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RULES OF COURT Rules 1 to 71 Rules 72 to 109 Rules 110 to 127 Rules 128 to 134 1997 Revised Rules of Civil

Procedure Special Proceedings Dec. 1, 2000 Revised Rules of Criminal Proc. Rules of Evidence

Rule 128 General Considerations in Evidence Rule 129 What Need Not Be Proved Rule 130 Rules of Admissibility Rule 131 Burden of Proof and Presumptions Rule 132 Presentation of Evidence Rule 133 Weight and Sufficiency of Evidence Rule 134 Perpetuation of Testimony [NOTE: This rule will be transposed to Part 1 of the Rules of Court on Deposition and Discovery] Rule 135 Powers and Duties of Courts and Judicial Officers Rule 136 Rule 137 Rule 138 Rule 138-A Rule 139-A Rule 139-B Rule 140 Rule 141 Rule 142 Rule 143 Rule 144 Court Record and Gen. Duties of Clerks and Stenogs. Disqualification of Judicial Officers Attorneys and Admission to Bar Law Student Practice Rule The Integrated Bar of the Philippines Disbarment and Discipline of Attorneys

Charges Against Judges of First Instance 2004 Revised Legal Fees Costs Applicability of the Rules Effectiveness

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Rules of Evidence in the Philippines A. Sources of the Rules 1. The Principal Source: Rules 128 to Rule 133 of the Revised Rules of Court a) Origin: The rules are patterned and based on the rules of evidence as developed, applied and interpreted in the English and American Courts. Thus the rules on the disqualification of witnesses are pattered from the rules applied in the State of California. Our rules concerning confessions are patterned after American rules b) Decisions of the English and American Courts, as well as opinions and works of English and American jurists, such as Wigmore, Clark, Jones, and others, are given great weight 2. The Philippine constitution particularly, its provisions on the Bill of Rights and the Article on the Supreme Court 3. Special Laws passed by Congress which either create, amend or supplement existing rules of evidence. The most recent includes (i) The Electronic Evidence Act and the (ii) The Child Witness Law 4. Decisions of the Supreme Court 5. Circulars issued by the Supreme Court B. Power to Prescribe Rules of Evidence 1. The power is essentially legislative in that it is Congress which can enact laws concerning the presentation, admissibility, and weight of evidence. However the Supreme Court is not precluded from issuing adopting circulars and rules concerning the rules of evidence 2. New laws maybe issued under the Principle that No person has a vested right in the rules of evidence. Parties to a pending case can not demand that a new rule of evidence should not apply to them because it will be adverse to their cause. Rules of evidence may be altered or repelled at anytime and will apply to pending cases even if the effect is adverse to a party therein. The exceptions are rules which partake of the nature of 1. Rules of Probative Policy. These are rules the purposes of which is to improve the probative value of the evidence offered a). Exclusionary Rules- those that exclude certain kinds of evidence on the grounds of policy and relevancy. Example: the rule that character evidence is not admissible in civil cases; the rule disqualifying certain persons from being witnesses. b). Preferential Rules- those which require one kind of evidence in preference to any other in that they are more trustworthy. Example: the rule which require that the original of a document is preferred over any other as proof of the contents of a document c). Analytical rules- those that subject certain kinds of evidence to rigid scrutiny, so as to expose their possible weaknesses and shortcomings. Examples: the rules which require that testimonial Ex post facto laws or Bills of Attainder.

C. Stipulation and Waiver of a Rule of Evidence 1. Generally parties cannot, either by agreement or by contract, stipulate what rules shall be binding upon the Court. But the parties may however stipulate on the effects of certain types of evidence on their contractual rights as long as the jurisdiction of the court is not affected 2. As to waiver: a). Rules intended for the protection of the parties maybe waived Examples: Rules on the Disqualification of Witnesses, the Privileged Communication Rule, The Best Evidence Rule b). Rules grounded on public policy can not be waived. Examples: The Rule on the Identity of State Secrets; the rule on the inadmissibility of Coerced Confessions and evidence resulting from illegal searches and seizures; the two-witness rule on treason D. Classification of the Rules of Evidence

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evidence be subjected to the opportunity for crossexamination d). Prophylactic rules- those that apply beforehand certain measures to prevent risk, falsity or mistake. Examples: the rules which require that witnesses be placed under oath; the rules on the separation and exclusion of witnesses e). Quantitative Rules- the rules that require certain kinds of evidence to be produced in specific quantity, or that certain evidence be required to be associated with other evidence when presented. Examples: the 2-witness rule in the crime of treason; the rule which require that an extra judicial confession be corroborated by evidence of corpus delicti; that the testimony of a state witness be corroborated in its material points.

Sec. 3 . Admissibility of evidence. Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. (3a) Sec. 4 . Relevancy; collateral matters. Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. (4a) RULE 128. GENERAL CONSIDERATIONS in EVIDENCE Section 1: Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding, the truth respecting a matter of fact. I. Dual Concept of Evidence: 1. As the very materials presented in court consisting of objects, documents or oral narration of witnesses 2. As a system, process or methodology of proving a fact. Hence it would refer to providing answers to such questions as who may and who may not be witnesses , what may be allowed as proof, how they are to be presented; what requirements are to be observed, what weight and importance is to be given a certain evidence in relation to other pieces of evidence. 3. Section 1 stresses evidence as a system or methodology. But the rules often use one or the other concept. Thus, which concept is followed depends upon the context in which the word evidence is used. II. Definition explained:

2. Rules of Extrinsic Policy- these are rules which seek to exclude useful evidence for the sake of up holding other policies considered more paramount. They may either be absolute or conditional. Examples: The Exclusionary Provisions of the Constitution; the Anti Wire Tapping Law.

E. Interpretation: The rules are to be liberally construed and hair-splitting technicalities are to be avoided

REVISED RULES OF EVIDENCE RULES 128 TO 134, RULES OF COURT AS AMENDED PER RESOLUTION ADOPTED ON MARCH 14, 1989 RULE 128 General Provisions SECTION 1 . Evidence defined. Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. (1) Sec. 2 . Scope. The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or these rules. (2a)

1. means sanctioned by these rules. The procedure for determining the truth is as provided for under Rules 128 to Rule 133, including the amendments thereto and their interpretation given by the Courts 2. of ascertaining in a judicial proceeding- the rules or procedure is applicable only to controversies tried by the regular courts of law; the procedure or rules of evidence doe not apply in quasi-judicial or administrative tribunals or to courts martial. The latter may adopt the rules in their discretion

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3.The truth: a). The ultimate objective of the rules of evidence is to render justice by arriving at the truth of a matter in dispute i.e by knowing the facts and the meaning of these facts . b). Factual or moral truth- the truth which the court seeks to know c). Judicial truth- the truth as found by the courts based on the evidence presented to it d) Ideal or perfect justice- when the judicial truth is likewise the factual truth. Where the two differ, still there is justice so long as the court observed both substantive and procedural due process 4. respecting a matter of fact the fact to be established or the point in controversy must be capable of being proven or ascertained by the rules of evidence. The rules do not apply and cannot be used to answer questions or controversies involving religion or faith; dogma, philosophy, literature, fantasy or fiction or those which are purely speculative. III. Related Concepts: In the following instances the term evidence is understood in the sense of being the materials presented in court and not a methodology or proof. 1. Evidence from Proof = Strictly, evidence is the medium of proof whereas proof is the result of evidence. Thus the materials consisting of the weapon used, the confession of the accused, the testimony of the complainant and witnesses, the result of the paraffin test, will constitute the evidence of guilt. Their combined effect will be Proof of guilt Beyond Reasonable Doubt. The two terms are often used interchangeably. 2. Factum Probandum and Factum Probans. All litigations, whether civil or criminal, involve the relationship between these two concepts. a) Factum Probandum refers to the ultimate fact to be proven, or the proposition to be established. That, which a party wants to prove to the court. E.g.: guilt or innocence; existence of a

breach of contract; existence of an obligation; the fact of payment; the injury or damage incurred. b). Factum Probans refers to the evidentiary facts by which the factum probandum will be proved. Examples: the written contract; the promissory note to prove the existence of an unpaid debt. Factum probandum Factum Probans Proposition to be Material evidencing the established proposition Conceived of as Conceived of for hypothetical; that which practical purposes as one party affirms and the existent, and is offered as other denies such for the consideration of the court Factum Probandum- the untimate fact to be established; proposition to be established, hypothetical, and that which one party affirms and the other denies. The fact/s in issue. Factum Probans- materials evidencing the proposition, existent, and offered for the consideration of the tribunal; the evidentiary fact by which the factum probandum is to be established; Notes: 1. In both CIVIL and CRIMINAL cases, the probandum contained in the pleadings could be changed in the pre-trial order. However, with respect to CRIMINAL CASES, the pre-trial order SHOULD NOT substantially change the accusation/indictment contained in the information, otherwise the case will be dismissed. 2. A court can validly try a fact in issue not raised in the pleadings or pre-trial order. Rule 10 provides that a fact in issue may be raised with the express or implied consent of the parties during the trial (Amendment to conform to evidence) 3. Ascertainment of probandum does not apply in special proceedings. (i.e. If there is a petition for probate of a will, even if there is no opposition the petitioner is still required by law to prove that the will has been duly executed in accordance with the Civil Code) IV. Classification of Evidence (referring to the materials presented in court) A. Direct and Circumstantial

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1. direct- that which proves a fact in issue or dispute without the aid of any inference or presumption. It is evidence to the precise point. Example: The eye witness account; the scar to show the wound 2. circumstantial- proof of facts or fact from which taken singly or collectively, the existence of the particular fact in issue maybe inferred or presumed as a necessary or probable consequence 3. Important circumstantial evidence considerations on

B. Positive vs. Negative Evidence a). positive-evidence that affirms the occurrence of an event or existence of a fact, as when a witness declares that there was no fight which took place b). negative when the evidence denies the occurrence of an event or existence of a fact, as when the accused presents witnesses who testify that the accused was at their party when the crime was committed. Denials and alibi are negative evidences. c). The general rule is that positive evidence prevails over negative evidence, or that a positive assertion is given more weight over a plain denial. C. Primary (Best) vs. Secondary Evidence

a) This applies only in criminal cases and is governed under Rule 133(4) which for purposes of supporting a finding of guilt, requires: i). that circumstance there be more than one

ii).that the facts from which the inference are derived are proven iii). the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt b) Per the Supreme Court: it is essential that the circumstantial evidence presented must constitute an unbroken chain which leads one to a fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person. c). Guidelines in the appreciation of the probative value of circumstantial evidence i) It should be acted upon with caution ii). All essential facts must be consistent with the hypothesis of guilt iii). The facts must exclude every other theory but that of guilt iv). The facts must establishes such a certainty of guilt as to convince the judgment beyond reasonable doubt that the accused is the one who committed the offense

a). primary- that which the law regards as affording the greatest certainty of the fact in question. E.g.: the original of a contract is the best evidence as to its contents; the marriage contract as to the fact of marriage; a receipt as to the fact of payment; the birth certificate as to filiation. b). secondary- that which is necessarily inferior and shows on its face that a better evidence exists. E.g.: Xerox copies of documents; narration of witnesses as to a written contract. D. Conclusive vs. Prima facie a).conclusive may either be (i) that which the law does not allow to be contradicted as in judicial admissions or (b) that the effect of which overwhelms any evidence to the contrary as the DNA profile of a person as the natural father over a denial b). prima facie- that which, standing alone and uncontradicted, is sufficient to maintain the proposition affirmed. In the eyes of the law it is sufficient to establish a fact until it has been disproved, rebutted or contradicted or overcome by contrary proof. E. Cumulative vs. corroborative a). cumulative- additional evidence of the kind bearing on the same point. E.g.:

same

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testimonies of several eyewitnesses to the same incident b). corroborative-additional evidence of a different kind or character but tending to prove the same point. It is evidence which confirms or supports. Thus: (i) the medico legal certificate describing the injuries to have been caused by a sharp pointed instrument corroborates the statement that the accused used a knife to stab the victim (ii) the positive results of a paraffin test corroborates the allegation that the person fired a gun and (iii) the ballistics examination on the gun of the suspect corroborates the statement that he fired his gun at the victim F. As to form: a). documentaryb). object- those consisting of evidence which are addressed to the senses of the court c). Testimonial- evidence consisting the narration made under oath by a witness G. Relevant, material and competent (refer to section 3 and 4) Relevant evidence evidence which has a relation to the fact in issue as to induce belief in its existence or non-existence; evidence which tends in any reasonable degree to establish the probability or improbability of the fact in issue. Material evidence evidence which is directed to prove a fact in issue as determined by the rules of substantive law and pleadings; evidence of such quality of substantial importance to the particular issue, apart from its relevance The terms relevant and material are practically the same. They are used interchangeably by the SC. Competent evidence evidence which is not excluded by the law or by the Rules of Court Direct evidence evidence which proves a fact in dispute without the aid of any inference or presumption Circumstantial evidence proof of facts from which, taken collectively, the existence of the particular fact in dispute may be inferred as a necessary or probable consequence

Expert evidence testimony of a witness regarding a question of science, art or trade, when he is skilled therein Prima facie evidence evidence which suffices for the proof of a particular fact until contradicted and overcome by other evidence Conclusive evidence evidence which is incontrovertible and which the law does not allow to be contradicted Cumulative evidence evidence of the same kind and character as that already given and tends to prove the same proposition Corroborative evidence evidence of a different kind and character tending to prove the same point Best evidence evidence which affords the greatest certainty of the fact in question Secondary evidence evidence which is necessarily inferior to primary/best evidence and shows on its fact that better evidence exists EVIDENCE vs. PROOF Proof- is the effect of evidence. It is the probative effect of evidence and is the conviction or persuasion of the mind resulting from a consideration of the latter. Evidence- is the cause necessary to establish proof.

Collateral facts matters other than facts in issue and which are offered as a basis merely for inference as to the existence or non-existence of the facts in issue Real evidence evidence furnished by the things themselves, or view or inspection as distinguished from a description by them of a witness; that which is addressed directly to the senses of the court without the intervention of a witness Rebuttal evidence evidence which is given to explain, repel, counteract or disprove facts given in evidence by the adverse party Positive evidence when a witness affirms that a fact did or did not occur Negative evidence when a witness states that he did not see or know the occurrence of a fact

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Irrelevant vs. Incompetent Immaterial Evidence

vs.

Inadmissible

vs.

any witness who testifies. Direct vs. Circumstantial Evidence

Irrelevant- no probative value; No tendency in reason to establish the probability or improbability of a fact in issue. It does not directly relate to a fact in issue. N.B. All facts and circumstances which afford reasonable inferences or throw light upon the probability of matter or matters contested are admissible in evidence, UNLESS excluded by some established principle of evidence, such as HEARSAY EVIDENCE RULE, RULE ON PAROLE EVIDENCE and BEST EVIDENCE RULE. Collateral Matters- matters other than the facts in issue and which are offered as a basis merely for inference as to the existence or non-existence of the facts in issue. These are not allowed unless satisfy ALL the requirements of relevancy. ILLUSTRATIONS: a. finger marks, foot prints and a bat left by the accused in the place of the crime b. The resemblance of a child to his alleged father to prove paternity of the latter c. Bloodstains on the clothing of the person charged with a crime d. evidence The destruction or fabrication of

Direct- Evidence that directly proves a fact without need to make inference from another fact Example: The testimony of the prosecution witness claiming that he saw that it was actually the deceased who attacked the accused without the latters provocation is a direct evidence. Circumstantial- Indirectly proves a fact in issue through an inference which the fact finder draws from the evidence established Example: The testimony of the victim that he dreads the mere presence of the accused is direct evidence that the statement was made. It is likewise circumstantial evidence to show that this fear prevented the victim from attacking the accused without provocation. IN CRIMINAL CASES, circumstantial evidence is sufficient for conviction when: a. b. c. There is more than one circumstance The facts from which the inferences are derived are proven The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt (Sec. 4 Rule 133)

Cumulative v. Corroborative Cumulative- evidence of the same kind that tends to prove the same fact Ex. Two or more witnesses testify that they saw the event which the first witness claimed he saw, the subsequent testimonies are cumulative Corroborative- evidence which tends to confirm, validate or strengthen evidence already presented. Evidence may be of the same kind or different kind and tends to prove the same fact. Ex. A witness claims that he saw Mr. X sign the document subject of the action. Mr. X denies the authenticity of his signature. Evidence by a handwriting expert is corroborative. Positive v. Negative Evidence Positive- A witness affirms in the stand that a certain state of facts do exist or that a certain event happened

e. Flight of the accused. (N.B. Non-flight is not conclusive proof of innocence) f. Delay in the identification of victims assailant Incompetent- excluded by the rules or any law Inadmissible- not competent and irrelevant Immaterial- the offered evidential fact is directed to prove some probandum which is not properly in issue. (N.B.- The rules on substantive law and of pleading determine immateriality) Material evidence- proves a main fact which is the subject of the inquiry or any circumstance which tends to prove that fact or any fact or circumstance which tends to corroborate or strengthen the testimony relative to the subject of inquiry or which legitimately affects the credibility of

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Negative- A witness states that an event did not occur or that the facts alleged to exist did not actually exist. (Denial) Derivative Evidence- type of evidence that is inadmissible as proof because of the application of the fruit of the poisonous tree doctrine, which treats the original evidence and any evidence derived from it as tainted because of the illegal way in which it was obtained by agents of the government. Rebuttal Evidence- offered to contradict other evidence or to rebut a resumption of fact.

The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or these rules. I. General Rule- Section 2 provides the Rule on Uniformity in the Application of the Rules. The same rules shall govern the trial in the lower courts and appellate courts, in civil and in criminal cases. The reason is that the search for truth is subject to the same rules. II. Exceptions: A. As to whether the rules on the presentation of evidence shall be applied strictly. 1. Cases covered by the Regular Procedure- the rules apply strictly 2. Cases covered by the Rules on Summary Procedure- the rules are relaxed and the procedure is abbreviated. Between civil and criminal proceedings 1. As to the quantum of evidence for the plaintiff to win: proof of guilt of the accused beyond reasonable doubt vs. preponderance of evidence 2. As to the presence of the parties: in civil cases the attendance of the parties is not required and they attend on their own volition whereas in criminal cases, the presence of the accused is required unless he waived the same 3 As to the effect of the absence of a party: in civil cases, except during the pre-trial, the proceedings may proceed even in the absence of the parties whereas in criminal cases, trial cannot proceed if the accused was not notified 4. As to the rule on confessions: this applies only in criminal cases

Admissibility v. Weight Evidence is ADMISSIBLE when it is relevant and is not excluded by any rule. Probative value or WEIGHT is to be determined by the court when it decides the case

B.

Admissibility of evidence Weight of evidence Pertains to the ability of the Pertains to the effect of evidence to be allowed evidence admitted and accepted subject to its relevancy and competence Substantive essence or The probative value of characteristic feature of evidence which the evidence as would make it court may give to admit worthy of consideration by after complying with the the court before its rules of relevancy and admission competency

Proof Effect and result evidence End Result

Evidence of Medium of proof

Means to the end

5. As to the effect of an offer of compromise by the defendant: in criminal cases the offer is an implied admission of guilt whereas it does not simply any liability in civil cases 6. As to the presumption of innocence: this applies only in criminal cases Notes: The Rules on Evidence apply only when there is going to be a trial. Note that there can be a judgment on pleadings, by confession, consent and compromise etc. IN CIVIL CASES. Mere denial in the answer in a CIVIL CASE will not present a probandum hence no need for the court to try the case. Such general denial will be considered as an admission.

Evidence must have such a relation to the fact in issue as to induce belief in its existence or nonexistence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. Scope of Evidence (Section 2, Rule 128)

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In CRIMINAL CASES, We have to wait until the accused enters a plea. This time a general denial is allowed. If the accused enters a plea of guilty there is no probandum. However in CRIMINAL CASES, the court could still try the case if the case involves a heinous crime. The Rules on evidence are not selfexecuting. So the rule is any evidence submitted will be admitted so long as there is no objection. This principle is only for the purpose of admissibility. It does not mean that the court will take these irrelevant evidence in evaluating on the merits of the case. DIFFERENCE IN RULES ON EVIDENCE IN CRIMINAL AND CIVIL CASES BASIS Quantum of Proof Criminal Case Proof Beyond Reasonable Doubt General Denial Allowed Civil Case Preponderance of evidence Must be Specific Denial Judicial Admission withdrawn becomes an extrajudicial admission

a witness

only limitations

Section 3, Rule 128: Admissibility of evidenceEvidence is admissible when it is relevant to the issue and is not excluded by law or these rules. A. Admissibility- the character or quality which any material must necessarily possess for it to be accepted and allowed to be presented or introduced as evidence in court. It answers the question: should the court allow the material to be used as evidence by the party? B. Weight- the value given or significance or impact, or importance given to the material after it has been admitted; its tendency to convince or persuade. Hence a particular evidence may be admissible but it has no weight. Conversely, an evidence may be of great weight or importance but it is not admissible. Conditions for admissibility: Wigmores Axiom of Admissibility None but facts having rational probative value are admissible- ILLUSTRATION: In a trial for homicide, the fact is offered that the accused was requested, with others, to touch the corpse of the murdered man to see if blood flowed, but that he refused to do so; this is admissible, not because the flowing or retention of the blood at the guilty mans touch would be rationally evidential of his guilt, but because his refusal to do could constitute a link to the chain of evidence necessary to produce a moral conviction of guilt. Any fact having rational probative value is admissible, unless some specific rule forbids its admission- ILLUSTRATION: In an issue involving forgery, the disposition of the persons character as to acts of honesty or dishonesty is of some rational probative value towards showing that he did or did not do the act; it is therefore admissible, but this can only be done if the accused steps forward first and adduces evidence of his good moral character. A. RELEVANCY (None but facts having rational probative value are admissible). Per section 4, Relevance is: The evidence has such a relation to the fact in issue as to induce belief in its existence or nonexistence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. (Rule 128, Secs. 3 and 4.)

Denial

Withdrawal Of Plea/ Admission

Withdrawn plea inadmissible

Cross Examination in Summary Procedure

Applicable

Not applicable

Equiponderance Rule

Accused is acquitted

Party who loses is the one who has burden of proof

Presenceof Circumstan-tial Evidence Priviliged Communicatio n- Dr.-Patient Compulsion as a witness

More than one is required

One suffices

Not applicable

Applicable

Cannot compel accused to be

No prohibition, rules provides

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- In conclusion, relevancy is not determined by law nor the rules of court. It is determined purely by LOGIC. 1. The material presented as evidence must affect the issue or question. It must have a bearing on the outcome of the case. It requires both: a). rational or logical relevancy in that it has a connection to the issue and therefore it has a tendency to establish the fact which it is offered to prove. The evidence must therefore have probative value b). legal relevancy in that the evidence is offered to prove a matter which has been properly put in issue as determined by the pleadings in civil cases, or as fixed by the pre-trial order, or as determined by substantive law. If so the matter has materiality. Illustration: (a). Criminal case: the fact that the crime was committed at nighttime is rationally or logically relevant to a killing at 12 midnight but evidence thereon would not be legally relevant if nighttime was not alleged in the Information. It would be immaterial. (b) Civil Case: In an action for sum of money based on a promissory note, evidence that the defendant was misled into signing the note would be rationally relevant but if fraud was never alleged as a defense, then evidence thereof would be legally irrelevant or immaterial. The components of relevancy probative value and materiality. are therefore

(iii).Subsequent circumstances or those which occur after the commission of the crime, such as flight, escape, concealment, offer of compromise c). Example: Motive is generally irrelevant and proof thereof is not allowed except: when the evidence is purely circumstantial, when there is doubt as to the identity of the accused, or when it is an element of the crime. B. COMPETENCY (All facts having rational probative value are admissible unless some specific law or rule forbids). In short the evidence is not excluded by law or rules. B. Competence The evidence is not excluded by the law or the rules (Rule 128, Sec. 3.) Do not confuse COMPETENT WITNESS from COMPETENT EVIDENCE. The COMPETENCY TEST of evidence applies to the TESTIMONY of the qualified witness. Since admissibility of evidence is determined by its relevance and competence, admissibility is therefore an affair of logic and law. On the other hand, the weight to be given to such evidence depends on judicial evaluation within the guidelines provided in Rule 133 and the jurisprudence laid down by the court. (People vs. Turco, 2000) Relevant evidence is one that has any value in reason as tending to prove any matter probable in an action. Evidence is said to be material when it is directed to prove a fact in issue as determined by the rules of substantive law and pleadings, while competent evidence is one that is not excluded by law in a particular case. (Bautista vs. Aparece, 1995) 1. Exclusionary Rules under the 1987 Constitution 1.1 Secs. 2 & 3, Art. III The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires

2. Rule as to collateral matters: Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the facts in issue a). collateral matters-facts or matters which are not in issue. They are not generally allowed to be proven except when relevant. b) In criminal cases, the collateral matters allowed to be proven, being relevant include: (i).Antecedent Circumstances, or those in existing even prior to the commission of the crime. They include such matters as habit, custom, bad moral character when self defense is invoked; or plan design, conspiracy, or premeditation, agreement to a price, promise or reward (ii)Concomitant circumstances or those which accompany the commission of the crime such as opportunity to do the act or incompatibility

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otherwise as prescribed by law. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. 1.2 Sec. 12, Art III Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. No torture, force, violence, threat, intimidation, or any other means, which vitiate the free will, shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. Sec. 17, Art III No person shall be compelled to be a witness against himself. This right is recognized under he Rules on Evidence, which provides that, it is the right of a witness not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law. [Sec. 3 (4), Rule 132, ROC) NOTES AND COMMENTS: The human body could be used as evidence without violating the right. Mechanical acts without the use of intelligence do not fall within the scope of the protection. Some of the acts which are not covered by the right of self-incrimination are the following: a.Fingerprinting, photographing and paraffin testing, physical examination. (U.S. v. Tang, 23 Phil. 145_) b. Physical examination of a woman accused of adultery to determine if she is pregnant. (U.S. v. On Suy Hon, 36 Phil. 735; Villaflor v. Summers, 41 Phil. 62) c. Undergoing ultra-violet rays examination to determine presence of flourescent powder on the hands. (People v. Tranca, 35 SCRA 455)

d. Subpoena directing government officials to produce official documents or public records in their custody. e. Fitting the accused foot over a foot print, putting on a pair of trousers, etc. 2. Statutory Rules of Exclusion

2.1. Sec. 201, NIRC An instrument, document or paper which is required by law to be stamped and which has been signed, issued, accepted or transferred without being duly stamped, shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used in evidence in any court until the requisite stamp or stamps shall have been affixed thereto and cancelled. 2.2. R.A. 4200 (Wire-tapping Act) Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken work by using a device commonly known as a Dictaphone or dictograph or detectaphone or walkie-talkie or tape recorder, or however otherwise described. x x Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained, obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. An extension telephone cannot be placed in the same category as a Dictaphone, dictograph or the other devices enumerated in Sec. 1 of RA 4200 as the use thereof cannot be considered as tapping the wire or cable of a telephone line. (Gaanan vs. IAC, 1986) RA 4200 expressly makes tape recordings of tapped conversations inadmissible in evidence absent a clear showing that both parties to the phone conversations allowed the recording. (SalcedoOrtaez vs. CA, 1994)

EXCLUSIONARY RULES under the RULES OF COURT 1. Best Evidence Rule

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2. 3.

Parole Evidence Hearsay Rule

III. Principles which exclude relevant or material evidence: A. The Exclusionary Rule Principle - the principle which mandates that evidence obtained from an illegal arrest, unreasonable search or coercive investigation, or in violation of a particular law, must be excluded from the trial and will not be admitted as evidence. 1. The principle judges the admissibility of evidence based on HOW the evidence is obtained or acquired and not WHAT the evidence proves. 2. The principle is to be applied only if it is so expressly provided for by the constitution or by a particular law. Even if the manner of obtaining the evidence is in violation of a certain law but the law does not declare that the evidence is inadmissible, then such evidence will be admissible. Example: The accused claimed that information about his bank accounts i.e. trust funds, was obtained in violation of the Secrecy of Bank Deposits Law ( R.A. 1405) and moved to have them be excluded as evidence. HELD: R.A. 1405 nowhere provides that an unlawful examination of bank accounts shall render the evidence there from inadmissible in evidence. If Congress has both established a right and provided exclusive remedies for its violation, the court would encroaching upon the prerogatives of congress if it authorizes a remedy not provided for by statute. Absent a specific reference to an exclusionary rule, it is not appropriate for the courts to read such a provision into the act. (Ejercito vs. Sandiganbayan, 509 SCRA 190, Nov. 30, 2006). The phrase is attributed to Justice Felix Frankfurter of the U.S. Supreme and has its biblical reference to Mathew 7: 17-20. B. The Doctrine of the Fruit of the Poisonous Tree

a. The poisonous tree is the evidence seized in an illegal arrest, search or interrogation. The fruit of this poisonous tree is evidence discovered because of knowledge gained from the first illegal search, arrest, or interrogation or violation of a law. b. It is based on the principle that evidence illegally obtained by the state should not be used to gain other evidence because the original illegally obtained evidence taints all those subsequently obtained. C Illustrations: A suspect as forced to make a confession where he revealed he took shabu from the room of X. Based on this knowledge the police went to the house of X and with the consent of X, searched his room and found the shabu. The confession is inadmissible because of the exclusionary. It is the poisoned tree. The shabu is inadmissible because knowledge of its existence was based on the confession. It is the fruit.

D. Exceptions to the two principles- when evidence is still admissible despite the commission of an illegal arrest, search or interrogation, or violation of a particular exclusionary law. 1. Under the Doctrine of Inevitable Discovery- Evidence is admissible even if obtained through an unlawful arrest, search, interrogation, or violation of an exclusionary law, if it can be established, to a very high degree of probability, that normal police investigation would have inevitably led to the discovery of the evidence 2. Independent Source Doctrine- evidence is admissible if knowledge of the evidence is gained from a separate or independent source that is completely unrelated to the illegal act of the law enforcers. 3. Attentuation Doctrine: evidence maybe suppressed only if there is a clear causal connection between the illegal police action and the evidence. Or, that the chain of causation between the illegal action and the tainted evidence is too attenuated i.e too thin, weak, decreased or fragile. This takes into consideration the following factors: a). The time period between the illegal arrest and the ensuing confession or consented search b). The presence of intervening factors or events c). The purpose and flagrancy of the official misconduct

1. Evidence will be excluded if it was gained through evidence uncovered in an illegal arrest, unreasonable search or coercive interrogation, or violation of a particular exclusionary law. 2. It is an offshoot of the Exclusionary Rule which applies to primary evidence. The doctrine applies only to secondary or derivative evidence. There must first be a primary evidence which is determined to have been illegally obtained then secondary evidence is obtained because of the primary evidence. Since the primary evidence is inadmissible, any secondary evidence discovered or obtained because of it may not also be used.

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E. Remedy: By filing a Motion to Suppress the Evidence III. Evidence Excluded by the Constitution A. Under Article III of the Constitution the following evidence are inadmissible 1. evidence obtained in violation of the right against unreasonable search and seizure 2. evidence obtained in violation of the privacy of communication and correspondence, except upon lawful order of the court or when public safety or order requires otherwise 3. evidence consisting of extra-judicial confessions which are uncounselled, or when the confessant was not properly informed of his constitutional rights, or when the confession was coerced 4. evidence obtained in violation of the right against self-incrimination B. Principles: 1. The exclusionary rule in all the foregoing provisions is TOTAL in that the inadmissibility or incompetency applies to all cases, whether civil criminal or administrative, and for all purposes. 2. The incompetency applies only if the evidence was obtained by law enforcers or other authorized agencies of the government. It does not apply if the evidence was obtained by private persons such as private security personnel or private detectives even if they perform functions similar to the police whenever a crime was committed. a). Thus evidence obtained by the following are not covered by the constitutional provisions: (i) the security personnel or house detectives of hotels or commercial establishments or schools (ii) private security agencies even if they are guarding public or government buildings/offices (iii) employers and their agents. It will be some other appropriate principle on the admissibility of evidence which will govern. b). However, by way of exception, the rule of incompetency applies if what are involved are the private correspondence of an individual. In Zulueta vs. CA ( Feb. 1986) it was held that pictures and love letters proving the infidelity of the husband, kept by him in his private clinic, taken by the wife without the knowledge of the husband, are inadmissible as evidence for being obtained in violation of the

husbands privacy correspondence.

of

communication

and

The intimacies between husband and wife do not justify anyone of them breaking the drawers and cabinet of the other and ransacking them for any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed his or her integrity or his right to privacy as an individual and the constitutional protection is available to him or her 3. Secondary evidence resulting from a violation of the foregoing provisions is inadmissible under the Fruit of the Poisonous Tree Doctrine.

IV. R.A. 4200 (The Anti Wire Tapping Law) Exclusion as to evidence obtained through mechanical, electronic or other surveillance or intercepting devises. (Intercepted communications) A. Coverage: R.A 4200 declares that evidence is inadmissible if obtained through any of the following ways: 1. By using any device to secretly eavesdrop, overhear, intercept or record any communication or spoken word a. The person who obtained the evidence may be a third person or a participant in the conversation or communication. FACTS: Ramirez and Garcia had a confrontation in the office of Garcia. Ramirez secretly taped their verbal confrontation and used it as evidence in her action for damages against Garcia who in turn filed a criminal case against Ramirez for violation of R.A. 4200. Ramirez held that the taping by a participant to a conversation is not covered by the law. HELD: 1. The law does not make a distinction as to whether the party sought to be penalized is a party or not to the private conversation. 2. The nature of the conversation is immaterial What is penalized is the act of secretly overhearing, intercepting, or recording private communications by the devices enumerate under Section 1. (Ramirez vs. C.A., September 28, 1995) b. To be admissible the consent of the person speaking or of all the parties to the conversation. However consent is not necessary if the words which were taped or recorded were not intended to be confidential as when the were intended to be heard by an audience or when uttered under circumstances of time, place, occasion and similar circumstances whereby it may

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reasonably be inferred that the conversation was without regard to the presence of third persons. c. Questions: i). Does this apply if the recording of the words was unintentional or inadvertent, such as conversations captured by a moving video camera? ii). Are conversations entrapment included? iii). Is lip-reading included? iv). Are conversations surveillance cameras included? captured in in a police

The list is exclusive and does not include offenses which are equally or more serious as those enumerated, such as drug trafficking, kidnapping, Trafficking in Persons, Rape, Murder. 2.When Judicial Authorization is granted upon a written petition under R.A. 9372 ( The Human Security Act of 2007) in connection with the crimes of terrorism or conspiracy to commit terrorism. If granted the authority covers written communications. VI. Exclusion by Certain Rules of Evidence 1. The rule excluding secondary evidence when the primary or best evidence is available 2. The rule excluding hearsay evidence 3. The rule excluding privilege communications VII. Kinds of Admissibility A. Multiple Admissibility: when a material is asked by a party to be admitted as evidence, the party presenting must inform the court of the purpose which the material is intended to serve and the court then admits the material as evidence. Evidence is admissible for two or more purposes. The rule is when a fact satisfies all rules applicable to it when offered for that purpose, its failure to satisfy some other rule which would be applicable to it if offered for another purpose would not exclude it. ILLUSTRATION: An extrajudicial confession may be inadmissible as against a party who did not subscribe to it, yet such party may use said document as evidence of lack of guilt. Multiple admissibility may mean either: (i) the evidence is admissible for several purposes, or, (ii) an evidence is not admissible for one purpose but may be admitted for a different purpose if it satisfies all the requirements of the other purpose 1. Examples of the first concept: (a) a knife may be admitted to prove the accused was armed with a deadly weapon; to prove the weapon is far deadlier than the weapon of the victim; to prove it was the weapon of the accused which cause the wounds and not some other instrument; to corroborate the statement of a witness who claims he saw the accused holding a bladed instrument. 2. Example of the second concept: (a). the extra judicial confession of one of several accused

v). Does this apply to secret taping through spy cameras purposely made to be aired in television programs, such as Bitag, XXX and Cheaters? vi). Are the gestures, snores, laughs, weeping, included as communication or spoken words? vii). What about satellite discs and similar facilities? Google earth? 2. By the unauthorized tapping of any wire or cable as to communications used via telephone/cable, as opposed to verbal communications. a). There must be a physical interruption through a wiretap or the deliberate installation of a device or arrangement in order to over hear, intercept, or record the spoken words. i). hence over hearing through an extension telephone wire is not included even if intentional because each party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another to overhear the conversation ( Ganaan vs. IAC, 1986) ii). Does the Ganaan ruling apply to overhearing by telephone operators of hotels, schools, hospitals and similar establishments? B. Exceptions: when evidence through secret recording or tapping is admissible 1. When Judicial Authorization was granted upon a written petition filed pursuant to the provisions of R.A. 4200 if the crimes involve (a). treason (b) espionage (c) provoking war and disloyalty ( d). piracy and mutiny in the high seas (e) sedition, inciting to sedition (g)kidnapping (h) other offenses against national security.

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may not be admitted to prove there was conspiracy among them or to prove the guilt of the other coaccused but it maybe admitted to prove the guilt of the confessant (b) the statement of the victim may not be admitted as a dying declaration but as part of the res gestae. B. Curative admissibility or fighting fire with fire or Opening the Door . There is curative admissibility when a party offers an inadmissible fact which is received because there is no objection by the other party. The other party does not acquire the right to introduce in reply to the same kind of evidence, EXCEPT whenever it is needed for removing an unfair prejudice which might otherwise have ensued from the original evidence. ILLUSTRATION: In an action for damages arising from a car accident, the plaintiff introduced evidence to show that on several occasions the defendant in the past had injured pedestrians because of his negligence. (This is inadmissible under Sec. 34 Rule 130- Prior acts as evidence). Under the concept of Curative admissibility the court must give the party against whom the evidence was admitted the chance to contradict or explain the alleged past acts he committed to counteract the prejudice which the improperly admitted evidence may have caused. 1. This applies to a situation when improper evidence was allowed to be presented by one party, then the other party may be allowed to introduce or present similar improper evidence but only to cure or to counter the prejudicial effect of the opponents inadmissible evidence. 2. The party presenting must have raised an objection to the improper evidence, for if he did not, then it is discretionary for the court to allow him to present curative evidence 3. The evidence sought to be countered should not refer to those which are incompetent due to an exclusionary rule 4. Example: P vs. D for sum of money. P was allowed to introduce evidence that D did not pay his debt as shown by his refusal to pay his indebtedness to X, Y and Z. Defendant may introduce evidence that he paid his debts to A, B and C.

admissibility of a particular fact is ordinarily the time when it is offered to the court. Exception: When some facts depend on some other facts needed to be established first in order that said former evidentiary facts would be admissible. ILLUSTRATION: Mr. P files an action for recovery of ownership of a parcel of land against Mr. D. The complaint alleges that Mr. P is the owner of the property. During the trial, Mr. P testifies and adduces evidence that a certain O bought the property from D. The testimony of O may be allowed if it would be shown the chain of events that led to the ownership of P of the land. 1. Example: A Xerox copy of a document may be allowed to presented subject to the condition that the original be later presented 2. Example: P vs. D to recover a parcel of land. P presents a document that the land belonged to X. If D objects to it as being irrelevant, P can state that he will later show that X sold the land to Y who in turn sold it to Z and then to P. The Court may admit the document conditionally. VIII. Policy on the Admissibility of Evidence A. Policy of Liberality: In case a question arises as to whether or not a particular material should be admitted as evidence, Courts are given wide discretion what to admit and to be liberal in admitting materials offered as evidence, unless the material is clearly incompetent. The reasons are: (i) so that it may have a substantial range of facts as basis for deciding the case and (ii) in case of appeal the appellate court may have before it all the evidence to determine whether the decision appealed from is in accordance with the evidence, (iii) to minimize any adverse effect of the non-admission upon the party affected. B. Limitations: 1. Evidence may be excluded even if relevant if its probative value is outweighed by the risk that its admission will cause: a). undue or unfair prejudice, b). confusion of the issues, c). misleads the court, d). undue delay or waste of time

C. Conditional Admissibility: An evidence is allowed to be presented for the time being or temporarily, subject to the condition that its relevancy or connection to other facts will later be proven, or that the party later submit evidence that it meets certain requirements of the law or rules. If the conditions are not later met, the evidence will be stricken from the record. General Rule: The time for determining the

2. The court has the power to limit the presentation of additional evidence which are but cumulative, or to prove points which a party has already well presented RULE 129 What Need Not Be Proved

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SECTION 1. Judicial notice, when mandatory. A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. (1a) Sec. 2 . Judicial notice, when discretionary. A court may take judicial notice of matters which are of public knowledge, or are capable to unquestionable demonstration, or ought to be known to judges because of their judicial functions. (1a)

B. A Party Can Not Prove What He Did Not Allege (Non Alegata Non Proba). A party however is not authorized to introduce evidence on matters which he never alleged. Hence plaintiff will not be permitted to prove a cause of action which is not stated in his complaint, and the defendant will not be permitted to prove a defense which he never raised in his Answer. In criminal cases, the Prosecution is not permitted to prove a crime not described in the Information or to prove any aggravating circumstance not alleged in the Information. C. But a party may be relieved from presenting evidence on certain matters, such as on the following: 1. Matters or facts subject of judicial notice 2. Matters or facts subject of judicial admission 3. Matters or facts presumed which are legally

Sec. 3 . Judicial notice, when hearing necessary. During the trial, the court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon. After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case. (n)

4. Matters or facts stipulated upon 5. Matters or facts which are exclusively within the knowledge of the opposing party 6. Matters or facts which are irrelevant

Sec. 4 . Judicial admissions. An admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. (2a)

7. Matters or facts in the nature of negative allegations subject to certain exceptions JUDICIAL NOTICE. I. CONCEPT: Refers to the act of the court in taking cognizance of matters as true or as existing without need of the introduction of evidence, or the authority of the court to accept certain matters as facts even if no evidence of their existence has been presented. The action is often expressed thus The court takes judicial notice of II. Purpose: To save time, labor and expenses. It is based on expediency and convenience.

Principles on the correlation between allegations, proof, and favorable judgment. A. Each Party Must Prove His Own Allegation. Allegations in pleadings do not prove themselves. No party wins by having the most allegations, or that the allegation of causes of actions or defenses are crafted in the strongest and most persuasive language. All allegations remain but as allegations or propositions. Hence every party to a case, who desires that a favorable judgment be rendered in his favor, must present evidence to support his claim, cause of action or defense be it in the form of object evidence, documents, or testimonies of witnesses. Likewise, the court limits itself to only such evidence as were properly presented and admitted during the trial and does not consider matters or facts outside the court.

III. General Classification of Matters Subject of Notice A. Adjudicative Matters- those facts related to the case under consideration and which may affect the outcome thereof. 1. In a case where the accused set up denial and alibi being then in Manila, court may

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take judicial notice that normal travel time by bus from Manila to Baguio City is between 6 to 7 hours 2. Where the accused set up accidental shooting, the court may take notice that a revolver does not fire accidentally because pressure must be applied to the trigger 3. Where a witness claimed to have seen a person by the light of day at around 6:00 PM on December some 10 meters away, courts may take notice of the shortened days in December and that by 6:30 there is no more day light. B. Legislative Matters- those facts which relate either to: (i) the existence of a law or legal principle (ii) the reason, purpose or philosophy behind the law or of a legal principle as formulated by the legislature or the court (iii) the law or principle itself. The following are examples:: 1. The need to protect Filipino OFWs as a primary reason behind the Migrant Workers Act or the increase in the incidence of drug related crimes as reason for the increase in the penalty for violation of the drug law 2. That the passage of the Anti Terrorism Law and the Anti-Money Laundering Law were influenced by the demands of the international community 3. Taking notice of the increase in the age of criminal liability 4. That documents presented in the Register of Deeds are recorded according to the date and time of their presentation 5. The policy of the law as regards bail in heinous crimes or of the policy of the state against the use of illegal means to obtain evidence 6. Gun Ban during election period IV. Limitations. The taking of judicial notice maybe abused and might unfairly favor a party who is unable to prove a material point. Conversely the non-taking notice of a fact might unduly burden a party where proof is not readily available or impossible to obtain and proof thereof is unnecessary, but still the court refuses to take notice of the fact. A. As to what may be taken notice of: the matter must be one covered by section 1 or is authorized under Section 2 of Rule 129.

B. As to the procedure: there must be a prior hearing pursuant to Sec. 3. Section 1. Matters the taking notice of which is mandatory. INTRODUCTION: If a fact falls under any of the matters enumerated, then the court may not compel a party to present evidence thereon and necessarily, it may not decide against the party for the latters failure to present evidence on the matter. The enumeration is exclusive. I. As to Foreign States: their existence and territorial extent; forms of government (monarchial, presidential, parliamentary, royalty), symbols of nationality (flag, national costume, anthem). A. Limitation: However the recognition of a foreign state or government is subject to the decision of the political leadership II. The Law of Nations: the body of principles, usages, customs and unwritten precepts observed by, and which governs, the relations between and among states. A. Examples: (1). The Principle of Equality of States (2) Sovereign Immunity of visiting Heads of States and the protocol observed for said visiting dignitary such as the 21 gun salute (3) The Diplomatic Immunity of foreign diplomatic representatives (4) recognition of piracy as a crime against humanity III. The Admiralty and Maritime Jurisdiction of the World and their Seals IV. The Philippine as a state A. Its constitution and political history: the political set up of the government 1. As a Spanish colony, American colony, as a commonwealth, as a republic; Martial law years; the political upheavals such as the assassination of B. Aquino, EDSA I and II 2. The cabinet system in the Office of the President 3. Previous Presidents; the trial conviction of Erap and his subsequent pardon and

4. The administrative division into regions, provinces, municipalities, cities, barangays and into sitios or puroks

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5. Manila as the capital and the capital towns of the provinces; the location of major rivers, lakes and mountains on earth 6. Contemporary political developments such as the ongoing communist rebellion and muslin secessionist movement 7. Wars in which the Philippines participated

b). the cycle of day and night c). the difference in time between places

d). the variation in vegetation VI. Measures of Time: into seconds, minutes, days, weeks months and years. VII. Geographical Division of the World such as the number and location of the continents, and the major oceans, the division into hemispheres; longitudes and latitudes

B. The official acts of the legislature, executive and judicial departments 1. That congress is a bicameral body; the form of leadership in each house; the process of legislation; the committee system; laws which were passed 2. State visits of the presidents; ratification of treaties; executive orders and decrees; declaration of state of emergencies 3. Grants of amnesty 4. Holding of peace negotiations with the rebels 5. Membership in the UN and other regional organizations as well as the hosting of the ASEAN in Cebu 6. Decisions of appellate courts

Section 2. Matters discretionary.

the

taking

of

which

is

I - This section authorizes a court to take judicial notice of certain matters in its discretion. The matters fall into three groups: 1) Those which are of public knowledge, 2) Those which are capable of unquestionable demonstration and 3) Matters ought to be known to judges because of their judicial functions. 1). First Group: Matters of Public Knowledge. These are matters the truth or existence of which are accepted by the public without qualification, condition or contention. Requirements:

V. The Laws of Nature: Examples: 1. laws relating to science which are so well known such as that the DNA of each person being distinct, or blood groupings as proof of filiation; or of finger prints and dententures being distinct and dissimilar from one person to another. 2. The law of gravity, mathematical equations, weights and measurements 3. The solar system, the planets and stars 4. The composition and decay of matter 5. The birth and period of gestation of human beings 6. The occurrence of natural phenomenon provided these are constant, immutable and certain, otherwise these occurrences are freaks of nature a). the changing of the season 1. Notoriety of the Facts in that the facts are well and publicly known. The existence should not be known only to a certain portion of the community 2. The matter must be well and authoritatively settled and not doubtful or uncertain 3. The matter must be within the limits of the territorial jurisdiction of the court Examples: 1. The existence and location of hospitals, public buildings, plazas and markets, schools and universities, main thoroughfares, parks, rivers and lakes 2. Facts of local history and contemporary developments including political matters. For example: the creation of the city or town, previous and present political leaders or officials; the increase in population; traffic congestion in main streets. The

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existence and location of the PMA in Baguio City

2). Second Group: Matters Unquestionable Demonstration

Capable

of

These are matters which, even if not notorious, can be immediately shown to exist or be true so as to justify dispensing with actual proof. Examples: 1. 2. That poison kills or results to serious injury That boiling water scalds

C. As to whether a party can introduce contrary proof: (1). If the matter is one subject of mandatory judicial notice, contrary proof is not allowed (2). If the matter is one which the court is allowed to take notice in its discretion, the prohibition applies to civil cases only, but in criminal cases, the accused may still introduce contrary proof as part of his right to defend himself. II - Judicial Notice of Certain Specific Matters A. As To Foreign Laws. 1. As a general rule, Philippine Courts cannot take judicial notice of the existence and provisions/contents of a foreign law, which matters must be alleged and proven as a fact. If the existence and provisions/contents were not properly pleaded and proven, the Principle of Processual Presumption applies i.e. the foreign law will be presumed to be the same as Philippine Laws and it will be Philippine Laws which will be applied to the case. 2. Exceptions or when Court may take judicial notice of a foreign law a. When there is no controversy among the parties as to the existence and provision of the foreign law b. When the foreign law has been previously ruled upon the court as to have acquired actual knowledge of it. For example: Knowledge of the Texan law on succession based on the Christiansen cases; notice of the existence of the Nevada Divorce Law c. The foreign law has been previously applied in the Philippines e.g. the Spanish Codigo Penal d. The foreign law is the source of the Philippine Law e.g. the California Law on Insurance, the Spanish Civil Code e. When the foreign law is a treaty in which the Philippines is a signatory it being part of the Public International Law B. Domestic Regulations Laws, Administrative Rules and

3. Striking the body with a sharp instruments results to rupturing the skin and to bleeding 4. 5. condition Shooting on the head kills Hunger results to a weakened physical

6. Vehicles running at top speed do not immediately stop even when the brakes are applied and will leave skid marks on the road

3. Third Group: Matters Ought To Be Known to Judges because of their Judicial Functions These are matters which pertain to the office of the Judge or known to them based on their experience as judges Examples: 1. The behavior of people to being witnesses such as their reluctance to be involved in cases thus requiring the issuance of subpoenae to them; the varied reaction of people to similar events 2. Procedures in the reduction of bail bonds

Principles Involved A. The matter need not be personally known to the judge in order to be taken judicial notice of, as in fact the judge maybe personally ignorant thereof B. Personal knowledge by the Judge of a fact is not necessarily knowledge by the Court as to be the basis of a judicial notice

1. As to laws, rules and regulations of national applications, their passage and effectivity and provisions are governmental matters which must be noticed mandatorily 2. As to laws of local application:

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a. For lower Courts: they may take notice of ordinances, resolutions and executive or administrative orders enforced within the town nor city where they sit b. For the RTCs: they may do so only when a case has been appealed to them and the lower court has taken notice thereof c. For appellate courts: on appeal and all those enforced within any town or city in the Philippines C. Decisions of Courts 1. Decisions of appellate courts must be taken notice of mandatorily by trial courts 2. As to the records of cases pending or decided by other courts: these may not be taken judicial notice of 3. As to Records of Other Cases Pending Before the Same Court a) As a general rule, courts are not authorized to take judicial notice of the contents of records of other cases tried or pending in the same court, even when these cases were heard or actually pending before the same judge. b). However, this rule admits of exceptions, (1). as when reference to such records is sufficiently made without objection from the opposing parties Reference is by name and number or in some other manner by which it is sufficiently designated or (2) when the original record of the former case or any part of it, is actually withdrawn from the archives by the courts direction, at the request or with the consent of the parties, and admitted as part of the records of the case then pending (Calamba Steel Center Inc. vs. Commissioner of Internal Revenue. April 28, 2005) D. Commercial Usages and Practices: those pertaining to business, occupation or profession. Notice may be taken only of those which are well known and established. Examples: 1. The closure of banks on Saturdays and Sundays and of the banking hours being until 3:00 P.M. 2. Practice of considering checks as sale if not presented within 6 months

3. The establishment of ATM machines to facilitate the opening of accounts and withdrawal of money 4. The practice of requiring tickets for persons to enter theaters and movie houses or to ride in public transports 5. The holding of graduation exercises by schools and universities every end of the semester 6. The public auction of unredeemed articles by pawn shops 7. Courts take judicial notice that before a bank grants a loan secured by a land, it first undertakes a careful examination of the title, as well as a physical and on-the-spot investigation of the land offered as security. Hence it cannot claim to be a mortgagee in good faith as against the actual possessor of the land ( Erasustada vs. C.A., 495 SCRA 319) 8. That no official receipts are issued by sidewalk or market vendors E. Customs, Habits and Practices of People: Notice may be taken only of those which are generally known and established and uniformly acted upon. Particular customs, and those peculiar only to certain people must be established as a fact. Examples: 1. Variations in handwriting 2. The instinct of self preservation 3. Sleeping habits of people in the barrios 4. Rituals digging and cleansing of bones of buried loved ones among certain tribes and other tribal practices, must be proved as a fact 5. What about the natural shyness of the Filipina woman? F. As to religious matters: Courts may take notice of the general tenets or beliefs of a particular group including their organizational structures, but not as to specific practices, tenets and dogmas. Examples: 1.Thus notice maybe taken of the belief Catholics consider Jesus as God, whereas the INC do not but as a man, and the Muslims regard Him merely as a prophet lesser in stature to Mohammed

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2. That the Pope is the titular head of the Catholic Church while the Dalai Llama is head of the Tibetan Monks; Mecca is the Holiest City of the Muslims; the Muslim belief in Ramadan; the belief in reincarnation among the Hindus and Buddhists while the Christians believe in resurrection after death; whereas Christians believe in heaven the Buddhist have their Nirvana. Notice is proper of the Christian Bible and the Muslim Koran as their respective Holy Books.

