Chapter IV: Testimonial Evidence

Competency and Credibility

law. Mariters conviction is not sufficient to have her

disqualified to testify. Her situation is not one of the
exceptions provided for by law.

Bar 2004

Competency of a Child Witness

Q: Distinguish: competency of the witness and credibility of

the witness

Q: May a person over 18 years old be sometimes

considered as a child?

A: Competency of a witness has reference to the basic

qualifications of a witness as his capacity to perceive and
his capacity to communicate his perception to others. It
also includes the absence of any of the disqualifications
imposed upon a witness.

A: sometimes, he may. In child abuse cases, a child

includes one over 18 years but is found by the court as
unable to fully take care of himself or protect himself from
abuse, neglect, cruelty, exploitation or discrimination
because of a physical or mental disability or condition (Rule
on Examination of a Child Witness).

Credibility of the witness refers to the believability of the

witness and has nothing to do with the law or the rules. It
refers to the weight and the trustworthiness or reliability of
the testimony.
In deciding the competence of a witness, the court will not
inquire into the trustworthiness of the witness. Accordingly,
a prevaricating witness of one who has given contradicting
testimony is still a competent witness.
Bar 1994
Q: Al was accused of raping Lourdes. Only Lourdes
testified on how the crime was perpetrated. On the other
hand, the defense presented Als wife, son and daughter to
testify that Al was with them when the alleged crime took
place. The prosecution interposed a timely objection to the
testimonies on the ground of obvious bias due to the close
relationship of the witnesses with the accused. If you were
the judge, how would you rule on the objection?
A: I would overrule the objection, interest in the outcome of
a case which also includes close relationship is not a
ground to disqualify a witness (sec. 20 R132)
Bar 1994
Q: Louis is being charged with frustrated murder of Roy.
The prosecutions lone witness, Mariter, testified to having
seen Louise prepare the poison which she later
surreptitiously poured into Roys wine glass, Louise sought
the disqualification of Mariter as witness on account of her
previous conviction of perjury. Rule on Louises contention.
A: The contention of Louise has no legal basis. Basic is the
rule that previous conviction is not a ground for
disqualification of a witness, unless otherwise provided by

Bar 2005
Q: When may the trial court order that the testimony of a
child be taken by live-link television?
A: The court may order that the testimony of the child be
taken by live-link tv if there is a likelihood that the child
would suffer trauma from testifying the presence of the
accused, his counsel or the prosecutor as the case may
be. The trauma must be of a kind which would impair the
completeness or truthfulness of the testimony of the child
(Examination of a child witness).
Survivorship Disqualification Rule of the Dead Mans
Statute
Hypo:
Mr. D approaches Mr. C one rainy Sunday morning to
borrow one hundred thousand pesos to be paid exactly a
year after. Without hesitation, c gives d the amount
requested. C does not require d to execute a promissory
note. They had been very good friends for as long as they
can remember. Years ago, when Mr. Cs small business
was on the verge of bankruptcy it was the generosity of the
then wealthy Mr. D that bailed him out. Exactly a day
before the agreed date for payment, Mr. D dies without
paying the debt. What does Mr. C do? Well he does what
every creditor would do under the circumstances. He goes
to the executor of what remains of the estate of Mr. D, and
tells him of the debt of Mr. D. he says: Today is supposed
to be the due date of his debt. I cannot demand payment
from him because his dead. You are the executor and alive.
What is the effect of the death of Mr. D?

Mr. C is rendered incompetent to testify as to the

transaction he has with D. he is incompetent because of
the possibility that his claim is fraudulent. If C were to be
heard there would be a high risk of paying a fraudulent or a
fictitious claim. It is C who has the motive to lie. He is the
survivor. D cannot lie. He is dead. He did not survive; he
cannot answer back, nor disprove the claim of C. To level
the playing field between the lucky survivor and the poor
deceased our remedial law ancestors devised a rule that
would seal the lips of the survivor by declaring him
incompetent to testify on the transaction between him and
the deceased the rule is definitely one that does not protect
the survivor even at the risk of not paying a just and valid
claim because it is the survivor who has the stronger
reason to file a false claim. The rule is for the protection of
the guy who died. Hence the name, dead mans statute.
The rule will not apply where the plaintiff is the executor or
administrator as representative of the deceased or if the
plaintiff is the person of unsound mind. So if the executor of
the estate of Mr. C sues Mr. D to collect an unpaid debt
incurred in favor of C by D before the death of C, D
although a survivor, is not precluded from testifying as to
the transaction he previously had with C because the case
is not upon a claim against the estate of C but a claim by
his estate against D.
Bar 2001
Q: Maximo filed an action against Pedro, the administrator
of the estate of the deceased Juan, for the recovery of a
car which is part of the latters estate. During the trial,
Maximo presented witness Mariano who testified that he
was present when Maximo and Juan agreed that the latter
would pay a rental of P20000 for the use of Maximos car
for one month after which Juan should immediately return
the car to Maximo. Pedro objected to the admission of
Marianos testimony. If you were the judge, would you
sustain Pedros objection? Why?
A: The objection of Pedro should not be sustained. The
testimony is admissible because the witness is not qualified
to testify. Those disqualified under the dead mans statute
or the survivorship disqualification rule are parties or
assignors of parties to a case, or persons in whose behalf
a case is prosecuted. The witness is not one of those
enumerated under the rule (sec23 R 130).

