Você está na página 1de 21

EYIDENCE

RULES OF COURT IN THE PHILIPPINES


RULES 128-134

Ry

RICARDO J. FBANCISCO
Associate-J'ustice
Supreme Court
Prolessor of l-aw
Ateneo de Manila UniversitY

THII{,D EDITION
1996

ir',iilibi" at:
PGNIC Building
Fourth Floor
i.jbertad St. corner CalbaYog
\landaluy'ong CitY
TeL- \,rs. 5 -r 19 i 63 Loc. 501 or
:-i:tL5-1 -il I
:-i:.Il-$: ;22
EVIDENCE
GENERAL PROVISIONS
RULE T28
Section 1. E,,*idence defined. Dvidence is the means, s"r,nctioned by
- proceeding the truth respecting a
lhese rules, of ascertaining in a judicial
matter of fact.
1. Evidence defined.
2. Evidence distinguished from proof.
3. l'actum probandum distinguiah€d from factum probans.
4. Kinds of evidence.
ia) Direct evidence and circumstantialevidence.
evidence.
(b) Primary evidence and secondary
(.) Positive evidence and negative evidence.
(di Conoborative evidence and cumulative evidence.
iei frima facie evidence and conclusive evidcnce.
(ri Relevant evidence and material evidence.
(g) Competent evidence.
(f,) neUuttal and sur-rebuttal evidence.
(i) Object (Real) evidence.
(j) DocumentarY evidence.
(k) Testimonial evidence.
(m) Substantial evidence.
5. What the rules of evidence determine.
6. Sources of the rules of evidence.
QUESTION \. Define eLidence.
ANS$,/En.
-
The term ,,evidence" has given rise to a variety of
meaiint;. This-sectionl of tle mle defines one. Murphy, in his yolk $
i,ro.ti"ii gpproach to Evidence defines evidence as "any material which
tentls to persuacie the court of the truth or probability of some facts
asserted before it"; gnd, Carter, in his treatise Cases and Statutes on
bvidence as "the means'l:y which nny alleged matter of fact, the truth
of .ufri.f. is submittetl to investigation, is established or disproved."
QUESTION 2. Dist'inguislt eaidence from proof.
ANSWER.
-
Proof is the effect or result of evidence while evidence
-
is the medium of Proof.r
QUESTION 3. Distinguish facturn probanilum from factunx pro-
uo"o**ruER. -
Evidence is always a relative term. It signifies'a
relation between-facts, the factum pr;bandum, or proposition to be ep!a\
lished and the factum probans, or material eyidencing the proposition.'
tft" io*"r is necessariiy to be conceived of as hypothetical; it is that
*fti.fi tU. one party affirms and the other denie!,tle tribunal being -as
V*f "oi .ommiited-in either direction. The latterfor is conceived of for
iractical purposes as existent, and is offered as such the eonsideration
bt ttte tribunbl. The latter is brought fonvard as reality for th,e purpose
oi i""tit.ing the tribunal that the former is also a reality. . No eorrect
and sure coriprehension of the nature of any evidential-question can evel
b"-h"d unf..i this double or relative aspeci of it is distinctly pictured.
O" occasion the question must be asked: What is the proposition
"o.ttlo be proved? lVtrat is the evidentiary fact offered to prove it?r'
A.iiira
1 Sec, 1, Rule 128, Ruies of Courb, as amended.
s 1 Jones on Evidence, p. 5.
s lVigmore on Evidence, Sec. 2.
o
N,ULES OF COURT sEc. I, RULE 128

QUESTION 4. Wh.at are th.e kinils of euirlenee and, gi,ue an


e*ample of each? -
ANS\\rER. They ar€ as follor,vs:
-
(a) Direct eaid,ence and, cireumstantial eaidence. Dit,ect euid.ence
is that which proves the fact in dispute rvithout the aid - of any inferenc,e
ol'presumption.a Thus, the testimony of N that he saw A attack B with a
bolo, killing hirn, is d.,irect eaidence in the charge for homicide against A.
Circumstantial eai,ilence is the proof of facts from rvhich, takeu
collectively, the existence of the particular fact in dispute may be inferred
as a necessary or probable consequence.o Thus, the testimony of N that
he saw B running away from the place where A was found dead with
wounds; that the clothing of B was stained with blood, and that B had
a bolo also stained rvith blood, all these facts are circumstantial e"-idence
which taken together show that B is the one who killed A.
, (b) Primary eaidence ancJ secondary euid,ence. Primary or best
euidenee is that x'hich afforcls the greatest certainty -of the fact in ques-
tion. 'fhus, in an action on a written contract the original instrument
rS prirnarE eaidencc of its contents.
Secondary euidcnce is that evidence rvhich is necessarily inferior to
primary evidence and shows on its face that better evidence exists.,; Iu
an action on a written contract, a copy of the written instrument or the
testimotty of a rritness as to its content-s constitutes secondary euidence.
(c) Positiue euidencc and, negatiue ec-irJence Evidence is Ttositiue
u'hen the witness affirms that a fact did or. did not - occur. Evidence is
negative when the witness states that he did not see or know the occur-
rence of l fact.7 Generally speaking, the testimony of those who swear
negatively that they did not see or hear is not to be accorded as great
weight as the testimony of equally credible per.sons, having the same
opportunities of seeing and observing that a tl-ring was or w:rs not done.
For instance, the testimony of N that he saw A set fire the house of 13
on a specific date and time, is a positiue eaid,ence. And, accordingly,
the testimony of N that he was on that occasion at the place where the
house of B was burned and that he did not see A set fire on said house
is a negatiue e,uidence.
Negative evidence is admissible only if it tends to contradict positive
evidence of the other side or would tend to exclude thc existence of fact
sworn to by the other side. On the other hand, the witness who testifies
affirmatively that something did happen and that he sarw it, if he be
otherwise credible, should be believed, because it is unlikely that tr witness
will remember what never happened. The rule does not apply where two
witnesses with equal opportunity for knowledge contradict each other ss
1.o the existence or nonexistence of a fact.8
(d) Corroboratiae eaiclence and c'umulatiae euidence. Corrobora-
tiue euid.ence is additional evidence of a different kind and - character,
tending to prove the same point.e For instance, in a case, the Court
I Lake County vs, Nellon, 44 Or., L4, 21, ,i4, p. 212.
!lt Stlte vs. Avery, 113, Mo. 476, 494,21 S.W. 193; Reynolds Trial Ev., sec. 4, p. 108.
1 Jones on Evidence, scc, 8.
? Moore on Facts, p. 133G.
r Underhill's Criminal Evidence, 5th Ed., Vol. I, pp. 10-11.
e lVyne vs. Newman, ?5 Va. 811, 81?,
sEC. 1, RULE 198 EVIDENCE

concluded: "The testimonies of the prosecution witnesses that the victims


died because of stab wounds inflicted by the armed men who entered
their residence on the night of December 4, lg6b remain uncontroverted.
xxx Their death certificates therefore are only corroborative of the
testimonies of the prosecution witnesses.,,ro
cumulatiue euid,ence is evidence of the same kind and character as
that- already given, and tends to prove the same proposition.' Thus,
on the issue of the capacity of a boy to write a certain paper, evidence
of his school fellows as to his capacity is cumulative to that of hii teachers
and medical men upon the same question.rz
.-
(e) Prima facie euid.ence and eonclusiue euid,ence, primo facic
-
euid,ence is that which suffices for the proof of a particular fact, until
ccntradicted and overcome by other evidence.la For example: entrlies in
the course of business ryqde by a person in his professional capacity
-or
in the performance of duty and in the ordinary br regular cour." ,rf
business or _{.u!r, are prima facie eaidcnce of the- facts sTated therein,s
entries in official records made in the performance of his duty by pubiic
officer of the Philippines, or by a person in the per{ormance of a auty
specially enjoined by law ate Ttrima facie euiileice of the facts stateil
therein,ls instruments acknowledged or proved and certified in the manner
provided- by larr* arc prima facie ea'id..ence of the execution of thc
instrument.l6
Conclusiue eaid,ence is f,hat u'hich is incontrovertible.l? When
evidence is received which the law does not allow to be contradicted, it is
said to be "conclusive." Accordingly, a party intr.oducing in eviclence :
letter written by his agent to the adverse party, is bound by the statements
contained therein.l8 Also, in an action to rccover money p:rid in setile-
ment of an account in stock transactions, plaintiff is bound by his own
testimony that the transactions were gambling tr:ansactions, so as to
preclude recovery by him.tc
(f) Releuant cuiclenee and,material eaid,ence. Evidence is releuant
when it has a tendency in reason to establish the- plobability or impro-
bability of a fact in issue.2, The terms rnaterial and, inrmaterial, as
used in the law of evidence, do not appear to have been defined or distin*
guishecl from the terms relevancy and irrelevancy, either by courts or text
rvriters. That materiality has been used interchangeably with relevancy
is apparent in numerous cases and texts. 4