Section 4 - JUDICIAL ADMISSIONS: An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission maybe contradicted only by a showing that it was made through palpable mistake or that no such admission was made. I. CONCEPT- The act or declaration of a party in voluntary acknowledging or accepting the truth or existence of a certain fact. The admission maybe Judicial or Extra Judicial and in either case, they may be oral or written. A. Judicial- those made in the course of the proceedings of the case in which they are to be used as evidence. This is governed by section 4. B. Extra-Judicial- those made elsewhere but not in the course of the proceedings where they are to be used as evidence. II. Effect of Judicial Admissions: A. Upon the party making the admission: The party making the admission is bound by it. The admission is conclusive as to him. He will not be permitted to introduce evidence which will vary, contradict or deny the fact he has admitted. 1.The exception is found only in those rare instances when the trial court, in the exercise of its discretion and because of strong reasons to support its stand, may relieve a party from the consequences of his admission 2. All such evidence to the contrary are to be disregarded by the court even in the absence of an objection by the adverse party. 3. Examples:

Section 3. When Hearing Is Necessary I. When and How Notice is taken. A. By the Trial Court: either Motu Proprio or upon motion by a party .Generally this is during the trial or presentation of evidence, but it maybe made thereafter but before judgment and only upon a matter which is decisive of the issue. So, during trial: on any matter allow the parties to be heard thereon B. By the appellate court or before judgment: So, after trial, and before judgment or on appeal: any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case II. Need for Hearing A. If motu proprio, the Court must announce its intention and give the parties the opportunity to give their view on whether or not the matter is a proper subject of judicial notice. B. If on motion of a party, the opposing party must likewise be given the opportunity to comment thereon. Hence, hearing is necessary when During the trial, the court 1. 2. motu propio, on request of a partyannounces its intention to take judicial notice of any matter After trial a. before judgment or on appeal b. motu propio, on request of a party c. takes judicial notice of any matter, and d. if such matter is decisive of a material issue in the case

Hence, the court can take judicial notice of any matter during the trial as long as there is a hearing. If trial is already over, the court can take judicial notice only of matters decisive of a material issue in the case as long as there is a hearing.

a). The rule on judicial admissions found its way into black-letter law only in 1964 but its content is supplied by case law much older and in many instances more explicit than the present codal provision. In the early case of Irlanda vs. Pitarque (1918) this court laid down the doctrine that acts or facts admitted does not require proof and cannot be contradicted unless it can be shown that the admission was made through palpable mistake. The rule was more forcibly stated in the 1918 decision in Ramirez vs. Orientalist Co. an admission made in a pleading cannot be controverted by the party making such admission, and all proof submitted by him contrary thereto or inconsistent therewith should simply be ignored by the court, whether objection was interposed by the opposite party or not (Heirs of Clemenia vs. Heirs of Bien, 501 SCRA 405)

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b). Joshua Alfelor vs. Hosefina Halasan (March 31, 2006) The spouses Telesforo and Cecilia Alfelor died leaving behind several heirs. One of the children was Jose who himself died leaving behind children and a wife named Teresita . In1998 the heirs filed a complaint for partition of the estate of their deceased parents. A certain Hosefina Halaan filed a Motion for Intervention claiming she is the legal wife of Jose. Teresita and the other petitioners filed a Reply in Intervention where Teresita stated she knew of the previous marriage of Jose; that Hosefina left Jose in 1959 and there had been no news of her since then; that Jose revealed he did not annul his marriage to Hosefina because he believed in good faith to Hosefina. During the hearing of the Motion for Intervention, Teresita admitted several times she knew of the previous marriage of Jose to Hosefina. Since Hosefina did not appear during the hearing to support her claim, of being the first wife her motion was denied. Issue: Was there need to prove the existence of the first marriage? Held: No. The admission in the Reply in Intervention and the testimony of Teresita as to the previous marriage qualifies as a Judicial Admission. A party who judicially admits a fact cannot later challenge that fact as judicial admissions are waiver of proof; production of evidence is dispensed with. A judicial admission also removes an admitted fact from the field of controversy. Consequently, an admission made in the pleading cannot be controverted by the party making such admissions and are conclusive as to that party, and all proof to the contrary or inconsistent therewith should be ignored, whether objection is interposed by the party or not. The allegation statements or admissions are conclusive against the pleader. A party cannot subsequently take a position contrary to or inconsistent with what was pleaded. B. Upon the opposite party: He need not introduce any evidence on the matter which was admitted. III. Sources of Judicial Admissions: A. Voluntary Admissions 1. Admissions contained in the allegations in the pleadings a. In a civil case: The plaintiff is bound by the statement of causes of actions in his Complaint including the number, nature and circumstances thereof, as well as the statement of facts in support thereof. The defendant is bound by the facts alleged in the Complaint which he expressly admits in his Answer; by his own statement of facts; by the nature,

number and circumstances of the defenses contained in his Answer. They are similar bound by the allegations of facts in their Reply, Comment or Rejoinder to each others pleadings. b. As to amended pleadings: one view holds that the original pleadings ceased to be part of the records and cease to be judicial admissions. If at all they may constitute extra-judicial admissions which will have to be formally offered in evidence. Another view, as that of Justice F. Regallado says amended pleadings are still covered by section 4. c. In a criminal case, the narration of facts in the body of the Information are deemed admissions by the Prosecution 2. Admissions and Stipulations made during the Preliminary Conference and/or Pre-Trial which are reduced into writing and signed by the party and his counsel. a). But in criminal cases, there can be no stipulation as to circumstances which qualifies a crime or increase the penalty to death. b). Example: In criminal cases of theft or robbery there can be stipulation as to the ownership or possessor of the property, the value thereof; the arrest or surrender of the accused; identity of the accused 3. Admissions and stipulations made during the course of the trial itself, which need not be reduced in writing 4. Compromise agreements, which thus can be the basis of a judgment which is immediately executory. 5. Admissions by way of responses or answers to requests for admissions or interrogatories pursuant to Rule 26 (Modes of Discovery)

B. Involuntary Admissions:: those where it is the law which declares that a party is deemed to have admitted a fact. 1. Section 8 of Rule 8 directs that (a) failure to specifically under oath an actionable document is an admission of its genuiness and due execution (b) failure to deny the material averments of the Complaint is an admission of the truth thereof C. Effect of a Withdrawn Plea of Guilt: A plea of guilty is an admission of the factual allegations of the Information but not conclusions of law. The former plea is not an admission because the accused has the right to change his plea of guilty to not guilty

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III. By Whom Made: ROC) A. By the parties themselves B. By the counsel under the principle of agency: exceptions: In civil cases (i) when the admission amounts to a surrender, waiver, or destruction of the clients cause (ii) if the compromise is for an amount less than that demanded by the client (iii) those which are due to the gross and inexcusable ignorance or negligence of counsel In criminal cases: Example: PP. vs. Hermones (March 6, 2002). FACTS: In a prosecution for rape the counsel for the accused filed a manifestation stating that the accused is remorseful and was intoxicated when he raped his foster daughter and he will present evidence of intoxication, plea of guilt and lack of intent. Are these conclusive upon the accused? HELD: No. The authority of an attorney to bind his client as to any admissibility of fact is limited to matters of judicial procedure but not to admissions which operate as a waiver, surrender or destruction of the clients cause. Instances of Judicial admissions 1. the genuineness and due execution of an actionable document copied or attached to a pleading, when the other party fails to specifically deny under oath (Rule 8 8) material allegations in the complaint, when the other party fails to specifically deny it (Rule 8 11) admissions in superseded pleadings, when offered in evidence (Rule 10 8) act, declaration, or omission of a party as to a relevant fact (Rule 130 26) implied admission of guilt in an offer of compromise by the accused in criminal cases, except quasi-offenses and those allowed by law to be compromised (Rule 130 27) admission by silence (Rule 130 32)

b.

Judicial admissions.

(Sec. 4, Rule 129,

c. Conclusive presumptions d. Disputable presumptions not disputed Distinguish mandatory judicial notice from discretionary judicial notice. a. For mandatory judicial notice the court is compelled to take judicial notice because of the use of the word "shall" in Sec. 1, Rule 129, ROC; while, for discretionary judicial notice the court is not compelled because of the use of the word "may" in Sec. 2, Rule 129, ROC. b. Mandatory judicial notice takes place at the court's own initiative; while, discretionary judicial notice may take place at the court's initiative, or on request of a party. c. Discretionary judicial notice requires a hearing and presentation of evidence; while, mandatory judicial notice does not require hearing and presentation of evidence. A. Judicial Notice Rule 129, Secs 1-3; Rule 10, Sec. 8 1. When Mandatory [EPF-SLAP-OL-MG] - Existence and territorial extent of states - Their political history - Forms of government - Symbols of nationality - Law of nations - Admiralty and maritime courts of the world and their seals - Political constitution and history of the Philippines - Official acts of the legislative, executive, and judicial departments of the Philippines - Laws of nature - Measure of time - Geographical divisions

2. 3. 4. 5.

6.

TO SUMMARIZE: What Need Not be Proved (Rule 129) a. Facts which a court shall or may take judicial notice. (Secs. 1 and 2, Rule 129, ROC)

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2. When Discretionary Matters of public knowledge Matters capable of unquestionable demonstration

-Courts are not authorized to take judicial notice of the contents of the record of other cases pending or heard before them notwithstanding they are pending before the same judge. Exceptions: 1. In the absence of objection from the adverse party, with the knowledge of the adverse party; or at the request or with the consent of the parties, the case is clearly referred to or the original or part of the records of the case are actually withdrawn from the archives and admitted as part of the record of the case then pending. (Tabuena vs. CA, 1991) 2. The other case is so closely connected or interdependent 3. When interests of the public in ascertaining the truth is of paramount importance 4. In cases seeking to determine what is reasonable exercise of discretion 5. The finality of judgment in a case FOREIGN LAWS In general, courts may not take judicial notice of foreign laws, EXCEPT in a few instances where, in the exercise of sound discretion, they may take judicial notice of such foreign laws of which they are evidently familiar. (Delgado v. Republic, L2546, January 28, 1950; Pardo v. Republic, 85 Phil. 323)

Matters which ought to be known to judges because of their judicial functions.

3. When Hearing is Necessary During the trial: the court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of ANY MATTER and allow the parties to be heard thereon. After the trial, and before judgment or on appeal: the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such MATTER IS DECISIVE OF A MATERIAL ISSUE in the case. MUNICIPAL ORDINANCES Courts are not mandated to take judicial notice of municipal ordinances unless the charter of the concerned city provides for such judicial notice. (City of Manila vs. Garcia, 1967). But INFERIOR COURTS sitting in the respective municipalities or cities are MANDATED to take judicial notice. The reason is that violations of the ordinances are usually vested to the inferior court EXCLUSIVELY in the exercise of their original jurisdiction. IF inferior court took judicial notice and there was an appeal, such court taking the appeal should likewise take judicial notice. (U.S. v. Blanco, 37 Phil. 126)

When foreign laws may be the subject of judicial notice. a. When the local court is evidently familiar with the foreign law. b. When the foreign law refers to the law of nations. (Sec. 1, Rule 129, ROC) c. When the court takes judicial notice of a published treatise, periodical or pamphlet on a subject of law as a learned treartise. (Sec. 46, Rule 130, Ibid.) d. When the foreign statute is acepted by the Philippine government. (Republic v. Guanzon, 61 SCRA 360)

COURT RECORDS: Courts may take judicial notice of its own records of cases pending before it. Ex. Pleadings; period of perfecting appeals.) -Records of preliminary investigation shall not form part of the record, however the court on its own initiative or that of any party may order the production of the record or any part thereof whenever the same shall be necessary in the resolution of the case or any incident therein or shall be introduced as evidence by the party requesting for its production.

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e. When a foreign judgmen containing foreign law is recognized for enforcement. (Sec. 48, Rule 39, ROC) f. If the foreign law refers to common law doctrines and rules from which many of our laws were derived. (Alzua v. Johnson, 21 Phil. 308)

which deprives counsel of due process of law or there is outright deprivation of property or liberty. Note: Admissions in pleadings may not always be considered as judicial admissions because there are hypothetical admissions in civil cases. (i.e. Affirmative defenses in an answer; Motion to dismiss, where defendant admits allegations but sets up grounds such as lack of jurisdiction etc.) Notes: 1. It is not essential that an admission is contrary to the interest of party at the time it is made. It is enough that it be INCONSISTENT with the position a party takes in his pleadings or at trial. 2. Averments in pleadings not deemed admissions even if there is failure to make a specific denial: a) Immaterial allegations; b) Conclusions and non-unltimate facts; c) Amount of unliquidated damages.

Doctrine of Processual Presumption: Foreign law is the same as the law of the forum. It arises if the foreign law, though properly applicable is either not alleged or if alleged is not duly proved before a competent court. B. Judicial Admissions Rule 129, Sec. 4 Definition: admissions, verbal or written, made by the party in the course of the proceedings in the same case -Proof is not required. -How contradicted: ONLY by showing = That it was made through palpable mistake or = That no such admission was made Having been amended, the original complaint lost its character as a judicial admission, which would have required no proof and became merely any extrajudicial admission requiring a formal offer in order to be admissible. (Torres vs. CA, 1984) FORMS OF ADMISSIONS: 1. 2. Implied admissions of allegations of usury and in actionable documents if not specifically denied under oath (Sec. 11 & 8, Rule 8) Admissions in pre-trial of civil cases and criminal cases (In criminal cases the admission must be reduced in writing and signed by accused and counsel- Sec. 4 Rule 118) Implied admissions in the modes of discovery (Depositions; Interrogatories- Rule 23; Failure to specifically deny under oath w/in 15 days a Request for Admission in a pending case- Rule 26; ) Admissions in amended pleadings (Sec. 8 Rule 10) [N.B. Admissions in superseded pleadings are extra-judicial admissions which must be proven. Dismissed pleadings are likewise extrajudicial admissions] Plea of guilt in criminal case (N.B. A withdrawn plea of guilt is inadmissible, unlike in civil cases where a withdrawn judicial admission is considered an extrajudicial admission) Admissions by counsel are generally conclusive upon a client absent any gross negligence

Adoptive Admissions A partys reaction to a statement or action by another person when it is reasonable to treat the partys reaction as an admission of something stated or implied by the other person.

Adopted Confessions A co-accused impliedly acquiesced in or adopted the others confession by not questioning its truthfulness, as where it was made in his presence and he did not demonstrate against his being implicated therein RULE 130 Rules of Admissibility A. OBJECT (REAL) EVIDENCE SECTION 1. Object as evidence. Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. (1a) ADMISSIBILITY OF EVIDENCE

3.

4.

5.

6.

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A. While Rule 128 declared the two general requirements for admissibility of evidence. Rule 130 spells out the particular requirements in order that certain kinds of materials be admitted as evidence. B. Sources of Knowledge or Evidence 1. Those derived from the testimony of people whether oral or written 2. Those obtained from circumstances 3. Those obtained through the use of the senses a). these are the coverage of Section 1 and are presently referred to as Object Evidence . Formerly they were referred to as autoptic or demonstrative evidence b). They occupy the highest level because nothing is more certain than the evidence of our sense. Physical evidence is a mute but eloquent manifestation of truth and rates highly in the hierarchy of trustworthy evidence OBJECTS AS EVIDENCE Section 1. Object as evidence. Object as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court.

work any additional benefit to the plaintiff or that it will give undue prejudice to the defendant. ILLUSTRATIONS: Footprints A bloody foot print was found upon a floor near the dead body of a person. Upon being arrested, the accused was taken to the house where the incident happen. Upon placing his foot over the foot print it was found that his foot corresponded exactly to said footprint. HELD: Proof of this circumstance is admissible, notwithstanding that no photograph of the footprint was submitted in evidence and that the board itself upon which the footprint was made was not produced in court. (US v. Zara, 43 Phil. 308) Resemblance, Race, Age or Parentage -To determine whether a person is alien or not, his personal appearance, ethnological and racial characteristic, language, customs, dress and manners may be taken into consideration. -In determining the age of the accused who had no positive information on the subject, the court took into account his appearance and judged that he was a youth of 18 or 19 years of age. -A physical comparison may be made between a minor Chinese applying for admission into the country with his alleged father. Photographs - Where deposition of subscribing witnesses to a will are taken, a photographic copy of the will may be presented to the witnesses on their examination and they may be asked the same question with respect to said copy as if it were the original will and testimony as to the identity of the photographic copy shown to the witnesses is admissible in evidence. -Photographs may be admissible upon proof of their exactness and accuracy by the photographer himself who can testify of his personal knowledge of the correctness of the representation. (Tan It v. Sun Insurance Office, 51 Phil. 212) NOTES: The photographer is not the only witness who can identify the pictures. The faithful representation of the photograph may be proved

Rules of Admissibility A. Object (Real) Evidence Rule 130, Sec. 1. - Evidence addressed to the senses of the court. - When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. AUTOPTIC PROFERENCE (VIEW OF AN OBJECT) Where the object in question cannot be produced in court because it is immovable or inconvenient to remove, the natural recourse is for the court to order an ocular inspection and go to the object in its place and observe it there. Is there an exclusionary rule when it comes to object evidence? There is none. However, the court is given enough discretion to determine which object evidence should be presented, upon determination whether or not it will result to scandal or it does not

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prima facie by the testimony of those who were present at the time it was taken, or by any other competent witness who can testify as to its exactness and accuracy. Once proved, the court may admit it subject to impeachment as to its accuracy. The value of a photograph lies in its being a correct representation or reproduction of the original, and its admissibility is determined by its accuracy in portraying the scene at the time the picture was taken. (Sison v. People, 250 SCRA 58, 7576) Photocopies or xerox copies of signed documents are not duplicate originals because they are not signed. (Mahilum v. Court of Appeals, 17 SCRA 482) Computer printouts. If the data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an original. (Evidence Code of California, Added by Stats. 1977, Sec. 1) In a labor case, IBM Philippines, Inc., et al., v. NLRC, et al., G.R. No. 117221, prom. April 13, 1999, the Supreme Court held that computer printouts which were not signed because they are unsigned. The Court went on further to say that its decisions, while adhering to a liberal view in the conduct of proceedings before administrative agencies, have nonetheless consistently required some proof of authenticity or reliability as condition for the admission of documents. Not one of the 18 print-out copies submitted by IBM was ever signed, either by the sender or the receiver. There is thus no guarantee that the message sent was the same message received. Neither were the print-outs certified or authenticated by any company official who could properly attest that these came from IBMs computer system or that the data stored in the system were not and/or could not haved been tampered with before the same were printed out. Ballots - Every ballot needs to be presented in a case of election protest. Every ballot constitutes the will of every voter. DEMONSTRATIVE EVIDENCE - one which or represents demonstrates the real thing. (ex. Map, diagram, photograph, or a model)

Photographs: Must faithfully represent what it depicts (Same rules apply to motion pictures and recordings) X-Rays: Must show location and extent of injury Scientific tests, demonstrations by physical act and experiments: This is a matter of judicial discretion. I. COVERAGE: The definition covers any material that may be seen, heard, smelled, felt, or touched. They are the sensual evidence and are grouped into: A. Those exhibited to the Court or observed by it during the trial 1. The weapons used, the articles recovered or seized as subjects of an offense, the effects of the crime, clothing apparels 2. The wound or scars in the body in physical injury cases 3. Inspection of the body of the accused and his personal appearance to determine his body built, physique, height, racial characteristics, and similarities with another, in paternity suits 4. Observations as to the demeanor of witnesses 5. Re-enactment or demonstrations of actions B. Those which consists of the results of inspections of things or places conducted by the court ( ocular inspections) outside the court 1. The observations made by the parties are duly recorded, pictures and other representations may be made such as sketches and measurements 2. Examples: inspection of the crime scene; disputed boundaries; objects which cannot be brought to court C. Those which consists of the results of experiments, tests or demonstrations, which may be scientific tests/experiments, or practical tests/demonstrations provided the conduct of experiments/tests is subject to the discretion of the court. 1. Forensics or Microanalysis: the application of scientific principles to answer questions of interest in the legal system. Applied most often in the examination of Trace Evidence to solve crimes based on the Principle of Contact

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a). Trace Evidence- evidence found at a crime scene in small but measurable amounts such as hairs, fibers, soils, botanical materials, explosive residue b) Principle of Contact: every person who is physically involved in a crime leaves some minute trace of his/her presence in the crime scene or in the victim and often takes something away from the crime scene and/or victim II. REQUIREMENTS FOR ADMISSIBILITY A. Inherent Requirements: Proof of 1. Relevancy, and 2. Competency B. Procedural Requirement: Proof of Authentication 1. The process of proving that the object being presented in court is the very object involved in the event 2. The purpose is two fold: (a) to /ensure preserve the Identity of the Object which is to prevent the introduction of a different object and (b) to ensure/preserve the Integrity of the Object which is to ensure that there are no significant changes or alterations in the condition of the object or that the object has not been contaminated 3. Important component elements of the process of Authentication: a). Proof of Identity: Through the testimony of a witness as to objects which are readily identifiable by sight provided there is a basis for the identification by the witness which may either be: (i) the markings placed by the witness upon the object, such as his initials, his pictures in the digital camera, or (ii) by the peculiar characteristics of the object i.e. by certain physical features which sets it apart from others of the same kind or class by which it is readily identified. Examples: a hole caused by burning in a sweater; the broken hilt of a knife b). Proof of Identity and Integrity: By proving that there was no break in the Chain-of-Custody in the event the object passed into the possession of different persons. This means proving the chronological sequence through which the object was handled only by persons who, by reason of their function or office, can reasonably be expected to have the right or duty to possess or handle the object. This is done by calling each of these persons to explain how and why he came into the possession of the object and what he did with the object.

(i) When the object passed into the possession of a stranger, then there is doubt as to the integrity, if not identity of the object. c). Proof of Integrity: By proving the Proper Preservation of the object which consist of showing that the object was kept in a secure place as to make contamination or alteration difficult, and it has not been brought out until its presentment in court. 4. Effect if there was improper authentication: The object maybe excluded upon proper objection, or that it may not be given any evidentiary value. Thus in a criminal case, reliance thereon may be a ground for acquittal. Example: there was conflicting testimony by the policemen as to the description of the bag allegedly containing the drug. The conviction was reversed.

5. Authentication as applied to certain evidences: a). As to pictures and photographs, maps, diagrams, the authenticity refers to proving the accuracy of the things, persons, things or places depicted in the photographs which may through the testimony of : (i) the photographer or (ii) any one who is familiar with the persons, things, places shown therein b). As to tape recordings: (Torralba vs. Pp., Aug. 22, 2005) FACTS: The accused was convicted of libel. One of the evidence was a tape recording of the radio broadcast which recording was made by the daughter of the complainant, but the daughter was not however presented as a witness. Question: Was the tape recoding properly admitted? HELD: The person who actually recorded should be presented in order to lay the foundation for the admission of the tape recording. Before a tape recording is admissible in evidence and given probative value, the following requisites must first be established: (i). a showing that the devise was capable of taking testimony recording

(ii). a showing that the operator of the device was competent (iii). establishment of the authenticity and correctness of the recording (iv). a showing that changes, alterations, or deletions have not been made

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(v). a showing of the manner of the preservation of the recording (vi). identification of the speakers (vii). a showing that the testimony elicited was voluntarily made without any kind of inducement C. As to X-rays and cardiograms, motion pictures: same requirement as to tape recordings.

D. The procurement, presentation or inspection must not cause inconvenience or unnecessary expenses out of proportion to the evidentiary value of the object evidence E. The admission must not violate the right against self-incrimination 1. Handwritings: the general rule is that a person may not be compelled to produce a sample of his handwriting as basis for determining his criminal liability as the author of a certain written document. This is because writing is not a mere mechanical act but involves the application of the intellect. However, if the accused testifies in his own behalf and denies authorship, he maybe compelled to give a sample of his handwriting.

III. LIMITATIONS to the admission of Objects as evidence in addition to the inherent limitations of relevancy and competency. A. The admission must not cause undue prejudice to the court, such as those intended

B. The admission is subject to the demands of decency and propriety, unless the admission is extremely necessary. 1. Exhibition of the private parts in sex cases 2. Presentation of the corpse or body parts 3. Re-enactment of violent or offensive acts 4. Examples: a) The case of the old man accused of rape who had to show his private parts to prove he is incapable of committing the crime b). Case of William Alford charged of shooting a lawyer. He claimed self defense in that he shot the victim who was beating him with a cane while the accused was lying down on the ground. Prosecution witness claimed the bullet had driven downward. Earl Rogers demanded that the intestine of the victim be brought to court and by the testimony of an expert, showed that the bullet traveled upward while the victim was bending over, thereby confirming the claim of the accused. C. Exclusion of objects which are offensive to mans sensibilities or repulsive objects 1. Waste matters, human excreta 2. Carcasses of dead animals 3. Killing of an animal to prove a substance is poison

F. In cases of ocular inspections: (i) the condition of the thing or place must not have been altered (ii) there be prior notice of the date, time and place given to the parties because the inspection is still part of the trial. IV. NECESSITY OF PRESENTATION OF OBJECTS IN COURT A. The best proof that an object exists is to present it to the court B. The presentation is not necessary: 1. Where the existence of the object is not the very fact in issue, but is merely a collateral fact, of are merely used as reference. Thus: (i) when a witness testifies that the accused was drinking a bottle of gin when he threatened to shoot the witness, it is not necessary to produce the bottle. (ii) the witness claims the accused threw a stone at his car, the presentation of the stone is not necessary. 2. Where the article has not been recovered or is outside the jurisdiction of the court. Examples: stolen articles which are not recovered or brought elsewhere; unrecovered weapons used in crimes. C. In crimes the gist of which is the illegal possession of an article, a distinction has to be made: 1. Where the article is common or familiar article such that it can readily be identified by sight, its presentation is not necessary, its existence may be shown by testimony of witnesses. Example: In a Prosecution for Illegal Possession of Firearms, the accused may still be

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convicted even without the presentation of the gun in court. a). PP. vs. Taguba (342 SCRA 199): In cases involving illegal possession of firearms the prosecution has the burden of proving (a) the existence of the subject firearm and (b) the fact that the accused does not have the corresponding permit to possess. As to the first requisite, the existence can best be established by the presentation of the firearm (but) there is no requirement that the actual FA itself must be presented in court Its existence can be established by testimony thus the non presentation is not fatal to the prosecution of an illegal possession case. b). PP. vs. Taan, (506 SCRA 219, Oct. 30, 2006) The non-presentation of the subject firearm is not fatal for the prosecution as long as the existence of the firearm can be established by testimony 2. Where the articles however are not common or familiar to ordinary persons and cannot be identified by sight, they must be presented in court. Example: drugs and contraband items V. RESULTS OF SCIENTIFIC TESTS AS OBJECT EVIDENCE A. Forensics: application of scientific principles to answer questions of interest in the legal system. This is applied most often in the examination of Trace Evidence to solve crimes based on the Principle of Contact a). Trace Evidence- evidence found at a crime scene in small but measurable amounts such as hairs, fibers, soils, botanical materials, explosive residue b) Principle of Contact: every person who is physically involved in a crime leaves some minute trace of his/her presence in the crime scene or in the victim and often takes something away from the crime scene and/or victim B. Requirements for Admissibility: 1. The Daubert Test: The U.S. Supreme Court, in the case of Daubert vs. Menell Dow Pharmaceuticals (1993) came up with a test of reliability and directed that trial judges are to consider four factors when determining the admissibility of scientific evidence, to wit: a). whether the theory or technique can be tested b). whether the proffered work has been subjected to peer review

c). whether the rate of error is acceptable d). whether the method at issue enjoys widespread acceptance. 2. This Daubert Test was adopted by the Philippine Supreme Court when it finally accepted the result of DNA testing as admissible evidence. C. Scientific Tests Judicially Accepted: 1. Paraffin Tests although they are not conclusive that a person did or did not fire a gun 2. Lie Detection Test: The result is not admissible as evidence in the Philippines 3. Firearms Identification Evidence or Ballistic Test to determine whether a bullet was fired from a particular gun 4. Questioned Document Test and Handwriting Analysis 5. Drug Tests on a Person 6. Toxicology or Test of Poison 7. Psychiatric examination 8. Voice Identification Test 9. Finger Printing 10. Identification through Dentures 11. Genetic Science such as DNA or Blood Test

VI. ILLUSTRATION OF SCIENTIFIC EVIDENCE: DNA EXAMINATION A. Important terms involved in DNA Testing (or protocol) (PP vs. Vallejo, May 9, 2002; PP. vs. Yatar, 428 SCRA 504) 1. DNA (Deoxyribonucleic acid) is a molecule found inside all living cells which carries the genetic information that is responsible for all cellular processes. Except for identical twins, each persons DNA profile is distinct and unique. 2. DNA TYPING- the process of extracting and analyzing the DNA of a biological sample taken from an individual or found in a crime scene.

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a) Evidence Sample- material collected from the scene of the crime, from the victims body or that of the suspect/subject b) Reference Sample- material taken from the victim or subject

a). How the samples ( both evidence and reference) were collected b). How they were handled c). The possibility of contamination of the samples

3. DNA PROFILE: the result of the process which is unique in every individual except as to identical twins 4. DNA MATCHING- the process of matching or comparing the DNA profiles of the Evidence Sample and the Reference Sample. The purpose is to ascertain whether an association exists between the two samples. 5. DNA TEST RESULTS: a). Exclusion: the samples are different and must have originated from different sources. This conclusion is absolute and requires no further analysis or discussion. b). Inconlusive: it is not possible to be sure, whether the samples have similar DNA types. This might be due to various reasons including degradation, contamination or failure of some aspect of the protocol. Various parts of the analysis might then be repeated with the same or different samples to attain a more conclusive result. c). Inclusion: the samples are similar and could have originated from the same source. In such case the analyst proceeds to determine the statistical significance of the similarity.

d). The procedure followed in analyzing the samples e). Whether the proper standards and procedures were followed in conducting the test f). The qualification of the analyst who conducted the test 3. There is no violation of the right against self-incrimination a). The kernel of the right is not against all compulsion but against testimonial compulsion. The right against self-incrimination is simply against the legal processes of extracting from the lips of the accused an admission of guilt. It does not apply where the evidence sought to be excluded is not an incrimination but as part of object evidence. As for instance: hair samples taken from an accused. Hence a person may be compelled to submit to finger printing, photographing, paraffin, blood and DNA as there is no compulsion involved (PP. vs. Yatar): b). The right is directed against evidence which is communicative in character which is taken under duress (Herrera vs. Alba)

B. Admissibility and Weight of DNA Profile 1. PP vs. VALLEJO ( May 2002) and PP vs. YATAR ( 428 SCRA 504), adopting the Dauber Test settled the admissibility of DNA tests as object evidence this wise: Applying the Dauber Test the DNA evidence appreciated by the court a quo is relevant and reliable since it is reasonably based on scientifically valid principles of human genetics and molecular biology. This was reiterated in HERRERA vs. ALBA on June 11, 2005. 2. As to the weight and probative value, it depends on the observance of certain requirements known as the Vallejo Guidelines. To wit:

C. Where Used: 1. To identify potential suspects or exclude persons wrongfully accused a) DNA Typing Exclusion or Inclusion may either result in

2. To identify victims of crimes or catastrophes 3. To establish paternity and family relations and genealogy VII. Demonstrative Evidence: Tangible evidence i.e physical objects, which are illustrate a matter of importance to the case but are not the very objects involved in the case. They merely illustrate or represent or emphasize, visualize or make more vivid what a party desires to emphasize. ( visual aids)

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1. Examples: movies, sound recordings, forensic animation, maps, drawings, sketches, graphs, simulations, models or modules of the human body. 2. Importance: their use is very helpful as they provide a stronger impact and lasting effect on the court. B. DOCUMENTARY EVIDENCE Sec. 2 . Documentary evidence. Documents as evidence consist of writing or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents. (n) I. Kinds of Documentary Evidence A. Writings or Paper Based Documents B. Or Any other material refers to any other solid surface but not paper such as blackboard, walls, shirts, tables, floor. 1). As in a contract painted on the wall 2). They include pictures, x-rays, videos or movies. Note: Both kinds maybe handwritten, typewritten, printed, sketched or drawings or other modes of recording any form of communication or representation. Example: The Rebus, Secret Codes.

3) It includes digitally signed documents and any printout or output, readable by sight or other means which accurately reflects the electric data message or electronic document. For purposes of these rules the term electronic document maybe used interchangeably with electronic data message 4). Rule 3 section 2: An electronic document is admissible in evidence if it complies with the Rules of Admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by these rules. a) There are three requirements for admissibility: relevancy, competency and proper authentication. D. Text messages are electronic evidence being ephemeral electric communications. They maybe proven by the testimony of a person who was a party to the same or who has personal knowledge thereof such as the recipient of the messages (Nunez vs. Cruz Apao 455 SCRA 288) 1. BEST EVIDENCE RULE Sec. 3 . Original document must be produced; exceptions. When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: (a)When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b)When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c)When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and (d)When the original is a public record in the custody of a public officer or is recorded in a public office. (2a) Sec. 4 . Original of document. (a)The original of the document is one the contents of which are the subject of inquiry. (b)When a document is in two or more copies executed at or about the same time, with identical

C. Electronic Evidence pursuant to the Rules of Electronic Evidence effective August 01, 2001. which provides : 1) Rule 3 section 1: Electronic evidence as functional equivalent of paper-based documentsWhenever a rule of evidence refers to the term writing, document, records, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document. 2) Electronic document refers to information or to the presentation of information, data, figures or symbols or other modes of written expression, described or however represented, by which a sight is established or an obligation extinguished, or by which a fact maybe proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.

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contents, all such copies are equally regarded as originals. (c)When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. (3a) Best Evidence Rule When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself Exceptions: When the original 1. 2. 3. has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and the original is a public record in the custody of a public officer or is recorded in a public office

II. When the Original Is to Be Presented: A. If the subject of inquiry is the contents of the document. This means the cause of action or defense is based on what are contained in the document i.e. the terms and conditions, the entries, data or information written on the document. This means the plaintiff is either enforcing a right based on, or created, by a document or a party is seeking non-liability by virtue of the contents of a document. Examples: 1. Enforcement of a contract, collection of money based on a promissory note, damages for failure to comply with the terms of a written agreement 2. Defense of release, payment, novation, condonation, as embodied in a written document 3. In criminal cases: where the act complained of is made upon or contained or evidenced by a document such as in falsification, perjury, bigamy, malversation, estafa, issuance of a watered check

4.

Original documents 1. 2. one the contents of which are the subject of inquiry. 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. 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

B. When the rule does not apply even if an existing and available original document is involved: 1. Generally if the contents were never disputed as in the following: a). when the question refers to the external facts about the document such as whether it exists or not, whether it was executed, sent, delivered or received b). when the writing is merely a collateral fact, as when a witness refers to a writing of a conversation which he heard and then jotted down or when the writing is used merely as a point of reference c). when the contents were admitted d). the writing is treated as an object 2. when there was failure to deny specifically under oath the due execution and genuiness of the document (Consolidated Bank vs. Del Monte Motors, July 29, 2005) III. Justifications for the rule. 1. To ensure accuracy and to avoid the risk of mistransmission of the contents of a writing arising from (i) the need of precision in presenting to the court the exact words of a writing specially in

3.

Rules governing the admissibility of documents include the Best Evidence Rule and the Parole Evidence Rule. The General Rule: If the subject of inquiry is the contents of a document there can be no evidence of the contents other than the original of the document. I - Section 3 states the general rule when the original of a document is to be presented and the four exceptions to the rule. Hence the best evidence rule is often referred to loosely as the the Original Document rule. It is thus a rule of preference in that it excludes secondary evidence once the original is available.

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operatative or dispositive instruments such as deeds, will and contracts, since a slight variation in words may mean a great difference in rights (ii) substantial danger of inaccuracy in the human process of making a copy and (iii) as respect oral testimony purporting to give from memory the terms of a writing, there is special risk of error. 2. To prevent the possibility of commission of fraud or perjury, or substitution Illustrations 1. The Marriage Contract as to the date, place, the parties and solemnizing officer 2. The Insurance Contract/Policy as to the coverage of the insurance 3. The deed of sale as to the consideration, terms and conditions of the sale 4. The lease contract as to the terms thereof 5. The sworn statement as to perjury 6. In case of libel based on a published article, the newspaper containing the article 7. The certified copy of the original judgment of conviction to prove the prior conviction to constitute recidivism or habitual delinquency IV. The Gregorio Doctrine: In criminal cases of falsification, it is indispensable that the judge have before him the document alleged to have been simulated, counterfeited or falsified unless: 1. The original is in the possession of the adverse party/accused who refused to deliver or present the same despite demand 2. The original is outside of the Philippines and which, for official reasons, cannot be brought to the Philippines. Example: The originals are US Treasury Warrants which are with the US Treasury Department in which case photostat copies are admitted V. The Rule may be waived expressly or by failure to object VI - Rules on Electronic Evidence (Rule 4) Sec. 1. Original of an Electronic Document An electronic document shall be regarded as the equivalent of an original document under the Best Evidence the

Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. Sec. 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 rerecording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original. Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if: a genuine question is raised as to the authenticity of the original; or in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original.

Carbon copies are deemed duplicate originals. They may be introduced as evidence without accounting for the non-production of the original. The Best Evidence Rule applies only when the contents of the document are the subject of inquiry. It does not apply when the issue is only as to whether or not such document was actually executed or in the circumstances relevant to its execution. SOME EXAMPLES: 1. Baptismal and Marriage Certificate They are only evidence to prove the administration of the sacraments on the dates therein specified - Baptismal certificate is not conclusive proof of filiation being hearsay 2. Medical Certificate - To prove torture inflicted by the police, the medical certificate alone without the testimony of the examining physician is inadmissible (People v. Villagracia, 226 SCRA 398) 3. Residence Certificate - The place of obtaining a residence certificate and the date contained are not conclusive as to the real residence or domicile of a person owning said certificate. (Zuellig v. Republic, 83 Phil. 768) 4. Tax declaration

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- It can be used as evidence that a portion of land had been sold. (Gacos v. CA, 212 SCRA 8) 5. Accounts and Account Books - Where the custom brokers authorized representative accepted the cargo OK and complete as shown in the surveyors report countersigned by him and it was obviously his assigned task to note defects in the cargo, said acceptanceif not being outright upon the customs brokeris at least evidence of the condition of the goods when thus received. (Insurance Company of North America vs. C.F. Sharp & Co., Inc. 18 SCRA 462) - An audit made by or the testimony of a private auditor is inadmissible in evidence as proof of the original records, books of accounts, reports or the like. (Compania Maritima vs. Allied Free Workers Union, 77 SCRA 24) After complying with the BEST EVIDENCE RULE, will the court necessarily admit the original writing? No. 1) The requirements of authentication of documents must be met. There must be proof of authentication. However this applies only when the writing is a private document. 2) After authentication, the proponent has to comply with the rule that if the original writing is not in an official language (English or Filipino), it is his duty to give to the court a translation thereof. 3) If there is an alteration, he must explain such alteration. He may show that the alteration was made: a) by another,

Sec. 6 . When original document is in adverse party's custody or control. If the document is in the custody or under the control of adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss. (5a) Sec. 7 . Evidence admissible when original document is a public record. When the original of document is in the custody of public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. (2a) Sec. 8 . Party who calls for document not bound to offer it. A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence. (6a) EXCEPTIONS: WHEN SECONDARY EVIDENCE MAY BE PRESENTED I. Secondary Evidence: refers to any evidence to prove the contents of a document other than the original of the said writing. It maybe oral or written. II. First Exception: When the original has been lost, destroyed, or cannot be produced in court without bad faith on the part of the offeror. 1. Lost/destroyed: the original is no longer in existence 2. cannot be produced in court- the original exist but either (i) it is of a nature that it is physically impossible to bring it in court as in the cases of a painting on a wall or tombstone or it consists of the data stored in a computer (ii) would entail great inconvenience, expense or loss of time if brought to court, as in the case of a writing on a rock (iii) it is outside the Philippine territory 3. without bad faith on the part of the offeror- the lost or unavailability was not due to the act or negligence of the party presenting secondary evidence, or if due to the act or fault of a third person, then the offeror had no part therein. 4. Procedural requirement: Foundation or Order of Proof is: (i) existence (ii) execution (iii) loss and (iv). contents. Thus: (i). Proof of the existence and the due execution of the original through the testimonies of

b) without his concurrence, or c) made with the consent of the parties affected by it, or d) was otherwise properly or innocent made, or e) The alteration did not change the meaning or language of the instrument.

2. SECONDARY EVIDENCE Sec. 5 . When original document is unavailable. When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. (4a)

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the persons who executed the document; the instrumental witnesses; by an eyewitness thereof; who saw it after its execution and recognized the signatures therein; by the person before whom it was acknowledged, or to whom its existence was narrated Exception: Ancient documents. (ii). Proof of the fact of loss or destruction of the original through the testimonies of (a) anyone who knew of the fact of the loss as in the case of an eyewitness to the loss or testimony of the last custodian (b) any who made a diligent search in the places where the original was expected to be in custody and who failed to locate it (c) one specially tasked to locate but was unable to find the original, as in the case of a detective. If the original consists of several copies, all must be accounted for and proven to be lost. (iii). Proof of lack of bad faith on the part of the offeror (iv). Proof of the contents by secondary evidence according to the Order of Reliability i.e.: a). By a copy whether machine made or handmade so long as it is an exact copy. It need not be a certified copy (b). By its Recital of the Contents in some Authentic Document_ a document whether public or private, which is shown to be genuine and not manufactured or spurious, and which narrates, summarizes or makes reference to the contents of the original document. Examples: personal diaries; letters; annotation of encumbrances at the back of the title; drafts or working papers; minutes and recordings by secretaries; memoranda by an employer to a secretary or employee; the baptismal records as to the age of a person. Recollection or testimony of a witness such as the parties, instrumental witnesses and signatories thereto; one who read the original; one present when the terms were discussed or to whom the contents were related. The testimony need not accurate as long as the substance is narrated. 5. If the offeror failed to lay the proper foundation but the opposing party did not make any objection, the secondary evidence may be treated

as if it were on the same level as the original and given the same weight as an original. Illustration: PP. vs. Cayabayab (Aug. 03, 2005). In a rape case the prosecution presented a photocopy of the birth certificate of the victim to prove her age and which was not objected to. The admissibility and weight were later questioned in the Supreme Court. 1. The best evidence to prove a persons age is the original birth certificate or certified copy thereof; in their absence, similar authentic documents maybe presented such as baptismal certificates and school records. If the original or certified true copy of the birth certificate is not available credible testimony of the mother or a member of the family maybe sufficient under the circumstances. In the event that both the birth certificate or authentic documents and the testimonies of the victims mother or other qualified relatives are unavailable, the testimony of the victim ( a minor 6 years of age) maybe admitted in evidence provided it is expressly and clearly admitted by the accused. 2. Having failed to raise a valid and timely objection against the presentation of this secondary evidence the same became a primary evidence and deemed admitted and the other party is bound thereby. III. Second Exception: When the original is in the adverse partys custody and control. A. The Foundation consists of the following: 1. Proof of the Existence and Due Execution of the Original 2. Proof that the original is in the (a) actual physical possession/custody or (b) control i.e. possession or custody by a third person for and in behalf of the adverse party, as that of a lawyer, agent or the bank. Maybe by the testimony of he who delivered the document; registry return receipt by the Post Office or some other commercial establishments engaged in the delivery of articles and the receipt thereof, or by one who witnessed the original being in the possession of the adverse party. 3. Proof that reasonable notice was given to the adverse party to produce the original: the notice must specify the document to be produced. a) If the documents are self incriminatory, notice must still be sent as the adverse party may waive the right

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b) The notice may be a formal notice or anon-the-spot oral demand in court if the documents are in the actual physical possession of the adverse party. 4. Proof of failure or refusal to produce. B. Effects of refusal or failure to produce: 1. The adverse party will not be permitted later to produce the original in order to contradict the other partys evidence 2. The refusing party maybe deemed to have admitted in advance the accuracy of the other partys evidence 3. The admission of secondary evidence and its evidentiary value is not affected by the subsequent presentation of the original. 4. Example: In G&M Phil. Inc. vs. Cuambot it was held: the failure (of the employer) to submit the original copies of the pay slips and resignation letter raises doubts s to the veracity of its claim that they were signed by the employee. The failure of a party to produce the original of a document which is in issue has been taken against such party, and has been considered as a mere bargaining chip, a dilatory tactic so that such party would be granted the opportunity to adduce controverting evidence C. Proof of the contents is by the same secondary evidence as in the case of loss. IV. Third Exception: When the original consists of numerous accounts or other documents which cannot be produced in court without great loss of time and the fact sought to be established there from is only the general result of the whole. A. This is based on practical convenience B. The Foundation includes: 1. Proof of the voluminous character of the original documents 2. Proof the general result sought is capable of ascertainment by calculation or by a certain process, procedure or system 3. Availability of the original documents for inspection by the adverse party so that he can inquire into the correctness of the summary C. How the general result is introduced: (a) by the testimony of an expert who examined the whole

account or records (b) by the introduction of authenticated abstracts, summaries or schedules D. Illustrations: 1. The income of a business entity for a period of time maybe known through the income tax return field by it, or by the result of the examination of an accountant 2. A general summary of expenses incurred maybe embodied in a summary to which are attached the necessary supporting receipts witness 3. The state of health of an individual maybe established through the testimony of the physician 4. The published financial statement of SLU as appearing in the White and Blue V. Fourth Exception: When the original is a public record in the custody of a public official or is recorded in a public office A.. The documents involved: (a) a strictly public document such as the record of birth, the decision of a court and (b) a private document which was made part of the public record, such as a document of mortgagee involving a registered land and submitted of the Office of the Register of Deeds B. Reason: The Principle of Irremovability of Public Records i.e. public records cannot be removed or brought out from where they are officially kept. Reasons: (i) the records should be made accessible to the public at all times (ii) the great in convenience caused to the official custodian if he were called to present the records to the court every now and then and (iii) to guard against the possibility of loss/destruction of the documents while in transit. C. Exception or when the original has to be presented. Only upon prior Order from the court as when an actual inspection is necessary for the proper determination of the case, as in cases of falsification pursuant to the Gregorio Doctrine. In the absence of a court order, the official may be liable for infidelity in the custody of documents. D. Secondary evidence allowed: 1. A certified copy issued by the official custodian bearing the signature and the official seal of his office. When presented the document must bear the documentary and science stamp and the accompanied by the official receipt of payment of the copy 2. An official publication thereof

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Section 4. Meaning of the term Original A. One the contents of which, is the subject of inquiry as determined by the issues involved: Which document is it that the contents of which is in question? Thus in case of libel and the issue is who be the author of the libel as published? Then the original is the letter sent to the media. But if the question is whether the letter is libelous, then the original is the letter. If X xeroxed a letter by Ana to Juan and X changed the contents by inserting libelous matters against Juan, then the original would be the xeroxed letter. B. Duplicate Originals. Two or more copies executed at or about the same time with identical contents. 1. Examples: carbon originals, blue prints, tracing cloths. Copies mass produced from the printing press or from the printer of computers. C. Entries repeated in the regular course of business one copied from the other at or near the time of the transaction to which they relate, all are considered as original. 1. Examples are entries in the Books of Account which are copied from one book/ledger and transferred to another 2. Entries in receipts for the sales for the day which at night are recorded in a ledger and which in turn are recorded in the sales for the week and then entered in the ledger for the sales of the month. 3. Scores in the examination booklets which are recorded in the teachers record which then are recorded in the official grade sheet submitted to the deans office. 1. 1.

i. ii. 1.

some authentic document, or testimony of witnesses

the original is in the custody or under the control of the adverse party a. adverse party had reasonable notice to produce the original (Subpoena duces tecum) b. proof of the originals existence c. adverse party fails to produce the original d. proof of contents in the following order i. ii. copy recital of its contents in some authentic document, or testimony of witnesses

2.

the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and the original is a public record in the custody of a public officer or is recorded in a public office contents may be proved by a certified copy issued by the public officer in custody thereof Rule 132 25: What attestation of copy must state 1) the copy is a correct copy of the original, or a specific part thereof

2) under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court Rule 132 27: Public record of a private document may be proved by 1) the original record, or 2) by a copy thereof a) attested by the legal custodian of the record b) with an appropriate certificate that such officer has the custody

Requisites for admission of secondary evidence, according to grounds 1. the original has been lost or destroyed, or cannot be produced in court 1. prove execution or existence 2. prove cause of unavailability without bad faith of the offeror 3. proof of contents in the following order a. b. copy recital of its contents in

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Secondary Evidence Rule 130, Secs. 5-8 Instances when introduced: secondary evidence may be

when original document is unavailable destroyed or cannot be produced in court)

(lost,

Sec. 9 .Evidence of written agreements. When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. However, a party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading: (a)An intrinsic ambiguity, mistake or imperfection in the written agreement; (b)The failure of the written agreement to express the true intent and agreement of the parties thereto; (c)The validity of the written agreement; or (d)The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. The term "agreement" includes wills. (7a) THE PAROLE EVIDENCE RULE (Rule 130 (9) Parol Evidence Rule (PER): When the terms of an, agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. Exceptions: a party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleading 1. 2. 3. 4. An intrinsic ambiguity, mistake or imperfection in the written agreement failure of the written agreement to express the true intent and agreement of the parties validity of the written agreement; or The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement

- The offeror, upon proof of (1) its execution or existence and (2) cause of its unavailability, without bad faith on his part may prove its contents by: A copy A recital of its contents in some authentic document The testimony of witnesses.

The order stated must be followed. When original document is in adverse partys custody or control. - If after reasonable notice is given to the adverse party to produce the document and after satisfactory proof of the existence of the document is made, he fails to produce the document, secondary evidence may be presented. when original document is a public record. - Its contents may be proved by a certified copy issued by the public officer in custody thereof. A party who calls for the production of a document and inspects it is not obliged to offer it as evidence.

The voluminous character of the document must be established before evidence other than the original may be introduced. (Compania Maritima vs. Allied Free Workers, 1977) In the case where the original is in the custody of the adverse party, it is not necessary that it be in the actual possession of the adverse party. It is enough that the circumstances show that the writing is in his possession or under his control. Secondary evidence is admissible where the adverse party denies having it in his possession. (Villa Rey Transit vs. Ferrer, 1968) All duplicates or counterparts must be accounted for before using copies as evidence. (De Vera vs. Aguilar, 1983) 3. PAROL EVIDENCE RULE

If the ground is subsequently-agreed terms, the subsequently-agreed terms must also be put in issue in the pleadings. The rule applies only to the terms of an agreement. If the evidence sought to be admitted refers to matters other than the terms of the agreement (e.g. statement of facts), then the PER does not apply, such evidence is admissible.

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PER applies only to the parties to the agreement. It does not apply where PER is invoked against a litigant who is a stranger to the agreement. Requisites for mistake as exception to PER mutual between the parties 1. 2. 3. of fact, not of law alleged and put in issue in the pleadings proved by clear and convincing, not merely preponderance of, evidence Best

4) whatever is not found in the writing must be understood to have been waived or abandoned. General Rule: When the terms of an AGREEMENT (including WILLS) have been reduced to WRITING, it is considered as containing ALL the terms agreed upon and there can be, between the parties and their successors in interest, NO evidence (testimonial or documentary) of such terms other than the contents of the written agreement. Exceptions: A party may present evidence

Parol Evidence Rule

to a. Modify, b. Explain or c. Add to the terms of written agreement if he puts in issue in his pleading: (a) An intrinsic ambiguity, imperfection in the written agreement; mistake or

Evidence Rule No issue as to the Issue is contents of a writing contents of a writing Parol evidence is offered Secondary offered evidence is

Presupposes that original Applies when the original is is in court not available Effect is can not add, Effect is can not present subtract, or explain the any evidence on the contents contents other than the original Invoked only if the Invoked by anybody, controversy is between whether a party to the parties to the agreement instrument or not Applies only agreements and wills to Applies writing to all kinds of

(b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. ILLUSTRATION: The vendee can validly tell the court that the deed of sale is not really one of sale but one or mortgage as long as he puts in issue in the pleadings, any of the matters enumerated above. [N.B. Art. 1602, NCC presumes that a deed of sale is an equitable mortgage when: 1] price of sale with right to purchase is unusually inadequate; 2) Vendor remains in possession as lessee or otherwise; 3) When another instrument extending period of redemption is executed; 4) When purchaser retains for himself a part of purchase price; 5) Vendor assumes tax; 6) Other circumstances] ILLUSTRATION: There is a sale of a piece of land in favor of Juan dela Cruz. If you read the document there is really nothing wrong because there is a vendor, there is a vendee and there is an object and consideration. But it turns out that there are two persons who carry the name Juan de la Cruz. That document is intrinsically ambiguous because we do not know who the vendee in that sale. The defect can be remedied by the introduction of testimonial

Nature of parol evidence rule: It is not a rule of evidence but of substantive law. It is part of the law of contracts, the law of negotiable instruments, and the law of wills. It is founded upon the substantive rights of the parties. It was made part of the rules of evidence in order that it may be considered in all its phases in one place. Reasons for the parol evidence rule: 1) When the parties have reduced their agreement in writing, 2) it is presumed that they have made the writing 3) the only repository and memorial of the truth, and

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evidence or other documentary evidence to show to the court who is the Juan dela Cruz mentioned in the deed of sale as the vendee. But if in that deed of sale where Juan dela Cruz is the vendee, and there is only one Juan dela Cruz, but the property sold is simply a piece of land. There is an ambiguity what particular land is sold as there is no description. The ambiguity is extrinsic. It arises from the face of the document itself. Here we cannot introduce evidence aliunde. The contract is void, which under the Rules cannot allow be corrected and converted into a valid contract. US cases and some Philippine cases recognized intermediate ambiguity, and evidence aliunde may be admitted by the court to explain or add to its meaning. This arises by the use of equivocal word/s which is susceptible of more than one interpretation. Example: Defendant sold to plaintiff a distilling apparatus of guaranteed capacity of 6,000 liters daily. Defendant claimed that the phrase referred to receiving capacity. Here the word capacity was susceptible of two interpretations. SC held that parol evidence is admissible to show which of the two interpretations meant by the parties. (Palanca v. Fred Wilson & Co., 37 Phil. 506)

4) It does not apply either when third parties are involved. (Lechugas vs. CA, 1986) NOTES: a.Contemporaneous agreement. A contemporaneous agreement is one entered into at the same time as the agreement which has been reduced to writing. b. Tests to determine whether a contemporaneous oral agreement is separate and distinct from the written agreement and therefore provable by parol evidence: 1) The first test is the subject-matter of the two agreements. If the subject-matter of the written agreement is different from that of the contemporaneous oral agreement, then the latter is a separate and distinct agreement and, therefore, provable by parol evidence. 2)If the two agreements refer to the same subject-matter, the test is to determine whether or not the contemporaneous oral agreement is separable, then the contemporaneous oral agreement is separate and distinct and, therefore, probable by parol evidence. (Lese v. Lamprecht, 196 N.Y. 32) c. Example of agreement which CANNOT be proven by parol evidence: Express trusts concerning real property cannot be proven by parol evidence because title and possession cannot be defeated by oral evidence which can easily be fabricated and contradicted. (Sinaon, et al., v. Sorongon, et al., 136 SCRA 410) d. Examples of collateral agreements which CAN be proved by parol evidence: 1) An agreement of reconveyance is a distinct agreement, separate from the sale itself, although the two agreements are usually contained in one and the same document. (Laureano v. Kilayco, 34 Phil. 148; Yacapin v. Neri, 40 Phil. 61) 2) Inducements and representations which led to the execution of an agreement may be proven by parol evidence because they do not vary the terms of the agreement. (Woodhouse v. Halili, 93 Phil. 526; Bough v. Cantiveros, 40 Phil. 209) 3) Parol evidence is admissible to prove an independent and collateral agreement which constitutes an inducement to the making of the sale

What is the coverage of the parol evidence rule and what are the exceptions to the parol evidence rule? a. Covered. Only prior and contemporaneous agreements which are deemed to have been merged in the writing conformably to the "integration of the agreement rule." (Woodhouse v. Halili, 93 Phil. 526) b. Not covered. 1) Subsequent agreements, notwithstanding that such agreements may have the effect of adding to, changing, modifying, or even altogether abrogating the contract of the parties as evidenced by the writing. 2) Collateral agreements which although oral and contemporaneous with the writing are separate and distinct agreements. (PNB v. Seeto, 91 Phil. 756) 3) It also does not apply if the issue revolves around fraud and false representation since they are incidental to the execution and not to the integration. (Woodhouse vs. Halili, 1953)

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or part of the consideration thereof. Lizarraga Hnos., 50 Phil. 387)

(Robles v.