Bar 2007
True or False
Q: The surviving parties rule bars Maria from testifying for
the claimant as to what the deceased Jose ad said to her,
in a claim filed by Pedro against the estate of Jose.
A: FALSE
The rule bars only a party plaintiff, or his assignor or a
person in whose behalf a case is prosecuted. Maria is
merely a witness and is not one of those enumerated as
barred from testifying.
Marital Disqualification Rule
NOTE!!!!
-The marital disqualification rule under sec. 22 of Rule 130
forbids the husband or the wife to testify for or against the
other without the consent of the affected spouse except in
those cases authorized by the rule. The prohibition extends
not only to a testimony adverse to the spouse but also to a
testimony in favor of the spouse. It also extends to both
criminal and civil cases because the rule does not
distinguish.
-In order that the husband or wife may claim the privilege, it
is essential that they be validly married. If they are not,
there is no privilege. Rule does not cover illicit cohabitation.
-Sec 22 r 130 requires not only a valid marriage but the
existence of that valid marriage at the moment the witnessspouse gives the testimony.
- the rule applies whether the witness-spouse is a party to
the case or not but the other spouse must be a party. That
the other spouse must be a party is evident from the
phrase neither the husband nor the wife may testify for
or against the other...
Refer more to pp266-267 (Riano)
Exceptions to Marital Disqualification Rule
Bar 2000

Q: Vida and Romeo are legally married. Romeo is charged

in court with the crime of serious physical injuries
committed against Selmo, son of Vida, step son of Romeo.
Vida witnessed the infliction of the injuries on Selmo by
Romeo. The public prosecutor called Vida to the witness
stand and offered her testimony as eyewitness. Counsel for
Romeo objected on the ground of the marital
disqualification rule under the rules of court. (a)Is the
objection valid? (b) Will your answer be the same if Vidas
testimony is offered in a civil case for recovery of personal
property filed by Selmo against Romeo?
A: (a) The obejection is not valid. While the rule provides
that neither the husband nor the wife may testify for or
against the other without the consent of the affected
spouse, the prohibition is merely the general rule. Said rule
is subject to certain exceptions, one of which is in a
criminal case committed by one against the direct
descendant of the other. Romeo is accused of committing a
crime against Selmo, the son of Vida and the latters direct
descendant.
(b) The answer will not be the same. The rule in a
criminal case is not the same as that in a civil case. In a
civil case, for the marital disqualification rule not to apply,
the case must be by one spouse against the other. In the
case under consideration, the case is by the son of one
spouse against the other spouse. Romeo may thus, invoke
the marital disqualification rule against Vidas proposed
testimony.
Testimony by the Estranged Spouse
Bar 2006
Q: Leticia was estranged from her husband Paul for more
than a year due to his suspicion that she was having an
affair with Manuel, their neighbor. She was temporarily
living with her sister in Pasig City.

Can Leticia testify over the objection of her husband on the

ground of martial privilege?
A: Leticia cannot testify. Sec22 of R130 bars her testimony
without the consent of the husband during the marriage.
The separation of the spouses has not operated to
terminate their marriage.
Pls consider this!
Leticia may testify over the objection of her husband.
Where the marital and domestic relations between her and
the accused husband have become so strained that there
is no more harmony, peace or tranquility to be preserved,
there is no longer any reason to apply the Marital
Disqualification rule.
Bar 2004
Q: XYZ, an alien, was criminally charged of promoting and
facilitating child prostitution and other sexual abuses under
RA 7610. The principal witness against him was his Filipina
wife, ABC. Earlier, she has complained that XYZs hotel
was being used as a center for sex tourism and child
trafficking. The defense counsel for XYZ objected to the
testimony of ABC at the trial of the child prostitution case
and the introduction of the affidavits she executed against
her husband as a violation of espousal confidentiality and
marital privilege rule. It turned out that DEG, the minor
daughter of ABC by her first husband who was a Filipino
was molested by XYZ earlier. This, ABC had filed for legal
separation from XYZ since last year.
May the court admit the testimony and affidavits of the wife,
AB, against her husband XYZ, in the criminal case
involving child prostitution?

