Vous êtes sur la page 1sur 34

EVIDENCE

SPECIAL CIVIL ACTIONS

Professor: Justice Maria Cristina J. Cornejo

Transcribers:

Marc Roby de Chavez (MARX)


Jean Marionne Bermudez (JAM)
Kristine Tendencia (TIN)

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


11. Object Evidence
12. Documentary Evidence
13. Testimonial Evidence

REM2_1
RULE 128
Define Evidence
SECTION 1. Evidence defined. Evidence is the means,
sanctioned by these rules, of ascertaining in a judicial proceeding
the truth respecting a matter of fact.

When you say evidence is the means, what do you mean?


It is the tool by which you are to ascertain the truth
respecting a matter of fact.
What is that matter of fact that is contemplated in the
definition of evidence?
The fact in issue
What is the fact in issue?
The fact in issue is the subject matter of the
controversy.
Now you are able to establish the truth with respect
to that subject matter of the controversy via
evidence. So evidence is the tool, the means by
which you are able to establish the truth respecting
the subject matter of the controversy.
So how do you explain the rule that evidence signifies the
relation between two facts? What are these two facts?
Factum Probans
The material that you are
going to use to establish the
factum probandum, which is
the proposition or the theory
that is sought (to be
established.)

Factum Probandum
The proposition or theory
that is sought to be
established.

In relation to the rule that evidence signifies the relation


between two facts, how do you explain this?
It is by means of the material, the factum probans,
that you are able to establish the factum
probandum, which is the theory in every given case.
What are the different kinds of evidence?
1. Direct Evidence
2. Circumstantial Evidence
3. Primary Evidence
4. Secondary Evidence
5. Positive Evidence
6. Negative Evidence
7. Corroborative Evidence
8. Cumulative Evidence
9. Prima Facie Evidence
10. Conclusive Evidence

How do you distinguish Direct from Circumstantial Evidence?


Direct Evidence is that which proves the fact in
dispute without the aid of any inference or
presumption, while Circumstantial Evidence is the
proof of facts from which, taken collectively, the
existence of a particular fact in dispute may be
inferred as a necessary or probable consequence.
What is the basic difference?
Basically, the difference between Direct and
Circumstantial Evidence is in Circumstantial, you still
have to draw an inference in order to establish.
What could be a classic example of direct evidence?
Eye witness account, I saw him shoot him. You
dont need to draw an inference of guilt kasi direct
nga e.
As distinguished from circumstantial, you have to draw an
inference but from where?
--How do you distinguish Positive from Negative evidence?
Positive evidence when the witness affirms that a
fact did or did not occur.
Negative Evidence when the witness states that he
did not see or know the occurrence of the fact.
How do you distinguish Conclusive Evidence from Prima Facie
Evidence?
Prima Facie evidence, standing alone and
uncontradicted, suffices for the proof of a particular
fact.
(Transcribers Note: From Lantin notes but according to J.C. this is the rule with
respect to the weight of Prima Facie Evidence and not the definition.)

Conclusive evidence that which the law does not


allow to be contradicted.
What would comprise Prima Facie Evidence?
Because that is the rule, its disputable but if it is not
disputed, it will suffice.
It could sustain a proposition. But what would
comprise Prima Facie Evidence? Cos prima facie, that
could be in relation to the determination of probable
cause, diba? Disputable yan e.

1|P a g e

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


In other words, how do you define Prima Facie Evidence?
Prima facie is a Latin expression meaning on its first
appearance, or at first sight.
Sec. 2. Scope. The rules of evidence shall be the same in all courts and in
all trials and hearings, except as otherwise provided by law or these rules.
Sec. 3. Admissibility of evidence. Evidence is admissible when it is relevant
to the issue and is not excluded by the law of these rules.

What are the requisites for the admissibility of evidence?


It must be relevant and must be competent.
Sec. 4. Relevancy; collateral matters. Evidence must have such a relation
to the fact in issue as to induce belief in its existence or non-existence.
Evidence on collateral matters shall not be allowed, except when it tends in
any reasonable degree to establish the probability or improbability of the
fact in issue.

What is relevancy? When is evidence relevant?


It is relevant when it has such a relation to the fact in
issue as to induce belief in its existence or nonexistence.
When is evidence competent?
It is competent when it is not excluded by law or by
the Rules on Evidence.
What are collateral matters?
Those which are outside the controversy or are not
directly connected with the principal matter or issue
in dispute, as indicated in the pleadings of the
parties.
Can you illustrate?
Person Reciting (PR): As when a person, who
happens to be a security guard, killed someone
through the use of a gun, the testimony of the
witness that the accused is a security guard is a
collateral matter.
Do you need to present evidence on collateral matters?
General rule: No.
Exception: when it tends in any reasonable degree
to establish the probability or improbability of the
fact in issue.
In any reasonable degree, can you illustrate?
(PR): In the given example, the victim was killed with
the use of a gun, the accuseds being a security
guard may or may not establish his guilt.

person testifying has no personal knowledge of the


subject matter of his testimony.
Is hearsay admissible?
No, it is not because it is not competent evidence. It
is excluded by the Rules.
But can you say that hearsay evidence is relevant?
Yes.
When can we say that hearsay is relevant?
Hearsay evidence is relevant when it has a relation
to establish the existence or non existence of the
fact in issue.
For example, in a prosecution for defamation against X, the
witness said according to X, Y is a drug lord. Is that evidence
relevant for the fact in issue? Is the witness testimony
hearsay?
Yes.
So basically the testimony is inadmissible?
Yes.
But is the testimony relevant to the fact in issue?
Yes.
But why is it inadmissible?
Because it is incompetent.
Thats my point: Any piece of evidence for purposes
of admissibility, it must be both relevant and
competent. It is not enough that it is relevant. It
must be, at the same time, competent.
Now we say that hearsay evidence is incompetent.
Why do we say that it is incompetent?
Because it is expressly excluded by the
Rules.
Why is it excluded by the Rules?
Because the person testifying has no
personal knowledge of the subject matter
of his testimony.
Are the rules on evidence applicable in Administrative
proceedings?
General Rule: No.
Exception: If it is applied in a suppletory character.

Hearsay evidence, what is hearsay evidence?


It is the kind of evidence offered without the
personal knowledge of the person testifying. The
2|P a g e

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


8.

Are the rules on evidence the same in all courts?


General Rule: yes
Exception: Unless otherwise provided by law or the
rules.

In relation to this, read the case of Amsterdam Holdings vs.


DOT (ZTE case), 2009

RULE 129
SECTION 1. Judicial notice, when mandatory. A court shall take judicial
notice, without the introduction of evidence, of the existence and territorial
extent of states, their political history, forms of government and symbols of
nationality, the law of nations, the admiralty and maritime courts of the
world and their seals, the political constitution and history of the Philippines,
the official acts of legislative, executive and judicial departments of the
Philippines, the laws of nature, the measure of time, and the geographical
divisions.

What is judicial notice?


It is the cognizance by the court of matters without
need of introducing proof.
Why do you mean by that?
It means that once the court takes judicial notice of a
particular fact, you do not need to prove it anymore.
If the court announces that I am taking judicial
notice of this particular fact, tapos na. You dont
need to introduce evidence anymore because the
court has taken judicial notice of that particular fact.
What are the two kinds of Judicial notice?
1. Mandatory Judicial Notice; and
2. Discretionary Judicial Notice

What are the matters subject of mandatory judicial notice?


Rule 129, Section 1. Memorize.

7.

What is discretionary judicial notice?


Those are matters which the court may take judicial
notice of.
What are the subject matters of discretionary judicial notice?
1. Facts which are of public knowledge;
2. Facts capable of unquestionable demonstration; and
3. Facts which are ought to be known to judges by
reason of their judicial functions.
What do you mean by matters capable of unquestionable
demonstration?
These are matters with verifiable sources of
accuracy.
Pwede silang ma-prove by verifiable sources of
accuracy. Meron silang sources with which to verify
the truth of this, the accuracy of this, for the court to
take judicial notice.
How about the third one?
Matters which are ought to be known to judges by
reason of their judicial functions.

What is mandatory judicial notice? Mandatory on whose


part?
It is mandatory on the part of the court. They are the
particular facts which the court must take judicial
notice. The court need not set it for hearing for the
court to determine whether it should be taken
judicial notice of. The court has no discretion but to
take judicial notice of it.

1.
2.
3.
4.
5.
6.

The official acts of the legislative, executive and


judicial departments of the Philippines;
9. The laws of nature;
10. The measure of time; and
11. The geographical divisions.

The existence and territorial extent of states;


Their political history;
Forms of government and
symbols of nationality;
Law of nations
Admiralty and maritime courts of the world and their
seals;
The political constitution and history of the
Philippines;
3|P a g e

How do you illustrate that?


Factual yan e, for example, in a prosecution for
concubinage. Subsequent yan. The judge, while
malling, sees his kumpare with another woman who
is not his kumare. Subsequent prosecution for
concubinage, can the judge take cognizance or
judicial notice of the fact that in one occasion, to
prove the case for concubinage, that he saw his
kumpare with another woman who is not his
kumare?
No, because it is not known to him by
reason of his judicial function.
Sec. 2. Judicial notice, when discretionary. A court may take judicial notice
of matters which are of public knowledge, or are capable to unquestionable
demonstration, or ought to be known to judges because of their judicial
functions.

If it is discretionary judicial notice, do you need a hearing


before the court can take judicial notice of that matter?
Yes.

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


What is the purpose of the hearing?
To determine whether it is proper for the court to
take judicial notice.
What happens during the hearing?
Who initiates the hearing?
It may be upon the initiative of the court or upon
motion of the party.
If it is upon the initiative, how is the initiative done by the
court to set the case for hearing on the matter to be taken
judicial notice?
The court will announce to the parties its intention
to take judicial notice of this particular fact and then
set it for hearing.
How will the court determine?
The court will allow the parties to argue for or
against the propriety of the court taking judicial
notice of that particular fact.
Can there be hearing on the matters to be taken judicial
notice of if the case is already on appeal?
Yes, but on the condition that the matter is decisive
of a material issue in the case or on appeal.
Can you illustrate?
For example in a criminal case on appeal, heres an
accused convicted of a violation of a particular law,
on appeal the lawyer makes a research and
discovers that the law in which his client is convicted
has already been repealed even before his
conviction, can he ask that the court take judicial
notice of such fact the repeal of the law?
Yes, because the repeal of the law is
decisive to the material issue in the case on
appeal.
Why is it decisive to the material issue?
Because if it is absolute repeal of the law, then the
crime is obliterated.
REM2_2
Sec. 4. Judicial admissions. An admission, verbal or written, made by the
party in the course of the proceedings in the same case, does not require
proof. The admission may be contradicted only by showing that it was made
through palpable mistake or that no such admission was made.

State the rule on judicial admissions


Judicial admissions refer to statements made
whether verbal or written in the course of a
proceeding and does not require proof however
4|P a g e

there are exceptions first when there is palpable


mistake and there is no such statement made
It does not require proof, when is a judicial admission made
orally, what course of the proceedings?
During arraignment, when he pleads guilty, it is
made in a proceeding in one case which is a criminal
case
what else? When can a judicial admission be orally made?
During the pre-trial
Which part of the pre-trial?
During the stipulation of facts
During the stipulation of facts there is a proposal for
a stipulation from the other party, the court says
admitted or denied? Admitted. That is a judicial
admission made orally in a court proceeding.
When is there a written judicial admission?
When it is contained in a pleading
If the pleading containing the admission is filed in court, what
is the nature of such admission?
Judicial admission
if that pleading containing the admission is not filed in court
but filed in the filing cabinet, what is the nature of such
admission?
Extrajudicial admission
Now if the judicial admission contained in a pleading is filed in
court, what would be the effect of that judicial admission on
the party making?
He cannot contradict such admission
it conclusively binds that person making the
admission
If an admission that is contained in a pleading that is not filed
in court but filed in the filing cabinet or drawer, what is the
nature of that admission?
Extrajudicial
But if the admission is made in the course of a proceeding and
it is contained in pleading which is filed in court, what is the
nature?
It is a judicial admission.