4) A condition precedent not stipulated in writing is provable by oral evidence. REASON: Before the happening of the condition, there is no written agreement yet to which the parol evidence may apply. 5) Verbal assurances given by the indorser of an out-of-town check to the employees of the bank where it was presented for encashment that he would refund the amount if the check should be dishonored by the drawee bank is a collateral agreement separate and distinct from the indorsement, by virtue of which the first bank was induced to cash the same, and therefore, provable by parol evidence. (PNB v. Seeto, 91 Phil. 756) 6) Any prior or contemporaneous conversaion in connection with a note or its indorsement may be proved by parol evidence. (PNB v. Seeto, 91 Phil. 756; Philips v. Preston, 5 How. [U.S.] 278) 7) An extrinsic agreement between indorser and indorsee which cannot be embodied in the instrument without impairing its credit may be proved by parol evidence. (PNB v. Seeto, 91 Phil. 756; 9 Wigmore 148) 8.) The fact that parties who appear to have signed as principals did so as merely sureties is provable by parol evidence. (Tan Machan v. De la Trinidad, 3 Phil. 684) FALSA DEMONSTRATION NON NOCET False description will not invalidate an instrument The erroneous description will be considered as a surplusage. ILLUSTRATION: In a deed of sale of a parcel of land covered by: TCT 12345, located in City of Muntinlupa. There is really a land covered by TCT 12345 with same technical description however it is not located in Muntinlupa, but in Laguna. The erroneous description will not invalidate the contract. Best evidence rule distinguished from parol evidence rule: 1) Under the best evidence rule, the issue is contents of a writing (Sec. 3, Rule 130, ROC) WHILE under the parol evidence rule, there is no issue as to contents of a writing (Sec. 9, Rule 130, ROC);

2) Under the best evidence rule, secondary evidence is offered to prove the contents of a writing, which is not allowed unless the case falls under any of the exceptions (Sec. 3, Rule 130, ROC) WHILE under the parol evidence rule, the purpose of the offer of parol evidence is to change, vary, modify, qualify, or contradict the terms of a complete written agreement, which is not allowed unless the case falls under any of the exceptions. (Sec. 9, Rule 130, ROC) Only the parties and their successors in interest, and not strangers may invoke the protection of the parol evidence rule. (Sec. 9, Rule 130, ROC) PAROLE EVIDENCE DISTINGUISHED FROM STATUTE OF FRAUDS The Statute of Frauds requires that certain agreements be proved by writing or by some note or memorandum thereof in order to be enforceable. On the other hand, the Parole Evidence Rule has nothing to do with the manner of proving agreements. Its object is to prohibit alteration, change, modification, variation or contradiction of the terms of a written agreement by parol evidence. Section 9. Evidence of Written Agreements. When the terms of an agreement had been reduced into writing, it is considered as containing all the terms and conditions agreed upon and there can be between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. I. Essence of the Rule: It forbids or prohibits any attempt to vary, contradict, or modify the terms of a written agreement by the use of testimonial/oral evidence. II. Basis and Reason: The Principle of Integration of Jural Acts. The written agreement is the final culmination of the negotiation and discussion of the parties as to their respective proposals and counterproposals and is the final and sole repository, memorial and evidence of what was finally agreed upon. Therefore, whatever is not found in the written agreement is deemed to have been abandoned, disregarded, or waived by them. Only those contained in the written agreement are considered the only ones finally agreed upon and no other. Thus oral testimony will not be permitted to show there were other agreements or terms between the parties. III. Purposes: (i) to give stability and permanence to written agreements otherwise they can be changed anytime by mere testimony, then written agreements

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would serve no useful purpose (ii) to remove the temptation and possibility of perjury which would be rampant if oral/parole evidence were allowed as a party may resort to such testimony in order to either escape compliance with his obligation, or to create fictitious terms favorable to him. IV. Distinguished from the Best Evidence Rule. Both refer to a written document but they differ in the following aspects: 1. As to what is prohibited: the BER prohibits the introduction of inferior evidence when the best evidence is available whereas the PER prohibits the introduction of oral testimony to vary the terms of a written agreement. 2. As to scope: the BER applies to all kinds of written documents while the PER is limited to contracts and wills 3. As to the substance of the evidence: the BER goes to the form of the evidence while the PER goes to the very substance of the evidence 4. As to who may invoke: the BER may be invoked by any party to a case while the PER may be invoked only by a party to the written agreement and his successor in interest, or by one given right or imposed an obligation by a written agreement. 5. As to the issue: BER is to the contents

e). However a Statement of a Fact, as distinguished from statements which constitute Terms of the Contractual Agreement maybe varied, such as statements as to the personal qualifications of the parties. 2. That there is a dispute as to the terms of the agreement 3. That the dispute is between the parties to the contract or their successors or that the rule is invoked by one who is given a right or imposed an obligation by the contract. This is because the binding effect of a contract is only upon the parties thereto or their successors. VI. When Contemporaneous/prior agreements maybe proved without violating the Principle of Integration of Jural Acts: These refer to Contemporaneous or prior agreements which, even if they affect or relate to the contract, may still be proven by the parties by oral testimony. 1. Those which refer to separate and distinct subject matters and which do not vary or contradict the written agreement. Example: The buyer of a land in a written contract may prove by oral testimony that the seller agreed to give him the right of first refusal of the sellers adjoining lot. Similarly the promise of first refusal by the lessor in favor of the lessee may be proven by oral testimony. 2. Those which constitute Conditions Precedent if the written contract specifically stated that it shall be complete and effective upon the performance of certain conditions. Example: that the contract be first referred to a third person who must give his approval thereto or that a third person should also sign as a witness thereto. 3. Those which are the moving and inducing cause, or that they form part of the consideration and the contract was executed on the faith of such oral agreement in that : (i) the party would not have executed the contract were it not for the oral agreement and ii) they do not vary or contradict the written agreement. a). The promise by a vendor to give a road right of way to the vendee over the latters remaining property b). An agreement to allow the son of the vendor to occupy a room free of charge in the apartment sold, for a certain period of time

V. Requirements for the Application of the Rule 1. That there be a valid written contract or a written document which is contractual in nature in that it involves the disposition of properties, creation or rights and imposition of obligations a). Void contracts do not create any right and produces no legal effects b). The contract maybe in any written form whether in the standard form or as worded by the parties themselves c). The document may be signed or not as in the case of way bills, tickets d). The rule does not cover mere receipts of money or property since these are incomplete and are not considered to be the exclusive memorial of the agreement and are inconclusive

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c). An agreement that the vendor shall harvest the standing crops over the land sold d). An agreement that the vendor shall cause the eviction of squatters from the land sold e) That the party was to pay off the indebtedness of the other; or to give or deliver a thing to a third person. VII. Statutory Exceptions to the Rule CONCEPT: When oral testimony is allowed even if they pertain to the contents, terms or agreements of the document, provided they were specifically alleged in the pleadings by the party concerned. A. That there is an intrinsic ambiguity 1. Ambiguity refers to an uncertainty or doubt in the document or something in its provisions is not clear, or of being susceptible to various interpretations or meanings. They are either (a) latent or intrinsic (b) patent or extrinsic and (c) intermediate ambiguity 2.Latent or IntrinsicThe instrument/document itself is clear and certain on its face but the ambiguity arises from some extrinsic, collateral or outside factor, thus there is an uncertainty as to how the terms are to be enforced. a). It is of two kinds: (i) when the description of the person or property is clear but it turns out the description fits two or more persons or things and (ii) where the description of the person or object is imperfect or erroneous so as to leave doubt what person or object is referred to. b). Examples: (i) the donee is described as My uncle Tom but the donor has several uncles named Tom (ii) the thing sold is my house and lot in Baguio City but the vendor has three houses and lots in Baguio City (iii) the money shall be for the tuition fee of my son who is enrolled in SLU but it is the daughter who is enrolled in SLU while the son is enrolled in UB (iv) the subject of the sale is the vendors two storey house in Bakakeng but what he has in Bakakeng is a grocery store and it is his house in Aurora Hill which is two stories. c). Reason for the exception: the introduction of oral testimony does not vary or contradict the document but it aids the court in ascertaining and interpreting the document thereby enabling it to give effect and life to the document. 3. Patent or Extrinsic (Ambiguitas patens) the uncertainty is very clear and apparent on the

face of the document and can easily be seen by simply reading the terms/contents of the document. a). Aside from being clear and apparent, the ambiguity is permanent and incurable. It cannot be removed or explained even with the use of extrinsic aids or construction or interpretation. b). Examples: (i) A promissory note or memorandum of indebtedness which does not specify the amount of the obligation (ii) sale of property without the property being described or (iii) where the description is one of several properties or one of several persons is mentioned but he is not specifically identified e.g. I leave my cash to my favorite son. 4. Intermediate Ambiguity where the ambiguity consists in the use of equivocal words/terms/phrases or descriptions of persons or property. Parole evidenced is admissible to ascertain which sense or meaning or interpretation was intended by the parties. a). Examples: (i). the use of the word dollar (ii) the use of the term sugar (iii) where in a deed of mortgage it was uncertain which amount of loan was being secured B. There was a Mistake or Imperfection 1. Imperfection inaccurate descriptions includes situations of

2. Mistake- when a person did or omitted do an act by reason of an erroneous belief interpretation of a law or assessment of a fact, due to ignorance, forgetfulness, unconsciousness, misplaced confidence.

to or or or

a). Must be of a fact and is mutual to both the parties b). Examples: (i) both were in error as to the property sold and described in the deed of sale i.e. another property as the one involved and not that described in the document (ii). two persons were supposed to be witness but were named instead as parties (iii) the writing was incomplete when it mentioned only some but not all the terms agreed upon. C. The Failure of the Written Agreement to Express the True Intent and Agreement of the Parties 1. The deed maybe ambiguous or vague either through ignorance, lack of skill or negligence of the party/person who drafted the deed, or through the use of imprecise words.

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2. Maybe cured through the remedy of reformation of instrument 3. Example: (i) The deed turned out to be a sale when the intention was as a security or (ii) the deed was a sale and not an SPA

admissible to show that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly. (12) Sec.15. Written words control printed. When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter. (13) Sec.16. Experts and interpreters to be used in explaining certain writings. When the characters in which an instrument is written are difficult to be deciphered, or the language is not understood by the court, the evidence of persons skilled in deciphering the characters, or who understand the language, is admissible to declare the characters or the meaning of the language. (14) Sec.17. Of Two constructions, which preferred. When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the provision was made. (15) Sec.18. Construction in favor of natural right. When an instrument is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted. (16) Sec.19. Interpretation according to usage. An instrument may be construed according to usage, in order to determine its true character. (17) C. TESTIMONIAL EVIDENCE 1. QUALIFICATION OF WITNESSES Sec. 20 . Witnesses; their qualifications. Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make their known perception to others, may be witnesses. Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification. (18a) Sec. 21 . Disqualification by reason of mental incapacity or immaturity. The following persons cannot be witnesses: (a)Those whose mental condition, at the time of their production for examination, is such that they are

D. The Validity of the Agreement is Put In Issue 1. One or both parties assert the agreement or document is null and void or unenforceable for lack of the essential elements of a valid contract.

E. In case of Subsequent Agreements- the terms and conditions being testified on were agreed upon after the execution of the document 1. As in the case of novation of the document, in whole or in part 2. Parties are free to change or modify or abandon their written agreement in which case it is the latter which should be given force and effect 4. INTERPRETATION OF DOCUMENTS Sec.10. Interpretation of a writing according to its legal meaning. The language of a writing is to be interpreted according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise. (8) Sec.11. Instrument construed so as to give effect to all provisions. In the construction of an instrument, where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. (9) Sec.12. Interpretation according to intention; general and particular provisions. In the construction of an instrument, the intention of the parties is to be pursued; and when a general and a particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it. (10) Sec.13. Interpretation according to circumstances. For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be placed in the position of those who language he is to interpret. (11) Sec.14. Peculiar signification of terms. The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is

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incapable of intelligently perception to others;

making

known

their

(b)Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. (19a) Sec. 22 . Disqualification by reason of marriage. During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. (20a) Sec. 23 . Disqualification by reason of death or insanity of adverse party. Parties or assignor of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. (20a) Sec. 24 . Disqualification by reason of privileged communication. The following persons cannot testify as to matters learned in confidence in the following cases: (a)The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants; (b)An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity; (c)A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in capacity, and which would blacken the reputation of the patient;

(d)A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs; (e)A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. (21a) TESTIMONIAL EVIDENCE I. CONCEPT: This is the third kind of evidence as to form. It is evidence consisting of the narration of a person, known as a witness, made under oath and in the course of the judicial proceedings in which the evidence is offered. II. WITNESS: A witness is a natural person who testifies in a case or one who gives oral evidence under oath before a judicial tribunal. Evidence obtained through the presentation of animals is treated as object evidence. A. Necessity of Witnesses: Objects and documents do not explain themselves. Their relevance, meaning and significance, can only be known through the testimony of a witness. Likewise, events, as well as persons involved in an event, can only be known through the narration of a witness. B. Duty to Testify is a Legal Duty and not just a matter of civic consciousness. This may be enforced by the imposition of sanctions by the court, such as a citation for contempt and consequent payment of a fine or imprisonment. C. The following may not compelled to testify as witnesses: 1. 2. 3. 4. The President while in Office Justices of the Supreme Court Members of Congress while Congress is in Session Foreign Ambassadors to the Philippines

5. Consuls and other foreign diplomatic officials if exempted by a treaty 6. The accused in a criminal case

III. QUALIFICATION OF WITNESSES. Section 20 provides. All persons who can perceive and

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perceiving can make known their perception to others, may be witnesses. GR: A disinterested person could be compelled to give his testimony through subpoena Exceptions: Persons who are immune from the process of subpoena by tradition, convention or law: a. b. Ambassadors of foreign countries by virtue of treaty obligations President of the Philippines or other country

b). The willingness to be placed under oath or affirmation B. Additional Requirement in cases under the Rules on Summary Procedure : The intended witness must have (a) executed a sworn statement (b) submitted before hand to the court and (c) is present in court and is available for cross-examination by the adverse party. C. COMPETENCY of a witness 1. Distinguished from credibility: Competency is the legal fitness or legal capacity of a person to testify as a witness. Competency involves a determination of whether the person offered as a witness has all the qualifications prescribed by law and is not among those disqualified by law or by the rules of evidence. ( Note: One who is not qualified is loosely termed as incompetent which is not the accurate term) Credibility goes to the character of the witness to be believable or not. This goes to the truth of the testimony. It includes the ability of the witness to inspire belief or not. Hence a witness maybe competent but is not credible. 2. Presumption of Competency: When a person is offered as a witness, he is presumed to be competent. He who claims otherwise has the burden of proving the existence of a ground for disqualification. a). The Method of questioning the competency is by raising an objection to the presentation of the witness or to his continued testimony. b). The time to raise an objection is as soon as the ground becomes apparent which may either be: (i) at the time the person is offered and presented to be a witness and before he actually testifies or (ii). At the time he is actually testifying. IV. DISQUALIFICATION of a witness A. Who Are Disqualified: General Rule: Only those expressly covered under the enumerations by law maybe disqualified from testifying B. Exclusivity of The Grounds for Disqualification: The grounds are limited exclusively and restrictively to those enumerated by the law. The following are not grounds: (i) interest in the outcome of a case (ii) relationship to a party, as both affect merely credibility (iii). Sex (iv). race (v). creed (vi). property or (vii). prior conviction of a crime.

A. Four Qualities of a Witness 1. Testimonial Quality of Perception a). Capacity to perceive means to be able to observe by the use of the senses including the ability to receive impressions from the outside world and to grasp or understand these impressions. b). This must exist at the time of the occurrence of the event to which the witness is testifying even if it is lost at the time of testifying.

2. Testimonial Quality of Memory a). the ability to retain the impressions received or observations made and to recollect them in court b). this must exist at the time of testifying c). selective memory or lapses in memory affect merely credibility

3. Testimonial Quality of Narration or Communication a). The ability to interpret, explain, relate or communicate in a manner which can be understood by the court, either through spoken words, writings, or sign language. b). It must exist at the time of testifying

4. Testimonial Quality of Sincerity a). The awareness of both a duty to tell the truth and to be liable in case of intentional lies, or the recognition of the obligation of an oath

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C. Kinds of Disqualification 1. Total or absolute - the person is disqualified from being a witness due to a physical or mental cause 2. Partial or relative- the witness is disqualified from testifying only on certain matters but not as to others facts D. Voir Dire Examination: the examination conducted by the court on the competency of a witness whenever there is an objection to the competency of the witness and is usually made before the witness starts with his testimony. The party objecting maybe allowed to present evidence on his objection or the court itself may conduct the questioning on the witness.

A. They include the following: 1. Medically Insane persons unless they are testifying during their lucid intervals. a). Sanity is presumed, it is the opponent who must prove this ground. b). However, the party presenting the witness must prove sanity in these two instances: (i) if the witness has been recently declared as of unsound mind by the court or by a competent physician (ii. is an inmate in an asylum or mental institution. 2. Persons medically sane may be considered as legally insane if at the time they are to be presented as witness, they are incapable of testifying truthfully or of being aware of the obligation to testify. Included here are drunks, those under the influence of drugs or alcohol, or suffering from some temporary mental disability. 3. Mental defectives such as idiots, imbeciles or morons and other mental retardates are not disqualified by this reason alone although this may affect their credibility 4. Deaf mutes are not disqualified so long as they are able to communicate in some manner which can be understood and, in case of the use of sign-language, the interpretation thereof can be verified. III. Mental Immaturity: these refer to children of tender age whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. A. Age is not the criterion but the intelligence and possession of the qualities of a witness B. The credibility of Children as witness take into account two possibilities: (i) children are prone to exaggerate and influenced by suggestions from adults and (ii) lack of motive to testify falsely C. Under the Rule On Examination of a Child Witness, it is provided that: a). Every child is presumed to be qualified to be a witness b) The court may however conduct a competency examination (voir dire examination) motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of

Disqualifications of witnesses: a). Mental incapacity or immaturity (Sec. 21, Rule 130, ROC); A. By reason of mental immaturity Rule 30, Sec. 21 incapacity or

- Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others; - Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. A mental retardate is not for this reason alone disqualified from being a witness. (People vs. Salomon, 1993) Requisites of competency of a child as witness: capacity of observation; capacity of recollection; and capacity of communication. (People vs. Mendoza, 1996) Section 21. Disqualification by reason of Mental Incapacity or immaturity. I. There are the two grounds for absolute incapacity. II. Mental Incapacity: those whose mental condition at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others.

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the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court. b). Marriage (Sec. 22, Ibid); B. Marital Disqualification Rule 130, Sec. 22

marital disqualification may still be invoked e. Marital disqualification is more concerned with the consequences. If the rule is not there, perjury and domestic disunity may result. - Privilege protects the hallowed confidences inherent in marriage b/w husband and wife and therefore guarantees the preservation of the marriage and further the relationship between the spouses as it encourages the disclosure of confidential matters without fear of revelation. Marrying the Witness An accused can effectively seal the lips of a witness by marrying the witness. As long as a valid marriage is in existence at the time of the trial, the witness-spouse cannot be compelled to testify even where the crime charged is against the witness person, and even though the marriage was entered into for the express purpose of suppressing the testimony. (Marriage for convenience) CASE: A filed a complaint against husband and wife for annulment of a contract by reason of fraud. (H&W both defendants). A subpoenaed the wife to be his hostile witness which is allowed in civil cases. When the wife received the subpoena, the husband filed a motion in court for the quashing of the subpoeana, on the ground that there is a violation of the rule on marital disqualification/spousal immunity. A told the court that this is not a case where the wife will be giving testimony as an adverse witness in favor of the plaintiff. So the rule on spousal immunity does not apply. Ruling of the Court: Spousal immunity applies. If the wife was allowed to testify as an adverse witness for the plaintiff, she might give testimony that he will harm her interest and that of her husband. So that there will be a violation of the spousal immunity. A conceded. A told the court now that if he cannot compel the wife to be an adverse witness, then he should be allowed to get the deposition of the wife, because under the Rules of Court when the deposition of a person is taken, it does not necessarily mean that the deponent will be used as a witness in court, since it is only a mode of discovery. Ruling of the Court: Even if the purpose is just to get the deposition of the wife the rule on spousal immunity applies. CASE: A son filed a complaint against his own father for recovery of property or some assets. The son asked her mother to testify in his favor. SC held

General Rule: During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse. Exceptions: - In a civil case by one against the other or, - In a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. The right to invoke this disqualification belongs to the spouse-party (Ortiz v. Arambulo, 8 Phil. 98) against or for whom the testimony is being proferred. It may be waived 1) By a failure to interpose timely objection, or 2) By calling the other spouse as witness (Ibid., People v. Francisco, 78 Phil. 694) The privilege could be invoked even if the spouse is testifying in favor of the spouse-party because damaging testimony may be elicited during the cross-examination. DIFFERENCE between PRIVILEGE AND MARITAL DISQUALIFICATION a. Privilege is applicable regardless of whether the spouses are parties or not - Marital disqualification is applicable only when one or both spouses are parties b. The privilege applies to testimonies on confidential communication only -Marital disqualification applies to testimony on any fact c. Marital disqualification ceases after dissolution of marriage -Privileged communication lasts even after the death of either spouse d. Even if the communication is not confidential, the

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that there will be a violation of the spousal immunity rule. Note: As long as there is a case INVOLVING the husband OR wife, the disqualification is absolute. Section 22. Disqualification by reason of marriage or the Martial Disqualification Rule. I. Statement of the Rule: During the marriage neither spouse ( i.e. the witness spouse) may testify for or against the other (i.e. the Party spouse) without the consent of the affected spouse ( i.e. the party spouse). II. Reason for the Rule A. Identity of Interest: hence compelling a person to testify against the spouse is tantamount to compelling the witness to testify against himself. B. To avoid the danger of admitting perjured testimony and to prevent the witness spouse from being liable for perjury. C. As a matter of public policy of preserving the marital relationship, family unity, solidarity and harmony. D. To prevent the danger of punishing the party spouse through hostile testimony, especially in cases of domestic troubles between the spouses. III. Requisites for Applicability A. One Spouse is a party to a case, whether civil or criminal, singly or with other third persons B. The spouses are validly married. These include voidable marriages as well as those where there is a presumption of a valid marriage in the absence of a marriage contract. 1. Bigamous marriages and common-law relationships are excluded. 2. The reason behind or purpose behind the marriage is immaterial, as when the marriage was intended precisely to prevent one from testifying C. The marriage is subsisting at the time one is called to testify against the other in that it has not been dissolved by death or by law. Thus the prohibition is not perpetual. D. The case is not one against the other

E. The consent of the party spouse has not been obtained nor has he waived the rule in any other way. IV. Form of Prohibited Testimony or When a Violation Exists A. When the spouse is actually called in court to testify as a witness to facts B. When the witness is asked to submit objects, or documents or other evidence in court even if not actually called to testify C. When a third person is presented as a witness and is asked to divulge declarations or information revealed to the third person by the spouses, which declarations or information affect the liability of the party spouse. 1. The revelation must be in confidence 2. If the declaration was made in the presence or hearing of another person, then there is no violation of the rule. V. Waiver of the Rule A. Expressly, or when the party spouse give consents B. Impliedly: (i) as when the party spouses interposes no objection to the presentation of the witness spouse (ii) when the party-spouse presents his/her spouses as his/her own witness (iii) When the partyspouse imputes the wrong doing to the other spouse, the latter may testify to rebut the imputation. VI. EXCEPTIONS: WHEN SPOUSES MAY TESTIFY AGAINST EACH OTHER A. In a civil case filed by one against the other. Examples: cases of annulment, legal separation, support, declaration of mental incompetency, separation of property. B. In a criminal case for a crime (i) committed by one against the other such as those involving physical assault and violence; Violation of RA 9262; economic abuse or (ii) against the direct ascendant or descendant of the other C. When the reason for the law has ceased. Where the marital and domestic relations are so strained that there is no more harmony to be preserved, nor peace and tranquility which maybe disturbed, the reasons based on such harmony and tranquility no longer apply. In such cases, the identity

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of interest disappears and the consequent danger of perjury based on identity of interest disappears. (The law ceases when the reason for the law ceases) c). Death or insanity of adverse party (Sec. 23, Ibid.) C. Dead Mans Statute Rule 130, Sec. 23 - Sometime called the Survivors disqualification rule Parties or assignor of parties to a case, or persons in whose behalf a case is prosecuted, against - An executor or - Administrator or - Other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring BEFORE the death of such deceased person or before such person became of unsound mind. Exceptions to the survivors disqualification rule: 1) Ordinary witnesses, who are not the plaintiff, assignor of plaintiff, or person in whose behalf the case is prosecuted may testify. (Francia v. Hipolito, 93 Phil. 968) 2) When the plaintiff is a corporation, the officers or stockholders thereof are not disqualified. (Lichauco v. Atlantic Gulf, et c., 84 Phil. 330) 3) When there is an imputation of fraud against the deceased, the plaintiff is not barred from testifying to such fraud. (Go Chi Gun v. Co Cho, 96 Phil. 622) 4) When the plaintiff is the executor, administrator or legal representative of the deceased, or the person of unsound mind, the defendant or defendants are free to testify against the plaintiff. (Tongco v. Vianzon, 50 Phil. 698) 5) When the defendant or defendants, though heirs of the deceased, are sued in their personal and individual capacities, the plaintiff may testify against them. (Go Chi Gun v. Co Cho, 96 Phil. 622) 6) When the survivor's testimony refers to a negative fact. (Mendezona v. vda. de Goitia, 54 Phil. 557)

7) When the survivor's testimony is favorable to the deceased. (Icard v. Marasigan, 71 Phil. 419) 8) The adverse party is competent to testify to transactions or communications with the deceased or incompetent person which were made with an agent of such person in cases in which the agent is still alive and competent to testify. But the testimony of the adverse party must be confined o those transactions or communications which were had with the agent. (Goni, et al., v. Court of Appeals, et al., 144 SCRA 231) How protection of the dead mans statute is waived: 1) By not objecting to plaintiff's testimony on prohibited matters. (Marella v. Reyes, 12 Phil. 1) By cross-examining the plaintiff on prohibited matters. (Tongco v. Vianzon, 50 Phil. 698) By calling witnesses to testify on prohibited matters. (Arroyo v. Azur, 76 Phil. 493)

2)

3)

4) When the plaintiff's deposition is taken by the representative of the estate or when counsel for the representative cross-examined the plaintiff as to matters occurring during the deceased's lifetime. (Goni, et al., v. Court of Appeals, et al., 144 SCRA 231) CASE: Mr. D approaches Mr. C to borrow P100,000 to be paid next year. Mr. C gives Mr. D the amount. Mr. C did not require Mr. D to execute a promissory note. A day before the agreed date of payment, Mr. D died. Mr. C went to the executor of the estate of Mr. D and claims the payment of the debt. In this case, Mr. C is incompetent to testify as to the transaction he had with Mr. D. SEC. 23. DISQUALIFICATION BY REASON OF THE DEATH OR INSANITY OF THE ADVERSE PARTY. Parties, or assignors of parties to a case, or persons in whose behalf a case is prosecuted against an executor, administrator or representative of a deceased person, or against a person of unsound mind, upon a claim or demand cannot testify as to any matter of fact occurring before the death of the deceased person or before such person became of unsound mind.

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I. CONCEPT. This is also known as the Dead Mans Statute or Suvivorship Disqualification Rule. A. The disqualification is merely relative as it is based on what the witness is to testify on. B. The purposes are (i) to put the parties on equal footing or equal terms as to the opportunity to give testimony. If death has closed the lips of the defendant, then the law closes the lips of the plaintiff. (ii) to guard against the giving of false testimony. II. APPLICABILITY A. The case must be a civil case where the defendant is the executor, administrator or representative of the deceased person of person of unsound mind. But the rule will not apply to a counter-claim against the plaintiff. B. The subject is a claim or demand i.e. one that affects the real or personal properties: 1. The case must be a personal action for the enforcement of a debt or demand involving money judgment, or where the defendant is demanded to deliver personal property to plaintiff 2. The evidence of this claim is purely testimonial and allegedly incurred prior to the death or insanity. They are therefore fictitious claims. C. The subject of the testimony is as to a matter of fact occurring before the death or insanity. The testimony is the only evidence of the claim or demand. 1. The death/insanity maybe before or during the pendency of the case so long as it was before the death/insanity. 2. The matters prohibited are those made in the presence and hearing of the decedent which he might testify to if alive or sane, i.e. adverse to him, and not to those which maybe known from other sources. D. The rule does not apply to the following 1. To claims or demands which are not fictitious or those supported by evidence such as promissory notes, contracts, or undertakings, including the testimony of disinterested witnesses. 2. Fraudulent transactions of the deceased or insane person, as when the deceased was an

illegal recruiter or that he absconded with money entrusted to him 3. To mere witnesses 4. Stockholders/members of a juridical entity testifying in cases filed by the juridical entity 5. Claims favorable to the estate. III. The rule maybe waived expressly or by failure to object or byintroducing evidence on the prohibited matter Privileged communication (Sec. 24) [Applies to Rules on Electronic Evidence] 1) Marital privileged communication rule (Sec. 24 [a], Ibid.); 2) Lawyer-client privileged communication rule (Sec. 24 [b], Ibid.); 3) Doctor-patient privileged communication rule (Sec. 24 [c], Ibid.)(N/A in criminal cases) 4) Priest-penitent privileged communication rule (Sec. 24 [d], Ibid.); and 5) Public officer privileged communication rule (Sec. 24 [e], Ibid.) Disqualification communications. by reason of privileged

I. INTRODUCTION. Claim of Privilege. Witnesses may refuse to testimony on certain matters under the principle that the facts are not to be divulged or that they are privileged communications. These are facts which are supposed to be known only between the communicant and the recipient. A. Distinguished from incompetency. 1. A privilege is a rule of law which excuses a witness from testifying on a particular matter which he would otherwise be compelled to reveal and testify on. It is a legal excuse to prevent the witness

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from revealing certain data. The witness may claim this excuse. 2. An incompetency is a ground for disqualification which may be invoked by the opposing party to prevent a person from being presented as a witness. 3. Thus a person maybe competent as a witness but he may invoke a privilege and refuse to testify on a certain fact. B. Purpose of a Privilege: to protect the confidentiality or privacy of certain relationships. They are usually based on public policy which recognizes that the protection of certain relationship is more paramount than the testimony of the witness. C. Privileges are to be strictly construed. D. Who may claim the privilege: it may be asserted by the person for whose benefit the privilege was granted personally, or through a representative, or it may be claimed for him by the court. II. SOURCES OF PRIVILEGED COMMUNICATIONS 1. Those enumerated under Section 24 of Rule 130 of the Revised Rules of Court. 2. Those declared as privileged by specific provision of a law (Statutory Privileged Communications). 3. Those declared as such Communications by Jurisprudence. Marital Disqualification (Sec. 22) by Privilege

1. 2. 3. 4. 5.

the witness sought to be disqualified is the plaintiff Executor, administrator or representative of a deceased person, or the person of unsound mind is the defendant upon claim or demand against the estate of such deceased person or against such person of unsound mind as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. [no counterclaim is filed]

Privileged Communication (Sec. 24) The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latters direct descendants or ascendants; SECTION 24: DISQUALIFICATION BY REASON OF PRIVILEGED COMMUNICATIONS INTRODUCTION: The communications are privileged provided they took place within the context of the relationship protected by the rule and the person for whose benefit the rule may be invoked, has not revealed

Marital Communications (Sec. 24)

the communication to a third person. 1. Marital Privilege Rule 130, Sec. 24 (a) Husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage - EXCEPT: In a civil case by one against the other, or In a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants;

Covers all matters Covers only those regardless of source communicated by one spouse to another Applies marriage during the Applies during and after the marriage

A spouse must be a litigant A spouse need not be a litigant Invoked when a spouse is Invoked when the called to testify testimony appears to cover privileged matters

Requisites for dead mans statute (Sec. 23)

CASE: If the communication is made in front of the children of the husband and wife. Can the privilege be invoked? YES, if the children are still minors.

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Note: The assumption is any communication given by one spouse to the other is presumably confidential because there is no standard given in the Rules. Applications of the marital privileged communciation rule: 1) Every communication between spouses is presumed to be confidential. (Sexton v. Sexton, 129 Ia. 487; Wigmore, Sec. 2336) 2) Communications made in the presence of third parties are not confidential, unless the third person may be considered as an agent of the spouses. (Floyd v. Miller, 61 Ind. 224) 3) Communications overheard by third persons remain confidential as between the spouses, but the third person who overheard may be called upon to testify. (People v. Carlos, 47 Phil. 626) 4) Communications coming into the hands of third persons, whether legally or illegally, remain confidential as between the spouses, but the third person may be called upon to testify. (People, and Hammons, supra) But if the third person acquired knowledge of the communication by collusion and voluntary disclosure on the part of either of the spouses, he thereby becomes an agent of such spouses so that the privilege is claimable against him. (Ibid.) 5) Communications intended for transmission to third persons are not confidential. (U.S. v. Antipolo, 37 Phil. 726) Waiver of the marital privileged communication rule: The privilege is claimable by the spouse not called as witness, so that it its waivable only by him or her; and it is waivable by any act of such spouse which might be considered as an express or implied consent to the disclosure of the communication. (People v. Hayes, 140 N.Y. 484) 1. THE MARITAL PRIVILEGED COMMUNICATION DISQUALIFICATION RULE (SPOUSAL PRIVILEGE) I. RULE: The husband or wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage.

II. PURPOSE: same as the Marital Disqualification Rule as well as to encourage honesty and confidentiality betweens spouses. III. REQUISITES: 1. The witness is a lawfully married person, or is a party to voidable marriage or one which enjoys the presumption of validity. 2. The case is not between the witness and the latters spouse 3. The subject of the testimony is a communication made by and between the witness and the latters spouse 4. The communication marriage was made during the

5. The communication is confidential in that it was intended to be known or heard only by the other spouse and it was made precisely because of the marriage.

a). If the receiving spouses revealed to a third person, the communication ceases to be privileged b).If the communication was heard by a third person, the rules are as follows: i). If the spouses were aware of the presence of the third person, the communication is not confidential except if the third person: (i). is a minor child (ii). Or stands in special confidence to the spouses such as their agent ii). If the spouses are not aware, the communication remains confidential, but the third person may testify to what was heard. IV. FORMS OF COMMUNICATION: To communicate is to make known, to convey an idea or to inform of a message. The privilege is thus extends to all modes of communications whether oral, written or through conduct, which were intended by a spouse to convey a message. They include the following: 1. Those which are in the form oral expressions made directly and personally, or through some mechanical device such as through the phone; or written as in conventional letters or through the use of secret codes or through the internet or text messages.

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2. The sending of packages, or things of items symbolic of a meaning or intended to send a message, such as sending of b-day greeting cards, or of flowers. 3. Passive or silent acts or conduct intended to convey a message such as a nod or shake of the head, a finger put to the lips. 4. Silent or passive communications referring to facts or information which came to the knowledge of the witness-spouse by reason of the confidentiality of the marriage. Example: (i). a spouse cannot be made to divulge that in his presence and observation the husband cleaned a gun, or washed bloody clothes or counted wads of money, even if the husband did not explain his actions (ii). a married person cannot be made to divulge tattoos on the body of the spouse or of his mannerism or habits. However, acts not intended to be confidentially, such as acts within public view, or tattoos displayed publicly, are not confidential. Likewise, acts done in secret and hidden from the witness are not confidential. V. MISCELLANEOUS 1. The privilege may be claimed by either spouses, i.e. the communicating or recipient spouse (some opine it is only the receiving spouse who can claim) 2. The exceptions are the same as in the Marital Disqualification Rule. 3. The duration is perpetual 4. Distinctions from the Marital Disqualification Rule: a.) As to whether or not a spouse is a party to the case

- Any communication made by the client to him, or - His advice given thereon in the course of, or with a view to, professional employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity; - Privilege is owned by the client. It is he who can invoke the privilege. If the client waives the privilege, no one else including the attorney can invoke it. Hence it the client is asked on cross-examination of his communications to his lawyer and reveals the same there would be a waiver. There is also a waiver if the client does not object to the attorneys testimony. The attorney-client privilege may not be invoked to refuse to divulge the identity of the client, EXCEPT: (1) When a strong probability exists that revealing the name would implicate that person in the very same activity for which he sought the lawyers advice; (2) When disclosure would open the client to liability; (3) When the name would furnish the only link that would form the chain of testimony necessary to convict. (Regala vs. Sandiganbayan, 1996) LAST LINK DOCTRINE: Non-privileged information, such as identity of the client is protected if the revelation of such information would necessarily reveal the privileged information. It is enough that the client reasonably believed that the person consulted is a lawyer. Communications may refer to anticipated litigations or may not refer to any litigation at all. Privilege does not extend to communications where the clients purpose is the furtherance of a future intended crime or fraud

b). As to the scope of the prohibition c) As to the duration d) As to who can claim the protection of the rule 5. The waiver of the Marital Disqualification Rule does not include a waiver of the Marital Privilege Communication Rule. 2. Attorney-Client Privilege Rule 30, Sec. 24 (b) An attorney cannot, without the consent of his client, be examined as to

2. BETWEEN LAWYER AND CLIENT I. RULE: An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorneys secretary, stenographer, or clerk be examined,

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without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity II. REASON: The rule is grounded on public policy and the proper administration of justice. It is to encourage clients to make a full disclosure of all facts relative to a problem for which he sought the professional services of a lawyer, without fear or reservation that these facts will later be revealed especially if the nature of the facts are such that they might adversely affect his rights, property or reputation. This is to inspire confidence and thus it is also to enable the lawyer to give the appropriate advice or to undertake such action that will best serve the interest of the client. III. REQUIREMENTS A. There must be a lawyer-client relationship 1. The term lawyer refers to: (a). a member of the Philippine Bar in good standing acting in such a capacity, whether in active practice or not (b). non-lawyers allowed by law to appear as counsel pursuant to section 7 of Rule 118. ( But in localities where such members of the bar are not available, the court may appoint any person, resident of the province and of good repute for probity and ability, to defend the accused.) (c). Non-lawyers who misrepresent themselves as members of the bar in order to obtain the confidence of a person and believed as such by the latter. 2. Government prosecutors are not included but they are prohibited from making disclosures under penal laws, such as The Revised Penal Code under its provisions on Revelation of Private Secrets. 3. Lawyers of government agencies created to render legal assistance to the public are included, such as lawyers from the PAO and the CHR 4. The relationship maybe created by mutual consent at the initiative of the client, or is created by Order of the Court as in the case of a counsel de officio. a). the relationship exists whenever the client consults with a lawyer in relation to a matter which needs the professional services of the lawyer be it for advice or representation in a future or present legal action.

b). it does not matter that no fee was paid, or that the lawyer later refused to represent the client or that he withdrew from the action. c). however the rule does not cover situations where the lawyer was consulted merely as a notary B. There must be a communication by the client to the lawyer or advice given thereon by the lawyer. 1. The communication must be for the purpose of creating a lawyer-client relationship or was given in the course of such relationship. 2. The term communication includes the following: a). Any data or information supplied by the client personally or through confidential agents, either to the lawyer or to the lawyers employees. This may have been supplied through any form of oral or written communication. b). All documents, objects or thing delivered to the lawyer except those the existence and/or contents of which are or maybe known. Thus, titles to land, contracts, replycommunications, bank pass books, dishonored checks, cannot be considered as confidential. c). Acts or conduct by the client, such as physical demonstration of actions or events, or giving a sample of his handwriting to show he is not the falsifier. d). The advice given by the lawyer to the client orally or though any mode of written communication. e). The identity of the client. As a matter of public policy a lawyer may not invoke the privilege and refuse to divulge the name or identity of the client except in the situation when the clients name has an independent significance such that disclosure would reveal the clients confidences. The identity may not be disclosed in the following situations: where a strong probability exists that revealing the clients name would implicate the client in the very activity for which he sought the lawyers advise Where the disclosure would open the client to civil liability (iii). Where the government prosecutors have no case against the client and compelling the

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lawyer to reveal his clients name would furnish the only link that would form a chain of testimony necessary to convict the client of a crime. (iv). Where it is the identity of the client which is sought to be confidential ( Regala vs. Sandiganbayan: 262 SCRA 122)

B. The rule maybe waived by the client alone, or by his representatives in case of his death, expressly or by implication. 1. If he is a party to a case and his lawyer was called as a witness by his opponent: (a) by failure of the client to object to the questions concerning the privileged communications or (b) having objected on direct, the client cross-examines on the privileged communications. 2. When the client presents evidence on the privileged communication, the opposing party may call on the lawyer to rebut the evidence. 3. When the client calls on the lawyer to testify on the privileged communication 4. In case of a suit by and between the lawyer and the client, the rule does not apply 5. When the lawyer is accused of a crime in relation to the act of the client which was the subject of their professional relationship, he may reveal the privileged communications to prove he had nothing to do with the crime. C. If the lawyer, as witness to a case which does not involve the client, divulges confidential communication without the prior consent of the client, he may be liable criminally, civilly and administratively. 3. Physician-Patient Privilege Rule 30, Sec. 24 (c) A person authorized to practice medicine, surgery or obstetrics cannot in a CIVIL CASE, without the consent of the patient, be examined as to Any advice or treatment given by him or Any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in capacity, and which would blacken the reputation of the patient; This privilege belongs to the patient, so that it is only he that can claim or waive it. It is waivable expressly or impliedly. It is impliedly waived like any other privilege rule. (Penn. Mutual Life Ins. Co. v. Wiler, 100 Ind. 92) The waiver may be by a contract as in

(e). Those covered by the Doctrine of Work Product. The pleadings prepared by the lawyer or his private files containing either facts and data obtained by him or resulting from his own investigation or by any investigator hired by him; and/or his impressions or conclusions whether reduced in writing or not, about the client or the clients cause. A lawyer may not therefore testify that his client, charged with theft of silver coins, paid him with silver coins. 3. The following communications are not covered and the lawyer may reveal them: a). those intended to be made public b). or intended to be communicated to a third person c). intended for an unlawful purpose or for a future crime or act d). received from a third person not acting in behalf or as agent of the client e). those made in the presence of third persons f). those which are irrelevant g). the effects of a crime as well as weapons or instruments of a crime. h). opinions on abstract questions or hypothetical questions of law C. The communication was confidential D. The consent of the client to the disclosure was not obtained

IV. Duration and Waiver A. The duration is perpetual even after the lawyerclient relationship has already ceased.

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medical or life insurance When the patient answers questions on cross examination, there is waiver Under Rule 28 ROC, the court may order a party to submit to a physical or mental examination, so long as the mental or physical condition is in dispute. The party examined may request a report of the examination. By doing so, he waives any privilege he may have in that action regarding the testimony of every other person who has examined him in respect of the same examination. This privilege does not apply when the doctor is presented as an expert witness and only hypothetical problems were presented to him. (Lim vs. CA, 1992) PHYSICIAN-PATIENT I. RULE: A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient. II. PURPOSES: (a). To inspire confidence in patients and encourage them to make a full disclosure of all facts, circumstances or symptoms of their sickness, without fear of their future disclosure, so that a physician can form an opinion and be enabled to safely and effectively treat the patient. (b).To protect the patients reputation. III. REQUIREMENT A. The case is a civil case 1. Public policy looks to the maintenance of peace and order, upholding the law, the acquittal of the innocent and punishment of the guilty, as more important than the purposes of the privilege. 2. It is not required that the patient is a party to this case. B. The witness presented is a person authorized to practice medicine, surgery or obstetrics.

1. The witness maybe a general practitioner or a specialist in any of the fields of medicine. 2. Included are psychoanalysts, psychologist, psychotherapists. Dentists and midwives are not included, so also with nurses unless they acted as agents or assistants of the physician. 3. Where the person is not authorized but represented himself to be so and which was believed by the witness, it is believed that the privileged may also be claimed. 4. The relationship of physician-patient may have been created by mutual consent between him and the patient or with any person acting in behalf of the patient, or was created by exigent emergencies as when services were rendered to a patient in extremis. C. The physician-witness is asked to divulge a communication by and between him and the patient. 1. The communication was made while the witness was acting in his professional capacity i.e he was attending to a person as a patient and to whom the physician-witness rendered curative, palliative or preventive treatment. 2. The privileged communication include: a). all information divulged by the patient or by one acting for the patient, if these were essential for the physician to act in a professional capacity, but matters which are not essential but believed in good faith by the patient to be essential and divulged in good faith are covered. b). all facts learned by the physician from his own interviews, observations, diagnosis, examinations or operation conducted upon the patient. c). the nature of the treatment given, his opinion or advice given to the patient, including oral prescriptions (written prescriptions for medicines are intended to be read by pharmacist and third persons and are not confidential) d). the clinical records, x-ray plates, radiographs, and other documents pertaining to the treatment, diagnosis, illness or process of ascertaining the illness of the patient. D. The communication is confidential and was not intended to be known by third persons except to agents of the physician.

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QUESTIONS: 1. Are communications confidential if these were heard by third persons by reason of lack of privacy of the clinic or hospital facilities? 2. Is the fact still confidential if a patients body part or blood was sent by the physician for examination and study by a specialist/technician in a laboratory? ( I submit that that the specialist acts as agent of the physician and he may not also be compelled to disclose his findings). E. If disclosed the information would blacken the reputation of the patient. It causes disgrace or embarrassment or puts him in a bad light. Example: disclosure that the patient is a sexual pervert, or suffers from delusions or from a disease. IV. NON-APPLICABILITY OF THE RULE A. Criminal cases B. When the person testifying is not the physician. However the patient himself can not be compelled to testify on the privileged communications. C. Where the physician is presented merely as an expert and is testifying upon hypothetical questions. D. Autopsies conducted to ascertain the cause of death of a person E. Court ordered examinations F. When the patient, as party to a case, testifies as to his own illness or condition, he opens the door for the opposing party to rebut the testimony by calling on the physician. G. When the patient, as party to a case, calls on the physician as his own witness. H. In a malpractice suit against the physician by the patient. I. Where there is a Contractual Waiver in that the patient agreed to undergo an examination and make known the result thereof as a condition to the grant or enjoyment of a privilege, benefit or employment. Examples are the medical examinations required to enter the AFP or to obtain an insurance policy. J. Communications made in the presence of third persons. K. Communications to commit or to conceal a crime as when a patient undergoes a face lift to mislead the police or the victim in identifying him.

4. Priest- Penitent Privilege Rule 30, Sec. 24 (d) A minister or priest cannot, without the consent of the person making the confession, be examined as to - Any confession made to or - Any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs PRIEST/MINISTER- PENITENT I. RULE. A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs. II. CONCEPT and PURPOSE : This is often referred to as the Seal of the Confessional. A priest or minister or similar religious person cannot be compelled to testify and divulge matters which were revealed to him by way of a confession. The purpose is in recognition of religious freedom and to protect the practice of making confessions. III. REQUIREMENTS: A. The witness is a priest or minister or similar religious personality. 1. The term priest or minister should not be given a restrictive meaning but should include any religious personality of the same or similar stature as a priest or minister. 2. Question: As worded the rule applies only to religious personalities of the Christian religion. Should the rule be interpreted to include nonChristians? Thus in Buddhism, confessing one sins to a superior is part of the Buddhist practice. B. The witness received the confession of a penitent 1. A confession is the revelation of acts or omissions considered as sins or violations of religious laws/ belief or teachings, and which may at the same time be considered as violation of laws of the state, which may subject the confessant to criminal or civil liability or both. 2. The revelation of wrong doings must therefore be penitential in that the purpose is to seek

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spiritual absolution, spiritual assistance, or healing of the soul. If the purpose is otherwise, then it is not privileged, as when all that the person was to unburden himself from guilty feelings. 3. The confession was made in obedience to some supposed duty or obligation. 4. The court may inquire preliminarily from the priest /minister as to the state of mind of the confessant i.e whether it is penitential or not. 5. The confession is one given directly and personally to the priest/ minister and in secrecy. Public avowals are not included. C. The confession must have been made to the priest/minister in his professional character in the course of the discipline of the church to which the priest/minister belongs. 1. The church or denomination must recognize the practice of making confessions and authorizes said priest/minister to receive and hear confessions. III. Observations: 1. Must the confessant belong to the same church as the priest/minister? 2. If the penitent confession be divulged? consents, may his

To protect legitimate police operations against criminals To protect the safety of the informant and his family III. REQUIREMENTS A. There must be a confidential official communication, which includes: 1. all information concerning the circumstances of the commission of a crime such as the identity of the criminals, their whereabouts, their accomplices, the date, time and place of commission, their modus operandi 2. the identity of the recipient of the communication e.g the undercover agent or handler 3. the identity of the informant 4. It has been held that official documents of diplomatic officials, ambassadors and consuls are included. B. The communication must have been made to a public officer. 1. The public officer refers to those whose duty involves the investigation or prosecution of public wrongs or violations of laws. They pertain mostly to law enforcement agents and prosecutors, as well as those in charge of the enforcement of the law violated. C. The disclosure would affect public interest. IV. RULE ON THE INFORMERS IDENTITY A. Concept of the Informants Privilege- a privilege granted to the government to withhold from disclosure, the identity of confidential informants. The purpose is to protect the governments sources of information and in this way facilitate law enforcement by preserving the anonymity of individuals willing to furnish information. B. Informants covered (informers are also called coordinating individuals (or CIs), citizens, or assets; in American police parlance they are called nose, snitch, or stool pigeons) 1. Walk-in or phone-in informants e.g. those who report crimes in person or by calling police hot lines or individual police officers

5. Public Officer Privilege Rule 30, Sec. 24 (e) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. PUBLIC OFFICER. I. RULE: A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. II. PURPOSES: To encourage citizens to reveal their knowledge about the commission of crimes

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2. Deep Penetration Agents or those embedded who actually join criminal organizations/gangs by pretending to be one of them but are secretly gathering information which they secretly relay to the law enforcement agents 3. prisoners 4. Regular informants or those who regularly report on suspected criminals and their activities. They may be acquaintances, neighbors or friends of the criminals themselves. They are known only to their agent handler. C. When the informant may be compelled to be presented in court or when his identity maybe revealed 1. Per the American case of Roviero vs. U.S (353 U.S. 53) in 1957 which ruled thus: when it appears from the evidence that the informer is also a material witness, is present with the accused at the occurrence of the alleged crime, and might also be a material witness as to whether the accused knowingly and intentionally delivered drugs as charged, his identity is relevant and maybe helpful to the defendant, it may said that disclosure is proper in the following situations: a). when his identity is known to the accused not necessarily by name but by face and other physical features, unless he is being also used in another operations b). when it is relevant and helpful to the defense and is essential to a proper disposition of the case c) when it is claimed that there was an entrapment where he participated as a decoy or agent provocateur and the said entrapment can not be established without his testimony 2. If the informant disclosed his identity to persons other than the law enforcement agents, this maybe basis for the accused to demand disclosure. STATUTORY PRIVILEGED COMMUNICATIONS 1. Code 2. The circumstances of identity and personal Contents of a Ballot under the Election Stool pigeons or snitches among

4. The records of cases involving Children in Conflict with the Law under the Juvenile Justice Law if (i) the case against them has been dismissed (ii) they were acquitted or (iii) having been convicted and having undergone rehabilitation, they were eventually discharged 5. Trade secrets Property Law under the Intellectual

6. Identities and whereabouts of witnesses under the Witness Protection Program 7. Identity of News Informants under R.A. 1477 (The Shield Law) 8. Bank Deposits under the Secrecy of Bank Deposits law except under the following: a). Upon the prior written permission of the depositor b). In case constitutional officers of impeachment of

c). When the deposit is the subject of the case d). Upon Order of the Court e). In cases involving public officers for offenses in relation to their office or for violation of the Anti Graft and Corrupt Practices Act f). When the amount exceeds the limit set under the Anti Money Laundering Law g). Compromise of taxes h). Under the Anti-Terrorism Law/Human Security Law 9. Offers and admissions during Court Annexed Mediation proceedings under RA 9295. 10. DNA Profiles and all the results or other information obtained from DNA testing which testing was court- approved / ordered, subject to certain exceptions (Sec. 11 of the Rule on DNA Evidence promulgated by the Supreme Court and effective on October 15, 2007) PRIVILEGED JURISPRUDENCE COMMUNICATIONS UNDER

3. Minors who are victims of crimes under the Child Abuse Law

1. EXECUTIVE PRIVILEGE.

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A. This is of American Origin but was adopted by the Supreme Court when it decided the case of Senate of the Philippines vs. Eduardo Ermita ( April 20, 2006) B. Concept: It is a power or right that the president or other officers of the executive branch assert when they refuse to give congress, the courts, or private parties, information or records which have been requested or subpoenaed, or when they order government witnesses not to testify before congress. It is essentially the exemption enjoyed by the President from disclosing information to congressional inquiries or the judiciary. C. Purpose and basis. It is based on the principle of separation of powers. It is recognized with respect to certain information the confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive or those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities. It is premised on the fact that certain information must, as a matter of necessity, be held confidential in pursuit of public interest. D. Matters Covered: As a rule, information must be of such high degree as to outweigh public interest. Based on Philippine Jurisprudence ( Almonte vs. Vasquez (1995), Chavez vs. PCGG (1995), Chavez vs. Public Estates Authority (2002) and Senate vs. Ermita (2006), the following are covered: 1. State secrets regarding military, diplomatic and other national security matters. 2.Closed Door cabinet meetings; presidential conversations, correspondence and discussions with the cabinet and presidential advisers under the principle of Confidentiality of Executive Deliberations 3. Information in the investigation of crimes by law enforcement agencies before prosecution of the accused. E. Limitations to the Claim ( Per Senate of the Pres. Vs. Ermita) 1. It is not absolute. The privilege is recognized only in relation to certain types of information of a sensitive character. A claim is valid or not depending on the ground invoked to justify it and the context in which it is made. 2. A claim of privilege, being a claim of exemption from an obligation to disclose information, must be clearly asserted.

