RELEVANCE OCA vs.

Lerma Suit: Administrative Violation of SC rules; gross ignorance of the law Facts: A criminal case for estafa (on the basis of selling allegedly non-existent condo units) was dismissed by Judge Lerma based on the ff. pieces of evidence 1) certificate of registration; 2) development permit; 3) license to sell; 4) building permit; and 5) Condominium Certificate of Title. Accdg to the complaint, such pieces of evidence do not suffice to warrant the dismissal of the criminal case, thereby prompting said admin suit for grave abuse of discretion against the Judge. SC says: Sec. 4, Rule 128 of the Rules of Court provides that evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. Relevancy is, therefore, determinable by the rules of logic and human experienceRelevant evidence is any class of evidence which has rational probative value to the issue in controversy. Logic and human experience teach us that the documents relied upon by respondent do not constitute the best evidence to prove the existence or non-existence of the condominium units. To repeat, the best evidence would have been adduced by an ocular inspection of the units themselves. Ilisan vs. People Suit: Criminal; homicide Factual background: The accused interposes the defense that he cannot be found guilty for the crime of homicide because the negative results from the paraffin test are conclusive evidence that he did not fire the gun the bullet from which resulted in the victims death and hence, indicative of his innocence. SC says: Petitioners reliance on the negative results of the paraffin test conducted on him the day after the killing must fail. As held in People v. Manalo: Even if he were subjected to a paraffin test and the same yields a negative finding, it cannot be definitely concluded that he had not fired a gun as it is possible for one to fire a gun and yet be negative for the presence of nitrates as when the hands are washed before the test. The Court has even recognized the great possibility that there will be no paraffin traces on the hand if, as in the instant case, the bullet was fired from a .45 Caliber pistol. Indeed, paraffin tests, in general, have been rendered inconclusive by this Court. Scientific experts concur in the view that the paraffin test has proved extremely unreliable. It can only establish the presence or absence of nitrates or nitrites on the hand; still, the test

alone cannot determine whether the source of the nitrates or nitrites was the discharge of a firearm. The presence of nitrates should be taken only as an indication of a possibility or even of a probability but not of infallibility that a person has fired a gun. Conversely, the absence of gunpowder nitrates on petitioners hands, the day after the incident, does not conclusively establish that he did not fire a gun; neither is the negative results yielded by the paraffin test an insurmountable proof of his innocence. WHAT NEED NOT BE PROVED JUDICIAL NOTICE Suplico vs. NEDA Suit: Petition for certiorari, prohibition and mandamus with TRO and/or Prelim Injunction Factual background: The ZTE-NBN Project which the Philippines sought to undertake with China fell through as evidenced by the Supplemental Manifestation and Motion the OSG filed with which Highlights from the Notes of Meeting bet. Hu Jintao and GMA were appended. SC says: When Pres. GMA, acting in her official capacity during the meeting held on Oct. 2, 2007 in China, informed Hu Jintao that the Phil. Govt had decided not to continue with the ZTE-NBN Project due to several reasons and constraints, there is no doubt that all the other principal prayers in the petitions to annul, set aside, and enjoin the implementation of the ZTE-NBN Project had also become moot. Contrary to petitioners contentions that these declarations made by officials belonging to the executive branch on the Phil. Govts decision not to continue with the ZTE-NBN Project are self-serving, hence, inadmissible, the Court has no alternative but to take judicial notice of this official act of the President of the Philippines. Under the rules, it is mandatory and the Court has no alternative but to take judicial notice of the official acts of the President of the Philippines, who heads the executive branch of our government. It is further provided in the above-quoted rule that the court shall take judicial notice of the foregoing facts without introduction of evidence. Since we consider the act of cancellation by Pres. GMA of the proposed ZTENBN Project during the meeting of Oct. 2, 2007 with Hu Jintao in China as an official act of the executive department, the Court must take judicial notice of such official act without need of evidence. State Investment House Inc. vs. IAC Suit: Collection of proceeds from 3 postdated checks, allegedly crossed

Factual background: Corporation NSW entered into an agreement with SIHI under a deed of sale whereby A assigned and discounted in favor of the latter 11 checks including 3 postdated ones issued by A to NSW. When SIHI deposited these 3 checks, they were DAIF. Due to its failure to collect the value of the checks, SIHI instituted the collection suit against A. As a defense, A claims that SIHI cannot sue her on the checks (later found to be defective) because the latter is not a holder in due course entitled to collect the amount of the checks. SC says: The NIL regulating the issuance of negotiable checks as well as the rights and liabilities arising therefrom, does not mention crossed checks. But this Court has taken cognizance of the practice that a check with two parallel lines in the upper left hand corner means that it could only be deposited and may not be converted into cash. Consequently, such circumstance should put the payee on inquiry and upon him devolves the duty to ascertain the holders title to the check or the nature of his possession. Failing in this respect, the payee is declared guilty of gross negligence amounting to legal absence of good faith and as such the consensus of authority is to the effect that the holder of the check is not a holder in good faith. Jose vs. Michaelmar Factual background: Termination of employment on the ground of alleged violations of the rules and regulations of the employer by the employee, specifically, drug use while on board and in duty. SC says: Article 282(a) of the Labor Code states that the employer may terminate an employment for serious misconduct. Drug use in the premises of the employer constitutes serious misconduct. In Bughaw, Jr. v. Treasure Island Industrial Corporation, the Court held that: The charge of drug use inside the companys premises and during working hours against petitioner constitutes serious misconduct, which is one of the just causes for termination. Misconduct is improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not merely an error in judgment. The misconduct to be serious within the meaning of the Act must be of such a grave and aggravated character and not merely trivial or unimportant. Such misconduct, however serious, must nevertheless, in connection with the work of the employee, constitute just cause for his separation. This Court took judicial notice of scientific findings that drug

abuse can damage the mental faculties of the user. It is beyond question therefore that any employee under the influence of drugs cannot possibly continue doing his duties without posing a serious threat to the lives and property of his co-workers and even his employer. Expertravel & Tours vs. CA Factual background: KAL, through its general counsel Atty. Aguinaldo (AA) sued ETI for collection of sum of money. ETI filed a MTD on the ground that AA was not authorized to execute the verification and certificate of nonforum shopping required by the RoC. AA claims that he was authorized to execute such requirement by the Board of Directors of KAL through a teleconference. SC says: The RTC took judicial notice that because of the onset of modern technology, persons in one location may confer with other persons in other places, and, based on the said premise, concluded that Suk Kyoo Kim (Pres. of KAL) and AA had a teleconference with KALs Board of Directors in South Korea. The CA, likewise, gave credence to the claim that such a teleconference took place, as contained in the affidavit of Suk Kyoo Kim, as well as AAs certification. Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. Moreover, a judicially noticed fact must be one not subject to a reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable. Things of common knowledge, of which courts take judicial matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by

mankind as true and are capable of ready and unquestioned demonstration. Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided, they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. As the common knowledge of man ranges far and wide, a wide variety of particular facts have been judicially noticed as being matters of common knowledge. But! A court cannot take judicial notice of any fact which, in part, is dependent on the existence or non-existence of a fact of which the court has no constructive knowledge. In this age of modern technology, the courts may take judicial notice that business transactions may be made by individuals through teleconferencing. Teleconferencing is interactive group communication (three or more people in two or more locations) through an electronic medium. In general terms, teleconferencing can bring people together under one roof even though they are separated by hundreds of miles. In the Philippines, teleconferencing and videoconferencing of members of board of directors of private corporations is a reality, in light of Republic Act No. 8792. Thus, the Court agrees with the RTC that persons in the Philippines may have a teleconference with a group of persons in South Korea relating to business transactions or corporate governance. As applied to the factual milieu, however, given the possibility that AA and Suk Kyoo Kim participated in a teleconference along with the KALs BoD, the Court is not convinced that one was con ducted; even if there had been one, the Court is not inclined to believe that a board resolution was duly passed specifically authorizing AA to file the complaint and execute the required certification against forum shopping. B. E. San Diego, Inc. vs. CA Factual background: The identity of the subject matter of the casewhether the subject property that Matias occupies is the same as the property covered by B.E. San Diegos title. SC says: The records disclose that the two are one and the same. B.E. San Diegos TCT No. T134756 refers to a property located in Barrio Tinajeros, Malabon, but the subject property sought to be recovered from Matias is in Barrio Catmon, Malabon. In ruling for Matias, the CA

declared that this discrepancy should have been explained by an expert witness, which B.E. San Diego failed to present. However, the testimony of an expert witness is unnecessary to explain the discrepancy. The RTC declared that the discrepancy arose from the fact that Barrio Catmon was previously part of Barrio Tinajeros. The RTC has authority to declare so because this is a matter subject of mandatory judicial notice. Sec. 1 of R129 of the RoC includes geographical divisions as among matters that courts should take judicial notice of. Given that Barrio Tinajeros is adjacent to Barrio Catmon, it is likely that, indeed, the two barrios previously formed one geographical unit. Metrobank vs. Miranda Factual background: There was a prior action for extrajudicial foreclosure and auction sale filed by Metrobank which resulted in it emerging as the highest bidder which led to it causing the registration of title over the foreclosed properties previously belonging to Miranda. Miranda filed suit to annul the proceeding on the ground that they are void for lack of publication. RTC annulled the foreclosure; CA affirmed. Metro interposes the defense that it complied with the publication requirements for the foreclosure. It also questions the authority of the RTC and the CA to take cognizance of the records of the foreclosure proceedings as basis for annulling the auction sale. It claims that the trial court may not take judicial notice of the records of proceedings in another case, unless the parties themselves agreed to it. Metrobank asserts that it did not give its consent to the trial courts examination of the records of the extrajudicial foreclosure proceedings. Further, the RTC did not even set a hearing for the purpose of declaring its intention to take judicial notice of the records of the extrajudicial proceedings, as required by Sec. 3 of R129. Metrobank, thus, contends that the RTC exceeded its authority in taking cognizance of the records of the extrajudicial proceedings. SC says: The records of the foreclosure proceedings lacked any proof of publication. This explains why Metrobank could not present any proof of publication. The goal of the notice requirement is to achieve a reasonably wide publicity of the auction sale. This is why publication in a newspaper of general circulation is required. The Court has previously taken judicial notice of the farreaching effects of publishing the notice of sale in a newspaper of general circulation. Thus, the publication of the notice of sale was held essential to the validity of foreclosure

proceedings. In this case, Metrobank failed to establish compliance with the publication requirement. Furthermore, as a rule, courts do not take judicial notice of the evidence presented in other proceedings, even if these have been tried or are pending in the same court or before the same judge. This rule, however, is not absolute. In Juaban v. Espina and G Holdings, Inc. v. National Mines and Allied Workers Union Local 103 (NAMAWU), it is held that, in some instances, courts have also taken judicial notice of proceedings in other cases that are closely connected to the matter in controversy. These cases may be so closely interwoven, or so clearly interdependent, as to invoke a rule of judicial notice. The RTC, therefore, acted well within its authority in taking cognizance of the records of the extrajudicial foreclosure proceedings, and the CA cannot be faulted for sustaining the RTC. NOTE: The rule on judicial notice was wrongly applied. An action for extrajudicial foreclosure of mortgaged property is not within the ambit of judicial proceeding which the rule contemplates. JUDICIAL ADMISSIONS People vs. Hernandez Factual background: In a suit for estafa and illegal recruitment, Hernandez distinguishes between an admission that a particular witness if presented in court would testify to certain facts, and an admission of the facts themselves. Accdg to her, what was stipulated on between the prosecution and defense counsel at the hearing on Jun. 6, 1990 was merely that the testimony of the Chief Licensing Officer of the POEA would be to the effect that appellant is not licensed nor authorized to recruit workers. She claims that the foregoing clearly indicate that there was no judicial admission of the fact of non-possession of a license/authority but rather a mere admission that the witness, if presented, would testify to such fact. This being the case, it remained incumbent upon the prosecution to present evidence of such fact. SC says: The distinction, though cogent, is inapplicable to the case at bar. Conveniently omitted from the appellants reply brief is the ensuing statement made by the court after counsel for the accused, Atty. Ulep agreed to the stipulation proposed by the prosecution, to wit: The prosecution and the defense agreed to stipulate/admit that from the record of the POEA

Licensing and Regulation Office, Dept. of Labor and Employment, accused Cristina Hernandez/Phil. etc., Ass. x x x is neither licensed nor authorized by that office to recruit workers overseas abroad and that if the duly authorized representative from the POEA Administration is to take the witness stand, he will confirm to this fact as borne by the records. From the foregoing, it is evident that the prosecution and the defense counsel stipulated on two things: that x x x from the record of the POEA, x x x accused Cristina Hernandez, Phil. etc. Ass. x x x is neither licensed nor authorized by that office to recruit workers for overseas abroad and that if the duly authorized representative from the POEA Administratin (sic) is to take the witness stand, he will confirm to this fact x x x. The claim that the lower court mistakenly interpreted defense counsels acquiescence to the prosecutions proposed stipulation as an admission of non-possession of the requisite POEA license or authority is belied by the fact that after the above enunciation by the court, no objection was interposed by defense counsel. The corollary issue left for the determination of this Court is whether or not Section 4 of Rule 118requiring an agreement or admission made or entered during the pretrial conference to be reduced in writing and signed by the accused and his counsel before the same may be used in evidence against the accused equally applies to a stipulation of facts made during trial. SC says: NO! A stipulation of facts entered into by the prosecution and defense counsel during trial in open court is automatically reduced into writing and contained in the official transcript of the proceedings had in court. The conformity of the accused in the form of his signature affixed thereto is unnecessary in view of the fact that: x x x an attorney who is employed to manage a partys conduct of a lawsuit x x x has prima facie authority to make relevant admissions by pleadings, by oral or written stipulation, x x x which unless allowed to be withdrawn are conclusive. In fact, judicial admissions are frequently those of counsel or of the attorney of record, who is, for the purpose of the trial, the agent of his client. When such admissions are made x x x for the purpose of dispensing with proof of some fact, x x x they bind the client, whether made during, or even after, the trial. The foregoing find basis in the general rule that a client is bound by the acts of his counsel who

represents him. For all intents and purposes, the acts of a lawyer in the defense of a case are the acts of his client. The rule extends even to the mistakes and negligence committed by the lawyer except only when such mistakes would result in serious injustice to the client. In the same vein, it may be said that such an admission is a waiver of the right of an accused to present evidence on his behalf. Although the right to present evidence is guaranteed by no less than the Constitution itself for the protection of the accused, this right may be waived expressly or impliedly. Hernandez was never prevented from presenting evidence contrary to the stipulation of facts. If appellant believed that the testimony of the Chief Licensing Officer of the POEA would be beneficial to her case, then it is the defense who should have presented him. Her continuous failure to do so during trial was a waiver of her right to present the pertinent evidence to contradict the stipulation of facts and establish her defense. In view of the foregoing, the stipulation of facts proposed during trial by prosecution and admitted by defense counsel is tantamount to a judicial admission by the appellant of the facts stipulated on. Controlling, therefore, is Section 4, Rule 129 of the Rules of Court. Abay, Jr. vs. People Factual background: Abay, Jr. was one of the accused in a criminal case filed for Highway Robbery. He was subsequently discharged from the Information as a State witness. Aside from an extrajudicial confession narrating his participation in the crime as well as that of his co-accused, he also testified to their conspiracy in court. The accused are now interposing that their guilt cannot be sufficiently established on the ground of inadmissible evidence his confession was allegedly hearsay SC says: It was not Abans extrajudicial confession but his court testimony reiterating his declarations in his extrajudicial admission, pointing to petitioners as his co-participants, which was instrumental in convicting petitioners of the crime charged. Settled is the rule that when the extrajudicial admission of a conspirator is confirmed at the trial, it ceases to be hearsay. It becomes evidence against those it implicates. Here, the extrajudicial confession of Aban was affirmed by him in open court during the trial. Thus, such confession already partook of judicial testimony which is admissible in evidence against the petitioners. People vs. Gutierrez

Factual background: Fernando interposes the issue that the shabu cannot be conclusively found to be in his possession the entire time (before, during, after arrest); hence, the crime of illegal possession of drugs cannot be attributed to him. SC says: In no instance did Fernando intimate to the TC that there were lapses in the safekeeping of the seized items that affected their integrity and evidentiary value. He, thus, veritably admits that the crystalline substance in the sachets found in his bag was the same substance sent for laboratory examination and there positively determined to be shabu and eventually presented in evidence in court as part of the corpus delicti. In other words, Fernando, before the RTC and the CA, opted not to make an issue of whether the chain of custody of the drugs subject of this case has been broken. This disposition on the part of Fernando is deducible from the Order of the trial court, pertinently saying, [The] Acting Provincial Prosecutor x x x and Atty. Emmanuel Abellera, counsel de officio of the accused manifested that the chain of custody of the searched illegal drug or shabu is admitted.As a mode of authenticating evidence, the chain of custody rule requires that the presentation of the seized prohibited drugs as an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. This would ideally cover the testimony about every link in the chain, from seizure of the prohibited drug up to the time it is offered in evidence, in such a way that everyone who touched the exhibit would describe how and from whom it was received, to include, as much as possible, a description of the condition in which it was delivered to the next link in the chain. RES IPSA LOQUITUR Ramos vs CA Res ipsa loquitur is a Latin phrase which literally means the thing or the transaction speaks for itself. The phrase res ipsa loquitur is a maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiffs prima facie case, and present a question of fact for defendant to meet with an explanation. Where the thing which caused the injury complained of is shown to be under the management of the defendant or his servants and the accident is such as in ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable

evidence, in the absence of explanation by the defendant, that the accident arose from or was caused by the defendants want of care. The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge and experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the instrumentality causing the injury in the absence of some explanation by the defendant who is charged with negligence. However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not create or constitute an independent or separate ground of liability. Instead, it is considered as merely evidentiary or in the nature of a procedural rule. It is regarded as a mode of proof, or a mere procedural convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing specific proof of negligence. In other words, mere invocation and application of the doctrine does not dispense with the requirement of proof of negligence. It is simply a step in the process of such proof, permitting the plaintiff to present along with the proof of the accident, enough of the attending circumstances to invoke the doctrine, creating an inference or presumption of negligence, and to thereby place on the defendant the burden of going forward with the proof. Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily shown: 1. The accident is of a kind which ordinarily does not occur in the absence of someones negligence; 2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and 3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated. FORMS OF EVIDENCE Adzuara vs. CA Factual background: It was alleged that Adzuaras car collided with Martinezs vehicle which prompted this suit for reckless imprudence resulting in damage to property with less serious physical injuries. Relevant to the discussion is the petitioners claims that the medical certificate presented by the prosecution was uncorroborated by actual testimony of the physician who accomplished the same and as such has no probative value insofar as the physical injuries suffered by Sahlee are concerned; hence, theres no basis

for the claim for damages due to injuries sustained. SC says: NO. The fact of the injury resulting from the collision may be proved in other ways such as the testimony of the injured person. In the case at bar, Sahlee Martinez testified that her injuries as described in the medical certificate were caused by the vehicular accident of 17 December 1990. This declaration was corroborated by Gregorio. This, no less, is convincing proof. NOTE: There is no hierarchy in the forms of evidence which may be offered and admitted as evidence of ones factum probandum. People vs. Empleo (this case is also under Object Evidence; take note of the disposition as to the object evidence allegedly not presented) Factual background: In a suit for rape, Empleo interposes that the evidence of the prosecution is inconclusive to determine his guilt due to inconsistencies in the testimonies of the prosecution witnesses as well as absence of certain object evidence which should have been given, i.e. medical findings pointing to presence of spermatozoa in the victims private area and her torn clothes and underwear, to prove the existence of the elements of the crime SC says: 1. While there may exist a variance between some statements of complainant in her affidavit and her testimony in open court, the alleged inconsistencies are more apparent than real. The truth is that in her testimony before the trial court, complainant merely gave a more detailed narration of how appellant sexually abused her on that fateful night of March 14, 1989. Such fact, of course, does not necessarily signify that her open court testimony conflicts with her affidavit. The contradiction between the affidavit and the testimony of a witness may be explained by the fact that an affidavit will not always disclose all the facts and will oftentimes and without design incorrectly describe, without the deponent detecting it, some of the occurrences narrated. Being taken ex parte, an affidavit is almost always incomplete and often inaccurate, sometimes from partial suggestions, and sometimes from want of suggestions and inquiries, without the aid of which the witness may be unable to recall the connected collateral circumstances necessary for the correction of the first suggestion of his memory and for his accurate recollection of all that belongs to the subject. It has thus been held that affidavits are generally subordinated

2.

3.