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


if that judicial admission made in a pleading which is filed in
court is now offered as evidence in another judicial
proceeding, what would be the nature of such admission?
It becomes now an extrajudicial admission
Why does it become an extrajudicial admission?
Because it is not offered in the course of the
proceeding where the admission was made
the rule is it is judicial if it is made in the course of
the proceedings in one case but even if is judicial
initially, while if it is introduced in evidence even in
another judicial proceeding with respect to that
second judicial proceeding it now becomes an
extrajudicial admission.
Now if it is a judicial admission what is the effect again?
It is conclusive as to the one who made the
admission
It cannot be rebutted does it need to be proved?
No
But with respect to the admission that it offered in evidence in
another judicial proceeding that becomes an extrajudicial
admission, what is the requirement for the purpose of its
admissibility? For it to be admissible as evidence in that
particular case, what needs to be done?
it has to be proved
If the admission is contained in a pleading that is filed in court
that is judicial admission, what if the admission is contained
in a motion that is filed in court, what is the effect of that
admission? Pleading and motion are different. How do you
distinguish a pleading from a motion?
A motion is any written application for relief other
than a pleading; a pleading is a written statement of
a partys claims or defenses
If it is an admission that is contained in a pleading and is filed
in court it is a judicial admission, but if it is an admission that
is contained not in a pleading but in a mere motion and filed
in court, what is the nature of such admission?
It is a judicial admission because the law says oral or
written, it is contained in the written admission in
other form of a written admission
with respect to an extrajudicial admission and extrajudicial
confession what do you understand by these? Extrajudicial
admission?
Extra-judicial admission - an admission made
outside the court proceedings, an admission outside
a judicial proceeding

5|P a g e

An extrajudicial admission before is said to be admissible


would have to be proved, now state the rule with respect to
extrajudicial confession with respect to its binding effect
Extrajudicial admission should be proven before the
court before it can bind the person making the
admission
With respect to the binding effect on person making the
admission, can the extrajudicial admission of one person bind
another person or prejudice or affect another person state the
rule
Res inter alios acta rule
state the res inter alios acta rule
Sec. 28. Admission by third party. The rights of a party cannot
be prejudiced by an act, declaration, or omission of another,
except as hereinafter provided. (Rule 130)

What does it mean?


in other words, whatever I say, whatever i do, it
binds me alone, it will not bind anybody, it will not
prejudice anybody its that simple, it binds me alone,
it will not bind or prejudice anybody.
What do you understand by the rule?
when a person admits something, that admission
will be binding on him alone, it will not bind any
other person
Thats part one, whats part two of the res inter alios acta
rule, what is the part 2?
Section 34. Similar acts as evidence. Evidence that one did or
did not do a certain thing at one time is not admissible to prove
that he did or did not do the same or similar thing at another
time; but it may be received to prove a specific intent or
knowledge; identity, plan, system, scheme, habit, custom or
usage, and the like. (Rule 130)

part two of the rule states that a persons act at one


time cannot be received in evidence that a person
did or did not do a certain thing at another time but
only to prove the intent, habit, custom or usage, and
the like
In short, evidence of what?
The persons act cannot be used to prove that he
committed the same act at some other time, unless
it is only to prove that such person has the habit of
doing such things or that he _________
What are the exceptions to the first part?
Sec. 29. Admission by co-partner or agent. The act or
declaration of a partner or agent of the party within the scope of
his authority and during the existence of the partnership or
agency, may be given in evidence against such party after the
partnership or agency is shown by evidence other than such act or
declaration. The same rule applies to the act or declaration of a

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


joint owner, joint debtor, or other person jointly interested with
the party.
Sec. 30. Admission by conspirator. The act or declaration of a
conspirator relating to the conspiracy and during its existence,
may be given in evidence against the co-conspirator after the
conspiracy is shown by evidence other than such act of
declaration.
Sec. 31. Admission by privies. Where one derives title to
property from another, the act, declaration, or omission of the
latter, while holding the title, in relation to the property, is
evidence against the former.

What do you understand by these exceptions?


With respect to admission by privies, in this case,
when a person derives title from another person, the
indication is that the person from whom he derives
title will be binding upon him
Under these exceptions,the rule is What I say what I do will
bind me alone but under the exceptions What I do what I
say may bind other persons
What is the common denominator for my statement, my act,
declaration or omission to bind you?
The person making the admission must have a
relation against the person whom it is offered
against
And it is not enough that there is a relation, what else is
needed for my statement to bind you? Common
denominator, tingnan nyo may common denominator yan.
For example, if I am accused of committing a crime and I said
I didnt but I admitted that I acted in conspiracy with Mr. X.
will my statement that I co-conspirated during the
commission of the crime necessarily bind Mr. X?
No, the conspiracy (relation) must be established

Establish first the relationship, how do you establish


by evidence other than by the mere statement, by
the mere declaration of the existence of the
relationship.
What about in partners?
The thing with partners, the existence of the
partnership must be established before the act of
one the adverse partner, the existence of the
partnership must first be established, the perception
is that a partner acts for the partnership
Section 29. Admission by co-partner or agent. The act or
declaration of a partner or agent of the party within the scope of
his authority and during the existence of the partnership or
agency, may be given in evidence against such party after the
partnership or agency is shown by evidence other than such act or
declaration. The same rule applies to the act or declaration of a
joint owner, joint debtor, or other person jointly interested with
the party.

Mr. X is my partner in this business transaction, what could be


evidence of the partnership?
The articles of Partnership, that AOP even standing
alone can prove the existence of the partnership
other than my declaration.
Supposing Mr. X is my principal, how can my statement bind
him as my principal?
Either General Power of Attorney or Special Power
of Attorney
Explain the rule on admission by privies
Section 31. Admission by privies. Where one derives title to
property from another, the act, declaration, or omission of the
latter, while holding the title, in relation to the property, is
evidence against the former.

If a person makes a declaration with regard to a


written admission, whoever derives title from him,
those admissions made by the privy will be binding
upon him, those who derive title from the person
who is a party to the transaction

How do we establish the conspiracy (relation)?


Established it by other than the declarant statement
For example:
I am acting as an agent of Mr. X who is my principal.
For my statement or for my action to bind Mr. X, I
first have to establish the relation between us, as
principal and agent. The rule requires that.
How do I establish for my statement as an alleged
agent of Mr. X to bind Mr. X?
I first have to establish the relation between
us by evidence other than my statement
that he is my principal.
That is the common denominator.
6|P a g e

To bind the transferee what would be necessary to admission


with respect to the property, I made an admission regarding
my property, transferee ka ng property how can my admission
bind the transferee? admission with respect to the property,
how can it bind the transferee, yung transferee yung nakabili
ha, so how can the admission by the owner bind the
transferee? Admission with respect to the property? Meron
jan qualifying phrase
The admission must be made by the owner or
transferor while he was holding title, because when
he already transferred the property, it cannot bind
him.

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


What about extrajudicial confession? What is the rule? What
is an extrajudicial confession?
it has to be corroborated by evidence.

of them executed their own extrajudicial confessions, so under


what circumstances can their confessions bind the other?
if the confessions interlocked

Extra-judicial confession - It is a confession not done


during the course of the judicial proceedings

what do you mean when you say the confessions interlocked,


what aspects? Kasi you need to be specific, it is enough that
by their mere presence?
The confessions agree on material points.

Section 3. Extrajudicial confession, not sufficient ground for


conviction. An extrajudicial confession made by an accused,
shall not be sufficient ground for conviction, unless corroborated
by evidence of corpus delicti. (Rule 133)

Who will be bound by the extrajudicial confessions?


it will bind the person making the confession
When can the confession done bind another person?
When the other person acquiesced or agreed to the
confession made by another
What is the Doctrine of Interlocking confessions? Exception
yan sa the extrajudicial confession of one binds the declarant
alone very important exception, this must be given emphasis
during your class in evidence. What do you understand by
interlocking?
That the statement of one corroborates the
statement of the others
For example X, Y, Z. X executes an extrajudicial confession
implicating Y and Z as co-conspirators in the commission of
the crime. Rule, the inter alios acta rule, can the confession of
X bind Y and Z? Answer by the general rule, wag ka mag
qualify
No.
When can the confession of X binds Y and Z?
the confession of X will bind Y and Z if such
confession was made during the existence of the
conspiracy and if the conspiracy can be proved by
evidence other than by the confession made by X
if X makes an extrajudicial confession only after the
commission of the crime and implicates Y and Z. Y executes
his own extrajudicial confession and implicates X and Z. Z
makes an extrajudicial confession and implicates X and Y.
The rule is the confession of X will not bind Y and Z. The
confession of Y will not bind X and Z. The confession of Z will
not bind X and Y. But all of them made extrajudicial
confession. Applying the doctrine of interlocking confessions,
how can and in what circumstances can the extrajudicial
confession of X bind Y and Z, the extrajudicial confession of Y
bind X and Z and the extrajudicial confession of Z bind X and
Y. Under what instances can their extrajudicial confession
bind their co-accused? What is required? Ayan na yung
interlocking eh, all of them were charged under 1 crime, each
7|P a g e

Do not use the word corroborate kasi pwede mag


corroborate as to the fact of the presence of the two
the mere presence in the scene of the crime is not
conspiracy, so kelangan each must perform an overt
act to show that they are geared toward the same
purpose
When we say interlocking confession or doctrine of
interlocking confession that is an exception to the res inter
alios acta rule
So several accused made a confession, the rule is, the act of
one does not bind the other. The exception is, if their
confessions interlock or they jive or they agree on material
points
State the rule on evidence of similar acts, that is another
branch of the res inter alios acta rule
Section 34. Similar acts as evidence. Evidence that one did or
did not do a certain thing at one time is not admissible to prove
that he did or did not do the same or similar thing at another
time; but it may be received to prove a specific intent or
knowledge; identity, plan, system, scheme, habit, custom or
usage, and the like. (Rule 130)

Evidence that one did or did not a particular act at


one time is not admissible to prove that he did or did
not do the similar thing at another time
Exception?
x x x x but it may be received to prove a specific
intent or knowledge; identity, plan, system, scheme,
habit, custom or usage, and the like.
The rule prohibits the admission of the so-called propensity
evidence
Propensity evidence evidence that tends to show that what
a person has done at one time is probative of the contention
that he has done a similar act at another time

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


RULE 130
What is object evidence?
Section 1. Object as evidence. Objects as evidence are those
addressed to the senses of the court. When an object is relevant
to the fact in issue, it may be exhibited to, examined or viewed by
the court.

It is evidence that is addressed to the senses of the


court that has a relation to the fact in issue which
can be exhibited in court and can be viewed by the
parties
what do you mean addressed to the senses of the court?
it is a tangible object
Do you agree that object evidence is the most potent piece of
evidence?
Yes
Why?
because it addressed to the senses of the court, nasa
definition you can actually feel it, touch it, taste it,
thats why it is the most potent it is the strongest
Can its use be limited?
yes,
For purposes of admissibility of object evidence what is
required?
the evidence must be relevant
the evidence must be authenticated
the authentication must be made by a competent
witness
the object must be formally offered in evidence
For purposes of admissibility of any piece of evidence I told
you it must be both relevant and competent, now with respect
to object evidence there is another requirement it must be
authenticated, what do you mean by authenticated? How do
you authenticate object evidence?
This particular object evidence, at the time it is
presented in court in evidence, must be shown to be
in the same condition as it was, when it was involved
in the incident, transaction or subject matter of the
case
What is documentary evidence?
Section 2. Documentary evidence. Documents as evidence
consist of writing or any material containing letters, words,
numbers, figures, symbols or other modes of written expression
offered as proof of their contents.

Documentary evidence consists of writings or any


material consisting of words, figures or symbols to
be offered as proof of their contents
8|P a g e

any form of written expression, now how do you distinguish


written from object evidence? Can a piece of object be
considered as documentary evidence, for example that wall
made of concrete, if that wall has writings on it, can that wall
be considered as documentary evidence? For example it has
writing on it, can it be considered as documentary evidence?
Yes.
If the wall with writings on it, is offered to proved
what was written on it, that wall can be considered
as documentary evidence
If the wall with writings on it, is offered to prove that
such wall has writings on it what is it considered?
Object evidence, because it is addressed to
the sense of sight.
Because in documentary evidence any form
of written material offered to prove their
contents. So even though it is made on a
concrete and there are writings on it. It can
still be considered at documentary
evidence.
If the purpose of the offer is to proved what
is actually written, the contents.
But if the purpose is only to prove that
something is written or the wall has
writings on it, then that one is object
evidence
State the Best Evidence Rule
If the subject of inquiry is the contents of a
document, there is no other evidence admissible
except the original thereof
Section 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. (rule
130)

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


What are the 2 rules with respect to documentary evidence?
The best evidence rule
Parol evidence rule

REM2_3

Under the Best evidence rule, when do you invoke the best
evidence rule?
When the subject of the inquiry or question pertains
to the contents of the document
Under the best evidence rule, what is the best evidence?
the original

Best Evidence Rule as distinguished to Parole Evidence Rule


Always remember that you apply the Best Evidence
Rule only if the subject of the inquiry, subject of the
question pertains to the contents of the document.
Now, pag nag-pertain to the contents of the
document, you apply the Best Evidence Rule, which
means that you get the original.
Now if you apply the Best Evidence Rule, as a rule,
you do not avail of secondary evidence.

What is the original of the document?


Section 4. Original of document.
(a) The original of the document is one the contents of which
are the subject of inquiry.
(b) When a document is in two or more copies executed at or
about the same time, with identical contents, all such copies
are equally regarded as originals.
(c) When an entry is repeated in the regular course of business,
one being copied from another at or near the time of the
transaction, all the entries are likewise equally regarded as
originals.

If the subject of inquiry is the contents of the document, you


present the original.
What are the exceptions to best evidence rule?
secondary evidence
What is secondary evidence? Example
Xerox copy, photocopy
If the content of the document is the subject of inquiry you
present the original, now when may you be allowed to
present the photocopy or Xerox copy even if the subject of
inquiry is the contents of the document?
Section 5. When original document is unavailable. When the
original document has been lost or destroyed, or cannot be
produced in court, the offeror, upon proof of its execution or
existence and the cause of its unavailability without bad faith on
his part, may prove its contents by a copy, or by a recital of its
contents in some authentic document, or by the testimony of
witnesses in the order stated.
Section 6. When original document is in adverse party's custody or
control. If the document is in the custody or under the control
of adverse party, he must have reasonable notice to produce it. If
after such notice and after satisfactory proof of its existence, he
fails to produce the document, secondary evidence may be
presented as in the case of its loss.
Section 7. Evidence admissible when original document is a public
record. When the original of document is in the custody of
public officer or is recorded in a public office, its contents may be
proved by a certified copy issued by the public officer in custody
thereof.

9|P a g e

Under section 4 of rule 130, that is the original of the


document.
What are these secondary evidence?
Yung mga Xerox copies, photocopies, machine
copies. These are secondary evidence because it is
not the original.
Now, as a rule, you do not present and its not admissible if
the subject of the inquiry pertains to the contents document,
you cannot present secondary evidence. That will be objected
to.
However under certain circumstances, secondary
evidence may be admitted. (Section 3, Rule 130).
Section 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.

These are the exceptions to the Best Evidence Rule. When we


say exceptions, meaning that, secondary evidence can be
admitted.
Please take note of section 5, 6 and 7.
Section 5 is in relation to paragraph A of section 4, Rule 130.
Section 5. When original document is unavailable. When the original
document has been lost or destroyed, or cannot be produced in court,
the offeror, upon proof of its execution or existence and the cause of its
unavailability without bad faith on his part, may prove its contents by a
copy, or by a recital of its contents in some authentic document, or by
the testimony of witnesses in the order stated.