3. Only the President may personally assert it or claim it through the Executive Secretary.

Evidentiary Privilege- entitles the privilege holder to withhold competent evidence and, in some circumstances, to prevent others from revealing such evidence. The privilege is granted when the protected interest is considered important enough to outweigh the concern with determining the truth. The privilege holder need not be a party to the proceeding in question. Unlike a disqualification, a privilege can be waived. Privileges are often intended to preserve confidential relationships.

Executive Privilege- members of the executive branch of government cannot legally be forced to disclose their confidential communications when such disclosure would adversely affect the operations or procedures of the executive branch. II. CONFIDENTIALITY OF JUDICIAL DELIBERATIONS 1. The working papers of a judge, such his personal notes and researches on cases heard by him, his written instructions to the staff, are considered his personal or private property and may not be compelled to be disclosed. 2. Discussions among members collegial court are likewise confidential. 6) Parental and filial testimonial privilege rule (Sec. 25, Rule 130(f) Note: Conviction of a crime does not disqualify a person from testifying but may disqualify him from being discharged as a state witness. (Sec. 9 [e], Rule 119, ROC) Note: This is not an exclusive enumeration of the Rules on privilege communication. Other examples are: a. Under Rules on Alternative dispute Resolution, information or communication given by parties who participate in ADR is confidential b. Information derived by editors, reporters and publishers c. The negotiations under the Witness Protection Program (Accused discharged as state witness) A person cannot be compelled to testify against of a

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his parents, other direct ascendants, children or other direct descendants. N.B. There is an inconsistency between the ROC and Family Code with respect to this privilege. ROC prevails since it took effect in 1989 and is made by the SC. While the Family Code took effect in 1989, and though substantive is procedural in character. Who are not covered and may be compelled to testify: 1) Relatives by affinity. 2) Brothers and sisters. 3) Aunts, uncles, nephews, nieces. 4) Cousins of whatever degree. 5) Other collateral relatives. Note: Parental and filial testimony dies not prohibit voluntary testimony or compelled testimony against relatives by affinity or collateral relatives. Note: It is believed that adopted and adopter are covered by the parental and filial testimonial privilege rule but only insofar as the parent and child is concerned. It does not extend to the direct ascendants of the adopter because the adoptive relation is between the adopter and the adopted only. The reason for this opinion is the rationale behind the privilege, which is to preserve harmonious relations between parent and child which could be ruptured through testifying in court. Furthermore, perjury may result because the parent or the child may give false testimony to protect the other. 2. TESTIMONIAL PRIVILEGE Sec. 25 . Parental and filial privilege. No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants. (20a) TESTIMONIAL PRIVILEGE I. RULE: Sec. 25. Parental and Filial privilege.No persons may be compelled to testify against his parents, other direct descendant, children or other direct descendants. A.. The privilege maybe claimed only by the witness in any case whether civil or criminal but it may be waived as when he volunteers to be a

witness. B. However, by way of an exception, Article 215of the Family Code provides that a descendant may be compelled to testify against his parents and grandparents, if such testimony is indispensable In prosecuting a crime against the descendant or by one parent against the other. SOURCES OF A PARTYS EVIDENCE Generally the evidence of a party are those obtained and/or supplied from his own side. However evidence may be taken from the opposite party especially those which the latter does not voluntarily present because they are adverse to him. They are in the form of (i) Admissions (ii) Confessions and (iii) Declarations against Interest. 3. ADMISSIONS AND CONFESSIONS Sec. 26 . Admission of a party. The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. (22) Sec. 27 . Offer of compromise not admissible. In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror. In criminal cases, except those involving quasioffenses (criminal negligence) or those allowed by law to be compromised, an offer of compromised by the accused may be received in evidence as an implied admission of guilt. A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to lesser offense, is not admissible in evidence against the accused who made the plea or offer. An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury. (24a) Sec. 28 . Admission by third party. The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. (25a) Sec. 29 . Admission by co-partner or agent. The act or declaration of a partner or agent of the party within the scope of his authority and during the existence of the partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. (26a)

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Sec. 30 . Admission by conspirator. The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act of declaration. (27) Sec. 31 . Admission by privies. Where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former. (28) Sec. 32 . Admission by silence. An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him. (23a) Sec. 33 . Confession. The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him. (29a) 3. ADMISSIONS and CONFESSIONS ADMISSIONS: Section 26. The act, declaration, or omission of a party as to a relevant fact maybe given in evidence against him. I. Concept of Admissions. The voluntary acknowledgement made expressly or impliedly by a party to a case or by another by whose statement the party is bound, against his interest, of the existence or truth of such fact in dispute, material to the issue. By this meant that a party to a case performed an act, made a declaration/statement whether oral or written, or omitted to do something, which is contrary to his cause of action or to his defense, and which may therefore be used as evidence against him. II. Kinds

principle of Admissions.

Vicarious

Admissions

or

Adoptive

D. As to form: (i) By an act or conduct (ii) Declaration either oral or written or (iii) through an omission E. As to their effect: (i) Against Interest or (ii) Self serving admissions III. Reason for the Rule: Presumption of truth in the admission in that no person would do an act or declare something which is contrary to his own interest unless such act or declaration is true. IV. Requirements for Admission 1. It must be relevant to the issues in the case 2. It must be express, certain, definite and unequivocal. A declaration which goes: I am not sure if I still owe money to X or I do not recall having uttered those words or did the act, Maybe I was in error, are not admissions. 3. Must be an admission of a fact, not an expression of an opinion 4. Must not be self-serving (Self serving admissions are those made to favor a declarant) because: (a). they are hearsay i.e. they are testified to by person who have no personal knowledge of the truth of the declarations (b) they are inherently untrustworthy Examples are those where a person disclaims liability or creates a right or a defense in his own favor. it would open the door to fraud, fabrication of testimony and commission of perjury. Examples: Affidavits; entries in diaries; selfpraises

A. As to where it is made: (i). Judicial ( if made in the proceedings of the case where it is to be used as evidence) or (ii). extra judicial (if made outside the proceedings of the case) B. As to how made: (i) Express or (ii) Implied C. As who made the admission: (i) By the party to the case either as the offended party or accused; or as the plaintiff or defendant (ii) Third person due to the

5. It must have been made freely and voluntarily V. Evidentiary Value: 1. Either as independent evidence to prove a fact or 2.For purposes of impeachment

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Example: Defendant files an Answer claiming he has fully paid his obligation. Plaintiff presents W to testify that Defendant borrowed money from him to purposely pay off defendants debt to plaintiff, such testimony by W is either to prove: (i) the existence of an unpaid money to plaintiff and/or (ii) to destroy defendants credibility as to his defense. VI. How to prove. An admission may be proved by the testimonies of those who heard the oral statement or to whom it was given, or who saw the act, and by presenting the written declaration itself. VII. Examples of Admission By Conduct: An employees act of tendering her resignation immediately after the discovery of the anomalous transaction is indicative of her guilt as flight in criminal cases. Resignation is not a way out to evade administrative liability. Flight is indicative of guilt: The guilty fleeth while no man pursueth but the innocent is as bold as a lion ( Proverbs) but the reverse is not true: i.e. that non-flight is indicative of innocence. Disguise or sudden unexpected change of address, are admissible to prove guilt. Unexplained delay is an admission of lack of merit as in: (a) claim of self defense (b) of a cause of action or defense Sending/giving an apology (gift-offerings), asking for forgiveness, are admissible as proof of guilt or fault But repair of vehicles involved in a collision is an exercise of a right and not an admission of fault. The act of a lessor in repairing the leased tenement is an implied admission that he is the party with the obligation to make repairs and not the lessee. OFFER OF COMPROMISE I. CONCEPT: It is in the nature of a proposal to give or make concessions to another in exchange for the withdrawal or dismissal of a pending case, or to prevent a litigation from arising. It is most often called Areglo or Out of court settlement. II. RULE IN CIVIL CASES per Section 27. An offer of compromise is not an admission of liability or that anything is due and is not admissible in evidence.

A. Reason: It is the policy of the law to encourage the parties to settle their differences peacefully without need of going to the courts and in keeping with the trend to settle disputes through alternative dispute resolutions, as well as to unclog the docket of the courts. B. The following embody this policy. 1. Under the Local Government Code which established the Barangay Courts and requires that cases be referred first to it for possible settlement before they are elevated in court. 2. The Pre-Trial where one of the subject matter is the possibility of the parties arriving at a an amicable settlement 3. The provisions allowing for a cooling-off period between members of the family who are the parties involved 4. R.A. 9295 on Compulsory referral of cases for Mediation a). This is called Court-Annexed-Mediation: which is a process of settling disputes with the assistance of an acceptable, impartial and neutral third party called a mediator. The mediator helps parties identify issues and develop proposals to resolve their dispute. Once the parties have arrived at a mutually acceptable arrangement, the agreement becomes the basis for the courts decision on the case. C. Exceptions: When the offer is admissible in evidence 1. When the offer contains an admission of an independent fact. Examples: a). X writes Y demanding payment of a debt. Y answers and offers to pay half and the other half within an extended period plus an additional interest, if X foregoes suing him because he also has to pay off his debt to Z. In a suit by Z against Y, such offer of Y to X may be used in favor of Z if Y denies liability. b). X sues Y for failure of Y to deliver the jewelry subject of a sale. Y offers during the Pre-Trial that he will deliver the jewelry in two months after he has redeemed them from Z and if the case is withdrawn, he will pay additional damages to X. If Y later files a theft case against Z over the jewelry, his offer in the civil case is admissible.

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2. When the offer contains an admission of liability, such as the existence and correctness of the amount. Examples: a). P demands of D to return money received by D as consideration for goods which D did not deliver. D offers to deliver within a certain period of time provided P foregoes with the damages. D claims he has not intention of fooling P as he suffered temporary business reveres. The offer is admissible against D. b). P demands P to leave the house for unpaid rentals. P asks he be given 3 months extension to pay as his money has not yet arrived. He later denies having unpaid rentals. In civil cases, an offer of compromise is inadmissible regardless of the cause of action. In criminal cases, the general rule is an offer of compromise is admissible. However, it is inadmissible under the following cases: 1. 2. 3. 4. 5. 6. quasi-offenses (criminal negligence) cases allowed by law to be compromised (e.g. BIR can compromise tax cases) plea of guilty later withdrawn unaccepted offer to plead guilty to a lesser offense offer to pay or payment of expenses occasioned by an injury [the offer is made only to avoid the consequences of litigation]

A. Offers contemplated: are those which are made out of consciousness of guilt, where the accused acknowledges doing the act or incurring the omission and desires to escape punishment by offering to buy off the complainant. Those made to avoid embarrassment, or inconveniences, or to buy peace of mind, are not implied admissions of guilt. B. Reason for the Rule 1. As a matter of public policy, it is to discourage the accused from preventing the prosecution of crimes and punishment of the guilty. The object of criminal prosecutions is to uphold the law and discourage people from violation of the law which objectives may not be realized if the parties are permitted to decide when to pursue or not to pursue a criminal case. This refers to the penal liability of the accused. 2. But as to his civil liability, the parties may enter into a compromise. C. Exceptions: where an offer of compromise is not an implied admission of guilt 1. Where the law allows a compromise: a). Those cases covered by the CourtAnnexed Mediation under R.A. 9295 (Embodies the policy to encourage Alternative Dispute Resolution). There are certain criminal cases which must undergo the process of compulsory mediation wherein the parties are encouraged to find mutually satisfactory terms and conditions to put an end to their difference. A compromise is therefore allowed and maybe the basis for a dismissal of the criminal case. These criminal cases include: (i) The civil aspect of a prosecution for B.P. 22 (ii) The civil aspect of quasi-offenses (iii). Estafa, physical injuries, theft, crimes covered by the Rules on Summary Procedure and all others which are not expressly declared by law as not subject of compromise such as any act constituting violence against women and their children. b). Prosecutions under the NIRC where payment of the compromise penalty will be a ground for the non filing of a criminal case. c). Genuine Offers to Marry by the accused in crimes against chastity.

Note that the inadmissible offer to pay refers only to expenses occasioned by an injury. It does not include offers to pay other expenses. Ergo, an offer to pay for damages to property is admissible in criminal cases. Further note that an offer to pay for expenses other than those occasioned by an injury is inadmissible in civil cases. Though the 3rd paragraph of 27 excludes in civil cases offers to pay only for expenses occasioned by an injury, offers to pay for other expenses fall under the general rule that an offer to compromise in civil cases is not admissible. The exclusion in civil cases of offers to pay for expenses occasioned by an injury is merely a superfluity. Even if the exclusion was expressly applied to only criminal cases, an offer to pay for expenses occasioned by an injury is in the nature of an offer to compromise which is undoubtedly admissible in civil cases. The bottomline is: an offer to pay for any expense in civil cases is inadmissible. III. RULE IN CRIMINAL CASES: An Offer maybe received in evidence as an implied admission of guilt.

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2. Quasi-offenses which do not involve any criminal intent 3. Under the Good Samaritan law an offer to pay for the medical and hospital bills and similar expenses occasioned by an injury. This is to encourage people to help those who need immediate medical attention and because of the possibility that the offer to help arose from humanitarian concerns and not from guilty conscience. 4. Those made pursuant to tribal customs and traditions 5. Those which were not authorized by the party or made in his behalf but without his consent and/or knowledge. 6. Those where the party was induced by fraud or force or intimidation 7. Those which conscience did not arise from a guilty

B. Reason: (i) Fairness and (ii) Acts of third persons are irrelevant to the case involving the act of a party which is the subject of the case. C. Exceptions: when the conduct of a third person is admissible as evidence against a party to a case 1. In case of vicarious admissions 2. Under the Principle of Admission by Adoption

FIRST EXCEPTION: VICARIOUS ADMISSIONS 1. CONCEPT: These are admissions by one who, by virtue of a legal relationship with another, maybe considered as acting for and in behalf of the latter. These are acts, omissions or declarations by a person who is not a party to a pending case, but are however admissible as evidence against one of the parties. Their admissibility as evidence is based on the identity of interest between the stranger and the party concerned. II. KINDS: They are enumerated under Section 29 to 31. A. Admission by a co-partner, an agent, joint owner, joint debtor or one jointly interested. (Rule 29) 1. The rule as to co-partners is based on the identity of interest among the partners such that each partner is an agent of the other partners. The requirements are: a). The existence of the partnership must first be established by evidence other than the act or declaration. Proof includes formal documents such as: (i) the Articles of Partnership or registration papers filed with the appropriate government agency such as the SEC or DTI, (ii) by the contract of partnership, or (iii) by the acts of the partners, (iv). by the principle of estoppel. b). The act or declaration must refer to a matter within the scope of the authority of the partners, or that it relates to the partnership. Such as: obtaining a credit or loan or incurring of a liability for the partnership, such as borrowing money to add to the capital execution of a promissory note or execution of a similar contracts statements as to the financial condition of the partnership declarations as to the ownership of partnership properties

D. A withdrawn plea of guilty is not an implied admission of guilt. An offer to plead guilty to a lesser offense, if rejected, is not also to be considered as an admission. Both actions are rights provided by law and no unfavorable inference is allowed to be made there from. ADMISSIONS BY THIRD PERSONS RULE: Section 28. Admissions by a third party. The rights of a party may not be prejudiced by the act, declaration or omission of another.

I. INTRODUCTION. RES INTER ALIOS ACTA RULE A. Meaning: Every act or omission results to corresponding consequences which may be beneficial or harmful. The rule answers the question: Who are bound by an admission and who must bear the adverse consequences? It embodies the first part of the so called Res Inter Alios Acta Alteri Nocere Non Debet Rule (Things done between strangers ought not to injure those who are not parties to it, or transactions between two persons ought not to operate to the prejudice of third persons). The effects and consequences of an act or omission should be the sole responsibility of the actor himself and should not affect third persons who did not participate in the act or omission. A mans life, rights, fortune and property should not be affected by what other peoples conduct.

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c). It was made during the existence of the partnership. 2. Rule as to Agent-Principal. The agent is deemed an extension of the principal such that the act of the agent is the act of the principal. a). The requirements are similar to that among partners b). The relationship include: (i). Those expressly created by virtue of a grant of a General or Special Power of Attorney, or Letters of Administration and similar formal documents, or when professional services have been retained as in the case of a lawyer-client. (ii). Agency by Estoppel (iii). Agency By Referral: when one party expressly refers another to a specific third person in regard to a matter in dispute, the declaration of the third person binds the party who made the referral. In effect he made the third person his agent. Example: When the seller referred the buyer to a real estate agent/realtor/appraiser concerning the value of the property to be sold, then he is bound to sell at the price quoted by the agent/realtor/appraiser. 3. As to Joint Owners, they need not be equal owners. Joint debtors refer to solidary debtors. The requirements are similar to that among partners, agent-principal. B. Admission by a Co-conspirator. The act or declaration of a conspirator relating to the conspiracy, and during its existence, maybe given in evidence against the conspirators after the conspiracy is shown by evidence other than such act or declaration (Section 30). 1. The conspiracy has reference to conspiracy as a mode or manner of committing a crime which presupposes that a crime has actually been committed by two or more persons and the issue is whether these two or more persons maybe held equally liable. It therefore becomes relevant to determine whether the act or declaration by one can be used as evidence against a co-accused. The conspiracy includes both the anterior conspiracy and spontaneous /instantaneous conspiracy.

conspirator during the trial

3. Requirements: a). The existence of the conspiracy among the accused must first be established. (i). May be by direct proof or circumstantial evidence showing Unity of Intention or Purpose and Unity of Action. (ii). The act or declaration may be presented first subject to the rule on conditional admissibility i.e. proof of the conspiracy be presented latter, or the act or declaration may be admitted to prove the guilt of the declarant and not to prove the conspiracy. b). The act or declaration must relate to the conspiracy or common objective, such as: (i). the participation commission of the crime of each in the

(ii). The manner of achieving the objective (iii). Defenses to be made or relating to the escape (iv). Ensuing the successful execution of the plan. Ex: The killing of an approaching policeman by the look-out in a robbery, even if not agreed upon, but was necessary to prevent the discovery, is the liability of all the robbers. c). The act or declaration was made while the declarant was engaged in carrying out the conspiracy in that the conspiracy must still be in existence, and not when the conspiracy has ceased. A conspiracy ceases: (i) when the crime agreed upon has already been committed (ii) the accused were apprehended (iii) as to one who left the conspiracy and did not participate in its execution (iv) when the plan was abandoned. Thus: statements by one of the accused while in custody; acts done upon the arrest of the several accused, do not anymore bind the other. Examples: Statements given to the media after arrest binds only the declarant. The act of one in killing an arresting officer in order to escape binds him alone.

2. The act or declaration refer to those made extrajudicially and not to acts or declarations by a

4. The rule applies to a Conspiracy By Adoption: When one joins a conspiracy after its

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formation and he actively participates in it, he adopts the previous acts and declarations of his fellow conspirators which are admissible against him.

b). Hears a statement and latter essentially repeats it c). Utters an acceptance or builds upon the assertion by another

C. Admission by Privies: When one derives property from another, the act declaration, or omission of the latter, while holding title, in relation to the property is evidence against the former ( Section 31). 1. Privies are those who have mutual or succession of relationship to a property either by: (a) law, such as heirship or hereditary succession, or purchase in a public sale, or (b). by the act of the former owner, such as instituting an heir, legatee, or devisee, or naming a donee; or by (c). mutual consent between the former and present owner, such as by deed of sale. 2. Concept of the Rule: The present owner of a property acquires the property subject to the same burdens, obligations, liabilities or conditions which could have been enforced against the previous owner. 3. Illustrations of acts of the prior owner which bind the present owner: a). The previous acts of the owner alienating a portion of the property, or creating a lien in favor of a third person b). Contracts of Lease, mortgages c). Statements by the prior owner that he obtained the property by fraud, or that he has only a limited interest in the property SECOND EXCEPTION: ADOPTIVE ADMISSIONS I. CONCEPT: This refers to a partys reaction to a statement or action by another person when it is reasonable to treat the partys reaction as an admission of something stated or implied by the other person. The adoption may either be by positive conduct or by silence/ inaction. A. Effect: By adoptive admission, a third persons statement becomes the admission of a party embracing or espousing it. The statement or conduct by the third person is evidence against the party concerned. II. Adoption by Positive Conduct arises when a party either: a). Expressly agrees to or concurs in an oral statement by another

d). Replies by way of rebuttal to some specific points raised by another but ignores further points to which he or she has heard the other make e). Reads and signs a written statement made by another ( Republic vs. Kendrick Development Co., 498 SCRA 220) Example: Estrada vs. Arroyo 356 SCRA 108; 353 SCRA 452: In said case Estradas lack of objection or comment to the statements, proposals by Sen. Angara concerning Eraps leaving Malacanang, ( as narrated in the so called Angara Diaries serialized in the Phil Inquirer) such as the negotiations with the Arroyo camp, the points/conditions of his leaving the palace, were considered as evidence admissible against Erap to prove he acquiesced to his removal and that he voluntarily relinquished the presidency. The court further expounded on admission by adoption as being: (a) By conduct manifesting a partys belief in the truthfulness of the statement of a third person by expressly or implicitly concurring with it; or responding in such a way that manifests a the adoption of the statement (b) By a partys refusal to refute an accusatory statement that a reasonable person would refute under the same or similar circumstances III. Adoption by Silence/Inaction A. Rule: An act or declaration made in the presence or within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him. ( Section 32) B. REASON: This is based on the human and natural instinct to resist, rebut, deny or object to untrue statements about ones life, family, rights, property or interests. The failure to do so is an implied admission of the truth of the statement. QUI TACET CONSENTIRE VIDDETUR. Hence, he who remains silent when he ought to speak can not be heard to speak when he should be silent.

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C. REQUISITES for the application of the Rule. 1. That the party heard and understood the statement. a). The party must be at the place where the statement or act was made and must be within hearing distance or proximate to where the act was done, such that, in the event the party claims otherwise, it may reasonably be said that the party must have heard the statement, or that he saw the act. b). Hence if the party was intoxicated, or in a state of shock, or a deaf mute, or if the statement is muted by noise, or inaudible, or in a language not understood, or when the party was distracted, or his view was obstructed, then the rule will not apply. 2. The party was at liberty to interpose an objection. There was no duress or intimidation or fear of immediate harm arising from his objection. 3. The statement was in respect to a matter affecting his rights or in which he is interested and calling naturally for a comment. a). The statements or acts impute some wrongdoing or creates a liability against him, or subjects him to suspicion, or it would result to a diminution or injury to his rights or property, or reputation, or to his person or that of his family. b). Example: A party is caught in a very compromising situation or flagranti delicto with a person not his spouse, and is asked; what is the meaning of this?, but he makes no reply, then his silence will be evidence of wrong doing. 4. The facts are within his knowledge as a person is not expected to comment or react to matters about which he is ignorant. 5. The fact admitted or the inference drawn from the silence is material to the issue. a). Thus the silence of a man caught in possession of stolen articles is not admissible in a prosecution for physical injuries. D. Instances when silence is not an admission

3. When to comment would disturb a solemn proceeding such as a mass, a meeting, or court trial 4. When the circumstances of time, place, and occasion does not make it proper and appropriate for a party to comment. 5. When the matter is privileged. 6. There is no good reason to comment. 7. When the party is in a state of shock or in some similar mental state 8. The comment is made by strangers. E. Other Examples of Admissions by silence

1. Failure to reply to letters of Account is an admission of (a) the existence of the account and (b) the correctness of the account. 2. Failure to call an important witness is an admission that his testimony would be adverse. 3. But the failure of a witness to report immediately and to describe the malefactor at the earliest opportunity merely affects the accuracy but not the veracity of a witness

CONFESSIONS I - CONCEPT/RULE: The voluntary acknowledgement by a person of his guilt of the offense charged or of any offense included therein, may be given in evidence against him. (Section 33) A. CONFESSION Compared with Admissions. 1. As to concept and coverage: An admission is broader as it covers any fact so long as its adverse to the interest of the party. A confession is limited to the act of an accused acknowledging that he committed or participated in the commission of a crime. A confession is a specie of admissions. 2. As to form: An admission may be in the form of an act, declaration or omission, expressed or implied. A confession is always in the form of written or oral declaration, and is always expressed. 3. As to where admissible. An admission is admissible in evidence in both civil and criminal cases whereas a confession is admissible only in criminal cases.

1. Silence by a suspect who is under custody of law enforcement agents 2. Upon advice of counsel

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4. As to the author: an admission may be made by a party or by third persons. A confession is made only by the accused personally B. Evidentiary value: 1. Confessions are admissible against the confessant. They are evidence of a high order for the reason that no person in his right senses would admit his guilt or participation in the commission of a crime, knowing that it would subject him to punishment. He must be prompted by truth. 2. But for purposes of conviction, the confession must be corroborated by evidence of corpus delicti (body of the crime) pursuant to Section 3 of Rule 133. a). Corpus delicti, or the fact that a crime was committed, has two elements: (i) an injury or harm which was suffered by a person and (ii) the cause or origin thereof must be criminal in nature 3. As to oral extra-judicial confessions, they afford no conclusive proof of that which they state but merely present a prima facie case. It may still be proved they were uttered/made in ignorance, or levity or mistake. II. CLASSIFICATION OF CONFESSIONS A. Judicial: when the accused pleads guilty during the arraignment, or when the accused testifies and admits the offense. B. Extra Judicial which may either be custodial or non-custodial, written or oral. 1. Custodial: includes all situations where a person is under the custody of, or deprived of personal liberty by, public officials whose functions include the apprehension of criminals and/or investigation of crimes, who are often the law enforcement agents, as well as those tasked to enforce the law violated. a). The person may have been lawfully arrested by virtue of a warrant of arrest b). The person was arrested lawfully without a warrant c). The arrest is illegal d). The person voluntarily surrendered

e). The rule applies whether or not a formal charge has already been filed in court, or a crime is still being investigated and the person is merely a suspect. 2. Non-custodial: either the confessant is not in the custody of any person or is custody but the custodians are private persons, private security agencies, or of their employers, or even of public officials but who are not law enforcement agents, such as the Mayor or the Barangay Captain. III. REQUIREMENTS FOR ADMISSIBILITY A. That the confession must be voluntary i.e it was given freely, knowingly and intelligently. 1. This requirement applies to all kinds of confessions 2. The accused gave the confession of his own free will, with full understanding and knowledge of its consequences and that he was not coerced, pressured, forced, intimidated or improperly influenced, or subjected to third degree. a). The force or intimidation need not be applied personally to the confessant but to a third person so long as the purpose is to affect the will of the confessant and the giving of the confession is the condition for the force to stop. 3. The Test of Voluntariness involve two aspects: a). The susceptibility of the suspect to be influenced by fear or force considering his: (i) background (ii) intelligence (iii) education (iv) prior experience with the system (v) physical condition (vi) mental condition and (vii) coping skills b). Environment and Method of Investigation used which include considering (i) the location of the setting (ii) length of the questioning (iii) intensity (iv) frequency of the questioning (v) food and sleep deprivation and (vi) intimidating presence of officers 4. In the event the confession was due to an inducement, consideration, promise or exhortation, the following rules govern: a). The confession is voluntary if due to religious exhortation b). Voluntary if due to given due to material considerations or promise or reward of material or financial or any form of gain

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c). In case of a promise of immunity, it is involuntary if the promise was made by one who is in a position to fulfill the promise, such as the investigating officer or the complainant. But a promise by the police that he will get a lower penalty does not make the confession involuntary. d). But if the accused gave a confession as a condition for being discharged as a state witness but he later refused to testify, his confession is voluntary e) Involuntary if due to a promise or offer of a pardon by one who is in a position to work for it. 5. Admissibility of Confession obtained by Trickery or Deceit a. The general rule is that the use of artifice, trickery or fraud in inducing a confession will not alone render the confession inadmissible as evidence. For examples: those obtained by detective posing as prisoners or obtained by promise of secrecy and help to escape or by conversations between suspects and undercover agents are admissible. b. The Miranda rule does not apply because when a suspect considers himself in the company of cell mates and not officers, the coercive atmosphere is lacking. Miranda forbids coercion, not mere strategic deception by taking advantage of a suspects misplaced trust in one he supposes to be a fellow prisoner. c. But the rule is different when the suspect has already been indicted or arraigned. A. The Massiah rule based in the case of Massiah vs. U.S. states that once adversary proceedings have been commenced against an individual, he is entitled to counsel and the government may not deliberately elicit incriminating statements from him, neither openly by uniformed officers or by secret agents. i). The Massiah rule includes stimulated conversions to elicit incriminating evidence or any form of INDIRECT SURREPTITIOUS INTERROGATION ii). However, Massiah does not apply when a cellmate, who agreed to be an informer, merely listened to the suspect and did not initiate any conversation purposely to lead the suspect to talk. B. Additional Requirement for Custodial Confession to be admissible 1. The confession must be in writing

2. In a language known or understood by the confessant 3. It was given with the assistance of counsel, or that the right to counsel was properly waived ( in writing and with the assistance of counsel) and the confessant was properly Mirandized. a) The giving of the constitutional warnings must appear in the confession and in fact must preface the questioning b) The giving must be in a manner which communicates meaningful information to the confessant c) Counsel refers to a competent, able and independent counsel; one who is vigilant and aware of his responsibility as assisting counsel. He was either chosen by the accused or provided him by friends or relatives, or one appointed by the court upon Petition by the confessant or by one acting in his behalf d). If counsel as provided by the investigating officer, the counsel shall be deemed engaged by the confessant if he never raised any objection against the formers appointment during the course of the investigation and thereafter subscribed to the veracity of his statement before the administering officer. 4. It must be signed or thumb marked by him

IV. RULE As to Self Incriminatory Statements or Non Confessional Acts by persons in custody. 1. Signed Receipts of Property Seized are in admissible unless the accused was Mirandized. Under the 2002 Dangerous Drugs Law, the signing of the Inventory of Seized Articles by the accused is expressly declared to be not admissible as evidence against him. 2. Evidence based on re-enactments are also inadmissible unless the re-enactment was with counsel or the right to counsel was properly waived. 3. Facts voluntarily divulged to the media are admissible as admissions unless the media was in collusion with the police to elicit inculpatory/incriminatory statements, in which case the constitutional warning should first be given before any interview; or if the media was instructed to extract information as to the details of the crime.

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See as Examples: PP s. Endeno (Feb. 20, 2001) and PP v.s Taboga (Feb. 6, 2002) involving a taped confession sent to the media. 4. After the accused was properly informed of his rights, facts voluntarily divulged by him without being asked, are admissible, unless these statements were the result of some ploy or stratagem by the police, as in the case of the good cop-bad cop approach. 5. However, even if the confession is inadmissible, still the evidence may be admitted under other principles, notably: the doctrines of Inevitable Discovery; Independent Source, and Attentuation. V. PRESENTATION OF CONFESSION. 1. Through the officer who took the confession who shall identify the confession, the signature of the accused therein and his counsel if with the assistance of counsel, and who shall testify as to the giving of the constitutional warnings, and that the giving of the confession as voluntary. a) The presumption of regularity in the performance of duty cannot be availed of to assume the constitutional warnings were properly given. 2. Through the testimony of the person to whom the confession was handed, if it was not taken b the police, or to whom the oral confession was made. VI. PROOF OF VOLUNTARINESS A. The voluntariness of a confession is not to be presumed but must be proven by the prosecution. B. When the accused claims the confession was coerced or involuntary, the following may be considered as evidence of voluntariness: a). Failure of the accused to present convincing proof of duress other than the self-serving declarations b). Failure to complain to the administering officer c). Failure to show marks or physical evidence of force d). Failure to undergo medical examination for alleged injuries e). Failure to institute action against the erring officer

f). The confession is replete with details known only to the confessant g). statements Confessions contains exculpatory

VII. INADMISSIBLE CONFESSIONS: EFFECT THEREOF 1. A confession is inadmissible if in any of the following cases: (a) involuntary or coerced (b) there was failure to give the constitutional warning properly as to custodial confessions or if the latter was (c) uncounseled and right to counsel was not properly waived. 2. The inadmissibility is total even if the contents are absolutely true and in case of custodial confessions, the inadmissibility extends to all evidence derived there from under the Fruit of the Poisonous Tree Doctrine. VII. PERSONS BOUND BY A VALID CONFESSION A. As a rule the confession binds only the confessant following the Res Inter Alios Acta Rule . B. Exceptions: when a confession is evidence against third persons 1. When it was confirmed or ratified by the co-accused 2. When the extra-judicial confession is judicially confirmed 3. In case of interlocking confessions i.e. confessions made by two or more accused independently of each other and without collusion which are identical in their essential details. The effects are as follows: a). they are circumstantial evidence against the persons implicated therein, of his participation in the crime . Thus the identical confessions of 3 accused are admissible against X who was mentioned by all 3 as the master mind. b). circumstance or factor in gauging the credibility of the testimony of another accused and of witnesses c). Each confession is evidence against all confessants. 4. If it is a non-custodial confession given by a co-conspirator it may be admissible as an admission by a co-conspirator if it meets all the requirements therefore.

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Admissions and Confessions Admissions Rule 130, Sec. 26 - Any act, declaration or omission of a party as to a relevant fact may be given in evidence against him. Such admission may be received in evidence not only against the party who made it or his successors-in-interest but also against third persons. (Viacrucis vs. CA, 1986) The silence of an accused under custody or his failure to deny statements by another implicating him in a crime cannot be considered as a tacit confession of his participation in the commission of the crime. (People vs. Alegre, 1979) Self-serving evidence An admission favorable to the party making it. (Lichauco v. Atlantic Gulf & Pacific Co., 84 Phil. 342) a)Self-serving or favorable admissions made out of court not admissible: REASONS: 1) A man may be safely believed if he declares against his own interest, but not if he advocates his interest. (Lichauco v. Atlantic Gulf & Pacific Co., 84 Phil. 342) 2) It is excluded on the same ground as any hearsay evidence, that, the lack of opportunity for crossexamination by the adverse party. (National Development Co., v. Workmen's Compensation Commission, 19 SCRA 865) b. When self-serving admissions are admissible: If made in open court giving full opportunity to the adverse party to exercise examination. his right of crossor favorable

interest of the admitter. (otherwise it is a self-serving statement) Example: Flight is considered a disserving act, since it is prejudicial to the interest of the accused. Flight is considered as circumstantial evidence of the guilt of the accused. BUT non-flight cannot be used as evidence to prove his innocence, because that will be considered as an act that is favorable to the interest of the accused. Extra-judicial Confession vs. Admission A confession, as distinguished from admission, is a declaration made at any time by a person, voluntarily and without compulsion or inducement, stating or acknowledging that he had committed or participated in the commission of a crime. The term, admission, on the other hand, is usually applied in criminal cases to statements of fact by the accused which do not directly involve an acknowledgment of the guilt of the accused or of criminal intent to commit the offense with which he is charged. (U.S. v. Corrales, 28 Phil. 365) Admission by silence. a. An act or declaration made 1) in the presence and 2) within the hearing or 3) observation b. of a party who does or says nothing c. when the act or declaration 1) is such as naturally to call for action or comment if not true, 2) when proper and possible for him to do so, d. may be given in evidence against him. (Sec. 32, Rule 130, ROC arrangement and numbering supplied) Exceptions to the rule on admission by silence or instances where there is no admission by silence: 1) Where no good reason exists for the party to comment on the act or declaration (Veil v. Strong, 10 Vt. 455), as when the act or declaration was not specifically directed to the party who remained silent. (80 A.L.R., Anno., 1272)

Rule 129 Sec. 4 vs. Rule 130 Sec. 26 First is a JUDICIAL ADMISSION, which is conclusive upon the admitter whether in writing or oral. This applies to civil, criminal cases and even special proceedings. Second is an EXTRAJUDICIAL ADMISSION. Under this rule, the admission is admissible only if it is against the

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2) When the party had no opportunity to comment on the act or declaration. (People v. Ranario, 49 Phil. 220) 3) Where the act or declaration was made in the course of an official investigation. (People v. Tia Fong, 98 Phil. 609) 4) When silence is upon advice of counsel. (People v. Kozlowski, 115 A.L.R. 1505) Res inter alios acta alteri nocere non debet or res inter alios acta Rule (First Part of Rule) Statements made or matters accomplished between two parties cannot prejudice a third party. (Blanza v. Arcangel, 21 SCRA 4) The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. (Sec. 28, Rule 130, ROC) Exceptions to res inter alios acta: 1) When there is a rational similarity or resemblance between the conditions giving rise to he fact offered and the circumstances surrounding the issue or fact to be proved. (Cruz, et al., v. Court of Appeals, et al., G.R. No. 126713, prom. July 27, 1998) 2) In actions based on fraud and deceit, because it sheds light on the state of mind or knowledge of a person; it provides insight into such person's motive or intent; it uncovers a scheme, design or plan; or it reveals a mistake. (Cruz, supra) 3) (Vicarious Admissions)- The rights of a party may be prejudiced by the act, declaration or omission of another when between the party making the admission and against whom it is offered there exists a relation of: a) partnership; b) agency; c) joint interest; d) conspiracy; or e) privity. Exceptions to the rule that extrajudicial statements of an accused implicating a co-accused may not be utilized against the latter:

(1) the co-accused impliedly acquiesced in or adopted the confession by not questioning its truthfulness; (2) the accused persons voluntarily and independently executed identical confessions without collusion and without contradiction by the others present; (3) the accused admitted the facts after being apprised of the confession; (4) if they are charged as co-conspirators of the crime which was confessed by 1 of the accused and the confession is used only as a corroborating evidence; (5) the confession is used as circumstantial evidence to show the probability of participation by the co-conspirator; (6) the confessant testified for his codefendant; (7) the co-conspirators extrajudicial confession is corroborated by other evidence on record. (People vs. Raquel, 1996) Rule on admission by co-partner or agent: 1) The act or declaration of a partner or 2) agent within the scope of his authority and during the existence of the partnership or agency, 3) may be given in evidence against such party 4) after the partnership or agency a) is shown by evidence [(testimonial or documentary, which may be secondary evidence)] b) other than such act or declaration. 5) The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. (Sec. 29, Rule 130, ROC arrangement and numbering supplied)

Rule on admission by conspirator: 1) The act or declaration of a conspirator 2) relating to the conspiracy and during its existence,

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3) may be given in evidence against the coconspirator 4) after the conspiracy a) is shown by evidence (Circumstantial Evidence- cannot be proven by documentary evidence, since conspirators do not normally reduce their agreement in writing) b) other than such act or declaration. (Sec. 30, Rule 130) *This refers to extrajudicial acts and declarations of a conspirator and not to his testimony as a witness in the trial. (People v. Atencio, L-222518, Jan. 17, 1968) Rule on Admission by Privies Rule 130, Sec. 31 - Where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former Example: X, father of Z, while the former was alive, openly told his acquaintances, that the land where his house stood had already been sold to Y. Here, the declaration by X is not admissible against Z, the sole heir of Y, because the statement was made after X held title to the land. Second Part of Inter alios acta Rule (Similar Acts as Evidence) Rule 130, Secs. 34 - Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like. Confessions Rule 130, Sec. 133; Rule 115 (e); Art. III, Sec. 17, 1987 Constitution Declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein; may be given in evidence against him. Confession is evidence of high order: 1) There is no evidence of a higher quality than a confession, It represents the outward manifestation of a man. Unless, therefore, the confession is nullified by evidence of duress, the same is admissible as an

evidence of guilt of a high quality. Garcia, 54 Phil. 329, 358)

(People v.

2) If a confession be true and voluntary, the deliberate act of the accused with a full comprehension of its significance, there is no impediment to its admission as evidence and it then becomes evidence of a high order, since it is supported by the presumption, a very strong one, that no person of normal mind will deliberately and knowingly confess himself to be the perpetrator of a crime, especially if it be a serious crime, unless prompted by truth and conscience. (People v. Zea, et al., 130 SCRA 87, 88) Probative value of recantations: They are looked upon with disfavor as recantations are usually secured through intimidation or for a monetary consideration. (Molina v. People, 259 SCRA 138) General rule on admissibility of confession: A confession is admissible only against the accused who made it and not against his co-accused, for as against the latter, the confession would be hearsay and res inter alios acta. (People v. Talledo, 85 Phil. 533) Exceptions: when a confession is admissible against co-accused: 1) When the confession of an accused implicating his co-accused is made judicially at a joint trial (U.S. v. Macamay, 36 Phil. 893) or when the extrajudicial statements implicating a co-accused are repeated in open court (People v. Ola, G.R. No. L-47147, July 3, 1987), because the co-accused as a chance to cross-examine. 2) When the offer in evidence of an extrajudicial confession against a co-accused is not objected to. (People v. Atienza, 86 Phil. 576) 3) When the co-accused against whom an extrajudicial confession is offered had, by his acts, conducts and declarations adopted he confession as his own. (People v. Atienza, supra; People v. Orencia, 47 Phil. 970) 4) Where several accused, without collusion, made extrajduicial confessions which are identical in essential details and corroborated by other evidence, such confession is admissible against the others. (People v. Pelonia, L-14624, July 24, 1960) 5) The confession of a conspirator is admissible against his co-conspirator provided it was made during the existence of the conspiracy. (Sec. 30, Rule

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130, ROC; People v. Ramirez, L-5875, May 15, 1953) 6) When the recitals in the extrajudicial confession of an accused is corroborated in its important details by other proofs in the record, it may be admitted against the other accused. (People v. Villanueva, L12687, July 31, 1962) Extrajudicial confessions identical in material respects (also known as interlocking confessions) admissible against all declarants: 1) As circumstantial evidence. Extrajudicial confessions independently made without collusion and are identical with each other in their material respects and confirmatory of the other are admissible as circumstantial evidence against coaccused implicated therein to show the probability of the latter's actual participation in the commission of the crime. (People v. Encipido, et al., 146 SCRA 492) 2) As corroborative evidence. They are admissible as corroborative evidence against the other accused, if it is clear from other facts and circumstances presented that persons other than the declarants themselves participated in the commission of the crime charged and proved. (Ibid.) They are what is commonly known as interlocking confession and constitute an exception to the general rule that extrajudicial confessions/admissions are admissible in evidence only against the declarants thereof. (Ibid.) The invocation of amnesty is in the nature of a plea of confession and avoidance, which means that the pleader admits the allegations against him, but disclaims liability therefor on account of intervening facts which, if proved, would bring the crime charged within the scope of the amnesty proclamation. (People v. Salig, et al., 133 SCRA 69 citing Vera v. People, 7 SCRA 153) What is meant by corpus delicti ? a. It refers to a particular crime and signifies that the specific offense had been actually committed by someone, being composed of two elements: 1) certain results were produced, and 2) someone is criminally responsible. (People v. Marquez, 77 Phil. 83) b. It also means actual commission of the crime charged. (People v. Madrid, 88 Phil. 1; People v.

Sanchez, 89 Phil. 423), or the specific fact of loss or injury. (People v. Garcia, 99 Phil. 381) Examples of corpus delicti: a. In murder or homicide, the corpus delicti is the fact of death (People v. Garcia, 99 Phil. 381), which may be proved even circumstantially. (People v. Sasota, 91 Phil. 111; People v. Moro Ansang, 93 Phil. 44). b. In robbery or theft, the fact of loss. (People v. Niem, 75 Phil. 668) c. In arson, the fact of burning, (People v. Marquez, 77 Phil. 83; People v. Mones, 58 Phil. 46) d. In an affray, the fact that pistol shots were heard and a bystander was killed by one of the shots constitute evidence of corpus delicti, which is the violent death of a person, whether feloniously caused or not. (People v. Nocum, 77 Phil. 1018) Conviction for murder proper even if victims body is not produced: In all crimes against persons in which the death of the victim is an essential element of the offense, there must be satisfactory evidence of the fact of death and the identity of the victim that a crime has been committed which is what corpus delicti really means. The failure of the prosecution to produce the body of the victim does not imply the absence of corpus delicti for the term does not refer to the body of the murdered person. (People v. Centeno, et al., 130 SCRA 209) - Sec. 17, Art III No person shall be compelled to be a witness against himself. The operative act in determining whether the right against self-incrimination has been violated is when the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect who has been taken into custody by the police to carry out a process of interrogation that lends itself to eliciting incriminatory statements and not the signing by the suspect of his supposed extrajudicial confession. (People vs. Compil, 1995) By affixing their signatures on the boxes, accused in effect made a tacit admission of the crime charged. These signatures are tantamount to an extrajudicial confession made without the assistance of counsel, which is not sanctioned by the Bill of Rights. (People vs. Wong Chuen Ming, 1996)

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Any confession, including a re-enactment without admonition of the right to silence and to counsel, and without counsel chosen by the accused is inadmissible in evidence. (People vs. Yip Wai Ming, 1996) The declaration of an accused expressly acknowledging his guilt of the offense may be given in evidence against him and any person, otherwise competent to testify as a witness who heard the confession is competent to testify as to the substance of what he heard if he heard and understood it. (People vs. Maqueda, 1995) Compromises Rule 130, Sec. 27 1.Civil Cases An offer of compromise is not an admission of any liability, and is not admissible against the offeror. 2. Criminal Cases An offer of compromise by the accused may be received in evidence as an implied admission of guilt EXCEPT in cases involving quasi-offenses (criminal negligence) or those allowed by law to be compromised. - A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to lesser offense, is not admissible in evidence against the accused who made the plea or offer. The Good Samaritan Rule: An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury. It has long been held that in cases of public crimes, the accused is permitted to show that the offer was not made under a consciousness of guilt but merely to avoid the inconvenience of imprisonment of for some other reason which would justify a claim by the accused that the offer was not in truth an admission of his guilt or an attempt to avoid the legal consequences which would ordinarily ensue therefrom. (People vs. Godoy, 1995) A plea of forgiveness may be considered as analogous to an attempt to compromise. (People vs. De Guzman, 1996) An offer to compromise does not require that a criminal complaint be first filed before the offer can be received as evidence against the offeror. (People vs. Yparriguirre, 1997) 4. PREVIOUS CONDUCT AS EVIDENCE

Sec. 34 . Similar acts as evidence. Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like. (48a) Sec. 35 . Unaccepted offer. An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production and tender of the money, instrument, or property. (49a) PREVIOUS CONDUCT AS EVIDENCE Section 34. Similar conduct as evidence- Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same thing or similar thing at another time, but it may be received to prove a specific intent, or knowledge, identity, plan, scheme, system, usage and the like. I. This is the second part of the Res Inter Alios Acta Rule. The REASONS for the rule are as follows: 1. Past acts do not afford a logical guarantee that a person will or will not commit an act in question due to changes in a mans lifestyle, habit, views, or in the circumstances or conditions of his life. 2. Past acts are irrelevant as they merely confuse the issue and violate the right of a person to be informed of what he is being charged of or made liable for. 3. There is the danger that a man may be convicted or declared liable by reason of his dark or questionable past and not because he committed the present act. 4. There maybe a denial of due process. II. EXCEPTIONS A. To prove specific intent or knowledge: this applies to cases where guilty knowledge or intent is an essential element or where the defense raised is good faith, mistake of fact, or accident. There must however be a rational similarity between the condition which gave rise to the past and present conditions. 1. In a case of forgery or falsification past acts involving similar forgeries are admissible to prove intent to falsify and not to make corrections. Ex: The

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accused was previously caught changing the amount in the check issued to him If later he tried encashing a check with the amount altered, and this time claims lack of knowledge or ignorance, the previous act will be admissible to show he really intended to commit falsification. 2. In a murder case or death by secret mode, the fact that other mysterious deaths involving previous wives of the accused who were all insured with the husband as the beneficiary, is admissible, in the death of the present wife, also heavily insured and where the husband is a suspect, to prove motive and intent to kill. 3. The previous act of feeding the substance to animals is admissible to prove the accused knew the substance is poison and disprove his pretense of good faith. . 4. In an arson case, the previous acts of trying to burn the place, about which the accused was sternly reprimanded, shows that this time, when the accused was found placing, clothes soaked in gasoline near the house, his intent was really to burn. 5. In a case for estafa for issuing a watered check, the prior acts of the accused in requesting other persons to who checks against the same account were issued, that cases be not filed, show knowledge that the check he issued to the present complainant was stale. 6. In an action based on negligence, the act of asking for a spare tire previously is proof of knowledge of mechanical defects of the vehicle. 7. Note: under the Traffic Code, a previous violation for three times is evidence of negligence. B. To prove identity i.e where there is doubt as to a persons identity or where identity in issue . 1. Note: in solving a crime where there are no eye witness, the fact that a person was found to be the author of previous crimes committed in the same manner as the present, is admissible to prove he is the author of the present crime. Example: Serial Killers, Akyat Bahay, the Ativan Gang C. To prove a plan, system, design, Modus Operandi. 1. In estafa cases of illegal recruitment, the prior acts of advertising the opening of an office to assist in visa applications, and thereafter absconding, is evidence of a modus operandi or system of deceiving the unwary public.

2. Prior acts of using different names to different people from whom money is borrowed and then unpaid, is admissible to prove a plan or design to of deception. 3. The prior acts of claiming to be a member of the staff of a certain politician and asking for donation else the business papers will not be processed, shows a plan of extortion. D. To prove habit, custom, usage or practice. 1. These can only be established by showing a repetition of similar acts on various occasions. 2. Thus wife battery requires a cycle and previous acts have to be proven. 3. To prove negligence, the fact that a driver almost always tries to beat the red light is relevant. 4. To prove habituality or recidivism or habitual delinquency, previous acts are required. 5. The habit of a businessman to always pay in check is proof he did not make a purchase as no check was drawn or made in favor of the sellercomplainant. 6. The custom of the operator of vans for hire to test the brakes before renting the van is admissible to show the brakes were in facts tested and the van involve in the accident was not suffering from any mechanical defect. 7. The habit of a passenger of clinging to the back (or top load) of a running jeepney is admissible to show he was not the passenger/robber seated beside the victim at the drivers side. 8. The habit of a woman to sit at the lap of customers is admissible to prove the absence of force in a charge of acts of lasciviousness. 9. However, under the Rape Shield Law, the fact that the victim has had previous sexual encounters is not admissible in a present charge for rape. UNACCEPTED OFFER Section 35. An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without a valid cause equivalent to the actual production and tender of

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the money, instrument or property

1. This may be availed as a defense where defendant is alleged to have failed to tender payment or delivery. It may also be a basis for the remedy of consignation. 2. The tender of money must be unconditional and for the whole amount otherwise this is a valid ground to reject the tender. 5. TESTIMONIAL KNOWLEDGE Sec. 36 . Testimony generally confined to personal knowledge; hearsay excluded. A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules. (30a) (Hearsay Rule Sec. 36) 6. EXCEPTIONS TO THE HEARSAY RULE Sec. 37 . Dying declaration. The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. (31a) Sec. 38 . Declaration against interest. The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact is asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons. (32a) Sec. 39 . Act or declaration about pedigree. The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these fast occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. (33a) Sec. 40 . Family reputation or tradition regarding pedigree. The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon

be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree. (34a) Sec. 41 . Common reputation. Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty years old, or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public places may be received as evidence of common reputation. (35) Sec. 42 . Part of res gestae. Statements made by a person while a starting occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. (36a) Sec. 43 . Entries in the course of business. Entries made at, or near the time of transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. (37a) Sec. 44 . Entries in official records. Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. (38) Sec. 45 . Commercial lists and the like. Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein. (39) Sec. 46 . Learned treatises. A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject. (40a) Sec. 47 . Testimony or deposition at a former proceeding. The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative,

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involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him. (41a) Hearsay evidence Rule: Section 36 Testimonial Knowledge Exceptions to the Hearsay Rule (Secs. 37-47) 1. Dying declaration the declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. 2. Declaration against interest The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarants own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons. 3. Act or declaration against pedigree The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word pedigree includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. 4. Family reputation or tradition regarding pedigree The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree. 5. Common reputation Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty years old, or respecting marriage or moral character, may be

given in evidence. Monuments and inscriptions in public places may be received as evidence of common reputation. 6. Parts of the res gestae Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. 7. Entries in the course of business Entries made at, or near the time of the transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. 8. Entries in official records Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. 9. Commercial lists and the like Evidence of statements of matters of interest, to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein. 10. Learned treatises A published treatise, periodical or pamphlet on a subject of history, law, science or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject. 11. Testimony or deposition at a former proceeding The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the

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opportunity to cross-examine him.

