so it is hearsay.
Can it be admitted under official records?
No, because the entrant Mr. Sanchez who happens also to be the
witness presented has no personal knowledge of the facts contained in
the entry. He was not there when the killing happened.
Neither the PO Sanchez obtained the information or report from
someone specifically enjoined by law to make that report. There is no
law that specifically enjoins an eyewitness to report the crime that he
had witnessed to the authorities. It is merely a moral obligation and not
a legal one. So, that blotter being testified now by PO Sanchez may
not be admissible because it is obviously hearsay.
Who are the persons specifically enjoined by law to make reports
as to consider the information official for purposes of official
records?
a) Solemnizing officer, marriage. Persons authorized by
law to solemnize marriages.
They are specifically enjoined by the Family Code to submit copies of
the marriage certificate to the local Civil Registrar where the marriage
was celebrated.
So that when you obtain a copy of your marriage license from the local
Civil Registrar, he will provide you with certification. The practice now
is that you will not get the marriage contract itself or even a photocopy
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of the contract – the one that the parties signed in church during the
ceremony
What you get is just an excerpt of the marriage of a certain individual.
(e.g. parties, date of marriage, date, place). These are the only entries
found there, the particulars of the marriage. So the local Civil Registrar,
obviously has no personal knowledge of the particulars of the
marriage.
What he has there is just a copy of the marriage contract that the
solemnizing officer forwarded to her office.
So what happens if the certificate by the Civil Registrar is
presented?
It is obviously hearsay, but it can be admitted under official records
because the knowledge of the local civil registrar as to the specific
facts of the marriage, although not based on personal knowledge, they
obviously came from someone specifically enjoined by law to make
that report. It is official information.
b) Ship captain’s logbook under Art. 612 of the Code of
Commerce
Ship captains are required to keep a book to record all the incidents
that took place onboard and the decisions the captain made. If this
happens to be an evidence in a case submitted in court, and testified
to by someone who has no personal knowledge of the entries there; he
was not the ship captain, let’s say the ship captain’s logbook was
forwarded to MARINA. So the MARINA will have in their records the
logbook. It may happen that the MARINA will be asked to issue a
certification.
The entries in the certification are based on the logbook forwarded to
their office. The one who issued the certification has no personal
knowledge of the entries found on the certification that are based on
the captain’s log book. But since the captain was specifically enjoined
by law to make a report, that piece of evidence, the certification, can
be admitted in evidence under official records.
READ: SEVILLE vs. COMELEC (?)
*Cut off by question
Question, cannot be understood goes like this:
Diba ang common reputation can be used against the
assailant…?
Res Inter Alios of the second branch or the so-called similar or
previous conduct rule. An evidence that one did or did not do a
particular act at one time is not admissible to prove that he did or did
not do a similar act at another time. But there is an exception. It may
be admissible to prove: specific knowledge, intent, plan, design,
custom, usage, scheme, system, habit.
What’s the relevance of this provision?
It simply means that a person did a similar act at another time does not
necessarily prove that he did a similar act at another time.
Example:
Just because Mr. Carreon raped someone in 2010, does not
necessarily follow that he also did rape in 2015. But under the second
paragraph, that evidence that Mr. Carreon did something in the past,
maybe admitted not to prove that he was really guilty of the same act,
but it could be used as circumstantial evidence that could possibly be,
or may be guilty of that similar act. What is this rule simply suggest is
that, evidence of similar or previous conduct cannot be admitted as
direct evidence for purpose of the other similar act.
The similar act cannot be used as direct evidence that a person in fact
did the present act. But nonetheless, it is circumstantial and is in fact
admissible as such. But it cannot stand on its own and needs to be
paired with other evidence. Moreover, it may be received to prove a
specific intent or knowledge; identity, plan, system, scheme, habit,
custom or usage, and the like.
EVIDENCE COMMITTEE: Alegado / Almerino / Carreon / Cid / Langomez / Layague / Monsanto / Sarucam
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U.S. vs. PINEDA
FACTS:
A case about a pharmacist who sold specific kinds of drugs. There was
a customer who bought from the pharmacist a medicine for his horse.
But upon taking the medicine, the horse died. It turned out that the
medicine bought was poisonous. This was reported to the authorities
and to validate this, one of the representative of the concerned agency
(which is now called BFAD) tried buying the drug that was supposed to
cure the horse. The accused gave the same drug to the representative,
so the former was prosecuted.
ISSUE:
Whether the evidence of similar act of the accused of selling the same
poisonous drug or substance is admissible
RULING:
Yes, it is admissible as circumstantial evidence. This similar act may
be received as proof of the accused’s habit or scheme which can be
determinative of the question on whether the act of selling the
poisonous substance was willfully done or negligently done.
Example:
Another case involving two robberies in the same night. In the case
involving one of the two robberies, the complainant testified that she
was able to observe that one of the robbers had an identifiable mark in
the face. On the other hand, the other case also had a witness that
identified the accused who had the said identifiable mark. This was
objected to under the similar conduct rule. But the Court said that it
was admissible to prove identity.
Take Note: It would seem that based on this jurisprudence, having a
physical characteristic (like a scar or other mark) is considered as an
“act” under this rule.
So the takeaway here is that take note of the exceptions of every
exclusionary rules, so that when your evidence is objected based on
any of the exclusionary rule, you will be able to countercheck if it falls
under any of the exceptions. Also remember the rule on multiple
admissibility, where an evidence could be admissible for one purpose
but inadmissible for another.
9TH: COMMERCIAL LISTS
These refer to publications involving matters relevant to persons
engaged in a particular business, profession or trade. It is loosely
referred to as a “bible” of the profession or business which is generally
relied upon by people involved in such business, trade, or profession.
Example:
In the foreign exchange business there are lists that detail the current