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN

Section 4. Original of document.


(a) The original of the document is one the contents of which
are the subject of inquiry.

For purposes of admissibility, you cannot say I cannot


produce the original your honor, in other words, even if the
subject of the inquiry pertains to the contents of the
document, you cannot simply say that I cannot produce the
original your honor because it has been lost. That is not the
reason or the basis for the admissibility of secondary
evidence. You have to prove first the existence of the original.
Before you go saying that the original has been lost,
destroyed, etc, first you have to establish that the original
actually existed.
After you have established that the original existed, you now
go to establishing the cause or the reason for the
unavailability of the original. Under these 2 instances, you
may now present secondary evidence:
to prove first the existence of the original
establish the cause or the reason for the
unavailability of the original
Under another circumstance (Section 6, Rule 130 in relation
to paragraph B of Section 3, Rule 130):
Section 6. When original document is in adverse party's custody or
control. If the document is in the custody or under the control
of adverse party, he must have reasonable notice to produce it. If
after such notice and after satisfactory proof of its existence, he
fails to produce the document, secondary evidence may be
presented as in the case of its loss.
Section 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:
(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;

You want to offer this particular piece of evidence but you do


not have the original. You now ask the court for an order
directing the adverse party who is in possession of the
original to produce the original. The court now gives notice to
the adverse party to produce the original, if the adverse party
who is in possession of the original refuses or does not
produce the original, then you may be allowed to present
secondary evidence. The point is reasonable notice has
already been given.
Theres one case that the intended offeror was aware that
the original actually existed but it was in the possession of the
adverse party. He asked the court to direct the adverse party
who is in the possession of the original to please produce it in
court because I intend to offer that particular piece of
evidence. The adverse party acknowledged the fact that he is

actually in possession of the original but, sabi nya, he does


not like to produce it because it might be incriminatory of me
if I produce the original. Question: under those circumstances,
can the party now desiring to present the original be allowed
to present a photocopy of that original?
Yes! Irrespective of the reason! What is important is
that he is given, the adverse party, is given
reasonable notice to produce it.
paragraph C of section 3, Rule 130:
Section 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:
(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

For example: lets say the original consists of voluminous


documents and you only want to establish one point
contained in those documents. For example, business
transaction for the day. You want to establish the financial
condition of that particular business establishment for that
particular day and that could be evidenced by sales invoices,
delivery receipts, et cetera. You need only to establish by
those voluminous records what secondary evidence may you
need. (hah?) Kasi without great loss of time, you get a
certification that on this particular day, this is actually the
financial condition. But this has to be certified to or this has
to be issued by the person who is in actual custody of the
records.
Next, (paragraph D of section 3, Rule 130)
Section 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:
(d) When the original is a public record in the custody of
a public officer or is recorded in a public office.

There is such a thing as Irremovability of Public Records.


Pwede syang certify-an, unless there is a court order that the
public record be brought to court, that particular piece of
evidence can be certified to but only by the public officer who
is in custody.
Now, Section 4 paragraph B:
Section 4. Original of document.
(b) When a document is in two or more copies
executed at or about the same time, with identical
contents, all such copies are equally regarded as
originals.

Pwede dito yung duplicate originals. Pwedeng pumasok dito


yung mimeograph. Each mimeograph copy is regarded as an
original pero copy yun but it is generated at the same time.

10 | P a g e

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


Now what if one mimeograph copy is photocopied?
That Xerox copy is secondary. NYK doctrine
Section 8. Party who calls for document not bound to offer it. A party who
calls for the production of a document and inspects the same is not obliged
to offer it as evidence.

Parole Evidence Rule


Section 9. Evidence of written agreements. When the terms of an
agreement have been reduced to writing, it is considered as containing all
the terms agreed upon and there can be, between the parties and their
successors in interest, no evidence of such terms other than the contents of
the written agreement.
However, a party may present evidence to modify, explain or add to the
terms of written agreement if he puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the written
agreement;
(b) The failure of the written agreement to express the true intent
and agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their
successors in interest after the execution of the written
agreement.

When there is intrinsic ambiguity what is your idea of


intrinsic ambiguity?
If the document is clear on its face, and ambiguity
arises from other sources.
For example:
A deed of donation, nandun yung donor, he would
say out of pure liberality on my part, I am donating
my 2010 BMW two-seater color Red to Jose
Fernandez. Diba very clear yung Deed of Donation
on its face? In your Civil Law, you know that for the
validity of a Deed of Donation it needs acceptance by
the donee. Pero dalawang tao dadating, Jose
Fernandez Sr. and Jose Fernandez Jr. Where does
the ambiguity arise? Ambiguity arose because two
Jose Fernandezes arrived. Who between the senior
and the junior is the donee? Question: can you now
be allowed to present Parole evidence evidence
other than particular written document?
Yes.
What is the purpose for allowing the introduction of evidence
outside the written instrument?
To modify, to explain.

The term "agreement" includes wills.

When you go to the Parole Evidence, what is Parole evidence?


Parole evidence is external. Outside.
Under the Parole evidence rule, when the parties come to an
agreement, they reduce their agreement into writing, that
written agreement is the only evidence of the terms agreed
upon.
Parole Evidence: that written agreement is the only evidence
of the terms agreed upon, that will bar all other evidence
except that written agreement. That is Parole evidence.
You can only present Parole evidence under certain
circumstances: However, a party may present evidence to
modify, explain or add to the terms of written agreement if
he puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake or imperfection in
the written agreement;
(b) The failure of the written agreement to express the
true intent and agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the
parties or their successors in interest after the
execution of the written agreement.
Under any of these exceptions, you may be allowed to
introduce evidence other than the written agreement to
prove the terms agreed upon.

The best evidence is the original, but we invoke the best


evidence only if the subject of the inquiry pertains to the
contents of the document.
Testimonial Evidence
Section 20. Witnesses; their qualifications. Except as provided in the next
succeeding section, all persons who can perceive, and perceiving, can make
their known perception to others, may be witnesses.
Religious or political belief, interest in the outcome of the case, or conviction
of a crime unless otherwise provided by law, shall not be ground for
disqualification.

Qualification of witnesses here you have to distinguish


Competence from Credibility.
What is competence?
It is the fitness of an individual to testify. So when
you speak of competence, you speak of
qualifications.
Credibility, on the other hand, is the quality of a
witness that renders his testimony worthy of belief.
Credibility is actually believability.
When, therefore, does the court determine competence?
When does the court determine credibility?
Competence is determined at the time the witness is
called to the witness stand. Kasi titingnan kung fit
sya to testify e. Credibility, on the other hand is

11 | P a g e

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


determined only after the witness has been
determined to be competent or qualified. So,
competent nga yung witness but do you give credit
to what hes saying

witness your Honor is being offered for the following


purposes at that point mag oobject.
Objection to the purpose or objection to the very
qualification of the witness. By the way, once the
witness is called on the witness stand, once the
witness is produced for examination you offer the
testimony, you offer the testimony not the witness.

What are the qualifications of a witness?


All those who can perceive and perceiving and make
known their perception to others can be a witness.
So number 1, you must be able to perceive. How are you
going to perceive?
Through your senses. Sight, smell, taste, hear, touch.
Number 2, you must be able to relate what you have
perceived to others.

REM2_4
Competence vs credibility
it is competence that is first determined before
credibility because once the witness is called to the
witness stand, jan ide-determine if he is competent.
Competence is said to be fitness of an individual to testify. So
if we talk about competence you relate that qualification.
Qualification of a witness must be able to perceive, how
through his senses and after he has officially perceived be
able to relate what he has perceived to others.
Section 21. Disqualification by reason of mental incapacity or immaturity.
The following persons cannot be witnesses:
(a) Those whose mental condition, at the time of their production for
examination, is such that they are incapable of intelligently
making known their perception to others;
(b) Children whose mental maturity is such as to render them
incapable of perceiving the facts respecting which they are
examined and of relating them truthfully.

Sec. 21 Disqualifications, the following persons cannot be


witnesses. very important disqualification:
those whose mental condition this is a
disqualification by reason of mental incapacity
those whose mental condition at the time of their
production for examination is such that they are
incapable of making their perception known to
others
at the time of their production for examination which
means that first point when is a witness produced for
examination?
At the time the witness is called to the witness
stand. I am calling to the witness stand your Honor
Mr. X. Once the witness is called to the witness
stand his testimony is offered. The testimony of this

Once the witness is called to the witness stand jan idedetermine kung the witness is competent. Therefore, this
qualification if at the time of the production for examination
at the time he is called to the witness stand to testify oobjectan, idi-disqualify by reason of mental incapacity for
example.
Example:
If during the occurrence of the incident everybody saw the
witness was seen right at the crime scene, after the incident
there is now a prosecution for murder, so syempre sya ang
eye witness because everybody saw him there right at the
crime scene, so he is now made a witness. at the time of the
occurrence of the incident he was there, at the time of the
prosecution of the case, this particular witness pagdating nya
sa court room, pag upo nya sa witness stand he was already
laughing, he was already crying he was already, dancing
obviously insane, question, is he competent to testify?
No, because obviously he is insane at the time of his
production for examination, meaning at the time of
his production to the witness stand he may have
perceived but at the time he is produced for
examination he is not capable of relating what he
has perceived to others.
Disqualification refers to competence.
Able to perceive and able to relate what he has perceived to
others
at the time of the occurrence of the incident everybody saw
this person right at the crime scene but while the victim was
being stabbed to death, the witness was clapping or rejoicing
obviously insane, but he was there at the crime scene so ------he must have perceived. There is a subsequent prosecution
based on that incident at the time the witness is called to the
witness stand, at the time the witness is produced for
examination, he is sane, question, is he competent to testify?
Yes, he is competent to testify because at the time
of his production for examination that is when we
should determine if he is competent.

12 | P a g e

He can testify, but, is he credible? it is not a question


of competence anymore because at the time he is
called to the witness stand he is sane. Now, he can

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


relate whatever he thinks he has seen, now there is
a question of credibility because he was obviously
insane at the time of the occurrence of the incident
Section 21. Disqualification by reason of mental incapacity or immaturity.
The following persons cannot be witnesses:
(b) Children whose mental maturity is such as to render them
incapable of perceiving the facts respecting which they are
examined and of relating them truthfully.

Disqualification between the spouses, there are 2 rules on


the disqualification between the spouses, one spouse is
disqualified from testifying for and against the spouse
without the consent of the affected spouse:
disqualification by reason of the marriage (marital
disqualification rule)
disqualification between the spouses by reason of
privilege communication

Very important disqualification by reason of immaturity. you


know very well that the rules on evidence has not been
revised since 1989 so no amendment, but this provision has
already been amended because those children whose
mental maturity in such as to render them incapable of
perceiving the facts respecting to which they are examined
and relating them truthfully this is already amended by the
Child Witness Examination rule.

the number one to remember with respect to this


disqualification, this disqualification will not apply to stop the
spouses from testifying if the affected spouse has given
consent, of course, it will not apply ok you may testify against
me for all I care pag pumayag no problem, the disqualification
will apply if no consent has been given, therefore, if no
consent was given, you cannot testify, you have to first
secure the consent of your spouse

Under the child witness examination rule, in relation to this


particular provision, the competence of the child witness is
now presumed by express provision of the rule. The
competence of a child witness is now presumed however,
disputable. The competence is now presumed, whoever
assails the competence of the child has the burden of proving
that the child is incompetent.

Under the marital disqualification rule, the disqualification


between the spouses is by reason of the marriage, since it is
by reason of the marriage, you have to secure first the
consent of the spouse involved in the case. if the
disqualification is because they are married therefore the
disqualification subsists only during the marriage but it must
be a legitimate marriage. The rationale is the preservation of
the harmony in the family

It is set already, it did not affect the sanction, you know under
the previous provision, the judge has the obligation to
determine if the child is competent the judge has to
determine if the child is lying the judge has to determine if
the child is telling the truth kung naiintindihan nya yung oath,
but now, the child is presumed to be competent as a witness.
The judge need not determine anymore whether or not the
child is competent to testify kasi nakalagay na sa rule the
judge will enter into the picture if there is an objection as to
the competence of the child otherwise that is a set
presumption.
The burden of proving otherwise is on the person who assails
the competence of the child.
Section 22. Disqualification by reason of marriage. During their marriage,
neither the husband nor the wife may testify for or against the other without
the consent of the affected spouse, except in a civil case by one against the
other, or in a criminal case for a crime committed by one against the other or
the latter's direct descendants or ascendants.
Section 24. Disqualification by reason of privileged communication. The
following persons cannot testify as to matters learned in confidence in the
following cases:
(a) The husband or the wife, during or after the marriage, cannot be
examined without the consent of the other as to any
communication received in confidence by one from the other
during the marriage except in a civil case by one against the other,
or in a criminal case for a crime committed by one against the
other or the latter's direct descendants or ascendants;

On the other hand, if it is a disqualification between the


spouses by reason of the privileged communication, the
disqualification is not because they are married, it is an
incident matter that they are married. The spouse cannot
testify on a matter that has been relayed to him or her in
confidence by his or her spouse, so I am giving this to you in
confidence ergo you cannot testify on this before any court.
you cannot speak about this without first securing my
consent that is disqualification between the spouses not
because of the marriage but because of the privilege, the
confidential nature of the information relayed by one spouse
to the other spouse. Now, because the disqualification is
because of the privilege the confidential nature, there is a
need that this disqualification subsists even after the
marriage, because it is not by reason of the marriage, if it is
because of the marriage pag ex na sila, pag annulled marriage
na, they can testify even without securing the consent. But if
it is a disqualification based of the privileged nature or the
confidential nature of the information relayed by one spouse
to the other spouse then he cannot even if the marriage has
been terminated, there is a need to secure the consent.
If the spouse had given consent before hand, we dont apply
the disqualification, except in two instances, in other words
under these 2 instances you dont need to secure consent
either because of the marriage or because of the privileged
nature of the communication:

13 | P a g e

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN

if it is a civil case filed by one against the other or


in a criminal case for a crime committed by one
spouse against the other spouse or the latters
ascendants or descendants, direct descendants
direct ascendants

Under these 2 exceptions there is no need to secure consent

For example:
I filed a claim against the estate of Mr. X. I filed it
against the executor or administrator of the estate
of Mr. X, who already died. I filed a claim against his
estate. I cannot, on the witness stand, testify that
before he died, Mr. X told me that once he dies, I will
inherit his 1,000 sq. M lot in Ayala, Alabang.
I am prevented to testify because he cannot dispute.
Remember, this general statute is for protection of
the estate of the person who died or became insane.