TESTIMONIAL KNOWLEDGE: THE HEARSAY RULE I. INTRODUCTION A. Sources of What a Witness Testifies On. When a person testifies that a certain event occurred or that a person did or did not do an act, his reasons or basis may either be: 1. Facts based on his own personal knowledge or direct knowledge, such as when he testifies to facts or events which he personally saw or in which he participated, or to statements he personally heard. 2. Opinions, conclusions or estimations which the witness himself arrived at or formed. 3. Matters relayed to him, or learned by him from third persons or acquired by from sources outside of his own personal knowledge. Testimony based on the first source is admissible so long as it is relevant and they are what the rules desire to be testified upon. Testimony based on the second is generally not admissible. Testimony based on the third source is generally inadmissible and considered as hearsay. II. CONCEPT OF HEARSAY EVIDENCE A. In general, the term embraces all assertions of facts, whether in the form of oral or written statements or conduct, the source of which cannot be subjected to the opportunity for crossexamination by the adverse party at the trial in which the statements are being offered against him. 1. The essence and test of what is hearsay is the fact that the source i.e. the person who made the statement, can not be subjected to the opportunity for cross-examination. These two concepts can not be separated from one another. 2. The emphasis is on the opportunity to cross examine and not actual cross-examination because if there was opportunity to cross examine but it was not actually exercised due to the fault or negligence of the adverse party, the evidence is admissible. B. The rule on hearsay is intended to satisfy the requirement of due process which is that the adverse party has the right to confront the witnesses against him, to test their credibility, the truth of their statements, their accuracy, or the reliability of the

evidence against him. This is through the process known as cross-examination. This is why the rule on hearsay evidence can not be separated from the requirement of due process. III. KINDS OF STATEMENTS USED AS PROOF OF FACTS A. In-Court-Hearsay Statements. These are assertions of facts by a witness based on his own personal perception but the witness was not subjected to the opportunity for cross examination. 1. This usually occurs after a witness has testified during the direct examination but the testimony becomes hearsay because the witness refused to go back to court to be cross-examined; or he dies, becomes incapacitated mentally or physically, goes abroad, or where for any cause not attributable to the adverse party, he was prevented from cross-examining the witness. 2. The remedy of the adverse party is to Move To Strike From the Records the Direct Testimony on the ground that it is hearsay. If granted, the legal effect would be that the direct testimony would be erased/stricken from the records such that it was as if the witness never testified at all. 3. The testimony is not hearsay if the right to cross examine was expressly waived, or if it was lost by failure of the adverse party to claim or exercise it despite the opportunity given him. B. Out-of-Court-Statements. These refer to statements or declarations by third persons which are being used or referred to by a witness in order to prove a fact. The phrase aptly describes statements or declarations or conduct which were made elsewhere than in the trial of the case where they are being used as evidence. They are of three kinds: 1. The Non-Hearsay Statements also referred to as the Independently relevant statements and therefore admissible. a). Statements the making of which are the very fact in issue. b). Statements which are circumstantial evidence of the fact in issue 2. The Hearsay Statements which are inadmissible under Section 36. 3. The Hearsay Statements but admissible as an exception under Sections 37 to 47.

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IV. NON- HEARSAY OR INDEPENDENTLY RELEVANT STATEMENTS A. The purpose of introducing the statement or declaration of another is not to prove the truth of a fact but either: (i) to prove the statement was indeed made, uttered, or written, or (ii) to prove the tenor of the declaration i.e why it was made, or that it was part of a conversation or exchange of communications or part of a transaction or occurrence. B. The first kind: Statements the Making of Which is the Very Fact in Issue. The question before the court is: Was there such an oral or written declaration/statement which was made? Was there such a conduct which was done? or What was the statement or conduct made? What were the words uttered or written? 1. It therefore becomes necessary for a witness to quote or refer to the statements or declarations or conduct of a third person in order to answer the issue. 2. Examples are: (a). statements as constituting libel or oral defamation; (b) actions based on a breach of a promise or warranty (b). statements which are offered as an admission by the adverse party (c). statements quoted to destroy the credibility of a witness or party. C. Second Kind: Statements Which Circumstantial Evidence of the Facts In Issue Are

h). That Erap was resigned to giving up the presidency: Masakit, Ayoko na, i).He was intoxicated 2. To prove the statement of mind of the hearer or third person or of the witness, such that : a). He was not attentive b). He is bias c). He did not understand or that he was mistaken d). He was intoxicated 3. To show the physical condition of the utterer a). Illness: I have a headache b). Pain: Aray: Tama na ( to substantiate a claim of self defense) c). Tired: Lets rest. My feet are killing me. 4. To fix or identify date, time, place or person in question a). Place: Quoting statements in the local dialect by unknown people b). Time: Good evening, Gabi na, tulog na kayo., Gising na, umaga na, Kain na, Boom Tarantara c). Identity: Kuya Pedro, My younger brother, My seatmate, My crush, Itay, Baket d). Sex of a Person: words such as Manong, ate, kuya, Sexy, Pogi 5. To show the lack of credibility of the witness V. PURE HEARSAY AND INADMISSIBLE

1. To show the state of mind, mental condition, belief, ill will or criminal intent of the utterer/declarant a). To prove insanity- I am God b). Discernment on the part of a minor: he said Takbo na, Tago tayo c). Evident Premeditation: May araw ka rin d). Guilty knowledge: Dont tell anyone this money is fake, or it was stolen e). Bias: I will stand by him no matter what. May pinagsamahan kami kasi f). Ill-Will: I hope he dies. Ma fail ka sana g). gratitude: Anger, excitement, joy, elation,

A. This is what is covered by section 36 : A witness can testify only to those facts which he knows of his own personal knowledge, that is, which are derived from his own perception, except as otherwise provided in these rules. B. Concept: A witness asserts something as true but his reason is the statement, declaration or conduct of another. The witness merely repeats the declarations

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of others, he heard (it) said, or his testimony is to a second hand information. C. Illustrations: 1. Oral declarations or statements such as relying on news broadcasts, popular opinions, what people think or believe. 2. Written statements such as Affidavits of third persons, news paper reports, entries in the police blotter, medical reports, and any written account, report or statement , which even if true, but the maker/author is not the witness testifying on it. 3. Non-verbal statements or conduct. which are offered as assertion or proof of a fact. Example: On the question of who killed Z, the witness was asked: Why do you say it was X who killed Z? and he answered: I inquired from those present who did the stabbing and one lifted his finger and pointed to X . The act of pointing is non verbal hearsay conduct. 4. However, the testimony of a witness as to a non-human statement is not subject to the Hearsay Rule, such as those of machines and animals because: (a). the lack of motive to lie on the part of animals and machines and to (b). the workings of a machine can be explained by human beings who then are subjected to cross-examination.

B. BASIS. These statements are essentially hearsay because the makers or authors of these statements are not presented in court and are not subjected to the opportunity for cross examination. They are however are admissible because of two reasons: (1). The guarantee of trustworthiness or that they are presumed more likely to be true than not and (2. Necessity in that the court has no option but to accept them due to circumstances which exempt the authors from being personally presented in court as witnesses. C. KINDS: They are those enumerated from section 37 to 47. The enumeration is exclusive. Sec. 37. DYING DECLARATIONS I. RULE: The declaration of a dying person, made under consciousness of an impending death, may be received in any case where in his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. II. CONCEPT: Often referred to as antemortem statements or statements in articulo mortis, they are statements or utterances whether oral, written, or conduct, made by a victim of violence, after sustaining a mortal wound, under the belief that death is imminent, stating the facts concerning the cause and circumstances of his mortal wound. III. REASONS FOR ADMISSIBILITY.

Examples: i). to prove a party is not the owner of the dog, a witness testified that he saw the accused approached the dog and he heard the dog let out a grrrrrr ii). to prove the accused was carrying a prohibited article, the witness testified that when the accused passed through the detector/machine, the machine emitted a whirring sound. D. Evidentiary Value of Hearsay Evidence. Hearsay evidence has no evidentiary value whatsoever even if it was admitted without objection from the other party. This is because this would violate the requirements of due process and because the source of the information was not subjected to the personal observation of the Court as his demeanor. VI. HEARSAY STATEMENTS BUT ADMISSIBLE. A. CONCEPT: These are the statements, oral or written, presented as evidence in court without the author of the statement having been presented to testify on them. A witness offers these statements by third persons to prove a fact. A. Necessity. What the victim declared is material to the case. But the victim/declarant is already dead hence the only available remedy is to rely on the testimony of a witness who heard, read or saw the dying declaration. This also to prevent an injustice if the only evidence of the crime is the dying declaration and yet it is excluded. B. Guarantee of Trustworthiness in that what the victim declared is presumed to be true in that: 1. There is no more motive for a dying person to fabricate a falsehood, or in the words of Lord Baron Eyre: The general principle on which this species of evidence is admitted is that they are declarations made in extremis, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful consideration to speak the truth; a situation so solemn and so awful is considered by law as creating an obligation equal to that which is created by a positive oath administered in a court of justice.

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2. Another basis for the presumed truthfulness is the fear if punishment in the after life which may induce a person to speak the truth during his last moments. But the fat that the declarant does not believe in an after-life of rewards and punishment does not make his declarations less true. IV. REQUIREMENTS FOR ADMISSION A. THE STATEMENT MUST BE MADE UNDER CONSCIOUSNESS OF IMPENDING DEATH 1. The declarant is aware that his death is imminent or that his death is certain to follow by reason of his wound. He knows, is aware and accepts that he may die at any moment.

1. The declaration must relate to the why, who, how, where and what, about his own mortal wound. If it concerns the wound of another, it might be admissible under the Res Gestae Rule, or if the declaration is something contrary to the declarants interest, it might be admissible as a declaration against interest. 2. Thus if before dying, the victim of a shooting incident told these statements to his friend:. Pedro shot me and (b) he also shot Peter. (c). Tell my children that the son of Maria is their half brother. Statement (a) is a dying declaration whereas statement (b) would be admissible as part of the Res Gestae in the prosecution of Pedro for shooting Peter. Statement (c) would be a declaration against interest in an action against the estate of the victim by the illegitimate son. 3. There are two kinds of declarations which, even if they refer to the cause and circumstances, are not admissible as dying declarations: (a) Those which are in the nature of opinions or conclusions. Example: I believe Pedro was the one who shot me. He is the only who wanted me killed, and (b) those which contain hearsay information. Example: People say it was Pedro who shot me C. THE DECLARATION IS OFFERED IN A CASE WHERE THE SUBJECT OF INQUIRY IS THE DEATH OF THE DECLARANT 1. The case may either be criminal or civil so long as the issue involves the death of the declarant. If a criminal case, it may be for consummated Homicide, Murder or Parricide, and it may be a simple or complex crime as for example Robbery with Homicide, Rape with Homicide, Direct Assault with Homicide, or Multiple Homicide. 2. The civil cases include action for damages arising from the death of the declarant, or claims for insurance. D. THE DECLARANT MUST HAVE BEEN COMPETENT AS A WITNESS HAD HE BEEN CALLED UPON TO TESTIFY IN COURT. 1. Dying declarations stand in the same footing as testimony given in open court by a witness. At the time of the dying declaration, the declarant has all the qualifications as a witness and is not suffering from any physical or mental ground for disqualification. 2. Thus if the declarant was at that time too drunk, under the influence of drug, mentally insane, or an infant, his statements would not qualify as a dying declaration.

2. But it is not required that death should immediately follow for it may happen that the victim dies after the lapse of hours or days. It may happen that his condition improved but nevertheless he died after an interval of time. It is enough that when he made the statement he believed he was about to die. 3. If he entertained some hope of recovering or of surviving his injury, his statement will not constitute a dying declaration, but if later when his condition worsened, he ratified his statement and thereafter died, then the statement ill be considered as a dying declaration. 4. This requirement is present: a). From the express declarations of the victim

b). Inferred or implied from his utterances or conduct, such as when he begged forgiveness, asked for a priest to give him the last rites, asked a friend to watch over his family.

c). Inferred from his conduct or reaction of acquiescence when it was communicated to him that his condition is hopeless and he cried or his countenance changed. d). Inferred from the actual character and seriousness of his wounds, which may justify and acceptance of mortal danger. Example: when the victim pointed out his assailant, he was in agony due to a mortal wound or was gasping for breath. B. THE DECLARATION MUST CONCERN THE CAUSE AND SURROUNDING CIRCUMSTANCES OF THE DECLARANTS OWN DEATH/INJURY.

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E. THAT THE DECLARATION WAS MADE FREELY AND VOLUNTARILY AND WITHOUT COERCION OR SUGGESTION OF IMPROPER INFLUENCE. V. FORM AND MANNER OF INTRODUCING DYING DECLARATIONS A. They may be oral which maybe in the form of answers to questions asked, or voluntary statements or utterances at the instance of the declarant. These may be introduced through the testimony of the person to whom the oral declarations were given or by one who heard them B. They may be written either in a paper or other solid surface with the use of pen, pencils or conventional writing materials, or with the use of any material by which letters or written symbols are formed, such as blood, lipstick or sharp instrument. The written declaration need not be signed by the declarant. These are introduced by presenting the written declaration if physically possible, else reproductions thereof may be used in substitution or their existence and contents maybe testified to by witnesses C. It may be in the form of bodily movements such as by pointing or hand, gestures, swinging or nodding of the head, eye movements, or any physical form of communication. These is introduced by the testimony of the persons to who received them as answers to his inquiries, or by those who saw or observed the gestures D. Where the declarations are in the form of answers to inquiries, there must be observance of the Rule of Completeness: the declarations /statements or answers, must be responsive to the question asked, is not vague or equivocal, such that it provides a complete information to what is asked concerning the injuries of the declarant. VI. WEIGHT OF DYING DECLARATIONS A. Dying Declarations do not enjoy any advantage nor do they deserve higher consideration over other evidence. They are not superior evidence. They are in the same level as all other evidence hence: 1. They are subject to the same tests of credibility applied to all types of evidence. 2. The court has the discretion whether to accept or reject a dying declaration or to give it value or not, and how much weight it will accord it. 3. Dying declarations do not automatically result in conviction. They must be corroborated.

B. Dying declarations may be impeached or shown to be unreliable through the following modes: 1. By showing that the witness testifying thereon is not credible or that he is untrustworthy. Example: he has a motive against the accused, he is not fluent with the dialect in which the declaration was made, the possibility of having misheard the declaration, that his attention as focused elsewhere than to listening to the statements. 2. By showing that the declarant is not himself credible. Such as: his having given contradictory or conflicting declarations; ill-will or revenge against the accused or possibility of improper motives, or that his condition is too far gone as to have affected his consciousness or ability to give an accurate description of the incident. 3. By showing the lack of credibility of the declaration itself. Such as: it is hearsay, an opinion, or is not in accordance with the evidence. C. Dying declarations may be used by either party, though generally it is the prosecution or plaintiff who is expected to use them. However there is no law which denies the accused or defendant the use of a dying declaration as their own evidence, if they believe it is to their advantage, as when it points to other perpetrators, or negate an aggravating circumstance. Sec. 38. DECLARATIONS AGAINST INTEREST I. CONCEPT: These refer to any oral or written declaration or conduct by a person which is against his interest provided the person is already dead or unable to testify. The declarant is not however a party to a case. The declaration maybe used against his successors in interest or against third persons. A party to a case may also use it as his own evidence. II. DISTINGUISHED FROM AN ADMISSION 1. An admission is not necessarily against the interest of the declarant while a declaration against interest is always against the interest of the declarant. 2. In admissions the admitter may be alive while the declarant must be dead or unable to testify 3. The admitter is a party to a case while the declarant is not. 4. An admission is evidence only against the admitter save in case of vicarious admissions and admissions by adoption whereas a declaration may be used as evidence against strangers

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5. An admission may be made at any time even during trial, while a declaration must be made before the controversy arose. III. INTEREST AFFECTED MUST BE REAL AND ACTUAL A. Civil, Pecuniary or Proprietary. 1. Pecuniary: The declarations may defeat in whole or in part a money claim he has against a person. Example: the heirs of a deceased sued X to collect from him the supposed unpaid consideration of a lot sold by the deceased. X presents the best friend of the deceased who testified that the deceased confided to him that although no receipt was issued, X actually had already over paid. 2. Proprietary: The declarations may affect his property rights. Examples: I am a mere administrator of this property, or The money is my collection as a salesman only. Example: Creditor Z attached the land of a deceased creditor which is actually occupied by X to answer for the debtors unpaid debt. X presents a letter written by the debtor prior to borrowing money from Z, which letter advised the family that he is actually a mere administrator of the land which in truth belonged to X. B. Criminal: The statements may subject him to a possible criminal prosecution. a). In an arson case the accused presents a letter of X to his girl friend stating that he has to leave the country because he accidentally burned the store of their neighbor. b). Statements by persons owning up a crime for which another was charged. c). Statement by the driver of a jeepney that he was very sleepy while driving, is admissible in an action for damages against the operator arising from a collision involving the said driver. C. Moral: a). The act of a one man showing he is the natural father of a child, is admissible in a paternity suit against another man. IV. REASONS FOR ADMISSIBILITY 1. Necessity: Since the declarant is dead, there is no other source from which the court may know what the declarant said, other than the testimony of a witness.

2. Guarantee of Trustworthiness: No person would declare or do something against his own interest unless it si true. People are cautious about making statements adverse to themselves and ever they do, it is presumed that the statements are true. V. REQUIREMENTS FOR ADMISSION 1. The declarant is dead or unable to testify. Inability to testify includes situations where the declarant can no longer be presented in court due old age, physical disabilities insanity and similar mental illness, or he cannot be located despite diligent efforts to locate him. a). If he is alive or present and can be presented in court, then the testimony of the witness would be inadmissible as hearsay. 2. The declarant must have competent knowledge about the matter subject of his declaration. a). A person is presumed to know certain matters about himself such as financial status, condition of his business affairs, his interest in certain properties, his participation in an act, or in a crime. b) Thus, in an action for money for services rendered, plaintiff presented a letter written by the defendants son to the plaintiff stating that he knew his father owed plaintiff for services rendered. It was shown that the son did not know the true nature of the transaction between the plaintiff and his fatherthe defendant. 3. There is absent a motive to falsify. PEDIGREE I. CONCEPT: It covers all matters or information relating to a persons: 1. Descent: his paternity, or genealogy or family tree. Example: who were the ancestors: the circumstances of their birth, marriage, death, who were legitimate and who were not. 2. The circumstances of a persons own birth, marriage, death, legitimacy. 3. Descendants or issues if he has any including the circumstances of their birth, marriage, death 4. Sibling, i.e. brothers or sisters, whether by blood or b affinity, whether full or half blood, legitimate or illegitimate or by informal adoption, as

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well as circumstances of their birth, marriage, death, families. 5. All facts concerning family history intimately connected with pedigree e.g. the story that a brother was lost and presumed dead when in truth he was sent to an institution due to his abnormality) However, pedigree does not extend to the question of citizenship or to legal adoption. II. PROOF OF PEDIGREE A. The best proof of a persons pedigree would be 1).The records kept in the Office of the Local Civil Registry 2). As provided by Article 172 of the Civil Code as to filiations & 3) By DNA examinations. B. However if the foregoing are not available, proof consists of the presentation of a witness who testifies to: 1. The declaration or admission of a relative by birth or by marriage in accordance with Section 39. 2. The Family Tradition or reputation provided the witness testifying is a member of the family either by consanguinity or affinity pursuant to section 40. 3. Entries in Family Bibles, Family Books, Charts, Engraving, Rings, and the like, pursuant to section 40. III. PROOF BY DECLARATION OF A RELATIVE (Sec. 39) A. Reason for admissibility: ( Note that a witness is testifying to the statements of a third person - the relative- who is not available for cross-examination). 1. Necessity-to prevent a failure of justice since matters involving the descent or relationship of a person occurred long before the case was filed and only a few might still be available to testify thereon. 2. Guaranty of Trustworthiness- members of a family are supposed to know those matters affecting their own family B. Requirements for Admissibility

1. The pedigree of a person is in issue or is relevant to the main issue a). Example: Cases involving inheritance, support, filiation, use of surnames, parricide, incest rape/acts of lasciviousness or recognition. 2. The declarant is dead or unable to testify. If he is available to testify then the testimony of the witness quoting the declarant is inadmissible. 3. The declarant and the person whose pedigree is in question are related to one another. a). The relationship may be by blood or by affinity and need not be close in degree. b). The relationship must be legitimate unless the issue is the legitimacy itself. (Personal opinion: this is based on bias against illegitimates. Suppose the illegitimate relative has been accepted by the family?) c). Non-relatives, no matter how close or intimate they may be, such as close friends, house helps, nannies, are not included and any statement they make upon a persons pedigree are inadmissible. 4. The declaration must have been ante litem motam ( before the controversy arose) in order to ensure the declaration was not the result of bias or improper motive. 5. The relationship between the declarant and the subject person must be established by independent evidence independent of the declaration. C. Examples 1. In the case of FPJ whose citizenship hinged on whether he was acknowledged by the father, the court admitted an Affidavit of a sister leaving in California the contents of which declared that FPJ was recognized by their father. 2. Maria wants to inherit as full heir from Pedro. X testifies that Maria is the sister of Ellen who is married to Juan, now dead. X presents a letter from Juan stating that Maria and Ellen are half-sisters because the father of Maria is not Pedro but another man. 3. AB is charged with parricide for killing X. A witness testifies that X is the illegitimate child of AB per information coming from the deceased son of AB. IV. PROOF BY FAMILY REPUTATION OR TRADITION (Sec. 40)

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A. Concept: This refers to the knowledge or beliefs of a certain family handed from one generation to another, or to practices or customs which are consistently observed or engaged in by said family. A member of said family is the one testifying to these matters. B. Examples:

A. CONCEPT: Common reputation refers to the prevailing belief in the community as to the existence of certain facts or aggregates of facts arrived at from the peoples observations, discussions, and consensus. There is absent serious opposition, adverse or contrary opinion. They are not just rumors or unverified reports or say-so. B. What common reputation may prove

1. The practice of making offerings to a deceased person, burning of incense, making of libations, visiting the grave, or including the name of a person in the family prayers, are evidence the dead is related to the family. 2. The family belief by a family in Bontoc, Mt. Province, that their surname ANDAYA was adopted by their grandfather in honor of a teacher from Tagudin, Ilocos Sur, who took care of said grandfather. 3. Stories of a grandfather that he was born on the day Bataan fell to the Japanese, or an uncle who, during the earthquake, went to the mountains and was probably buried in a landslide. 4. Practice of a family of inviting an individual to clan/family reunions. 5. Belief of a family in Aringay, La Union that the grandfather of Noli de Castro left that town in a particular year and migrated to Visayas

1. Matters of public interests more than 30 years old or those affecting the people as a whole and matters of general interest or those affecting the inhabitants of a town, province, or barangay. (Localized matters) a). They must affect the community as a whole and not just certain groups b). Examples: boundaries of lands, existence of a road, a waterway or irrigation canals; that a private right exists in a public land, the reputation of a certain area as the :red district; the birth of a town or barangay, how a town or city got its name, that a land has long been regarded as a communal land. c). It can not be used however to establish ownership over private lands. d). Proof of common reputation: Through the testimony of persons who are in a position to know the public or general interest. He may testify thus: The old folks told us the land has always been regarded as communal By monuments, and inscriptions such as old road/streets signs; old maps and old surveys

V. PROOF BY ENTRIES IN FAMILY BIBLES, BOOK CHARTS, ENGRAVINGS, RINGS AND THE LIKE. (Sec. 40). A. Entries may include the names, and date and place of births, marriages, death, and other relevant data, about a relative, as well other important family occasions. B. Other examples: pictures, portraits, baptismal certificates, the name and date appearing in wedding rings, family tree charts C. Names of relatives in published thank you messages in obituaries as well as in wedding invitations. COMMON REPUTATION (Sec. 41) I. RULE: Common reputation existing previous to the controversy respecting facts of public interest more than 30 years old, or respecting marriage, or moral character, may be given in evidence. Monuments and inscriptions may be received as evidence of common reputation.

2. Moral character or opinion of people concerning the moral character of a person provided the opinion is formed among the people in the place where a person is known, such as in his work place, residence, school. Examples: a). The reputation of one as an honest, diligent and industrious laborer, or a fair and kind employer, among their co-workers; or as lazy b). As a trouble maker in the barangay c). As a conscientious teacher d). As a person with a hostile attitude or as a belligerent and easily provoked person e). As a girl with loose morals

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3. The marriage between two persons a). The reputation need not be from family members. Thus H and W are known as husband and wife and are addressed or that the community regard W as the wife of H and vice versa b). But where there is a formal marriage or documentary proof thereof, reputation of nonmarriage is not admissible. PART OF THE RES GESTAE I. RULE: Section 42: Part of the res gestae- Statements made while a startling occurrence is taking place or immediately thereafter, or subsequent thereto, with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So also, statements accompanying an equivocal act and material to the issue, and giving it legal significance, may be received as part of the res getae. II. CONCEPT. 1. Res gestae literally means things done. It refers to an event, an occurrence, a transaction, whether due to the intentional or negligent acts of a person, or an accident, or due to the action of nature. All these events are set in a frame of surrounding circumstances which serve to emphasize the event or to make it standout and appear clear and strong. 2. These surrounding circumstances may consist of statements, utterances, exclamations or declarations either by the participants to the events, or by the victims, or by mere spectators . These persons may not be known or are unavailable for cross-examination and what they declared, uttered or stated, or exclaimed are repeated by the witnesses who heard them. 3. They are the events speaking for themselves thought the instinctive and spontaneous words or acts of the persons involved or present thereat. III. CLASSIFICATION. A. Spontaneous Statements. Those made by a person-whether a participant, victim or spectatorwhile a startling occurrence is taking place, or made immediately prior, during or subsequent thereto. B. Verbal Acts or Contemporaneous Acts. These are utterances or statements, which accompany some act or conduct which explains or gives legal significance to the act.

IV. SPONTANEOUS STATEMENTS. A. Requirements for admissibility 1. There must be a startling occurrence or a happening which was sudden or unexpected- not anticipated- which is capable of producing nervous excitement such that it may induce or incite a person to make an utterance representing the persons actual impression about the event. a). Examples of a startling occurrence: sudden death, collision between vehicles and other vehicular accidents, a fight in progress, a snatching or robbery, a fire breaking out, a suicide, an act of lasciviousness, panic breaking out. 2. The statement must relate to the circumstances of the startling occurrence or to the what, why, who, where and how of an event. a). Examples: statements describing what is happening or referring to the persons involved such as Si Pedro sinasaksak, Tama na, patay na yan, yong mama, mabubondol. Mamang driver, dahan dahan, mabangga tayo. Snatcher, help. B). They include screams and cries of alarm, cries of pain by victims, or words by a participant such as Matapang ka ha? OOm. b) Exited words heard over the phone by a policeman are also included. 3. The statement must be spontaneous. a) The utterances or declarations were instantaneous, and instinctive. They were reflex words and not conclusions or products of a persons conclusion, impression or opinion about the event. The person had no time to make a reflection about the event. Thus it is said that they are the events speaking through the person. B. Factors to determine spontaneity especially to statements made after an occurrence. 1. The time which elapsed between the occurrence and the making of the statement. The declaration should not have been made after a period of time where it is possible for a person to reflect, analyze, and reason out. There is no yardstick to measure the time which elapsed although the time must not of such length so that the declarant can be said to be still under nervous excitement. a). The utterance by a rape victim soon after being rescued is spontaneous

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2. The place where the statement was made in that whether it was within the immediate vicinity or situs of the event or some distance away. 3. The condition of the declarant at the time he made the statement- whether he was in a cool demeanor so that he could have carefully chosen his words, or he is still in a state of nervous excitement. If as a victim, his groans are indicative he is still under the influence of the event. 4. The presence or absence of any intervening circumstance between the event and the making of the statements such as those which may have diverted a persons mind and restored his mental balance, or which in any manner might have affected his statement. Examples: a). In a collision, a driver notices that several passengers are mortally injured, whereupon he exclaims: That bus was too fast. b). The arrival of the friends of the victim prompted him to shout, he, he is the one who mauled us for no reason. c). A person lost consciousness and then recovers whereupon he shouts: Juan, have mercy 5. The nature and circumstances of the occurrence itself in that it must really be serious and capable of producing lasting effect. C. Relation to a Dying Declaration. 1. When a statement does not qualify as a dying declaration for failure to comply with the requirements the latter, it may however be admitted as part of the res getae. This is under the principle of multiple admissibility. This occurs: a) when the victim survives b). there was no consciousness of impending death c). when the statement relates to the injury of another and not the declarant. 2. Example: The victim said: Pedro shot me. He also shot Juan. The first is a dying declaration if the victim dies, otherwise as part of the res gestae. The second is admissible as part of the res gestae in a case involving Pedro for shooting Juan. D. Illustrations

1. A Policeman testifies that he saw a commotion and while proceeding thereto, he heard several screams such as Awatin nyo si Pedro, Pedro maawa ka. Such screams made by unidentified persons are part of the res gestae. 2. A security guard testified that he saw two persons entered the building and after some minutes they came out running. He asked what was the matter and one of the two answered: napatay naming si Juan. V. VERBAL STATEMENTS. ACTS OR CONTEMPORANEOUS

A. CONCEPT: These are utterances, declarations or oral statements which accompany some act or conduct which explains or gives legal significance to the act. B. REQUIREMENTS: 1. There must be an act: a). which is equivocal or one susceptible to different meanings such as : (i) the act of handing money to another (ii) the act of chopping down a tree on a piece of land (iii) the act of building a fence. b). The act may be a continuing act or that which takes place within a span of time such as the regular deposit of money in the account of another for a year c). There are however certain acts which the law considers as self-explanatory (res ipsa loquitor) such as criminal acts of lasciviousness, injuring or killing another. 2. The oral statement must explain the act. Thus the act of handing over money to another was accompanied by the statements: here is payment of my debt, go buy yourself lunch. The man chopping a tree exclaimed; This land is mine, indicating an assertion of ownership. 3. The act is relevant to the issue. Example: In a prosecution for violation of the Anti Fencing Law, where the accused was seen receiving the cellphone, this statement of the giver is admissible: Itago mo yan at huwag na huwag mong ipakita kahit kanino 4. The statement is contemporaneous with the act in that it was made at the time and place of the act and not afterwards.

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(NOTE: THE FOLLOWING EXCEPTIONS THE FORM OF WRITTEN STATEMENTS). ENTRIES MADE IN THE COURSE OF BUSINESS

ARE

IN

b). Fear of penalty in the event of an error or omission c). In the routine (mechanical) and disinterested ( lack of personal involvement or interest) origin of most of the statements d). In the publicity of the record, which makes more likely the prior exposure of errors and their consequent correction IV. Requirements for admissibility: A. The person who made the entry must be a public officer, or by another especially enjoined by law B. The making must be in the performance of the officers duty or in the performance of a duty especially enjoined by law 1. The keeping of the record must be due to any of the following reasons: a). It is required by law. Examples: (i). records of birth, marriage, adoption an death kept by the Local Civil Registrar (ii) List of voters and results of elections by the COMELEC Registrar (iii) List of Eligibles by the CSC (iv) List of Professionals by the PRC Record (v) The Day Book of the Register of Deeds (vi) List of marriages by religious persons licensed to solemnize marriages

I. RULE: Sec. 43. Entries made at, or near the transaction to which they refer, by a person deceased, outside of the Philippines, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the regular course of business or duty II. CONCEPT: These refer to written accounts or recording of transactions or events, whether pertaining to commercial activities or not, so long as they were made by a private person ENTRIES IN OFFICIAL RECORDS. I. RULE: Sec. 44. Entries in official records made in the performance of his duty by a public officer of the Philippines or by a person in the performance of a duty specially enjoined by law are prima facie evidence of the facts therein stated. II. Concept: Official records refer to official documents containing data about persons, places, conditions or properties, state of things or transactions, prepared or made by a public officer, or by another especially enjoined by law The situation concerns facts about which a public officer has to testify on, but in lieu of his personal testimony, the official document prepared or kept by him are instead presented to the court.

III. Reasons for admissibility: (vii) Sheriffs Return on a writ of execution 1. Necessity: difficulty of bringing the officer to court as when he has been separated from the service, or assigned to a place outside the courts jurisdiction, as well as the great inconvenience caused to the officer, and the disruption of public service during his absence from his office. Thus the court has to rely on the official records prepared by him. 2. Guaranty of trustworthiness: The entries are presumed to be true and accurate due to: a). The sense of official duty which led to the making of the statement (viii) Court docket officer (ix) The Notarial Registry of a Notary Public (x) Ship Log Book b). The nature of his work requires the keeping of records i.e the records are convenient and very appropriate modes of discharging the officers duty. Examples: (i).The List of those applying for a Prosecutors Clearance (ii).The Visitors Log Book of the Jail Warden (iii).Record of Cases heard by the Barangay Police Blotter

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c). The record is required by a superior. Example: The record of the whereabouts of employees C. The officer must have sufficient knowledge of the facts recorded by him acquired personally or through official information (Personal or official knowledge) 1. Official knowledge: the facts were supplied by subordinates who have personal knowledge of the facts and whose duty involves ascertainment of such facts 2. Examples: (i). Tax Declarations signed by the Assessor

2. Trustworthiness in that these works were the product of research as to assure their correctness or accuracy Examples: Legal Profession: the SCRA though published by a private entity for profit i.e the Central Lawbook Publishing Co. Banks and financial institutions rely on the FOREX Insurance Companies rely on the Actuarial and Mortality Tables The public on Business Phone Directories Result of Stock Transactions/Exchanges

(ii) Building Permit by the City Engineer Census Reports (iii) Birth/Death Certificate issued by the Local Civil Registrar IV. Probative Value: The entries are merely prima facie evidence of the facts stated and may be rebutted or nullified but if the entry is of a fact, but not to those made in excess of official duty, or those not required to be recorded. SEC. 45. Commercial List and the Like refers to Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter as stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein. Concept: This refers to journals, list, magazines, and other publications and similar written or published works carefully researched an investigated and especially prepared for sue in certain trades, industry or profession, or even by the public, which rely on them. The authors or publishers are private persons or entities Reason for admissibility 1. Necessity in that the authors, compilers, or publishers may not be available to testify such as when they are foreigners, or already dead 1. Textbooks in history such as Gibbons The Rise and Fall of the Roman Empire, books on Philippine History by Agoncillo and Constantino 2. Text and reference books/materials in medicine and its branches Price Index of minerals, metals But not tourist guide brochures Calendars Learned Treatises under Section 46. I. CONCEPT: These are published treatises, books, journals on a subject of history, sciences, law and arts, which were carefully researched or subjected to scrutiny and investigation. The authors are scholars or experts on the subject or it is a group of researchers. II. REASON FOR ADMISIBILITY: 1. Necessity: the inaccessibility or, or inconvenience to, the authors or researchers. 2. Trustworthiness in that the authors have no motive to misrepresent and awareness that the work will be subjected to inspection, scrutiny and refutation, and criticism; the works were carefully researched before being published and were purposely geared towards the truth. III. Examples:

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3. Books, periodicals and writings in the exact sciences such as algebra, mathematics, the logarithmic tables, table on weight and measurements 4. Law books quoted as references by the Supreme Court such as Evidence by Francisco ( but not anymore Legal Medicine by Solis as it is obsolete) 5. Commentaries on law subjects by recognized legal luminaries such as those by Wigmore, Clark and Jones on Evidence; Manresa, Sanchez Roman and Scaevola on Civil Law 6. Reference Books and Books on Knowledge such as dictionaries and thesaurus, encyclopedias, yearbooks 7. But not Publications on theology and religion, literature such as novels and other works of fiction even if the background or setting is a historical fact; philosophy. IV. How introduced as evidence: 1. The court takes judicial knowledge of such publications as learned treatises 2. An expert witness testifies that the writer or author is a recognized authority in the subject Testimony or Deposition in a former Proceeding, Section 47 I. Concept: A witness is sought to be presented in a present case but he is dead, unable to testify such that in lieu of his personal testimony, what is presented is his testimony in a prior proceeding. II. Requirements A. The witness is dead or unable to testify. The witness may be suffering from illness or from a mental disqualification such as having become insane or loss of memory due to age. His whereabouts is unknown despite diligent efforts to locate him or he was prevented by a party from appearing as witness, either by force or by deceit or by persuasion. It does not cover a situation where the witness refuses to come to court. B. Identity of the parties. This may refer to identical parties or the parties are their successor in interest or representatives C. Identity of issues. The issue or matter, in which the testimony of the witness is sought is common to both

cases, even if there are other issues involved or that the form of action is different Examples of cases where there is a common issue: (i) ejectment and recovery of right of ownership as both would involve the question of who has physical possession (ii) an action for damages based on an act or omission which was the subject of a prior criminal case such as killing, slander or libel or estafa. D. Opportunity for cross examination opponent in the first proceeding by the

1. If the opponent, through his act or negligence, did not cross examine, or lost the right, the rule still applies. Example: the defendant was declared in default and plaintiff then presented evidence ex parte 2. Thus if the proceedings in the prior administrative cases was summary and not adversarial/confrontational but was decided based on affidavits and position papers, the rule does not apply III. How to present: Present the Transcript of Testimony which the parties may stipulate on. THE Hearsay Rule 1. Testimonial Knowledge Rule 130, Sec. 36 What can a witness testify to? - A witness can testify only to those facts which he knows of his personal knowledge = those which are derived from his own perception, except as otherwise provided in these rules. 1. The hearsay evidence rule applies also to affidavits when the supposed affiant never identified the affidavit and there was no opportunity for the prosecution to cross-examine him/her. The testimony of a witness regarding a statement made by another person, if intended to establish the truth of the facts asserted in the statement is clearly hearsay evidence. It is otherwise if the purpose is merely to establish the fact that the statement was made, or the tenor of such statement. The testimony of a witness on the confession made to him by the accused is not hearsay. He is testifying to a fact which he knows of his personal knowledge (was testifying to the fact that the accused told him that he stabbed the victim) and not to the truth of the statement of the accused

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Examples of hearsay evidence: 1) The testimony of a witness as to what he has heard another person say about the facts in dispute. (People v. Reyes, 76 Phil. 354; Aldecoa & Co., v. WArner Barnes & Co., 30 Phil. 153) NOTE: See concept of independent relevant statement. 2) Affidavits. (Marisfosque v. Luna, L-9095, May 25, 1957; People v. Pagkaliwagan, 76 Phil. 457) General rule: Affidavits without presenting affiant in court is mere hearsay: The constitutional right to confrontation precludes reliance on affidavits. Such a constitutional safeguard cannot be satisfied unless the opportunity is given to the accused to test the credibility of any person, who, by affidavit or deposition would impute the commission of an offense to him. It would be to disregard one of the most valuable guarantees of a person accused if solely on the affidavits presented, his guilt could be predicated. (People v. Santos, et al., 139 SCRA 586587 citing People v. Lavarez, 23 SCRA 1301) Exceptions: when affidavits are given weight: a. Where said affidavits are overwhelming, uncontroverted by competent evidence and not inherently improbable. (Top-Weld Manufacturing, Inc. v. ECED, S.A., et al., 138 SCRA 132) Under the Rule on Summary Procedure for civil cases; When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct hat the matter be heard wholly or partly on oral testimony or depositions. (Sec. 7, Rule 133, ROC)

Theory of the hearsay rule: When a human utterance is offered as evidence of the truth of the fact asserted in it, the credit of the assertor becomes the basis of inference, and therefore the assertion can be received as evidence only when made on the witness stand, subject to the test of crossexamination. TWO CONCEPTS OF HEARSAY EVIDENCE: 1. 2. Second hand information (not derived from personal knowledge of witness) Testimony by a witness derived from his personal knowledge BUT the adverse party is not given opportunity to cross-examine Example (No. 2): Plaintiff presents witness A. A testifies in court on matters personally known to him. After direct examination, court tells that defendant can cross examine on next scheduled hearing. On the next scheduled hearing witness A no longer appears and could no longer be located. [The remedy here now is to ask that the testimony of witness A be stricken out since it now becomes hearsay]

Rationale behind the non-admissibility of hearsay evidence: 1) A witness can testify only to those facts which he knows of his own knowledge; and 2) To preserve the right of parties to cross-examine the original witness or person claiming to have knowledge of the transaction or occurrence. (People v. Pagkaliwagan, 76 Phil. 457) The right to cross-examine the adverse party's witnesses is essential in the administration of justice for it is the only means of testing the credibility of witnesses and their testimony, and this right is not available in respect of hearsay evidence since he declarant is not in court.(Donnelly v. U.S,228 U.S. 243) Principle of Independently Relevant Statements - Under this principle regardless of the truth or falsity of a statement, the fact that such statements have been made is relevant. The hearsay rule does not apply, and the statements are admissible as evidence. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such a fact. - Independent relevant statements are hearsay in character but not legal hearsay, hence they are not

b.

c.

3) A letter offered in evidence to establish the facts in issue. (Pastor v. Gaspar, 2 Phil. 592; People v. Carlos, 47 Phil. 626) 4) A medical certificate to the extent of the injuries found by the doctor on the offended party's body. (De Guia v. Meralco, 40 Phil. 706) 5) A resolution of the municipal council of a certain municipality as to the character of an accused in a criminal case. (U.S. v. Tanjuatco, 1 Phil. 374) 6) Newspaper Articles- (Double deck hearsay or Double hearsay)

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considered as exceptions to the hearsay rule. Illustration: A was drinking with his buddies. A told them that: My neighbor is a thief. Later on As neighbor was charged with theft. Prosecution calls as his witness one of the drinking buddies. The drinking buddy testifies in court saying: The accused is a thief because I heard A says so. [THIS IS HEARSAY EVIDENCE] Now, supposing the neighbor filed a libel case against A. The drinking buddy serves as a witness for the plaintiff, and says: I heard A said that the plaintiff is a thief.. [Now this time this is not hearsay, because the FACT IN ISSUE is whether or not the utterances were made by a particular person, regardless of the truth or falsity of the statement] CASE: ESTRADA v. DESIERTO, APRIL 3, 2001 Issue: Whether or not the use of the Angara diary to determine the state of mind of President Estrada violates the rule against the admission of hearsay evidence Held: 1) Angara diary is not an OUT-OF-COURT STATEMENT, since it is part of the pleadings in the case. 2) Angara diary is not covered by the hearsay rule. Evidence is called hearsay when its probative force depends in whole or in part, on the competency and credibility of some persons other than the witness by whom it is sought to produce it. 3) Admission are not excluded by hearsay evidence. The Angara diary contains direct statements of petitioner which can be categorized as admissions of a party. And though the diary is not Estradas hence non-binding on him, SC held that the doctrine of adoptive admission applies. 4) res inter alios acta rule- exception: admissions by a co-partner or agent. Executive Secretary Angara was the little president, an alter ego of the president. Indeed, he was authorized by the petitioner to act for him in the critical hours and days before he abandoned Malacanan. 5) Independently Relevant Statement- there are two classes: (1) Statements which are the very facts in issue;

a. Statement of a person knowing his state of mind, that is his mental condition, knowledge, belief, intention, ill will and other emotions b. Statements of a person which show his physical condition as illnesses and the like c. Statements of a person which an inference may be made as to the state of mind of another, that is the knowledge, belief, motive, good or bad faith of the latter d. Statements which may identify the date, place and persons in questions e. Statements showing the lack of credibility of a witness The Angara diary contains statements of the petitioner which reflect his state of mind and are circumstantial evidence of his intent to resign. 2. Exceptions a) Dying Declaration Rule 130, Sec. 37 Declaration was made under the consciousness of an impending death Declaration refers to cause and surrounding circumstances of the death of the declarant Declaration may be received in any case wherein declarants death is the subject of inquiry (In one case. The husband was shot and wife was stabbed. The wife died instantly. The husband was brought to the hospital and made a statement that it was X who stab her wife. The husband then died. The statement is not a dying declaration because it pertains to the wife) The declarant must be competent as a witness (What if declarant is proved to be a congenital liar? Still this exception may apply, because he is not disqualified from testifying in court if he were alive) The declarant actually died, otherwise, the declaration may be admitted as part of the res gestae and not as a dying declaration

APPLICABILITY: Both Civil and Criminal. [Criminal: Only those which involve death, homicide, murder, parricide, robbery with homicide, rape with homicide] Victim need not state that he has lost all hope of

(2) Statements which are circumstantial evidence. The second class includes:

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recovery. It is sufficient that circumstances are such as to inevitably lead to the conclusion that at the time the declaration was made, the declarant would not expect to survive the injury from which he actually died. The degree and seriousness of the wounds and the fact that death supervened thereafter constitute substantial evidence of the victim's consciousness of his impending death. (People v. Tanaman, et al., G.R. No. 71768, July 28, 1987) Dying declaration has weight even if declarant did not die immediately after his declaration: The fact that the declarant died four (4) hours after his statement does not diminish the probative value of the dying declaration since it is not indispensable that the a declarant expires immediately thereafter. It is the belief of impending death and not the rapid succession of death that renders the dying declaration admissible. (People v. Bautista, G.R. No. 111149, prom. September 5, 1997) Mere gesture of dying victim inconclusive: The gesture of a dying woman in pointing to a direction, when asked for the identity of her assailant, is too vague to be given such probative value in determining the culpability of the accused. REASON: Unlike an oral or a written declaration, a simple gesture of the hand unaccompanied by words, is open to various interpretations by the witness who testifies to its existence. Thus, the evidence comes to the court couched in the witness' second hand perception and possibly, imbued with his personal meanings and biases. This is what makes hearsay evidence objectionable. The second hand evidence is placed before the court without the benefit of cross-examination by the party against whom it is brought, nor of any other means of assessing the competence and credibility of the source. (People v. Ola, G.R. No. L-47147, July 3, 1987) CASE: The crime charged is rape with homicide. The victim before death tells to the police investigator/doctor: I was raped. [This is not a dying declaration, because the statement has nothing to do with the cause and circumstances surrounding the death. But this may be admitted as part of res gestae] b) Res Gestae Rule 130, Sec. 42 What are admissible as part of the res gestae: Statements made by a person while a starting

occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof Statements accompanying an equivocal act material to the issue and giving it legal significance TWO CONCEPTS: A. Spontaneous Statements B. Statements accompanying Equivocal ActsEquivocal means ambiguous; capable of different interpretations. EXAMPLE: a) SPONTANEOUS STATEMENT: X barged into the house of Y, tied her to a chair and robbed her. X brought Ys maid to a bedroom and raped her. Y could hear the maid crying: Huwag! Maawa ka sa akin!. When X fled, Y with the maid rushed to the police station and told the police what happened. The maid told the police that despite her pleas X still raped her. The police noticed that the maid was hysterical and on the verge of collapse. X was charged with robbery with rape. During the trial the maid could no longer be located. The prosecution presents the policeman to testify on what the maid told him. [The testimony would be hearsay but as an exception to the hearsay rule. The statements made by the maid fall within the res gestae rule] b) EQUIVOCAL/VERBAL ACTS: A witness testifies on the stand for the plaintiff in a collection case where the defendant denies having borrowed P10,000 from the plaintiff. The debt is not evidenced by a promissory note because plaintiff claims that defendant had orally borrowed money from him in the past and had always paid. This time he refuses to pay. The witness testifies that one year ago he saw the plaintiff give money to the defendant. And that he heart the plaintiff said that: Heres the money you are borrowing from me. Further, he said that he heard the defendant say: Thank you, I will pay one year after. [Here the equivocal act of handing the money was given significance by the statement of the plaintiff] DYING DECLARATION versus RES GESTAE a) Time when statements made: DYING DECLARATION- statements must be made

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after the injury has been inflicted upon the applicant. RES GESTAE- in so far as startling occurrence is concerned, the statements could be made prior or simultaneous with or after the startling occurrence. b) Death of declarant: DYING DECLARATION- declarant must die RES GESTAE- no need for declarant to die c) Declarant: DYING DECLARATION- must be the victim RES GESTAE- anybody PEOPLE vs. CLOUD (265 SCRA 472) Concept of independently relevant statements and res gestae applied simultaneously. [N.B. dying declaration may likewise be applied simultaneously with independently relevant statement] Josephine Aguilar was at the emergency room of a hospital to have some stitches removed from her daughters head when she saw a boy being carried by a man, followed by an old woman who was shouting hysterically. The boys face was swollen and bruised and his body covered with dry blood. The old woman, apparently the boys grandmother, cried and repeatedly screamed. Pinatay siya ng sariling ama!. The old woman told the people inside the emergency room that the boys father had beaten him up, tied his hands, and stabbed him. Ruling of SC: Insofar as the statements of Rufina Alconyes(old woman) are concerned, they are admissible as part of the res gestae, they having been caused by and did result from the startling, if not gruesome, occurrence that she witnessed; and these were shortly thereafter uttered by her with spontaneity, without prior opportunity to contrive the same. The report made thereof by Josephine Aguilar is not hearsay since she was actually there and personally heard the statements of Alconyes which she recounted in court. Her account of said statements of Alconyes are admissible under the doctrine of independently relevant statements, with respect to the tenor and not the truth thereof, since independent of the truth or falsity of the same they are relevant to the issue on the cause of the death of the victim. c) Declaration Against Interest Rule 130, Sec. 38

By whom made: a person deceased, or unable to testify, against the interest of the declarant Subject of declaration/act: the fact asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true Against whom received: such may be received in evidence against himself or his successors in interest and against third persons. REQUISITES: a. The declaration is made by a person deceased, or unable to testify [i.e. in foreign country or physical/mental impairments]

b. against the interest of the declarant, [declarant MUST KNOW that it is against his interest] c. if the fact asserted in the declaration 1) was at the time it was made 2) so far contrary to declarant's own interest, 3) that a reasonable man in his position: would not have made the declaration unless he believed it to be true. (Sec. 38, Rule 130,RC)

Declaration against interest distinguished from admission: 1) An admission is not necessarily against the interest of the admitter WHILE the declaration must be against the declarant's own interest(penal, proprietary, financial) 2) An admission may be received even if the admitter is alive WHILE the declarant must be dead or is unable to testify; 3) An admission may be received in evidence only against the admitter and those identified with him in legal interest WHILE the declaration may be received even against third persons. (Smith v. Moore, 142 N.C. 277) Inability to testify = either dead, mentally

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incapacitated or physically incompetent. Mere absence from the jurisdiction does not make him ipso facto unavailable. CASE: People v. Holgado Jose was killed. Pedro admitted that he was the one who killed Jose. Unfortunately, Pedro also died. The prosecutor filed an information charging Juan with homicide of Jose. The defense presented a witness who heard Pedro say that he was the one who killed Jose. SC held that Pedros declaration is a declaration against interest. It is therefore admissible to show that the accused did not commit the crime charged. d) Pedigree Rule 130, Sec. 39 By whom made: person deceased, or unable to testify Subject of declaration/act: pedigree of another person related to him by birth or marriage When admissible: occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. Pedigree - includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these fast occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. e) Family Tradition Rule 130, Sec. 40 Subject of exception: reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. -Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree. f) Common Reputation Rule 130, Sec. 41 What are admissible? Common reputation existing previous to the controversy, respecting facts of public or general interest > 30 years old, or respecting marriage or moral character, may be given in evidence.

Monuments and inscriptions in public places may be received as evidence of common reputation

Note: When it comes to presentation of evidence concerning the good or bad moral character, the only evidence admissible is evidence of COMMON REPUTATION. So if character evidence is allowed a litigant cannot present proof that he is of good moral character. Example: A parish priest of the community where the accused belongs is presented as witness. And the parish priest testifies that the accused goes to mass everyday and receives holy communion. [The testimony is not admissible to show the accuseds good moral character; Moral character for purposes of evidence can be demonstrated ONLY by evidence of REPUTATION]. So the parish priest should tell the court what is the reputation of the accused in the community. Principle of NEGATIVE REPUTE If in a community nothing good or bad is heard about a particular person, the presumption is that he is really a good person, because that flows from the established principle in substantive law that everyone is acting in good faith. g) Entries in the Course of Business Rule 130, Sec.42; Rule 8, REE When made: Entries made at, or near the time of transactions to which they refer By whom made: by a person deceased, or unable to testify, who was in a position to know the facts therein stated, Treatment of such evidence: prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. Rule 8, Section 1. Hearsay rule exception: A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses.