4.

in importance to open court declarations because the former are often executed when an affiants mental faculties are not in such a state as to afford him a fair opportunity of narrating in full the incident which has transpired. Further, affidavits are not complete reproductions of what the declarant has in mind because they are generally prepared by the administering officer and the affiant simply signs them after the same have been read to him. The exception to the rule is where the omission in the affidavit refers to a very important detail such that the affiant would not have failed to mention it, and which omission could affect the affiants credibility. Such exceptive circumstance does not obtain in the present case. The alleged omissions in the affidavit of complainant are not that vital and substantial as to affect her credibility. The more important detail which is really material to the case, and which is categorically declared and explained both in the affidavit and in complainants testimony, is the fact that appellant had carnal knowledge of complainant without her consent. Second, there is no discrepancy in the statements made by complainants in her affidavit, where she declared that she was stripped naked during the assault, and in her oral testimony, where she said that she was not naked when appellant did the sexual act. This seeming inconsistency was later clarified by complainant in her testimony where she explained that what she really meant by the word naked is that she had no underwear but she had her uniform on. It is significant that complainant was able to identify appellant in open court despite the fact that the latter, obviously to evade identification, had already had his hair cut short and there was a slight change in his physical build. Hence, by the bare fact alone that complainant did not know the name of herein appellant, it cannot be concluded that the identity of the assailant was not sufficiently established. The fact that complainant testified that she was able to recognize appellant because at that time the moon was very bright, when in truth and in fact it was a first quarter moon, does not serve to discredit her entire testimony. Even where a witness is found to have deliberately falsified the truth in some particulars, and it was not shown that there was such intended prevarication by complainant in this case,

5.

it is not required that the entire testimony be rejected, since such portions thereof deemed worthy of belief may be credited. It is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve it with respect to other facts. The allegation that the failure of the prosecution to present the underwear and torn uniform of complainant casts doubts on the latters credibility, has no logical or rational leg to stand on. The nonpresentation of the torn dress and underwear of the complainant does not destroy the case for the prosecution, there being sufficient and convincing evidence to prove the rape charged beyond reasonable doubt. Those clothes are not essential, and need not be presented, as they are not indispensable evidence to prove rape. The absence thereof does not negate the truth of a rape complaint and the credibility of a victims testimony. OBJECT EVIDENCE

Torralba vs. People Factual background: In a suit for libel, complainant presented as witness Segundo Lim who offered and testified on 3 tape recordings of accuseds radio broadcasts which allegedly captured the relentless badgering done by Torralba against him and his family. During his testimony, Lim admitted that he did not know how to operate a tape recorder and that he asked either his adopted daughter, Shirly Lim, or his housemaid to record petitioner Torralbas radio program. He maintained, however, that he was near the radio whenever the recording took place and had actually heard petitioner Torralbas radio program while it was being taped. This prompted Torralba to pose a continuing objection to the admission of the said tape recordings for lack of proper authentication by the person who actually made the recordings. In the case of the subject tape recordings, Lim admitted that they were recorded by Shirley Lim. The trial court provisionally admitted the tape recordings subject to the presentation by the prosecution of Shirely Lim for the proper authentication of said pieces of evidence. Despite Torralbas objection to the formal offer of these pieces of evidence, the court a quo eventually admitted the three tape recordings into evidence. SC says: Lower court is wrong! It is generally held that sound recording is not inadmissible because of its formwhere a proper foundation has been laid to guarantee the genuineness of the recording. In our jurisdiction, it is a

rudimentary rule of evidence that before a tape recording is admissible in evidence and given probative value, the following requisites must first be established: (1) a showing that the recording device was capable of taking testimony; (2) a showing that the operator of the device was competent; (3) establishment of the authenticity and correctness of the recording; (4) a showing that changes, additions, or deletions have not been made; (5) a showing of the manner of the preservation of the recording; (6) identification of the speakers; and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement. In one case, it was held that the testimony of the operator of the recording device as regards its operation, his method of operating it, the accuracy of the recordings, and the identities of the persons speaking laid a sufficient foundation for the admission of the recordings. Likewise, a witness declaration that the sound recording represents a true portrayal of the voices contained therein satisfies the requirement of authentication. The party seeking the introduction in evidence of a tape recording bears the burden of going forth with sufficient evidence to show that the recording is an accurate reproduction of the conversation recorded. These requisites were laid down precisely to address the criticism of susceptibility to tampering of tape recordings. Thus, it was held that the establishment of a proper foundation for the admission of a recording provided adequate assurance that proper safeguards were observed for the preservation of the recording and for its protection against tampering. In the case at bar, one can easily discern that the proper foundation for the admissibility of the tape recording was not adhered to. It bears stressing that Lim categorically admitted in the witness stand that he was not familiar at all with the process of tape recording and that he had to instruct his adopted daughter to record petitioner Torralbas radio broadcasts. Clearly, Shirley Lim, the person who actually recorded petitioner Torralbas radio show on 11 April 1994, should have been presented by the prosecution in order to lay the proper foundation for the admission of the purported tape recording for said date. Without the

requisite authentication, there was no basis for the trial court to admit the tape recording Exhibit D in evidence. Unchuan vs. Lozada Factual background: This is a dispute re: ownership regarding real property. At the trial, respondents presented a notarized and duly authenticated sworn statement, and a videotape where Anita denied having donated land in favor of Marissa. Dr. Lozada testified that he agreed to advance payment for Antonio in preparation for their plan to form a corporation. The lots are to be eventually infused in the capitalization of Damasa Corporation, where he and Antonio are to have 40% and 60% stake, respectively. Meanwhile, Lourdes G. Vicencio, a witness for respondents confirmed that she had been renting the ground floor of Anitas house since 1983, and tendering rentals to Antonio. For her part, Marissa testified that she accompanied Anita to the office of Atty. Cresencio Tomakin for the signing of the Deed of Donation. She allegedly kept it in a safety deposit box but continued to funnel monthly rentals to Peregrinas account. A witness for petitioner, one Dr. Cecilia Fuentes, testified on Peregrinas medical records. According to her interpretation of said records, it was physically impossible for Peregrina to have signed the Deed of Sale on Mar.11, 1994, when she was reported to be suffering from edema. Peregrina died on Apr. 4, 1994. Petitioner, likewise, calls on the Court to ascertain Peregrinas physical ability to execute the Deed of Sale on Mar. 11, 1994. SC Evidence in dispute: Medical records of Peregrina attesting to her physical disability SC says: A Certification from Randy E. Rice, Manager for the Health Information Management of the hospital undermines the authenticity of said medical records. In the certification, Rice denied having certified or having mailed copies of Peregrinas medical records to the Philippines. As a rule, a document to be admissible in evidence, should be previously authenticated, that is, its due execution or genuineness should be first shown. Accordingly, the unauthenticated medical records were excluded from the evidence. Even assuming that Peregrina was confined in the cited hospital, nothing in the records appears to show that Peregrina was so incapacitated as to prevent her from executing the Deed of Sale. Evidence in dispute: Deed of Donation SC says: On the issue of the validity of donation, when the law requires that a contract be in some form in order that it may be valid or

enforceable, or that a contract be proved in a certain way, that requirement is absolute and indispensable. Here, the Deed of Donation does not appear to be duly notarized. A Certification from Clerk of Court Jeoffrey S. Joaquino of the Notarial Records Division disclosed that the Deed of Donation purportedly identified in Book No. 4, Document No. 48, and Page No. 35 Series of 1987 was not reported and filed with said office. Pertinent to this, the Rules require a 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, to account for the alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or was otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he fails to do that, the document shall, as in this case, not be admissible in evidence. Evidence in dispute: sworn statement and videotaped statement of Anita denying donating the land in subject of the suit SC says: Petitioner faults the appellate court for not excluding the videotaped statement of Anita as hearsay evidence. Evidence is 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 be produced. There are three reasons for excluding hearsay evidence: (1) absence of cross-examination; (2) absence of demeanor evidence; and (3) absence of oath. It is a hornbook doctrine that an affidavit is merely hearsay evidence where its maker did not take the witness stand. Verily, the sworn statement of Anita was of this kind because she did not appear in court to affirm her averments therein. Yet, a more circumspect examination of our rules of exclusion will show that they do not cover admissions of a party; the videotaped statement of Anita appears to belong to this class. Section 26 of Rule 130 provides that "the act, declaration or omission of a party as to a relevant fact may be given in evidence against him. It has long been settled that these admissions are admissible even if they are hearsay. Indeed, there is a vital distinction between admissions against interest and declaration against interest. Admissions against interest are those made by a party to a litigation or by one in privity with or identified in legal interest with such party, and are admissible whether or not the declarant is

available as a witness. Declaration against interest are those made by a person who is neither a party nor in privity with a party to the suit, are secondary evidence and constitute an exception to the hearsay rule. They are admissible only when the declarant is unavailable as a witness. Thus, a mans acts, conduct, and declaration, wherever made, if voluntary, are admissible against him, for the reason that it is fair to presume that they correspond with the truth, and it is his fault if they do not. However, as a further qualification, object evidence, such as the videotape in this case, must be authenticated by a special testimony showing that it was a faithful reproduction. Lacking this, the videotaped statement of Anita must be excluded. People vs. Empleo The rule is that the absence of spermatozoa does not disprove the fact of rape. What is essential is that there was genital penetration, which was unequivocally testified to by complainant. People vs. Espinoza Factual background: To exculpate themselves from the crime of murder, the accused interpose the defense that the bolos which were used to commit the crime are indispensable to prove their guilt. SC says: The failure of the prosecution to present the "bolos" which were used in the commission of the crime did not weaken the evidence against accused-appellants. There was no showing that the "bolos" were recovered from the scene of the crime. It is not remote that these "bolos" were disposed by the assailants to conceal the instruments of the crime. But even without the "bolos" as evidence, there can be no doubt that the victim died due to hacking by means of "bolos" on the part of accused-appellants Victor and Rogelio Espinoza. NOTE: The bolos are not the corpus delicti required to be presented to pinpoint the accused as particeps criminis. DOCUMENTS AS EVIDENCE City of Manila vs. Cabangis Factual background: Action by the City of Manila against Cabangis for the latters alleged obstruction of the river Sunog-Apo Evidence presented: Exhibits B and C maps of the section of the city of Manila wherein the fisheries in question are situated. They were offered in evidence to show (1) the existence and location of the bed of the River Sunog-

Apog and (2) the existence and location of the fisheries of the defendant. SC says: Taken together with the testimony of the city engineer, who testified as to their accuracy, and the admissions of the defendant as to the existence and locations of his fisheries, these maps were properly admitted in evidence to show the location of the subjectmatter in litigation by reference to the Bay of Manila, and the Rivers Maypajo and Vitas, whose existence and identity have never been questioned; they were, however, wholly incompetent as evidence of the existence or location of the River Sunog-Apog, or as evidence as to the disputed fact that the subject-matter in litigation, is within the jurisdictional limits of the city of Manila. The plaintiff failed to establish the authenticity of these maps as maps of territory included within the jurisdiction of the present city of Manila); and the evidence shows that the former bed of the River Sunog-Apog, which appears on one of these maps, was placed there by one of the engineers of the city of Manila at a time when, according to the allegations of the complaint, the territory in question was in the possession of the defendant and used as a fishery, and neither the authority of the engineer so to do nor the source of his information are disclosed in the record. These maps, therefore, so far as they purport to establish the existence and location of the Sunog-Apog River, are no more than an expression of opinion of the engineer who prepared them, unsupported by evidence as to the grounds upon which his opinion was based. However, their admission for the purpose indicated would not constitute reversible error, because the fact that the fisheries in question are within the jurisdictional limits of the city of Manila and occupy the bed of a former river, estero, or waterway known as the Sunog-Apog, in proof of which these maps were offered in evidence, is sufficiently established by other evidence of record. Evidence in dispute: Exhibits D, E, and F photographs of a part of the fisheries of the defendant, which are alleged to occupy the bed of the former river, estero, or waterway known as Sunog-Apog SC says: It is a constant practice of court to receive as evidence picture, drawings, and photographs of objects which cannot be brought into court, upon proof of their exactness and accuracy as representations of the original subject. It has been held that photograph may be introduced to show the appearance of any place which might be properly viewed by the jury, where

such a view by the jury is impossible or impracticable, and since in all cases this court may be called upon to review the evidence taken in the court below, photographs of any place which may properly be viewed by the trial court should be admitted in the record upon proper proof of their exactness and accuracy, as appropriate aids in applying the evidence as it appears of record. Satisfactory testimony was introduced as to the accuracy and exactness of these photographs and the conditions under which they were taken and were properly admitted in evidence. Evidence in dispute: Exhibit G - letter from Cabangis to the attorney for the City of Manila wherein he admits that the pesquerias in question, which City of Manila alleges were unlawfully constructed on the bed of a river, estero, or waterway known as SunogApog, are located within the boundary lines of the city of Manila. This admission was made in the course of an offer to compromise, and the letter was manifestly inadmissible as evidence against Cabangis over his objection. It appears, however, that the Cabangis made no objection when it was offered and admitted in evidence, although he testified at some length with reference thereto. He cannot, therefore, be heard on appeal to assign the admission as reversible error. BEST EVIDENCE RULE Heirs of Lim vs. Lim Factual background: The Heirs of Jose Lim filed suit to recover alleged shares from the partnership of which the decedent was a part thereof against the widow of Elfledo Lim, the alleged manager of the partnership. Evidence offered: testimony SC says: The best evidence to prove the existence of the partnership would have been the contract of partnership or the articles of partnership. Unfortunately, there is none in this case, because the alleged partnership was never formally organized. A careful review of the records persuades to affirm the finding that the evidence presented by petitioners falls short of the quantum of proof required to establish that: (1) Jose was the partner and not Elfledo; and (2) all the properties acquired by Elfledo and respondent form part of the estate of Jose, having been derived from the alleged partnership. The heirs of Lim heavily rely on Jimmy's testimony. But that testimony is just one piece of evidence against respondent. It

must be considered and weighed along with petitioners' other evidence vis--vis respondent's contrary evidence. In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. It is evidence that is more convincing to the court as worthy of belief than that which is offered in opposition thereto. On the other hand, the ff. circumstances tend to prove that Elfledo was himself the partner of Jimmy and Norberto: 1) Cresencia testified that Jose gave Elfledo P50,000.00, as share in the partnership, on a date that coincided with the payment of the initial capital in the partnership; (2) Elfledo ran the affairs of the partnership, wielding absolute control, power and authority, without any intervention or opposition whatsoever from any of petitioners herein; (3) all of the properties, particularly the nine trucks of the partnership, were registered in the name of Elfledo; (4) Jimmy testified that Elfledo did not receive wages or salaries from the partnership, indicating that what he actually received were shares of the profits of the business; and (5) none of the petitioners, as heirs of Jose, the alleged partner, demanded periodic accounting from Elfledo during his lifetime. As repeatedly stressed in Heirs of Tan Eng Kee, a demand for periodic accounting is evidence of a partnership. Furthermore, petitioners failed to adduce any evidence to show that the real and personal properties acquired and registered in the names of Elfledo and respondent formed part of the estate of Jose, having been derived from Jose's alleged partnership with Jimmy and Norberto. They failed to refute respondent's claim that Elfledo and respondent engaged in other businesses. Edison even admitted that Elfledo also sold Interwood lumber as a sideline. Petitioners could not offer any credible evidence other than their bare assertions. Thus, the basic rule of evidence that between documentary and oral evidence, the former carries more weight should apply. NOTE: But is it really true that the best evidence to prove that a partnership exists is the contract? Nissan vs. United Phil. Scout Suit: claim for sum of money and damages based on breach of the security service contract Evidence in dispute: the service contract. Nissan alleges that United failure to present such contract is detrimental to the suit SC says: Nissans reliance on the best evidence rule is misplaced. The best evidence rule is the rule which requires the highest grade of evidence to prove a disputed fact.

However, the same applies only when the contents of a document are the subject of the inquiry. In this case, the contents of the service contract between Nissan and United have not been put in issue. Neither United nor Nissan disputes the contents of the service contract; as in fact, both parties quoted and relied on the same provision of the contract (paragraph 17) to support their respective claims and defenses. Thus, the best evidence rule finds no application here. People vs. Tandoy Suit: Criminal; Drug pushing Evidence in dispute: Tandoy invokes the best evidence rule and questions the admission by the TC of the xerox copy only of the marked P10.00 bill. SC says: The Solicitor General, in his Comment, correctly refuted that contention thus: This assigned error centers on the trial court's admission of the P10.00 bill marked money which, according to the appellant, is excluded under the best evidence rule for being a mere xerox copy. Apparently, appellant erroneously thinks that said marked money is an ordinary document falling under Sec. 2, Rule 130 of the Revised Rules of Court which excludes the introduction of secondary evidence except in the five (5) instances mentioned therein. The best evidence rule applies only when the contents of the document are the subject of inquiry. Where the issue is only as to whether or not such document was actually executed, or exists, or in the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible. Since the aforesaid marked money was presented by the prosecution solely for the purpose of establishing its existence and not its contents, other substitutionary evidence, like a xerox copy thereof, is therefore admissible without the need of accounting for the original. Moreover, the presentation at the trial of the "buy-bust money" was not indispensable to the conviction of the accused-appellant because the sale of the marijuana had been adequately proved by the testimony of the police officers. So long as the marijuana actually sold by the accused-appellant had been submitted as an exhibit, the failure to produce the marked money itself would not constitute a fatal omission. Air France vs. Carrascoso Suit: damages for breach of contract. Carrascoso was allegedy improperly kicked out of his first class seat in one of Air Frances

planes and sues them on the humiliation he experienced. Evidence in dispute: Airline ticket SC says: If, as petitioner underscores, a firstclass-ticket holder is not entitled to a first class seat, notwithstanding the fact that seat availability in specific flights is therein confirmed, then an air passenger is placed in the hollow of the hands of an airline. What security then can a passenger have? It will always be an easy matter for an airline aided by its employees, to strike out the very stipulations in the ticket, and say that there was a verbal agreement to the contrary. What if the passenger had a schedule to fulfill? As a rule, a written document speaks a uniform language; that spoken word could be notoriously unreliable. If only to achieve stability in the relations between passenger and air carrier, adherence to the ticket so issued is desirable. Such is the case here. The lower courts refused to believe the oral evidence intended to defeat the covenants in the ticket. Evidentiary issue: Air France charges that the finding of the CA that the purser made an entry in his notebook reading "First class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene" is predicated upon evidence [Carrascoso's testimony] which is incompetent. SC says: NO. The subject of inquiry is not the entry, but the ouster incident. Testimony on the entry does not come within the proscription of the best evidence rule. Such testimony is admissible. Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the startling occurrence was still fresh and continued to be felt. The excitement had not as yet died down. Statements then, in this environment, are admissible as part of the res gestae. For, they grow "out of the nervous excitement and mental and physical condition of the declarant". The utterance of the purser regarding his entry in the notebook was spontaneous, and related to the circumstances of the ouster incident. Its trustworthiness has been guaranteed. It thus escapes the operation of the hearsay rule. It forms part of the res gestae. At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would have been an easy matter for petitioner to have contradicted Carrascoso's testimony. If it were really true that no such entry was made, the deposition of the purser could have cleared up the matter. The transcribed testimony of Carrascoso is admissible in evidence.

People vs. Cayabyab Suit: Criminal; qualified rape Evidence in dispute: testimony of the mother as to the age of the victim; photocopy of Alpha Janes birth certificate SC says: Pruna guidelines in appreciating age, either as an element of the crime or as a qualifying circumstance: 1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party. 2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age. 3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim's mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances: a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. 4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim's mother or relatives concerning the victim's age, the complainant's testimony will suffice provided that it is expressly and clearly admitted by the accused. 5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him. Unlike in Pruna, the trial court in this case made a categorical finding that Alpha Jane was only 6 years old at the time she was raped, based not only on the testimonies of the complainant and her mother, but also on the strength of the photocopy of Alpha Jane's birth certificate. It is well to note that the defense did not object to the presentation of the birth certificate; on the contrary it admitted the same 'as to fact of birth.