Section 23. Disqualification by reason of death or insanity of adverse party.


Parties or assignor of parties to a case, or persons in whose behalf a case
is prosecuted, against an executor or administrator or other representative
of a deceased person, or against a person of unsound mind, upon a claim or
demand against the estate of such deceased person or against such person
of unsound mind, cannot testify as to any matter of fact occurring before the
death of such deceased person or before such person became of unsound
mind.

But with respect to other points, I am not


disqualified because precisely I am the claimant. In
other words, I can prove my claim through other
means but not through a matter of fact which
occurred before the person died or became insane
which can no longer be disputed,

The disqualification under Sec, 23 this disqualification by


reason of the insanity or death of the adverse party. This is
known as the Dead Man Statute or the Survivor Rule.
Parties or assignors of parties to a case or persons in whose
behalf a case is prosecuted, against an executor or executor
or other representative of a deceased person, or against a
person a person of unsound mind, upon a claim or demand
against the estate of such deceased person or against such
person of unsound mind, cannot testify as to any matter of
fact occurring before the death of such deceased person or
before such person became of unsound mind.
Under what circumstances can you invoke the Dead Man
Statute? Remember Dead Man Statute involves a
disqualification also:
if the case involves a claim against the estate of a
person who died or has become insane the action
involves a claim against the estate of a person who
already died or became insane
The action is against the executor, administrator or
representative of the person who died or who
became insane.
The action is filed against the estate of a person who died or
became insane, the action is filed against the executor,
administrator or representative of the person who died or
became insane. Under these 2 premises, who is disqualified
from testifying in the claim?
The claimant, the plaintiff or the person in whose
behalf the claim is prosecuted
But is he disqualified from testifying on all points?
No, he is only disqualified from testifying on a
matter of fact occurring before the decedent died or
before such person became of unsound mind.

Section 24. Disqualification by reason of privileged communication. The


following persons cannot testify as to matters learned in confidence in the
following cases:
(b) An attorney cannot, without the consent of his client, be
examined as to any communication made by the client to him, or
his advice given thereon in the course of, or with a view to,
professional employment, nor can an attorney's secretary,
stenographer, or clerk be examined, without the consent of the
client and his employer, concerning any fact the knowledge of
which has been acquired in such capacity;

An attorney without the consent of his client consent, be


examined as to any communication made by the client to him
or his advice given thereon on the course or in the view to a
lawyer-client relationship.
with a view to professional employment meaning there no
lawyer-client relationship yet, the disqualification can already
attach because when a prospective client goes to a lawyer
the lawyer will ask the prospective client, you have to lay
your cards in the table for me to assess our chances. Those
matters that are relayed by the prospective client to the
lawyer are privilege. It is privilege, you dont violate the trust
reposed on you. with a view to means that he wants to hire
you , so he is bound. Whatever you obtain with a view to,
(there is no lawyer-client relationship yet or the employment
was not effected) you still are bound by the privilege of
whatever that has been relayed to you.
Section 24. Disqualification by reason of privileged communication. The
following persons cannot testify as to matters learned in confidence in the
following cases:
(c) A person authorized to practice medicine, surgery or obstetrics
cannot in a civil case, without the consent of the patient, be
examined as to any advice or treatment given by him or any
information which he may have acquired in attending such
patient in a professional capacity, which information was
necessary to enable him to act in capacity, and which would
blacken the reputation of the patient;

14 | P a g e

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN

A person authorized to practice medicine, surgery or


obstetrics cannot in a civil case, QUALIFIED, in a civil case, not
in a criminal case because, precisely, in a criminal case they
are required to appear to explain. so in a civil case to prevent
the appearance to blacken the memory, etc.. civil case lang
ang disqualification not in a criminal case,
Section 24. Disqualification by reason of privileged communication. The
following persons cannot testify as to matters learned in confidence in the
following cases:
(d) A minister or priest cannot, without the consent of the person
making the confession, be examined as to any confession made to
or any advice given by him in his professional character in the
course of discipline enjoined by the church to which the minister
or priest belongs;

a minister or priest cannot, without the consent of the person


making the confession, be examined as to any confession
made to any or advice given by him in his professional
character in the course of the discipline..
You read the word confession. Confession for purposes of
securing absolution for ones sins. Confession for the purpose
of obtaining absolution for ones sins.
The detained prisoner is in the courtroom. Sometimes, there
are priest and nun present to give moral support. the priest is
sitting beside the detained prisoner, in the course of the
conversation, alam mo father ako naman talaga ang
nagnakaw, kaya ako nakakulong kasi ako naman talaga ang
nagnakaw. That is an admission relayed to a priest. Will the
priest be disqualified from testifying on that admission?
No, because it was not given in the course of a
confession. To disqualify him from testifying on that
point, it must have been given to him in the course
of the confession.

Now testimonial privilege, no person may be compelled to


testify against his parents, other direct ascendants, children
or other direct descendants. The person cannot be compelled
question, can he volunteer to testify?
Yes, he cannot be compelled to testify against his
parents etc.. but he may volunteer to testify.
4 statements:
Admission
Confession
Declaration against ones interest (as an exception
to the hearsay rule)
Self-serving statements
The first 3 may be admissible but self-serving statements it
will never be admissible. It is a worthless piece of statement.
it serves the interest of the declarant.
Example: pag sinabi ni Mr. X, ako ay guapo, eh sa totoong
buhay, he has the face only a mother can love its a totally
worthless statement.
But admission, confession, declaration against interest they
may be admissible.
Section 26. Admission of a party. The act, declaration or omission of a
party as to a relevant fact may be given in evidence against him

What is an admission?
It is an acknowledgement of a fact. It is an
acknowledgement of a certain incriminating fact
from which you draw an inference of guilt. There is
no total acceptance of any guilt. You acknowledge
incriminating facts from which the hearer or the one
listening to you may draw an inference of guilt
Confession,
it
is
an
acknowledgement of guilt.

What is the purpose of confession?


To obtain absolution for ones sins.
Section 24. Disqualification by reason of privileged communication. The
following persons cannot testify as to matters learned in confidence in the
following cases:
(e) A public officer cannot be examined during his term of office
or afterwards, as to communications made to him in official
confidence, when the court finds that the public interest would
suffer by the disclosure.

Public officer cannot be examined during the term of office.


Section 25. Parental and filial privilege. No person may be compelled to
testify against his parents, other direct ascendants, children or other direct
descendants.

unqualified,

unconditional

I did it, I killed him thats confession.


I was at that place, I took it because (you simply draw)
thats an admission.
Declaration against ones interest, why is it admissible?
By the name itself, you say something that is against
your interest.
why is it admissible? In fact even if the one who made the
declaration died, it is still admissible as an exception to the
hearsay rule even if there is no opportunity for crossexamination, why is it admissible?
Because the premise is that every person always
want to say something good about himself.

15 | P a g e

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


you do not normally say anything against yourself,
or anything that will be incriminatory of you.
Therefore, if you say something which is against your
interest, the law may consider true because you
would not have said it, if you would not have
believed it to be true.

Read: People vs. Ricardo Santos - the doctrine here is


different.
This third paragraph is likewise important. A plea of guilty
later withdrawn, or an unaccepted offer of a plea of guilty to
lesser offense, is not admissible in evidence against the
accused who made the plea or offer.

REM2_5
Section 27. Offer of compromise not admissible. In civil cases, an offer of
compromise is not an admission of any liability, and is not admissible in
evidence against the offeror.
In criminal cases, except those involving quasi-offenses (criminal negligence)
or those allowed by law to be compromised, an offer of compromised by the
accused may be received in evidence as an implied admission of guilt.
A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to
lesser offense, is not admissible in evidence against the accused who made
the plea or offer.
An offer to pay or the payment of medical, hospital or other expenses
occasioned by an injury is not admissible in evidence as proof of civil or
criminal liability for the injury.

in civil cases, an offer of compromise is not an admission of


any liability, and is not admissible in evidence against the
offeror
Luciano Tan vs. Rodil Enterprises (2006)
Now, it is qualified in that case of Luciano Tan. There it was
said that if the debtor does not acknowledge the existence of
the debt but he simply makes an offer of compromise to put
an end to litigation, that offer is not admissible because that
is not an admission of liability. He does not acknowledge any
debt.
Now on the other hand, if the debtor acknowledges the
existence of the debt then his offer of compromise is
definitely admissible in evidence.
Now if you notice in Section 27, second paragraph: In
criminal cases, except those involving quasi-offenses (criminal
negligence) or those allowed by law to be compromised, an
offer of compromised by the accused may be received in
evidence as an implied admission of guilt.
Itong Criminal Negligence, ito yung Article 365 of the Revised
Penal Code. Criminal cases this means that as a penal
offense, it can actually be settled. It can be compromised.
Those allowed by law to be compromised for example,
tax cases. Tax cases are penal in nature because they provide
for imprisonment but they can be compromised as
specifically provided for in the NIRC.

Two situations are covered here: 1. Plea of guilty later


withdrawn; 2. Unaccepted offer of a plea of guilty to a lesser
offense very popular ito ngayon, Plea Bargaining
Agreement.
Plea of guilty later withdrawn
Once you plead guilty, that is recorded but if later
you withdraw your plea of guilty and you are
allowed to withdraw your plea of guilty. That is
considered as having removed from the records. Kasi
dito a plea of guilty later withdrawn is not
admissible in evidence, it only means that it cannot
be used against you.
Unaccepted offer of a plea of guilty to a lesser offense
This is Plea Bargaining. You will likewise know that
under the Rules on Criminal Procedure that if an
accused offers to plead guilty to a lesser offense that
is already entering into a plea bargaining agreement.
If you offer to plead guilty to a lesser offense, that is already
in the nature of a compromise and you know that if you
compromise, it is already an implied admission of guilt. But
under the Rules on Criminal Procedure, for your plea of guilty
to the lesser offense to be valid, it has to be consented to or
concurred in by the private offended party and the public
prosecutor.
If neither the private offended party nor the public
prosecutor did not give consent to the offer, it will not be
admissible against the accused because under the Rules on
Criminal Procedure, in order for it to be valid, you need the
consent of the private offended party and the public
prosecutor, such that if the accused offered to plead guilty,
and as I said, that is in effect an offer of compromise, still if
its not consented to, wala yan, walang effect, and therefore
it should not be considered as admissible against the accused.
Rule on Hearsay Evidence
Section 36. Testimony generally confined to personal knowledge; hearsay
excluded. A witness can testify only to those facts which he knows of his
personal knowledge; that is, which are derived from his own perception,
except as otherwise provided in these rules.

Matters of personal knowledge [means that they are] matters


obtained by him through the use of his senses. The rule is a

16 | P a g e

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


witness cannot testify on any matter of fact which has been
simply relayed to him by a third person.
If a witness testifies on matters which is not of his personal
knowledge, that is hearsay. Objectionable yan on the ground
that it is hearsay.
Relate this to Independently Relevant Statements because
an Independently Relevant Statement would appear to be in
the nature of hearsay.
Where lies the difference?
Hearsay is certainly not admissible but an
Independently Relevant Statement is admissible.
For example, I am on the witness stand. If I testify, X told me
that Y is a drug lord. My statement basically is hearsay
because I am stating a matter of fact which has been simply
relayed to me by X. If my statement that X told me that Y is a
drug lord is offered to prove that the truth of the fact that Y
is a drug lord, it is hearsay because I have no personal
knowledge of the fact that Y is a drug lord.

Under the exceptions to the Hearsay Rule, even without the


cross-examination, that statement is basically hearsay but it is
admissible.
Exceptions to the Hearsay Rule:
1. Sec. 37. Dying declaration;
2. Sec. 38. Declaration against interest;
3. Sec. 39. Act or declaration about pedigree;
4. Sec. 40. Family reputation or tradition regarding
pedigree;
5. Sec. 41. Common reputation;
6. Sec. 42. Part of res gestae;
7. Sec. 43. Entries in the course of business;
8. Sec. 44. Entries in official records;
9. Sec. 45. Commercial lists and the like;
10. Sec. 46. Learned treatises;
11. Sec. 47. Testimony or deposition at a former
proceeding.
Dying Declaration
Section 37. Dying declaration. The declaration of a dying person, made
under the consciousness of an impending death, may be received in any case
wherein his death is the subject of inquiry, as evidence of the cause and
surrounding circumstances of such death.

On the other hand, if my statement is offered to prove the


fact that that statement was given to me by X, X told me,
then that is an Independently Relevant Statement and that is
admissible. Why?
Because yung statement is offered to prove simply
that such statement was made.
What are the two reasons for the inadmissibility of hearsay
evidence?
1. Because of the Rule: A witness can testify
only to those facts which he knows of his
personal knowledge.
2. Hearsay is inadmissible because of the
absence
of
cross-examination
or
opportunity for cross-examination.
Comes now the exceptions, because as a rule, if a particular
statement is not subjected to cross-examination or not tested
on cross-examination, you test the truth, the accuracy of the
statement, then that is hearsay.
Whose cross-examination?
The declarant, the one who made the declaration.
For example: even if an affidavit is placed under oath and it is
utilized in evidence in open court, for as long as the affiant is
not subjected to cross examination, that particular affidavit,
even if on its face it appears that it has been sworn to before
a notary public or a person authorized to administer oath,
that is inadmissible. On what ground?
Hearsay.