(g) Competent e.r*idence. Evidence is "competent,, when it is not


excluded by law in a particular-case.21 In other words, evidence excluded
I
by law or rules is incompetent.22 By way of illustrations we have the
following rules:
loPeople vs. Watson, 2?8 Ala. 425, 118 So. 2d 819, SZ1 (1965).
11 Cal. Code of Civ. Proc., Sec. 2839.
1e Gardner vs. Gardner, 2 Gtay (Mass. 434).
l'3 Sec. 1833, Codeof Civil Procedure of California.
la Sec. 43, Rule 130, Rules of Court, as amended.
r5 Sec. 44, Rule 180, ibid.
16 Sec. 80, Rule 132, ibid.
l7 1 Jones on Evidence, Sec. 18.
rc Lilian Realty Co. vs. Erdum, 120 N.Y.S. ?49.
le Atwater vs. A. G. Edwards Brokerage Co., L47 Mo. A. 4A6, 126 S.W. gZ2.
zo 1 Elliot on Evidence, p. 1g?.
21 Porter vs. Valentine, 18 Misc. Rep. 213, 41
N.y.S. 507.
22 See Sec. 3, Rule 128, Rules of Court,
as amended.
NULES O}'COUIIT sEc. 1, liul,E 198

(a) Best eaidence rul.e. When the subject of inquiry is the contents ot
a document, no evidence shall - be admissible other than the original document
itself . . . (Sec. 3, Rule 130, as amended)
(b) Parol evid,enca ru,le.-Iilhen the terms of an agreement have been
reduced to writing, it is considered as containing all the ternrs agreed upon
and there can !e, between the parties and their successors in interest, no
evidence of such terms other than the contents of the rvritten agreement...
(Sec. 9, Rule 130, as amended)
(c) Haorsay eoid.ence. A rvitness can testify only to those facts which
he knows -
of his personal knowledge; that is, which are. derived from his own
perception... (Sec. 36, Rule 130, as amended)
(d) Offer of conlryorrLise.-In civil case an offer of conrpromise is not
admission of any liability and is not admissible in evidence :rgainst the offeror. . .
(Sec. 27, Rule 130, as amended)
(e) Disqualification of .witnesses by reason of mental incapacity or
immaturity... (Sec. 21, Rule 130, as amended)
(f) Disqualification by reason of marriage... (Sec. 22, Bule 130, as
amended)
(g) Disqualification by reason of death or insanity of adverse party...
(Sec. 23, Rule 130, as amended)
(h) Disqualification by reason of privileged communication... (Sec.24,
* Rule 130, as amended)
(i) Exclusionary provisions in the Constitution, sueh as evidencc obtained
in violation of the right ogainst unreasonatrle searehes and seizures and the
privacy of communication and correspondence (Secs. 2 and 3 of Art. III);
confessions and admissions obtained in violation of the rights of a p€rsou
under investigation forthe commission of an offense (Sec.12, Art. III); and
the right against self-incrimination (Sec. 17, Art. III).
/ $) Rebu,ttal d,ncl srlr'-r'ebuttal, er;id,ence. Rebuttal e'uidence is that
which is given to explain, repel, counteract -or disprove facts given in
evidence by the adverse party.23 It is also defined as evidence in denial
of some affirmative case or fact which the adverse party has attempted
to prove.2{ Rebuttal evidence is, generally speaking, receivable only
where new matter has been developed by the evidence of one of the parties
and is generally limited to a reply to new points.z6
Ordinarily, the rebutting evidence offered by him upon whom tlle
burden of proof rests eoncludes the intruduction of evidence, but noi
always, and for god reasons, in the fuftherxnce of justice, the couri
may, in its discretion, allow evidence in reply to that called forth by the
rebuttal testimony. When plaintiff in reb',rttal is permitted to introductr
new matter, defendant should be permitted to introduce eviclence iir
sur-rebuttal, and to decline to permit him to do so is error, especiaily
wher€ the evidence offered in sur-rebuttal is for tl:re first time made com-
petent by the evidence introduced by plaintiff in rebuttal but defendant
should ask for the right to meet the new matter.3o
In a homicide case, the accused put up the defense of alibi and he and
two witnesses testified that at the time the crime charged was committe(i
-- around 10:30 p.n. the accused was attending a baptismal palty in
-
a Xlunicipality five kilometers away from the place of the crimer The
pt'osecution introduced in rebuttal the testimonl' of two witnesses who
testified that the accused had really attended said baptismal party on the
day of the crirne but that he left the party at 7 o'clock p.m., and boardeil
zsStete vs. Silva, 2l Id,a,247,120, p. 835.
2aCarver vs. United States, 160 U.S. 653,40 L. eC.532, 16 S.Ct. 382.
2564 C.J., Sec. 1?6.
2oFraneisco's Trial Technique and Practice Court, pp. 726-127.
sEc. 1, RULE 128 EVIDENCE

a jeepney. The accused in sur-rebuttal, may introduce the testimony


of the persons who attended the party to the effect that those witnesses
lvho testified in rebuttal for the prosecution had never been in that party.rr
(i) Obiect (Real) eaid,ence. Obiect (Real) eaidence is that which
-
is addressed to the senses of the tribunal, as where objects are presented
for the inspection of the court.28 For instance, in a case where a weapon
is used, the weapon, if it is a firearm the bullet and shells.
(j ) Documenta,rg euid,ence. Do_cumentary eoid,ence is evidence
supplied by written instruments, -or derived from conventional symbols,
such as letters, by which ideas are presented on material substances.
It includes books, papers, accounts, and the like.s
Documents as evidence consist of writings or any material containing
letters, words, numbers, figures, symbols or other modes of written
expressions offered as proof of their contents.so
(k) Testi'monial eai'dence. Testi,monial euiilence is the testimony
given in court or the deposition-by one who has observed that to which
he ls testifying; or one who, though he has not observed the facts, is
nevertheless qualified to give an opinion relative to such facts.3l
(l) Etpert euidence. Enpert euid,ence is the testimony of one
possessing in regard to a -particular subject or department of human
activity, linowledge not usually acquired by other persons.s2 For instance
a handwriting expert may testify on the genuineness of a signature,
identity of thumbmark and fingerprints .
(m) Su.bstantial, eui,d,ence. Substantial euidence is that amount o1
-
relevant eviclence which a reasonable mind might accept as adequate to
justify a conclusion;s evidence which is substantial, that is, affording a
substantial basis of fact from which the fact in issue can be reasonably
inferred. (National Labor Relations Board vs. Columbian Enameling and
Stamping Co., Inc., 306 U.S. 292-306).$4
QUESTION 5. * What clo the ru,les of eaid,ence d,etermine?
--laNSwnR. All rights ancl liabilities are dependent upon and ar.ise
*t -
$"iil'tsiuoiciat proceeding wh:rtever has for its pur?ose the or"i-
taining of some right or liabiliiy. If the proceeding is Criminal, thq.
object is to ascertain the liability to punishment of the person accused.
If the proceeding is Civil, the object is to ascertain some right of property
or of status, or the right of one party, and the liability of the other, to
some form of relief.
In order to effect this result, provision must be made by law for
the following objects: First, the legal effeet of particular classes ot
-
27 Ibid., pp. 141-142.
28 1 Jones on Evidence, 2nd ed., Sec. 16.
2s 22 C.J. 79!.
3rrSec. 2, Rule 130, Rules of Court, as amended.
3r Gilbert, Law Summaries on Evidence, p. 2.
3? U.S. vs. Gil, 13 Phil. 530.