People v. Mantis lays down the ruling that a mere photocopy of the birth certificate, in the absence of any showing that the original copy was lost or destroyed, or was unavailable, without the fault of the prosecution, does not prove the victim's minority, for said photocopy does not qualify as competent evidence for that purpose. However, there are other exceptions to the 'best evidence rule as expressly provided under Section 3, Rule 130 of the Rules of Court, which reads: 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. Without doubt, a certificate of live birth is a public record in the custody of the local civil registrar who is a public officer. Therefore, the presentation of the photocopy of the birth certificate of Alpha Jane is admissible as secondary evidence to prove its contents. Production of the original may be dispensed with, in the trial court's discretion, whenever in the case at hand the opponent does not bona fide dispute the contents of the document and no other useful purpose will be served by requiring production. In the case at bar, the defense did not dispute the contents of the photocopied birth certificate; in fact it admitted the same. Having failed to raise a valid and timely objection against the presentation of this secondary evidence the same became primary evidence, and deemed admitted and the other party is bound thereby. Tan vs. CA Suit: Criminal; smuggling (violation of Sec. 3602 of the Tariff and Customs Code)

Evidentiary issue: Tan centers her attack against the judgment of conviction on the alleged error of the trial court in admitting secondary evidence of the baggage declaration despite absence of sufficient proof of its loss. She contends that in such a case as the instant one, testimonial evidence is inadmissible to prove the contents of the said baggage declaration, because then it will be in violation of the best evidence rule as prescribed in Section 2(a) and Section 4 of Rule 130 of the Rules of Court. SC says: It is conceded that petitioner's baggage declaration is the best evidence of the contents thereof. So much so that if her conviction lies solely on the said declaration and nothing more, there may be doubt as to her culpability. Hence, her acquittal may be warranted under the premises. Such however, is not the situation in the case at bar. The guilt of petitioner-accused has been sufficiently proven by the testimonies of Enrique Manansala, Ruben Diaz and Tingagun Macud. The collective weight of their testimonies strongly and convincingly established that petitioner attempted to smuggle into the country jewelries and other precious stones which she failed to declare in violation of Section 3602 of the Customs and Tariff Code. Anent petitioner's baggage declaration, there is no controversy as to its existence which had been sufficiently established not only by the prosecution's evidence but likewise by that of the defense'. It was also clearly shown that said baggage declaration forms part of the various documents forwarded by the customs authorities to the Fiscal's Office upon the filing of the case against the petitioner. Unfortunately however, it can no longer be found among the papers making up the record of the case. The said documents together with petitioner's baggage declaration were handed to and/or turned over to the trial fiscal. The place, therefore, where the baggage declaration was last known to be would be the office of the trial fiscal who was the last custodian of said document. Being vital evidence in the prosecution of the case, it is safe to assume that the fiscal necessarily undertook and conducted a thorough search for the missing document. And failing to locate it, he was the only person who could knowledgeably inform the court of its loss. The general rule concerning proof of a lost instrument is, that reasonable search shall be made for it in the compliance where it was last known to have been, and if such search does not discover it, then inquiry should be made of person most likely to have its custody,

or who have some reasons to know of its whereabouts. No fixed rule as to the necessary proof to establish loss, or what constitutes reasonable search, can be formulated. The terms "reasonable search" and "in good faith," applied to proof of lost instruments, must be construed and defined under the facts in each particular case; there is no inflexible definition under which they can be applied to all cases. The sole object of such proof is, to raise a reasonable presumption, merely that the instrument is lost and this is a preliminary inquiry addressed to the discretion of the judge. The loss may be shown by any person who knew the fact of its loss, or by and one who has made, in the judgment of the court, a sufficient examination of the place or places where the documents or papers of similar character are kept by the person in whose custody the document lost was, and has been unable to find it. Since the loss of the baggage declaration has been duly established, resort to secondary evidence is warranted under the rules of evidence under Secs. 2 and 4, R130. It is now beyond dispute that petitioner did bring into the country highly dutiable goods which she hid beneath the linings of her bag and the corners of the bed cover she was carrying. It is hard to imagine that an incoming passenger who had all the intentions of declaring a large quantity of fancy jewelries and stones (3,000 pieces) would undertake the trouble of painstakinly and meticulously sewing said articles one by one beneath the linings of her bag and the corners of a blanket only to tear open the linings and detach the articles one by one for inspection. Her tenuous explanation that she did it for security reasons is too flimsy a pretense to be admitted as the Records show that she did not immediately disclose the hiding places of the stones and pieces told the examiner that she was not hiding anything. She only talked of the hidden pieces of jewelries and stones when examiner Macud had discovered them under the fruits inside a plastic bag; thereby telling the examiner, "Sir, my fancy jewelries and stones are hidden." Republic vs. Marcos-Manotoc Suit: recovery of ill-gotten wealth. The respondents filed a Demurrer to Evidence which the lower granted. Evidence offered: 1. Sworn Statement and the Depositionof one of the financial advisors of President Marcos, Rolando C. Gapud, taken in Hong Kong on various dates.

2. To prove the participation and interests of

Imee Marcos-Manotoc in De Soleil Apparel and the media networks Affidavits of Ramon S. Monzon, Yeung Kwok Ying, and Rodolfo V. Puno; and the transcript of stenographic notes (TSN) taken during the PCGG hearing held on 8 Jun 1987. 3. As to spouses Irene Marcos-Araneta and Gregorio Araneta III Articles of Incorporation of Northern Express Transport, Inc.; the Memorandum of Agreementand the Purchase Agreementbetween Pantranco and Batangas Laguna Tayabas Bus Company, Inc. (BLTBCo.); the Confidential Memorandum regarding the sale of the Pantranco assets; the Affidavit and the letter to the PCGG of Dolores A. Potenciano, owner of BLTBCo.; the Affidavitand the Memorandum of Eduardo Fajardo, who was then the Senior VicePresident of the Account Management Group of the PNB, which was in turn the creditor for the Pantranco sale; and the Affidavit of Florencio P. Lucio, who was the Senior Account Specialist of the National Investment and Development Corporation. Petitioner contends that these documents fall under the Rules third exception, that is, these documents are public records in the custody of a public officer or are recorded in a public office. It is its theory that since these documents were collected by the PCGG, then, necessarily, the conditions for the exception to apply had been met. Alternatively, it asserts that the documents were offered to prove not only the truth of the recitals of the documents, but also of other external or collateral facts. SC says: It is petitioners burden to prove the allegations in its Complaint. For relief to be granted, the operative act on how and in what manner the Marcos siblings participated in and/or benefitted from the acts of the Marcos couple must be clearly shown through a preponderance of evidence. Should petitioner fail to discharge this burden, the Court is constrained and is left with no choice but to uphold the Demurrer to Evidence filed by respondents. Petitioner does not deny that what should be proved are the contents of the documents themselves. It is imperative, therefore, to submit the original documents that could prove petitioners allegations. Thus, the photocopied documents are in violation Rule 130, Sec. 3 of the Rules of Court, otherwise known as the best evidence rule, which mandates that the evidence must be the original document itself. The origin of the best evidence rule can be found and traced to as

early as the 18th century in Omychund v. Barker, wherein the Court of Chancery said: The judges and sages of the law have laid it down that there is but one general rule of evidence, the best that the nature of the case will admit The rule is, that if the writings have subscribing witnesses to them, they must be proved by those witnesses. Petitioner did not even attempt to provide a plausible reason why the originals were not presented, or any compelling ground why the court should admit these documents as secondary evidence absent the testimony of the witnesses who had executed them. In particular, it may not insist that the photocopies of the documents fall under Sec. 7 of Rule 130. Secs. 19 and 20 of Rule 132 provide: SECTION 19. Classes of documents. For the purpose of their presentation in evidence, documents are either public or private. Public documents are: (a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; (b) Documents acknowledged before a notary public except last wills and testaments; and (c) Public records, kept in the Philippines, of private documents required by law to be entered therein. All other writings are private. SECTION 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. The fact that these documents were collected by the PCGG in the course of its investigations does not make them per se public records referred to in the quoted rule. Petitioner presented as witness its records officer, Maria Lourdes Magno, who testified that these public and private documents had

been gathered by and taken into the custody of the PCGG in the course of the Commissions investigation of the alleged ill-gotten wealth of the Marcoses. However, given the purposes for which these documents were submitted, Magno was not a credible witness who could testify as to their contents. To reiterate, if the writings have subscribing witnesses to them, they must be proved by those witnesses. Witnesses can testify only to those facts which are of their personal knowledge; that is, those derived from their own perception. Thus, Magno could only testify as to how she obtained custody of these documents, but not as to the contents of the documents themselves. Neither did petitioner present as witnesses the affiants of these Affidavits or Memoranda submitted to the court. Basic is the rule that, while affidavits may be considered as public documents if they are acknowledged before a notary public, these Affidavits are still classified as hearsay evidence. The reason for this rule is that they are not generally prepared by the affiant, but by another one who uses his or her own language in writing the affiant's statements, parts of which may thus be either omitted or misunderstood by the one writing them. Moreover, the adverse party is deprived of the opportunity to cross-examine the affiants. For this reason, affidavits are generally rejected for being hearsay, unless the affiants themselves are placed on the witness stand to testify thereon. As to the copy of the TSN of the proceedings before the PCGG, while it may be considered as a public document since it was taken in the course of the PCGGs exercise of its mandate, it was not attested to by the legal custodian to be a correct copy of the original. This omission falls short of the requirement of Rule 132, Secs. 24 and 25 of the Rules of Court. PAROL EVIDENCE RULE BPI vs. Fidelity & Surety Co. Suit: recovery on a contract of guaranty Evidentiary issue: mistake in the contract of guaranty and promissory note SC says: According to section 285 of the Code of Civil Procedure, a written agreement is presumed to contain all the terms of the agreement. The Civil Code has articles to the same effect. However, the Code of Civil Procedure permits evidence of the terms of the agreement other than the contents of the writing in the following case: Where a mistake or imperfection of the writing, or its failure to express the true intent and

agreement of the parties, is put in issue by the pleadings. The bookkeeping entries of the bank are hardly competent against a stranger to the transaction, such as the defendant in this case. Moreover, it will not escape notice that one entry at least in plaintiff's Exhibit E has been changed by erasing the words "y Fidelity and Surety Co. of the Phil. Islands" and substituting "Philippine Vegetable Oil Co. garatizado p. Fidelity & Surety Co. of the Phil. Islands." The book entries taken at their face value are not conclusive. The correspondence between the parties fails to disclose either an express or implied admission that the defendant had executed the guaranty in question in favor of the plaintiff bank. There is nothing in these exhibits from which any such admission can be inferred. An attempt to interpret the correspondence merely leads open further into the field of speculation. Yet the rule is that an admission or declaration to be competent must have been expressed in definite, certain, and unequivocal language. Here, the exhibits are couched in a language which is neither definite, certain, nor unequivocal for nowhere do they contain an admission of a guaranty made by the defendant company for the protection of the Bank of the Philippine Islands. To justify the reformation of a written instrument upon the ground of mistake, the concurrence of three things are necessary: First, that the mistake should be of a fact; second, that the mistake should be proved by clear and convincing evidence; and, third, that the mistake should be common to both parties to the instrument. The rule is, as has been above stated, that the mistake must be mutual. There may have been a mistake here. It would, however, seem to be straining the natural course of events to hold the Fidelity and Surety Company of the Philippine Islands a party to that mistake. It may be that the majority has not approached a decision in this case in a spirit of tolerant sympathy. The plaintiff has filed three distinct and conflicting complaints. It has not remained loyal to any one theory of the case. Lechugas vs. CA Suit: forcible entry and recovery of possession Evidentiary issue: Lechugas claims that Leoncia Lasangue was the vendor of the disputed land. She denies that Lasangue sold Lot No. 5522 to her. She alleges that this lot was sold to her by one Leonora Lasangue, who, however, was never presented as witness in any of the proceedings below by herein petitioner.

SC says: As explained by a leading commentator on our Rules of Court, the parol evidence rule does not apply, and may not properly be invoked by either party to the litigation against the other, where at least one of the parties to the suit is not party or a privy of a party to the written instrument in question and does not base a claim on the instrument or assert a right originating in the instrument or the relation established thereby. Lechugas reliance on the parol evidence rule is misplaced. The rule is not applicable where the controversy is between one of the parties to the document and third persons. The deed of sale was executed by Leoncia Lasangue in favor of Victoria Lechugas. The dispute over what was actually sold is between petitioner and the private respondents. In the case at bar, through the testimony of Leoncia Lasangue, it was shown that what she really intended to sell and to be the subject of Exhibit A was Lot No. 5522 but not being able to read and write and fully relying on the good faith of her first cousin, the petitioner, she just placed her thumbmark on a piece of paper which petitioner told her was the document evidencing the sale of land. The deed of sale described the disputed lot instead. Heirs of Pacres vs. Ygona In the first place, under Article 1311 of the Civil Code, contracts take effect only between the parties, their assigns and heirs (subject to exceptions not applicable here). Thus, only a party to the contract can maintain an action to enforce the obligations arising under said contract. Consequently, petitioners, not being parties to the contracts of sale between Ygoa and the petitioners siblings, cannot sue for the enforcement of the supposed obligations arising from said contracts. It is true that third parties may seek enforcement of a contract under the second paragraph of Article 1311, which provides that if a contract should contain some stipulation in favor of a third person, he may demand its fulfillment. This refers to stipulations pour autrui, or stipulations for the benefit of third parties. However, the written contracts of sale in this case contain no such stipulation in favor of the petitioners. While petitioners claim that there was an oral stipulation, it cannot be proven under the Parol Evidence Rule. Under this Rule, [w]hen 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. While the Rule admits of

exception, no such exception was pleaded, much less proved, by petitioners. The Parol Evidence Rule applies to the parties and their successors in interest. Conversely, it has no application to a stranger to a contract. For purposes of the Parol Evidence Rule, a person who claims to be the beneficiary of an alleged stipulation pour autrui in a contract (such as petitioners) may be considered a party to that contract. It has been held that a third party who avails himself of a stipulation pour autrui under a contract becomes a party to that contract. This is why under Article 1311, a beneficiary of a stipulation pour autrui is required to communicate his acceptance to the obligor before its revocation. Moreover, to preclude the application of Parol Evidence Rule, it must be shown that at least one of the parties to the suit is not party or a privy of a party to the written instrument in question and does not base a claim on the instrument or assert a right originating in the instrument or the relation established thereby. A beneficiary of a stipulation pour autrui obviously bases his claim on the contract. He therefore cannot claim to be a stranger to the contract and resist the application of the Parol Evidence Rule. Thus, even assuming that the alleged oral undertakings invoked by petitioners may be deemed stipulations pour autrui, still petitioners claim cannot prosper, because they are barred from proving them by oral evidence under the Parol Evidence Rule. Salimbangon vs. Tan Suit: easement of right of way Evidentiary issue: The Salimbangons point out that the CA ought to have rejected Eduardo Cenizas (one of the heirs) testimony that the heirs had intended to establish the easement of right of way solely for the benefit of the interior Lots D and E which had no access to the city street. The partition agreement also made Lot A, now owned by the Salimbangons, a beneficiary of that easement. The parol evidence rule, said the Salimbangons, precluded the parties from introducing testimony that tended to alter or modify what the parties had agreed on above. SC says: The exclusionary provision of the parol evidence rule admits of exceptions, one of which is found under Sec. 9, Rule 130 of the RoC. In this case, the Tans had put in issue the true intent and agreement of the parties to the partition when they alleged in their complaint that, contrary to what paragraph 2 of the contract seems to imply, the easement was

actually for the benefit of Lots D and E only. Consequently, with such averment, the Tans were entitled to introduce evidence to establish the true intent and agreement of the parties although this may depart from what the partition agreement literally provided. At any rate, as the CA said, the Salimbangons did not object at the hearing to admission of Eduardo Cenizas testimony even when this seemed at variance, as far as they were concerned, with the partition agreement among the heirs. Consequently, the Salimbangons may also be deemed to have waived their right to now question such testimony on appeal. Sps. Lequin vs. Sps. Vizconde Suit: declaration of nullity of contract of sale Evidentiary issue: the contract has no valuable consideration; the sale is simulated; alteration of the terms and conditions of the contract on the ground that theres fraud SC says: On its face, the contract of sale appears to be supported by a valuable consideration. However, the contract is a simulated sale and unsupported by any consideration, for respondents never paid the PhP 15,000 purported purchase price. Section 9 of Rule 130 gives both the general rule and exception as regards written agreements. The second exception under Sec. 9 applies to the instant case. Lack of consideration was proved by petitioners evidence aliunde showing that the Kasulatan did not express the true intent and agreement of the parties. As explained above, said sale contract was fraudulently entered into through the misrepresentations of respondents causing petitioners vitiated consent. QUALIFICATIONS OF WITNESSES Tarapen vs. People Suit: Criminal; homicide Evidentiary issue: On testimony. Petitioner brands Molly and Silmana Linglingen as biased witnesses, thus, unreliable, because they were town mates and co-vendors of the victim. SC says: The fact that these two witnesses were the victim's town mates and co-vendors did not necessarily make them biased witnesses. It is well-settled that the mere relationship of a witness to the victim does not impair the witness' credibility. On the contrary, a witness' relationship to a victim of a crime would even make his or her testimony more credible, as it would be unnatural for a relative, or a friend as in this case, who is interested in vindicating the crime, to accuse somebody other than the real culprit. A witness is said to be biased when his relation to the cause or to the parties is such that he has an incentive to

exaggerate or give false color to his statements, or to suppress or to pervert the truth, or to state what is falseTo warrant rejection of the testimony of a relative or friend, it must be clearly shown that, independently of the relationship, (1) the testimony was inherently improbable or defective, or (2) that improper or evil motives had moved the witness to incriminate the accused falsely. The friendship of Molly and Silmana Linglingen with the victim, per se, did not impair their credibility. Moreover, the defense failed to show any evidence that prosecution witnesses Molly and Silmana Linglingen had improper or evil motives to testify falsely against petitioner. This being the case, their testimonies are entitled to full faith and credit. DISQUALIFICATION BY REASON OF DEATH OR INSANITY (DEAD MAN STATUTE) Babao vs. Perez Suit: sum of money on a verbal contract of sale Evidentiary issue: At trial, counsel for appellants objected the admission of the testimony of plaintiff Bernardo Babao and that of his mother Cleofe Perez as to what occurred between Celestina Perez and Santiago Babao, with regard to the agreement on the ground that their testimony was prohibited by section 26(c) of Rule 123 of the Rules of Court. This rule prohibits parties or assignors of parties to a case, or persons in whose behalf case is prosecuted, against an executor or administrator of a deceased person upon a claim or demand against the estate of such deceased person from testifying as to any matter of fact occurring before the death of such deceased person. But the court overruled the opposition saying that said rule did not apply where the complaint against the estate of a deceased person alleges fraud citing Ong Chua vs. Carr. SC says: The court is in error because if in that case the witness was allowed to testify it was because the existence of fraud was first established by sufficient and competent evidence, here, the alleged fraud is predicated upon the existence of the agreement itself which violates the rule of petitio principii. Evidently, the fraud to exist must be established by evidence aliunde and not by the same evidence which is to sought to be prevented. The infringement of the rule is evident. The reason for this rule is that "if death has closed the lips of one party, the policy of the law is to close the lips of the other.' Another reason is that `the temptation to

falsehood and concealment in such cases is considered too great to allow the surviving party to testify in his own behalf.' Accordingly, the incompetency applies whether the deceased died before or after the commencement of the action against him, if at the time the testimony was given he was dead and cannot disprove it, since the reason for the prohibition, which is to discourage perjury, exists in both instances. Lichauco vs. AG&P Suit: claims against shares of the decedent Lichauco Evidentiary issue: objection to the admissibility of the testimonies of Belden and Garmezy, officers of AG&P regarding shares which Lichauco allegedly owes AG&P SC says: Inasmuch as section 26(c) of Rule 123 disqualifies only parties or assignors of parties, the officers and/or stockholders of a corporation are not disqualified from testifying, for or against the corporation which is a party to an action upon a claim or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person. It results that the trial court erred in not admitting the testimony of Messrs. Belden and Garmezy. It is not necessary, however, to remand the case for the purpose of taking the testimony of said witnesses because it would be merely corroborative, if at all, and in any event what said witnesses would have testified, if permitted, already appears in the record as hereinabove set forth, and we can consider it together with the testimony of the chief accountant and the assistant accountant who, according to the appellant itself, were "the only ones in the best of position to testify on the status of the personal account" of the deceased Fitzsimmons. NOTE: Consider, in answering this kind of query, the separate juridical personality of a corporation from its officers/stockholders Ong Chua vs. Carr Suit: recovery of possession of property Evidentiary issue: Ong Chua testified to facts occurring prior to the death of Carr re: sale of property of Teck and Lim over the objection of the administrator of Carrs estate this is alleged to be error SC says: Subsection 7 of section 383 of the Code of Civil Procedure bars parties to an action or proceeding against an executor or administrator or other representative of a deceased person upon a claim ore demand against the estate of such deceased person from testifying as to any matter of fact

occurring before the death of such deceased person. Similar provisions are to be found in the statutes of practically all of the states of the Union, and the rule thus laid down is now unquestioned. But it has generally been given a liberal construction to promote justice, and it is held that it never was intended to serve as a shield for fraud. As stated in Jones on Evidence, 2d ed., sec. 744: The evidence of an adverse party is absolutely excluded by an independent, affirmative enactment making him incompetent as to transactions or communications with a deceased or incompetent person. These statutes, however, do not render the adverse party incompetent to testify to fraudulent transactions of the deceased, as the statutes are not designed to shield wrongdoers but the courts compel the adverse party to clearly establish the alleged fraudulent acts before admitting such testimony. And in case of Tongco vs. Vianzon, this court said: Counsel is eminently correct in emphasizing that the object and purpose of his statute is to guard against the temptation to give false testimony in regard to the transaction in question on the part of the surviving party. He has, however, neglected the equally important rule that the law was designated to aid in arriving at the truth and was not designed to suppress the truth. In this case a number of credible witnesses testified to facts which conclusively showed that Carr's conduct was tainted with fraud. The plaintiff did not take the witness stand until after the existence of fraud on the part of Carr and been established beyond a doubt and not by a mere preponderance of evidence. In these circumstances, it cannot be held that the trial court erred in not excluding the plaintiff's testimony. Goni vs. CA Suit: sale of real property through an agent Evidentiary issue: admissibility of Vicentes testimony SC says: Under ordinary circumstances, Vicente would be disqualified by reason of interest from testifying as to any matter of fact occurring before the death of Praxedes T. Villanueva, such disqualification being anchored on Section 20(a) of Rule 130, commonly known as the Survivorship Disqualification Rule or Dead Man Statute. The object and purpose of the rule is to guard against the temptation to give false testimony in regard to the transaction in question on the part of the surviving party and further to put the two parties to a suit upon terms of equality in regard to the opportunity of giving

testimony. It is designed to close the lips of the party plaintiff when death has closed the lips of the party defendant, in order to remove from the surviving party the temptation to falsehood and the possibility of fictitious claims against the deceased. The case at bar, although instituted against the heirs of Praxedes Villanueva after the estate of the latter had been distributed to them, remains within the ambit of the protection. The reason is that the defendantsheirs are properly the "representatives" of the deceased, not only because they succeeded to the decedent's right by descent or operation of law, but more importantly because they are so placed in litigation that they are called on to defend which they have obtained from the deceased and make the defense which the deceased might have made if living, or to establish a claim which deceased might have been interested to establish, if living. Such protection, however, was effectively waived when counsel for petitioners cross-examined Vicente. A waiver occurs when plaintiff's deposition is taken by the representative of the estate or when counsel for the representative crossexamined the plaintiff as to matters occurring during deceased's lifetime. It must further be observed that petitioners presented a counterclaim against private respondent Vicente. When Vicente thus took the witness stand, it was in a dual capacity as plaintiff in the action for recovery of property and as defendant in the counterclaim for accounting and surrender of fields nos. 4 and 13. Evidently, as defendant in the counterclaim, he was not disqualified from testifying as to matters of fact occurring before the death of Praxedes Villanueva, said action not having been brought against, but by the estate or representatives of the estate/deceased person. Likewise, under a great majority of statutes, 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 to those transactions or communications which were had with the agent. The contract/promise to sell under consideration was signed by petitioner Goi as attorney-in-fact (apoderado) of Praxedes Villanueva. He was privy to the circumstances surrounding the execution of such contract and therefore could either confirm or deny any allegations made by private respondent Vicente with respect to said contract.