1.
2.
3.

The declarant must have made a declaration under


consciousness of an impending death.
The death must have been caused through
violence. It is not by natural causes.
The declarant would have been a competent
witness had he been alive.

Please remember, if youre going to invoke as an exception to


the Hearsay Rule, the Dying Declaration, the declarant must
have died. You cannot invoke that if he survived.
Lets say in a subsequent prosecution for Frustrated Murder
or Frustrated Homicide, his testimony was offered for
purposes of identifying the malefactor, the culprit. Question
can his declaration made by him under consciousness of an
impending death be admissible in evidence as a dying
declaration?
No. He must have died! wherein his death is the
subject of inquiry.
It can be used as Part of Res Gestae.
Under consciousness of an impending death, what do we
mean by that? Remember kailangang ma-establish yung
elements. Why?
Because there is no one to be cross-examined
anymore. He is dead. It means that at the time he
made that declaration, he actually believed that he
was dying.

17 | P a g e

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


hear me say anything. Diba youre in doubt? Is my
act of handing over to her a bundle of money
equivocal?
Yes, because you wouldnt know what my
purpose is for handing over that money.

What is the rationale?


Because somebody who believes himself to be dying
will not tell a lie because he believes that if he tells a
lie and he dies, he will go straight to hell.
Example, this case, here the victim sustained several stab
wounds and he was brought to the emergency room. Sabing
ganyan, who did this to you? then he identified his
assailant. He was asked by the doctor, how do you feel? Do
you believe that youre dying? Ang sagot nya, I think so.
Hindi inaccept ng Supreme Court as a dying declaration
because ibig sabihin daw he was still hoping hed survive.

Now if all of you see me hand over to her a bundle of money


and at the same time sabi ko, o, eto na yung inuutang mo
sakin. Diba my statement gave meaning to my otherwise
equivocal act? That is verbal acts.

REM2_6

Now if that statement cannot be admitted as a dying


declaration because the declarant survived, it can be
admitted as part of res gestae.

In hearsay, there is no opportunity for cross-examination but


under these exceptions even if there is no opportunity for
cross examination, it is admissible.

Part of Res Gestae

But as a rule, as long as it does not fall among any of these


exceptions, absence of cross examination, hearsay, therefore,
inadmissible.

Section 42. Part of res gestae. Statements made by a person while a


starting occurrence is taking place or immediately prior or subsequent
thereto with respect to the circumstances thereof, may be given in evidence
as part of res gestae. So, also, statements accompanying an equivocal act
material to the issue, and giving it a legal significance, may be received as
part of the res gestae.

Two important parts of Res Gestae:


1. Spontaneous exclamations
2. Verbal Acts

In dying declaration, he must have died. If did not die and if it


was given under circumstances where it is spontaneous then
the declaration would form part of the res gestae.
The other part of res gestae which is verbal acts.

Either of the two will constitute Res Gestae.


Spontaneous Exclamations you simply verbalize what you
see. You made a statement at the time of the occurrence of
the incident or immediately before or immediately after.
There is no exercise of judgment; you simply verbalize what
you see. There is no opportunity for cross-examination.
Verbal Acts statements accompanying an equivocal act
material to the issue, and giving it a legal significance, may be
received as part of the res gestae.
First, you have to find out if there is an equivocal act. When is
an act equivocal?
If that particular act is subject to different
interpretations, it is ambiguous, you dont really
know what the purpose of the perpetrator is, why he
did it.
If it is determined that the act is equivocal, then check if the
statement is made together with the performance of that
equivocal act and that statement give meaning to that
equivocal act.
For example: If all of you see me hand over to her a
bundle of money but you only see me and you dont

Next important exception to the hearsay rule is declaration


against interest. There are 4 statements that we must
remember:
declaration
admission
declaration against ones interest
self-serving statements
In the first 3, they are admissible. It is only the self-serving
statement that is inadmissible because it is worthless; it
serves the interest only of the declarant. One admissible
statement is the declaration against interest. The declaration
is made by the person deceased, tingnan nyo yung mga
gumawa nito wala na opportunity for cross-examination , the
declaration of a person deceased or is unable to testify
against the interest of the declarant, if the fact asserted in
the declaration at the time it was made was so contrary to
the declarants own interest that a reasonable man in his
position would not have made the declaration unless he
really means it. The rationale for this, even if there is already
absence of cross-examination because the declarant already
died or became unable to testify is the first premise it is
always normal for somebody to say something good about
himself. it is normal for somebody to avoid saying anything
incriminatory about himself. If possible youd like to put
yourself in a pedestal. That is why the rationale is that if you
say something which is against your interest, it may be true

18 | P a g e

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


because you would not have said it, if you had not believed it
to be true because it is against your interest. You would be
incriminated by these statements, why are you saying it?
Because the presumption is you are saying it even if it is
incriminatory of you because you believed it to be true. That
is the rationale of the admissibility of ones declaration
against interest even if the declarant already died or became
unable to testify.
Entries in the course of business, this will be illustrated in the
case.
Section 43. Entries in the course of business. Entries made at, or near the
time of transactions to which they refer, by a person deceased, or unable to
testify, who was in a position to know the facts therein stated, may be
received as prima facie evidence, if such person made the entries in his
professional capacity or in the performance of duty and in the ordinary or
regular course of business or duty.

Exception to the hearsay rule please take note of Sec. 47.


Testimony or deposition at a former proceeding.
Section 47. Testimony or deposition at a former proceeding. The
testimony or deposition of a witness deceased or unable to testify, given in a
former case or proceeding, judicial or administrative, involving the same
parties and subject matter, may be given in evidence against the adverse
party who had the opportunity to cross-examine him.

The testimony or deposition of a witness deceased or unable


to testify given in a former proceeding whether judicial or
administrative, so it doesnt have to be strictly judicial.
if the testimony of a witness who has already died or became
unable to testify given in a former case or proceeding judicial
or administrative, involving the same parties and same
subject matter may be given in evidence against the adverse
party who had the opportunity to cross examine him. Again,
the declarant died or became unable to testify, this
contemplates a situation where there are actually 2 cases
involved, involving however, the same parties and the same
subject matter.

case. Even though he was not cross examine but


there is opportunity to cross-examine. Because if
there is no opportunity, definitely, its hearsay. It will
not be introduced.
This example is an actual case, when I was a MTC Judge in
Pasig, there was an incident that happened, in the port of
zamboanga City, they filed an administrative complaint, they
were maltreated by a Philippine Ports Authority Official in
Zamboanga. So when they came back to Manila, they filed an
administrative complaint against the Philippine Ports
Authority official. During the administrative proceeding the
wife was questioned under oath and counter questioned, in
effect, she was cross examined by the counsel of the
respondent public official. After she testified, she became
insane. The husband now pursued the case and he now filed a
judicial action. So, in the judicial action, if it is a personal
action you go file it in the place where the plaintiff or
defendant resides at the election of the plaintiff. So he filed it
in Pasig, because that is where he resides. It was action for
damages based on the incident which was the subject of the
admin case. During the judicial proceedings before my sala,
they sought to introduce now the testimony of the wife as
corroborative evidence of the testimony of the husband for
the purpose of sustaining their case for damages. objection!
sabi nung lawyer, that cannot be allowed, that cannot be
admitted in evidence because i was not able to cross examine
this particular witness. So there is absence of opportunity for
my client to cross-examine correct? Is it objectionable?
Because at the time it was produced wala na eh, unable to
testify na, the wife who was able to testify at the admin
Qualify, because under the rules, the question was,
you did not cross-examine, what does the rule say?
there must be an opportunity for cross examination
on the part of the adverse party, the defendant. He
may be represented by another counsel ikaw ba ang
defendant? No, i am the counsel for the defendant.
So overruled.

For example: in one case, a witness testified. After he


testified, he died. In a subsequent judicial proceeding based
on the same subject matter as that in the administrative
proceeding, there is a judicial action that has been instituted,
involving the same parties and subject matter as in the admin
case, but the witness who testified in the admin case (in the
first case), died after having given his testimony. Question,
can the testimony of this witness, who died, be introduced in
evidence in the subsequent judicial proceeding involving the
same parties, involving the same subject matter as that
involved in the first case can it be admitted? Can the
testimony of this witness be admitted?
There is a qualifying phrase, for as long as there was
opportunity for to cross-examine him in the first
19 | P a g e

It is not the counsel, it is the adverse party who is


given the opportunity to cross-examine. The lawyer
is only representing the adverse party. It was shown
that the wife was cross-examined during the admin
proceeding. It may be given in evidence against the
adverse party not against the adverse counsel. It was
the adverse party who had the opportunity to crossexamine him.

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


Opinion Rule

Character evidence

Section 48. General rule. The opinion of witness is not admissible, except
as indicated in the following sections.

Section 51. Character evidence not generally admissible; exceptions:


(a)

Section 49. Opinion of expert witness. The opinion of a witness on a


matter requiring special knowledge, skill, experience or training which he
shown to posses, may be received in evidence.

In Criminal Cases:
(1)
(2)

Section 50. Opinion of ordinary witnesses. The opinion of a witness for


which proper basis is given, may be received in evidence regarding
(a) the identity of a person about whom he has adequate knowledge;
(b) A handwriting with which he has sufficient familiarity; and
(c) The mental sanity of a person with whom he is sufficiently
acquainted.

(3)

(b)
The witness may also testify on his impressions of the emotion,
behavior, condition or appearance of a person.

(c)

Before opinion can be accepted, he has to lay basis for his


testimony or opinion
Expert witness need not be a degree holder or professional
Witness should be qualified before he can give testimony if
competence is not accepted by the adverse party
Opinion of expert witness is not conclusive on the court, but
may be persuasive. Such opinion can be rebutted by another
opinion of an expert witness by the adverse party
Opinion of ordinary witness, there must be basis or lay basis
for such opinion; establish adequate knowledge; sufficient
familiarity and sufficient acquaintance
On the last par of Sec 50. It speaks of impression
Impression stating on observation. It is not an opinion
therefore admissible no need for qualification

In Civil Cases:
Evidence of the moral character of a party in civil case is
admissible only when pertinent to the issue of character
involved in the case.

Fact that which perceive through ones senses


Opinion conclusion drawn from facts
General Rule: Opinion not admissible
Exceptions:
1. expert opinion
2. Opinions of ordinary witness in 3 circumstances:
(a) the identity of a person about whom he has
adequate knowledge;
(b) A handwriting with which he has sufficient
familiarity; and
(c) The mental sanity of a person with whom
he is sufficiently acquainted.

The accused may prove his good moral character which is


pertinent to the moral trait involved in the offense charged.
Unless in rebuttal, the prosecution may not prove his bad
moral character which is pertinent to the moral trait
involved in the offense charged.
The good or bad moral character of the offended party may
be proved if it tends to establish in any reasonable degree
the probability or improbability of the offense charged.

In the case provided for in Rule 132, Section 14

Very particular in par. 2 Unless in rebuttal, the prosecution


may not prove the bad moral character of the accused which
is pertinent to the moral trait involved in the offense
charged.
If you see the prefatory statement unless in rebuttal. When is
there rebuttal?
You are referring to the order of trial, the sequence
in the presentation of evidence.
In criminal cases, it is the prosecution which will present first
evidence because they have the burden of proof, unless the
accused interposes a negative defense or a denial or alibi.
Negative wala syang burden but if he asserts an affirmative,
there can be a reverse order of the trial. For as long as the
accused interposes a negative defense wala syang burden, in
which case, the prosecution presents evidence first. After the
prosecution has already rested their case, the defense then
presents their evidence. So after the defense has formally
rested their case, rebuttal na, ayan irerebut ng prosecution
whatever the accused has presented which means that, in the
rule unless in rebuttal the prosecution may not prove the
bad moral character of the accused even if it is pertinent to
the moral trait involved in the offense charged, why?
Generally, the burden of proof is on the prosecution
unless and until the accused interposes a negative
defense which means that even if the prosecution,
kasi dito in rebuttal the prosecution has a truck load
of evidence that the accused is a bad person, that
the accused is a bad fellow, that the accused is a
person of moral character, even if the prosecution
has a truck load of evidence at the time of the
presentation of the evidence in chief, hindi pwedeng
iprisenta ng prosecution, kasi ang burden of proof on

20 | P a g e

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


the prosecution is to prove the essential elements of
the crime charged and to prove the guilt of the
accused beyond reasonable doubt. the prosecution
does not prove this essential elements of the crime
and the guilt beyond reasonable doubt by simply
presenting evidence that the accused is a person of
bad moral character therefore he did it. that it is
why after the presentation of evidence for the
accused if the accused presents evidence of his good
moral character that is the time that the prosecution
is given an opportunity to rebut. kasi sasabihin ng
accused I did not do it. Well, I could not have done
it because I am a person of good moral character. In
which case he laid himself opens for impeachment,
Pag sinabi nya I couldnt have done it because I am
a person of good moral character so he lays himself
open for impeachment via rebuttal.
But if the accused does not present evidence of his
good moral character then, the prosecution cannot
present evidence of his bad moral character because
it is only in rebuttal that the prosecution can present
evidence of his bad moral character.
unless in rebuttal, the prosecution may not prove his
bad moral character which is pertinent to the moral
trait involved in the offense charged even if it is
pertinent to the moral trait involved in the offense
charged for as long as the accused has not presented
evidence of his good moral character, hindi pwedeng
mag present ng evidence ang prosecution.
1.