exchange rates of different currencies which are generally relied upon
by the traders. These are considered commercial lists.
Thus, if a person presents a commercial list in court even though he
has no personal knowledge of the facts therein, it is still admissible
under this exception. However, the following must be proved:
(1) the publication is for the use of persons involved in the trade
or profession;
(2) it is generally relied upon by such people.
PNOC SHIPPING LINES vs. CA
FACTS:
Collision between two vessels. One of the vessels was assigned to
PNOC who sued for damages against the other party, wanting to
recover the value of the vessel and the equipment therein. Since this
was a claim for actual damages, it must be substantiated with evidence
to prove the amount sought to be recovered.
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What PNOC did in order to satisfy this requirement was to write letters
and asked for price quotations from suppliers on the prevailing market
price of the parts of the ship and other equipment.
These price quotations was then presented, but it was objected to.
Plaintiff argued that this was an exception to hearsay.
ISSUE:
Whether the price quotations can be considered as commercial lists.
RULING:
No, it was not established that (1) the price quotation was published for
the use of persons involved in the trade or profession and (2) that it is
generally relied upon by such people. As a matter of fact, these
quotations were just private communications between the parties.
There was no element of publicity that would allow other people
engaged in the business to rely on it.
What if what was involved were brochures?
It must still be determined if it satisfies the two test.
What is meant by the list being “published”?
Mere circulation. If it is circulated between a number of persons
involved in the trade, that is already considered “published”.
What is meant by “generally relied upon”? Does it have to be
used more than once?
It just means that the people in the profession or trade generally use it
as a source of information. As opposed to a mere private
communication which is only between the parties.
10TH: LEARNED TREATISE
This is specific on the matters or subject of law, history, science, and
art. This may be used as prima facie evidence tending to prove the
truth of a matter stated therein.
Example:
Say for example that there is an issue on “anatomy” in a case, and
your source is the book called Kama Sutra written by a Mr. Villanueva.
The contents therein is usually hearsay since you have no personal
knowledge of it (since it is Mr. Villanueva’s work). But it is still
admissible under this provision.
Nonetheless, it must be under any of these two circumstances:
(1) The court must take judicial notice of it; or
(2) A witness expert in the subject testifies, that the writer of the
statement in the treatise, periodical or pamphlet is
recognized in his profession or calling as expert in the
subject.
“TWO EXPERT RULE”
The second option is also known as the “two expert rule,” wherein one
expert will testify as to the expertise of another expert-writer on the
subject concerned.
Is the judicial notice referred to mandatory or discretionary?
It depends on the matter concerned. If the content falls under
mandatory judicial notice such as those about laws of nature, then the
judicial notice is mandatory. The learned treatise may also cover
history which is also covered by mandatory judicial notice.
PRIMA FACIE means: If uncontroverted, it is sufficient to support the
conclusion.
Does that mean that, for example: the court has taken judicial
notice of that particular treaties, the adverse party can aslo use
the same without necessarily proving the same using the two-
witness rule?
No specific answer! Atty. T: just said: “Either” “or” remedy, in the
alternative; There is no prohibition if both. But we are dealing here with
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admissibility. If the other party has another source, maybe there is
another author: Everything you want to know about sex, Mr. Albaño; is
the author. It is possible that his treaties go differently from yours. The
other party might offer treaty. It is for the court now to appreciate which
one is to be believe.
Basis of Commercial list and Learned Treaties
1. Trustworthiness
2. Regularity and Expertise of the authors.
11TH: DEPOSITION/TESTIMONY GIVEN IN PRIOR PROCEEDINGS
Justification:
1. Necessity
Because the witness here is already dead or unable to testify.
Take note: This applies if the former and the present, the prior case
and the present case, respectively, involve the same parties and the
same subject matter, and the adverse party here must have been the
opportunity to cross-examine the witness in the prior[first] proceeding.
Example:
In the first case, a witness testified. In another but related second case,
involving the same parties and same subject matter, filed by or against
either parties, and during trial of the second case, the same
witness(es) which the proponent also intends to present, this time, are
no longer around, either dead or incapacitated to testify.
Rule: You can make use of their previous testimony given in the prior
case without violating the Hearsay Rule.
Applies only if the adverse party in the present case, who was also a
party in the previous case, was have been given the opportunity to
cross-examine the witnesses. Look at the nature of the proceedings in
the prior case and check if the opportunity to cross-examine these
witnesses; otherwise, this does not apply.
Common cases: Reckless Imprudence. There are two causes of
action: Criminal negligence under 365 RPC or Quasi-delict.
Example:
Two separate actions were filed, one for criminal and the other civil. In
the criminal case for imprudence, a witness already testified. But,
during the time to testify in the civil case for quasi-delict, the witness is
no longer able to testify because of death. This provision applies.
But, if the first proceeding where the witness testified was in a
preliminary investigation and during the trial the witness is no longer
around, dead or unable to testify, the testimony of this witness during
the P.I. may not be admissible under this exception, in so far as the
case filed in court. The reason being is that: there is no right to cross-
examine during preliminary investigation.
“Prior case or proceeding” is to be understood generally accepted
meaning, does not have to be the same nature of the proceeding.
Example:
First case/proceeding, Adminstrative; but the second case/proceeding
could be Judicial.
OTHER EXCEPTIONS:
1. Sec. 26 of Rule 130 – Admission against Interest;
2. Hearsay Rule; Examination of a child witness.
A statement made by a child describing any act or attempted act of
child abuse, not otherwise admissible under the hearsay rule, may be
admitted in evidence in any criminal or non-criminal proceeding [Rule
on Examination of a Child Witness - A.M. NO. 004-07-SC - LawPhil]
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Situation:
A minor child reports to her mother that she was touched in her private
part – an act of child abuse, and the mother has no personal
knowledge of the incident.