Mendezona vs. Vda de Goitia Suit: recovery of sum of money as share in the profits of a partnership Evidentiary issue: deposition relating to nonreceipt of profits executed by the partners SC says: The deponents deny having received from the deceased Benigno Goitia any money on account of profits on their shares, since 1915. The claimants' denial that a certain fact occurred before the death of their attorney-infact Benigno Agoitia does not come within the legal prohibitions. The law prohibits a witness directly interested in a claim against the estate of a decedent from testifying upon a matter of fact which took place before the death of the deceased. The underlying principle of this prohibition is to protect the intestate estate from fictitious claims. But this protection should not be treated as an absolute bar or prohibition from the filing of just claims against the decedent's estate. NOTE: Maam says that the court seems to be rationalizing an issue based on a tongue-incheek argument (namimilosopo ang SC; construction of the rule should not be limited to things alleged to have occurred but must also cover allegations of non-performance of things, e.g. outstanding obligations) DISQUALIFICATION BY REASON OF MARRIAGE/MARITAL PRIVILEGED COMMUNICATION US vs. Antipolo Suit: murder Evidentiary issue: Disqualification of the victims wife from testifying as to the identity of her husbands real assailant SC says: Section 58 of General Orders No. 58 (1900) reads as follows: Except with the consent of both, or except in cases of crime committed by one against the other, neither husband nor wife shall be a competent witness for or against the other in a criminal action or proceeding to which one or both shall be parties. The reasons for this rule are thus stated in Underhill's work on Criminal Evidence (second edition) on page 346: At common law, neither a husband nor a wife was a competent witness for or against the other in any judicial proceedings, civil or criminal, to which the other was a party. . . . If either were recognized as a competent witness against the other who was accused of crime, . . . a very serious injury would be done to the harmony and happiness of husband and wife and the confidence which should exist between them. In Greenleaf's classical work on evidence, in section 337 [vol. I], the author says, in stating the reasons for the rule at

common law: The great object of the rule is to secure domestic happiness by placing the protecting seal of the law upon all confidential communications between husband and wife; and whatever has come to the knowledge of either by means of the hallowed confidence which that relation inspires, cannot be afterwards divulged in testimony even though the other party be no longer living. This case does not fall with the text of the statute or the reason upon which it is based. The purpose of section 58 is to protect accused persons against statements made in the confidence engendered by the marital relation, and to relieve the husband or wife to whom such confidential communications might have been made from the obligation of revealing them to the prejudice of the other spouse. Obviously, when a person at the point of death as a result of injuries he has suffered makes a statement regarding the manner in which he received those injuries, the communication so made is in no sense confidential. On the contrary, such a communication is made for the express purpose that it may be communicated after the death of the declarant to the authorities concerned in inquiring into the cause of his death. The declarations of a deceased person while in anticipation of certain impending death, concerning the circumstances leading up to the death, are admissible in a prosecution of the person charged with killing the declarant. Such dying declarations are admissible in favor of the defendant as well as against him. It has been expressly held in several jurisdictions in the United States that the widow of the deceased may testify regarding his dying declarations. In the case of Arnett vs. Commonwealth, the court ruled that on grounds of public policy the wife can not testify against her husband as to what came to her from him confidentially or by reason of the marriage relation, but this rule does not apply to a dying communication made by the husband to the wife on the trial of the one who killed him. The declaration of the deceased made in extremes in such cases is a thing to be proven, and this proof may be made by any competent witness who heard the statement. The wife may testify for the state in cases of this character as to any other fact known to her. . . . It cannot be contended that the dying declaration testified to by the witness was a confidential communication made to her; on the contrary, it was evidently made in the furtherance of justice for the express purpose that it

should be testified to in the prosecution of the defendant. People vs. Carlos Suit: murder It is clear that there is no dispute that Carlos killed Dr. Sityar. What is to be proved is the qualifying circumstance of evident premeditation in order to convict Carlos for murder Evidentiary issue: admissibility of letter written by Carlos wife to him (defendant) expressing her anxiety that he might contemplate resorting to physical violence in dealing with Dr. Sityar. Counsel for the defendant argues vigorously that the letter was a privileged communication and therefore not admissible in evidence. SC says: The numerical weight of authority is to the effect that where a privileged communication from one spouse to another comes into the hands of a third party, whether legally or not, without collusion and voluntary disclosure on the part of either of the spouses, the privilege is thereby extinguished and the communication, if otherwise competent, becomes admissible. The letter in question was obtained through a search for which no warrant appears to have been issued and counsel for the defendant cites the causes of Boyd and Boyd vs. United States and Silverthorne Lumber Co. and Silverthorne vs. United States (251 U.S., 385) as authority for the proposition that documents obtained by illegal searches of the defendant's effects are not admissible in evidence in a criminal case. Professor Wigmores work is enlightening in this issue: The progress of this doctrine of Boyd vs. United States was as follows: (a) The Boyd Case remained unquestioned in its own Court for twenty years; meantime receiving frequent disfavor in the State Courts (b) Then in Adams vs. New York, in 1904, it was virtually repudiated in the Federal Supreme Court, and the orthodox precedents recorded in the State courts were expressly approved. (c) Next, after another twenty years, in 1914 moved this time, not by erroneous history, but by misplaced sentimentality the Federal Supreme Court, in Weeks vs. United States, reverted to the original doctrine of the Boyd Case, but with a condition, viz., that the illegality of the search and seizure should first have been directly litigated and established by a motion, made before trial, for the return of the things seized; so that, after such a motion, and then only, the illegality would be noticed in the main trial and the evidence thus obtained would be excluded. ... In the Silverthorne Lumber Co. case the United States Supreme Court adhered to its decision in the Weeks Case. The doctrine laid down in these cases

has been followed by some of the State courts but has been severely criticized and does not appear to have been generally accepted. But assuming, without deciding, that it prevails in this jurisdiction it is, nevertheless, under the decisions in the Weeks and Silverthorne cases, inapplicable to the present case. Here the illegality of the search and seizure was not "directly litigated and established by a motion, made before trial, for the return of the things seized." The letter Exhibit L must, however, be excluded for reasons not discussed in the briefs. The letter was written by the wife of the defendant and if she had testified at the trial the letter might have been admissible to impeach her testimony, but she was not put on the witness-stand and the letter was therefore not offered for that purpose. If the defendant either by answer or otherwise had indicated his assent to the statements contained in the letter it might also have been admissible, but such is not the case here; the fact that he had the letter in his possession is no indication of acquiescence or assent on his part. The letter is therefore nothing but pure hearsay and its admission in evidence violates the constitutional right of the defendant in a criminal case to be confronted with the witnesses for the prosecution and have the opportunity to cross-examine them. In this respect there can be no difference between an ordinary communication and one originally privileged. Alvarez vs. Ramirez Suit: arson Evidentiary issue: The prosecution called to the witness stand Esperanza Alvarez as first witness against Maximo Alvarez, the petitioner in this case. Note that Maximo and his counsel DID NOT OBJECT to Esperanza testifying against him. The course of the proceeding was temporarily suspended and that is when Maximo sought to disqualify his wife from testifying against him. TC agreed to such argument and disqualified Esperanza as witness. Her testimony was deleted from the records. CA nullified the Orders of the TC. SC says: The reasons given for the rule on disqualification of a witness by reason of marriage (Sec. 22, R130) are: 1. There is identity of interests between husband and wife; 2. If one were to testify for or against the other, there is consequent danger of perjury; 3. The policy of the law is to guard the security and confidences of private life, even at the risk of an occasional failure of

justice, and to prevent domestic disunion and unhappiness; and 4. Where there is want of domestic tranquility there is danger of punishing one spouse through the hostile testimony of the other. But like all other general rules, the marital disqualification rule has its own exceptions, both in civil actions between the spouses and in criminal cases for offenses committed by one against the other. Like the rule itself, the exceptions are backed by sound reasons which, in the excepted cases, outweigh those in support of the general rule. For instance, where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, the reason based upon such harmony and tranquility fails. In such a case, identity of interests disappears and the consequent danger of perjury based on that identity is non-existent. Likewise, in such a situation, the security and confidences of private life, which the law aims at protecting, will be nothing but ideals, which through their absence, merely leave a void in the unhappy home. Obviously, the offense of arson attributed to petitioner, directly impairs the conjugal relation between him and his wife Esperanza. His act, as embodied in the Information for arson filed against him, eradicates all the major aspects of marital life such as trust, confidence, respect and love by which virtues the conjugal relationship survives and flourishes. It should be stressed that as shown by the records, prior to the commission of the offense, the relationship between petitioner and his wife was already strained. In fact, they were separated de facto almost six months before the incident. Indeed, the evidence and facts presented reveal that the preservation of the marriage between petitioner and Esperanza is no longer an interest the State aims to protect. At this point, it bears emphasis that the State, being interested in laying the truth before the courts so that the guilty may be punished and the innocent exonerated, must have the right to offer the direct testimony of Esperanza, even against the objection of the accused, because (as stated by this Court in Francisco), "it was the latter himself who gave rise to its necessity." People vs. Francisco Suit: parricide. In the course of the proceedings, when Francisco took the witness stand, he testified as to his innocence and imputed the act of killing his son to his wife. On

rebuttal, the State presented his wife to testify as to the event surrounding the killing. Evidentiary issue: Francisco impugns the admissibility of the testimony of appellant's wife, invoking the provision of section 26 (d) of Rule 123 prohibiting the wife and the husband from testifying for or against each other. SC says: The rule contained in section 265 (d) of Rule 123 admits of exceptions, both in civil actions between the spouses and in criminal cases for offenses committed by one against the other. For instance, where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility of interests disappears and the consequent danger of perjury based on that identity is non-existent. Likewise, in such a situation, the security and confidences of private life which the law aims at protecting will be nothing but ideals which, through their absence, merely leave a void in the unhappy home. At any rate, in the instant case the wife did not testify in the direct evidence for the prosecution but under circumstances presently to be stated. It will be noted that the wife only testified against her husband after the latter, testifying in his own defense, imputed upon her the killing of their son. By all rules of justice and reason this gave the prosecution, which had theretofore refrained from presenting the wife as a witness against her husband, the right to do so, as it did in rebuttal; and the wife herself the right to so testify, at least, in selfdefense, not of course, against being subjected to punishment in that case in which she was not a defendant but against any or all of various possible consequences which might flow from her silence, namely: (1) a criminal prosecution against her which might be instituted by the corresponding authorities upon the basis of her husband's aforesaid testimony; (2) in the moral and social sense, her being believed by those who heard the testimony orally given, as well as by those who may read the same, once put in writing, to be the killer of her infant child. It has been aptly said that the law of evidence is the law of common sense. Presuming the husband who so testified against his wife to be endowed with common sense, he must be taken to have expected that the most natural reaction which said testimony would give rise to on the part of the prosecution, as well as of his wife, was to deny upon rebuttal the new matter which was involved in the same testimony, namely, the imputation that it was his wife who killed their little son. Upon the part of the prosecution, because he not only limited himself to denying that he was the

killer, but went further and added what was really a new matter consisting in the imputation of the crime upon his wife. And upon the part of the wife, because of the reasons already set forth above. Hence, in giving such testimony, the husband must, in all fairness, be held to have intended all its aforesaid natural and necessary consequences. By his said act, the husband himself exercising the very right which he would deny to his wife upon the ground of their marital relations must be taken to have waived all objection to the latter's testimony upon rebuttal, even considering that such objection would have been available at the outset. The State being interested in laying the truth before the courts so that the guilty may be punished and the innocent exonerated, must have the right to offer the rebutting testimony in question, even against the objection of the accused, because it was the latter himself who gave rise to its necessity. It may be said that the accused husband thought that he would have more chances of convincing the court of his pretended innocence if he pointed to his wife as having caused the death of their child, instead of simply denying that he was the author of the fatal act. To this we would counter by saying that if he was to be allowed, for his convenience, to make his choice and thereby impute the act upon his spouse, justice would be partial and one-sided if both the State and the wife were to be absolutely precluded from introducing the latter's rebutting testimony. As well-settled as this rule of marital incompetency itself is the other that it may be waived. According to Wharton, the accused waives his or her privilege by calling the other spouse as a witness for him or her, thereby making the spouse subject to crossexamination in the usual manner, the reason being that the State is entitled to question the spouse so presented as to all matters germane and pertinent to the direct testimony. In the same way, and for a similar reason, when the herein appellant gave his testimony in question in his defense, the State had the right to rebut the new matter contained in that testimony consisting in the imputation upon his wife of the death of the little boy. And that rebuttal evidence, which was rendered necessary by appellant's own testimony, could be furnished only by his wife who, as he fully knew, was alone with him and their son at the precise place and time of the event. This right to rebut is secured to the State, no less than to the accused, by Rule 115, section 3, paragraph (c), the provision further authorizing the court,

in furtherance of justice, to permit one or the other party to offer "new additional evidence bearing upon the main issue in question." When the husband testified that it was his wife who caused the death of their son, he could not, let us repeat, justly expect the State to keep silent and refrain from rebutting such new matter in his testimony, through the only witness available, namely, the wife; nor could he legitimately seal his wife's lips and thus gravely expose her to the danger of criminal proceedings against her being started by the authorities upon the strength and basis of said testimony of her husband, or to bear the moral and social stigma of being thought, believed, or even just suspected, to be the killer of her own offspring. A decent respect and considerate regard for the feelings of an average mother will tell us that such a moral and social stigma would be no less injurious to her than a criminal punishment. And if the wife should, in such a case and at such a juncture, be allowed to testify upon rebuttal, the scope of her testimony should at least be the same as that of her husband. Since the husband had testified that it was his wife who caused the death of the little boy, she should be allowed to say that it was really her husband who did it. We hold that it is not necessary, to justify such rebuttal evidence, and to declare the existence of the waiver upon which it was based, that the wife be in jeopardy of punishment in the same case by reason of such testimony of her accused husband. The rule of waiver of objection to the competency of witnesses generally does not require this prerequisite in the case between husband and wife. Zulueta vs. CA Background: Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982, petitioner entered the clinic of her husband, a doctor of medicine, and in the presence of her mother, a driver and private respondent's secretary, forcibly opened the drawers and cabinet in her husband's clinic and took 157 documents consisting of private correspondence between Dr. Martin and his alleged paramours, greetings cards, cancelled checks, diaries, Dr. Martin's passport, and photographs. The documents and papers were seized for use in evidence in a case for legal separation and for disqualification from the practice of medicine which petitioner had filed against her husband. Evidentiary issue: Are these admissible SC says: NO. Indeed the documents and papers in question are inadmissible in evidence. The constitutional injunction declaring "the privacy of communication and correspondence [to be] inviolable" is no less applicable simply because

it is the wife (who thinks herself aggrieved by her husband's infidelity) who is the party against whom the constitutional provision is to be enforced. The only exception to the prohibition in the Constitution is if there is a "lawful order [from a] court or when public safety or order requires otherwise, as prescribed by law." Any violation of this provision renders the evidence obtained inadmissible "for any purpose in any proceeding." The intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed his/her integrity or his right to privacy as an individual and the constitutional protection is ever available to him or to her. The law insures absolute freedom of communication between the spouses by making it privileged. Neither husband nor wife may testify for or against the other without the consent of the affected spouse while the marriage subsists. Neither may be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage, save for specified exceptions. But one thing is freedom of communication; quite another is a compulsion for each one to share what one knows with the other. And this has nothing to do with the duty of fidelity that each owes to the other. ATTORNEY-CLIENT PRIVILEGE Barton vs. Leyte Asphalt Suit: damages for breach of contract Evidentiary issue: Admissibility of Exhibit 14, a carbon copy of a letter dated June 13, 1921, written by Barton to his attorney, Frank B. Ingersoll, Esq., of Manila, and in which he states, among other things, that his profit from the San Francisco contract would have been at the rate of 85 cents (gold) per ton which was offered in evidence by Leyte Asphalt, consists of. The authenticity of this city document is admitted, and when it was offered in evidence by the attorney for Leyte Asphalt, the counsel for Barton announced that he had no objection to the introduction of this carbon copy in evidence if counsel for Leyte Asphalt would explain where this copy was secured. Upon this, the attorney for Leyte Asphalt informed the court that he received the letter from their former attorneys without explanation of the manner in which the document had come into their possession. Upon this the attorney for Barton made this announcement: "We hereby

give notice at this time that unless such an explanation is made, explaining fully how this carbon copy came into the possession of the defendant company, or any one representing it, we propose to object to its admission on the ground that it is a confidential communication between client and lawyer." No further information was then given by the attorney for Leyte Asphalt as to the manner in which the letter had come to his hands and the trial judge thereupon excluded the document, on the ground that it was a privileged communication between client and attorney. SC says: The ruling was erroneous. Even supposing that the letter was within the privilege which protects communications between attorney and client, this privilege was lost when the letter came to the hands of the adverse party. And it makes no difference how the adversary acquired possession. The law protects the client from the effect of disclosures made by him to his attorney in the confidence of the legal relation, but when such a document, containing admissions of the client, comes to the hand of a third party, and reaches the adversary, it is admissible in evidence. Although the precedents are somewhat confusing, the better doctrine is to the effect that when papers are offered in evidence a court will take no notice of how they were obtained, whether legally or illegally, properly or improperly; nor will it form a collateral issue to try that question. Malcolm, dissent: The majority decision incidentally takes up for consideration assignments of error 1 and 2 having to do with either the admission or the rejection by the trial court of certain exhibits. Having in mind that the Court reverses the courta quo on the facts, what is said relative to these two assignments is absolutely unnecessary for a judgment, and even as obiter dicta, contains unfortunate expressions. Exhibit 14, for example, is a letter addressed by the plaintiff to his lawyer and probably merely shown to the counsel of the defendant during negotiations to seek a compromise. Whether that exhibit be considered improperly rejected or not would not change the result one iota. People vs. Sandiganbayan Suit: motion to discharge Sansaet to be utilized as a State witness in the prosecution of Paredes for falsification of public documents. Evidentiary issue: Sandiganbayan ruled that due to the lawyer-client relationship which existed between Paredes and Sansaet during the relevant periods, the facts surrounding the case and other confidential matters must have been disclosed by Paredes, as client, to Sansaet, as his lawyer. Accordingly, it found

"no reason to discuss it further since Atty. Sansaet cannot be presented as a witness against accused Ceferino S. Paredes, Jr. without the latter's consent." SC says: The attorney-client privilege cannot apply in these cases, as the facts thereof and actuations of both respondents therein constitute an exception to the rule. 1. It may correctly be assumed that there was a confidential communication made by Paredes to Sansaet in connection with Criminal Cases Nos. 17791-93 for falsification before the Sandiganbayan, and this may reasonably be expected since Paredes was the accused and Sansaet his counsel therein. Indeed, the fact that Sansaet was called to witness the preparation of the falsified documents by Paredes and Honrada was as eloquent a communication, if not more, than verbal statements being made to him by Paredes as to the fact and purpose of such falsification. It is significant that the evidentiary rule on this point has always referred to "any communication," without distinction or qualification. Nor can it be pretended that during the entire process, considering their past and existing relations as counsel and client and, further, in view of the purpose for which such falsified documents were prepared, no word at all passed between Paredes and Sansaet on the subject matter of that criminal act. The clincher for this conclusion is the undisputed fact that said documents were thereafter filed by Sansaet in behalf of Paredes as annexes to the motion for reconsideration in the preliminary investigation of the graft case before the Tanodbayan. 24 Also, the acts and words of the parties during the period when the documents were being falsified were necessarily confidential since Paredes would not have invited Sansaet to his house and allowed him to witness the same except under conditions of secrecy and confidence. 2. It is postulated that despite such complicity of Sansaet at the instance of Paredes in the criminal act for which the latter stands charged, a distinction must be made between confidential communications relating to past crimes already committed, and future crimes intended to be committed, by the client. Corollarily, it is admitted that the announced intention of a client to commit a crime is not included within the confidences which his attorney is bound to respect. The Sandiganbayan appears, however, to believe that in the instant case it is dealing with a past crime, and that Sansaet is set to testify on alleged criminal acts of Paredes and Honrada that have already been committed and consummated.