_1,,S9".5, Rul_e 133, Rules.of Court, as amended; Philippine Overseas Drilling and
^.- Development corp.
oil vs. l\{inistry of Labor, 146 scRA ?g;-caflete vs. workmeu,s-com-
pensation Commission, 136 SCRA 302.
3+ united states Lirles, et al. vs. Associat€d
watchman and security union, Nos.
L-12208-lL, May 21, 1958.
RULES OF COURT sEc. 2, RULE 128

facts in establishing rights and liabilities must be determined. This is


the province of what has been called substantive law. Secondly, a
ccurse of procedure must be laid down by which persons interested may
apply the substantive law to particular cases. The law of proeedure
includes, amongst others, two main branches: (1) the law of pleading,
which determines rvhat in particular cases are the questions in dispute
between the parties, and (2) the law of evidence, which determines how
the parties ate to convince the Court of the existence of that state of
facts which, according to the provisions of substantive law, would estab-
lish the existence of the right or liability which they allege to exist.st
Consequently, the rules of evidence determine the following:
(a) The relevancy of facts, or what sort of facts may be ploverl
in order to establish the existence of the right, duty, or liability defined
by substantive law.'
(b) The proof of facts, that is what sort of proof is to be given
;. of those facts.
(c) The production of proof of relevant facts, that is rvho is to
give it and how it is to be given; and the effect of improper admission
or rejection of evidence.s
Thus, before the rules of evidence can be understood or applied-to
any partiiular case, it is necessary to know so much of the substantive
law as determines what, under given states of facts, would be the rights
of the parties, and so much of the law of procedure as is sufficient to
determine what questions it is open to them to raise in the particular
proceeding.3i
the sorrl'ces of ow rules of eaidence?
,,..QUESTION
6.
- What are
AI{SWER. The sources of the rules of evidence are:
-
(a) The 1987 Constitution of the Philippines;
(b) Rules 128 to 133 of the Revised Rules of Court, effective on
January 1", 1964, foi'merly Rule 123 of the (1940) Rules of Court
(Evidence);
(c) Resolution of the Supreme Court dated March L4, 1989 approving
the Proposed Rules on Evidence submitted by the Rules of Court Revision
Committee on August 31, 1987;
(d) Rule 115, Sec. 1, formerly Rule 111, Sec. t of the Rules of Court
(Rights of defendant at the trial) ;
(e) Substantive and remedial statutes;
(f) Judicial decisions.
The former rules of evidence were found in Sections 173 to 347 and
Secs. 381-383 of Act No. L90, known as the Code of Civil Procedure.

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


- and hearings, except as otherwise provided by
eourts and in all trials
law cr these rules.
1. Rule of evidence same in all courts and trials.
2. Reasons for the rule.
36 Woodroffe's, Law on Evidence, p, 14.
36 lbid.
87 lbid.

_tr
sEc.2, RULE 128 DVIDENCE

3. Rules of evidence in civil and criininal eases distinguished'


4. No vested right of property in rules of evidence.
D. nut"" of evidence sinciion6d by the Constitution cannot be altered by legis'
lation.
6. Rules of evidence may be waived.
7. Foiicy to be observed Ly courts in the enforcement of the rules of evidence.
QUESTION l. Are the rules of eaid,ence the sam,e in all courts
anil, in all trtals -
anil heari'ngs?
ANSWER. Yes, they are, unless otherwise provided by law .o-r
ttrese rutes (Rules of Cburt). Foi instance, there are laws--which-provide
other rules'of evidence to govern certain proceedings. Under Sec. 16,
p.O. ga6, affidavits and counter-affidavits, which are otllerwise inadmis-
rinf", *ny be allowed and are admissible in evidence. Direct testimonies
oi *itn"si"s may be in narrative form subiect to cross-examination. Or,
itre nutes of Summary Procedure where the decisioll can be reached
iii"oogii position paperi, affidavits and counter-affidavits of the pafiies.
In this connection, the rules of evidence are not strictly applied in
p"o.."ainE* before the Labor Arbiter and the Nationnl Labor Relations
bommissi6n,t Employees, Compensation Commission,? Securities and Ex-
-Co"*issi-on,i
CommisJion on Elections,a Agrarian cases,t Immi'
"ft"og"
;;iifi Fioceedingsio Court of Tax App94s/-
-
P-robatiol court,a Board of
il;;n""t"tioo,n ?6ti." Commission,'d oil Industry Commission,ll and
other similar bodies.
,,::qUESTION 2. - WhA shoulil th'e mtles of eaid'ence be uniform'?
ANSWER. The rules of evidence must be applied uniformly i" ?lt
-
courts and in all triais and hcarings for the following reasons: (1) the
,l"lutiott between the evidentiary fact and a particular proposition- is
J;;yr the same, without regard to proved; the kind of litigation in rvhich tliat
p""p".iti* lu.rir.r materiaf to be (2) if the rules of evidence
ii'.J""iti" ttte best course to arrive af the truth, that must be and are the
same in all cases and in all civilized countries.l2
QUESTION 3. What are some of the dtfferences in the rutes of
euidence in criminal - and ciail case?
ANSWER. The principle that the rules .of evidence shou6 6e
uniform in all -trials and hearings does not mean that said principle
;;;t;i;.; "o .liffe"etrces between civil and criminal proceedings, for therq
il ilG"ial differences which must n6t be overloohed'
In civil proceedings the parties attend by accord, while in criminal
p"o.."aingt ti" accuseid attends by compul.lion; in .civil proceedings there
il;;-p-;il*piio" as to either pirty, while in criminal proceedings the
I Ltt. 221, P.D. No. 442, Labor Code.
g
Ftritippine O""r"ea. S"itllng- ana Oil Development Corporation vs. nfinister of
--- 146 SCRA ?9.
Labor,
lS;5,-Rule 1'8, Rules of Procedure of Securities and Exchange Commission.
4 Gerorno vs. Commission on Electiols, et al., 118 SCRA 165'
5 Bagsican vs. Court of Appeals, 141 SCRA 226.
c Mov Yoke Shue vs. Johnson, 290 Fed. 621.
? Sec: 8, Republic Act No' 1125.
e Sec. 1'5, p'.O. No. 968, as amended by P.D. No. 1257 (Probation Law)'
o Sec. 29, Public Service Act, as arnended by P.D. No., 1.
* S".. ioi Executive Order lio. 113 (Rules ind Reguldtions for City and Munieipal
Police Agencies).
- --- rt gJluiiic
ict No. 61?3, as amended by P.D, 1128 (Oil Industry Commission).
ls R. V. Burdett, 4 B & Ald, 95, L22.
RULES OF COURT SEC. 2, RULE 128

presumption of innocence attends the accused throughout the trial until


the same has been overcome by prima facie evidence of his guilt; and,
finally, an offer to compromise in civil cases does not, as iI general rule,
asrount to an admission of liability, whereas, in criminal cases it is ar"r
implied admission of guilt.
In civil cases the plaintiff must prove his claim by a preponderance
of the evidence; in criminal cases the government must establish the guilt
of the accused beyond a reasonable doubt. The rule that a preponderance
of evidence is sufficient to sustain a verdict in a civil suit is due partly
to the fact that there is no presumption in civil cases corresponding to
the presumption of innocence, and partly to the fact that the ploof will
only-result in a judgment for pecuniary damages or establish a civil right.
In a criminal trial the accused starts with a legal presumption that he is
innocent of the crime charged, which some authorities regard as evidence
in his favor and which must'be overcome even though he should offer
ho evidence in his own behalf. So the reputation, the future livelihood
and career, and, perhaps, even the life of the accused are involved, while
in civil cases any loss-the party may sustain, however great, may often
bE retrieved by his future efforts.ls
QUESTTON 4. Ma.y euid,erzce inad,nuissible aecortling to the latt:s
in foice at the time -the cause of uction accrued be aclnzitterl at tlre tintc
of the tr,iat of the case tf ba the laws tft,en in force the sum,e is alreod?J
made admissible?
ANSWER. Yes. There is no vested right of property in lttles
-
of evidence. Hence, any evidence inadmissible according to the iaws in
force at the time the action accrued, but admissible according to the larvs
in force at the time of the trial, is receivable. Thus, at the trial ofl {r case
after the Codc of Civil Procedure (Rules of Court) took effect, parol
evidence of the contents of a document was admitted after pleliminary
proof of execution and destruction has been made, although the cause
of action accrued when Articte 7221 of the Civil Code was still in force,
under which parol evidence could not be given to prove the contents of
a destroyed instrument.la
The reason is that the rules of evidence are merely methods for
ascertaining facts. It must be supposed that change of law merely makes
it more likely that the fact will be truly ascertained, either by admittittg
evidence whose former suppression, or by suppressing evidence whose
former admission, helped to conceal the truth. In either case no fact has
been taken away from the party; it is merely that good evidence hers been
given the one, or bad evidence been taken from the other.rt
QUESTION 5. lilhat. rules of eaidence. sanctionetl by thc Con'
stitution cannot be -altered by ordinarg lngislcr,tion?
ANSWER. A constitutional provision sanctioning a rule of evi-
dence has the -
legal effect of naking it unalterable by ordinary statutot'1'
legislation. It also has the practical effect of inducing most Courts to
construe the rule (if one of exclttsion) with unusual care to avoid the
evasion of the Constitution, and with unusual and sometimes reprehe,t-
sible technicality in favor of the party benefitted by the rule.
13 Undelhill's Crinrinal Evidence, 6th Ed., Vol. 1, p. 8.
u Aldeguer vs. Hoskyn, 2 Phil. 500; Ayala de Roxas vs. Case, 8 Phil. 19?.
15 Wigmore on Evidence, Sec. 7.
f