The good or bad moral character of the offended party may be proved
if it tends to establish in any reasonable degree the probability or
improbability of the offense charged.

reasonable degree to establish the improbability that in fact


he did not commit Homicide and killed him but under acts of
self defense.
RULE 131
Burden of Proof and Presumptions
Burden of proof vis a vis Burden of evidence
Section 1. Burden of proof. Burden of proof is the duty of a party to
present evidence on the facts in issue necessary to establish his claim or
defense by the amount of evidence required by law.

claim or defense which means that either party can have the
burden of proof. Under what circumstances does it come to
play?
The rule is whoever asserts the affirmative has the
burden of proving that affirmative assertion
whoever alleges the affirmative, it could be the
defendant or the plaintiff, it could be the defense or
the prosecution, whoever asserts the affirmative he
has the burden of proving that affirmative assertion.
The one who asserts the negative does not have the
burden of proof.
Example: in a criminal prosecution, according to the
prosecution he did it accused did it, that is an affirmative
assertion. The accused will say no, I did not do it, that is a
negative assertion, who has the burden of proof?
The Prosecution, based on this rule. In all cases,
whoever asserts the affirmative has the burden of
proving that affirmative assertion.
so if the prosecution says he did it, he committed
the crime. the accused says no, I did not do it,
hindi pwedeng sabihin ng prosecution prove it that
I did not do it, wala syang burden because he is the
one asserting the negative

either or at any stage of the proceedings, it could be the


bad moral character of the private offended party or good
moral character of the offended party whoever presents that.
Example: in a prosecution for homicide. ang defense ng
accused is self-defense. He said I did it I killed him but I acted
in self defense why? Ipresent nya ngayon na during his
lifetime he was a bully, every person he meets he hits, he
slaps, he kicks on the day it happened, he was running
towards me I had to defend myself, That is admissible on
evidence on the bad moral character of the private offended
party because if he can prove it, it may tend in any
reasonable degree to establish the improbability of his having
committed the crime of homicide because he acted in self
defense. It is a justifying circumstance and if it is a justifying
circumstance it makes the act non-criminal. If it is justifying
no crime no criminal. So if was able to establish that he acted
in self defense and he was able to establish the bad moral
character of the private offended party, it would tend into a

As distinguished from burden of evidence, burden of


evidence is the burden of moving forward with the evidence.
So when is that?
After the person asserting the affirmative has
satisfied his burden of proof.
When do we say that a person who asserts the affirmative
has satisfied his burden of proof?
If he has created a prima facie evidence in his favor
A prima facie is disputable but unless disputed it stands
reasonable facts and circumstances.

21 | P a g e

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


In criminal cases prima facie case what would it consists of?
Reasonable facts and circumstances that would
engender a reasonable ground to believe that a
crime has been committed and that the accused is
probably guilty thereof,
Prima facie, it would stand in a criminal case so long as the
prosecution or anyone for that matter can establish a prima
facie case, that will suffice for conviction, so long as it is not
controverted by competent contrary evidence.
If a party has satisfied his burden of proof that created a
prima facie case in his favor, tapos na in the meantime, he
has no more duty. The burden of evidence is now shifted to
the other party, only for the purpose of destroying whatever
prima facie case has been created by the other party. Pag
hindi yan na destroy pag hindi yan na dispute, that would
suffice for conviction.
The rule is burden of proof, if you assert the affirmative, you
prove it. For as long as you assert the affirmative, the burden
of proof is on you. It does not shift. Once you have satisfied
the burden of proof, it shall have created a prima facie case in
your favour, then, the burden of evidence is now shifted to
the other party only to destroy whatever prima facie case he
have created, pag hindi na destroy, you win the case.
What is a presumption?
It is an assumption drawn from a given set of facts
which the law requires you to draw.
What is an assumption?
It is conclusion, an inference.
So a presumption is an assumption which the law requires
you to draw from a given set of facts. you are referring to
legal presumptions
legal presumptions:
Conclusive - it cannot be rebutted
disputable

If however, you are able to make use of these disputable


presumptions in your case. it creates a prima facie case in
your favour. if you are able to make these legal presumptions
(because you are required by law to draw these
presumptions) if you shall have created a prima facie case in
your favour, if it is not disputed, you win the case.
Doctrine of Conflicting presumptions - the stronger
presumption overcomes or prevails over the weaker
presumption.
Example: in a prosecution for adultery, a married woman had
sexual intercourse with a man not her husband, pwede bang
gumamit ng legal presumption dito? If you are the
prosecutor, the presumption here that is applied that is when
a man and a woman deporting (behaving) themselves as
husband and wife, the presumption is that they have entered
into a lawful contract of marriage.
so if that particular presumption would render them guilty of
adultery kasi they present themselves, they do think, they do
things that are being normally done by husband and wives,
the presumption is mag asawa talaga sila. Now, they are
being prosecuted for adultery, if this disputable presumption
is availed of and will render them guilty of adultery then this
disputable presumption would have to yield to a stronger
presumption of innocence. Why is it stronger?
Because firstly, It is disputable.
This presumption of innocence is constitutionally
enshrined. This disputable presumption is the
weaker presumption which should yield to a
stronger presumption which is the presumption of
innocence.
You need to have a working knowledge of these
presumptions. But for purposes of the bar you need to
memorize,

Most of these disputable presumptions, you have already


encountered,
There is presumption of innocence which is constitutionally
enshrined,
Presumption the one in possession of a recently stolen article
is a presumed to be the author of the theft,
There is a presumption of the legitimacy of a child,

there is a presumption in favor of matrimony, that is,


whenever a man and a woman deporting themselves as
husband and wife has entered into a lawful contract of
marriage these are of course disputable,

In the presentation of evidence:


direct examination
cross examination,
re-direct,
re-cross examination,
What is the order of examination?
It is the sequence of propounding questions to the
witnesses,

22 | P a g e

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


which is not testified to by the witness or contrary to that
which has been testified to by the witness as defined.

What is the order?


1. Direct examination
2. cross examination
3. re-direct examination
4. re-cross examination
Direct and re-direct examination are conducted by the
proponent, the counsel presenting the witness
cross and re-cross examination are conducted by the adverse
counsel.
Under the rules, if direct and re-direct are conducted by the
counsel presenting the witness, you are not allowed to
propound leading questions to the witness.
A leading question suggests to the witness the answer which
the examining party desires. Usually, it is answerable by a yes
or no.
Example: Did you go to the Police station after the incident
to report?
Yes, answerable by a yes or no, that is a leading
question
if that is propounded during the course of the direct
or re-direct examination which are conducted by the
proponent or the counsel presenting the witness
that is objectionable.
A leading question, however, is allowed on cross
examination. A leading question suggests to the witness the
answer which the examining party desires it is not allowed
during direct and re-direct examination because it is
conducted by the proponent but it is allowed in cross and recross because the purpose is to diminish, to destroy the
credibility of the witness so you are allowed to lead the
witness.
if you are the adverse the counsel, usually, the reaction of
this witness who is supposed to be cross-examined by you is
negative. He knows that you belong to the opposite party
usually the witness will clam up, hindi talaga magkakaroon ng
limot yan, amnesia, I do not know, I cannot remember.
Therefore, how can you test?, pag objectan ng objectan if you
propound leading questions, how can you test the credibility?
So leading questions are allowed on cross and re-cross
examination because these examinations are conducted by
the adverse counsel.
However, in any stage of the proceeding (direct, cross, redirect, or re-cross), on any occasion a misleading question is
not allowed. A misleading question assumes as true a fact

The rule is, you are not allowed to propound leading


questions however, as an exceptions on cross examination
pwede mag propound ng leading questions, on preliminary
matters, an unwilling or hostile witness or a witness who is
the adverse party or officer of a corporation etc.
Sec 12 of Rule 132 A party may not impeach his own witness
Section 12. Party may not impeach his own witness. Except with respect to
witnesses referred to in paragraphs (d) and (e) of Section 10, the party
producing a witness is not allowed to impeach his credibility.
A witness may be considered as unwilling or hostile only if so declared by the
court upon adequate showing of his adverse interest, unjustified reluctance
to testify, or his having misled the party into calling him to the witness stand.
The unwilling or hostile witness so declared, or the witness who is an adverse
party, may be impeached by the party presenting him in all respects as if he
had been called by the adverse party, except by evidence of his bad
character. He may also be impeached and cross-examined by the adverse
party, but such cross-examination must only be on the subject matter of his
examination-in-chief.

When you say impeach you destroy the credibility.


Very logical, you call this person on the witness stand to be
presented as your witness only to be impeached by you
Napaka ingrato mo naman, witness mo yan eh.
So you are not allowed to impeach your own witness but
exceptions par. (d) an unwilling or hostile witness or (e) a
witness who is the adverse party,
Why you are allowed to impeach?
because essentially you belong to different camps,
Why is this an exception to the rule? Take note if you are
calling somebody to be your hostile witness, he is your
witness because you are the one who called him to the
witness stand, but once he is on the witness stand and he is
allowed to testify as a hostile witness, that is, you can now
cross examine him. You can now impeach him kasi basically,
essentially magkalaban kayo, that is why it is an exception. He
is your witness only because,
The rule is you cannot impeach your own witness. I am
calling to the witness stand Mr. X, I am offering the testimony
of this witness etc. But, if you are calling somebody who is
adverse to your interest, witness mo because you are the one
calling him but only up to that point, but after that you can
already impeach him,
But, under the rules, if you called somebody to the witness
stand and he is allowed to testify as a hostile witness, so you

23 | P a g e

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


dont just simply say I am calling Mr. X to the witness stand,
and I am presenting him as my hostile witness. thats it? you
can already propound leading questions? thats it you can
already impeach him?
No, you first have to prove to the court the
antagonism and adverse interest between the two of
you. If you are not able to convince the court that he
is hostile to your call, then you will not be allowed to
impeach him because basically, he is your witness.
Therefore, if you are given by the court an
opportunity to establish the antagonism or the
adverse interest to this witness and then you have
to wait for the court to declare that this witness is
your hostile witness before you can profound
leading questions before you can impeach the
witness
Section 13. How witness impeached by evidence of inconsistent statements.
Before a witness can be impeached by evidence that he has made at other
times statements inconsistent with his present testimony, the statements
must be related to him, with the circumstances of the times and places and
the persons present, and he must be asked whether he made such
statements, and if so, allowed to explain them. If the statements be in
writing they must be shown to the witness before any question is put to him
concerning them.

Sec 13 is very important because this is what you call laying


the predicate, a witness is impeached by evidence of prior
inconsistent statements.
Laying the predicate meaning, you are laying the basis to
impeach that witness
example: the witness is on the witness stand and said I saw, I
witnessed the incident. But you are aware that on one
occasion that when he appeared in the prosecutions office in
connection with the preliminary investigation of this case but
he denied having witnessed the incident, that was
inconsistent and that is contained in his affidavit which is
sworn when submitted during the preliminary investigation. if
you able to show it:
you say Mr. Witness you said you were able to see
it, witness the incident which is the subject matter of
the case. Do you remember having appeared before
the Prosecutors Office in connection with the
Preliminary Investigation of this case
the witness replied yes.
You as adverse counsel asked Do you remember
having executed an affidavit in connection with this
case?
the witness replied yes.

Then u as the adverse counsel asked If shown to


you would you be able to identify it?
the witness replied Yes.
(So you are now laying the predicate,)
calling your attention Mr witness to par, 2 or 3 or 4 of your
affidavit, for the record your Honor, the witness has stated in
this sworn affidavit that he did not witness the incident. Your
Honor, I am making a Manifestation that this witness has on
another occasion executed a sworn affidavit which he now
affirms stating a contrary statement that he did not.
In that situation, d ba na impeach mo na making inconsistent
statement stated that he did not see/ witnessed the incident
but there is a requirement which is supported by recent
jurisprudence, you have to give this witness the opportunity
to explain the inconsistency. It is only after the witness has
failed to give a satisfactory explanation for that inconsistency
when you shall be considered to have impeached him.
The rule is and under jurisprudence, you shall not be
considered to have impeached the witness unless and until
you have given him an opportunity to explain the
inconsistency and if he failed to give a satisfactory
explanation, only then you can be considered to have
impeached that witness.
Section 16. When witness may refer to memorandum. A witness may be
allowed to refresh his memory respecting a fact, by anything written or
recorded by himself or under his direction at the time when the fact
occurred, or immediately thereafter, or at any other time when the fact was
fresh in his memory and knew that the same was correctly written or
recorded; but in such case the writing or record must be produced and may
be inspected by the adverse party, who may, if he chooses, cross examine
the witness upon it, and may read it in evidence. So, also, a witness may
testify from such writing or record, though he retain no recollection of the
particular facts, if he is able to swear that the writing or record correctly
stated the transaction when made; but such evidence must be received with
caution.

Witness may refer to a Memorandum. A memorandum


referred to here are notes, for example in police assistance
the police man goes to the crime scene conducts ocular
inspection, takes down notes yun yung notes, interviews
witnesses takes down notes, yun yung notes na sinasabi dito.
2 years after taking down notes about the interview or ocular
inspection, when he is called to the witness stand, can you
expect him to remember? to be accurate in what he is telling
the court? he needs to refresh his memory.
The witness will say may I refer to my notes your Honor ok
you refer to your notes, according to my notes your Honor
on this day Etc etc that is only for the purpose of refreshing
his memory. Are those notes admissible as evidence? is there

24 | P a g e

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


any probative value or weight that can be given to those
notes?
No, walang probative value yan. It will be and it
cannot be offered in evidence because it will be
denied admission, what is admissible is not the
notes, it is the testimony of the witness after his
memory has been refreshed by reference to those
notes. It is not the notes themselves because it is self
serving. It has not been authenticated after such a
long time. It is questionable. it is the testimony of
the witness after his testimony has been refreshed
by reference to those notes that is admissible not
the notes themselves.
Section 34. Offer of evidence. The court shall consider no evidence which
has not been formally offered. The purpose for which the evidence is offered
must be specified.
Section 35. When to make offer. As regards the testimony of a witness,
the offer must be made at the time the witness is called to testify.
Documentary and object evidence shall be offered after the presentation of a
party's testimonial evidence. Such offer shall be done orally unless allowed
by the court to be done in writing.
Section 36. Objection. Objection to evidence offered orally must be made
immediately after the offer is made.
Objection to a question propounded in the course of the oral examination of
a witness shall be made as soon as the grounds therefor shall become
reasonably apparent.