The Court reprobates the last assumption which is flawed by a somewhat inaccurate basis. It is true that by now, insofar as the falsifications to be testified to in respondent court are concerned, those crimes were necessarily committed in the past. But for the application of the attorney-client privilege, however, the period to be considered is the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future. In other words, if the client seeks his lawyer's advice with respect to a crime that the former has theretofore committed, he is given the protection of a virtual confessional seal which the attorney-client privilege declares cannot be broken by the attorney without the client's consent. The same privileged confidentiality, however, does not attach with regard to a crime which a client intends to commit thereafter or in the future and for purposes of which he seeks the lawyer's advice. Statements and communications regarding the commission of a crime already committed, made by a party who committed it, to an attorney, consulted as such, are privileged communications. Contrarily, the unbroken stream of judicial dicta is to the effect that communications between attorney and client having to do with the client'scontemplated criminal acts, or in aid or furtherance thereof, are not covered by the cloak of privileges ordinarily existing in reference to communications between attorney and client. 3. In the present cases, the testimony sought to be elicited from Sansaet as state witness are the communications made to him by physical acts and/or accompanying words of Parades at the time he and Honrada, either with the active or passive participation of Sansaet, were about to falsify, or in the process of falsifying, the documents which were later filed in the Tanodbayan by Sansaet and culminated in the criminal charges now pending in the Sandiganbayan. Clearly, therefore, the confidential communications thus made by Paredes to Sansaet were for purposes of and in reference to the crime of falsification which had not yet been committed in the past by Paredes but which he, in confederacy with his present co-respondents, later committed. Having been made for purposes of a future offense, those communications are outside the pale of the attorney-client privilege. 4. Furthermore, Sansaet was himself a conspirator in the commission of that crime of

falsification which he, Paredes and Honrada concocted and foisted upon the authorities. It is well settled that in order that a communication between a lawyer and his client may be privileged, it must be for a lawful purpose or in furtherance of a lawful end. The existence of an unlawful purpose prevents the privilege from attaching. In fact, it has also been pointed out to the Court that the "prosecution of the honorable relation of attorney and client will not be permitted under the guise of privilege, and every communication made to an attorney by a client for a criminal purpose is a conspiracy or attempt at a conspiracy which is not only lawful to divulge, but which the attorney under certain circumstances may be bound to disclose at once in the interest of justice." Regala vs. Sandiganbayan Suit: recovery of ill-gotten wealth Factual background: PCGG filed a "Motion to Admit Third Amended Complaint" and "Third Amended Complaint" which excluded Raul S. Roco from the complaint in PCGG Case No. 33 as party-defendant. PCGG based its exclusion of Roco as party-defendant on his undertaking that he will reveal the identity of the principal/s for whom he acted as nominee/stockholder in the companies involved in PCGG Case No. 33. Petitioners-lawyere were included in the Third Amended Complaint on the basis that they plotted, devised, schemed conspired and confederated with each other in setting up, through the use of the coconut levy funds, the financial and corporate framework and structures that led to the establishment of UCPB, UNICOM, COCOLIFE, COCOMARK, CIC, and more than twenty other coconut levy funded corporations, including the acquisition of San Miguel Corporation shares and its institutionalization through presidential directives of the coconut monopoly. Through insidious means and machinations, ACCRA, being the wholly-owned investment arm, ACCRA Investments Corporation, became the holder of approximately fifteen million shares representing roughly 3.3% of the total outstanding capital stock of UCPB as of 31 March 1987. This ranks ACCRA Investments Corporation number 44 among the top 100 biggest stockholders of UCPB which has approximately 1,400,000 shareholders. On the other hand, corporate books show the name Edgardo J. Angara as holding approximately 3,744 shares as of February, 1984. In their answer to the Expanded Amended Complaint, ACCRA lawyers alleged that their participation in the acts with which their codefendants are charged, was in furtherance of legitimate lawyering and that in

the course of rendering professional and legal services to clients, defendants-ACCRA lawyers, Jose C. Concepcion, Teodoro D. Regala, Rogelio A. Vinluan and Eduardo U. Escueta, became holders of shares of stock in the corporations listed under their respective names in Annex "A" of the expanded Amended Complaint as incorporating or acquiring stockholders only and, as such, they do not claim any proprietary interest in the said shares of stock. Petitioners ACCRA lawyers subsequently filed their "COMMENT AND/OR OPPOSITION" with Counter-Motion that PCGG similarly grant the same treatment to them (exclusion as parties-defendants) as accorded private respondent Roco. 8 The Counter-Motion for dropping petitioners from the complaint was duly set for hearing on October 18, 1991 in accordance with the requirements of Rule 15 of the Rules of Court. In its "Comment," PCGG set the following conditions precedent for the exclusion of petitioners, namely: (a) the disclosure of the identity of its clients; (b) submission of documents substantiating the lawyer-client relationship; and (c) the submission of the deeds of assignments petitioners executed in favor of its client covering their respective shareholdings. Consequently, PCGG presented supposed proof to substantiate compliance by Roco of the conditions precedent to warrant the latter's exclusion as party-defendant in PCGG Case No. 33, to wit: (a) Letter to respondent PCGG of the counsel of respondent Roco dated May 24, 1989 reiterating a previous request for reinvestigation by the PCGG in PCGG Case No. 33; (b) Affidavit dated March 8, 1989 executed by private respondent Roco as Attachment to the letter aforestated in (a); and (c) Letter of the Roco, Bunag, and Kapunan Law Offices dated September 21, 1988 to the respondent PCGG in behalf of private respondent Roco originally requesting the reinvestigation and/or re-examination of the evidence of the PCGG against Roco in its Complaint in PCGG Case No. 33. The Sandiganbayan promulgated the Resolution, herein questioned, denying the exclusion of petitioners in PCGG Case No. 33, for their refusal to comply with the conditions required by respondent PCGG. Evidentiary issue: ACCRA lawyers interpose the argument that they should be discharged from the complaint on the basis of (a) failure to state a cause of action, (b) attorney-client privilege and (c) equal protection clause. SC says: (A) Failure to State a Cause of Action

There is essentially no cause of action against the petitioner-lawyers. It is quite apparent that petitioners were impleaded by the PCGG as codefendants to force them to disclose the identity of their clients. Clearly, PCGG is not after petitioners but the "bigger fish" as they say in street parlance. This ploy is quite clear from the PCGG's willingness to cut a deal with petitioners the names of their clients in exchange for exclusion from the complaint. In a closely related case, "Primavera Farms, Inc., et al. vs. Presidential Commission on Good Government" PCGG, through counsel Mario Ongkiko, manifested at a hearing that the PCGG wanted to establish through the ACCRA that their "so called client is Mr. Eduardo Cojuangco;" that "it was Mr. Eduardo Cojuangco who furnished all the monies to those subscription payments in corporations included in Annex "A" of the Third Amended Complaint; that the ACCRA lawyers executed deeds of trust and deeds of assignment, some in the name of particular persons; some in blank. It would seem that petitioners are merely standing in for their clients as defendants in the complaint. Petitioners are being prosecuted solely on the basis of activities and services performed in the course of their duties as lawyers. Quite obviously, petitioners' inclusion as co-defendants in the complaint is merely being used as leverage to compel them to name their clients and consequently to enable the PCGG to nail these clients. Such being the case, PCGG has no valid cause of action as against petitioners and should exclude them from the Third Amended Complaint. NOTE: Maam is not agreeable to this view of the court, among others. The determination of whether or not a complaint states a cause of action is to be gleaned from the allegations on the pleading. The pleading filed by PCGG contained allegations imputing illegal acts against the ACCRA lawyers which addresses squarely the Comment/Opposition with Countermotion filed by the lawyers. This pleading is made to effect a Rule 16, Sec 1 (g) MTD. But looking at the PCGG complaint, isnt there a cause of action stated? (B) Attorney-Client Privilege The ACCRA lawyers invocation of the privilege in refusing to divulge their clients name is proper considering that it falls within the exception to the general rule on client name disclosure. An effective lawyer-client relationship is largely dependent upon the degree of confidence which exists between lawyer and client which in turn requires a situation which encourages a dynamic and

fruitful exchange and flow of information. It necessarily follows that in order to attain effective representation, the lawyer must invoke the privilege not as a matter of option but as a matter of duty and professional responsibility. As a matter of public policy, a client's identity should not be shrouded in mystery. Under this premise, the general rule in our jurisdiction as well as in the United States is that a lawyer may not invoke the privilege and refuse to divulge the name or identity of this client. The reasons advanced for the general rule are well established. (1) The court has a right to know that the client whose privileged information is sought to be protected is flesh and blood. (2) The privilege begins to exist only after the attorney-client relationship has been established. The attorney-client privilege does not attach until there is a client. (3) The privilege generally pertains to the subject matter of the relationship. (4) Due process considerations require that the opposing party should, as a general rule, know his adversary. "A party suing or sued is entitled to know who his opponent is." He cannot be obliged to grope in the dark against unknown forces. 33 Notwithstanding these considerations, the general rule is however qualified by some important exceptions. (1) Client identity is privileged where a strong probability exists that revealing the client's name would implicate that client in the very activity for which he sought the lawyer's advice. (2) Where disclosure would open the client to civil liability; his identity is privileged. (3) Where the government's lawyers have no case against an attorney's client unless, by revealing the client's name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime, the client's name is privileged. Apart from these principal exceptions, there exist other situations which could qualify as exceptions to the general rule. For example, the content of any client communication to a lawyer lies within the privilege if it is relevant to the subject matter of the legal problem on which the client seeks legal assistance. Moreover, where the nature of the attorney-

client relationship has been previously disclosed and it is the identity which is intended to be confidential, the identity of the client has been held to be privileged, since such revelation would otherwise result in disclosure of the entire transaction. Summarizing these exceptions, information relating to the identity of a client may fall within the ambit of the privilege when the client's name itself has an independent significance, such that disclosure would then reveal client confidences. The circumstances involving the engagement of lawyers in the case at bench, therefore, clearly reveal that the instant case falls under at least two exceptions to the general rule. First, disclosure of the alleged client's name would lead to establish said client's connection with the very fact in issue of the case, which is privileged information, because the privilege, as stated earlier, protects the subject matter or the substance (without which there would be not attorneyclient relationship). The link between the alleged criminal offense and the legal advice or legal service sought was duly establishes in the case at bar, by no less than the PCGG itself. The key lies in the three specific conditions laid down by the PCGG which constitutes petitioners' ticket to non-prosecution should they accede thereto: (a) the disclosure of the identity of its clients; (b) submission of documents substantiating the lawyer-client relationship; and (c) the submission of the deeds of assignment petitioners executed in favor of their clients covering their respective shareholdings. From these conditions, particularly the third, it can be deduced that the clients indeed consulted the petitioners, in their capacity as lawyers, regarding the financial and corporate structure, framework and set-up of the corporations in question. In turn, petitioners gave their professional advice in the form of, among others, the aforementioned deeds of assignment covering their client's shareholdings. There is no question that the preparation of the aforestated documents was part and parcel of petitioners' legal service to their clients. More important, it constituted an integral part of their duties as lawyers. Petitioners, therefore, have a legitimate fear that identifying their clients would implicate them in the very activity for which legal advice had been sought, i.e., the alleged accumulation of ill-gotten wealth in the aforementioned

corporations. Furthermore, under the third main exception, revelation of the client's name would obviously provide the necessary link for the prosecution to build its case, where none otherwise exists. It is the link, in the words of Baird, "that would inevitably form the chain of testimony necessary to convict the (client) of a . . . crime." In fine, the crux of petitioners' objections ultimately hinges on their expectation that if the prosecution has a case against their clients, the latter's case should be built upon evidence painstakingly gathered by them from their own sources and not from compelled testimony requiring them to reveal the name of their clients, information which unavoidably reveals much about the nature of the transaction which may or may not be illegal. The logical nexus between name and nature of transaction is so intimate in this case the it would be difficult to simply dissociate one from the other. In this sense, the name is as much "communication" as information revealed directly about the transaction in question itself, a communication which is clearly and distinctly privileged. A lawyer cannot reveal such communication without exposing himself to charges of violating a principle which forms the bulwark of the entire attorney-client relationship. NOTE: Maam is of the opinion that this is a wrongful application of the AC privilege. To this end, Davides dissent is enlightening: The rule of confidentiality under the lawyer-client relationship is not a cause to exclude a party. It is merely aground for disqualification of a witness and may only be invoked at the appropriate time, i.e., when a lawyer is under compulsion to answer as witness, as when, having taken the witness stand, he is questioned as to such confidential communicator or advice, or is being otherwise judicially coerced to produce, through subpoena duces tecum or otherwise, letters or other documents containing the same privileged matter. But none of the lawyers in this case is being required to testify about or otherwise reveal "any [confidential] communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment." What they are being asked to do, in line with their claim that they had done the acts ascribed to them in pursuance of their professional relation to their clients, is to identify the latter to the PCGG and the Court; but this, only if they so choose in order to be dropped from the complaint, such identification being the condition under which the PCGG has expressed willingness to exclude them from

the action. The revelation is entirely optional, discretionary, on their part. (C) Equal Protection Clause It will be violative of the EPC if the Court does not accord the ACCRA lawyers the same treat it gave Roco when they are all similarly situated. Sandiganbayan contend that the primary consideration behind their decision to sustain PCGG's dropping of Roco as a defendant was his promise to disclose the identities of the clients in question. However, PCGG failed to show and absolute nothing exists in the records of the case at bar that Roco actually revealed the identity of his client(s) to the PCGG. Since the undertaking happens to be the leitmotif of the entire arrangement between Mr. Roco and the PCGG, an undertaking which is so material as to have justified PCGG's special treatment exempting Roco from prosecution, Sandiganbayan should have required proof of the undertaking more substantial than a "bare assertion" that private respondent did indeed comply with the undertaking. Instead, as manifested by the PCGG, only 3 documents were submitted for the purpose, 2 of which were mere requests for re-investigation and one simply disclosed certain clients which petitioners (ACCRA lawyers) were themselves willing to reveal. These were clients to whom both petitioners and private respondent rendered legal services while all of them were partners at ACCRA, and were not the clients which the PCGG wanted disclosed for the alleged questioned transactions. To justify the dropping of the private respondent from the case or the filing of the suit in the respondent court without him, the PCGG should conclusively show that Mr. Roco was treated as species apart from the rest of the ACCRA lawyers on the basis of a classification which made substantial distinctions based on real differences. No such substantial distinctions exist from the records of the case at bench, in violation of the equal protection clause. It is grossly unfair to exempt one similarly situated litigant from prosecution without allowing the same exemption to the others. Moreover, the PCGG's demand not only touches upon the question of the identity of their clients but also on documents related to the suspected transactions, not only in violation of the attorney-client privilege but also of the constitutional right against selfincrimination. Whichever way one looks at it, this is a fishing expedition, a free ride at the expense of such rights.

NOTE: Again, Maam is of the opinion that this is a wrongful application of the EPC. It is established that Roco was discharged from the complaint based on the wrong premise. Hence, the Court may not hinge its argument on a faulty decision. Rights and privileges may not be invoked on the basis of an action that is essentially null and void. The EPC may not be used to circumvent the effects of a palpably void decision or to strengthen an argument to achieve a favorable result. DOCTOR-PATIENT CONFIDENTIALITY Richmond vs. Anchuelo Background: The defendant, who was blind, employed the plaintiff, a doctor, to treat his eyes. Plaintiff did so, without success, and brought this action to recover for his services. The plaintiff claimed that he was to receive 200 pesos in any event, and if he effected a cure he was to receive 500 pesos more. The defendant claimed that if a cure was effected plaintiff was to receive 200 pesos, but if no cure was effected he was to receive nothing. Evidentiary issue: At the trial the defendant presented a witness, Jose Pastor, and offered to prove by him that the defendant, on returning from the plaintiffs office, had stated to the witness that the plaintiff had agreed to cure him for 200 pesos, and not to charge anything if no cure was effected. The judge excluded this evidence, to which ruling the defendant excepted. SC says: The witness did not offer to testify to anything which the plaintiff had said, but offered to testify to what the defendant said that the plaintiff had said. The witness did not know that the plaintiff had made these statements; he only knew that the defendant said that the plaintiff had made them. Such evidence is inadmissible, according to the provisions of section 276 of the Code of Civil Procedure. PUBLIC OFFICER PRIVILEGE Banco Filipino vs. Monetary Board Suit: Petition to Set Aside Order to Produce Documents dated 17 February 1986 Factual background: The documents now asked to be produced, inspected, and copied are the following: (1) Copies of tapes and transcripts of the Monetary Board (MB) deliberations on the closure of Banco Filipino (BF) and its meeting on July 27, 1984, and March 22, 1985; (2) Copies of the letter and reports of first conservator, Mr. Basilio Estanislao, to the MB and to Central Bank Governor Jose Fernandez;