SEC. 3, RULE 128 EVIDENCE

The rules of evidence which have been expressly sanctioned by the


various Constitutions are comparatively few. They include usually the
pr.ivilege against self-incrimination, with occasional limitations of its
i"op.;"the accused's right to confrontation, or cross-examination of
witnesses; the rrrle for two witnesses in treason; the lccused's right to
p"oceg for compelling the 2lfsniance of witnesses; and the right of
iestifying without regard to theological belief.
Apart from these rules expressly thus protected -against statutory
legislative change, the Legislature has the power to alter or create any
ru'i" of eviclencJ This is io for reasons inherent in the ntrture of legis-
lative functions.lc
QUESTION 6/ May the rules of etticlence bc -wat'acil?,.
ANSWER. There are rules of evidence established merely for the
protection of the
'the parties
- parties. If, according to the .w-ell-,established doctrinc',
may liaive such rules during the trial of a case. there.is no
reas6n why they cannot m4ke the waiver in a contract. For instance,
a contrlct bf iniurance requiring the testimony of eyewitness as the oqly
evidence admissible conceming fhe death of the insured person' is valid.r?
Contract lvaiving the privilege against the disclosure of confidential
communications made by a patient to 1 physician is also valid.rs How-
;;;; if td-iuie of evid'ence waived by the partiesvoid. h-as been establishetl
Accordingly, the
bt 61n' on grounds of public policy, the waiver is
*oiver of t*he privileee against the disclosure of state secrets is void.le
QUESTION 7. What pokcy nrust courts obserue in th,e enforce-
ment of the ru.les of- euidence?
ANSWER. Trial courts are enjoined to observe the strict enforce-
-
meni of the rules of evidence which crystallized through constant use and
pto.li"u and are very useful ancl effective aids in the search for truih
i*A io" the effective administration of justice. But in connection with
evidence which may appear to be of doubtful relevancy or incompetency
or admissibility, it is the safest policy to be liberal, not rejecting them
on doubtful or-technical grounds, but admitting them unless plainly irre-
levant, immaterial or incompetent, for the reason that their-rejection qlac.e.s
ihem L"yottd the consicleration of the court, if -theV- are thereafter found
ielevant-or competent; on the other hand, their admission, if they turn
out later to be irrelevant or incompetent, can easily be remedied b$.
completely discarding them or ignoring them.lo

'sec. 3. Ad,missibility of euidence. - Evidence is admissible when


by the law or these rules.
it is relevant to the issue-and is not excluded
I Requisites of admissibility of evidence.
2. Two axioms of admissibilitY.
B-4. Admissibility of evidence diltinguished from rveight of evidence.
5. Multiple admissibility of evidence.
6. Conditional admissibiiity of evidence.
1d lbid.
1? National Acc. Soc. vs. Ralstin, 101 I1l. App, 192; Connel vs. Travelling Men's
Ass'n., 139 la.
444 N'W. 820.
lsKeeler vs. Iss. Co., 95 Mo. App. 627,69 S.W. 612.
rs Rorvland vs. Iss. Co., 95 Mo. App. 627,69 S.W. 612'
2o Banaria vs. Banaria, et al', C.A. No. 4142, May 31, 1950; People vs. Jaca,
et al., G.R. No. L-10971, November 28' 1959.
10 RULES OF COURT sEc. 3, nuLE 128

?. Curative admissibility of evidence,


8. Admissibility of telephone conversations,
9. Admissibility of radio broadcast.
f0-11. 4dmissibility of wiretapping and tape recordings.
12. Requisites of recording conversations.
18. Admissibility of evidence illegally seized.
- QUESTION 1. wlnt are the requisites
euid,ence? - of aclntissibitity of

-./ANswER.
- rn order that evidence may be admissible, two requisites
must concur, narnely:
(1) that it is relevant to the issue; and
(2, that is is competent, that is, that it does not belong to thlt
class of evidence which is excluded by the law{' or Rules of Evidence.
_ Admissibility is determined, first, by relevancy affair of logic
- ofanEvidence
gnd n9t of law; second, but only indirectly, by the larv whicrr,
[n strictness, only declares whether matter which is logically pr.obative
ls excluded.l
QUESTION 2. .State the two aciom,s of ailntissibitita.
" ANSWER.
-
The modern system r.ests upon two axioms. The firsi
is that: -
(a) None but facts hauing rational probatiue aalue are adlrissiblc.
This principle is indeed axiomatic, for any system of evidence purporting
to be rational. It assumes no particnlar doctrine as to the tcinct of ratio-
cinatio-n implied whether practical or scientific, coarse and ready or
-
refined and systematic. It prescribes merely that whatever is presented
as evidence shall be presented on the hypothesis that it is calculaterl,
according to the prevailing stand:lrds of r.easoning, to effect lationrrl
p€rsuasron.
The second axiom on which our lalv of eviclence rests is this:
(b) All facts hnaing rational probatiue aalue are acl.missibre, unress
some- speeific rule forbids. This axiom expresses dre tr.uth flrat legal
p{99f, though it has peculiar rules of its own, does not intend to vir.l
without cause from what is generally nccepted in ilre rational processes
of life; and that of such variations some vindication may, in theory.
always be demanded. In other wor.ds. in the system of -evidence ilie
rules of exclusion are, in their ultimate r-elation, iules of exeeption to :r
genet'al admissibility of all that is rational and probative.s
QUESTION 3. Distinguish atlmissibility of euiclence f rom rceight
of eaidence -
ANSWER. Objections to the admissibility of eviclence wliich merely
refer to the weight - of the evidence should be overruled, for. facts whicir
have distinet probative value are not to be rejected mer:ely because ilre;l
-;Iil-"lav/" was added to the former Rule and this includes the exelusionary
provisions in the Constitution, such as evidence obtained in violation ifr.
against unleasonable searches and seizures and privacy of - communication"i "ighi
and
cor-reslronde^nce (Sec' 2 and 3 of Art. III); confessions .nd adrnissions obtained in
violation 9f the,rights of a person under'investigation fo; lh; eommission of an
offense (sec. 12, Ibid.); and-the right against s6lf-incriminatlon- (sec. rz, iuld.j.
Feria, Retised Ru.les on Eaid.ence Annotalecj (plr;ilippine Legal Stuclies, Siries /r),
p. 2.
l Presumptions and the Law of Evidence, B Flar.v. L. Rcv. 18-14.
3 S igmore on Evidence, Secs, g, 10.
EVIDENCE t1
sEc. 3, RULE 128

should not be
are not, in themselves, convincing. Admissibility of evidence
confounded with its probative value'r
The admissibility of a particular item of e.vidence has to do with
tnhet-ne" it;;;6 trre various tests by which its reliability
is to be detep
;;;a;;-; to U"-"o"*iderea with bther e'idence admitted in the case
in arriving at a decision as to the truth'
The weight has to do with the effect of evidence admitted, its tendency
-ut
to convince a p""ro"a". The weight of evidence is not determined
suilriority of the witnesses
;";h;;ti."uy uv tr,"-"otn""i.al its praciical effect in inducing testifving
'6ot'Oun""a; *"1 belief
il;;ffi-i*it,
ot thl part of the iudge trying the case'a
QUESTION 4. - X is acaueil, lf murder anil.t-estifies bv. ,of def ense
"yauthat he uas
ne aitiipts to estabtiri oo attbi. -M,-hi's
mothe.t',
at lromc inbeil at ttie'-itmi-thi muriler r1as cont'mitied. P, a d'istinguished
'iniitrni,- iiruii"i'"itrii'"ii ios itiend.ins..to x. in \i2,ltgme at the timb
tltc. nzurd.er committed. Are their teitimonies ad'nissible in euidence?
lroas