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Rule 8, Section 2. This presumption may be overcome by evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof. h) Official Records Rule 130, Sec. 44 When made: Entries made at, or near the time of transactions to which they refer. By whom made: by a person deceased, or unable to testify, who was in a position to know the facts therein stated, Treatment of such evidence: prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. The report submitted by a police officer in the performance of his duties on the basis of his own personal observation of the facts reported, may properly be constituted as an exception. Entries in a police blotter are not conclusive proof of the truth of such entries. i) Commercial Lists Rule 130, Sec. 45

When admissible: may be given in evidence against the adverse party who had the opportunity to crossexamine him. Unable to testify refers to an inability proceeding from a grave cause almost amounting to death as when the witness is old and has lost the power of speech. 7. OPINION RULE Sec. 48 . General rule. The opinion of witness is not admissible, except as indicated in the following sections. (42) Sec. 49 . Opinion of expert witness. The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he shown to posses, may be received in evidence. (43a) Sec. 50 . Opinion of ordinary witnesses. The opinion of a witness for which proper basis is given, may be received in evidence regarding (a)the identity of a person about whom he has adequate knowledge; (b)A handwriting with which he has sufficient familiarity; and (c)The mental sanity of a person with whom he is sufficiently acquainted. The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person. (44a) OPINION EVIDENCE I - GENERAL RULE (GR): The opinion of a witness is not admissible (Sec. 48) except indicated in the rules. Exceptions: Admissible opinion evidence 1. 2. 3. 4. 5. a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence. the identity of a person about whom he has adequate knowledge; a handwriting with which he has sufficient familiarity the mental sanity of a person with whom he is sufficiently acquainted. his impressions of the emotion, behavior, condition or the appearance of a person

Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein. j) Learned Treatises Rule 130, Sec. 46 A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject. k) Prior Testimony Rule 130, Sec. 47 By whom made: a witness deceased or unable to testify, When given: in a former case or proceeding, judicial or administrative, involving the same parties and subject matter,

Or, Except:

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1. Expert witness: opinion of a witness on a matter requiring special knowledge, skill, experience or training which he shown to possess (R130, 49) 2. Ordinary witness: The opinion of a witness for which proper basis is given, may be received in evidence regarding (a) The identity of a person about whom he has adequate knowledge; (b) A handwriting with which he has sufficient familiarity; and (c) The mental sanity of a person with whom he is sufficiently acquainted. (d) The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person. (R130, 50) There is no precise requirement as to the mode in which skill or experience shall have been acquired. Scientific study and training are not always essential to the competency of a witness as an expert. Knowledge acquired by doing is no less valuable than that acquired by study. Polygraph test has not as yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception. Expert opinions are not ordinarily conclusive in the sense that they must be accepted as true on the subject of their testimony, but are generally regarded as purely advisory; the courts may place whatever weight they choose upon such testimony and may reject it, if they find that it is inconsistent with the facts in the case or otherwise unreasonable. Testimony of handwriting expert not indispensable to COMELEC. Handwriting experts, while probably useful, are not indispensable in examining or comparing handwriting; this can be done by the COMELEC itself. It was ruled by the Supreme Court that evidence aliunde is not allowed to prove that a ballot is marked, an inspection of the ballot itself being sufficient. II. Concept of an opinion as evidence. This consists of the conclusion or inference of a witness on the existence or non-existence of a face in issue. The opinion maybe based on facts personally known to him or as relayed to him by others.

III. Evidentiary Value. Generally opinions are not admissible because: A. The making of an opinion is the [proper function of the court. The witness is supply the facts and for the court to form an opinion based on these facts. B. Opinions are not reliable because they are often influenced by his own personal bias, ignorance, disregard of truth, socio-cultural background, or religion, and similar personal factors. Thus there maybe as many diverse opinions as there are witnesses. C. The admission of opinions as evidence would open the floodgate to the presentation of witnesses testifying on their opinion and not on facts. IV. Examples of matters on which opinions are irrelevant 1. The final outcome of a case such as whether an accused should be acquitted or not, or who should win a case, the amount of damages to be awarded to the winner 2. The question of care or negligence 3. Motives or reasons behind the action of a person, unless these were relayed to the witness 4. Valuation of properties 5. Cause of an event as being due to an accident, mechanical defect or human error or action of nature V. Exceptions or when an opinion is admissible as evidence 1. 2. In case of expert opinions given by an expert pursuant to Section 49 In case of lay opinions on certain specific matters pursuant to section

EXPERT OPINION Sec. 49. Opinion of an expert- The opinion of a witness on a matter requiring special knowledge, skill, experience or training, which he is shown to possess, maybe received in evidence. I. Who is an expert- A person possessing knowledge or skill not usually acquired or possessed by other persons, in regard to a particular subject or aspect of human activity. Expertise is acquired through any of the following manners:

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1. By formal education such as in the case of lawyers, physicians, engineers, dentists, metallurgists, chemists 2. Through special training or seminars as in the case of ballisticians, weapons experts, finger print experts, questioned-documents expert, masseurs, pilots 3. Through experience based on the exercise of a profession, trade, occupation, industry such as carpenters, wielders, machinists or mechanics, deepwell diggers 4. Through hobbies as in the case of stamp collectors, coin collectors, gun collectors, ornithologists, photographers, animal breeders, 5. Through careful study and research as in the case of those who study old civilizations, or various aspects of medicine II. Requirements for the Admissibility of Expert Opinion. A. The subject of inquiry requires the opinion of an expert, or that the fact in issue requires the opinion of an expert. 1. The use of an expert is becoming more frequent in order to explain how and why things happened the way they did or didnt happen the way they were supposed to, as in the following cases: a). In personal injury cases where physicians or surgeons are needed to prove the cause and effect of certain injuries, so also economist as to the amount of income which was lost b). Products liability cases where there is need for reconstruction experts to prove the defects in a certain products. Such as a car accident being due to factory defects in the wheel, or a mechanical defect attributable to the manufacturer c). Actions relating to constructions where there is need for engineers and architects as injury to a bridge which collapsed, or breach of contract in that the building was constructed poorly 2. The opinion is used: traditional areas where expert death

(iv). Ballistics (v). Criminal cases involving injuries and

(vi). Drug cases (vii). Value of properties (viii). Blood groupings (ix). DNA Profiling (x) Forensics B. The witness is shown to be an expert. It must be shown that the witness possesses certain skills or knowledge and is therefore in a position to assist the court based on these skills or knowledge III. Manner of showing the witness is an expert 1. By asking the adverse party to admit and stipulate that the witness is an expert. This is where the witness regularly appears in court as an expert and is familiar to the court, or where the witness occupies a position requiring certain knowledge or skill, as a medico legal officer. 2. Through the process known as Qualifying the Expert- propounding questions to the witness concerning his background and eliciting answers from the witness showing he possesses special knowledge or skill on the matter on which he is to testify 3. If the expertise is not admitted and the witness is not properly qualified, he is to be regarded as an ordinary witness and may be objected in giving an opinion IV. Components of Qualifying the Witness 1. Show the general professional background. Questions propounded are directed to bring about the facts concerning his (a) education (b) degrees obtained (c) academic honors or scholarships granted or earned (d) licenses obtained (e) employment history, positions held, number of years in his position , promotions earned 2. Show the specific professional background. Questions asked are directed to bring out answers to the specific facts or skills such as (a) special trainings undergone (b) publications authored (c) membership in professional associations (d) as lecturer or speaker or resource person (e) how often he was called as a witness and (f) particular work

(i). Questions involving handwriting (ii). Questioned documents (iii). Fingerprints

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experience which bear directly on the situation about which he is testifying V. Basis of Opinion or How to elicit the Experts opinion A. Kind of Facts as Basis for the Opinion: 1. Facts personally known to the expert or about which he has first hand knowledge. 2. Opinion maybe based on facts about which he has no personal knowledge or first hand knowledge, but are based either (i) on the report or facts as found by another expert who had first hand knowledge, provided the report is not hearsay or that the other expert had testified and subjected to the opportunity for cross-examination or (ii) on facts already testified to by witnesses and established by the records of the case B. Manner of Questioning 1. Where the basis are facts personally known to the expert, these facts must first be elicited from the witness after he may be asked directly whether he has any opinion about them and to state what his opinion is. Example: The medico legal officer who conducted the autopsy will first be asked to state his findings as to the nature, number, location, description, depth, trajectory, etc, of the wounds of the victim after which he is asked to state his opinion as to the cause, weapon used, position of the victim and assailant, cause of the death, etc.. 2. By the use of Hypothetical Questions when the opinion is based on facts not personally known to the witness. a). It is a question which, for purposes of the answer, assumes certain facts which have counter parts in the evidence, and asks the witness to give an opinion as to certain matters based on these facts. Since the witness has no personal knowledge of these facts, he is told these facts and then is asked to assume the facts to be true, and finally to give an opinion. b). The question must incorporate or refer accurately to all the relevant facts- as proven- as basis for asking the opinion c). In case of physicians, the phraseology is usually thus: Assuming all these facts to be true within a reasonable degree of medical certainty, what might have caused the injuries?

3. The expert may asked to state that his opinion is supported by learned treaties or shared by others in his class VI. Weight of Expert Opinion 1. Courts are not bound as the opinions do not produce conclusive effect but are regarded as persuasive and advisory which the court may or may not consider. 2. Opinions are to be treated on the same level as any other evidence. 3. Factors to be considered in giving weight, or points to show the opinion is of no weight

a). The qualification of witness : The degree of learning and academic background The experience, professional standing and training, or his being abreast with the latest developments

b). The reliability of the opinion: 1) The relative objectivity of the witness such as the presence or absence of personal or professional bias or motive and 2) the degree of concordance of his opinion with the facts proven or the basis and logic of his conclusions SUGGESTED CHECKLIST FOR QUALIFYING AN EXPERT (Taken from: Fundamentals of Trial Techniques by Thomas Mauet, Professor of the University of Arizona) 1. Name, address and personal circumstances 2. Business or occupation: what is it-length of timedescription of field company or organization joinedcapacity and length of time where located-prior position-description of positions 3. Education: (a) undergraduate-degree, year of graduation-honors obtained (b) graduate school- degree- when, area of study 4. Training: formal course-what-when-where-under whom-length of time 5. Licenses: what-when-reviewed-specialty- whenrequirements

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6. Professional associations: 7. Other background: teaching publications-lectures-consultancy work positions-

b). positive findings or negative findings c). x-ray findings d). lab test findings

8. Expert witness at trials: how many- which side D. Diagnosis: tentative and definite 9. Experiences in Specialty: (a) type of examination commonly done- how many Example: Private Physician who treated a patient F. Subsequent examinations A. Qualifications: Licensed: where and when Education and training: college/medical schoolwhen-degree-internship-residency Specialty training-specialty boards-requirements Hospital staff membership Teaching positions Publications and lectures Medical Society memberships Other honors Previously testified as an expert B. Experience Description of practice Number of patients Examination of similar types Experience with x-rays, lab test, etc C. Examination of Patient 1. Description of office records 2. History of the patient A. General Method of Identification 3. Examination conducted a). complaint (symptoms) 1. Identification by scientific methods: by the teeth; fingerprints, foot prints and by DNA analysis G. Patients examination Present Condition based on last E. Treatment (chronological) operation-drug-casts hospitalization-

H. Opinion on causation I. Prognosis: opinion on prospects for complete recovery J. Amount of present and future medical service LAY OPINION Sec. 50. Opinion of ordinary witnesses- The opinion of a witness for which proper basis is given, may be received in evidence regarding(a) The identity of a person about whom he has adequate knowledge (b) A handwriting with which he has sufficient familiarity (c) The mental sanity of a person with whom he is sufficiently acquainted. The witness may also testify on his impressions of the emotion, behavior, conditions or appearance of a person. Opinion on the identity of a person. Where the issue is whether a particular person is involved in an event. As for example: 1). the accused sets up alibi or defense of mistaken identity; 2). in claims for insurance, determining whether a body is that of the insured 3). determining who be the victims

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2. By Lay Opinion: by face, physical appearance, height, body built, sex, color of hair, racial features, mannerisms, gait, clothing speech , defects, tattoos or marks or scars and other marks on the body, or by any factor which distinguishes him from another. . a). Identification of a person is not solely through knowledge of his name. In fact, familiarity with physical features, particularly of the face, is the best way to identify a person. One maybe familiar with the face but not necessarily with the name of a person. It does not follow therefore that to be able to identify a person, one must necessarily know his name. Example: precisely because of the unusual bestiality committed before their eyes, eyewitnesses, especially victims of a crime, can remember with high degree of reliability the identity of criminals. b) The witness must however be able to explain his basis of identification 3. By the style of writing B. In-court and Out-of-Court Identification in criminal cases. In-court identification maybe influenced by the reliability of the out-of-courtidentification. The latter consists of either: 1. By the police Methods of Identification of suspects a) Show-ups-where the suspect alone is brought face to face with the witness for identification b). Mug file shots or based on the Rouges Gallery c). Line-ups where a witness identifies the suspect form a group of persons lined up for the purpose 2. By circumstances: Totality of Circumstances Test. Several factors are to be considered, to wit: a). Witness opportunity to view the criminal at the time of the crime. These include matters such as presence of light, distance of viewing, length of time of the event; presence of obstructions to line of visions, the position of the witness in relation to the suspect b). The witness degree of attention at that time: to what or who was he focused on, as well as the presence of distractions c). The accuracy and consistency of any prior descriptions by the witness

d). The level of certainty demonstrated by the witness at the time of the identification. Example: the reaction of a victim upon seeing the suspect e). The length of time between the time of the occurrence and the time of the identification f). The suggestiveness of the identification process. C. Concept Identification and Types of Positive

1. Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the very act of commission of the crime. 2. First Type: As direct evidence: where a witness, as an eyewitness, may identify a suspect or accused to the very act of the commission of the crime 3. Second Type: As part of circumstantial evidence: where a witness may not have actually witnessed the very act of the commission of the crime but is still able to positively identify a suspect or accused as the perpetrator of a crime as when, for instance, the suspect/accused is the person last seen with the victim before or right after the commission of the crime ( Baleros vs. People, 483 SCRA 10, Feb. 22, 2006) I. Opinion on Handwriting.

A handwriting maybe proved to be that of a particular person by any of the following: 1. By the opinion of an expert the opinions of handwriting experts, although helpful in the examination of forged documents because of technical procedure involved in the analysis, are not binding upon the courts. As such, resorts to these experts is not mandatory or indispensable to thee examination or the comparison of handwriting. A finding of forgery does not depend entirely on the testimonies of handwriting experts, because the judge must conduct an independent examination of the questioned signature in order to arrive at a reasonable conclusion as to its authenticity ( G& M Phil. Inc. vs. Cuambot 507 SCRA 552) 2. By the admission of the author/owner of the handwriting 3. By the testimony of witnesses or those who actually saw the person write, they maybe subscribing witnesses or eye witnesses

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4. By the testimony of those who have gained sufficiently familiarity with the handwriting of the person, under section 50. a) By the fact that he has seen writing purporting to be that of the other person upon which he has acted or been charged. Example: persons in receipt of demand letters, notices, purchase orders, letters of inquiry, directive, memorandum, letters of authority b) Familiarity has been acquired due to close personal, business, social or professional relations which include the regular receipt, sending and reading of mutual written hand-written communications between the witness and the other person. Examples are (i) Personal or social relations such as pen-pals, spouses, lovers, classmates (ii) Business such as between the employee such as secretary and employer, teacher and student 5. By the testimony of those who are in receipt of reply letters (Identification by subject matter) 6. Identification by the court based on a comparison between the genuine handwriting and the one in issue 7. Identification by the style of writing Note: Familiarity with signature is not necessarily familiarity with handwriting and viceversa. (The application of section 50 may be lessened due to increasing frequency of communications by e-mail, or machine prepared communications, and other modern gadgets.) 1. An allegation of forgery and a perfunctory comparison of the signature/handwritings by themselves cannot support a claim of forgery, as forgery cannot be presumed and must be proved by clear, positive and convincing evidence and the burden of proof lies on the party alleging forgery. Criteria to determine forgery or falsification: per Ladignon vs. CA ( 390 Phil. 1161 as reiterated in Rivera vs. Turiano ( March 7, 2007): The process of identification must include not only the material differences between or among the signatures/handwritings but a showing of the following: (i) the determination of the extent, kind and significance of the resemblance and variation ( of the handwriting or signature)

(ii) that the variation is due to the operation of a different personality and not merely an expected and inevitable variation found in the genuine writing of the same writer (iii) that the resemblance is a result more or less of a skillful imitation and not merely a habitual and characteristic resemblance which normally appears in genuine handwriting

III. Opinion on the sanity of a person. There are two instances when an ordinary person may testify on the mental sanity or state of mind of a person: 1. Under the Civil Code it permits the opinion of a subscribing witness to a writing the validity of which is in dispute in that the sanity or state of mind of a party thereto is put in issue. Examples: (a). An attesting witness to a will may give his opinion on whether the testator was of sound and disposing mind (b) A subscribing witness to a contract may give his opinion that the party was fully conscious and aware of the nature of his acts 2. Under section 50 of Rule 130 in that it allows the opinion of an intimate acquaintance who may give his opinion based on the external conduct of a person. Examples are family members, immediate neighbors, house hold helps, office and business acquaintances. Thus where the accused puts up insanity as a defense, his friends, relatives and family members are competent to testify on his mental sanity. But not strangers or casual acquaintances IV. Opinions on the emotions, behavior, conduct or appearance of a person. 1. Examples: (a) emotions: that a person is angry, agitated, exited, tense, nervous, hesitant. Happy, elated, grateful, afraid (b) condition or appearance- as unkempt, dirty, well groomed, drunk, tired, sleepy, haggard, sickly 2. But a witness may not give his opinion on the motive, reason or purpose why a person did or did not do an act unless these were communicated to the witness, such as jealousy or revenge, or financial reward.

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V. Instantaneous impressions of the mind. 1. These include opinions on the conditions or state of things, or of persons or things in motion such as on the weather, speed of vehicles, distance, value of his personal things or property, or value of services. VI. Opinion on the age of a person. As a general rule, the age of person maybe established by: (a) the record of birth b) Opinion of an expert (c) Opinion of an ordinary witness who is acquainted with the person whose age is in question, such as a relative, a contemporary, persons in the know in the community where he lives, as well as (d) Family tradition, entries in family records 8. CHARACTER EVIDENCE Sec. 51 . Character evidence admissible; exceptions: (a)In Criminal Cases: (1)The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. (2)Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved in the offense charged. (3)The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged. (b)In Civil Cases: Evidence of the moral character of a party in civil case is admissible only when pertinent to the issue of character involved in the case. (c)In the case provided for in Rule 132, Section 14, (46a, 47a) Conduct and Character as Evidence Conduct Rule 130, Secs. 34-35 not generally

- Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like. - An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production and tender of the money, instrument, or property. Character Rule 130, Sec. 51; Rule 132, Sec. 14 General Rule: Character evidence is not admissible, [because it is purely circumstantial] exceptions1. In criminal cases - Accused = may prove his good moral character which is pertinent to the moral trait involved in the offense charged. - Prosecution = may not prove his bad moral character unless in rebuttal. - Offended Party = his/her good or bad moral character may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged. 2. In civil cases - Evidence of the moral character of a party in a civil case is admissible only when pertinent to the issue of character involved in the case. - Witness = Evidence of his/her good character is not admissible until such character has been impeached. While evidence of another crime is, as a rule, not admissible in a prosecution for robbery; it is admissible when it is otherwise relevant, as when it tends to identify defendant as the perpetrator and tends to show is presence at the scene of the crime or in the vicinity of the crime at the time charged, or when it is evidence of a circumstance connected with the crime. (People vs. Irang, 1937) Good or bad moral character of the victim is not necessary in a crime of murder where the killing is committed through treachery or premeditation. (People vs. Soliman, 1957) CHARACTER EVIDENCE

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I. INTRODUCTION. Section 51 provides the general rule that character evidence is generally not admissible as evidence except in the cases specified therein. General Rule: Character evidence not generally admissible (Sec. 51) Exceptions 1. In Criminal Cases: accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. a. In rebuttal, the prosecution may prove the bad moral character of the accused which is pertinent it to the moral trait involved in the offense charged. moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged. In Civil Cases only when pertinent to the issue of character involved in the case, good character of an impeached witness

3. The only method allowed is proof of reputation in the community or place where a person is known by persons acquainted with him. Although it may happen that the reputation is not always the character. IV. Coverage of the Rule. Where the rule allows the introduction of character evidence, it is understood to be limited to MORAL CHARACTER, the possession by a person of the qualities of mind and morals distinguishing him from others. This is limited to: 1. Good Moral Character which includes all the elements necessary to make up such a character as honesty, veracity in all professional, business, commercial intercourse or dealings of a person; the virtue of chastity, or those character which measures up as good among people, or that which makes a person look upon as being up to the standards of good behavior and upright conduct. 2. Bad Moral Character or those which defines a persons tendency to be of loose morals, evil, to be violent, dishonest, to disregard law and authority and the welfare of the community V. Reason for the General Rule on Inadmissibility Character is highly irrelevant in determining a controversy. If the issues were allowed to be influenced by evidence of the character or reputation of a party, the trial would have the aspect of a popularity contest rather than a factual inquiry into the merits of the case. After all the business of the court is to try the case and not to try the man for a very bad man may have a very good case, in much the same manner that a very good man may have a very bad case. VI. Rule in Criminal Cases 1. Moral Character of the Accused. a). The accused enjoys the presumption of good moral character but he is given the privilege of proving a particular moral character if it is pertinent to the moral trait involved in the offense i.e. the character evidence must be relevant and germane to the kind of act or omission charged. (i). In estafa or embezzlement or malversation the moral trait is that of dishonesty and deceit. Hence the accused may introduce evidence of his honesty, fairness and openness in his personal and business deals or transactions (ii). In physical assault cases the moral trait is violence hence the accused may introduce evidence of his peaceable nature, his being friendly or of his passivity

b.

c.

II. Concept of Character As Evidence 1. Character is the sum total of all the traits of a person which distinguishes the person from others. They include the physical, mental, emotional and psychological attributes of a person. These maybe genetically acquired, or inherited or in-born, such as a persons sex, height, physical appearance. Or they may be acquired and developed such as personality and behavioral characteristics due to virtues or vices, such as being bad, immoral, honest, lazy, anti-social or friendly. Character is what a person truly is. 2. Reputation on the other hand is the estimation of a person by other people, or what people think a person is. Character is not always ones reputation as people may pretend and present a public face or image different from what they are in private. One may have a good reputation but a bad character and vice-versa. 3. What a person thinks of himself is either his illusion or delusion III. Proof of Character 1. By personal opinions- this is not allowed 2. By specific conduct- this is also not allowed

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(iii). In rape, he may prove his chaste character b) The moral character must be one in existence at the time of the commission of the crime c). evidentiary value. Evidence of good moral character is not a basis for acquittal. (i) It serves only as a positive defense because I affords a presumption against the commission of a crime in that, it is improbable that a person who has uniformly pursued an honest and upright course of conduct will depart from it. (ii) It is to be regarded only as circumstantial evidence of innocence as its role is to provide a basis for the court to doubt his guilt. d). Where the crime is one of great or atrocious nature or criminality, or the so called heinous crimes, evidence of good moral character is of little weight, as for instance in multiple murder e). The Prosecution may not immediately introduce evidence of the bad moral character because: (i) it is to avoid undue prejudice on the part of the judge due to the deep tendency to punish not because the accused is guilty but because of his bad character and (ii) to avoid confusing the issues f) WHEN MAY THE PROSECUTION INTRODUCE EVIDENCE OF THE BAD MORAL CHARACTER OF THE ACCUSED? (Ans). 1. Pursuant to section 51, only in rebuttal provided the accused introduced evidence of his own good moral character during the presentation of his evidence-in-chief. This is to prevent the accused from having a free hand and fabricating evidenced of his good moral character without fear of contradiction. 2. Pursuant to the Rule on Cross-Examination, if the accused testifies in his own behalf, the prosecution may prove his band character as a witness i.e. his veracity for truth is bad 2. The Moral Character of the Victim may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged a). The Prosecution may immediately introduce evidence of the good moral character of the victim if: (i). If it is an element of the offense charged, such as good reputation in case of seduction, or in libel and oral defamation

(ii) It proves the probability of the offense charged as in sex crimes such that the victim could not have given consent due to her good moral character b). The accused may prove the bad moral character of the victim in the following cases (i). In assault or homicide cases where he sets self-defense, or in cases of the Battered Wife Syndrome defense, the accused may prove the victim is of a violent character, quarrelsome, trouble seeker or pugnacious. This is to prove it was the victim who was the aggressor. Likewise to show the state of mind of the accused in that bad character of the victim produced a reasonable belief of imminent danger on the mind of the accused and a justifiable conviction that a prompt action was necessary. (ii) In sex crimes involving unchaste acts of the accused, where the willingness of the woman is material, her character as to her chastity is admissible to show whether or not she consented to the mans acts (iii) In murder an in other heinous crimes, evidence of the bad moral character of the victim is irrelevant VII. Rule in Civil Cases 1. Evidence of the character of the parties is not admissible unless the issue involved is character i.e. character is of particular importance in the case, or that the good or bad moral character of a party will affect the outcome of the case. 2. Examples of the exception a). Action for damages plaintiffs reputation as in libel cases for injury to

b). Actions which impute moral turpitude such as the employment of deceit, misrepresentation or fraud c). Actions for damages due to seduction d). Legal separation or annulment of marriage based on reasons grounded on the character of the spouses, such as psychological incapacity e). Action for damages for breach of promise to marry where the bad character of plaintiff maybe used as a defense

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f). As a defense in actions for Alienation of Affection g). In actions involving custody of children h). Opposition to the appointment of a guardian, or administrator of the property of another VIII. Rule as to Witnesses 1. The witness enjoys the presumption of good moral character hence it is not necessary to introduce evidence thereof 2. However, evidence thereof is necessary in order to rehabilitate the character of the witness if the same had been impugned by the adverse party 3. The bad moral character as witness, his tendency to lie or improper motives may be shown by the adverse party IX. Rule as to Third Parties 1. Generally evidence thereof is inadmissible being irrelevant as they are neither parties nor witnesses 2. However if relevant in that they may affect the issues of the case, then evidence thereof maybe admitted. Thus in an action for legal separation based on adultery by the wife with a man, evidence that the man is a person of good moral character may be introduced as proof that the man could not have entered into the adulterous relationship RULE 131 Burden of Proof and Presumptions SECTION 1 . Burden of proof. Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. (1a, 2a) Sec. 2 . Conclusive presumptions. The following are instances of conclusive presumptions: (a)Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led to another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it: (b)The tenant is not permitted to deny the title of his landlord at the time of commencement of the relation of landlord and tenant between them. (3a)

Sec. 3. Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: (a)That a person is innocent of crime or wrong; (b)That an unlawful act was done with an unlawful intent; (c)That a person intends the ordinary consequences of his voluntary act; (d)That a person takes ordinary care of his concerns; (e)That evidence willfully suppressed would be adverse if produced; (f)That money paid by one to another was due to the latter; (g)That a thing delivered by one to another belonged to the latter; (h)That an obligation delivered up to the debtor has been paid; (i)That prior rents or installments had been paid when a receipt for the later one is produced; (j)That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things which a person possess, or exercises acts of ownership over, are owned by him; (k)That a person in possession of an order on himself for the payment of the money, or the delivery of anything, has paid the money or delivered the thing accordingly; (l)That a person acting in a public office was regularly appointed or elected to it; (m)That official duty has been regularly performed; (n)That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction; (o)That all the matters within an issue raised in a case were laid before the court and passed upon by it; and in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid before the arbitrators and passed upon by them;

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(p)That private transactions have been fair and regular; (q)That the ordinary course of business has been followed; (r)That there was a sufficient consideration for a contract; (s)That a negotiable instrument was given or indorsed for a sufficient consideration; (t)That an endorsement of negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated; (u)That a writing is truly dated; (v)That a letter duly directed and mailed was received in the regular course of the mail; (w)That after an absence of seven years, it being unknown whether or not the absentee still lives, he is considered dead for all purposes, except for those of succession. The absentee shall not be considered dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. The following shall be considered dead for all purposes including the division of the estate among the heirs: (1)A person on board a vessel lost during a sea voyage, or an aircraft with is missing, who has not been heard of for four years since the loss of the vessel or aircraft; (2)A member of the armed forces who has taken part in armed hostilities, and has been missing for four years; (3)A person who has been in danger of death under other circumstances and whose existence has not been known for four years; (4)If a married person has been absent for four consecutive years, the spouse present may contract a subsequent marriage if he or she has well-founded belief that the absent spouse is already death. In case of disappearance, where there is a danger of death the circumstances hereinabove

provided, an absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage. However, in any case, before marrying again, the spouse present must institute a summary proceedings as provided in the Family Code and in the rules for declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (x)That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact; (y)That things have happened according to the ordinary course of nature and ordinary nature habits of life; (z)That persons acting as copartners have entered into a contract of copartneship; (aa)That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; (bb)That property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under void marriage, has been obtained by their joint efforts, work or industry. (cc)That in cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquire properly through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal. (dd)That if the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary: (1)A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. (2)A child born after one hundred eighty days following the celebration of the

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subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. (ee)That a thing once proved to exist continues as long as is usual with things of the nature; (ff)That the law has been obeyed; (gg)That a printed or published book, purporting to be printed or published by public authority, was so printed or published; (hh)That a printed or published book, purporting contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases; (ii)That a trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest; (jj)That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and the age of the sexes, according to the following rules: 1.If both were under the age of fifteen years, the older is deemed to have survived; 2.If both were above the age sixty, the younger is deemed to have survived; 3.If one is under fifteen and the other above sixty, the former is deemed to have survived; 4.If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived, if the sex be the same, the older;

5.If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived. (kk)That if there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, they shall be considered to have died at the same time. (5a) Sec. 4 . No presumption of legitimacy or illegitimacy. There is no presumption of legitimacy of a child born after three hundred days following the dissolution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation. (6) BURDEN OF PROOF Burden of proof the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law Burden of Proof Rule 131, Sec. 1 Burden of proof (Risk of non-persuasion): duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount required by law. Criminal Cases: The burden of proof is on the prosecution, because under Rule 133 the accused is entitled to acquittal unless his guilt is demonstrated by proof beyond reasonable doubt Civil Cases: The usual principle is that whoever makes an affirmative allegation has the burden of proof Infringement cases: The burden of proof to substantiate a charge of infringement is with the plaintiff. But where he plaintiff introduces the patent in evidence, and the same is in due form, there is created a prima facie presumption of its correctness and validity. The decision of the Commissioner of Patent (now the Director of the Intellectual Property Office), in granting the patent is presumed to be correct. The burden of going forward with the evidence (burden of evidence) then shifts to the defendant to overcome by competent evidence this legal presumption. (Maguan v. Court of Appeals, et al., 146 SCRA 116, 117)

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Two separate burdens in Burden of Proof: 1. 2. Burden of going forward- that of producing evidence Burden of persuasion- burden of persuading the trier of fact that the burdened party is entitled to prevail

Illustration of going forward with the evidence: For example after the existence of a debt has been proven by the creditor the burden of proving payment devolves upon the debtor. Where the debtor introduces evidence of payment, the burden of going forward with the evidence - as distinct from the general burden of proof- shifts to the creditor who is then under the duty of producing evidence to show non-payment. (Jimenez, et al, v. NLRC, et al., G.R. No,. 116960, prom. April 2, 1996) In short, the burden of going forward is the burden of producing evidence. EFFECT OF ABSENCE OF EVIDENCE or no evidence is presented CRIMINAL CASE: Accused is acquitted CIVIL CASE: a. b. When defendant does not file an answerPlaintiff wins When defendant files an answer and sets up purely negative defenses and no evidence is presented by both sides- Defendant wins because plaintiff has not carried his burden When defendant files an answer and sets up affirmative defenses and no evidence is presented by both sides- Plaintiff wins

Illustration: Plaintiff files a complaint for recovery of a defaulted loan. Defendant files an answer with a negative defense, denying the existence of the loan. [ At the start, the plaintiff has the burden of proof and also burden of evidence, he should go to trial and present evidence to show that he has a cause of action. If he has introduced enough proof that he has a cause of action, the burden of evidence will now be shifted to the defendant. If defendant presents enough evidence to prove his negative defense then the burden of evidence is shifted again to the plaintiff on rebuttal evidence.] Can the accused in a criminal/civil case before presenting his own evidence ascertain conditionally or provisionally whether the evidence presented by the prosecution is enough to convict him? Yes. In a criminal/civil case, the accused(defendant/plaintiff) can easily determine the sentiment of the court concerning the quantum of evidence presented by the prosecution(defendant/plaintiff) by simply filing a demurrer to evidence with leave of court. PRINCIPLE OF NEGATIVING AVERMENT A negative averment do not have to be proven UNLESS the negative averment is an essential part of the cause of action or defense. Example: In an information for illegal possession of firearms, the information will contain an averment that the accused does not have a license to possess the firearm[negative averment]. In this case, the negative averment is an essential part of the commission of the crime, hence this must be proven. Doctrine of Equipoise or Equiponderance Rule Where the evidence on an issue of fact is in equipoise or there is doubt on which side the evidence preponderates, the party having the burden of proof fails upon that issue. (Rivera v. Court of Appeals, et al., G.R. No. 115625, prom. January 23, 1998) Therefore, as neither party was able to make out a case, neither side could establish its cause of action and prevail with the evidence it had. They are thus no better off than before they proceeded to litigate, and, as a consequence thereof, the courts can only leave them as they are. (Rivera, supra

c.

Example: The defendant filed an answer: I admit that I borrowed money from the plaintiff, but the plaintiff has no reason to run after me because I have paid that account long time ago. [If no evidence is presented by both sides then plaintiff wins because the defendant admitted the existence of loan. And it is the defendants burden to prove his affirmative defense.] BURDEN OF EVIDENCE- the duty resting upon a party, by means of evidence, to create or meet a prima facie case. BURDEN OF PROOF vs. BURDEN OF EVIDENCE Burden of Proof NEVER SHIFTS, while Burden of Evidence is TRANSFERRED from one litigant to another depending on the progress of trial.

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citing Municipality of Candijay, Bohol v. Court of Appeals, 251 SCRA 530) Presumptions Rule 131, Secs. 2-4

conclusive upon the title to the thing or upon the political or legal condition of a person, {judgment in rem or in personam})

Presumption- an inference as to the existence or nonexistence of a fact which courts are permitted to draw from the proof of other facts. CLASSIFICATIONS 1. PRESUMPTION JURIS OR OF LAW- a deduction which the law expressly directs to be made from particular facts -Must be made whenever the facts appear which furnish the basis for the inference -Reduced to fixed rules and form part of the system of jurisprudence 2. PRESUMPTION HOMINIS OR OF FACT- a deduction which reason draws from facts proved without an express direction from the law to that effect -Discretionary on the court -Derived from circumstances of a particular case through common experience of mankind CLASSIFICATIONS OF PRESUMPTIONS OF LAW 1. Conclusive- not permitted to be overcome by any proof to the contrary 2. Disputable- law permits to be overcome or contradicted 1. Conclusive

2.

Disputable

CLASSIFICATIONS: 1. Presumption of innocence (Presumption of good faith) 2. Presumption of regularity of official and judicial acts 3. Presumption of regularity of private transactions Evidence willfully suppressed would be adverse if produced ELEMENTS: a. The suppression is wilful. (Sec. 3-e, Rule 131, ROC) continue b. The suppression is not in the exercise of a privilege. c. The evidence corroborative. suppressed is not merely

d. The evidence is at the disposal only of the suppressing party. NOTES: Instances where adverse presumption from suppression of evidence does not apply: a. If the evidence is at the disposal of both parties. (People v. Ducay, 225 SCRA 1) b. The suppression was not willful. c. The suppressed evidence is merely corroborative or cumulative. d. The suppression is an exercise of a privilege. (People v. Navaja, 220 SCRA 624) The presumption that evidence not produced or willfully suppressed is adverse to the party, will not apply if the evidence is at the disposal of both the defense and the prosecution and if the evidence is merely conclusive. Instances of conclusive presumptions 1. a party has, by his own declaration, act, or omission, intentionally and deliberately led

Whenever a party by his own declaration, act, omission, has led another 1 to believe a particular thing to be true AND 2 to act upon such belief, he cannot in any litigation arising out of such declaration, act or omission be permitted to falsify it. (Estoppel) The TENANT is not permitted to deny the title of his landlord at the time of the COMMENCEMENT of the relation of landlord and tenant between them. Note: There is also a conclusive presumption under the Rule 39, which is a public policy principle of res judicata (a judgment is

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2.

another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it: The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them.

unless they are substantiated. Similarly, in criminal cases, the offense and the aggravating circumstances charged in an Information remain just accusations until they are shown to be true by the presentation of evidence. Defendant is not relieved from liability simply because the raises a defenses. II - Distinguished from related concepts: 1. Burden of Proof Proper or Burden of Persuasion or Risk of Non Persuasion- the duty of the party alleging the case to prove it. a). This lies with the plaintiff b). This lies too with the defendant as to his defenses and counter-claim 2. Burden of Evidence or Burden of Going ForwardThe duty or logical necessity imposed upon a party, at any time during the trial, to establish a prima facie case in his favor or to overcome a prima facie case against him when the prosecution has succeeded in discharging the burden of proof by presenting evidence sufficient to convince the court of the truth of the allegations in the Information, or has established a prima facie case against the accused, the burden of evidence shifts to the accused making it incumbent upon him to adduce evidence in order to meet and nullify, if not overthrow, that prima facie evidence. ( PP vs. Villanueva, 506 SCRA 280) 3. Points of distinction: a). The former never shifts but remains constant with the party while the latter shifts from one party to the other as the trial progresses b). In civil cases where it leis is determined by the pleadings while the latter is determined by the rules of logic. III. Who has the Burden of Proof Proper

Statutory instances of estoppel 1. 2. 3. 4. non-owner transferor who later acquires title passes ownership to the transferee by operation of law (Art. 1434 NCC) agent who alienates can not claim title against the transferee (Art. 1435 NCC) a lessee or a bailee is estopped from asserting title to the thing leased or received, as against the lessor or bailor. (Art. 1436 NCC) in a contract between 3rd persons concerning immovable property, one of them is misled by a person with respect to the ownership or real right over the real estate, the latter is precluded from asserting his legal title or interest therein, provided all these requisites are present: a. b. c. d. e. fraudulent representation or wrongful concealment of facts known to the party estopped; party precluded must intend that the other should act upon the facts as misrepresented; party misled must have been unaware of the true facts; and party defrauded must have acted in accordance with the misrepresentation. (Art. 1437 NCC) One who has allowed another to assume apparent ownership of personal property for the purpose of making any transfer of it, cannot, if he received the sum for which a pledge has been constituted, set up his own title to defeat the pledge of the property, made by the other to a pledgee who received the same in good faith and for value. (Art. 1438 NCC)

I. BURDEN OF PROOF AND PRESUMPTIONS Section 1. Burden of Proof the Duty of a party to present evidence on the facts in issue necessary to establish his claim by the amount of evidence required by law. This is also known as the Onus Probandi Relationship between allegation and proof. He who alleges must prove. Allegations do not prove themselves. Although plaintiffs causes of actions are couched in the strongest terms and most persuasive language, the allegations are of no consequence 1. The general rule is- he who would lose the case if no evidence is presented. Hence it is the plaintiff as to his causes of action, and the defendant as to his counterclaim. 2. In criminal cases, the burden of proving guilt is always the plaintiff/prosecution. But if the accused sets up an affirmative defense, the burden is on him to prove such by clear, affirmative and strong evidence

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The foregoing rests on the maxim: EL INCOMBIT PROBOTION QUI DECIT NON QUI NEGAT (He who asserts, not he who denies, must prove}

b) Actions based on non-compliance with a legal obligation, such as giving of support, or of a contractual obligation or with the terms or conditions of a contract c). Allegations of lack of due care on the part of the defendant 2. Criminal Cases: a). if the negative allegation is an essential element of the offense charged or when the charge is predicated on a negative allegation. i). Lack of permit or license in offenses involving firearms ii). Lack of permit or authority to recruit

IV. The Equipoise Rule: where the evidence of the parties is evenly balanced, the case will be resolved against the plaintiff, thus in criminal cases the accused must be acquitted and in civil cases, the complaint must be dismissed. V. What to prove in criminal cases: A. By the Prosecution: 1. Each and every element of the crime charged in the Information 2. Where there be two or more accused, the prosecution must prove the conspiracy and the participation of each of the several accused in the commission of the crime 3. All aggravating circumstances, whether ordinary, special or qualifying, as are alleged in the Information 4. The civil liability based on the crime B. By the Accused 1. Non-Liability a). His Affirmative Defenses positive and convincing evidence by clear,

iii). Absence of a Building Permit iv). Absence of consent of the victim in sex crimes, theft or robbery; Arbitrary Detention requiring proof of absence of formal charges filed within the required period v). Lack of care or failure to obey traffic rules, or to take necessary precautions, in case of reckless imprudence b). (i) If the negative of an issue does not permit of direct proof or (ii) the facts are more immediately within the knowledge of the accused in which case the onus probandi rest upon the accused ( PP. vs. Macalaban, 395 SCRA 461) Example: Rule as to Drug Cases. Unlike in offenses involving firearms, the prosecution has no burden to prove the lack of authority from the Dangerous Drugs Board or government agency for the accused to sell, transport or possess dangerous drugs. It is the accused who must prove he is exempted from obtaining a license or permit. The reason is because this is a matter which is purely within his knowledge ( PP. vs. Johnson, 348 SCRA 526). When the Burden of Proof is Dispensed With 1. In case of facts which were judicially admitted

b). His negative defenses such as denial alibi, or mistake in identity 2. Lesser liability: the offenses is a lesser offense or lesser stage of commission, or that his participation is of lesser degree 3. Mitigating circumstances VI. Rule as to Negative Allegations: A. General Rule: Negative allegations need not be proved B. Exceptions:

2. As to facts Judicially noticed 1. In civil cases- if it constitutes part of the statement of the cause of action of the plaintiff a). Actions based on non-payment or non-delivery of money or goods 3. As to facts conclusively presumed 4. As to facts which are irrelevant

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5. As to facts which exclusively within knowledge of the adverse party 6. As to negative allegations PRESUMPTIONS I. Introduction: The facts in issue are either (i) proved by the presentation of testimonial, documentary or object evidence or they are (ii) presumed II. Concept: An assumption or conclusion as to the existence of a fact based on another fact or group of facts which were already established. These are based on human experience or common sense, or laws of nature. III. Classification: Praesumption Legis: these are presumptions which the law directs to be made by the court a). Juris tantum- or prima facie, rebuttable or disputable presumption or those which may be overcome or disproved b). Juris et de Jure: conclusive or those which the law does not allow to be contradicted c). Statutory and Constitutional Praesumption Hominis (Fact) these are presumptions which may be made as a result of the mental processes of inductive or deductive reasoning from a fact IV. Evidentiary Value: 1. Presumptions cannot substitute for evidence. They are to be indulged in only when there is no evidence as to the fact in issue or there is great difficulty in obtaining direct evidence of the fact in issue 2. Once there is evidence of the fact in issue, the presumption ceases 3. The role and importance of presumptions is to relieve a party of the difficulty of complying with the burden of proof. Thus there is no need to present the Bank Representative in case of Violation of B.P. 22 4. In case of Conflicting Presumptions or whenever several presumptions arise from the same set o facts, the rule is: (1) that which has the weightier

reason prevails otherwise all will be considered as equal and therefore all will be disregarded and (b) Constitutional prevails over statutory presumptions. 5. When there is a presumption of law, the onus probandi (burden of proof) generally imposed upon the State, is now shifted to the party against whom the inference is made to adduce satisfactory evidence to rebut the presumption and hence, to demolish the prima facie case. Such prima facie evidence , if unexplained or uncontroverted, can counter balance the presumption of innocence to warrant a conviction ( Wa-acon vs. PP) V. Components of a Presumption 1. The Ultimate Fact or the Presumed Fact 2. The basic fact or factual basis because a presumption can not arise or be based on another presumption. This may either be: a). A fact within Judicial Knowledge in which case the presumption becomes operative at the moment the case is filed or at any time thereafter. The basic fact need not be proven. For example: The presumption of innocence becomes operative the moment an Information is filed in Court. So also the presumption of sanity of parties and witnesses or the presumption of good moral character of every party arises whenever a case is filed in court and at the time the witnesss testify. b). The basic fact which must be proven. For example: The presumption of a child being that of the husband arises only after it is proven: that the parents were validly married and the child was born thereafter. The presumption that a public officer was regularly appointed or elected after it is first shown he was acting as a public officer. Likewise the presumption of survivorship. Note: There must be a rational connection between the Ultimate Fact and the Basic Fact Sec. 2 Conclusive Presumptions: The following are instances of conclusive presumptions. 1. Estoppel in Pais: whenever a party has, by his own declaration, act or omission, intentionally and deliberately led another to believe a particular thing to be true, and to act upon such belief, he cannot in any litigation arising out of such declaration, act or omission, be permitted to falsify it.

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2. Estoppel Against a Tenant: the tenant is not permitted to deny title of his landlord at the time of the commencement of the relation of landlord and tenant between them.

1. The relationship is that between parties to an original contract of lease ( not sublease) involving a real property . The tenant refers to the lessee. What is deemed conclusive as to the tenant is the ownership of the lessor over property. 2. The lessee cannot use his physical possession over the property as basis to dispossess the lessor of the latters ownership. The law seeks to protect owners of real property from being deprived of their ownership by those in actual physical possession who are their own lessees. 3. However the downside of the law is that it does not jibe with the proposition that the land should be owned by those who actually till and utilize the land over those whose sole connection to the land is merely a piece of document. 4. However, the lessee may assert ownership if after the lease, he acquires the property is in his own right, such as when he buys it in an execution sale RULE 132 PRESENTATION OF EVIDENCE

A. Estoppel in General: a principle which bars a person from denying or asserting anything to the contrary of that which has been established as the truth arising from his own acts or representations. It may be: (1). Estoppel in Pais or equity (2).By deed i.e document and (3). By Record or Judgment i.e those found and established as true by a court of competent jurisdiction B. Estoppel in Pais: The essence is intentional misrepresentation 1. Requirements: a). As to the party estopped: (i). a conduct amounting to false representation or concealment of material facts (ii). an intention that the conduct be acted upon or that it will influence the other party and (iii) knowledge of the true facts b). As to the party claiming estoppel: (i) an absolute lack of knowledge or of the means of knowledge as to the true facts, not lack of diligence (ii) reliance in good faith upon the conduct of the other party and (iii) the action or inaction resulted to his damage or injury 2. Illustrations a). A man who represents himself to be the true owner in a sale will not be permitted later to deny the sale after he acquire title thereto b). Estoppel to deny validity of sale as when the wife, in collusion with the husband, concealed her true status induce her parents to believe she is single and to a property which in truth is conjugal. The husband cannot deny the validity of the deed c). The heirs who represented the minors in a suit for partition cannot impugn the validity of the judgment for lack of proper authorization d) Jurisdiction by estoppel e). Agency/Partnership by estoppel f) But estoppel does not apply to the government for acts of the public officials C. Estoppel Against a Tenant

A. EXAMINATION OF WITNESSES SECTION 1 . Examination to be done in open court. The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the questions calls for a different mode of answer, the answers of the witness shall be given orally. (1a) Sec.2 . Proceedings to be recorded. The entire proceedings of a trial or hearing, including the questions propounded to a witness and his answers thereto, the statements made by the judge or any of the parties, counsel, or witnesses with reference to the case, shall be recorded by means of shorthand or stenotype or by other means of recording found suitable by the court. A transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder and certified as correct by him shall be deemed prima facie a correct statement of such proceedings. (2a) Sec. 3 . Rights and obligations of a witness. A witness must answer questions, although his answer may tend to establish a claim against him. However, it is the right of a witness:

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(1)To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; (2)Not to be detained longer than the interests of justice require; (3)Not to be examined except only as to matters pertinent to the issue; (4)Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or (5)Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. (3a, 19a) Sec. 4 . Order in the examination of an individual witness. The order in which the individual witness may be examined is as follows; (a)Direct examination by the proponent; (b)Cross-examination by the opponent; (c)Re-direct examination by the proponent; (d)Re-cross-examination by the opponent. (4) Sec. 5 . Direct examination. Direct examination is the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue. (5a) Sec. 6 . Cross-examination; its purpose and extent. Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to many matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. (8a) Sec. 7 . Re-direct examination; its purpose and extent. After the cross-examination of the witness has been concluded, he may be re-examined by the party calling him, to explain or supplement his answers given during the cross-examination. On redirect-examination, questions on matters not dealt with during the cross-examination, may be allowed by the court in its discretion. (12) Sec. 8 . Re-cross-examination. Upon the conclusion of the re-direct examination, the adverse party may re-cross-examine the witness on matters

stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion. (13) Sec. 9 . Recalling witness. After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require. (14) Sec. 10 . Leading and misleading questions. A question which suggests to the witness the answer which the examining party desires is a leading question. It is not allowed, except: (a)On cross examination; (b)On preliminary matters; (c)When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute; (d)Of an unwilling or hostile witness; or (e)Of a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party. A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. It is not allowed. (5a, 6a, and 8a) Sec. 11 . Impeachment of adverse party's witness. A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honestly, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present, testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense. (15) Sec. 12 . Party may not impeach his own witness. Except with respect to witnesses referred to in paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his credibility. A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into calling him to the witness stand.

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The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached by the party presenting him in all respects as if he had been called by the adverse party, except by evidence of his bad character. He may also be impeached and cross-examined by the adverse party, but such cross-examination must only be on the subject matter of his examination-in-chief. (6a, 7a) Sec. 13 . How witness impeached by evidence of inconsistent statements. Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them. (16) Sec. 14 . Evidence of good character of witness. Evidence of the good character of a witness is not admissible until such character has been impeached. (17) Sec. 15 . Exclusion and separation of witnesses. On any trial or hearing, the judge may exclude from the court any witness not at the time under examination, so that he may not hear the testimony of other witnesses. The judge may also cause witnesses to be kept separate and to be prevented from conversing with one another until all shall have been examined. (18) Sec. 16 . When witness may refer to memorandum. A witness may be allowed to refresh his memory respecting a fact, by anything written or recorded by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and knew that the same was correctly written or recorded; but in such case the writing or record must be produced and may be inspected by the adverse party, who may, if he chooses, cross examine the witness upon it, and may read it in evidence. So, also, a witness may testify from such writing or record, though he retain no recollection of the particular facts, if he is able to swear that the writing or record correctly stated the transaction when made; but such evidence must be received with caution. (10a) Sec. 17 . When part of transaction, writing or record given in evidence, the remainder, the remainder admissible. When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the same subject may be inquired into by the other, and when a detached act, declaration, conversation, writing or record is given in evidence, any other act, declaration,

conversation, writing or record necessary to its understanding may also be given in evidence. (11a) Sec. 18 . Right to respect writing shown to witness. Whenever a writing is shown to a witness, it may be inspected by the adverse party. (9a) B. AUTHENTICATION AND PROOF OF DOCUMENTS Sec. 19 . Classes of Documents. For the purpose of their presentation evidence, documents are either public or private. Public documents are (a)The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; (b)Documents acknowledge before a notary public except last wills and testaments; and (c)Public records, kept in the Philippines, of private documents required by law to the entered therein. All other writings are private. (20a) Sec. 20 . Proof of private document. Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (a)By anyone who saw the document executed or written; or (b)By evidence of the genuineness of the signature or handwriting of the maker. Any other private document need only be identified as that which it is claimed to be. (21a) Sec. 21 . When evidence of authenticity of private document not necessary. Where a private document is more than thirty years old, is produced from the custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given. (22a) Sec. 22 . How genuineness of handwriting proved. The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may

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also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. (23a) Sec. 23 . Public documents as evidence. Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated. All other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter. (24a) Sec. 24 . Proof of official record. The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. (25a) Sec. 25 . What attestation of copy must state. Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. (26a) Sec. 26 . Irremovability of public record. Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept, except upon order of a court where the inspection of the record is essential to the just determination of a pending case. (27a) Sec. 27 . Public record of a private document. An authorized public record of a private document may be proved by the original record, or by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. (28a) Sec. 28 . Proof of lack of record. A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is

admissible as evidence that the records of his office contain no such record or entry. (29) Sec. 29 . How judicial record impeached. Any judicial record may be impeached by evidence of: (a) want of jurisdiction in the court or judicial officer, (b) collusion between the parties, or (c) fraud in the party offering the record, in respect to the proceedings. (30a) Sec. 30 . Proof of notarial documents. Every instrument duly acknowledged or proved and certified as provided by law, may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved. (31a) Sec. 31 . Alteration in document, how to explain. The party producing a document as genuine which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, must account for the alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or was otherwise properly or innocent made, or that the alteration did not change the meaning or language of the instrument. If he fails to do that, the document shall not be admissible in evidence. (32a) Sec. 32 . Seal. There shall be no difference between sealed and unsealed private documents insofar as their admissibility as evidence is concerned. (33a) Sec. 33 . Documentary evidence in an unofficial language. Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial. (34a) C. OFFER AND OBJECTION Sec. 34 . Offer of evidence. The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. (35) Sec. 35 . When to make offer. As regards the testimony of a witness, the offer must be made at the time the witness is called to testify. Documentary and object evidence shall be offered after the presentation of a party's testimonial evidence. Such offer shall be done orally unless allowed by the court to be done in writing. (n)

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Sec. 36 . Objection. Objection to evidence offered orally must be made immediately after the offer is made. Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent. An offer of evidence in writing shall be objected to within three (3) days after notice of the unless a different period is allowed by the court. In any case, the grounds for the objections must be specified. (36a) Sec. 37 . When repetition of objection unnecessary. When it becomes reasonably apparent in the course of the examination of a witness that the question being propounded are of the same class as those to which objection has been made, whether such objection was sustained or overruled, it shall not be necessary to repeat the objection, it being sufficient for the adverse party to record his continuing objection to such class of questions. (37a) Sec. 38 . Ruling. The ruling of the court must be given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling. The reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon. (38a) Sec. 39 . Striking out answer. Should a witness answer the question before the adverse party had the opportunity to voice fully its objection to the same, and such objection is found to be meritorious, the court shall sustain the objection and order the answer given to be stricken off the record. On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper. (n) Sec. 40 . Tender of excluded evidence. If documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony. (n)

PRESENTATION OF EVIDENCE The order in which an individual witness may be examined is as follows: 1. Direct examination by the proponent the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue. 2. Cross-examination by the opponent Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. 3. Re-direct examination by the proponent After the cross-examination of the witness has been concluded, he may be re-examined by the party calling him, to explain or supplement his answers given during the cross-examination. On re-direct examination, questions on matters not dealt with during the cross-examination, may be allowed by the court in its discretion. 4. Re-cross-examination by the opponent Upon the conclusion of the re-direct examination, the adverse party may re-cross-examine the witness on matters stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion. Leading questions a question which suggests to the witness the answer which the examining party desires General Rule: Leading questions not allowed. Exceptions 1. 2. 3. cross examination; Preliminary matters; difficulty in getting direct and intelligible answers from a witness who is a. ignorant, or b. a child of tender years, or c. feeble mind, or d. a deaf-mute; e. unwilling or hostile witness; or f. witness is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.