Section 40. Tender of excluded evidence. If documents or things offered in


evidence are excluded by the court, the offeror may have the same attached
to or made part of the record. If the evidence excluded is oral, the offeror
may state for the record the name and other personal circumstances of the
witness and the substance of the proposed testimony.

Sec. 34 speaks of offer of evidence.


Remember offer of evidence is different from offer of proof.
offer of evidence is when you offer testimonial, object and
documentary evidence.
When do you offer testimonial evidence?
at the time the witness is called to the witness stand.
at the time the witness is called for examination. I
am calling to the witness stand your Honor and I am
offering the testimony of this witness for the
following purpose
For every offer, you have to state the purpose of the offer. So
when is testimonial evidence offered?
At the time the witness is called to the witness
stand.
On the other hand, when do u offer object and documentary
evidence?
After all testimonial evidence have been completed
I have called __________ the witnesses your Honor
and I am now ready to rest that case and I offer the
following series. That is offer of object and/or
documentary evidence

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

Whether it is object evidence, documentary evidence or


testimonial evidence you have to state the purpose of the
offer.
pag offer tatanungin yung kabila, objection? If the offer is
made orally, then the objection would have to be made orally
oral offer is encouraged.
For as long as the pieces of evidence are not voluminous, the
records are not voluminous, you can make an oral offer of
evidence. The other party will have to make an objection,
then the court will have to rule. pag nag rule ang court, the
court simply says, exhibit A is admitted, exhibit B is denied
admission, the court does not even have to give a reason.
admitted or denied
Remember, any piece of evidence that is denied admission
whether it is testimonial, object or documentary, shall not
form part of the records of the case.

25 | P a g e

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


If your evidence has been denied admission, therefore, it will
not form part of the records, but you believe that piece of
evidence is vital to your cause, you have the last remedy is
offer of proof, it is found in Sec. 40

Weight and sufficiency of evidence


Criminal cases proof beyond reasonable doubt
civil cases preponderance of evidence,
administrative cases substantial evidence.

Offer of proof is tender of excluded evidence. Ano yung


excluded d ba yung na denied admission. When do you make
an offer of proof?
After the court has already ruled on the offer of
evidence. This is the last opportunity for you to put
into record any evidence that has been actually
denied admission.

Preponderance of evidence is evidence of greater convincing


force. It does not refer to numerical superiority of evidence. It
does not mean that if you have a truck load of evidence as
against one or two pieces of evidence against the other party,
it does not mean you win the case. It is how convincing your
evidence is.

General Rule: any piece evidence which has not been


formally offered shall not be considered by the court.
Exception: if that piece of evidence has been duly identified
by testimony, duly recorded and forming part of the records
of the case, even if that piece of evidence has not been
formally offered, it will be considered
Objections
Rule: For every objection that you raise, you have to
state the legal basis
Different kinds of objections:
General and specific
Formal and substantive

In proof beyond reasonable doubt, what is important is


moral certainty. It does not require absolute certainty.
What is moral certainty?
Moral certainty is a persistent judgment in the mind
of the court. paulit ulit in the mind of the court, that
the person is guilty as charged, evaluate, still, it
comes again and again persistent judgment in the
mind of the court that the person is guilty as
charged.
Substantial evidence in administrative cases is that amount
of evidence that which a reasonable mind might accept as
adequate to justify a conclusion
Section 3. Extrajudicial confession, not sufficient ground for conviction. An
extrajudicial confession made by an accused, shall not be sufficient ground
for conviction, unless corroborated by evidence of corpus delicti.

General - you just state the ground


ex. Immaterial, incompetent
Specific - you actually state the specific ground
ex. Objection that calls for an opinion , objection
that is hearsay, he is testifying on a matter which he
does not have personal knowledge
formal - objection based on the defect in the form of the
question
ex. Objection question is leading, question is
misleading, question is kilometric, compound in the
form of question, defect
substantive - based on the inadmissibility of the evidence
ex. Witness is being confronted with a mere
photocopy of a particular document but the
question your Honor pertains to the contents of the
document ground: violation of the Best Evidence
Rule, Calling for an opinion, the question calls for an
opinion your Honor he is not qualified as an expert
witness.

Corpus delicti is literally body of the crime, but in law and in


jurisprudence specifically the law on evidence, corpus delicti
means the fact of the commission of the crime.
If a person executes an extrajudicial confession, under the
rules, even if his extrajudicial confession is constitutionally
compliant, meaning it was voluntarily made, it was made with
the assistance of a lawyer of his own choice, it was
constitutionally compliant he is owning it up to the killing
somebody, for as long as the facts of the case to which he is
owning up to has not been established, he cannot be
convicted based on his extrajudicial confession. The
confession will not be sufficient for conviction unless
corroborated by the facts of the commission of the crime.
Circumstantial evidence
Memorize the elements for circumstantial evidence to suffice
for conviction.
Difference of direct from circumstantial evidence.
Example of direct evidence: Eye witness account, I saw him
do it. I saw him kill the victim, I saw him take the jewelry.

26 | P a g e

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


In circumstantial you have to draw an inference of guilt. That
is why it is important for you to memorize the elements to
suffice for conviction
a) There must be more than one circumstance
b) the facts from which the inferences are derived are
proven
c) The combination of all the circumstances is such as
to produce a conviction beyond reasonable doubt.

Rule: you need not to authenticate a public document. As in


fact, a public document is prima facie evidence of the facts
stated therein because it has an official character.
So what you need to prove, what you need to authenticate,
for purposes of admissibility in evidence is a private
document.
General rule: you have to authenticate a private document

One witness says on the date and time of the incident I saw
the accused running away from the scene of the crime that
is one circumstance, can you draw an inference of guilt?
No. Not yet
Another witness says on the date and time of the crime, I
saw the accused running away from the scene of the crime
carrying a bloodied bolo that is another circumstance. A
third witness says, on the date and time of the incident, i
saw the accused running away from the scene of the crime,
carrying a bloodied bolo and blood splattered all over his
Bench t-shirt
These are circumstantial evidence from which you can draw
an inference of guilt but it will not yet suffice for conviction,
you first have to prove the basis, the circumstances.

Exception: if that private document is:


more than 30 years old
It does bear traces of changes or alteration
It is found in the custody of one in whom naturally
would be found if genuine or it is an ancient
document,
You need not authenticate, you need not prove the
genuineness and due execution.
Concept of Continuing Objection under Sec. 37 of Rule 132 when questions propounded are of the same class to which
objections have been raised and ruled upon, there is no need
to raise an objection every time that question is propounded.
You simply say I am registering my continuing objection to
this type of question.

You cannot draw an inference of guilt from mere allegations.


For purposes of circumstantial evidence to suffice for
conviction, you cannot draw an inference of guilt from mere
allegation. You cannot draw an inference of guilt from
another inference that is doubled opinion.

Where the question are of the same class to which objection


has been raised already and ruled upon, you register your
continuing objection to that line of questioning.

For circumstantial evidence to suffice for conviction, you can


only draw an inference of guilt from facts which are already
proven. ang dali kasi mag-allege. Remember, you are talking
about conviction, there will be eventual deprivation of liberty.
You have to be very careful.
These facts or these circumstances from which you draw an
inference of guilt must first be proven.
This Perpetuation of testimony is deposition before action or
pending appeal which is found in Rule 24 of the rules in civil
procedure. Concept of perpetuation is preservation of known
testimony from loss or destruction.
Documents (SEC.19-33)
Authentication of documents - you prove its genuineness
and due execution.

27 | P a g e

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


adverse claimants to that property to interplead with one
another.

SPECIAL CIVIL ACTIONS


There are special civil actions that are initiated by means of a
complaint and there are special civil actions that are initiated
by a Petition.

To interplead means to prove their respective claims to that


property.

Special Civil actions that are initiated by means of a


Complaint:
Partition
Foreclosure of Mortgage,
Interpleader,
Expropriation,
Forcible entry,
Unlawful Detainer

Since it is initiated by a Complaint, you file an Answer,


summons will be served,

By petition
Certiorari
Prohibition
Mandamus
Declaratory Relief
Contempt

Impropriety for example: there is only one claimant to the


property. In Interpleader, there are several claimants to one
and the same property. If there is only one claimant as
against the person in possession of the property, the person
in possession, if it is a personal property, can file an action for
replevin.

If a special civil action is initiated by means of a complaint,


the responsive pleading is an answer.
If the special civil action is initiated by means of a Petition,
the responsive pleading is a Comment or Opposition
These are called special civil actions because they cover
special circumstances apart from the ordinary civil cases
which are covered by the ordinary rules of procedure.
In Special Civil Actions since they cover special circumstances
they usually provide for their own rules of procedure. If the
special civil action does not provide for its own rules of
procedure, the ordinary rules of procedure will apply in a
suppletory character.
Interpleader
Interpleader is initiated by means of a complaint.
When can u interpose a complaint for interpleader?
If a person has in his possession or custody a
property or anything of value over which he has no
interest but there are several claimants to that
property.
The one who files the complaint is the plaintiff. In an
interpleader action, the plaintiff is the one who is in
possession or custody of the property or anything of value
over which he has no interest but there are several claimants
to that property. Hindi nya alam kung kanino ibibigay, so he
goes to court to file an action for Interpleader to compel the

Is a Motion to Dismiss available?


Yes, Sec. 4 Motion to Dismiss on any of the grounds
provided in rule 16 of the rules of civil procedure but
most importantly even on the ground of
Impropriety.

If there is only one claimant as against the person in


possession of the property, then just simply file an action for
replevin, if it is a personal property. If there is only one
claimant to that property, you cannot institute an
interpleader action. So if there is only one claimant and there
is an interpleader action,that is improper. The remedy is to
move to dismiss on the ground of impropriety or on any of
the grounds under Rule 16 of the Revised Rules on Civil
Procedure.
In the Answer to be filed by the defendant, the defendant
here is the adverse claimant. When you file an action for
Interpleader the first order to be issued is directing the
different claimants to interplead with one another and prove
their respective claims to the property.
What if in the course of the proceedings for an Interpleader
action, the adverse claimants have withdrawn their interests
(iniwan na lang isa). Lets say in an action X Y Z isa na lang ang
natira, the two withdrew their claims to the property, the
Interpleader action will be mooted because there are no
more adverse claimants there is only 1. What will happen to
the interpleader action?
It is dismissible on the ground that it has become
moot and academic but not at once. Under SC
jurisprudence, before the court dismisses the action,
the court will set it for hearing for the purposes of
allowing the plaintiff in that interpleader action to
prove damages because the plaintiff was forced to
file an action because he does not know, there are
several claimants to that property so he was forced
to file an action, he sustained and incurred damages

28 | P a g e

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


by way of filing fees, docket fees, hiring a lawyer so
according to the SC you first have to give the plaintiff
an opportunity to prove damages. If hindi sya nag
claim ng damages, dismiss the case. But for as long
as the plaintiff claims damages he has to be given an
opportunity to prove the damages he may have
sustained by reason of the filing of the Interpleader
action.
Declaratory Relief
In declaratory relief, you want a declaration of your rights. It
is initiated by means of a petition. The responsive pleading is
a comment or opposition.
The petitioner is aware that he has rights under a deed, an
instrument, an executive order or an ordinance but he does
not know what are those rights. That is why he is filing a
petition for declaratory relief for the court to declare what
are his rights under this particular instrument, that is the
purpose.
Interpretation is construction, the Petitioner says I know I
have rights under this instrument. But I want a declaration of
what my rights are.

Certiorari, Prohibition and Mandamus


There are 3 special Civil Actions under Rule 65. Certiorari,
Prohibition and Mandamus pinagsama lang sila because they
have a common denominator.
All of them Certiorari, Prohibition, Mandamus are initiated by
means of a petition.
Common ground there has been grave abuse of discretion
amounting to, lack of or in excess of jurisdiction.
For purposes of certiorari, prohibition and mandamus, you
institute it if there is no appeal nor any other speedy, plain
and adequate remedy in the ordinary course of law. If there is
no appeal it means that the order, judgment or resolution is
basically non-appealable not when the period for appeal had
already lapsed because certiorari, particularly, is no
substitute for a lost appeal.
Pag sinabi mong there is no appeal, it means the order,
judgment or resolution is basically non-appealable that is why
for purposes of Certiorari, Prohibition and mandamus
memorize Rule 41 Sec. 1 because it enumerates the
resolutions, judgments or orders that are non appealable.
if it is non-appealable your remedy is certiorari, prohibition or
mandamus depending on your purpose.

That is why you need to file a Petition for Declaratory Relief


before any breach or violation of that instrument. If that
particular law, instrument, executive order, or ordinance is
violated, there is now a violation of your right. If there is now
a violation of your right you now have a cause of action.
therefore you cannot institute a declaratory relief, you now
file an ordinary civil action because you now have a cause of
action.

Certiorari - If it is discretionary act, you want to question the


discretionary act.

So a declaratory relief must be instituted before any breach


or violation of the instrument.

You want to prevent the performance of an act it is


prohibition.

If you have already filed a declaratory relief and in the course


of the proceeding, the instrument is violated, madi-dismiss
ang petition for declaratory relief, it will be converted into an
ordinary civil action because you now have a cause of action.

Since Mandamus, certiorari and prohibition are initiated by a


petition the responsive pleading to be filed is a comment
which has to be filed within a period of 10 days.