(3) Papers showing computations of all the interests and penalties charged by the CB against BF; (4) Schedule of recommended valuation of reserves per Mr. Tiaoqui's report dated March 19, 1985; (5) Adjustment per Annex "C" of Mr. Tiaoqui's report; (6) Annexes"A","B",and"C"of the joint report of Mr. Tiaoqui, Mr. Aurellano, and Mrs. Valenzuela; (7) Schedule of devaluation of CB premises of Paseo de Roxas of same report; (8) Schedule of BF's realizable assets from P5,159.44 B to P3,909.23 B as of January 25, 1985; (9) Documents listed in BF's letter to Mrs. Carlota Valenzuela dated October 25, 1985. Evidentiary issues: The court below took the view that the Supreme Court's resolution referring to it the matters relative to the bank's closure does not preclude the petitioner from availing of this mode of discovery as an additional means of preparing for the hearing. Monetary Board filed their Reply to Petitioner Bank's Comment dated April 15, 1986. Respondents argue, among others, that: (1) US vs. Nixon does not apply because a) The authorities cited (by Banco Filipino) refer only to a claim of privilege based only on the generalized interest of confidentiality or on an executive privilege that is merely presumptive. On the other hand, the so-called MB deliberations are privileged communications pursuant to Section 21, Rule 130 of the Rules of Court because statements and opinions expressed in the deliberation of the members of the MB are specifically vested with confidentiality under Secs. 13 and 15 of the Central Bank Act. The "public interest" requirement for non-disclosure is evident from the fact that the statute punishes any disclosure of such deliberations; b) Banco Filipino has not in the least shown any relevance or need to produce the alleged MB deliberations. What petitioner intends to prove are not "issues" raised in the pleadings of the main petition; (2) Banco Filino is interested, not in discovering evidence, but in practicing oppression by the forced publication of the MB members' confidential statements at board meetings; (3) The so-called deliberations of the Monetary Board are in truth merely the individual statements and expressions of opinion of its members. They are not statements or opinions that can be imputed to the board itself or to the Central Bank. The transcripts of stenographic notes on the deliberations of the MB are not official records of the CB; they are taken merely to assist the Secretary of the MB in the preparation of the minutes of the meetings. And as advertedly

also, the tape recordings are not available as these are used over and over again. SC says: With respect to Items Nos. 3 to 9, these are the annexes to the Supervision and Examination Sector, Dept. II (SES) Reports submitted to the Central Bank and Monetary Board which were taken into consideration by said respondents in closing petitioner bank. A copy of the SES Reports was furnished to the petitioner. We, therefore, fail to see any proper reason why the annexes thereto should be withheld. Petitioner cannot adequately study and properly analyze the report without the corresponding annexes. Pertinent and relevant, these could be useful and even necessary to the preparation by petitioner of its comment, objections and exceptions to the Conservator's reports and receiver's reports. Regarding copies of the letter and reports of first Conservator, Mr. Basilio Estanislao, to the Monetary Board and to Central Bank Governor Fernandez (Item No. 2) these appear relevant as petitioner has asserted that the above-named Conservator had in fact wanted to resume normal operations of Banco Filipino but then he was thereafter replaced by Mr. Gilberto Teodoro. The letter and reports could be favorable or adverse to the case of petitioner but whatever the result may be, petitioner should be allowed to photocopy the same. As to the tapes and transcripts of the Monetary Board deliberations on the closure of Banco Filipino and its meetings on July 27, 1984, and March 22, 1985, (Item No. 1), respondents contend that "it is obvious from the requirement (Sections 13 and 15 of the Central Bank Act) that the subject matter (of the deliberations), when resolved. . . shall be made available to the public but the deliberations themselves are not open to disclosure but are to be kept in confidence." This Court, however, sees it in a different light. The deliberations may be confidential but not necessarily absolute and privileged. There is no specific provision in the Central Bank Act, even in Sections 13 and 15 thereof, which prohibits absolutely the courts from conducting an inquiry on said deliberations when these are relevant or material to a matter subject of a suit pending before it. The disclosure is here not intended to obtain information for personal gain. There is no indication that such disclosure would cause detriment to the government, to the bank or to third parties. Significantly, it is the bank itself here that is interested in obtaining what it considers as information useful and indispensably needed by it to support its position in the matter being inquired to by the court below. [The privilege over information given/acquired in official

confidence] is intended not for the protection of public officers but for the protection of public interest. Where there is no public interest that would be prejudiced, this invoked rule will not be applicable. In the case at bar, the respondents have not established that public interest would suffer by the disclosure of the papers and documents sought by petitioner. Considering that petitioner bank was already closed as of January 25, 1985, any disclosure of the aforementioned letters, reports, and transcripts at this time pose no danger or peril to our economy. Neither will it trigger any bank run nor compromise state secrets. Respondent's reason for their resistance to the order of production are tenuous and specious. If the respondents public officials acted rightfully and prudently in the performance of their duties, there should be nothing at all that would provoke fear of disclosure On the contrary, public interests will be best served by the disclosure of the documents. Not only the banks and its employees but also its numerous depositors and creditors are entitled to be informed as to whether or not there was a valid and legal justification for the petitioner's bank closure. It will be well to consider that Public interest means more than a mere curiosity; it means something in which the public, the community at large, has some pecuniary interest by which their legal rights or liabilities are affected. ADMISSIONS AGAINST INTEREST People vs. Reyes Suit: murder Nature of the admission: Declaration Factual background: Pedro Reyes turned state evidence, but he did not confirm every statement he had previously made at the fiscal's investigation. He testified, however, that at about seven o'clock that night he saw, among the people gathered at the "pabasa", "Pipit" (Marcelo Due) Piping, Gervasio Due alias Oliveros, Vicente Gatchalian and Maximino Austriaalias Big Boy; that Pipit and Piping (Felipe Sese) called him and told him that Oliveros wanted to talked with him; that taking with Oliveros he was invited by the latter to speak to the MP's (the members of the military police, Nery, Laguitan and Orsino); that he refused; that thereafter he heard several detonations; that he ran to the rice field and there he met Oliveros (Gervasio Due) and Gatchalian talking, the former declaring he was sure the MP he had shot will die and Gatchalian making the same assurance as to the MP he (Gatchalian) had shot in turn. Reyes had previously told

the authorities in his affidavit Exhibit A, in addition to what he related court, that Oliveros, Magallanes and Big Boy had approached the three MP's and lined them up on the road, after which shots were heard. SC says: Enough may be gathered from his testimony in open court to identify Gatchalian as one of the assailants, the conversation he overhead in the rice field being admissible as an admission and as part of the res gestae. People vs. Yatco Suit: murder Nature of the admission: Declaration (extrajudicial confession) Evidentiary issue: At trial, while the prosecution was questioning one of its witnesses, Atty. Arturo Xavier of the NBI, in connection with the making of a certain extrajudicial confession (allegedly made before him) by defendant Juan Consunji to the witness, counsel for the other defendant Alfonso Panganiban interposed a general objection to any evidence on such confession on the ground that it was hearsay and therefore incompetent as against the other accused Panganiban. The Court below ordered the exclusion of the evidence objected to, but on an altogether different ground: that the prosecution could not be permitted to introduce the confessions of defendants Juan Consunji and Alfonso Panganiban to prove conspiracy between them, without prior proof of such conspiracy by a number of definite acts, conditions, and circumstances. SC says: TC committed GAD. Sec. 14, Rule 123, Rules of Court, is specific as to the admissibility of the extrajudicial confession of an accused, freely and voluntarily made, as evidence against him. Under the rule of multiple admissibility of evidence, even if Consunji's confession may not be competent as against his co-accused Panganiban, being hearsay as to the latter, or to prove conspiracy between them without the conspiracy being established by other evidence, the confession of Consunji was, nevertheless, admissible as evidence of the declarant's own guilt, and should have been admitted as such. Besides, the prosecution had not yet offered the confessions to prove conspiracy between the two accused, nor as evidence against both of them. In fact, the alleged confessions (both in writing and in tape recordings) had not yet even been identified (the presentation of Atty. Xavier was precisely for the purpose of identifying the confessions), much less formally offered in evidence. For all we know, the prosecution might still be able to adduce other proof of conspiracy between

Consunji and Panganiban before their confessions are formally offered in evidence. Assuming, therefore, that section 12 of Rule 123 also applies to the confessions in question, it was premature for the respondent Court to exclude them completely on the ground that there was no prior proof of conspiracy. It is particularly noteworthy that the exclusion of the proferred confessions was not made on the basis of the objection interposed by Panganiban's counsel, but upon an altogether different ground, which the Court issuedmotu proprio. Panganiban's counsel objected to Consunji's confession as evidence of the guilt of the other accused Panganiban, on the ground that it was hearsay as to the latter. But the Court, instead of ruling on this objection, put up its own objection to the confessions that it could not be admitted to prove conspiracy between Consunji and Panganiban without prior evidence of such conspiracy by a number of indefinite acts, conditions, circumstances, etc. and completely excluded the confessions on that ground. By so doing, the Court overlooked that the right to object is a mere privilege which the parties may waive; and if the ground for objection is known and not reasonably made, the objection is deemed waived and the Court has no power, on its own motion, to disregard the evidence. People vs. Aling Suit: parricide (killed his wife) Nature of the admission: Declaration Evidentiary issue: Counsel de oficio assigned to present the side of the accused in this review, contends that the marriage of Airol to Norija was not indubitably proven SC says: The testimony of the accused that he was married to the deceased was an admission against his penal interest. It was a confirmation of the maxim semper praesumitur matrimonio and the presumption "that a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage". He and the deceased had five children. He alluded in his testimony to his father-in-law. That implies that the deceased was his lawful wife. The fact that he bitterly resented her infidelity, her failure to visit him in prison and her neglect of their children are other circumstances confirmatory of their marital status. Lichauco vs. AG&P Evidence presented: Exhibit 1 inventory of the assets and liabilities of the conjugal partnership of Mr. and Mrs. Fitzsimmons, with a proposed adjudication or division of the net assets among the ex-spouses and their children

Nature of the admission: Declaration Evidentiary issue: The administrator Mr. Lichauco testified herein that as attorney for Mr. Fitzsimmons in the divorce case he prepared the said inventory from the data furnished him by Mr. Fitzsimmons after he had conferred with and explained to the latter why it was necessary to prepare said inventory, telling him that under the divorce law the conjugal properties had to be liquidated; that since he (Fitzsimmons) was married to Miguela Malayto in the year 1939, he had to include in said inventory all the properties acquired by him between the date of his marriage and the date of his divorce, and that all the obligations incurred by him and not yet paid during the same period should be included because they had to be deducted from the assets in order to determine the net value of the conjugal properties; that he made it very clear to Mr. Fitzsimmons that he should not forget the obligations he had because they would diminish the amount his wife was going to receive, and that any obligation not included in the inventory would be borne by him alone after his wife had received her share. AG&P contends that Exhibit 1 is a self-serving declaration, while Lichauco contends that it is a declaration against interest. SC says: A self-serving declaration is a statement favorable to the interest of the declarant. It is not admissible in evidence as proof of the facts asserted. The vital objection to the admission of this kind of evidence is its hearsay character. Furthermore such declarations are untrustworthy; to permit their introduction in evidence would open the door to frauds and perjuries. On the other hand, a declaration against the interest of the person making it is admissible in evidence, notwithstanding its hearsay character, if the declaration is relevant and the declarant has died, become insane, or for some other reason is not available as a witness. "The true test in reference to the reliability of the declaration is not whether it was made ante litem motam, as is the case with reference to some classes of hearsay evidence, whether the declaration was uttered under circumstances justifying the conclusion that there was no probable motive to falsify." Insofar, at least, as the appellant was concerned, there was no probable motive on the part of Fitzsimmons to falsify his inventory Exhibit 1 by not including therein appellant's present claim of P63,000 among his obligations or liabilities to be deducted from the assets of the conjugal partnership between him and his divorced wife. He did not know then that he would die within one year and that the corporation of which he was the president and

one of the largest stockholders would present the claim in question against his estate. Neither did he know that the books and records of that corporation would be destroyed or lost. Yet, although he listed in said inventory his obligations in favor of the Peoples Bank and Trust Company and the Philippine Bank of Commerce aggregating more than P30,000, he did not mention at all any obligation in favor of the corporation of which he was the president and one of the largest stockholders. Assuming that he owed his corporation P63,000 for which he signed receipts and vouchers and which appeared in the books of said corporation, there was no probable motive for him not to include such obligation in the inventory Exhibit 1. It would have been to his interest to include it so that his estranged and divorced wife might share in its payment. Datoon vs. Judge Kapili Suit: Administrative; conduct unbecoming of a member of the Judiciary Nature of the admission: Declaration SC says: Both Judge Paler-Gonzales and Hernandez testified that Datoon admitted to them that she signed the Complaint and Affidavit without meeting the lawyers who prepared the same. Hernandez further bared that Datoon admitted to him that Judge Kapili never pointed a gun at her. On her part, Judge Paler-Gonzales testified that Datoon admitted that she was not sure if the contents of her Complaint and Affidavit were true because she was in pain at the time of the incident. Datoon failed to address these accusations as she was not presented for rebuttal. Section 26, Rule 130 of the Rules of Evidence provides that admissions of a party may be given in evidence against him or her. Datoons admission against her interest, as narrated by two credible and neutral witnesses, militates against the credibility of her charges. The presumption is that no person would declare anything against himself unless such declaration were true. Heirs of Clemena vs. Heirs of Bien Suit: damages Nature of the admission: Declaration SC says: Clemea s predecessor Pedro Clemea y Zurbano alleged in his answer that the land declared in TD 5299 was in his exclusive possession. That statement, insofar as it confirmed the allegation in the complaint that petitioners' predecessor had retained possession of the land in question, took on the character of a judicial admission contemplated in Sec. 4, Rule 129 of the RoC. A judicial admission conclusively binds the party making it. He cannot thereafter contradict it. 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. Hence, petitioners' newly-contrived assertion that they were never in possession of the land cannot hold up against these pronouncements. As substituting defendants, they were bound by the admission of Pedro Clemea y Zurbano, their predecessor in the litigation. Without any showing that the admission was made through palpable mistake or that no such admission was made, petitioners cannot now contradict it. Petitioners' next proposition, i.e., that Gregorio Clemea's testimony was self-serving and therefore an improper basis for the damages awarded to respondents, is just as unworthy of this Court's favorable consideration. "Self-serving evidence," perhaps owing to its descriptive formulation, is a concept much misunderstood. Not infrequently, the term is employed as a weapon to devalue and discredit a party's testimony favorable to his cause. That, it seems, is the sense in which petitioners are using it now. This is a grave error. "Self-serving evidence" is not to be taken literally to mean any evidence that serves its proponent's interest. The term, if used with any legal sense, refers only to acts or declarations made by a party in his own interest at some place and time out of court, and it does not include testimony that he gives as a witness in court Evidence of this sort is excluded on the same ground as any hearsay evidence, that is, lack of opportunity for cross-examination by the adverse party and on the consideration that its admission would open the door to fraud and fabrication. In contrast, a party's testimony in court is sworn and subject to crossexamination by the other party, and therefore, not susceptible to an objection on the ground that it is self-serving. DBP Pool vs. Radio Mindanao Network Suit: claim on insurance contract; defense interposes an excepted risk Nature of the admission: declaration Evidentiary issue: DBP Pool presented the following to support its claim, to wit: police blotter of the burning of DYHB, certification of the Negros Occidental Integrated National Police, Bacolod City regarding the incident, letter of alleged NPA members Celso Magsilang claiming responsibility for the burning of DYHB, fire investigation report dated July 29, 1988, and the testimonies of Lt. Col. Nicolas Torres and SFO III Leonardo Rochas.

SC says (adopting that of the CAs ruling): None of the pieces of evidence offered categorically stated that the 20 armed men which burned DYHB were members of the CPP/NPA. The said documents simply stated that the said armed men were believed to be or suspected of being members of the said group. Even SFO III Rochas admitted that he was not sure that the said armed men were members of the CPP-NPA. In fact the only person who seems to be so sure that that the CPP-NPA had a hand in the burning of DYHB was Lt. Col. Nicolas Torres. However, though We found him to be persuasive in his testimony regarding how he came to arrive at his opinion, We cannot nevertheless admit his testimony as conclusive proof that the CPP-NPA was really involved in the incident considering that he admitted that he did not personally see the armed men even as he tried to pursue them. Note that when Lt. Col. Torres was presented as witness, he was presented as an ordinary witness only and not an expert witness. Hence, his opinion on the identity or membership of the armed men with the CPP-NPA is not admissible in evidence. Anent the letter of a certain Celso Magsilang, who claims to be a member of NPANIROC, being an admission of person which is not a party to the present action, is likewise inadmissible in evidence under Section 22, Rule 130 of the Rules of Court. The reason being that an admission is competent only when the declarant, or someone identified in legal interest with him, is a party to the action. ADMISSIBILITY OF OFFER OF COMPROMISE Tan vs. Rodil Enterprises Suit: unlawful detainer Nature of the admission: ACT SC says: The general rule is an offer of compromise in a civil case is not an admission of liability. It is not admissible in evidence against the offeror. The rule, however, is not iron-clad. In Trans-Pacific Industrial Supplies, Inc. v. Court of Appeals: To determine the admissibility or non-admissibility of an offer to compromise, the circumstances of the case and the intent of the party making the offer should be considered. Thus, if a party denies the existence of a debt but offers to pay the same for the purpose of buying peace and avoiding litigation, the offer of settlement is inadmissible. If in the course thereof, the party making the offer admits the existence of an indebtedness combined with a proposal to settle the claim amicably, then, the admission is admissible to prove such indebtedness.

Indeed, an offer of settlement is an effective admission of a borrowers loan balance. In the case at bar, the MeTC and the Court of Appeals properly appreciated petitioners admission as an exception to the general rule of inadmissibility. The MeTC found that petitioner did not contest the existence of the sublease, and his counsel made frank representations anent the formers liability in the form of rentals. This expressed admission was coupled with a proposal to liquidate. The Motion to Allow Defendant to Deposit Rentals was deemed by the MeTC as an explicit acknowledgment of petitioners liability on the subleased premises. Finally, we find a categorical admission on the part of petitioner, not only as to his liability, but also, as to the amount of indebtedness in the form of rentals due. The Order of the MeTC dated 27 June 2000 was clear that the petitioner agreed in open court to pay the amount of P440,000.00, representing petitioners unpaid rentals from September 1997 to June 2000; and that petitioner will pay the monthly rentals computed at P13,750.00 on or before the 5th day of each month after 30 June 2000. The petitioners judicial admission in open court, as found by the MeTC, and affirmed by the Court of Appeals finds particular significance when viewed together with his Motion to Allow Defendant to Deposit Rentals, wherein petitioner stated that the rentals due on the premises in question from September 1997 up to the present amounted to P467,500.00, as of the date of filing the Motion. Petitioner cannot now be allowed to reject the same. An admission made in the pleading cannot be controverted by the party making such admission and are conclusive as to him, and that all proofs submitted by him contrary thereto or inconsistent therewith should be ignored whether objection is interposed by a party or not. Heirs of Barredo vs. Besanes Suit: breach of contract Nature of admission: Act SC says: The offer of 100 square meters of land to Barredo by Javier does not prove the existence of a tenancy agreement. Section 27, Rule 130 of the Revised Rules of Evidence provides that an offer of compromise is not an admission of any liability. We share the observation of the CA that such offer may have stemmed from a motivation to buy peace or as an act of compassion for Barredo. RES INTER ALIOS ACTA (3RD PARTY ADMISSIONS)