Under this Rule, the mother may testify on the statement she heard
from the child. Hearsay but admissible.

Certain conditions must be complied:

 Child must be presented for purposes of cross-examination.
 When the child witness is unavailable, his hearsay testimony
shall be admitted only if corroborated by other admissible
evidence.

DOCTRINAL EXCEPTIONS:

1. RAZON vs. TAGITIS – Cases governed by the Writ of

Amparo

Under this Rule, Hearsay evidence is admissible. Given the nature of

the case where the complainant there is up against the military, where
no witness is normally willing to come forward and testify against them.
So the SC said, if we are to be strict with the rules, chances are no
case will prosper because, with military as adversary, no one bold and
brave enough to come forward. So at least hearsay evidence is
admissible.

2. ESTRADA vs. OMBUDSMAN

Hearsay evidence is admissible in Preliminary Investigation

proceedings.

The justification offered by the SC is that: In PI, the finding of the

prosecutor is only provisional, subject to the final outcome of the case
in court, if ever filed in court. A determination of the probable is not a
final adjudication as to the rights and liabilities of the parties; so for this
purpose, Hearsay may be accommodated to support a finding of
probable cause.

EVIDENCE COMMITTEE: Alegado / Almerino / Carreon / Cid / Langomez / Layague / Monsanto / Sarucam Page 51