Cause of action is an act or omission in violation of the rights


of another. In a petition for declaratory relief, you cannot ask
for any affirmative relief claiming for damages, kasi wala pang
rd
violation, wala pang cause of action. You cannot file a 3
party complaint because no material relief is prayed in an
action for declaratory relief kasi walang cause of action.

if you want to compel the performance of an act it is


mandamus.

Once you file a petition for certiorari, lets say there is an


order from the MTC, during the pendency of the proceedings
you go up to the RTC to question the propriety of the order
via a petition for certiorari, not by an appeal because the case
is still pending. Under present jurisprudence, can you invoke
the pendency of a petition for certiorari to stop or cause the
suspension of the proceedings in the court of origin?
No, The mere filing it will not stop for as long as you
do not secure a TRO or an injunction. it has no
effect. Tuloy tuloy pa rin ang proceedings before
that court. So the mere filing. You cannot anymore
invoke judicial courtesy. tapos yung doctrine na yun
sa eternal gardens case. Your Honor the RTC has

29 | P a g e

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


already taken cognizance of our petition for
certiorari out of Judicial courtesy to the RTC
sasabihin mo sa MTc Judge may we move for the
suspension of the proceedings that is not allowed,
for as long as there is no TRO or any injuctive relief
from the RTC where you filed the certiorari, the
proceedings before the MTC will have to continue.
Once a comment has been filed within a period of ten days,
the court may set the case for hearing or require the parties
to submit memoranda. wala yang pre trial conference like in
ordinary civil actions. once a comment is filed it is either you
set the petition for hearing for oral arguments or require the
filing of a memorandum. The court, however may dismiss the
petition if it finds the same to be patently without merit,
ngayon if the court finds that the petition for certiorari is
patently for delay, the party as well as the counsel shall be
fined triple not double the cost. There is no place for a
preliminary conference in a petition for certiorari.
Rule 64, the rule here adopts the procedure in Rule 65 kasi if
you notice yung Rule 65 yun ang basic. Review of the
resolutions, final orders of the COA and the COMELEC. These
are Constitutional bodies, you file your Petition for review to
the Supreme Court under Rule 64, but adopting the
procedure under Rule 65 which means that it is not actually a
Petition for Review that you file, it is a Petition for certiorari
adopting the procedure.
Sa petition for certiorari, mandamus, and prohibition under
Rule 65 you file it within a period of 60 days from notice of
the questioned resolution or judgment.
Itong review under Rule 64 while adopting the procedure
under Rule 65 nevertheless, the time frame for filing is 30
days from notice of the resolution or order of the COA and
COMELEC. The filing will not stop the execution unless the
Supreme Court orders otherwise.
Expropriation
Dati dati ang term jan is eminent domain now the term is
expropriation rightly so because it is a remedial law concept
eminent domain is a political law concept. It is the exercise of
the states power of eminent domain, to take away private
property for public purpose upon the payment of just
compensation.
For the purpose of the exercise this power of eminent
domain, the plaintiff, government or government
instrumentality, would have to file a complaint. Since, it is a
complaint the responsive pleading is an answer. As far as
expropriation is concerned no motion to dismiss is allowed.
The defendant is the owner of the private property which is
sought to be expropriated. If the defendant-owner of the

property sought to be expropriated has no objection to the


expropriation of his property, then he simply files a
Manifestation of no objection.
However, if he has any objection to the expropriation of his
property he has to an Answer not a Motion to Dismiss. In the
answer, he will set forth his objections.
Once the court issued an Order of Expropriation, it forecloses
or prevent any further objection to the expropriation of the
property.
Can the defendant who has no objection or does not file any
answer to the complaint for expropriation, can this defendant
owner of the property sought to be expropriated in an
expropriation proceeding be declared in default?
No, there is no declaration of default in
expropriation proceedings because the essence of
default you lose your standing you cannot anymore
present evidence. In expropriation, even if you dont
file an answer, there is an Order of Expropriation
foreclosing any objection but you are not prevented
from participating in the proceedings for the
purpose of determination of just compensation.
Once a government agency or instrumentality or the
government files a complaint for expropriation, they can ask
for a writ of possession provided they deposit the Assessed
value of the property with the government depositary
There is a difference, however, under RA 8974. RA 8974
covers expropriation of private property for national
government infrastructure projects. What is to be paid is not
only the assessed value, babayaran mo yung owner 100% of
the Market Value of the property based on the BIR Current
Relevant Zonal Valuation but only if this particular property
shall be used for National government infrastructure projects,
other than that you go Rule 67.
Remember the case of PIATCO? sabi ng SC jan because he
ordered the government expropriating to pay the assessed
value for you to enter the property yung NAIA sabi ng
Supreme Court, No, there is a special law for that purpose
because this is a case the government expropriating its own
property. kasi ang expropriate nila yung airport mismo that is
built on that property, hindi yung land kasi the land belongs
to the government. So it is an infrastructure project therefore
it is not Rule 67 that should govern in which case the
government is ordered to pay 100% of the Market Value
based on the BIR Zonal Valuation to the owner.
Sec. 11 of Rule 67, the right of the plaintiff to enter upon the
property of the defendant and appropriate the same for
public use or purpose shall not be delayed by an appeal from

30 | P a g e

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


the judgment. kasi ang requirement lang jan, lalo na pag na
affirm na yung expropriation, it shall not be delayed by an
appeal. But if the appellate court determines that plaintiff has
no right of expropriation, judgment shall be rendered
ordering the Regional Trial Court to forthwith enforce the
restoration of the property to the former registered owner on
appeal but it will not stop the execution.
Rule 70 Forcible entry and Unlawful Detainer
In Forcible Entry and Unlawful Detainer actions only the MTC
has original exclusive jurisdiction.
If it is the recovery of possession of real property, kasi if the
action is for the recovery of personal property the action is
replevin.
forcible entry and unlawful detainer, the actions are for the
recovery of physical possession.
Accion Publiciana, it is to recover possession but the action is
instituted beyond 1 year from date of demand, he has to
make a demand particularly in an unlawful detainer case
If it is to recover both title and possession then Accion
Reinvindicatoria. But if it is Reinvindicatoria, even if it is to
recover title and possession, the MTC has under present laws
and jurisprudence has jurisdiction, if it is Reinvindicatoria
depending on the assessed value of the property. If the
assessed value of the property does not exceed P20,000 in
the provinces or the assessed value of the property does not
exceed P50,000 in the Metropolitan area and if it is an action
to recover both title and possession then it will fall under the
jurisdiction of the MTC.
pero pag original exclusive jurisdiction of the MTC in forcible
entry and unlawful detainer.
If its forcible entry, the occupant of the property is ousted.
So possession by the defendant here is unlawful from the
beginning because the owner or occupant is deprived of
possession through FISTS (force, intimidation, strategy,
threat, stealth) That is why for purposes, jurisdictional
requirement for forcible entry is physical possession. how can
you say that he is deprived of physical possession by force
strategy, by stealth if he is not there.
He is ousted through force intimidation, strategy, threat
stealth, so the defendants possession is unlawful from the
very beginning.
In unlawful detainer, the occupation of the property is lawful
in the beginning which means that he is allowed to occupy by
virtue of a lease contract, an express contract or he is allowed
to occupy the property by tolerance. ok you may occupy the

property now but once I need it you have to leave otherwise


Ill file an action for ejectment against you. Yun ang unlawful
detainer.
It is lawful in the beginning he is allowed to occupy.
When does it become unlawful for the owner of the property
to institute an action for unlawful detainer?
Once there is already a demand for the occupant to
vacate the property because once there is a demand
to vacate the property, it would signal the
termination of the authority of the occupant to
continue with his occupation of the property. If
despite demand for him to vacate, na terminate na
yung authority to continue and he continued,
unlawful na yung kanyang continued occupation
because tinerminate na ng owner. By the fact that
there is a demand made upon you to vacate the
property, then his possession becomes unlawful and
therefore becomes rightful for an unlawful detainer
acting.
Therefore, the letter of demand is jurisdictional as far as the
unlawful detainer action is concerned. kasi nga lawful yung
occupation nya in the beginning but yung forcible entry
unlawful from the very beginning. itong unlawful detainer
lawful sya in the beginning, it becomes unlawful only if
despite demand which signals the termination of the
authority to occupy the property , andun ka na pa rin, illegal
na yung possession mo, therefore unlawful detainer
Therefore, jurisdictional requirement for purposes of
unlawful detainer is the letter of demand. The demand for
purposes of unlawful detainer is a demand to vacate and if he
owes rentals, to pay rental in arrears because if your demand
letter is simply for the defendant to pay the rental in arrears,
then that is only an ordinary civil action lang yan for
collection of some of money.
For purposes of unlawful detainer there is a demand to
vacate and despite demand refuses to vacate that is the basis
for unlawful detainer.
Lavivo v CA?- The parties entered into a contract to sell,
amortizations yan. It is so stipulated in the contract that the
would-be purchaser of the property may occupy the property
but he has to continue paying the amortizations, but after
paying the down payment he was allowed to occupy the
property so he was allowed to occupy. So his occupation was
lawful in the beginning. He failed to pay his monthly
amortizations in the property. A demand was made to vacate
and pay the monthly amortizations. MTC sustained, RTC also
sustained. RTC affirmed by the CA, Pag dating sa Supreme
Court they have a totally different view. Take note, at the

31 | P a g e

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


time the plaintiff made a demand for the defendant to
vacate, the contract which allowed the defendant in the first
place to occupy the property is still existing. It was still
existing, kaya nung hiniling na to vacate because he did not
pay. The issue is to vacate and pay the amortization which
you have failed to pay on its face naman pwede.
The Supreme court said, by virtue of what authority is the
defendant able to occupy?
by virtue of the contract to sell and at the time of
the demand for him to vacate the property because
of non-payment of amortization and at the time he
failed to vacate, existing pa yung contract to sell. So
you dont do it by filing an unlawful detainer action.
You first have to rescind. File ka muna ng action to
rescind the contract to sell. once the contract to sell
which in effect was the one who gave the authority
to stay in the premises, once it is rescinded, you now
make a demand for him to vacate the premises wala
ka na authority it is only then when he refuses to
vacate will you file an unlawful detainer case
Judgment rendered in a forcible entry and unlawful detainer
is immediately executory but it can be stayed under Rule 42
Sec. 8
Unlawful detainer action is covered by the rule on summary
procedure immediately executory.
The fact that the rule on summary procedure is already
incorporated on Rule 70 governing forcible entry and
unlawful detainer action does not mean that the rule on
summary procedure exclusively applies to forcible entry and
unlawful detainer because the rule on summary procedure
also applies for collection of sum of money for a total of
P200,000. Yung P400,000 jurisdiction yun. This one is the
applicability of the rule on summary procedure based on a
Supreme Court Circular November 2002
In a case covered by summary procedure the judgment is
immediately executory but it can be stayed.
How do we stay?
you perfect an appeal, post a supersedeas bond and
pay your rental deposit as may be adjudged in the
judgment.

Now if the MTC is affirmed by the RTC, the judgment of the


RTC is immediately executory. So you go up to the CA via a
Petition for Review under Rule 42. Can the judgment of the
RTC affirming the MTC which is appealed to the CA via a
Petition for Review be stayed in its execution by the fact of
filing of petition for review to the CA?
No, it is immediately executory. sabi sa rule, it is
immediately executory without prejudice to further
appeal.
Contempt
It is direct, if the contumacious behavior is committed in the
presence of or so near a judge because it is an insult to the
authority or position occupied by the judge. But the Supreme
Court said that judges should not be onion skinned. it is only
when it is too blatant ang pambabastos then you can cite him
for direct contempt.
In direct contempt, no need for notice and hearing
binabastos ka na harap harapan bibigyan mo pa sya ng notice
ise set mo pa for hearing.
It Is in Indirect contempt where there is a need in fact under
the present rules for purposes of indirect contempt you do
not simply file a motion, you file a separate petition. You have
to pay the filing fees.
Indirect contempt, there is simply a violation of the orders or
violation of the rules etc. It is indirect contempt because it
was not committed in the presence of or so near a judge it
has to be set for hearing to give him an opportunity to
explain. As in fact, even before iset for hearing pagka file pa
lang ng petition bibigyan sya ng show cause order, the Judge
on its own bibigyan sya ng show cause order. to show cause
within a period of 5 days why he should not be cited for
contempt for delaying for repeated failure to appear despite
notice of the pending proceedings thus delaying the
proceedings of the case, delaying the speedy disposition of
this case. The judge, on its own instance, can issue a show
cause order, can even initiate an action for indirect contempt.
Contempt, whether direct or indirect, contempt under the
rules of court is in the nature of a criminal action. Since it is in
the nature of a criminal action and there is no answer nor
oppositions filed in a petition for contempt, the person
cannot be declared in default. There is no default in criminal
action. Under the rules Sec. 4 Proceedings for indirect
contempt may be initiated motu propio by the judge by the
issuance of a show cause order or a separate petition.
If the contempt was committed against one judge, there is a
refusal to comply with the order of a particular judge for
refusal to comply with the order of this Judge in one

32 | P a g e

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN


particular case. the petition for indirect contempt should be
filed separately. Where should the petition for contempt go?
Can it be litigated separately?
most often than not, the petition for indirect
contempt is consolidated with the original case
because the better person who will determine
whether or not the action committed is
contumacious is the judge against whom the
contumacious behavior was committed.
so most often than not, for procedural convenience,
it is separately filed and docket fees are paid but it
will be consolidated with the original case where the
alleged order which was violated or refused to be
complied with was committed. So it is with the
particular court, particular Judge against whom the
contumacious behavior was committed.
The remedy against an order of direct contempt is Certiorari,
not appeal, on the ground of grave abuse of discretion
amounting to lack of or in excess of jurisdiction
If it is indirect contempt, it is appealable because there was a
hearing.
Sec. 11, the judgment or final order of a court in Indirect
contempt is appealable but execution of the judgment or
final order shall not be suspended until the bond is filed by
the person adjudged in contempt

33 | P a g e