Misleading question one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated.

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Misleading questions exceptions.

are

never

allowed.

No

Sec. 11. Impeachment of adverse partys witness. A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honesty, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense. General Rule: The party producing a witness is not allowed to impeach his credibility. Exceptions: When party may impeach his own witness (except evidence of bad character) 1. 2. an unwilling or hostile witness; or a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.

Grounds for objection Hearsay, argumentative, leading, misleading, incompetent, irrelevant, best evidence rule, parol evidence rule, question has no basis When evidence considered offered People v. Franco, 269 SCRA 211 (1997) The court shall consider no evidence, even an extra-judicial confession, which has not been formally offered. Mere fact that evidence has been identified and marked in the course of the examination of a witness, without the contents being recited in his testimony, does not mean that it has been formally offered as evidence. Identification of documentary evidence is done in the course of the trial and is accompanied by the marking of the evidence as an exhibit, while the formal offer of documentary evidence is done only when the party rests its case. Philippine Bank of Commerce v. CA, 195 SCRA 567 (1991) Where the genuineness and due execution of documents of an instrument attached to a complaint are deemed admitted by failure to specifically deny it under oath, such instruments are considered as evidence although they were not formally offered. Rule 8, Sec. 8. How to contest such documents. When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused.

Grounds for declaring a witness unwilling or hostile 1. 2. 3. adverse interest unjustified reluctance to testify, or misled the party into calling him to the witness stand.

Consequences of being an unwilling, hostile, or adverse witness 1. 2. 3. 4. may be impeached by the proponent, except by evidence of bad character may also be impeached by the opponent may be cross-examined by the opponent, only on the subject matter of his direct examination proponent may ask leading questions

When objection should be made People v. Java, 227 SCRA 668 (1993) Objection to testimony on the ground of lack of a formal offer of the testimony should be done when the witness was called to testify. Interpacific Transit, Inc. v. Aviles, 186 SCRA 385 (1990) Objection to documentary evidence must be made at the time it is formally offered (i.e. when the party rests its case) as an exhibit and not before. Objection prior to that time (e.g. identification of the evidence) is premature. Mere identification and marking is not equivalent to a formal offer of the evidence. A party may decide to not offer evidence already identified and marked.

Sec. 36. Objection to evidence offered orally must be made immediately after the offer is made. Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent. An offer of evidence in writing shall be objected to within three (3) days after notice of the offer unless a different period is allowed by the court. In any case, the grounds for the objections must be specified.

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PRESENTATION OF EVIDENCE Rule 132 governs the manner by which Testimonial and Documentary evidences are to be presented in Court. 2. Principles in the presentation of evidence by the parties: a). A case is won or lost depending upon how effective was the presentation of evidence, particularly as to what evidence were presented and how they were presented b). Parties should be allowed a certain latitude in the presentation of their evidence otherwise they might be so hampered that the ends of justice may eventually be defeated or appear to be defeated. The court should not limit the evidence to be presented. c). The parties should be allowed to maintain their own way or style of presenting evidence when these can be done without injury to the speedy disposition of the case and to the best interest of the administration of justice d) The court should liberally receive all evidence offered in the trial to be able to render its decision with all the possibly relevant proof in the record and to assure the appellate court to have a good judgment and to obviate remanding the case for re-trial or reception of evidence. Section 1. Provides the manner presenting testimonial evidence to be as follows: By presenting the witness personally in open court of

QUESTION: May the witness testify wearing masks to preserve his identity? To be examined under oath or affirmation a). To answer questions as may be asked by the proponent, the opponent and by the court (i). Oath: an outward pledge by the witness that his testimony is made under an immediate sense of responsibility to a Supreme Being. An appeal is made to the almighty that he will tell the truth. (ii.) Affirmation: a solemn and declaration that the witness will be truthful formal

iii). The purpose of an oath or affirmation are: (a) to affect the conscience of the witness and compel him to speak the truth and (b) to lay him open to punishment for perjury. But it is not essential that he knows what or how he will punished. iv). If the opponent believes the witness is not aware of his obligation and responsibility to tell the truth and consequences of telling a lie, the party may ask for leave to conduct a VOIRE DIRE examination. v). Effect of lack of oath: If the opponent fails to object then the testimony may be given weight as the party would be estopped or, the party may move to disallow the witness from testifying, or move to strike the testimony after he found the lack of oath. The proponent however may ask that the witness be placed under oath. . . The form of testimony must be : a). Oral answers to questions unless:

a). The witness must appear in person so that the court and the opponent may observe him and hear his testimony b). His personal presence cannot be substituted by the submission of written statements or audio testimony c) There is also no secret testimony and it must always be in the presence of the adverse party, except when the presentation is allowed to be ex parte, or testimony through interrogatories or depositions in advance of trial before a hearing officer but upon prior approval of the court and with proper notice to the adverse party d). CHILD WITNESSES: the witness may testify inside a room but the child must be visible and can be heard through the medium of facilities appropriate for the purpose such as a mirror

(i) the question calls for a different form of answer such as by bodily movements or demonstrable actions, (ii) or the witness is a deaf mute (iii) in case of a child witness b) Not in a narrative (i) in order to prevent the witness from testifying and narrating facts which are irrelevant and thus he will testify straight to the point in issue, as well as (ii) to give the opponent an opportunity to raise an objection.

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Sec. 2. The Proceedings must be recorded. Courts of the Philippines are courts of record. Anything not recorded is deemed not to have transpired or taken-up and will not be considered in the resolution of the case. The matters to be recorded include: a). Questions by the proponent, opponent and the court, which are propounded to the witness b). The answers of the witness to the questions c). Manifestations, statements of counsel arguments, and

b). Those which are except in the following cases:

self-incriminatory

(i) where the accused is testifying as a witness in his own behalf, as to questions relating only to the offense upon which he is testifying (ii) where the witness was granted immunity from prosecution as when he is under the Witness Protection Program or was discharged to be used a s a state witness, or he is a government witness in AntiGraft Cases. c). Those which are self-degrading, unless it is to discredit the witness by impeaching his moral character EXAMINATION OF A WITNESS 1. Examination to find out facts from the witness or to test his memory, truthfulness or credibility by directing him to answer appropriate questions. 2. Proponent - the party who owns or who called the witness to testify in his favor. Opponent- the party against whom the witness was called. 3. Friendly Witness- one who is expected to give testimony favorable to the party who called for him. Hostile Witness, one whose testimony is not favorable to the cause of the party who called him as a witness. Party witness and accused-witness refer to the plaintiff, defendant or the accused, testifying as witness for themselves, as opposed to ordinary witnesses B. ORDER OF EXAMINATION

d). Statements of the court to the counsel e). Instructions or statements of the court to the court personnel f). Demonstrable actions, movements, gestures or observations asked to be described and recorded g). Observations during the conduct of ocular inspections Matters not recorded: Off-the-records statements - Statements which were ordered or requested to be stricken from the record such as those which are improper, irrelevant or objectionable. Example: hearsay direct testimony Sec. 3. Rights and Obligations of Witnesses

First, Direct examination by the proponent The obligation of a witness is to answers all questions which are asked of him. He cannot choose which questions to answer and to answering others. The witness however has the right to be protected against tactics from the opponent which are intended to brow beat, badger, insult, intimidate, or harass him. He has the right not to be detained longer that is necessary. He may refuse to answer the following questions: a). Those which are not pertinent to the issue Presentation Defendant of Sur rebuttal Evidence by the Second, Cross-examination by the opponent Third, Re-direct examination by the proponent Fourth, Re-cross examination by the opponent C. ORDER OF PRESENTATION OF EVIDENCE Presentation of Evidence in Chief by the Plaintiff Presentation of Evidence in Chief by the Defendant Presentation of Rebuttal Evidence by the Plaintiff

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Section 5. Direct Examination. Direct examination is the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue.

f). ELICIT GENERAL FLOWING DESCRIPTION. Let the witness paint a picture. Avoid excessive detail. g). USE PACE IN DESCRIBING ACTION. Control the speed of the examination by eliciting testimony in small segments at the most advantageous rate. SLOW DOWN THE ACTION. h). USE SIMPLE LANGUAGE. Choose simple words and phrases. Word choice affects answers. Avoid jargons, idioms and technical words. WHAT MATTERS AND WHAT WILL BE REMEMBERED IS NOT HOW BEAUTIFUL AND IMPRESSIVE THE LAWYER PHRASED HIS QUESTIONS BUT WHAT THE WITNESS NARRATED. i). HAVE THE WITNESS EXPLAIN. j). QUESTIONS k). SUMMARIZE USE NONLEADING OPEN-ENDED

A. Procedural Requirement Offer of Testimony- the proponent shall state the substance of the intended testimony of the witness (an outline of the major points) and the purpose of said testimony ( what the proponent intends to prove by said testimony) a). Importance of the Offer- (i) The direct examination may be objected to by the opponent (ii) Matters not included in the offer may not be allowed to be testified on upon proper objection and (iii) to shorten the proceedings as the opponent may admit or stipulate on the matters to be testified on. In cases under the Rules on Summary Procedure, the sworn statement of the witness must have been submitted to the court before hand B. Importance of the Direct Examination This is the only opportunity for the proponent to elicit from the witness all the facts which are important and favorable to him. The witness should be considered as a sponge heavy with facts. By the time the direct examination is over, all favorable facts should have been squeezed from the witness. The examination must be clear, forceful, comprehensive, and must efficiently present the facts of the case. Effective Direct Examination a). KEEP IT SIMPLE. Avoid these two pitfalls (i) too little time on critical points and (ii) too much time on unimportant points b). ORGANIZE LOGICALLY. Determine the key points and organize them in a logical order. If possible resort to a chronological presentation of testimony. c). INTRODUCE THE WITNESS AND DEVELOP HIS BACKGROUND d). USE PRELIMINARY QUESTIONS WHICH ARE INTRODUCTORY, TRANSITION OR ORIENTING QUESTIONS e). ELICIT SCENE DESCRIPTION

USE

EXHIBITS

TO

HIGHLIGH

AND

l). PRACTICE WITH THE WITNESS. Sec. 6. Cross Examination. A. Concept: The examination of the witness by the opponent after the direct examination. B. Nature: 1. An essential part of the right to procedural due process i.e. the right of a party to confront witnesses against him face-to-face. The essence however is not actual cross examination but that a party be given the opportunity to cross examine. Hence the consequences are as follows: a). If the opponent was never given the opportunity to cross examine a witness, the direct testimony may, on motion of the opponent, be stricken off as hearsay. b). All assertions of facts not based on the personal knowledge of the witness may also be stricken off as hearsay since the source cannot be subjected to the opportunity of cross-examination 2. Limitations: a). The right may however be waived expressly b). It may be lost through the fault or negligence of the opponent.

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c). After a witness has been cross-examined and discharged, further cross-examination is no longer a right but must be addressed to the sound discretion of the court d). The Court may limit the crossexamination if its needlessly protracted, or is being conducted in a manner which is unfair to the witness or is inconsistent with the decorum of the court, as when it degenerates into a shouting match with the witness 3. Effect of the Loss or non-completion of the cross examination a). If the loss, in whole or in part, was due to the fault of the adverse party, the testimony of the witness is to be taken into consideration b). If the cross-examination cannot be done or completed due to causes attributable to the party offering the witness, the testimony is rendered incompetent c). If the loss or non-completion was due to the death or unavailability of the witness then that part of the testimony which was subjected to crossexamination remains admissible. 4. Character of Cross Examination: It is both an Art and a Science a). It is an Art because it requires consummate skill which is acquired and developed. There is no standard method as it is highly personalized, subjective and be adaptive to who the witness is and to the subject of the cross examination. The length, style of questioning or approach to a witness requires intuition and understanding of human nature; of the habits, weaknesses, bias and prejudices of people; their reactions to situations, their perception of matters, and such other factors that vary according to circumstances of time, place, people and occasions. It requires the ability to think quickly, read quickly and to know when to quit. The lawyers antennae must ever be tuned in to the witness: his character, personality; mannerism, and all traits which will give a favorable clue; to the adverse counsel and to the Court. b). Should a party cross examine or not depends on a full understanding of what to expect. The following must be considered before a party attempts to cross-examine: i). Whether the witness has hurt the case or the impact of his testimony on the case

ii). Whether the witness is important, as for example an eye witness, or a party witness iii). Whether the testimony is credible iv). The risks that the party undertakes 5. It is a science. It requires a thorough preparation and mastery of certain rules/jurisprudence on procedure in the presentation of evidence.

C. Importance and Purpose of Cross Examination Cross examination is both a weapon to destroy or weaken the testimony of the opponents witness and a tool to build up or strengthen a partys case. The conduct of cross-examination must always be directed towards achieving a specific purpose or purposes. Constructive Cross-Examination, where the purposes are: (a) to amplify or expand the story of the witness so as to place the facts in a different light which is favorable to the party. Note that the witness of the opponent seldom volunteer facts favorable to the cross-examiner, hence the manner of questioning should be insinuating, and (b) To obtain favorable or establish additional facts favorable to the cross-examining party. Destructive Cross-Examination: The purposes are: (a) to discredit the testimony of the witness by showing its absurdity, or that it is unbelievable or contrary to the evidence (b) To discredit the witness by showing his bias, interest, lapse of or selective memory, incorrect or incomplete observation of event, and similar situations. D. Scope of Cross Examination 1. Under section 6 the witness may be examined:

(a) As to any matter stated in the direct examination

(b) or any matter connected therewith (c) as to the accuracy and truthfulness and freedom of the witness from interest or bias, or the reverse and (d) upon all important facts bearing upon the issue. 2. The English Rule is followed in the Philippines: the cross examination is not confined to matters subject

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of the direct examination but extends to other maters, even if not inquired in the direct examination but are material to the issues. This is distinguished from the American Rule which holds that the scope of the cross-examination is confined to the facts and circumstances brought out, or connected with, matters stated in the direct examination D. Questioning by the Court: 1. The Court may ask questions: a) clarify itself on certain points b) To call the attention of counsel to points at issue that are overlooked and c) To direct counsel to questions on matters to elicit facts and clarify ambiguous answers 2. However, the questioning by the court should not be confrontational, probing and insinuating. It should not be partisan and not over extensive. The court is not to assume the role of an advocate or prosecutor. BASIC RULES ON CROSS EXAMINATION 1. PREPARE. Know what the witness has testified on and its relation to the case and how it affects your own evidence To

7. KNOW WHAT MATERIALS TO TAKE TO CONFRONT THE WITNESS. Have them be ready and easily accessible. 8. KNOW THE JUDGE. Are you making an impact or are you boring, antagonizing or confusing the Judge? 9. KNOW THE RULES OF EVIDENCE ADDITIONAL PRACTICAL TIPS 1. BE BRIEF. Confine to the strongest points. 2. SHORT QUESTIONS. Use plain words and avoid fancy words or elaborate syntax. 3. NEVER ASK A QUESTION to which you do not already know the answer. 4. LISTEN TO THE WITNESS. Tune in if he was contradicted by another witness or prior testimony; is the testimony contrary to human experience or completely inconsistent with nature. 5. DO NOT QUARREL WITH THE WITNESS. 6. DO NOT PERMIT THE WITNESS TO EXPLAIN 7. DO NOT REPEAT HIS TESTIMONY ON DIRECT.

2. KNOW YOUR OBJECTIVE. What are the points in the testimony of the witness which are critical and are these points to be brought out and emphasized 3. OBSERVE PACING AND PATIENCE . Do not rush the witness and avoid being over eager in bringing out an important point. 4. LEAD THE WITNESS. State the facts and let the witness ratify. Know how to lead. Use variation in the phraseology of the questions. 5. HAVE A STYLE AND ADAPT IT TO THE OCCASION. Be true to yourself and develop an approach or style suited to your personality and character. Be able to vary your style and know when is it effective to use either a booming or soft voice; to move around or to stay put; to be conversational or confrontational or tough and confident.. 6. KNOW WHEN TO QUIT. Stop when (1) the witness has been discredited or made a monumental concession. There is no need for an over kill. or when the witness is killing the case or the counsel.

8. AVOID QUESTIONS TOO MANY 9. SAVE THE EXPLANATION MEMORANDUM. Questions should explanations of your position. FOR not THE be

Sec. 7. Redirect Examination by the proponent

A. Purpose and Scope: To afford the party calling the witness to explain or amplify the testimony given on crossexamination; to explain apparent contradictions, or inconsistencies, and to rehabilitate the testimony. The scope is confined to matters taken up in the cross-examination, not those outside, which may be objected to on the ground that it is improper for redirect. But, new matter may be inquired into provide the prior approval of the court was obtained and the testimony on the new matter must be subject to cross-examination by the opponent.

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Sec. 8. Re-cross examination by the opponent. This is confined to matters subject of the redirect examination. Sec. 9. Recalling Witnesses. A. On Motion By a party: This is not a right but the recall must be addressed to the discretion of the court and the recall must be on justifiable grounds. B. By the Court: If there be matter it wishes to clarify Sec. 10. Leading and Misleading Questions.

The tone, inflection, mannerism or body language of counsel, may also indicate if the counsel is leading his witness. C. General Rule On Direct: The witness being a friendly witness and having been called by the proponent, he is naturally expected to be sympathetic to the cause of the proponent. Thus there is great danger that he would just confirm any and all facts suggested to him by the proponent. Hence leading questions are not allowed. The following instances are the exceptions when leading questions are allowed to be asked during direct: 1. On preliminary matters a. those pertaining to the personal circumstances of the witness and which are asked at the start of the cross-examination b. those which are intended to bring the witness directly to the point in issue; they are referred to as orienting, introductory or transitory questions When there is difficulty in getting direct and intelligible answers from the witness who by reason of the any of the following: is immature; aged and infirm; in bad physical condition; ignorant of, or unaccustomed to, court proceedings; inexperienced; unsophisticated; feebleminded; confused and agitated; terrified; timid or embarrassed while on the stand; lacking in comprehension of questions or slow to understand; deaf and dumb; or unable to speak or understand the English language or only imperfectly familiar therewith ( PP. vs. Dela Cruz, July 11, 2002) c) is suffering from some mental deficiency, or where the intelligence of the witnesses is impaired, thereby making necessary the making of suggestions: For example: witnesses who are ignorant, feeble minded deaf-mutes, minors or uneducated d) In case of unwilling or hostile witnesses: they are uncooperative and will not readily supply the facts desired by the examiner. The approach to these witnesses is to conduct a direct examination as if it were a cross-examination unwilling witnesses include (i) those who have to be compelled to testify by the coercive processes of the court (ii) or those who, at the time of their presentation at the witness stand, become evasive, reluctant or unfriendly hostile-may refer to (i) a witness who manifest so much hostility and prejudice during the direct examination that the party who called him is

A. Introduction. The examination of a witness is by asking questions the answers to which will bring out facts from the witnesses. However a lawyer is subject to certain rules such as to what questions he is allowed to ask, how they are to be phrased or worded so that facts known only to the witness through his own perception are revealed, or so that facts which are suppressed or forgotten may be forced out from the witness. Some of these limitations consist of the prohibition on leading and misleading questions. B. Leading Questions. Section 10 defines it as a A question which suggest to the witness the answer which the examining party desires. It is also known as Suggestive Question. 1. Witnesses are to give data spontaneously from there own memory, according to their own perception and interpretation. The role of the lawyer is simply to ask questions which will help the witness recall events. The question should be framed in such a manner that the lawyer does not in any way suggest or influence the answer to be given, otherwise the fact or answer becomes merely the product of the suggestion, and not what the witness personally knows. 2. If the witness is asked simply to confirm or deny, then in effect it is the lawyer who is supplying the facts through the mouth of the witness who is reduced to being merely the echo and mouthpiece of the lawyer. 3. Test : The form or phraseology and the contents of the question in that whether it contains a statement of a fact which the witness is asked to affirm or agree to. In such case the witness contributes no substantial data. The lawyer is coaxing.

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allowed to cross-examine, i.e to treat him as if he had been called by the opposite party or (ii) one who surprises the party and unexpectedly turns against him. In either case, the party calling the witness must present proof of either adverse interest on the part of the witness, his unjustified reluctance, or of his misleading the party into calling him a witness, and on the basis of which the court shall declare the witness to be a hostile witness. Thereafter leading questions are asked. 2. In case the witness is the adverse party, or representative or officer of a juridical entity which is the adverse party. Said witnesses is expected to resist any attempt to obtain favorable data, hence the direct examination is in the nature of a crossexamination and the most effective manner of forcing favorable data, or of destroying his credibility, would be through leading questions 3. When the witness is not voluntarily offered but is required by law to be presented by the proponent, as in the case of subscribing witnesses to a will. 4. When the witness lacks the power of recollection a leading question is allowed in order to refresh the memory. 5. To identify persons or things. 6. In case of an expert witness as to his opinion. D. Leading and Misleading Questions on Cross. A. Rule on Leading Questions: During crossexaminations leading questions are allowed for the reason that the witness is not expected to be sympathetic to the cause of the opponent and would not volunteer important facts favorable to the opponent, or that he would resists to testify on facts adverse to the party who called him. Thus it becomes necessary that the opposing counsel has to force the facts from the witness thru leading questions. The opponent states a fact favorable to him and forces the witness to confirm it. B. Misleading Questions are not allowed. They are of two kinds: 1. A question which assumes a fact not yet testified to by a witness or still unproven or by putting words into the mouth of the witness

2. A question premised on a fact which is contrary to that testified to or proven or those which distort or do not accurately state the true facts. This is akin to twisting the words of the witness IMPEACHMENT A. Concept: The process of showing that a witness is not credible or that his testimony is not worthy of belief, i.e. casting doubt as to the credibility of the witness or credibility of his testimony. Note that credibility of the witness is different from credibility of testimony B. Impeachment of the witness of the adverse party Generally the witness may be impeached during his cross-examination or during the presentation of evidence by the party. Thus the witness of the plaintiff may be impeached at the time he is cross-examined by the defendant and/or during the presentation of evidence in chief by the defendant. On the other hand, the witness of the defendant may be impeached by the plaintiff during the cross examination of said witness and/or during the presentation of evidence during the rebuttal stage. C. Specific Modes pursuant to section 11 and jurisprudence 1. By presenting evidence or facts which contradict the version of the witness 2. By proving the bad general reputation of the witness for truth or honesty or integrity. a). He cannot be impeached by the direct testimony of witnesses of the adverse party as to particular instances of immoral acts, improper conduct, or other evidence of misconduct. b). The person who is called by the adverse party to testify to the bad general reputation of the witness of the opponent is called the Impeaching witness who himself may also be impeached. 3. By proof of prior inconsistent statements in that a truthful person will be consistent with his statement even on different occasions and to different persons 4. By introducing evidence of his bias or interest, such as his relationship to a party, or financial gain as well as of his motive or intent. 5. By showing his social connections, occupations and manner of living in that he voluntarily associates with those who are engaged in disreputable activities, or if he is addicted to disgraceful or vicious

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practices, or follows an occupation which is loathsome and vile, even if not criminal, as all these affects his credibility. 6. By proof of prior conviction: the moral integrity of a person is placed in doubt by reason of a conviction for violation of the law, but not by the fact that there are pending cases against him 7. By showing the improbability of his testimony or that it is not in accordance with ordinary human experience. Example: (i) the claim of an accidental firing of a caliber gun is not believable because the mechanism of the gun which requires that pressure be applied on the trigger for the gun to fire (ii) the claim of four big able men having been attacked and mauled by one person who is who is much smaller in height and heft 8. By showing defects in his observation, or that he has a faulty or selective memory 9. By showing that this actions inconsistent with his testimony. or conduct is

1. The procedure or Laying the Foundations is outlined by section 13. To be effective the steps should follow the following sequence: a). Recommit: Confront the witness with his prior statements narrating the circumstances of time, place, persons or occasion, or by showing him the prior written statement. Get the witness to affirm he made the statements b). Build-Up. Let the witness affirm he made the prior statements freely, knowingly and that he stood by the accuracy and truthfulness of said statements c). Contrast: Confront the witness by the fact that his prior statement contradicts or deviates or is materially different from his present statement d). Demand an explanation why he made a different statement from his previous statements 2. Reason for the Procedure: a). Fairness to the witness and avoid surprising him, so that he may recollect the facts, and to give him the opportunity to explain the reason, nature, circumstances, or meaning, of his statements. Example: He might have been too emotional then, or was improperly influenced, or wanted to avoid embarrassment, and similar reasons. b). statements To save time if he admits his prior

Example: A rape victim was shown to have been partying with the alleged rapist after the rape 10. By engaging the witness in contradictions and discrepancies as to the material facts testified by him. D. Impeachment of ones own witness. 1. General Rule: It is not allowed pursuant to section 12. The reason is that a party calling a witness is supposed to vouch for the truthfulness of the witness and of his testimony, which he is assumed to know before hand, and is therefore bound by whatever the witness testifies to in court. A party is not permitted to let the witness be believed as to facts favorable to him, but to impeach him as to facts not favorable. 2. Exceptions: If the witness presented is any of the following: a). An unwilling witness b). He turns out to be a hostile witness or a treacherous witness and the party was mislead into calling him as a witness c). An adverse party witness E. Impeachment by Prior Inconsistent Statement.

3. Exceptions when there is no need to lay the foundation: a). In case of statements made by a deceased which contradicts his dying declarations b). If the contradictory statements are testified to by another person as an admission Section 14. Exclusion and separation of witness. A. Concept: The act of excluding a future witness from the court room at the time another witness is testifying or, of ordering that witnesses be kept separate from one another to prevent them from conversing with one another. 1. This is upon the courts own motion or on motion of the adverse party. 2. A disobedient witness may be testify but his

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(a) testimony may be excluded or (b). his disobedience may be considered to affect his credibility and (c) he maybe punished for contempt of court B. Purpose: To ensure the witnesses testify to the truth by preventing them from being influenced by the testimony of others; to prevent connivance or collusion among witnesses (Note: the practical purpose of this rule is defeated by the reservations for cross examination or resetting to present another witness, such that the counsel and other witness have the opportunity to go over the testimony of the witnesses). C. Who may not be excluded. 1. Parties to an action even if they are numerous. a) In criminal cases, the presence of the accused is indispensable and he may not be excluded. b). The private offended party should not also be excluded even if he will be a witness. As such he has a right to be present because it is his interest which is involved and also to assure that the proceedings are conducted properly. Besides he is party to the civil aspect of the case. 2. Expert witnesses as they testify to their opinions based on facts of their own knowledge, or on hypothetical facts 3. Witnesses on rebuttal 4. Character witnesses 5. Spectators unless they behave in a manner which is against the proper decorum of the court or when the evidence to be presented are sensitive REVIVING THE MEMORY OF WITNESSES A. Introduction: A witness may suffer from lapses of memory or loss of recollection as to material facts so that there is a need for him to recollect the facts. The remedy of reviving applies more appropriately to the adverse party conducting a cross-examination rather than to the proponent. The reasons are: (i) because a party presenting a witness is presumed to know what the witness is to testify on and is expected to have prepared him for the direct examination and (ii). matters favorable to the cross-examiner may have been forgotten by the witness.

B. Modes of reviving 1. By asking leading questions 2. By the Process of Association i.e. calling the attention of a person to a material connected with a certain event so it would trigger the brain to associate the material with the event and thereby enable the person to remember the event. Examples: a). Presenting a pictorial representation of a person, thing, place, object or person b). Playing the record of a conversation c). Presenting physical objects such as trinkets, or other memorabilia d). By allowing the witness to refer to a memorandum under section 16 Section 16. When memorandum. witness may refer to a

A. Two Methods of Revival under Section 16. (These are useful methods to the opposing counsel when conducting his cross examination. The proponent is supposed to have already gone over the testimony of his witness and briefed him; hence, resorting to these methods reflect badly on the proponent). 1. Present Recollection Revived: the witness is presented the memorandum or record with the expectation that it will pull a switch in the brain and enable the witness to put aside the memorandum and testify on what he now recalls. Thus the evidence is not the memorandum or writing but what the testify remembers as now testified Provided: a). The written record/memorandum was written by him or by someone under his direction ( who wrote it?) b). It was written at the time the fact/event occurred or immediately thereafter or at any time when the facts was still fresh in his mind ( when was it written?) c). The record/memorandum is presented to the adverse party who may cross-examine on it, and it may be read into the evidence. 2. Past Recollection Recorded. The same procedure is followed but the witness is still unable to

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recollect the event but he can assert that the facts therein narrated are true. The evidence therefore is the writing itself. 3. Examples: (a). Filing clerks who record conversations then forget all about it (b) Diaries (c) Letters Section 17. The Rule of Completeness. A. Concept: When a part of an act, declaration or conversation, writing or record, is given in evidence by one party, the adverse party may : (i) ask or inquire into the whole or (b) introduce evidence on the remainder, and in case of writing he may have the other portion or even the entire writing be read in evidence. As a matter of procedure, in case of documents already in court, a party merely underscores only those portions which are material to his case. It is for the opposing party to inquire as to the rest. The other portions is limited to those which tend to qualify or explain the part first given and which were given at the same time. B. Examples: 1. As the issue is the nature of the transaction between the parties, where plaintiff presented his letter, it was proper for defendant to introduce all the other letters which passed between them 2. Where a letter is presented on direct examination, it is proper on cross to ask if there be any reply to it 3. Where a witness testified to the occurrence of a fight, it is proper to inquire on the antecedents and details thereof, past altercations between those involved or any bad blood between them 4. Where the Prosecution presented only a part of the records of the Preliminary Investigation, the defense may introduce the whole record C. Need for Precision of Statements: 1. The general rule is that verbal accuracy is not required but the substance or effect of the actual words spoken will be sufficient so that the witness

may testify to the substance as best as he can from his recollection 2. However, in case of oral defamation, there is a need for verbal accuracy RULE ON EXAMINATION OF CHILD WITNESS I. INTRODUCTION: The Supreme Court, in an en banc Resolution adopted the so called-Rule on Examination of a Child Witness which became effective on December 15, 2000. The rule applies to child witnesses who are victims of crimes, accused of a crime, and witnesses to a crime. It shall apply to criminal proceedings and non-criminal proceedings involving child witnesses. A. Child Witness - any person who, at the time of giving testimony, is below the age of 18 years. In child abuse cases, a child includes one over 18 years but is found by the court as unable to fully take car of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition. SALIENT FEATURES I. Creates a Presumption of Competency in favor of a child-witness subject to a Competency Test. a. Every child is presumed qualified to be a witness. However the court shall conduct a competency examination o a child moto proprio or on motion of a party, when it finds that substantial doubt exist regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court.(Sec. 6). A party seeking a competency examination must present proof of necessity of competency examination. The age of a child shall not by itself is not a sufficient basis for a competency examination.

b.

II. Allows the Court to, motu proprio or on motion, appoint certain persons to help in the testimony of the child-witness: a. Guardian Ad Litem - a person to protect the best interest of the child whose appointment took into consideration his familiarity with the judicial process, social service programs, and child development. The parent if preferred, if qualified. Has the right to be present in all proceedings, to obtain copies of documents, interview witnesses, make recommendations to the court, and to do all to protect the child.

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b. c.

d.

Interpreter - one, other than the regular court interpreter, whom the child can understands and who understands the child. Facilitator- one who poses the questions to the child who may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent or relative. Counsels shall pose questions only through the facilitator. Support Person- person chosen by the child to accompany him to testify at or attend a judicial proceeding or deposition to provide emotional support to the child

As to Electronic documents, the manner of their authentication is as provided for by the Electronics Evidence Law. II. CLASSIFICATION OF DOCUMENTS. A. Section 19 provides that for purposes of their presentation in court they are either (i) public or (ii) private Importance of the classification: a) As to the need for authentication: public documents are admissible without further proof of their due execution whereas private documents must be authenticated b). As to the persons bound: public documents are evidence even as against third persons as to the fact which gave rise to their execution whereas private documents bind only the parties thereto and their privies c) As to the validity of certain transactions: certain transactions are required by law to be public documents in order to be valid and/or enforceable. E.g.: the law on donations of real properties, Statute of Frauds B. Classification into Domestic and Foreign Public Documents The following are public domestic documents: a). Written Official acts of sovereign authority, official bodies, tribunals and public officers: such as decisions or courts or quasi-judicial bodies, legislative enactments, executive orders, directive from superior officers or memoranda, written appointments, warrants issued by court, subpoenae, ships log book b). Record of the official acts of said bodies or officers: e.g: the marriage contract embodies the act of solemnizing a marriage; records of birth and death; written oaths; returns and reports, congressional records of the deliberations in congress c). Acknowledged documents such as contracts and conveyances d). Public record (i) kept in the Philippines of private writings Example of the first would be documents affecting registered lands which are submitted to the Register

III. Contains Child-Centered provisions at the actual testimony such as: A. A separate waiting area furnished to make the child comfortable B. To create a more comfortable courtroom environment, the court may direct and supervise the location, movement, deportment of all person in the court room; C. The child may testify from a place other than the witness chair; child is not required to look at the accused D. To testify during the time of day that the child is well rested E. Reasonable periods of relief is allowed as often as is necessary F. The child is allowed to use testimonial aids, such as dolls, puppets, drawings, mannequins or any other appropriate devise to assist in the testimony of the child. G. Child is allowed to have an Emotional Security Item of his own choosing as a blanket, toy, doll. IV. Manner of Questioning and Objections 1. Leading Questions are allowed especially for Child-Directs AUTHENTICATIONS AND PROOF OF DOCUMENTS I. INTRODUCTION. Per section 2 of Rule 130, documents are writings or any material containing letters, words, symbols, numbers, figures, or other modes of written expressions offered as proof of their contents. They are either paper based or other solid surfaced based documents. These are what are referred to by Rule 132.

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of Deeds, Assessors Office, Letters of acknowledgement submitted to the Local Civil Registrar. (ii) or required by law to be kept therein.

5. By the style of writing V. When Authentication Not Necessary A. In case of ancient documents: referring to private document which are more than 30 years old, produced from a custody in which it would naturally be found in genuine and unblemished by any alteration or circumstance of suspicion PRIVATE DOCUMENTS. How Proven= Rule 132, Sec. 20

Example of the second: Personal Bio Data or Information Sheets submitted to form part of the 201 File of government officials III. AUTHENTICATION. A. Concept: As to documents, it is the process of proving that the document presented in court is not spurious, falsified, or questionable, or that it is not a different document. As to objects, it is the process of proving that the object presented in court is the very object involved in the case without any alteration or substitution. B. Rule as to private documents: Section 20 provides that in order for a private document to be admissible, it is necessary to prove the due execution and authenticity of the document in that it is not spurious, counterfeit or a different document. This is because private documents are not selfauthenticating. IV. How to prove a private document is authentic or genuine A. By direct evidence consisting of the testimony of witness such as (i) the parties to the document (ii) by an attesting /subscribing witness (iii) by a person who was present and saw its execution and (iv) by the person before whom it was executed and acknowledged B. By proof or evidence of the genuineness of the handwriting or signature of the maker or of the parties thereto. It may be by any of the following: 1. Direct evidence consisting of the testimony of the maker or party affirming his own handwriting or signature 2. By the testimony of the attesting/subscribing witnesses or of witnesses to the execution thereof 3. By the use of Opinion Evidence pursuant to the Section 22 of Rule 131 such as (a) by one who has obtained sufficient familiarity (b) by an expert (c) based on a comparison with a genuine handwriting 4. By the contents of the document

Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (1) by anyone who say the document executed or written; or (2) by evidence of the genuineness of the signature or handwriting of the maker. Any other private document need only be identified as that which it is claimed to be. Ancient Document Rule = Rule 132, Sec. 21 (Not Required to Authenticate) Requisites: (1) The private document is more than 30 years old; (2) It is produced from a custody in which it would naturally be found if genuine; (3) It is unblemished by any alterations or circumstances of suspicion. If all requisites have been met, no other evidence of its authenticity is required. 1. The reason is the possible unavailability of witness due to the passage of time. Age is to be reckoned from the execution to the date it is offered 2. Requirements for Ancient Documents (a) Proof of age: to be counted backwards from the time of offer to its date of execution (b) Proof that on its face it is free from any circumstance of suspicion, as when it bears signatures which are not counter-signed, deletions, insertions, a missing page, a page which is new or recent, use of different inks, or it bears different handwritings, or suspicious tears (c) Proof of proper custody: this removes the suspicion of fraud and suggests the document is genuine. Proper custodian/depository includes one who is entitled to the possession such as a party and his successors in interest, privies or agents; as well as one who is connected to the document that he may

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reasonably be inferred to be in [possession thereof, such as a common witness. B. When the due execution and genuiness has been admitted either expressly or by provision of law, as in failure to deny under oath C. When the due execution and authentication is immaterial , as in documents which arte used as annexes or attachments D. When the document need only to be identified E. In case of public documents V. PROBATIVE VALUE AND PRESENTATION OF PUBLIC DOCUMENTS A. Requirement of authentication does not apply because of (a) necessity in that it is difficult and inconvenient to require the attendance of the public officer to appear in court (b) trustworthiness of the documents B. Probative Value Under Section 23.

Questions involving the mere similarity or dissimilarity of handwritings could be determined by the court itself as authorized under Sec. 22, Rule 132 of the Rules of Court by making a comparison of the disputed handwriting "with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. 1. Written Official Acts are conclusive because it is the act which is recorded 2. Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts stated therein This does not include those made in excess of official duty and they are limited to those facts which the public. Examples: (i) Entries in the Records of Birth, Marriage, or Death of a person, as entered by the Local Civil Registrar (ii) Data in the Police Blotter (iii) Return of Search Warrants (iv). Entries in the time record (v) Entries in the Community Tax Certificate or Tax Declaration of Property (vi) The terms, conditions or consideration in a contract 3. The recitals in a public instrument, executed with all the legal formalities are evidence against the parties thereto and their successors in interest, and a high degree of proof is necessary to overcome the presumption that such recitals are true. 4. In order to overcome the documentary evidence, the oral testimony must be clear, strong and convincing 5. Examples: Certifications issued by a public officer. Recommendations and endorsements by a public official. C. How to Prove a Public Document (Section 24) 1. In case of written official acts or records of official act of public or sovereign bodies

How Genuineness of Handwriting is Proven= Rule 132, Sec. 22 It may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. Not much weight is given to handwriting experts. Unless, therefore, there is, in a given case, absolute absence, or manifest dearth, or direct or circumstantial competent evidence of the character of a questioned handwriting, much weight should not be given to characteristic similarities, or dissimilarities, between the questioned handwriting and an authentic one. (Punzalan v. Commission on Elections, G.R. No. 132435 prom. April 27, 1998 citing Lorenzo v. Diaz, 53 O.G. 4110-4111, cited in Francisco on Evidence, Vol. VII, Part I, 1997 Edition, p. 674)

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(i). By presenting the Official Publication thereof (ii) By presenting a certified true copy i.e. attested by the proper custodian and bearing the certification by him, his signature, and the seal of his office. A certified copy is allowed by reason of the principle of Irremovability of Public records under Section 26. Example: Laws of national application are proved by a certified copy thereof or a copy appearing in the official publication. In case of publication other than the Official Gazette, the copy must be accompanied by the Certificate of the Publication by the publisher 2. As to written foreign public documents (i) By an Official Publication thereof (ii) By a Copy attested by the official custodian and accompanied by a certificate by the proper officer of the Philippine foreign service stationed in the country where such foreign document is kept Thus, a Special Power of Attorney executed abroad, must be bear the Red Ribbon coming from the Phil. Embassy or Consul QUESTION: How is a foreign law proven in the Philippines? Ans. If it is written it is proved by: (i) the Official Publication thereof (ii) An official copy issued by the custodian (iii) certified true copy accompanied by the certification of the Phil. Foreign official and (iii) By the testimony of an expert D). In case of the public record of a private writing (i) By the original record i.e. the very private document kept in official custody (ii) By a copy duly certified by the custodian The Original of public record can not be presented by reason of the Rule on the Irremovability of Public Records under section 26. Hence secondary evidence is allowed which consist either of the Official Publication, if so published, or a certified true copy thereof, unless if is extremely necessary that the original of the public record be produced in court, but only upon lawful order of the court. If the documents be in a non-official language, i.e not in English or Pilipino, it must be accompanied by a translation in either r said language

In case of notarized documents . the acknowledgment suffices to authenticate the document and there is no need to present the notary public Private documents need not be sealed If the documents contain alterations, the party offering the document must explain the alteration was: made by another without his concurrence; as consented by all the parties, was innocently made, or that it does not change the meaning, or any other valid reason. Said explanation must be made a the time of the presentation of the document. If the document presented consist of judicial record, such as decisions or orders, they are conclusive and the only grounds to impeach said records are (a) want of jurisdiction of the court which issue them (b) there was collusion between the court and the prevailing party and (c) extrinsic fraud was practiced by the winning party

If what is sought to be proven is the lack of records in a certain public office, there must be a certificate to that effect Examples: 1. Certifications from the National Statistics Office that no marriage ever took place between two people; or (2) from the POEA in illegal recruitment cases and the (3) FEU in prosecutions for illegal possession of firearms. NEED FOR FORMAL OFFER: The purpose for which evidence is offered must be specified because such evidence maybe admissible for several purposes under the doctrine of multiple admissibility, or may be admissible for one purpose and not for another, otherwise the adverse party cannot interpose the proper objection ( Uniwide vs. Titan-Ikeda 511 SCA 335) Presentation of Evidence Note: The Rules apply to Summary Procedure but in a modified form, since in Summary Procedure the testimonies of the witnesses, (in civil cases) will be reduced into writing in the form of affidavit. Hence, there is no direct, cross, re-cross or re-direct examination. Affiant is not allowed in Summary Procedure to embody hearsay testimony. In criminal cases under Summary Procedure,

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the affidavits of the witnesses take the place of the direct examination. There is cross examination VOIR DIRE- preliminary examination of witnesses for the purpose of establishing whether or not a witness really is qualified as such. (Likewise done in examination of a child witness, but it is only the judge who can ask questions, plaintiff and defendant can write their questions and give it to the judge) Note: Ordinary witnesses are not allowed to be examined in a narrative form, except a child witness. A. Examination of Witnesses 1. How done Rule 132, Sec. 1

However, the court directs the witness to give an answer and the witness obeys the order of the court. Later on the answer turns out to be incriminatory and later on the witness was indicted for the commission of this offense, can his testimony in court be given in evidence against him in the form of an admission? NO, because the witnsess has initially objected and he gave the answer only in compliance with an order of the court. According to some decisions that could be treated as a compelled testimony given under duress and therefore could not be used against the witness. EXCEPTIONS TO RULE AGAINST SELF-INCRIMINATION 1. Use Immunity- the witness will still be indicted for the commission of an offense, but the statements given by the witness cannot be used against him. He is not immunized from prosecution. 2. Transactional Immunity- There is absolute immunity, both to prosecution and use of the statements given by the witness. Order in the Examination Rule 132, Sec. 4

open court under oath or affirmation Mode of answering General Rule: oral Exception: Witness is incapacitated to speak or Question calls for a different mode of answer 2. Rights and Obligations Rule 132, Sec. 3 Obligation of a witness: answer questions, although his answer may tend to establish a claim against him. Rights of a witness: To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; Not to be detained longer than the interests of justice require; Not to be examined except only as to matters pertinent to the issue; Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. Case: Supposing a witness refused to answer because he feels the question is incriminatory.

1 Direct Examination Rule 132, Sec. 5 - Examination-in-chief of a witness by the party presenting him on the facts relevant to the issue. 2 Cross-Examination Rule 132, Sec. 6 - When conducted: upon termination of direct examination - Matters covered: witness may be cross-examined by the adverse party as to Any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and To elicit all important facts bearing upon the issue.

Implied waiver of cross-examination The party was given the opportunity Dela Paz vs. IAC (1987) TWO RULES ON LIMITS OF CROSS EXAMINATION 1. English Rule- where a witness is called to testify to a particular fact, he becomes a witness for all purposes and may be fully cross-examined upon all matters

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material to the issue, the examination not being confined to the matters inquired about in the direct examination. 2. American Rule- restricts cross-examination to facts and circumstances which are connected with the matters that have been stated in the direct examination of the witness. (applies when witness is the accused in a criminal case; and when witness is hostile or adverse party witness) 3 Re-direct Examination Rule 132, Sec. 7 - When conducted: after the cross-examination of the witness has been concluded - Why conducted: to explain or supplement his answers given during the cross-examination. On redirect-examination, the court in its discretion may allow questions on matters not dealt with during the cross-examination. 4 Re-cross Examination Rule 132, Sec. 8 - Adverse party may re-cross-examine the witness on matters stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion, upon the conclusion of the redirect examination. Recalling Witnesses Rule 132, Sec. 9 - After the examination of a witness has been concluded by both sides has been concluded, the witness cannot be recalled without leave of court. The court will grant or withhold leave in its discretion as the interests of justice may require. There must be a satisfactory showing of some concrete, substantial ground (i.e. particularly identified material points were not covered in the cross-examination; particularly described vital documents were not presented to the witness; the cross-examination was conducted in so inept a manner as to result in a virtual absence thereof. (People vs. Rivera, 1991) Leading and Misleading Questions Rule 132, Sec. 10 Leading questions Questions that suggest to the witness the answer, which the examining party desires, are leading questions. General Rule: Not allowed

Exceptions: 1. 2. On cross examination; On preliminary matters;

3. When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute; 4. Of an unwilling or hostile witness; or

5. A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into calling him to the witness stand.

6. Of a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party. When the answer is derived from a leading question the evidence has no probative value at all even if there is no objection to a leading question. Misleading questions 1 Those that assume as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. Not allowed.

DOCTRINE OF INCOMPLETE TESTIMONY: When cross examination cannot be done or completed due to causes attributable to the party who offered the witness, the incomplete testimony is rendered incompetent and should be stricken from the record. Except: where the prosecution witness was extensively cross-examined on the material points and thereafter failed to appear and cannot be produced despite a warrant for his arrest. (People v. GOrospe, GR 51513, May 15, 1984) Scope of judges participation at trial: A judge who presides at a trial is not a mere referee. He must actively participate therein by directing counsel to the facts in dispute, by asking clarifying questions, and by showing an interest in a fast a fair trial. (Clarin v. Yatco, 56 O.G. 7042, Nov. 14, 1960)

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He can interrogate witnesses to elicit the truth, to obtain clarification, or to test their credibility. (People v Moreno, 83 Phil. 286) However, this power must be exercised by the court sparingly and judiciously. (People v. Ferrer, 44 O.G. 112). Of course, the judge cannot curtail counsel's right to interrogate witnesses. (People v. Bedia, 83 Phil. 909) There is no prohibition against the judge conducting the examination of the witness. The counsel may object to the questions propounded by the judge. Power of court to stop further evidence: 1) The court may stop 2) the introduction of further testimony 3) upon any particular point

Impeachment of Witnesses 1. Impeachment of Adverse Partys Witness Rule 132, Sec. 11

How done: by contradictory evidence; by evidence that his general reputation for truth, honesty or integrity is bad; or by evidence that he has made at other times statements inconsistent with his present testimony. Evidence of particular wrongful acts is not allowed except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense.

2. 4) when the evidence upon it is already so full 5) that more witnesses to the same point 6) cannot be reasonably expected 7) to be additionally persuasive. But this power should be exercised with caution. When the evidence already presented on one point is sufficient and the party merely seeks to present cumulative evidence which cannot produce additional persuasive effect or that he is not sure of what the other witnesses would testify, the court may in its sound discretion stop the introduction of such further evidence. (People v. Reyes, et al., 133 SCRA 51) Role of attorney during presentation of evidence: An attorney has a dual role to perform relative to proving the truth respecting a matter of fact. He must ensure that all evidence supporting the material allegations, whether raised in the pleadings or not are admitted by the court. His other role is to block the admission of evidence supporting his opponents' material allegations whether raised in the pleadings or not. In order to perform this dual role the attorney should ensure that the evidence he offers are admissible in accordance with the Rules of Court and those of his opponent are properly objected to for being inadmissible

Impeachment of Own Witness Rule 132, Sec. 12

General Rule: The party producing a witness is not allowed to impeach the latters credibility. Exception: witness. The witness is an unwilling or hostile

A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into calling him to the witness stand.

The impeachment may be made by the party presenting the hostile or unwilling witness in all respects as if he had been called by the adverse party, except by evidence of bad character. He may also be impeached and cross-examined by the adverse party, but such cross-examination must only be on the subject matter of his examination-in-chief. 3. Impeachment by Prior Inconsistent Statements Rule 132, Sec. 13

- Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony: the statements must be related to him, with the circumstances of the times and places and the

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persons present, and he must be asked whether he made such statements, and if so, be allowed to explain them; if the statements be in writing they must be shown to the witness before any question is put to him concerning them (laying the predicate). Laying the foundation or laying the basis- refers to a situation where an evidence which is otherwise incompetent will be introduced in evidence because it falls under the exceptions to that rule on exclusion. Example: If a party desires to introduce secondary or substitutionary evidence he must first lay the foundation or lay the basis. He must first proved that there was a writing duly executed and that the original has been lost or destroyed. Exclusion and Separation of Witnesses Rule 132, Sec. 14 - The judge may exclude from the court any witness not at the time under examination, so that he may not hear the testimony of other witnesses. The judge may also have the witnesses separated and prevented from conversing with each other until all have been examined. Refreshing Recollection of Witnesses Rule 132, Sec. 16 1 Revival of Present Memory - A witness may be allowed to refresh his memory respecting a fact, by anything written or recorded by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and knew that the same was correctly written or recorded, - BUT in such case the writing or record must be produced and may be inspected by the adverse party, who may, if he chooses, cross examine the witness upon it, and may read it in evidence. Note: The memorandum is not evidence, it is still the testimony 2 Past Recollection Recorded - A witness may testify from such writing or record, (as in the case in revival of present memory) though he retain no recollection of the particular facts, if he is able to swear that the writing or record correctly stated the transaction when made; but such evidence must be received with caution.

Note: It is the memorandum that will serve as evidence (documentary evidence) What is the consequence of giving in evidence a part of an act, declaration, conversation, writing or record? (Rule 132, Section 17) [RULE OF COMPLETENESS] - The whole of the same subject may be inquired into by the other, and when a detached act, declaration, conversation, writing or record is given in evidence, any other act, declaration, conversation, writing or record necessary to its understanding may also be given in evidence. Rule on Examination of a Child Witness Applicability of the Rule. Unless otherwise provided, this Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses. (1) Child witness I. Definition (4(a)) Any person who at the time of giving testimony is < 18 years. In child abuse cases: a child includes one over eighteen (18) years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition. II. Competency of a Child Witness: Every child is presumed qualified to be a witness. To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence. (6, 6(b))

Competency exam When conductedMotu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court. (6) A party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination. (6(a)) B. Who are allowed to attend- The judge and necessary court personnel; A.

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The counsel for the parties; The guardian ad litem; Support person/s for the child; and The defendant, unless the court determines that competence can be fully evaluated in his absence. How conductedBy whom conducted: by the judge, counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child. (6(d)) Questions asked: appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully. (6(e)) The court has the duty of continuously assessing the competence of the child throughout his testimony. (6(f)) III. A. Testifying Oath: Before testifying, a child shall take an oath or affirmation to tell the truth. (7) Examination How conducted General Rule: open court, unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. (8) Exception/s: -

the crime, the nature of his testimony regarding the crime, his relationship to the accused and to persons attending the trial, his desires, and the interests of his parents or legal guardian. The court may, motu proprio, exclude the public from the courtroom if the evidence to be produced during trial is of such character as to be offensive to decency or public morals. The court may also, on motion of the accused, exclude the public from trial, except court personnel and the counsel of the parties. The court may order that persons attending the trial shall not enter or leave the courtroom during the testimony of the child. (24) Motion by party who presents a child witness or the guardian ad litem of such child witness may, however, move the court to allow him to testify in the manner provided in this Rule (8):

C. -

b)

c)

Live-link television testimony in criminal cases where the child is a victim or a witness. (25) Who may apply for an order that testimony of the child be taken in a room outside the courtroom and be televised to the courtroom by live-link television: 1 2 3 prosecutor, counsel or the guardian ad litem

B. 1.

Period for application: The person seeking such an order shall apply at least five (5) days before the trial date, unless the court finds on the record that the need for such an order was not reasonably foreseeable. Hearing on the application: The court may motu proprio hear and determine, with notice to the parties, the need for taking the testimony of the child through live-link television. The judge may question the child in chambers, or in some comfortable place other than the courtroom, in the presence of the support person, guardian ad litem, prosecutor, and counsel for the parties. The questions of the judge shall not be related to the issues at trial but to the feelings of the child about testifying in the courtroom. The judge may exclude any person, including the accused, whose presence or conduct causes fear to the child. Order denying/granting use of live-link TV:

a)

Exclusion of the public Why made: To protect the right to privacy of the child or If the court determines on the record that requiring the child to testify in open court would cause psychological harm to him, hinder the ascertainment of truth, or result in his inability to effectively communicate due to embarrassment, fear, or timidity.