People vs. Valero Suit: murder (children died from eating poisoned pandesal) Nature of the admission: declaration 1. Rodolfo Quilang testified that he saw the defendant Lucila Valero deliver "something wrapped in a piece of paper" to her deaf-mute brother Pipe with the alleged instruction by sign language to deliver the same to the Velasco children. Quilang never saw what was inside the piece of paper. At the time Quilang saw the delivery to Pipe of the wrapped object, the defendant and her brother were in the balcony of their house, which was just near the gate of Ceferino Velasco's house where he (Quilang) was standing. Upon receipt of the wrapped object, Pipe allegedly proceeded towards Velasco's house. According to Quilang, he was "in the act of leaving Velasco's gate when Pipe "was entering the gate of Ceferino Velasco". In effect, his testimony cannot be relied on to prove the truth of his story. Quilang was suddenly sprung as the star witness, the only witness who allegedly saw the delivery by the defendant to Pipe of "something wrapped in a piece of paper" with the alleged instruction by sign language to deliver the same to the Velasco children. Without the testimony of Quilang, there would be no evidence to show that the poisoned bread which was allegedly delivered by Pipe to the Velasco children came from the defendant. Realizing that there was a missing link, the prosecution thought of presenting Quilang to provide the missing link six years after the occurrence of the tragedy. 2. Federico Jaime and Ceferino Velasco On the other hand, both Ceferino Velasco and Federico Jaime did not see the delivery by the defendant to her deaf-mute brother "something wrapped in a piece of paper". They never saw or heard her giving any instruction to Pipe to deliver the wrapped object to the children. Both claimed that they learned or obtained the information from Pipe after interviewing him by means of sign language. Which the trial Court accepted as competent, trustworthy and credible. There is nothing in Jaimes testimony pointing to the defendant Lucila Valero as the source of the poisoned bread. What is evident is nothing but confusion. What Jaime asked from Pipe was "Who gave the bread to the children?" The evidence of the prosecution already shows that Pipe gave the bread to the children. In reply, it seems that Pipe pointed to the defendant who was standing nearby. Here, the confusion is clear. Pipe could not have said that his sister handed over the poisoned bread to the children because the

evidence of the prosecution shows that Pipe himself, gave the bread to the children. It is clear that Pipe did not understand the sign language of Jaime and vice-versa. The testimony of Ceferino Velasco, father of the victims, did not help the prosecution much either. There is nothing in his testimony indicating that the deaf-mute, Pipe, pointed to her sister Lucila Valero as the source of the poisoned bread. We have examined the entire transcript of the stenographic notes, and, except the aforequoted portions of the testimony of Federico Jaime and Ceferino Velasco, there is nothing in the record showing that Pipe communicated to the prosecution witnesses by comprehensible sign language that his sister was the source of the poisoned bread. Aside from the foregoing observation, there are several compelling reasons that should have made the trial Court reject the testimony of both Jaime and Velasco. Pipe who was the alleged source of the vital information for the prosecution was never presented as a witness either for the prosecution or for the defense. Jaime and Velasco were presented as prosecution witnesses to convey to the Court what they learned from Pipe by sign language. The evidence is purely hearsay. The presentation of such evidence likewise violates the principle of res inter alios acta. The rights of a party cannot be prejudiced by an act, declaration, or omission of another. With particular reference to the testimony of Ceferino Velasco, its admission cannot be justified by claiming that it is a part of the res gestae. When Pipe allegedly revealed to Ceferino Velasco that the source of the poisoned bread was the defendant, the children had not eaten or tasted it. Nobody was yet poisoned. Stated otherwise, there was no startling Occurrence yet. With reference to the testimony of Jaime, there is no showing that Pipe made the extrajudicial revelation spontaneously when he was still under the influence of a startling occurrence. Pipe made his extrajudicial revelation not spontaneously but after an interview through the complicated process of sign language. The failure of the defense counsel to object to the presentation of incompetent evidence, like hearsay evidence or evidence that violates the rule of res inter alios acta, or his failure to ask for the striking out of the same does not give such evidence any probative value. The lack of objection may make any incompetent evidence admissible. But admissibility of evidence should not be equated with weight of evidence. Hearsay

evidence whether objected to or not has no probative value. To give weight to the testimonies of Federico Jaime and Ceferino Velasco, whether considered as hearsay evidence or as part of res gestae and make the same the basis for the imposition of the death penalty gravely violates the constitutional right of the defendant to meet the witnesses face to face and to subject Pipe to the rigid test of crossexamination, the only effective means to test the truthfulness, memory, intelligence, and in this particular case, the ability of the deafmute, Alfonso Valero alias Pipe, to communicate with the outside world. In conflict between a provision of the constitution giving the defendant a substantive right and mere technical rules of evidence, we have no choice but to give effect to the constitution. The cross-examination of Pipe, the source of the vital information for the prosecution, would have shown clearly his incompetence as a witness. As a result of the testimonies and the report made by expert witnesses, the Municipal Court dismissed the murder and frustrated murder cases against Alfonsito Valero, alias Pipe, who was then the co-accused of Lucila Valero, "on the ground that he (Pipe) is a deaf-mute and, therefore, all the proceedings against him were beyond his comprehension". Even prosecution witnesses Ceferino Velasco and Federico Jaime admitted on crossexamination that their interpretations of the sign language of Pipe were only guess work. Tamargo vs. Awingan Suit: murder Nature of the admission: declaration Evidentiary issue: Judge Daguna limited herself only to the following: (1) Columnas affidavit dated March 8, 2004 wherein he implicated the respondents in the murders; (2) his affirmation of this affidavit during the April 19, 2004 clarificatory hearing; (3) his letter dated October 29, 2004 and (4) the May 30, 2005 DOJ resolution upholding the prosecutors recommendation to file the murder charges. She completely ignored other relevant pieces of evidence such as: (1) Columnas May 3, 2004 letter to respondent Lloyd Antiporda narrating the torture he suffered to force him to admit his participation in the crimes and to implicate the respondents; (2) his May 25, 2004 affidavit where he stated that neither he nor the respondents had any involvement in the murders and (3) his testimony during the October 22, 2004 clarificatory hearing wherein he categorically affirmed his May 3, 2004 letter and May 25, 2004 affidavit.

SC says: Judge Daguna failed to consider that Columnas extrajudicial confession in his March 8, 2004 affidavit was not admissible as evidence against respondents in view of the rule on res inter alios acta. Res inter alios acta alteri nocere non debet. The rule on res inter alios acta provides that the rights of a party cannot be prejudiced by an act, declaration, or omission of another. Consequently, an extrajudicial confession is binding only on the confessant, is not admissible against his or her co-accused and is considered as hearsay against them. The reason for this rule is that: on a principle of good faith and mutual convenience, a mans own acts are binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him. NOTE: Maam criticizes this part of the decision as an act of the Court bifurcating its argument. Res inter alios acta and hearsay are separate rules. An exception to the res inter alios acta rule is an admission made by a conspirator under Section 30, Rule 130 of the Rules of Court. This rule prescribes that the act or declaration of the conspirator relating to the conspiracy and during its existence may be given in evidence against co-conspirators provided that the conspiracy is shown by independent evidence aside from the extrajudicial confession. Thus, in order that the admission of a conspirator may be received against his or her co-conspirators, it is necessary that (a) the conspiracy be first proved by evidence other than the admission itself (b) the admission relates to the common object and (c) it has been made while the declarant was engaged in carrying out the conspiracy. Otherwise, it cannot be used against the alleged co-conspirators without violating their constitutional right to be confronted with the witnesses against them and to crossexamine them. Here, aside from the extrajudicial confession, which was later on recanted, no other piece of evidence was presented to prove the alleged conspiracy. There was no other prosecution evidence, direct or circumstantial, which the extrajudicial confession could corroborate. Therefore, the recanted

confession of Columna, which was the sole evidence against respondents, had no probative value and was inadmissible as evidence against them. XPN TO RIAA (BY A CONSPIRATOR) People vs. Janjalani Suit: murder and frustrated murder Nature of the admission: 1) Extrajudicial declaration through exclusive interviews with ABS-CBN by Trinidad and Baharan 2) Judicial confession of participation in the bombing incident by Trinidad in the pre-trial stipulation Evidence presented: testimony of Asali (discharged as an accused to become a State witness) Evidentiary issues: (1) was conspiracy sufficiently established by evidence aliunde; (2) is Asalis testimony admissible in evidence? SC says: Conspiracy was clearly established from the collective acts of the accusedappellants before, during and after the commission of the crime. As correctly declared by the trial court in its Omnibus Decision: Asalis clear and categorical testimony, which remains unrebutted on its major points, coupled with the judicial admissions freely and voluntarily given by the two other accused, are sufficient to prove the existence of a conspiracy hatched between and among the four accused, all members of the terrorist group Abu Sayyaf, to wreak chaos and mayhem in the metropolis by indiscriminately killing and injuring civilian victims by utilizing bombs and other similar destructive explosive devices. While said conspiracy involving the four malefactors has not been expressly admitted by accused Baharan, Angelo Trinidad, and Rohmat, more specifically with respect to the latters participation in the commission of the crimes, nonetheless it has been established by virtue of the aforementioned evidence, which established the existence of the conspiracy itself and the indispensable participation of accused Rohmat in seeing to it that the conspirators criminal design would be realized. It is well-established that conspiracy may be inferred from the acts of the accused, which clearly manifests a concurrence of wills, a common intent or design to commit a crime. Hence, where acts of the accused collectively and individually demonstrate the existence of a common design towards the accomplishment of the same unlawful purpose, conspiracy is evident and all the perpetrators will be held liable as principals.

Accused contend that the testimony of Asali is inadmissible pursuant to Sec. 30, Rule 130 of the Rules of Court. It is true that under the rule, statements made by a conspirator against a co-conspirator are admissible only when made during the existence of the conspiracy. However, as the Court ruled in People v. Buntag, if the declarant repeats the statement in court, his extrajudicial confession becomes a judicial admission, making the testimony admissible as to both conspirators. Thus, in People v. Palijon, the Court held the following: [W]e must make a distinction between extrajudicial and judicial confessions. An extrajudicial confession may be given in evidence against the confessant but not against his co-accused as they are deprived of the opportunity to cross-examine him. A judicial confession is admissible against the declarants co-accused since the latter are afforded opportunity to cross-examine the former. Section 30, Rule 130 of the Rules of Court applies only to extrajudicial acts or admissions and not to testimony at trial where the party adversely affected has the opportunity to cross-examine the declarant. Mercenes admission implicating his co-accused was given on the witness stand. It is admissible in evidence against appellant Palijon. Moreover, where several accused are tried together for the same offense, the testimony of a co-accused implicating his coaccused is competent evidence against the latter.[28] Abay, Jr. vs. People Evidentiary issue: Since Aban's testimony is not credible as to Espeleta, Camacho and Punzalan who were acquitted, then it should also be held not credible as to them. SC says: In our considered view, the petitioners are not similarly situated as their aforementioned co-accused. Other than the testimony of Aban, there were no other witnesses who testified on the participation of Espeleta, Camacho and Punzalan. In contrast, anent the herein petitioners' participation in the crime, not only is their conviction based on the testimony of Aban, but it was also established by the eyewitness testimony of Andrade and Tolentino who identified positively the petitioners in open court. People vs. Bustamante Suit: murder Evidence presented: eyewitness testimony Nature of admission: Acts and declarations Evidentiary issue: (1) was conspiracy proven? (2) is Gabornes testimony admissible? SC says: The prosecution satisfactorily established that appellants conspired with

each other in killing Romeleo. As correctly held by the CA: At bar, appellants claimed that they were either at the NAIA parking lot or were at the adjacent IID-NAIA office when the crime took place. These places, however, are but a short distance away from the scene of the crime and one could travel to and from these points in a little over a few seconds or minutes of leisure walking, as readily admitted by appellants in their own version of the event. Verily, the possibility of appellants to be at the scene of the crime at the time of its commission, is thus not farfetched. Besides, it is not required for conspiracy to exist that there be an agreement for an appreciable period prior to the occurrence. It is sufficient that at the time of the commission of the offense, the accused had the same purpose and were united in its execution. Direct proof of such agreement is not necessary. It may be deduced from the mode and manner in which the offense was perpetrated, or inferred from the acts of the accused which point to a joint purpose and design, concerted action and community of interest. This community of design is present among the appellants as deduced from their individual acts. The RTC observed thus: The act of the accused Elmer Salvador, Neil Baluyot y Tabisora, and Richard Delos Trino y Sarcilla of boxing the victim on the stomach and the act of accused Herminio Jose who said tapusin na natin ito together with the act of accused Neil Baluyot of handing a tale or cord to Elmer Salvador who thereafter twisted the cord which was around the neck of the victim with a piece of wood with the help of accused Mutalib Abdulajid who up to the present remained at large, all acts of which were done in the presence of all the accused clearly show that all accused conspired, confederated and helped one another in murdering the victim with abuse of superior strength by strangling and hanging the victim Romeleo Quintos causing him to die of asphyxia. In conspiracy, the act of one is the act of all. x x x x Likewise, the act of accused Carlito Lingat y Damaso and Edwin Soriano y Dela Cruz of not coming to the hospital to give the medical clerk the name and circumstances of the victim including the facts surrounding the victims death is very suspicious indeed and is contrary to the SOP of officers who bring victims to the hospital. Also the failure of all the accused to immediately report to the police investigator of Pasay City is quite unusual. In the same manner the acts of accused Neil Baluyot y Tabisora, Herminio Jose y Mozon and Richard Delos Trino y Sarcilla of leaving the IID office and cell which is the scene of the crime and then going to Bian and

to Atty. Augusto Jimenez is quite unusual for persons who professed innocence. Moreover, the doctrine is well settled that conspiracy need not be proved by direct evidence but may be proven through the series of acts done by each of the accused in pursuance of their common unlawful purpose. For collective responsibility among the accused to be established, it is sufficient that at the time of the aggression, all of them acted in concert, each doing his part to fulfill their common design to kill the victim. As borne out by the records, Gabornes positively identified and categorically pointed to appellants as the ones who conspired with one another to kill Romeleo on June 1, 1997. He narrated the incident in a clear and convincing manner. He testified on the degree of participation of each of the accused with regard to the killing of Romeleo inside the IIDNAIA detention cell in such a manner that only an unbiased eyewitness could narrate. Gabornes was not shown to have had any ill motives to testify falsely against the appellants. As correctly observed by both the trial court and the CA, the fact that Gabornes was previously arrested for being an unauthorized porter is not enough reason for him to falsely accuse appellants of a very grave offense. As we have already discussed, Gabornes testimony given before the National Bureau of Investigation (NBI) and the trial court was replete with details that only a person who witnessed such gruesome crime could narrate. Even during cross-examination, he remained steadfast in his account that the appellants were the ones who killed Romeleo. Also, both the trial court and the appellate court had several opportunities of taking a hard look at the records of the case considering the motions for reconsideration filed by the appellants. Both the CA and the RTC found beyond reasonable doubt that the appellants were indeed the authors of the crime. XPN TO RIAA (BY A PRIVY) Villanueva vs. Sps. Branoco Suit: recovery of possession (purchase of property derived through a donation mortis causa vs. purchase of property derived through a donation inter vivos) Nature of the admission: declaration; act Evidentiary issue: Alternatively, petitioner grounds his claim of ownership over the Property through his and Veres combined possession of the Property for more than ten years, counted from Veres purchase of the Property from Rodrigo in 1970 until petitioner initiated his suit in the trial court in February 1986. Petitioner anchors his contention on an

unfounded legal assumption. The ten year ordinary prescriptive period to acquire title through possession of real property in the concept of an owner requires uninterrupted possession coupled with just title and good faith. There is just title when the adverse claimant came into possession of the property through one of the modes recognized by law for the acquisition of ownership or other real rights, but the grantor was not the owner or could not transmit any right. Good faith, on the other hand, consists in the reasonable belief that the person from whom the possessor received the thing was the owner thereof, and could transmit his ownership. SC says: Although Vere and petitioner arguably had just title having successively acquired the Property through sale, neither was a good faith possessor. As Rodrigo herself disclosed in the Deed, Rodriguez already occupied and possessed the Property in the concept of an owner (como tag-iya) since 21 May 1962, nearly three years before Rodrigos donation in 3 May 1965 and seven years before Vere bought the Property from Rodrigo. This admission against interest binds Rodrigo and all those tracing title to the Property through her, including Vere and petitioner. Indeed, petitioners insistent claim that Rodriguez occupied the Property only in 1982, when she started paying taxes, finds no basis in the records. In short, when Vere bought the Property from Rodrigo in 1970, Rodriguez was in possession of the Property, a fact that prevented Vere from being a buyer in good faith. ADMISSION BY SILENCE US vs. Bay Suit: rape Nature of the admission: 1) Omission; 2) Act (walking-out twice) SC says: There is a direct conflict in the testimony as to whether the accused, when the complaint was made to the councilman of the barrio, did or did not admit his guilt, and this evidence is so contradictory that it would be difficult if not possible to make an express finding on this point. But whatever be the truth as to these alleged admissions of his guilt, the evidence leaves no room for doubt that neither at the moment when the party in the boat came upon him in company with his victim nor when he appeared before the councilman upon her complaint did he claim, as he does now, that her charge that he had assaulted her was a pure fabrication, invented for the purpose of wreaking vengeance upon him. There can be no possible doubt that he was present when the party on board the boat were attracted to

the place where she raised her outcry charging him with the assault, and that he was present later or when he presented her complaint to the councilman of the barrio. Under such circumstances, we are convinced that an innocent man would instantly and indignantly repudiate such a charge, and attempt there and then to establish his innocence, explaining how he came to be there present with the woman, and the conditions under which she had made the false charge. The witnesses called both for the prosecution and the defense go into considerable detail as to all that occurred at the time when the party on board the boat responded to the calls of the woman and immediately thereafter, and yet there is not the slightest indication in the evidence that there was on the part of the accused any such indignant denials and protests as would be expected from an innocent man suddenly confronted with such a charge under such circumstances. Indeed his conduct at that time was, to our minds, wholly at variance with that which might fairly be expected from him, granting the truth of his testimony and that of the other witnesses for the defense. People vs. Valero Suit: Murder Nature of the admission: Omission (by the grandfather of the children and by their own father) SC says: When Jaime allegedly learned from Pipe that the latter's sister was the source of the poisoned bread, the defendant was only at the gate of the Velascos near Jaime but he did not confront her. Moreover, when Ceferino Velasco made a sworn statement on February 25, 1969 or three (3) days after the poisoning of his children, he declared that he did not know who gave the poisoned bread to his children. But when he took the witness stand on July 23, 1975 or six years later, he declared that on that very morning of February 22, 1969, he learned from Pipe, when the latter was in the act of delivering the bread to the children, that the source of the bread was the defendant Lucila Valero. When confronted during the cross-examination with the previous affidavit, Ceferino Velasco admitted that he made the answers in the affidavit. This answer prompted the Court to remark: "There seems to be inconsistency". The inconsistency is on the very fact in issue, namely, the guilty participation of Lucila Valero. When further repeatedly asked by the defense counsel why Ceferino did not state in his affidavit that he learned that Lucila was the source of the poisoned bread, he gave

irresponsive and evasive answers. Obviously, Ceferino Velasco is a lying witness. If Ceferino Velasco really learned from Pipe that Lucila Valero poisoned his three children, he might have become violent. Surprisingly, he kept quiet. He did not confront Lucila Valero. CONFESSIONS People vs. Villarino Suit: rape with homicide Nature of the admission: extrajudicial confession Background: While waiting for a boat ride at 4:00 oclock in the morning, the police team took a coffee break. SPO4 Genoguin was momentarily left alone to guard the appellant. During this short period, the appellant voluntarily admitted to SPO4 Genoguin that he committed the crime charged. He also told SPO4 Genoguin that he could keep the pendant and bracelet if he would retrieve the t-shirt and throw it into the sea. SPO4 Genoguin rejected the appellants offer and reminded him of his right to a counsel and that everything the appellant said could be used against him in court. Unperturbed, the appellant reiterated his offer. When they boarded the motorboat, the appellant repeatedly offered to give SPO4 Genoguin P20,000.00 if he would throw the sando into the sea. However, the police officer ignored the offer and instead reported the matter to the Chief of Police of Almagro, SPO4 Basilio M. Yabao. Evidentiary issue: Is the extrajudicial confession admissible? SC says: Yes. In the instant case, appellant voluntarily confessed to raping and killing "AAA" to SPO4 Genoguin. He even offered to give the pieces of jewelry to the latter if his sando is thrown into the sea. The appellant did not deny this accusation nor assail its truthfulness. When appellant confessed to the crime, he was alone with SPO4 Genoguin, and no force or intimidation was employed against him. The confession was spontaneously made and not elicited through questioning. The trial court did not, therefore, err in holding that compliance with the constitutional procedure on custodial interrogation is not applicable in the instant case. In People v. Dy, it was held that: Contrary to the defense contention, the oral confession made by the Accused to Pat. Padilla that "he had shot a tourist" and that the gun he had used in shooting the victim was in his bar which he wanted surrendered to the Chief of Police is competent evidence against him. The declaration of an accused acknowledging his guilt of the offense charged may be given in evidence against him (Sec. 29, Rule 130, Rules of Court) What was told by

the Accused to Pat. Padilla was a spontaneous statement not elicited through questioning, but given in an ordinary manner. No written confession was sought to be presented in evidence as a result of formal custodial investigation. The Trial Court, therefore, cannot be held to have erred in holding that compliance with the constitutional procedure on custodial interrogation is not applicable in the instant case, as the defense alleges in its Error VII. People vs. Tuniaco Suit: Murder Nature of the admission: extrajudicial confession Evidentiary issue: Tuniaco alleges that he was uncounseled when he gave his confession. He also interposes torture as the reason for his execution of the confession. He objects to the admissibility of the said confession. SC says: Confession to be admissible must be a) voluntary; b) made with the assistance of a competent and independent counsel; c) express; and d) in writing. These requirements were met here. A lawyer, not working with or was not beholden to the police, Atty. Besinga, assisted accused Aleman during the custodial investigation. Officer Tabucon testified that he saw accused Aleman, before the taking of his statement, conversing with counsel at the police station. Atty. Besinga did not dispute this claim. There is no basis for the alleged torture. It is a settled rule that where the defendant did not present evidence of compulsion, where he did not institute any criminal or administrative action against his supposed intimidators, where no physical evidence of violence was presented, all these will be considered as indicating voluntariness. Here, although Aleman claimed that he bore torture marks on his head, he never brought this to the attention of his counsel, his relatives, or the prosecutor who administered his oath. The contention that the EC was uncounseled is belied by the fact that Aleman, joined by Atty. Besinga, signed a certification that the investigator sufficiently explained to him his constitutional rights and that he was still willing to give his statement. Further, Aleman asserts that he was lacking in education and so he did not fully realize the consequences of a confession. But as the CA said, no law or jurisprudence requires the police officer to ascertain the educational attainment of the accused. All that is needed is an effective communication between the interrogator and the suspect to the end that