ANSWER. Both are admissible. But it is likely that the coud


-
*,oot,a giuu grerter *.isht i" the. testimony of P, a disinterested
physician,
to commit perjury in rn effort
iir;;;rM;irnour.i;;fi;;isha be expected
to save her son.
atlmissibiktv ol
QUESTION 5. - state the rule regard,ing multiple
eui,ilence and illustrate gour answe'r'
ANswER._Whenafactisofferedforonepurpose'and^i.sadmis.
sible in so far ur ii'r"ii.iies all rules applicable. to it when
offered for
be appli'
;ffi firp;r", itr }"il"" to satisfy putpose
som" other rule
not
which would
exclude it.5 Thus, :t
;;bt-di1 it' offered to" uttottei does
be cbmpetent as against his co-accused'
confession of u1 a.iur"O -"v
being hearsay *r-io the latter, ""t or to prove conspiracy between them
nonetheless,
withoui the conspiri.v-U.i"g esiablisheil by other evidence, of his owtt
iii.--"oot"Jrion of Jtu"o..otEd-may be admitted as evidence
guilt.s
admissibik',tE
QUESTION 6. - state the tale regard'i'ng cond;itionnl
of euiilence anil illustrate '11our answer' a

ANSWER. where two or more evidentiarl' facts are so connected"


-*a
under the issues - that the relevancy of ott. depends upon another. not 1pt
tn. p""ly i* on"bte to introduce them both at the same
"i:ia.tJ.C,the offeri]ni1"i"r"f ma' Ue by the court, as a conditicn
moment, "equired (2) to promise
precedent (1) to &u th;;uppoi"a coniiectins facts, and

3 People vs. Abellera, 47 Phil' ?31'


Imprcbability ot l""r "Jf':o.tify refusing to adtnit it. shanes tts. Stote'
179 so. 972,2t8 Ala."JiiL*-"
I18. witness are not
Manifest ir,"on.i.torr-"ies and discreparcies in the testimony ofMcCIwtg
-a us' State'
considere<l in det"rminjn"g"irrl"iaill.tifi'ifitv &-to.tt- tlstimonf'
So sl|, 25 Aln- A72P. 81.
--- iguia"nce
142
Handboii-by Donigan, Fisher, Reeder and Williams, pp. 6-7'
6 Wifrmore's Code of Evidence, 3rd 4d" p' l'8'
o People vs. Yatco, et al., 9? Phil' 940.
A declaration of a deceased person may be received as an admission, as -a decla'
against interest, ;-;;6t-ii.--tft" io""te-oi business, as a dying declaration
ration - the requirements
or as part of res gestJe. if iu is offered for one of these purposes'
;i th"-l^" L tn"t-"rfJ th;"ld b. ratisfied, it not being necessary that the requisites
gs PhiL 979 (unrep)'
for the other purpos..-u" p.".."t. Peopte ot. Anoniaa,
t2 NULES OF COURT sEc. 3, RULE 128

to evidence them later. If a promise thus made is not fulfillerl, the court
may strike out the evidence thus conditionally admitted, if a motion is
made by the opposite party.? Thus, evidence of facts and declarations
may noi become material or admissible until shown to be those of an
agent of the other party, and a copy of a writing may not become com-
petent evidence until the original is proven to be lost or destroyed.s
QUESTION 7. State th,e ru,Ie re,garcling curati.ue u,ilntissibilit,y of
- gour ansu)er.
epid,enne ancl illustrate
AIiSWER. Where an inadmissible fact has been offered by one
party and received- without objection, and the opponents afterrvards, for
the purpose of negativing or examining: or otherwise eounteracting it,
offers a fact similarly intrdmissible, such fact is admissible if it serves
to remove an unfair effect upon the court which might otherwise ensue
from the original fact.e If the opponent made a timely objection at the
time the inadmissiNe evidence was offer.ed, and his objection was erroll-
lously overruled in the first instanee, the claim to present similar inadrnis-
sible farts would be untenable since his objection would save him, on
appeal, fiom any harm' which may accrue.s Thus, A sues B for'the
lafter's alleged lefusal to pay for merchandise supplied by A. B denies
having received the merchandise. In the course of the trial A introduces
evidence showing that B swindled C, a third person, on a similar transaction
before. This should not have been admitted. B norv offers to explain
that he entered into a fair and honest tr.ansaction with C. In fairness
to B, this should be admitted.ll
QUESTION 8. Are telephone conaersations ulmissible in eui-
d,ence ? -
ANSWER. Unless otherwise objectionable, a telephone conver'-
sation bctween a- witness and another person is aclmissible in any case in
which r face to face conversation betrveen a witness and another person
would he admissible in evidence, provided that the identity of the person
with rvhom the witness was speaking is satisfactorily established, but
not otherwise.
Pr',rof of identity is most readily afforded by the witness' recognitio:r
of the voice of the person with whom he rvas speaking, and, indeed, a
number of cases seem to regtrld the rvitness recognition or identificatiotr
of the voice of the person with whom he spoke as essential to the
admissibility of evidence of l telephone conversation. The gener.ally
accepted vierv, however, is that the identity of the speaker may be estal>
Iished by means other th:rn the recognition of his voice.lr
QUESTION 9. lVlrcn is ct speech, by nteans of a radio broatlcast
-
admissible iu, etttdence?
7 Wignrore on Evidence (Students' Textbook), p. Brl.
e lbid., p. 35.
t) McCormick on Evidence, p. 134.
ro lbid., p. 196.
r1 Cf. Wigmore, Textbook, p, 35.
1t-S1 C..1.S.908,911. See also Joncs on Evidence in Civil Cases, Sec.211,
pp. 410-413.
Where the witness $ias one of the parlies to the conversation and testifies that
he recognized the voicc of the person on the other end of the line, because he had
previous conversation with him, there is sufficient foundation and the conversation
will be admittcd. Urdted Stat.es lus. EusterdaV, ST Fed. (21) 165 eertiot'ari clenied,
286 u.s.564,76 L. ed. 1297,51 Sup. Ct.646.
\

SEC.3, RULE 128 EVIDENCE 13

ANSWER. of a message or a speech by means of raclio


- Evidence
broadcast is admissible as evidence when the identity df the speaker i;
established either by the testimony of a witness who saw him iroadcasi
his message or speech, or by the witness' recognition of ilre voice of the
speaker.r$
QUESTION 10. Are wi,retapping an(I tape record;i,ngs ailmi.ssi,ble
in eaidcnce? -
ANSWER.
of communications- The constitution explicitly provides that "The privacy
and. correspondence shail be inviolable excepl upon
lawful order of the court, or when public safely or order requires odtrertiise
as prescribed by law." In this connection, wiretapping and other related
violations of the privacy of communications, are prbhibited and penalized
by Republic Act No. 4200, the contents of which are ouilined hereunder:
I. UNLAWFUL ACTS
A. .any person who, without authority from all the parties to the private
communication or spoken word, does any of the following-acts: [sec. 1, par. l]
1. to tap any wire or cable; cr
2. to secretly overhear or intercept such communication or spohen word
by using any other device or arrangement; or
3. to record such private communication or spoken word by using a
device cornmolly k19yn as dictaphone oi dictagraph or deteita-
phone or q'alkie-talkie or tape iecorder, or h-orv6ver otherwise
described.
B. any _ person,-_whether participant or not in the above penalized acts,
rvho: [Sec. 1, par. 21
1. knowingly possesses any tape record, wire record, disc record or
any ot}er such recold, or copies thereof, of any communication l

or spoken word secured either before or'after tf,e effective date


of this Act in the manner prohibited by law;, or
q
to replay the sarne for any other person or persons; or
.). to communicate the contents thereof, eittrer verbally or in writing; or
4. to furnish transcriptions thereof, whether eomplete or partial, to
any other person.
- . C. _
any_ pers-on who shall qid, permit, or cause to be done any of the acts
declared to be unlawful: [Sec.2]
. ?.below
. uty pers^on who
-shall violate the provisions of sbction B of the exempted
acts or of an order issued thereunder, or aids, permits, or causes ;uct
violation: [Sec. 2]
II. EXEMPTED ACTS
A. use of such record ot any copies thereof as evidence in any civil, criminat
investigation or trial of offenses mentioned below: [Secs. 1, par.2]
B. any peace officer, w'ho is authorized by the written order of the court
(Regional Trial Court within rvhose territorial jurisdiction the acts for which
authority is applied for are to be executed), to execute any of the acts declared
to be unlavful in cases involving the crimes of: [Sec. B, par. lJ
1. treason
2. espionage
3. provoking war and disloyalty in case of war
4. piracy
5. mutiny in the High Seas
6. rebellion
?. conspiracy and proposal to commit rebellion
8. inciting rebellion