In making its order, the court shall consider the developmental level of the child, the nature of

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The court shall issue an order granting or denying the use of live-link television and stating the reasons therefor. Factors considered by the court in granting/denying application: (1)The age and level of development of the child; (2)His physical and mental including any mental or physical disability; (3)Any physical, emotional, psychological injury experienced by him; (4)The nature of the alleged abuse; (5)Any threats against the child; (6)His relationship with the accused or adverse party; (7)His reaction to any prior encounters with the accused in court or elsewhere; (8)His reaction prior to trial when the topic of testifying was discussed with him by parents or professionals; (9)Specific symptoms of stress exhibited by the child in the days prior to testifying; (10)Testimony of expert or lay witnesses; (11)The custodial situation of the child and the attitude of the members of his family regarding the events about which he will testify; and (12)Other relevant factors, such as court atmosphere and formalities of court procedure. The court may order that the testimony of the child be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. The trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child. How done: where testimony is taken: in a room separate from the courtroom who are present: guardian ad litem; health,

one or both of his support persons; the facilitator and interpreter, if any; a court officer appointed by the court; persons necessary to operate the closed-circuit television equipment; and other persons whose presence are determined by the court to be necessary to the welfare and well-being of the child;

or

The judge, prosecutor, accused, and counsel for the parties shall be in the courtroom. The testimony of the child shall be transmitted by live-link television into the courtroom for viewing and hearing by the judge, prosecutor, counsel for the parties, accused, victim, and the public unless excluded. If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing the image of the latter on a television monitor. The court may set other conditions and limitations on the taking of the testimony that it finds just and appropriate, taking into consideration the best interests of the child. The testimony of the child shall be preserved on videotape, digital disc, or other similar devices which shall be made part of the court record and shall be subject to a protective order as provided in section 31(b). ii. Screens, one-way mirrors, and other devices to shield child from accused. Who may apply for an order that the chair of the child or that a screen or other device be placed in the courtroom in such a manner that the child cannot see the accused while testifying: 1 2 prosecutor or guardian ad litem (consultation with prosecutor or counsel as in application for use of live-link TV. also required)

Order granting application: The court shall issue an order stating the reasons and describing the approved courtroom arrangement

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If the court grants an application to shield the child from the accused while testifying in the courtroom, the courtroom shall be arranged to enable the accused to view the child. iii. Videotaped deposition.

Objections to deposition testimony or evidence, or parts thereof, and the grounds for the objection shall be stated and shall be ruled upon at the time of the taking of the deposition. The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition.

Who may apply for an order that a deposition be taken of the testimony of the child and that it be recorded and preserved on videotape? 1 2 3 prosecutor, counsel, or guardian ad litem (consultation with prosecutor or counsel as in application for use of live-link TV. also required)

The videotaped deposition shall be preserved and stenographically recorded. The videotape and the stenographic notes shall be transmitted to the clerk of the court where the case is pending for safekeeping and shall be made a part of the record. The court may set other conditions on the taking of the deposition that it finds just and appropriate, taking into consideration the best interests of the child, the constitutional rights of the accused, and other relevant factors. The videotaped deposition and stenographic notes shall be subject to a protective order as provided in section 31(b).

When allowed:If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape. Deposition-taking: Who are present Judge who shall preside videotaped deposition of a child; Prosecutor; defense counsel; Guardian ad litem; Accused, provided that, if the order of the court is based on evidence that the child is unable to testify in the physical presence of the accused, the court may direct the latter to be excluded from the room in which the deposition is conducted. In case of exclusion of the accused, the court shall order that the testimony of the child be taken by live-link television in accordance with section 25 of this Rule. If the accused is excluded from the deposition, it is not necessary that the child be able to view an image of the accused. Other persons whose presence is determined by the court to be necessary to the welfare and well-being of the child; Support person/s, interpreter, if any; the facilitator and at the

If, at the time of trial, the court finds that the child is unable to testify for a reason stated in section 25(f) of this Rule, or is unavailable for any reason described in section 4(c), Rule 23 of the 1997 Rules of Civil Procedure, the court may admit into evidence the videotaped deposition of the child in lieu of his testimony at the trial. The court shall issue an order stating the reasons therefor. After the original videotaping but before or during trial, any party may file any motion for additional videotaping on the ground of newly discovered evidence. The court may order an additional videotaped deposition to receive the newly discovered evidence. When conducted: The court may order that the testimony of the child should be taken during a time of day when the child is well-rested. (14) Provisions for ease of testifying/accommodations for a child a. Interpreter for child (9) child in

How appointed: the court motu proprio or upon motion When appointed:When a child does not understand the English or Filipino language or is unable to communicate in said languages due to his developmental level, fear, shyness, disability, or other similar reason

Court stenographer; and Persons necessary videotape equipment. to operate the

Objections to testimony or evidence; rights of the accused

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Who may be interpreter? If a witness or member of the family of the child is the only person who can serve as an interpreter for the child, he shall not be disqualified and may serve as the interpreter of the child. The interpreter, however, who is also a witness, shall testify ahead of the child. An interpreter shall take an oath or affirmation to make a true and accurate interpretation. b. Facilitator to pose questions to child (10)

testimony. Support person, also a witness 1 Disapproved if it is sufficiently established that the attendance of the support person during the testimony of the child would pose a substantial risk of influencing or affecting the content of the testimony of the child. If allowed his testimony shall be presented ahead of the testimony of the child. Waiting area for child witnesses (12) that is separate from waiting areas used by other persons.

How appointed: The court motu proprio or upon motion, When appointed: child is unable to understand or respond to questions asked. Who may be a facilitator: The facilitator may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent, or relative. The facilitator shall take an oath or affirmation to pose questions to the child according to the meaning intended by counsel. Function of facilitator: Respective counsels for the parties shall pose questions to the child only through the facilitator. The questions shall either be in the words used by counsel or, if the child is not likely to understand the same, in words that are comprehensible to the child and which convey the meaning intended by counsel. c. Support persons (11)

Courtroom environment Aim: create a more comfortable environment for the child court may, in its discretion, direct and supervise the location, movement and deportment of all persons in the courtroom including the parties, their counsel, child, witnesses, support persons, guardian ad litem, facilitator, and court personnel. The child may be allowed to testify from a place other than the witness chair. The witness chair or other place from which the child testifies may be turned to facilitate his testimony but the opposing party and his counsel must have a frontal or profile view of the child during the testimony of the child. The witness chair or other place from which the child testifies may also be rearranged to allow the child to see the opposing party and his counsel, if he chooses to look at them, without turning his body or leaving the witness stand. The judge need not wear his judicial robe. Nothing in this section or any other provision of law, except official in-court identification provisions, shall be construed to require a child to look at the accused. Accommodations for the child under this section need not be supported by a finding of trauma to the child. Recess during testimony

A child testifying at a judicial proceeding or making a deposition shall have the right to be accompanied by one or two persons of his own choosing to provide him emotional support. (1)Both support persons shall remain within the view of the child during his testimony. (2)One of the support persons may accompany the child to the witness stand, provided the support person does not completely obscure the child from the view of the opposing party, judge, or hearing officer. (3)The court may allow the support person to hold the hand of the child or take other appropriate steps to provide emotional support to the child in the course of the proceedings. (4)The court shall instruct the support persons not to prompt, sway, or influence the child during his

The child may be allowed reasonable periods of relief while undergoing direct, cross, re-direct, and re-cross examinations as often as necessary depending on his developmental level. Testimonial aids: use of dolls, anatomically-

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correct dolls, puppets, drawings, mannequins, or any other appropriate demonstrative device to assist him in his testimony. Emotional security item (17): While testifying, a child shall be allowed to have an item of his own choosing such as a blanket, toy, or doll Conduct in questioning the witness: i. Conduct of counsel: a counsel may be prohibited from approaching a child if it appears that the child is fearful of or intimidated by the counsel. (18) ii. Mode of questioning: - The court shall exercise control over the questioning of children so as to (1) facilitate the ascertainment of the truth, (2) ensure that questions are stated in a form appropriate to the developmental level of the child, (3) protect children from harassment or undue embarrassment, and (4) avoid waste of time. - The court may allow the child witness to testify in a narrative form. iii. Questions and objections thereto leading questions in all stages of examination of a child may be allowed if the same will further the interests of justice Objections to questions should be couched in a manner so as not to mislead, confuse, frighten, or intimidate the child. Weight given to testimony of child witness: strong; corroboration not required - His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and non-criminal cases. IV. Questions of Admissibility C. Hearsay Exception in Child Abuse Cases Where admitted: child abuse cases, criminal or noncriminal How admitted: 1) Before such hearsay statement may be

admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. A. Child is available The court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for crossexamination by the adverse party. B. Child is unavailable the fact of such circumstance must be proved by the proponent. When unavailable: (1)Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or (2)Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence. (3) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors: C. Whether there is a motive to lie; d. The general character of the declarant child; Whether more than one person heard the statement; Whether the statement was spontaneous; The timing of the statement and the relationship between the declarant child and witness; Cross-examination could not show the lack of knowledge of the declarant child; The possibility of faulty recollection of the declarant child is remote; and The circumstances surrounding the

e.

f. g.

h.

i.

j.

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statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused. D. Videotaped and audiotaped in-depth investigative or disclosure interviews in child abuse cases (29)

(6)It has been duly preserved. Value of an investigative interview that was not done as required in this Rule: The fact that an investigative interview is not videotaped or audiotaped as required by this section shall not by itself constitute a basis to exclude from evidence out-of-court statements or testimony of the child. It may, however, be considered in determining the reliability of the statements of the child describing abuse. E. Sexual abuse shield rule

When admissible: 1 The child witness -

(1)Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or (2)Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. 2 Before the videotape or audiotape is offered in evidence, all parties shall be afforded an opportunity to view or listen to it and shall be furnished a copy of a written transcript of the proceedings. By whom conducted: duly trained members of a multidisciplinary team or representatives of law enforcement or child protective services in situations where child abuse is suspected so as to determine whether child abuse occurred. individual conducting the interview of the child shall be available at trial for examination by any party. Proof of the following must be given by party offering the videotape or audiotape: (1)The videotape or audiotape discloses the identity of all individuals present and at all times includes their images and voices; (2)The statement was not made in response to questioning calculated to lead the child to make a particular statement or is clearly shown to be the statement of the child and not the product of improper suggestion; (3)The videotape and audiotape machine or device was capable of recording testimony; (4)The person operating the device was competent to operate it; (5)The videotape or audiotape is authentic and correct; and

Inadmissible evidence in any criminal proceeding involving alleged child sexual abuse: (1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; and (2) Evidence offered to prove predisposition of the alleged victim. the sexual

When admissible: Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible. How admitted: 1. A party intending to offer such evidence must: a. File a written motion at least 15 days before trial, specifically describing the evidence and stating the purpose for which it is offered, unless the court, for good cause, requires a different time for filing or permits filing during trial; and Serve the motion on all parties and the guardian ad litem at least 3 days before the hearing of the motion. 2. Before admitting such evidence, the court must conduct a hearing in chambers and afford the child, his guardian ad litem, the parties, and their counsel a right to attend and be heard. The motion and the record of the hearing must be sealed and remain under seal and protected by a protective order set forth in section 31(b). The child shall not be required to testify at the hearing in chambers except with his consent. V. F. Other protective measures for the child Confidentiality of records. When records may be released: upon written

b.

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request and order of the court To whom may be released: (1) Members administrative use; of the court staff for

prior court order. Any person violating such protective order is subject to the contempt power of the court and other penalties prescribed by law. (5) No tape shall be given, loaned, sold, or shown to any person except as ordered by the court. (6) Within 30 days from receipt, all copies of the tape and any transcripts thereof shall be returned to the clerk of court for safekeeping unless the period is extended by the court on motion of a party. (7) This protective order shall remain in full force and effect until further order of the court. H. Additional protective orders. The court may, motu proprio or on motion of any party, the child, his parents, legal guardian, or the guardian ad litem, issue additional orders to protect the privacy of the child. Publication of identity contemptuous.

(2) The prosecuting attorney; (3) Defense counsel; (4) The guardian ad litem; (5) Agents of investigating law enforcement agencies; and (6) Other persons as determined by the court. G. Protective order

What are covered: Any videotape or audiotape of a child that is part of the court record Provisos of the protective order: (1) Tapes may be viewed only by parties, their counsel, their expert witness, and the guardian ad litem. (2) No tape, or any portion thereof, shall be divulged by any person mentioned in sub-section (a) to any other person, except as necessary for the trial. (3) No person shall be granted access to the tape, its transcription or any part thereof unless he signs a written affirmation that he has received and read a copy of the protective order; that he submits to the jurisdiction of the court with respect to the protective order; and that in case of violation thereof, he will be subject to the contempt power of the court. (4) Each of the tape cassettes and transcripts thereof made available to the parties, their counsel, and respective agents shall bear the following cautionary notice: This object or document and the contents thereof are subject to a protective order issued by the court in (case title), (case number). They shall not be examined, inspected, read, viewed, or copied by any person, or disclosed to any person, except as provided in the protective order. No additional copies of the tape or any of its portion shall be made, given, sold, or shown to any person without

I.

What is prohibited: Publication or causing publication in any format the name, address, telephone number, school, or other identifying information of a child who is or is alleged to be a victim or accused of a crime or a witness thereof, or an immediate family of the child Liability of violator: contempt of court J. Physical safety of child; exclusion of evidence.

A child has a right at any court proceeding not to testify regarding personal identifying information, including his name, address, telephone number, school, and other information that could endanger his physical safety or his family. The court may, however, require the child to testify regarding personal identifying information in the interest of justice. K. Destruction of videotapes and audiotapes produced under the provisions of this Rule or otherwise made part of the court record shall be destroyed after 5 years have elapsed from the date of entry of judgment. Records of youthful offender: privileged Youthful offender has been charged before any city or provincial prosecutor or before any municipal judge and the charges have been ordered dropped

L. 1.

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All the records of the case shall be considered as privileged and may not be disclosed directly or indirectly to anyone for any purpose whatsoever. 2. Youthful offender has been charged and the court acquits him, or dismisses the case or commits him to an institution and subsequently releases him pursuant to Chapter 3 of P. D. No. 603,

- The record may be evidenced by: (1) an official publication thereof; (2) a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the record is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul-general, consul, vice-consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. *Contents of Attestation = Rule 132, Sec 25 - The attestation must state that the copy is a correct copy of the original or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. - Irremovability of Record = Rule 132, Sec. 26 - Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept, except upon order of a court where the inspection of the record is essential to the just determination of a pending case. 1.1.2 Notarial Documents except last wills and testaments; - How Proven = Rule 132, Sec. 30 - Notarial documents may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved. 1.1.3 Public Records (kept in the Philippines) of Private Documents required by law to be entered therein - How Proven = Sec. 27 - Such may be proved by the original record, or a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. - Proof of Lack of Record = Sec. 28 A written statement signed by an officer having the custody of an official record or by his deputy that

All the records of his case shall also be considered as privileged and may not be disclosed directly or indirectly to anyone EXCEPT to determine if a defendant may have his sentence suspended under Article 192 of P. D. No. 603 or if he may be granted probation under the provisions of P. D. No. 968 or to enforce his civil liability, if said liability has been imposed in the criminal action. The youthful offender concerned shall not be held under any provision of law to be guilty of perjury or of concealment or misrepresentation by reason of his failure to acknowledge the case or recite any fact related thereto in response to any inquiry made to him for any purpose. VI. Suppletory application of Rules of Court: The provisions of the Rules of Court on deposition, conditional examination of witnesses, and evidence shall be applied in a suppletory character. (32) Authentication and Proof of Documents 1. Classes of Documents 1.1 Public Documents Rule 132, Sec. 19 1.1.1-A Written official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines or of a foreign country; - How Proven = Rule 132, Sec. 23 - Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated. All other public documents are evidence, even against a third person of the fact which gave rise to their execution and of the date of the latter. 1.1.1-B Records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines or of a foreign country. - How Proven = Rule 132, Sec. 24

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after diligent search, no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate that such officer has the custody, is admissible to prove that the records of his office contain no such record or entry. 1.2 Private Documents

- The party producing a document as genuine, which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, must account for the alteration. Failure to do so would result in the inadmissibility of evidence. - He may show that the alteration was made

- How Proven = Rule 132, Sec. 20 Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (1) by anyone who say the document executed or written; or (2) by evidence of the genuineness of the signature or handwriting of the maker. Any other private document need only be identified as that which it is claimed to be. - Ancient Document Rule = Rule 132, Sec. 21 Requisites: (1) The private document is more than 30 years old; (2) It is produced from a custody in which it would naturally be found if genuine; (3) It is unblemished by any alterations or circumstances of suspicion. If all requisites have been met, no other evidence of its authenticity is required. 1. How Genuineness of Handwriting is Proven = Rule 132, Sec. 22 It may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. 2. Impeachment of Judicial Record Rule 132, Sec. 29 How done By evidence of (a) want of jurisdiction in the court or judicial officer; (b) collusion between the parties; or (c) fraud in the party offering the record, in respect to the proceedings. 3. Alterations Rule 132, Sec. 31 1 Why made? f) g) h) i) j) by another, without his concurrence, or made with the consent of the parties affected by it, or was otherwise properly or innocent made, or The alteration did not change the meaning or language of the instrument.

Seal Rule 132, Sec. 32 - There shall be no difference between sealed and unsealed private documents insofar as their admissibility as evidence is concerned. Documents Written in an Unofficial Language Rule 132, Sec.33 - Not admissible unless accompanied with a translation into English or Filipino; parties or their attorneys are directed to have such translation prepared before trial. IS THERE ANY WAY TO AVOID THE TEDIOUS PROCESS OF AUTHENTICATION? 1. Rule on actionable documents (Rule 8). It provides that if an actionable document is the basis of a complaint of an answer, the law requires that it should be annexed to the pleading or that the contents thereof be copied in verbatim. If there is failure to specifically deny under oath the genuineness and due execution of an actionable document that judicial admission will take the place of authentication 2. Mode of discovery- Request for admission of the genuineness and due execution of a private writing. Failure to object within 15 days, deemed admitted. 3. Pre-trial of civil and criminal case wherein parties may enter into stipulations, where they will admit the genuineness and due execution of the private writing. Offer and Objection 1. Offer of Evidence Rule 132, Sec, 34

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- For evidence to be considered by the court - court shall consider no evidence, which has not been formally offered. 1.1 When to make offer Rule 132, Sec. 35 - Testimonial Evidence = at the time the witness is called to testify. - Documentary Evidence = after the presentation of a partys testimonial evidence; offer shall be done orally unless allowed by the court to be done in writing. When evidence admitted even if not formally offered: 1. The same must have been duly identified by testimony duly recorded 2. The same must have been incorporated to the records of the case (Mata Vda. De Onate vs. CA) STAGES in the presentation of documentary evidence 1. Identification- proof that the document being offered is the same one referred to by the witness in his testimony 2. Marking 3. Authentication- proof execution and genuineness 4. Inspection 5. Formal Offer 6. Objections 2. Objection - Rule 132, Sec. 36 - Testimonial Evidence = must be objected to immediately after the offer is made. = Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefore shall become reasonably apparent. - Documentary Evidence = shall be objected to within 3 days after notice of the offer unless a different period is allowed by the court. Kinds of Objection 1. General or broadside- does not go beyond declaring the evidence as immaterial, incompetent, irrelevant, or inadmissible. Does not specify the of documents due

grounds 2. Specific- States the ground - When repetition is unnecessary Rule 132, Sec. 37 (Rule on Continuing Objection) It shall not be necessary to repeat the objection when it becomes reasonably apparent in the course of the examination of a witness that the questions being propounded are of the same class as those to which objection has been made, whether such objection was sustained or overruled. It shall be sufficient for the adverse party to record his continuing objection to such class of questions. - Ruling Rule 132, Sec. 38 = Given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling. = The reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon. 3. Motion to Strike Rule 132, Sec. 39 - The court may sustain an objection and order the answer given to be stricken off the record should a witness answer the question before the adverse party had the opportunity to voice fully its objection and such objection is found to be meritorious. - The court may also, upon proper motion, order the striking out of answers, which are incompetent, irrelevant or otherwise improper. 4. Tender of Excluded Evidence (Proffer of excluded evidence) Rule 132, Sec. 40 - Documentary evidence the offeror may have the same attached or made part of the record. - Testimonial evidence the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony. There is a distinction between identification of documentary evidence and its formal offer as an

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exhibit. The former is done in the course of the trial and is accompanied by the marking of the evidence while the latter is done only when the party rests his/her case. That a document has been identified does not mean that it will be offered. (Interpacific Transit vs. Aviles, 1990) While there was no offer of the testimony, petitioner waived this defect by failing to object when the ground became reasonably apparent the moment private respondent was called to testify without any prior offer having been made. (Catuira vs. CA, 1994) The rule requiring that there must be a formal offer of evidence before the evidence can be considered may be relaxed provided the evidence must have duly identified by testimony duly recorded and they must have been incorporated in the records of the case. (Vda. De Oate vs. CA, 1995) OFFER OF PROOF/TENDER OF EXCLUDED EVIDENCE vs. OFFER OF EVIDENCE First, is only resorted to if admission is refused by the court for purposes of review on appeal. Second, refers to testimonial, documentary or object evidence that are presented or offered in court by a party so that the court can consider his evidence when it comes to the preparation of the decision. RULE 133 Weight and Sufficiency of Evidence SECTION 1 . Preponderance of evidence, how determined. In civil cases, the party having burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity of knowing the facts to which there are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number. (1a) Sec. 2 . Proof beyond reasonable doubt. In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such

a degree of proof, excluding possibility of error, produces absolute certainly. Moral certainly only is required, or that degree of proof which produces conviction in an unprejudiced mind. (2a) Sec. 3 . Extrajudicial confession, not sufficient ground for conviction. An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. (3) Sec. 4 . Circumstantial evidence, when sufficient. Circumstantial evidence is sufficient for conviction if: (a)There is more than one circumstances; (b)The facts from which the inferences are derived are proven; and (c)The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. (5) Sec. 5 . Substantial evidence. In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. (n) Sec. 6 . Power of the court to stop further evidence. The court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised with caution. (6) Sec. 7 . Evidence on motion. When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (7) Weight and Sufficiency of Evidence A. 1. Required Quantum of Evidence Preponderance of Evidence (Civil

Cases) Rule 133, Sec. 1 How determined? The court may consider: All the facts and circumstances of the case; The witnesses manner of testifying;

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Their intelligence; Their means and opportunity of knowing the facts to which they testify; The probability testimony; or improbability of their

CIRCUMSTANCE TEST 1. 2. 3. 4. 5. 6. Witness opportunity to view the criminal act at the time of the crime Witness degree of attention at that time The accuracy of any prior description given by the witness The level of certainty demonstrated by the witness at the identification The length of time between the crime and the identification The suggestiveness of the identification procedure

Their interest or want of interest; Personal credibility so far as the same may legitimately appear upon the trial; Number of witnesses (note preponderance that is not necessarily equated with the no. of witnesses) Proof Beyond Reasonable Doubt

2.

res ipsa loquitur (The thing speaks for itself)- A procedural device which presumes that the person is negligent, when he is in control of an instrumentality causing an injury in the absence of some explanation by him. Falsus in uno, falsus in omnibus (False in one thing, false in everything)- If the testimony of the witness on a material issue is willfully false and given with an intention to deceive, court may disregard all the witness testimony. (Not a mandatory rule of evidence) It deals only with the weight of evidence and not a positive rule of law The witnesses false or exaggerated statements on other matters shall not preclude the acceptance of such evidence as is relieved from any sign of falsehood The court may accept and reject portions of the witness testimony depending on the inherent credibility thereof.

(Criminal Cases) Rule 133, Sec. 2 What is proof beyond reasonable doubt? That degree of proof which produces conviction in an unprejudiced mind. Absolute certainty is not required, only moral certainty. 3. Substantial Evidence

(Administrative/Quasi-Judicial Cases) Rule133, Sec. 5 - What is substantial evidence? The amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Extrajudicial Confessions Rule 133, Sec. 3 - An extrajudicial confession made by an accused, is not a sufficient ground for conviction UNLESS corroborated by evidence of corpus delicti. B. C. Circumstantial Evidence Rule 133, Sec. 4 - Requisites for circumstantial evidence to be sufficient for conviction: a. There is more than 1 circumstance; b. The facts from which the inferences are derived are proven; and c. The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. OUT-OF-COURT IDENTIFICATION, THE TOTALITY OF

May the court stop the introduction of further testimony? YES upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive; this power should be exercised with caution. (Rule 133, Section 6) How will the court dispose of a motion which is based on facts not appearing of record? Court may hear the matter on Affidavits or Depositions

presented by the respective parties but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (Rule 133, Section 7) Examples of motion which need hearing hence the presentation of evidence:

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CRIMINAL CASES: Motion for bail (Under Criminal Procedure, the evidence taken up during the hearing of the motion will form part automatically of the records of the case, so there is no need to repeat in the trial what have been covered in the hearing of the motion) CIVIL CASES: Application attachment/injunction for preliminary

In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence Substantial evidence that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion Generally, the motive of the accused is immaterial in a criminal case, not being an essential element of the crime, hence, it does not need to be proved. Exceptions: 1. when there is no eyewitness and the suspicion is likely to fall on a considerable number of persons; 2. when there is doubt as to whether the accused is or is not the person who committed the offense; 3. when it is necessary to determine the sanity of the accused or the voluntariness of the act, the specific nature of the crime committed, or whether the shooting was intentional or accidental; 4. when the accused interposes self-defense or defense of stranger. WEIGHT AND SUFFICIENCY OF EVIDENCE

Motion to dismiss founded on certain facts which are not solely predicated on absence of jurisdiction or failure to state a COA, i.e. it is predicated on the ground of payment (Same with Criminal Case, evidence taken up during hearing made part automatically of records of the case) In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider 1. 2. 3. 4. 5. 6. 7. 8. 9. all the facts and circumstances of the case the witnesses manner of testifying their intelligence their means and opportunity of knowing the facts to which they are testifying the nature of the facts to which they testify the probability or improbability of their testimony their interest or want of interest their personal credibility so far as the same may legitimately appear upon the trial. number of witnesses, though the preponderance is not necessarily with the greater number.

Weight of Evidence: - The balance of evidence and in whose favor it tilts. This refers to the indication of the greater evidence between the parties . This depends on the judicial evaluation within the guidelines provided by the rules and by jurisprudence. Sufficiency of Evidence- refers to the adequacy of evidence. Such evidence in character, weight, or amount, as will legally justify the judicial action demanded or prayed by the parties. This refers to the question as to whether the evidence amounts or meets the required quantum needed to arrive at a decision in a civil, criminal, or administrative case; or to prove matters of defense or mitigation or to overcome a prima facie case or a presumption II. HIERARCHY OF EVIDENTIARY VALUES a). Proof beyond reasonable doubt b). Clear and convincing proof c). Preponderance of Evidence

A cause of action on the ground of reformation of instrument must be proven by clear and convincing evidence. In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. A defense of self-defense must be proven by clear and convincing evidence.

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d). Substantial evidence 2. a). Conclusiveincontrovertible overwhelming or

b). Prima Facie- that which suffices until rebutted c). Probable Cause- as that required for filing of an Information in Court or for the issuance of a warrant of arrest III. QUANTUM OF EVIDENCE REQUIRED A. Criminal cases: Proof of Guilt Must be Beyond reasonable doubt. 1. That degree of proof, which, excluding the possibility of error, produces moral certainty. If the inculpatory facts are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. B. Civil Cases: Preponderance of Evidence. This means that he weight, credit and value of the aggregate evidenced of one is superior to the other IV. RULES IN THE EVALUATION OF EVIDENCE 1. Courts shall consider and take into consideration :

i). The manner of testifying by a witness which includes his conduct and behavior on the witness stand, the emphasis, gestures, and inflection of his voice in answering questions. This is the reason why the rules require the witness to personally testify in open court. ii). The intelligence of the witness. This refers o this position to perceive by the sue of his organs of sense, his opportunity for accurate observation and faithful recollection of the facts to which he is testifying. This intelligence must be coupled with integrity, a general reputation for truth, honesty and integrity. This is because a witness to be believed must be truthful in his narration of correct facts. iii). The means and opportunity of knowing the facts which includes his presence and observation of the facts. iv). The nature of the facts to which the witness is testifying such as: whether he did the act as a participant, whether he saw the occurrence of an accident as he was a passenger; the identity of a person who is an old acquaintance; thus as to the circumstances of the birth a person, the mother would be the best witness on this point mother. v). The absence or presence of interest or basis for bias or prejudice. vi). Personal Credibility of the witness, referring to his general reputation for truth, honesty or integrity as for example: (i) the case of an young girl who makes a complaint for rape ; as for instance the accused claiming self defense who is well built, broad shouldered a boxer and expert in martial arts claiming the victim of assault by an ordinary person viii). The probability or improbability of the testimony C. The number of witnesses. However witnesses are to been weighed not numbered because quantitative superiority does not necessarily mean legal preponderance. Thus an accused may be convicted based solely on the testimony of one witness. But where the evidence for both parties is principally testimonial where the version of each exhibit equal tendency to be true and accurate, and the witnesses have not betrayed themselves by major contradictions or other indications of falsehood, there exists every reason to measure preponderance by numerical advantage.

(a) all facts which were presented during the trial whether testimonial, object, or documentary (b) all facts which were stipulated or judicially admitted (c) those judicially noticed and (d) all facts which are presumed 2. No extraneous matters shall be considered even if the Court knows them as existing in his personal capacity 3. In determining the weight and sufficiency of a partys evidence, the court shall consider : A.) All the facts and circumstances of the case. B). The testimonial characteristics of a witness such as:

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4. The Court has the power to stop the further presentation of evidence on the same point as when the additional evidence is only corroborative or the point has already been established, or when it results to unnecessary delay 5. As to the testimony of a witness:

i). For conviction: the prosecution must adduce proof of guilt beyond reasonable doubt i.e. moral certainty not absolute certainty ii). Every doubt is to be resolved in favor of the accused iii) Accusation is not synonymous with guilt

A). the court must consider everything stated by the witness during the direct, cross, re-direct and re-cross examinations B). the testimony of a witness maybe believed in part and disbelieved in other parts, depending on the corroborative evidence and the probabilities and improbabilities of the case. It is accepted as a matter of common sense that if certain parts of the testimony are true, his testimony can not be disregarded entirely. Contrast this with the so called Falsus in unos, falsus in omnibus 6. The Preference of Evidence must be observed in case of conflict: A). Physical or Object evidence is evidence of the highest order and prevails over contrary testimonial evidence B). Documentary over testimonial evidence C). Positive over negative evidence. E.G. positive identification over alibi; an assertion of the occurrence of a thing over a plain denial. Denials, if unsubstantiated by clear and convincing evidence, are deemed negative and self-serving evidence unworthy of credence. ( Wa-acon vs. People, 510 SCRA 429) D). Direct over circumstantial E). Testimony in statements or affidavits open court over sworn

iv) Accused need not present evidence if the evidence against him is weak because conviction must be on the strength of the evidence of the prosecution and not on the weakness of the evidence of the accused B. Affirmative Defenses be shown by clear, positive and convincing evidence C. Two Witness Rule in Treason D. If conviction is based on circumstantial evidence. The requirements under section 4 must be present i). There circumstance must be more than one

ii). The facts from which the inferences are derived are proven iii). The combination of all such circumstances produces conviction beyond reasonable doubt E. If based on Extra Judicial Confession, same must be corroborated by evidence of corpus delicti

IV. CREDIBLE EVIDENCE: Evidence to be believed requires: A.) That it be credible in itself i.e. such as the common experience and observation of mankind can approve as probable under the circumstances. Testimony must be natural, reasonable and probable as to make it easy to believe B). Must come from a credible source- a credible witness is one who testifies in a categorical, straightforward spontaneous and frank manner and remains consistent on cross examination

F). The Admitted Facts Rule- evidence of whatever description must yield to the extent that it conflicts with admitted or clearly established facts. Thus courts give superior credit to witnesses whose testimonies on material points are in accord with facts already established ( Frondarina vs. Malazarte 510 SCRA 223) 7. Rule in criminal cases A. For conviction

V. APPRECIATION OF EVIDENCE BY TRIAL COURT generally accorded respect by appellate courts as the former have first hand contact with the evidence and were able to observe the witness as they testified.

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In matters concerning the credibility of witnesses, appellate courts will generally not disturb the findings of trial courts unless they neglected, ignored or misappreciated material and substantial facts, which could materially affect the results of the case. VI. EVIDENCE ON MOTION When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be wholly or partially on oral testimony or depositions. This refers to collateral issues or motions based on facts not appearing on record such as (i) proof of service by publication (ii) relief from order of default (iii) Taking of depositions (iv) motion for new trial (v) relief from judgment (vi) issuance of writ of preliminary injunction RULE 134 [NOTE: This rule will be transposed to Part 1 of the Rules of Court on Deposition and Discovery] Perpetuation of Testimony SECTION 1 . Petition. A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines, any file a verified petition in the court of the province of the residence of any expected adverse party. Sec. 2 . Contents of petition. The petition shall be entitled in the name of the petitioner and shall show: (a) that the petitioner expects to be a party to an action in a court of the Philippines by is presently unable to bring it or cause it to be brought; (b) the subject matter of the expected action and his interest therein; (c) the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; (d) the names of a description of the persons he expects will be adverse parties and their addresses so far as known; and (e) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony. Sec. 3 . Notice and service. The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of a petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty (20) days before the date of hearing the notice shall be served in the manner provided for service of summons.

Sec. 4 . Order of examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination, and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with Rule 24 before the hearing. Sec. 5 . Reference to court. For the purpose of applying Rule 24 to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed. Sec. 6 . Use of deposition. If a deposition to perpetuate testimony is taken under this rule, or if, although not so taken, it would be admissible in evidence, it may be used in any action involving the same subject matter subsequently brought in accordance with the provisions of Sections 4 and 5 of Rule 24. Sec. 7 . Depositions pending appeal. If an appeal has been taken from a judgment of the Regional Trial Court or before the taking of an appeal if the time therefor has not expired, the Regional Trial Court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the said court. In such case the party who desires to perpetuate the testimony may make a motion in the said Regional Trial Court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The motion shall show (a) the name and the addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each; and (b) the reason for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in the Regional Trial Court. (7a) To perpetuate is to preserve for future use .Rule 134 governs the procedure on how a party or witness may preserve his testimony because the person may not be available to personally testify in Court during the trial of a case in which he may be involved, And therefore the purpose is prevent the loss or unavailability of the testimony.

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B. The depositions are of two kinds: 1). Depositions de bene esse: one filed after a case has already been filed in court , i.e to preserve testimony in danger of being lost before the witness can be examined in court Examples: a). the witness scheduled to leave abroad with no possibility of returning b). the witness is so sick and might die 2. Depositions perpetuam rei memoriam: one taken in anticipation of a case not yet filed in court

with the electronic data message or electronic document or any methodology or procedure employed or adopted by a person and executed or adopted by such person with the intention of authenticating, signing or approving an electronic data message or electronic document. Includes digital signatures Refers to an electronic signature consisting of a transformation of an electronic document or an electronic data message using an asymmetric or public cryptosystem such that a person having the initial untransformed electronic document and the signers public key can accurately determine: Whether the transformation was created using the private key that corresponds to the signers public key; and, Whether the initial electronic document had been altered after the transformation was made. Digitally signed refers to an electronic document or electronic data message bearing a digital signature verified by the public key listed in a certificate.

C. The requirement of notice to the adverse party(ies) is essential. It cannot be used against a party who was not named in the Petition or not issued a notice of the date and place of the hearing.

(i)

D. The deposition may be taken by oral testimony or by written interrogatories, as directed by the court. 1. In oral testimony, the court may designate before whom the testimony shall be taken. The witness undergoes the stages of direct, cross, re-direct t and re-cross, examinations, which are duly recorded, including objections by the parties. 2. If the witness is no longer available for personal testimony during the trial, the testimony as, recorded becomes his testimony in court.

(ii)

Admissible in evidence as the functional equivalent of the signature of a person on a written document. How authenticated?

Rules on Electronic Evidence 1. Scope Unless otherwise provided herein, these Rules shall apply whenever an electronic document or electronic data message Cases covered. All civil actions and proceedings, as well as quasijudicial and administrative cases. Electronic data message Information generated, sent, received or stored by electronic, optical or similar means. Electronic Signatures Refers to any distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated 3. By evidence that a method or process was utilized to establish a digital signature and verify the same; By any other means provided by law; or By any other means satisfactory to the judge as establishing the genuineness of the electronic signature.

2. 3.

Disputable presumptions relating to e-signatures: 1. 2. The electronic signature is that of the person to whom it correlates; The electronic signature was affixed by that person with the intention of authenticating or approving the electronic document to which it is related or to indicate such persons consent to the transaction embodied therein; and The methods or processes utilized to affix or verify the electronic signature operated without error or fault.

Disputable presumptions relating to digital signatures:

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1. 2. 3. 4.

5.

The information contained in a certificate is correct; The digital signature was created during the operational period of a certificate; No cause exists to render a certificate invalid or revocable; The message associated with a digital signature has not been altered from the time it was signed; and, A certificate had been issued by the certification authority indicated therein.

impression as the original, or from the same matrix, or by mechanical or electronic rerecording, or by chemical reproduction, or by other equivalent techniques that accurately reproduces the original. When copies or duplicates shall not be admissible to the same extent as the original: 3. If a genuine question is raised as to the authenticity of the original; or If in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original. Authentication of Electronic Documents Burden of proving authenticity: person seeking to introduce an electronic document in any legal proceeding has the burden of proving its authenticity. Manner of authentication Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means: (a) by evidence that it had been digitally signed by the person purported to have signed the same; (b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or (c) by other evidence showing its integrity and reliability to the satisfaction of the judge. 1 A document electronically notarized in accordance with the rules promulgated by the Supreme Court shall be considered as a public document and proved as a notarial document under the Rules of Court.

Electronic document Information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. Includes digitally signed documents and any printout or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term electronic document may be used interchangeably with electronic data message. Functional equivalent of paper-based documents Admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by these Rules. Confidential character of a privileged communication is not lost solely on the ground that it is in the form of an electronic document. BEST EVIDENCE RULE: 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. Originals And Copies: When copies or duplicates regarded as originals: 1. 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

4.

1.

2.

Evidentiary Weight Of Electronic Documents > Factors for assessing evidentiary weight. (a) The reliability of the manner or method in which it was generated, stored or communicated, including but not limited to input and output procedures, controls, tests and checks for accuracy and reliability of the electronic data message or document, in the light of all the circumstances as well as any relevant agreement; (b) The reliability of the manner in which its originator was identified;

2.

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(c) The integrity of the information and communication system in which it is recorded or stored, including but not limited to the hardware and computer programs or software used as well as programming errors; (d) The familiarity of the witness or the person who made the entry with the communication and information system; (e) The nature and quality of the information which went into the communication and information system upon which the electronic data message or electronic document was based; or (f) Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or electronic data message.

This presumption may be overcome by evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof. How are matters relating to the admissibility and evidentiary weight of an electronic document established? by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein. The affiant shall be made to affirm the contents of the affidavit in open court and may be cross-examined as a matter of right by the adverse party. Examination Of Witnesses Electronic testimony 1 After summarily hearing the parties pursuant to Rule 9 of these Rules, the court may authorize the presentation of testimonial evidence by electronic means. Before so authorizing, the court shall determine the necessity for such presentation and prescribe terms and conditions as may be necessary under the circumstances, including the protection of the rights of the parties and witnesses concerned. When examination of a witness is done electronically, the entire proceedings, including the questions and answers, shall be transcribed by a stenographer, steno typist or other recorder authorized for the purpose, who shall certify as correct the transcript done by him. The transcript should reflect the fact that the proceedings, either in whole or in part, had been electronically recorded. The electronic evidence and recording thereof as well as the stenographic notes shall form part of the record of the case. Such transcript and recording shall be deemed prima facie evidence of such proceedings.

> Integrity of an information and communication system. In any dispute involving the integrity of the information and communication system in which an electronic document or electronic data message is recorded or stored, the court may consider, among others, the following factors: (a) Whether the information and communication system or other similar device was operated in a manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system; (b) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it; or (c)Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using it. Hearsay rule exception: A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses.

Ephemeral electronic communication 1 Refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained. Shall be proven by the testimony of a person

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who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted. Audio, photographic and video evidence Audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof. Same rule covers a recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately preceding section.

biological samples originate from related persons (kinship analysis); and (f) "Probability of Parentage" means the numerical estimate for the likelihood of parentage of a putative parent compared with the probability of a random match of two unrelated individuals in a given population. Application for DNA Testing Order. The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a showing of the following: (a) A biological sample exists that is relevant to the case; (b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons; (c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and chan robles virtual law library (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing. This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party, including law enforcement agencies, before a suit or proceeding is commenced. An order granting the DNA testing shall be immediately executory and shall not be appealable. Petition for certiorari shall not stay the implementation of order unless a higher court issues an injunctive order. Grant of a DNA testing application automatic admission of DNA evidence. NOT an

If ephemeral, audio, photographic and video evidence are recorded or embodied in an electronic document, then the provisions authentication electronic documents apply. RULE ON DNA EVIDENCE (a) "Biological sample" means any organic material originating from a person's body, even if found in inanimate objects, that is susceptible to DNA testing. This includes blood, saliva and other body fluids, tissues, hairs and bones; (b) "DNA" means deoxyribonucleic acid, which is the chain of molecules found in every nucleated cell of the body. The totality of an individual's DNA is unique for the individual, except identical twins; (c) "DNA evidence" constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples; (d) "DNA profile" means genetic information derived from DNA testing of a biological sample obtained from a person, which biological sample is clearly identifiable as originating from that person; (e) "DNA testing" means verified and credible scientific methods which include the extraction of DNA from biological samples, the generation of DNA profiles and the comparison of the information obtained from the DNA testing of biological samples for the purpose of determining, with reasonable certainty, whether or not the DNA obtained from two or more distinct biological samples originates from the same person (direct identification) or if the

Post-conviction DNA testing may be available, without need of prior court order, to the prosecution

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or any person convicted by final and executory judgment provided that (a) a biological sample exists, (b) such sample is relevant to the case, and (c) the testing would probably result in the reversal or modification of the judgment of conviction. Factors in Assessment of probative value of DNA evidence. (a) The chain of custody, including how the biological samples were collected, how they were handled, and the possibility of contamination of the samples; (b) The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the tests; (c) The forensic DNA laboratory, including accreditation by any reputable standards-setting institution and the qualification of the analyst who conducted the tests. If the laboratory is not accredited, the relevant experience of the laboratory in forensic casework and credibility shall be properly established; and (d) The reliability of the testing result FACTORS in evaluating the Reliability of DNA Testing Methodology. (a) The falsifiability of the principles or methods used, that is, whether the theory or technique can be and has been tested; (b) The subjection to peer review and publication of the principles or methods; (c) The general acceptance of the principles or methods by the relevant scientific community; (d) The existence and maintenance of standards and controls to ensure the correctness of data generated; (e) The existence of an appropriate reference population database; and (f) The general degree of confidence attributed to mathematical calculations used in comparing DNA profiles and the significance and limitation of

statistical calculations used in comparing DNA profiles. FACTORS in Evaluation of DNA Testing Results. (a) The evaluation of the weight of matching DNA evidence or the relevance of mismatching DNA evidence; (b) The results of the DNA testing in the light of the totality of the other evidence presented in the case; and (c) DNA results that exclude the putative parent from paternity shall be conclusive proof of nonpaternity. If the value of the Probability of Paternity is less than 99.9%, the results of the DNA testing shall be considered as corroborative evidence. If the value of the Probability of Paternity is 99.9% or higher, there shall be a disputable presumption of paternity. Remedy if the Results Are Favorable to the Convict. The convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin. In case the court, after due hearing, finds the petition to be meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict, unless continued detention is justified for a lawful cause. A similar petition may be filed either in the Court of Appeals or the Supreme Court, or with any member of said courts, which may conduct a hearing thereon or remand the petition to the court of origin and issue the appropriate orders. RELEASE OF DNA results. Through order of the court. Shall only be released to any of the following, under such terms and conditions as may be set forth by the court: (a) Person from whom the sample was taken; (b) Lawyers representing parties in the case or action where the DNA evidence is offered and presented or sought to be offered and presented; (c) Lawyers of private complainants in a criminal action; (d) Duly authorized law enforcement agencies; and (e) Other persons as determined by the court.

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Indirect Contempt- to those who publishes or disclose the DNA results without proper court order

1. Parafiaque vs CA 268 SCRA 727 Questions of fact exist when the doubt or difference arises as to the truth or falsehood of alleged facts: 2. Santos vs CA 337 SCRA 67 Facts peculiarly within the knowledge of the opposite party 3. Republic vs Neri 424 SCRA 676 Issue in a query is factual: 4. Royal Cargo vs DFS 573 SCRA 414 5. Juaban vs Espina 548 SCRA 588 Un-offered direct testimony without objection from the adverse party 6. Pp vs Marcos 212 SCRA 748 Failure to offer within considerable time: 7. Heirs of Pedro Pasag vs Pasag 522 SCRA 410 Mere marking, identification or authentication of documentary evidence 8. Pp vs Santito 201 SCRA 87

Preservation of DNA Evidence. The trial court shall preserve the DNA evidence in its totality, including all biological samples, DNA profiles and results or other genetic information obtained from DNA testing. For this purpose, the court may order the appropriate government agency to preserve the DNA evidence as follows: (a) In criminal cases: i. for not less than the period of time that any person is under trial for an offense; or ii. in case the accused is serving sentence, until such time as the accused has served his sentence; and (b) In all other cases, until such time as the decision in the case where the DNA evidence was introduced has become final and executory. Physical destruction of a biological sample before the expiration of the periods set forth above, provided that: (a) There is a court order or (b) The person from whom the DNA sample was obtained has consented in writing to the disposal of the DNA evidence. Reference: 1. 2. 3. Agpalo, Evidence; Francisco, Evidence; Regalado, Compendium of Remedial Law; Evidence (A Restatement for the Bar).

Annexes attached to pleadings not formally offered 9. Llaban vs CA December 20, 1991 10. Ong vs CA 301 SCRA 387 Evidence submitted for one purpose cant be considered for another 11. Uniwide vs Titan 511 SCRA 335 Evidence not offered is excluded: 2. Landingin vs Pp - 493 SCRA 415

End of Lecture of Judge RRMabalot on Evidence 2nd Semester 2012-2013 School of Law, University of Baguio EVIDENCE: Basic Principles and Special Problems By: Judge Roberto R. Mabalot

Evidence not formally offered may be admitted and considered 13. Ramos vs Dizon 498 SCRA 17 Exceptions to the rule that evidence not offered cant be considered 14. Heirs of Sabanpan vs Comorposa 408 SCRA 692 15. Pp vs Napat-a 179 SCRA 403 16. Ong vs Republic 328 SCRA 749

Parties pleadings fail to tender any issue of fact:

17. Pp vs Tabuena 196 SCRA 650

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Admission of proof in court: 18. Pp vs Abalos 30 SCRA 599 Presentation of evidence: 19. Pp vs Montejo 63 SCRA 488 Judges authority to admit or reject evidence: 20. Deutsche Bank vs Spouses Yok See 481 SCRA 672 Power of judicial notice:

36. Tuason vs CA 241 SCRA 695 37. Republic vs Qua 435 SCRA 480 38. Ching vs CA 331 SCRA 16 39. Director vs CA 196 SCRA 94 Extrajudicial confessions 40. Pp vs Jimenez 71 SCRA 186 41. Pp vs Camalog 169 SCRA 816 42. Pp vs Trinidad 162 SCRA 714

21. Garcia vs Recio 366 SCRA 437 Personal knowledge is not judicial knowledge: 22. Land Bank vs Wycoco 419 SCRA 67 Judicial notice of proceedings in another case 23. Gener vs de Leon 367 SCRA 631 44. Javellana vs Plaza 32 SCRA 261 24. LandBank vs Banal 434 SCRA 543 45. Torres vs CA 131 SCRA 24 25. Clarion vs NLRC 461 SCRA 272 46. Director vs CA 196 SCRA 94 26. Cariaga vs CA 358 SCRA 583 Best evidence rule: 27. Pp vs Mendoza 204 SCRA 288 47. Citibank vs Investors 504 SCRA 378 Judicial notice of a courts own act and records in the same case 28. Republic vs CA 277 SCRA 633 Witness unable to testify anew: 29. Tan vs CA 20 SCRA 57 Self-serving evidence: 30. Tuason vs CA 241 SCRA 695 Admission or stipulations during pre-trial A document is in two or more copies executed: 31. Fule vs CA 162 SCRA 448 54. De Vera vs Aguilar 218 SCRA 602 32. Bayas vs Sandiganbayan 391 SCRA 415 33. Pp vs Razul 392 SCRA 553 34. Pp vs Bandang 430 SCRA 570 Admission during trial: 35. Pp vs Hernandez 260 SCRA 25 Extrajudicial admissions Parol evidence rule: 55. Cruz vs CA 192 SCRA 209 56. Mactan-Cebu vs CA 346 SCRA 126 57. Lechugas vs CA 143 SCRA 335 Waiver of right to counsel 58. Pp vs Galit 135 SCRA 465 48. Pp vs Tandoy 192 SCRA 28 49. BPI vs Casa 430 SCRA 261 50. Ebreo vs Ebreo 483 SCRA 583 51. Citibank vs Teodoro 411 SCRA 577 52. Edsa Shangrila vs BF Corp 556 SCRA 25 53. Air France vs CArrascoso GR L-21438, September 28, 1966 Admissions in a pleading which are withdrawn or superseded by an amended pleading: 43. Bastida vs Menzi 58 Phil 188 Formal offer in evidence the original pleading having the extrajudicial admission:

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59. Morales vs Enrile 121 SCRA 538 Refusal to be informed of his Constitutional rights:

82. Pp vs Zheng 338 SCRA 420 83. Pp vs de Leon 378 SCRA 495 84. Tabuena vs Sandiganbayan 268 SCRA

60. Pp vs Policarpio 158 SCRA 85 Admissibility of extrajudicial confessions: 61. Pp vs Morial 363 SCRA 96 62. Pp vs Rapeza 520 SCRA 596 63. Pp vs Samus 389 SCRA 93 64. Pp vs Camalog 169 SCRA 16 65. Pp vs SAyaboc 419 SCRA 659

332 Affidavits in lieu of direct testimony: 85. Pp vs Estenzo 72 SCRA 428 Volunteering unsought for information: 86. Pp vs Calixto 193 SCRA 303 Waiver to cross-examination due to fault of adverse party 87. De la Paz vs IAC 154 SCRA 65

66. Pp vs Janson 400 SCRA 584 67. Pp vs Policarpio 158 SCRA 85 68. Astudillo vs Pp 509 SCRA 302 69. Abelle vs Pp 183 SCRA 196 70. Remolona vs CSC 414 Phil 590 71. Ladiana vs Pp 393 SCRA 419 72. Tolentino vs Mendoza 440 SCRA 519 73. Pp vs Bongcarawan 384 SCRA 525 Extrajudicial confession uncorroborated by evidence of corpus delicti 74. Pp vs BArlis 231 SCRA 426 Admissibility of voluntary statement or confession during administrative investigation 75. Pp vs Ayson 175 SCRA 216 Admission of adulterous conduct made by a woman to her husband 76. Arroyo Jr. vs CA 203 SCRA 750 When is evidence considered offered? Examination of witnesses: 94. Pp vs Franco 269 SCRA 211 77. San Luis vs Roja 547 SCRA 345 95. PBC vs CA 195 SCRA 567 78. Pp vs Go 394 SCRA 350 When must an objection be made? 79. Pp vs Servano 406 SCRA 508 96. Pp vs Java 227 SCRA 668 80. Garces vs Pp 527 SCRA 827 97. InterPacific vs Aviles 186 SCRA 385 81. Pp vs Givera 349 SCRA 513 Authentication and proof of documents Uncompleted testimony rendered incompetent due to fault of party offering 88. Ortigas vs Lufthanza 64 SCRA 610 Direct testimony of witness who was partially corssexamines 89. Pp vs Seeris 99 SCRA 92 Effect of expert witness versus expert witness of each party testifying 90. Bayot vs Sandiganbayan 142 SCRA 304, 318 Failure to interpose objection in any stage: 91. Bayani vs Pp 530 SCRA 84 Guideline in appreciating age: 92. Pp vs Pruna 390 SCRA 577 Burden of proving minority: 93. Sierra vs Pp 591 SCRA 666, 683 Ground for objection:

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98. Fulero vs Pp 533 SCRA 97 99. Intestate of Locsin vs Locsin 371 SCRA 711 100. Heirs of Sps Arcilla vs Teodoro 561 SCRA 545 101. Ramos vs Heirs of Ramos 381 SCRA 594 Competence and capability of child witness 102. Pp vs Bisda 406 SCRA 454 103. Pp vs de Jesus 407 SCRA 265 104. Pp vs Gajo 327 SCRA 612 Electronic Evidence: 105. MCC vs Ssangyong 536 SCRA 408 106. NPC vs Codilla 520 SCRA 412 107. Nuez vs Cruz-Apao 455 SCRA 288 108. Magtolis vs Salud 469 SCRA 439 109. Aznar vs Citibank 519 SCRA 287 DNA Evidence: 110. Tijing vs CA 354 SCRA 17 111. Pp vs Yatar 428 SCRA 504 112. Tecson vs Comelec 424 SCRA 277 113. Pp vs Umanito 537 SCRA 553 114. Pp vs Vallejo 382 SCRA 192 115. Gan vs Pondevida 382 SCRA 357 116. Estate of Ong vs Diaz 540 SCRA 480 117. Herrera vs Alba 460 SCRA 197 118. Andal vs Pp 307 SCRA 650 119. Cabataa vs CA 441 SCRA 96 120. In re: Writ of Habeas Corpus of de Villa 442 SCRA 706 References: Agpalo, Evidence; Francisco, Evidence Regalado, Compendium of Remedial Law Riano, Evidence

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Lex Espaola

166

Lex Espaola

167