the latter is able to understand his rights. This appears to have been done in this case. Moreover, as the lower court noted, it is improbable that the police fabricated Alemans confession and just forced him to sign it. The confession has details that only the person who committed the crime could have possibly known. What is more, accused Datulaytas confession corroborate that of Aleman in important details. Under the doctrine of interlocking confessions, such corroboration is circumstantial evidence against the person implicated in it. People vs. Lauga Suit: qualified rape Evidentiary issue: Appellant argues that even if he confessed to Moises Boy Banting, a "bantay bayan," the confession was inadmissible in evidence because he was not assisted by a lawyer and there was no valid waiver of such requirement. SC says: The case of People v. Malngan is the authority on the scope of the Miranda doctrine provided for under Article III, Section 12(1) and (3) of the Constitution. In Malngan, appellant questioned the admissibility of her extrajudicial confessions given to the barangay chairman and a neighbor of the private complainant. This Court distinguished. Thus: Arguably, the barangay tanods, including the Barangay Chairman, in this particular instance, may be deemed as law enforcement officer for purposes of applying Article III, Section 12(1) and (3), of the Constitution. [But such does] not automatically lead to her acquittal. x x x [T]he constitutional safeguards during custodial investigations do not apply to those not elicited through questioning by the police or their agents but given in an ordinary manner whereby the accused verbally admits x x x as x x x in the case at bar when accused-appellant admitted to Mercedita Mendoza, one of the neighbors x x x [of the private complainant]. Following the rationale behind the ruling in Malngan, this Court needs to ascertain whether or not a "bantay bayan" may be deemed a law enforcement officer within the contemplation of Article III, Section 12 of the Constitution. In People of the Philippines v. Buendia, this Court had the occasion to mention the nature of a "bantay bayan," that is, "a group of male residents living in [the] area organized for the purpose of keeping peace in their community[,which is] an accredited auxiliary of the x x x PNP." Also, it may be worthy to consider that pursuant to Section 1(g) of Executive Order No. 309, a Peace and Order Committee in each barangay shall be organized "to serve as implementing

arm of the City/Municipal Peace and Order Council at the Barangay level." The composition of the Committee includes, among others: (1) the Punong Barangay as Chairman; (2) the Chairman of the Sangguniang Kabataan; (3) a Member of the Lupon Tagapamayapa; (4) a Barangay Tanod; and (5) at least three (3) Members of existing Barangay-Based Anti-Crime or neighborhood Watch Groups or a Non Government Organization Representative well-known in his community. This Court is, therefore, convinced that barangay-based volunteer organizations in the nature of watch groups, as in the case of the "bantay bayan," are recognized by the local government unit to perform functions relating to the preservation of peace and order at the barangay level. Thus, without ruling on the legality of the actions taken by Moises Boy Banting, and the specific scope of duties and responsibilities delegated to a "bantay bayan," particularly on the authority to conduct a custodial investigation, any inquiry he makes has the color of a state-related function and objective insofar as the entitlement of a suspect to his constitutional rights provided for under Article III, Section 12 of the Constitution, otherwise known as the Miranda Rights, is concerned. Navallo vs. Sandiganbayan Evidentiary issue: Who is a law enforcement officer? SC says: Well-settled is the rule that the constitutional rights under Section 12, Article III, of the 1987 Constitution are invocable only when the accused is under "custodial investigation," or is "in custody investigation," which we have since defined as any "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." A person under a normal audit examination is not under custodial investigation. An audit examiner himself can hardly be deemed to be the law enforcement officer contemplated in the above rule. RES INTER ALIOS ACTA (PREVIOUS CONDUCT) Bank of Commerce vs. Manalo Suit: sale of real property Evidentiary issue: The rights under the terms of payment of the balance of the purchase price of the lots under the contracts of conditional sale executed by XEI and the other lot buyers should also be applied to Manalo on the ground

that Bank of Commerce established such terms as a business custom. SC says: Manalo failed to allege in their complaint that the terms of payment of the P278,448.00 to be incorporated in the "corresponding contract of conditional sale" were those contained in the contracts of conditional sale executed by XEI and Soller, Aguila and Roque. They likewise failed to prove such allegation in this Court. The bare fact that other lot buyers were allowed to pay the balance of the purchase price of lots purchased by them in 120 or 180 monthly installments does not constitute evidence that XEI also agreed to give the respondents the same mode and timeline of payment of the P278,448.00. Under Section 34, Rule 130 of the RoC, evidence that one did a certain thing at one time is not admissible to prove that he did the same or similar thing at another time, although such evidence may be received to prove habit, usage, pattern of conduct or the intent of the parties. However, Manalo failed to allege and prove, in the trial court, that, as a matter of business usage, habit or pattern of conduct, XEI granted all lot buyers the right to pay the balance of the purchase price in installments of 120 months of fixed amounts with precomputed interests, and that XEI and the respondents had intended to adopt such terms of payment relative to the sale of the two lots in question. Indeed, respondents adduced in evidence the three contracts of conditional sale executed by XEI and other lot buyers merely to prove that XEI continued to sell lots in the subdivision as sales agent of OBM after it acquired said lots, not to prove usage, habit or pattern of conduct on the part of XEI to require all lot buyers in the subdivision to pay the balance of the purchase price of said lots in 120 months. It further failed to prive that the trial court admitted the said deeds as part of the testimony of respondent Manalo, Jr. Habit, custom, usage or pattern of conduct must be proved like any other facts. Courts must contend with the caveat that, before they admit evidence of usage, of habit or pattern of conduct, the offering party must establish the degree of specificity and frequency of uniform response that ensures more than a mere tendency to act in a given manner but rather, conduct that is semiautomatic in nature. The offering party must allege and prove specific, repetitive conduct that might constitute evidence of habit. The examples offered in evidence to prove habit, or pattern of evidence must be numerous enough to base on inference of systematic conduct. Mere similarity of contracts does not present

the kind of sufficiently similar circumstances to outweigh the danger of prejudice and confusion. In determining whether the examples are numerous enough, and sufficiently regular, the key criteria are 1) adequacy of sampling and 2) uniformity of response. After all, habit means a course of behavior of a person regularly represented in like circumstances. It is only when examples offered to establish pattern of conduct or habit are numerous enough to lose an inference of systematic conduct that examples are admissible. The key criteria are adequacy of sampling and uniformity of response or ratio of reaction to situations. There are cases where the course of dealings to be followed is defined by the usage of a particular trade or market or profession. Usage furnishes a standard for the measurement of many of the rights and acts of men. It is also well-settled that parties who contract on a subject matter concerning which known usage prevail, incorporate such usage by implication into their agreement, if nothing is said to be contrary. However, the respondents inexplicably failed to adduce sufficient competent evidence to prove usage, habit or pattern of conduct of XEI to justify the use of the terms of payment in the contracts of the other lot buyers, and thus grant respondents the right to pay the P278,448.00 in 120 months, presumably because of respondents belief that the manner of payment of the said amount is not an essential element of a contract to sell. There is no evidence that XEI or OBM and all the lot buyers in the subdivision, including lot buyers who pay part of the downpayment of the property purchased by them in the form of service, had executed contracts of conditional sale containing uniform terms and conditions. Moreover, under the terms of the contracts of conditional sale executed by XEI and three lot buyers in the subdivision, XEI agreed to grant 120 months within which to pay the balance of the purchase price to two of them, but granted one 180 months to do so. There is no evidence on record that XEI granted the same right to buyers of two or more lots. Abay, Jr. vs. People Evidentiary issue: Petitioners further aver that Aban testified on a robbery which took place on February 22, 1994, not February 17, 1994. SC says: Granted that Ramoncito Aban in fact testified on the details of the robbery which happened on February 22, 1994, it is also worth stressing as part of the prosecution evidence that Aban testified that malefactors

used the same route and strategy in the perpetration of the robberies which happened on four occasions -- February 11, 13, 17 and 22, 1994. What happened on February 22 was but a replication, so to speak, of the robbery scenarios earlier perpetrated by the same gang on three previous dates. It is very clear, however, that Aban, on the witness stand was testifying specifically also about the offense that took place on February 17 in the Expressway, Bian, Laguna. People vs. Larranaga Suit: rape; murder Evidentiary issue: previous conduct of Larranaga indicative of specific intent to commit rape SC says: At this juncture, it bears mentioning that this case is not the first time that Larraaga was charged with or complained of pruriently assaulting young female students in Cebu. Months before the abduction of Marijoy and Jackie, the parents of a certain Rochelle Virtucio, complained about Larraagas attempt to snatch their young daughter and drag her in a black, stylish Honda Civic. It happened just near the gate of Rochelles school, thus, showing his impudence. The presence of such complaint in the record of this case certainly does not enhance Larraagas chance of securing an acquittal. NOTE: Wrongful application of the rule. Specific intent cannot hinge on just 1 instance of previous conduct. In this case, its dangerous to conclude that a person who tried to abduct a girl once will have the intent to commit rape and murder. HEARSAY Sps. Viloria vs. Continental Suit: breach of contract; sum of money and damages Evidentiary issue: CAI argued that Spouses Vilorias sole basis to claim that the price at which CAI was willing to issue the new tickets is unconscionable is a piece of hearsay evidence an advertisement appearing on a newspaper stating that airfares from Manila to Los Angeles or San Francisco cost US$818.00. Also, the advertisement pertains to airfares in September 2000 and not to airfares prevailing in June 1999, the time when Fernando asked CAI to apply the value of the subject tickets for the purchase of a new one. CAI likewise argued that it did not undertake to protect Spouses Viloria from any changes or fluctuations in the prices of airline tickets and its only obligation was to apply the value of the subject tickets to the purchase of the newly issued tickets.

SC says: There is no showing that Spouses Viloria were discriminated against in bad faith by being charged with a higher rate. The only evidence the petitioners presented to prove that the price of a round trip ticket between Manila and Los Angeles at that time was only $856.00 is a newspaper advertisement for another airline company, which is inadmissible for being hearsay evidence, twice removed. Newspaper clippings are hearsay if they were offered for the purpose of proving the truth of the matter alleged. As ruled in Feria v. Court of Appeals,: [N]ewspaper articles amount to hearsay evidence, twice removed and are therefore not only inadmissible but without any probative value at all whether objected to or not, unless offered for a purpose other than proving the truth of the matter asserted. In this case, the news article is admissible only as evidence that such publication does exist with the tenor of the news therein stated. People vs. Cusi Background: During the trial, and while Sgt. Lucio Bano of the Police Force of Digos, Davao was testifying as a prosecution witness regarding the extrajudicial confession made to him by the accused Arcadio Puesca, he said that the latter, aside from admitting his participation in the commission of the offense charged, revealed that other persons conspired with him to commit the offense, mentioning the name of each and every one of them. Following up this testimony, the prosecuting officer asked the witness to mention in court the names of Puesca's alleged co-conspirators. Evidentiary issue: Counsel for the accused Macalinao, Gustilo and Dairo objected to this, upon the ground that whatever the witness would say would be hearsay as far as his clients were concerned. The respondent judge resolved the objection directing the witness to answer the question but without mentioning or giving the names of the accused who had interposed the objection. In other words, the witness was allowed to answer the question and name his co-conspirators except those who had raised the objection. SC says: The question involved herein is purely one of evidence. There is no question that hearsay evidence, if timely objected to, may not be admitted. But while 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 of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement.

In the present case, the purpose of the prosecuting officer, as manifested by him in the discussions below, is nothing more than to establish the fact that the accused Puesca had mentioned to Sgt. Bano the names of those who conspired with him to commit the offense charged, without claiming that Puesca's statement or the answer to be given by Sgt. Bano would be competent and admissible evidence to show that the persons so named really conspired with Puesca. Estrada vs. Desierto Evidence in dispute: The Angara Diary (threepart article published in the Philippine Daily Inquirer) Evidentiary issue: The use of the Angara Diary to determine the state of mind of the petitioner on the issue of his resignation violates the rule against the admission of hearsay evidence. SC says: 1) The Angara diary is not an out of court statement. The Angara Diary is part of the pleadings in the cases at bar. Petitioner cannot complain he was not furnished a copy of the Angara Diary. Nor can he feign surprise on its use. To be sure, it was frequently referred to by the parties in their pleadings. The three parts of the Diary published in the PDI from February 4-6, 2001 were attached as Annexes A-C, respectively, of the Memorandum of private respondents Romeo T. Capulong, et al., dated February 20, 2001. The second and third parts of the Diary were earlier also attached as Annexes 12 and 13 of the Comment of private respondents Capulong, et al., dated February 12, 2001. In fact, petitioner even cited in his Second Supplemental Reply Memorandum both the second part of the diary, published on February 5, 2001, and the third part, published on February 6, 2001. It was also extensively used by Secretary of Justice Hernando Perez in his oral arguments. Thus, petitioner had all the opportunity to contest the use of the Diary but unfortunately failed to do so. 2) Even assuming arguendo that the Angara Diary was an out of court statement, still its use 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. There are three reasons for excluding hearsay evidence: (1) absence of cross examination; (2) absence of demeanor evidence, and (3) absence of the oath. Not

3)

4)

at all hearsay evidence, however, is inadmissible as evidence. Over the years, a huge body of hearsay evidence has been admitted by courts due to their relevance, trustworthiness and necessity. A complete analysis of any hearsay problem requires that we further determine whether the hearsay evidence is one exempted from the rules of exclusion. A more circumspect examination of our rules of exclusion will show that they do not cover admissions of a party and the Angara Diary belongs to this class. Section 26 of Rule 130 provides that the act, declaration or omission of a party as to a relevant fact may be given in evidence against him. It has long been settled that these admissions are admissible even if they are hearsay. Retired Justice Oscar Herrera of the Court of Appeals cites the various authorities who explain why admissions are not covered by the hearsay rule: Wigmore, after pointing out that the partys declaration has generally the probative value of any other persons asssertion, argued that it had a special value when offered against the party. In that circumstance, the admission discredits the partys statement with the present claim asserted in pleadings and testimony, much like a witness impeached by contradictory statements. Moreover, he continued, admissions pass the gauntlet of the hearsay rule, which requires that extrajudicial assertions be excluded if there was no opportunity for the opponent to cross-examine because it is the opponents own declaration, and he does not need to cross examine himself. Wigmore then added that the Hearsay Rule is satisfied since the party now as opponent has the full opportunity to put himself on the stand and explain his former assertion. According to Morgan: The admissibility of an admission made by the party himself rests not upon any notion that the circumstances in which it was made furnish the trier means of evaluating it fairly, but upon the adversary theory of litigation. A party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of an oath. A mans acts, conduct, and declaration, wherever made, if voluntary, are admissible against him, for the reason that it is fair to presume that they correspond with the truth, and it is his fault

if they do not. The Angara Diary contains direct statements of petitioner which can be categorized as admissions of a party: his proposal for a snap presidential election where he would not be a candidate; his statement that he only wanted the five-day period promised by Chief of Staff Angelo Reyes; his statements that he would leave by Monday if the second envelope would be opened by Monday and Pagod na pagod na ako. Ayoko na, masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I dont want any more of this its too painful. Im tired of the red tape, the bureaucracy, the intrigue). I just want to clear my name, then I will go. We noted that days before, petitioner had repeatedly declared that he would not resign despite the growing clamor for his resignation. The reason for the meltdown is obvious - - - his will not to resign has wilted. 5) Moreover, the ban on hearsay evidence does not cover independently relevant statements. These are statements which are relevant independently of whether they are true or not. They belong to two (2) classes: (1) those statements which are the very facts in issue, and (2) those statements which are circumstantial evidence of the facts in issue. The second class includes the following: a. Statement of a person showing 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 illness and the like; c. Statements of a person from which an inference may be made as to the state of mind of another, that is, the knowledge, belief, motive, good or bad faith, etc. of the latter; d. Statements which may identify the date, place and person in question; and e. Statements showing the lack of credibility of a witness. Again, Jones tells us why these independently relevant statements are not covered by the prohibition against hearsay evidence: 1088. Mental State or Condition Proof of Knowledge.- There are a number of common issues, forming a general class, in proof of which hearsay is so obviously necessary that it is not customary to refer to its admissibility as by virtue of any exception to

the general exclusionary rule. Admissibility, in such cases, is as of course. For example, where any mental state or condition is in issue, such as motive, malice, knowledge, intent, assent or dissent, unless direct testimony of the particular person is to be taken as conclusive of his state of mind, the only method of proof available is testimony of others to the acts or statements of such person. Where his acts or statements are against his interest, they are plainly admissible within the rules hereinabove announced as to admissions against interest. And even where not against interest, if they are so closely connected with the event or transaction in issue as to constitute one of the very facts in controversy, they become admissible of necessity. As aforediscussed, The Angara Diary contains statements of the petitioner which reflect his state of mind and are circumstantial evidence of his intent to resign. It also contains statements of Secretary Angara from which we can reasonably deduce petitioners intent to resign. They are admissible and they are not covered by the rule on hearsay. This has long been a quiet area of our law on evidence and petitioners attempt to foment a belated tempest cannot receive our imprimatur. Cornejo vs. Sandiganbayan Suit: Estafa Evidentiary issue: Petitioner's objects to the admissibility of Exhibit B, the certification issued by Pasay City Engineer Jesus Reyna to the effect that petitioner was not authorized to inspect and investigate privately-owned buildings SC says: There is no reversible error, much less grave abuse of discretion on the part of the trial court in admitting the same. It must be noted that Exhibit B was not presented as an independent evidence to prove want of authority of petitioner to inspect and investigate privately-owned buildings, but merely as part of the testimony of-the complainant that such certification was issued in her presence and the declaration of Assistant Pasay City Engineer Ceasar Contreras that the signature appearing thereon was that of Engineer Reyna. Where the statement or writings attributed to a person who is not on the witness stand are being offered not to prove the truth of the facts stated therein but only to prove that such statements were actually made or such writings were executed, such evidence is not covered by the hearsay rule. Philippine Reality vs. Firematic

Suit: collection for unpaid balance on a construction contract Evidence presented: Petitioner justifies nonpayment on the ground that Firematic committed breach of contract because the latter did not follow the terms agreed upon. Petitioner insists that the fire pumps supplied and installed by Firematic are "not of Peerless origin" because of the following: (1) Firematic failed to present proofs of the genuineness of the pumps; (2) Firematic failed to answer petitioners letters requiring it to present the aforesaid proofs, thus, estoppel by silence applies; and (3) the manufacturer of the Peerless pumps verbally informed Connel Bros. that the subject fire pumps "are not of Peerless origin." Evidentiary issue: Firematic claims that the evidence presented by Philippine realty to prove that the fire pumps were not genuine is inadmissible in evidence for being hearsay. SC says: Yes. Petitioner relied on the principle of estoppel by silence, as well as on Letter No. L/93-272 and Letter No. L/94-043 of Connel Bros. to prove that the fire pumps, which respondent supplied and installed, were not genuine. However, petitioner failed to present the signatory of the letters (E.L. Sta. Maria, Jr.) to testify on the veracity of the contents of the letters; thus, respondent was not given the opportunity to cross-examine him. It also appears that the person who signed the letters had no personal knowledge of the facts stated therein, as he claimed that he had been "verbally advised" that the manufacturer of Peerless pumps never had direct negotiation with Technotrade, and as such, the latter is not a dealer of the pumps. Well-entrenched is the rule that a private certification is hearsay where the person who issued the same was never presented as a witness. The same is true of letters. While hearsay evidence may be admitted because of lack of objection by the adverse partys counsel, it is nonetheless without probative value. Stated differently, the declarants of written statements pertaining to disputed facts must be presented at the trial for crossexamination. The lack of objection may make an incompetent evidence admissible, but admissibility of evidence should not be equated with weight of evidence. Indeed, hearsay evidence whether objected to or not has no probative value. NPC vs. Diato-Bernal Suit: expropriation proceedings Background: With the first phase of the expropriation proceedings having been laid to

rest by the partial compromise agreement, the RTC proceeded to determine the amount of just compensation. To assist in the evaluation of the fair market value of the subject property, the RTC appointed 3 commissioners. The commissioners submitted their report to the RTC on September 14, 1999. In the main, they recommended that the just compensation due from NAPOCOR be pegged at P10,000.00 per sq m, based on the propertys fair market value. Evidentiary issue: NAPOCOR filed an Opposition to the Commissioners Valuation Report, asserting that it was not substantiated by any official documents or registered deeds of sale of the subject propertys neighboring lots. NAPOCOR invoked our ruling in Rep. of the Phil. v. Santos, wherein we held that a commissioners report that is not based on any documentary evidence is hearsay and should be disregarded by the court. SC: It is evident that the conclusions of the Commissioners are highly speculative and devoid of any actual and reliable basis. First, the market values of the subject propertys neighboring lots were mere estimates and unsupported by any corroborative documents, such as sworn declarations of realtors in the area concerned, tax declarations or zonal valuation from the Bureau of Internal Revenue for the contiguous residential dwellings and commercial establishments. The report also failed to elaborate on how and by how much the community centers and convenience facilities enhanced the value of respondents property. Finally, the market sales data and price listings alluded to in the report were not even appended thereto. As correctly invoked by NAPOCOR, a commissioners report of land prices which is not based on any documentary evidence is manifestly hearsay and should be disregarded by the court. The trial court should have been more circumspect in its evaluation of just compensation due the property owner, considering that eminent domain cases involve the expenditure of public funds.