_13Francisco, Revised Rules of court Annotated, (1990 Edition) vol. vII, part I,
p. :,1.
l4 RITLES OF COURT sEc. 3, RULE 128

9, sediti0n
10. conspiracy to commit scdition
11. inciting to scdition
12. tidnup-pittg as defined by the Revised Penal.Code
13. vlolutldns"of Commonw"alth Act 616, punishing espionage and other
offenses against national security
The 1VRITTEN ORDEn shall only be issued or granted u-pon written- applieation
rvith the examination uncler oath or affirmation of the applicant and the witnesses
he may ploduce and must show:
a) that there ere reasonable grounds to believe that any.of !!: ^"I1-f:
enumeraded tre"ein has been comrnitted or is being committed-or ig about to
be
;;;ilGa;;o"ia.a,"itt"i i" cases involving lhe ofJenses of reb-ellion, conspiracv
sedition, conspira.cy. to
;;A;;;p"ri.i-to *o."-ii ""f"ttio", 4citin! to. rebellicn,upon
.o*,nit iedition, .o.fr ""tto.iti sirall be lranted only prior proof tlt-! 1
rebellion or acts of sedition, as the case may be, have actually been or are D€rng
committed;
b) that there are reasonable, grounds to believe that-evidence may be
obtained'essential to ifr" .""ri.ii* of -""V person for, or to the solution of, or
,.lo the prevention of, any of such crimes;
c) that thele ro other means readily avaiiable for obtaining such
. cvidenee' """
Ctmtents: 1. the identity of the person or persons whose com-mtrnications,-con-
vcrsrtions, Ois"ussionsl oi .poiiln-*ords ari to be overheard, intercepted, -or
rccorded and, in tfte'Jas" oi-t"i"g"aphic or telephonic-ccmmunications, the tele-
graph line and the telephone number involved and its location;
2. the identity of the peace officer authorized to overhear, intercept' or
reeord the communications, conversations, discussions, or spoken words;
3, the offerse or offenses sought to be conrmitted or prevented; and
4, the perir:tl of the authorization.
El{ectidtlr: The authorization shall be effectiv-e for-the-period speeified in the
order which sfr*ii nol uxcee{ siity tOOl days fronr the- dite of issuance of the
order, unless u*t.naui-o"-""".*"d d,V itt" iourt upon being satisfied that such
extension or renerval is in the public interest.
Pt'aced,are: All recor{ings made under court authorization within forty-eight
hours after the expiratio-n of the period fixed in the order:
1. shali be deposited with the courl in a sealed envelope or sealed package;
2. shall be accompanied by an affidavit of the- peace officer granted such
authority stating tire riumber oi recordings made, th; -dates- arrd times covered
tt ;;;ii"rt;rOtrie, ih" ""mber of tapes, discs,.or records.included in the deposit
a"na-.o"iiivi"s tirit ;J aupiicates or cbpibs are'included in the envelope or pockage
deposited with the court;
3. shull not be opened, or the recordings replayed, or used in evidence or
their content" o"4." Jt itt" courd, which shall-not b9 granted
*itn aoe notice and opportunity to be heard to the pcrson
""u"ui"Jlu*."irt-"p""
;;;;et opo" *otio",
o"-p'"".oit" tlhose conversations or communiiations havc been recorded.
iII, PENALTY
Any person who violates the provisions of this Act, shall, upon conviction,
be punislted by:
A. inrprisonment for not less than six months or more than six years;
and
R. rvith the accessoty penalty of perpetual absolute. disqualification
from- nublic offiie lf the-offender be a public official at the time
of the cornmission of the offense; and
c. if the offender is an alien, he shall be subject to deportation pro-
ceedings.
IV. ADl\TISSIBILiTY
Any communication or spoken rvord, or the existence^ contents, substance,
purport, effect or meaning of th. r"-. or {rny part thereof,.of any information
it.".itt contained, obtained or secured by any persori in violation of this act
shall not be admissible in evidence in any judicial, quasi-judicial, or adminis'
tratir"e hearing cr investigation'

L
SEC. 3, RULD 1S8 EVIDENCE 15

QUESTION 11. Cornplainan't Atty. Tito Pintar is cou,nsel for


Ma,nuel Montebon i.n a- complaint, f or direct assault filed' against I'eonard,tt
Laconieo. On October 22, 1975, complainant called uyt Ltr,conico to rj,[t:-
cq,ss the withd,rawal of his client's complai,nt. In turn, Laconico contactd,
appellant, Edgardo Gaanan, to seek adaice on the matter. He asktcl
appellant to listen to his corvuersattion uith the complainant through tlL('
eatension line. Thus, uhen complainnnt ca'Ileil up, appel'Iant ouerlteari.
the former's demo,nds for the settling of the case. Minutes later, com,-
plainant called up again to ask tahether Lacoruico was agree,a,ble and to
Lell ltim to wait for further instructions regarcling th,e del;ittery of money.
In a La"ter call, Lacon:ico, through, the ad'uice of CoI. Zuluetu of the CIS,
i,nsisted that eomplainant himself sh'ould, receiue the money" (Jpon cam,'
plainnnt's receipt of the'nloneA at the Igloo Restaurant, he. ruas im,mctliat,rllr
apprehen(Ied bg agents of the Philippine Cortstalntlarll.
A com,plaint for robbery/eutortion lans filed aguinst r:atrupluhtanr-
Attacheil thereto is an affiilauit exeaded bg appellant stuting thrt"t ht
heard complninnnt demand ?8,000 from Laconico for the utithdrutrfi, *f
the casa. On the other hand, complninant chu'rged' Lacanico and. n'pi,el-
lant for uiolation of the "Anti'-Wiretapping Aet" fo'r listerun.rl l,a llt'r:
telephone conaersation without his consen't.
Is an ertension teleTthone of the sam,e category as the othtt"prohibit:tl
deui.ces enunteraied in section 1 of the Anti-Wirela7ttn51 Act?
ANSWER. No. The phr:rse "any other device or &rrzrngemerit"
refers to a "tap"- of :r wire or cable or the use of a "device cr xrl:iini{e-
ment" for the purpose of secretly overheaping, intercepting: 01 recordii::t
the communication. There must be ejther a physical interrui;tion thror:!.ir
a wiretap or the deliberate installzrtion of a device or arrangenreut iti olr.'
to overhear, intercept or record the spoken words.
An extension telephone cannot be plerced in tire s:rntc c:rtugor)" :;;; :t
dictaplrone, dictagraph or the other devices enumerz)ted in Section 1. *f
the Act as the use thereof cannot be considered as "tappillg" the r'vil'q ''i
cable of a telephone line, The telephone extension in this c:Lse was ;i+t
installed for that purpose. It just happened to be there for ordinnr'"
purpose. a

The phrase "device or arrangement," although ni:t tlxclusive to i , '


enumerated therein, should be construed to comprehend instruurents .o
tire same or similar in nature, that is, instruments, tlie use of rlil' -,'
would be tantamount to tapping the main line of the t eleirhone. It re{r r *
to instruments whose installation or presence cannot be llresumed bi7 11;':
p.arty or parties being overheard because, by their very n:rtur€, thsl':'1'^
not of eommon usage and their purpose is precisely for tapping, iriri:''
cepting or recording a telephone conversation.
An extension telephone is an instrument whicir is very common esp":-
cially now when the extended unit does not have to l:e connected by wile
to the trtain telephone but can be moved from place to plnce within a
radius of a kilometer or more. A person should safely presume that th;
party he is calling at the other end of the line 1rrobably htrs iln extensiort
telephone and he runs the risk of third party listening as in the c:ise i:"i
a party line or a telephone unit whicfr shares its line with another.
A perusal of the Senate Congressional Records will show that not
only did our lawmakers not contemplate the inclusion of an extensittn

,l
16 RULES OF COURT sEc. 4, RULE 128

telephone as a prohibited device or arrangement but o{ 8:reater importance,


thei were more concerned with penalizing the act of recording than tht'
act-of merely listening to a telephone conversation. x x x
It can be readily
seen that our lawmikers intended to discourage, through punishment,
persons such as govemment authorities or representatives of organized
groups from instalHng devices in order to gather evid-enc,e for use in couri
6r to intimidate, blackmail or gain some unvrarranted advantage over the
telephone users. Consequentli, the Inere act of listening, in order to be
punishable must strictly be with the use of the enumerated devices in
RA No. 4200 or others of similar nature.l4
QUESTION 12. Before a recoriltng of conuersati,on, can be giaen
probatiae aa.Iue, wtwt-reQuisites must first be established'?
ANSWER. Before a recording of conversation can be given pro-
-
bative value, the following requisites must first be established: (1) a
sftowing that the recording device was capable of taking testimony; (2) a
$trowing that the operatorof the device was competent; (3) establishmeni
of ttre-authenticitf and correctness of the recording; (4) a showing that
clpnges, additioni, or deletions have not been made; (5) a showing cf
ttre frariner of the presel'vation of the recording; (6) identification of the
speakers; and (?) a showing that the testimony eliciled -was voluntarily
niatte wiihout any kind of lnducement (Francisco, Evidence, 1964 cd.,
pp, 24-25, citing 20 Am. Jur., 1961 Supplement 43;.tc
QUESTION 13. Is eaid,ence itlegal.Ig seized admissible in etti.dence?
ANSWER.
-
The Moncado ruling (80 Phil. 1) that illegally seized
- and things are admissible in evidence, must be aban-
documents, papers
doned. ttie ei'ctusion of such evidence is the only practical means of
enforcing the constitutional injunction against unreasonable searches and
seizures.- The non-exclusionary rule is contrary to the letter and spirit
of the prohibition against unreasonable searches and seizures. If there
is competent evidence to establish the probable cause of the commission
of a given crime by the party against whom the warrant is intended,
then there is no reason why the applicant should not comply rvith the
constitutional requirements" If he has no such evidence, then it is not
posrible for the iudge to find that there is a probable cause, and henee,
no justification for the issuance of the warrant. The only possible
explanation for the issuance in that case is the neeessity of fishing for
evidence of the commission of a crime. Such a fishing expedition is
indicative of the absence of evidence to establish a probable cause.ro

Sec. 4. Releoancy;. collnteral matters, must have sueh


- Evidence
e relation to the fact in issue as to induce belief in its existence or non'
existenee. Evidence on collateral rhatters shall not be allowed, except
when it tends in any reasonable degree to establish the probability or
improbability of the fact in issue.
1. Relevancy of evidence.
2. Tert of relevancy.
14 Gaanan vs. IAC. 146 SCRA 112.
rsFeople w. Orpilla, CA-G.R. No. 06591-CR, Julv 22, t97t; XXXVI L'J' 284'
- - roalso
See Pascual vs. De la Cruz, 28 SCRA 421.
Stonehill, et al. vs. Diokno, 20 SCRA 853. See also Corro vs. Lising, et aJ.'
13? sCRt 641; M;to vl. Bayotti, et al., 128 SCRA 391; Nolasco vs. Pafro, et al.,
fSg SCRA 162; People vs. Burgos, 144 SCRA 1.

h!
sEc. 4, RULE r28 EVIDENCE
t7
3. Logical relevancy distinguished from legal relevancy.
4. Issue defined.
6. Fact defined.
S' "Facts in issue" distinguished from .,facts relevant to the
g-10. Effect of pleadin-gs-ir -a.t"iiiiiriing the relevancy
l
issue,,.
11. Collateral facts difined of
evidence.
12. Admissibility of eollaieral facts. 1

l
QUESTION l-/ When is eai.d,enee releaant?
ANswER. is rerevant.when it rerates direcry to a fact
--Evidence
in issue; or to a.fag! from r"hi"il'iy the p"o.".u'i?iogic, an inference
may be made as to the existence-o.norr-exisi""."
oi:ort*t in issue.r
QUESTION 2.
ANS*ER' - What is the test of releaancy?
The test of rerevancy.is variousry stated: (1)
-
f:rct or eircumstance tendinj-to--t-rrrow-rigrrt every
(2) evidence is relevant from;hi.fihg f*?; on T116 i*.u" is rerevant:
(3) anv circumstance is rel,evanl- i"r,i.1, -*,iial-t"i*"o;'il togicallv inferable:
issue more or less probable,-o"-irti'.ii
is
-iii ti" p"o*.ition ai
carcurrt"J il'"e*prain or establish
facts pertinent to th-e i-ncuirv;'-a).
conduces to the p".oof- or i p6"iin'#t !rr"-'t".J"iJ #r,ltfr"" the evidence
hypoi-hesiq .*h"'r,vpothesis being
one which, if sustained, wourcr tosi"urivffiil;ih;'ilue;
relevant if thev fairrv tend to pi"t" irt" (b) f*cts a.e
;ff;; a;r.u..t.,
Frrim these tests, we may draw the following
examples:
(a) A is accuse{ of a crime. The facts that after
of the alleged crime tte absconoea; i". *"* the commissio'
the proceeds of nropertv.4;g"ii€d bv trt" P ndirJl.ii, of property or
things which wei'e or mrgtrt il"; bd used""i-";;';;;;pted to eoncear
in committing it, are rerevant.
(b) The ouestion is whether A was ravished. The
Lf_tl *1. alleged rape she -rA" i complaint relating iacts that shorily
crrcumstances under which and the tenns -,t to the crime, the
made, ar.e relevant.
in i.ii'the comptaint was
(c) The question is whether A was robbed. The facts
aiter' .the alleged robbery, t e maae a that, soon
trre circums;;?;;. under'*i,1.1i"",'a-*f;1-r1t#
was ma.de. are relevant. ,'ft1liIfnttn:n:"$iilif; _

(d) A sues B^for inducing c to break a contract


by him with A. c, gn 6;id -I'. i""uic",_.^v"--tJ"i,'of,,1service made
am reaving t
you because B has made me 6tt".otr"*;;-'dhi",
fact as explanatory of c's .onao.i*iii.t,
" .#"ffL't is a rerevant
i, fact in issue.
(e) A accused of theft, is seen give".i""o"i""?',
the stolen property
who is seen to give. it to_A( *ii".---g
^to*"-v.,-u...rr."iliji"r,
it, ..A to ts
you are to hide this." B's statem"nt i, "".fi; says
fact which is part of the tiu"r".tion' "i-'"*pron"tory of a
QUESTT'N B.
ANSWER- - Distingui.sh Logicar rereaancgl from ,egar rereaaneE.
LosicaJ. r-erevancy of evidence means
- essentiar to the fact in i.ru;;;i;ite'tegat
must be absoruterv that the evidence
requires a higher standar.d of evidentiary force rerevancy
vancv. Thus, the fact that evidence is iogicaily ""a ir.i"aes rogicar rele_
;;i";;;Tioes
admissilibity. It must be arso regairv-rerevant., A fact not insure
which, in connec_
t Ft"lt*"n vs. Consumerts Rrcuino f.!^
'un-a.ii,iir,.-b;;ifi:T"i;,utiif t?n.$t.:"J:ril;loo,.soz.

A
18 RULES OF COURT SEC. 4, IiUI,E 133

tion with other facts, t'enders probable the existertce of a fact in issue,
may still be rejected, if, in the opinion of tlte iudge, and undel the circum-
stances r-.f the ease, it is considered essentiall)'misleading or too rrmote.:l
Legal relevancy is not different in its nature from logical relevancy.
The only distinction is in its field of application. Legal relevancy is thc
attribute of all those logically relevant matters which are not declared a
inadrnissible by one or mol€ of the excluding rules. Stephen procged..s
upon the theoriy that logical relevancy is the main condition of admissi-
I
bility, and that all rules excluding evidence which is logically relevant ;
are,-iherefore, exceptions to the general rule.{ But it is equally.plain ?
thal logical relevaniy does not in all cases render proposed testimony I
admissible. For example, a husband may not as 1 general rule, testify
to the declarations of his wife, when she is a party to the suit; and an II
attorney may not testify to the communications of his client rnade in
confidence. In these and other cases the testimony is exclurlecl, however
pelevant, by positive rules of law.5 !
QUESTION 4. - Define issue under the rulcs of plcading. i
- ANSWER. - Issue is the point or points in question, at the con- I
clirsiol of the pleadings which one side affirms, and the othel' denies.6
II
The pleadings are but the forms intended as the basis of the proof
to be submitted it the trial of the issue. Issues arise upol the pleading
where a faet or conclusion of law is mainfurined by the one llrttty, an<l
is controverted by the other.?
QUESTION 5. Define a fact.
ANSWER.
-
Fact is defined as :r thing done, or existing. Whether
a thing was -
donr: or does exist, is a question of fact for the court.s
Thus, that a man heard or saw something, is a fact; that a mlln
said certain words, is a fact; that a m:in holds a certain opinion, has a
certain intention, acts in good faith or fraudulently, or uses a patticulirr
word in a particular sense, or is 01 was at a specified time conscious
of a par'ticular sensation is a fact; that a man has a certain reputzrtion,
is a fact.e
QUESTION 6. Distinguish facts in iss'ue f rom facts releuant io
the issue. -
ANSWER. Facts in issue are those facts rvhich a plaintiff mttst
prove in order to- establish his claim and those facts rvhich the defendant
must prove in order to establish a defense set up by him, but only when
the fact alleged by the one party is not admitted by the other p:rrty.
Facts which are admitted, expressly or by implication, are not in issue.r"
To determine the relevancy of the evidence, the pleadings of the parties
must first be looked to for the purpose of ascertaining the issue.l1 For
example, if A sues B for assault, A must prove the assault. If B's defense
3 Best on Evidence, Sec. 251.
a McKelvey on Evidence, Sec. 99.
5 Jcnes on Evidence, pp. 23?-238.
o Cochran's Law Lexicon, p.
176.
? Sutherland's Code Pleading', Practice and Forms, Sec. 84.
8 Cochran's Law Lexicon, p. 133.
I Woodroffe's Larv of Evidence, p. 11.
10 Phipson's Manual of the Law of Evidence, p. 24'
11 2 Jones on Evidence, 2nd Ed., Sec. 609.

I
L I
sDc. 4, RULE 128 EVIDENCE 19

is that A was trespassing on B's land and B was ejecting hirn with no
more force than was reasonably necessary, B must prove that A was
trespassing and that no unnecessary force was usetl to eject him. If
there are no admissions, the facts in issue are that B assaulted A, that
A was a trespasser and B edmits the assault, the sole fact at issue is
whether the force used was reasonable in the circumstances.l2
I Facts relevant to the issue are those facts which render probable the
t existence or non-existence of a fact in issue, or some other rilevant fact.
r Facts relevant to the issue are in the main determined by ordinary logic
and experience.rs For instance, in the example given above, to prove tliat
?
the forcc used on A was no more than was necessary to eject him, B might
I prove that A was abusive, refused to leave when asked, and resisted
violently when B attempted to escort him off the property. These facts,
II if proved, render it more likely that the for.ce used on A was not more
than was necessary.la
a
a
:
QUESTION 7.
- What. is the effect of pleailings in iletermi,ning
the rele.,^ancy of eaiilence?
I
a ANSWER. -- The effect of the pleadings is that they hetp in deter.-
II mining whether the evidenee offered is relevant to the case, for it is a
,t familiar proposition that the evidence must be confined to the facts put
in issue by the pleadings.rs
In prosecution for illcgal ytossessi.on of o,pium,
QUESTION 8.
- ina the fui,fonnation.
reci.diaism is not charged Maa proof of the same be
ailmitteil?
ANSWER. No, because no evidence can be adduced during the
trial of the cause- which does not'directly or indirectly tend to prove some
of the essential allegations of the complaint. Any evidence presented
which rloes not directly or indirectly tend to prove some of the facts
alleged in the complaint should be rejectecl by the court. Otherwise, and
under any other rule, a defendant misht be charged with one crime and
convicted of a very diffbrent and dissimilar crime, which, of course, can
not be sanctioned under a government of law.10
A instituteil action against B as enecutor ol
QUESTION 9.
- one-half ofan
the d,eceaseil X to recoaer certain properties, alleging that the
same pertuined, to an orilinary ytartnership formeil between her anil X. '\
Eaidence of mari,tal cohabitation beteoeen X anil A was presented,, and,4
A contendeil, that in aiew of said, ersid,ence, it should, be presumed that a
marriage took place between th,em and there u;as, therefore, a conjugal
partnershi,p tuhich gaae rise to patrhnoninl rights and obligati,ons. Mar-
riage, howeuer, was not a,llegeil in the eom,plnint. Is the contention of
A tennble?
ANSWER. No, the contention of A is not tenable. The presump-
tion of marriage- from the marital cohabitation can not be invoked since
such presumption would be inadmissible in view of the fact that maniage
was not alleged in the complaint. Presumptions are not allegafions, but
are evidence. And as they constitute evidence, presumptions are irre.
12 Phipson's Manual of the Law of Evidence, p. 24.
13 lbid.
14 Ibid., pp. 24-26,
16 2 Jones, Commentaries on Evidence, 2d ed., Sec. 609.
ro U.S, vs. Tieng Pay, 42 Phil. 212.
20 RULES OF COURT SEC. 4, RULE 128

levant and therefore inadmissible rvhen they do not correspond with 'the
allegations and the facts at issue in the allegations.r?
QUESTION 10. A utas accu,sed of usurpation in that he toolt
-
possession of real property belonging to another by the use of aiolence
anil inti'm.id.ation. A offered to pr"oue, by auth'entic d,ocument, thnt h,e t
was thc lawful owner of the lnnd in question. The ud.mission of the i
euidence was objected to on the ground that it was 'irnrnaterial and it're'
leaant. Sh.ould the obiection bc sustained'? ;
tI
ANSWER. |rfs, the objection should not be sustained, for in the
case of usurpation,- ownership of the property constitutes a necessary and
indispensable element for the determination of the defendant's grilt cr
innoCence. If A could show that he was the owner of the land in question
there would be no ground on which he could be convicted of the offense I
charged, because no one can, in a legal sense' be guilty of the usurpation
of his own property.ls
r QUESTION 11. - Define collateral facts. I
ANSWER. Collateral farcts may be defined as those that are out- II
-
si$e the controversy, or ttrre not directly connected with the principal
matter or issue in dispute, as indicated in the pleadings of the parties.lt
QUESTION 72. Are euidence of colluteral fucts admissihle.
ANSWER.
-
Collateral matters are not allowedlo because thel' drarv
away the mind of - the court from the point at issue, and excite prejudice
and mislead it.21 They are however admissible when they tend in any
reasonable degree to establish the probability or improbability of the fact
in issue.er
Conduct of the defendant which is inconsistent with his innocence
is properly allowed to go to the court, such as evidence of flight, pre-
paration for crime, .and the possession of incriminating evidence. It is
i'elevant to show that the accused possessed or had access to articles lvith
which the crime lvas or might have been committed, and the articles
themselves may be admitted. Mere ability to commit a crime does not
evidence its commission, but ability plus the possession af tools and skill
necessary to commit it does have a probative value. Opportunity to
commit the crime is generzrlly regarded as relevant. Motil'e and lach ot
motive are always relevant, but motive alone is not enough to suppolt
a conviction. Proof of motive, however, is not required when a delibelrite
crimina! act is shown. Intent in offenses where it is not inferred fro:n
the act itself may always be shorlt.s
17De Leon vs. Villanueva, 51 Phil. 6?6.
r8 U.S.vs. Fuster, 2 Phil. 695-697.
resummerour vs. Felker, 102 Ga. 254,29 S.E. 448; Garner vs. State, 76 Miss,
615,25 So. 363.
30 of Court, as amended.
Sec. 4, Rule 128, Rules
Wharton's Criminal Evidence, p" 271.
3r
P See, 4, Rule 128, Rules of Court, as amended'
3sUnderhill's Criminal Evidence, 5th Ed., Vol. I, pp. 13-14.
To show the state of mind of the accused towards the deceased, it is relevant
to introduee in evidence facts and circumstances relating to any ill-treatment of
the accused by the deceased, or any act which had greatly cxcited the anger of the
accused. Not only quarrels and ill-wili rc'ievant in general, but the facts from
which a stress of feeling may be reasonably inferred are aiso relevant. 1 Whartoii't
Criminal Euidence, p. 316,
IVlotive is inrpoitant only if the culprit's iricnlily is in doubt, not when he is

I
,