For unknown reasons, the house of Leticia's sister was

burned, killing the latter. Leticia survived. She saw her
husband in the vicinity during the incident. Later, he was
charged with arson in an Information filed with the Regional
Trial Court, Pasig City.

A: If the testimony and affidavit of the wife are evidence of

the case against her husband for child prostitution involving
her daughter, the evidences are admissible. The marital
privileged communication rule under sec 24 rule 130 as
well as the marital disqualification rule under sec 22 of rule
130 do not apply to and cannot be involved in a criminal
case committed by a spouse against the direct
descendants of the other.

During the trial, the prosecutor called Leticia to the witness

stand and offered her testimony to prove that her husband
committed arson.

A crime committed by the husband against the daughter of

his wife is considered a crime committed against the wife
and directly attacks or vitally impairs the marital relations.
Bar 1995

Q: Allan and Narita were married on Aug 1 1989, after 2

months, Narita told Allan in confidence that the 10 year old
Liza whom she claimed to be her niece was actually her
daughter by a certain married man
In 1992, Narita obtained a judicial decree of nullity of her
marriage with Allan on the latters psychological incapacity
to fulfill his marital obligations. When the decree became
final, Liza assisted by narita, filed 10 cases of rape against
Allan committed in 1991. During the trial, Narita was called
to the witness stand to testify as a witness against Allan
who objected thereto on the found of marital
disqualification.
1.

As a public prosecutor, how would you meet

the objection?

2.

Suppose Naritas testimony was offered

while the decision nullifying her marriage to
Allan was pending appeal, would your
answer be different?

3.

Suppose Narita died during the pendency of

the appeal, and soon ager, the legal wife of
basilio sued for legal separation on sexual
infidelity in view of Basilios love affair with
Narita. At the trial Allan was called by
Basilios wife to testify that narita confided to
him during their marriage that liza was her
love child by basilio. As counsel for Basilio,
can you validly object to the presentation of
Allan as witness for the plaintiff? Explain.

A:
1. I would ask the court to overrule the objection.
Under the marital disqualification rule, the objection to the
testimony of one spouse against the other may be invoked
only during the marriage. At the time the testimony of
Narita was offered, the marriage was already dissolved,
besides, the crime was committed against a direct
descendant of Narita.
2. The answer would not be different and the
court may likewise be asked to overrule the objection. The
marital disqualification rule may not be invoked in a
criminal case for a crime committed against the direct
descendant of the other spouse. Here, liza is the daughter
of Narita.
3. Suggested answer: I could validly object to the
presentation of Allan as a witness on the ground that the

communication of Narita was a privileged communication

which could be invoked during or after the marriage.
Moreover, the testimony of Allan would be hearsay.
Writers comment: it is submitted that the
testimony could not be validly objected upon by Basilios
counsel on the basis of the marital priv comm.. rule. Basilio
does not own the privilege. The prerogative to object to a
confidential communication between spouses is vested
upon the spouses themselves, particularly the
communicating spouse, not a third person. This is clear
from the provision cannot be examined without the
consent of the other the proper objection should be on
hearsay grounds not on privileged communication.
Bar 1998
Q: C is the child of the spouses H and W. H sued his wife
for judicial declaration of nullity of marriage under Art. 36 of
the FC. In the trial, the ff. testified over the objection of W:
C, H, and D, a doctor of medicine who used to treat W. rule
on Ws objection which are the ff:
a.

H cannot testify against her because of the rule

on marital privilege

A: The objection should be overruled. The rule invoked by

W, the rule o marital privilege does not apply to a civil case
by one against the other. The suit between the spouses is a
civil case against the other.
Attorney-Client Privilege
Bar 2008
Q: A tugboat owned by Speedy Port Service, Inc. (SPS)
sank in Manila Bay while helping tow another vessel,
drowning five (5) of the crew in the resulting shipwreck. At
the maritime board inquiry, the four (4) survivors testified.
SPS engaged Atty. Ely to defend it against potential claims
and to sue the company owning the other vessel for
damages to the tug. Ely obtained signed statements from
the survivors. He also interviewed other persons, in some
instance making memoranda. The heirs of the five (5)
victims filed an action for damages against SPS.
Plaintiffs' counsel sent written interrogatories to Ely, asking
whether statements of witnesses were obtained; if written,
copies were to be furnished; if oral, the exact provisions
were to be set forth in detail. Ely refused to comply, arguing

that the documents and information asked are privileged

communication. Is the contention tenable? Explain.
A: The contention is not tenable. The documents and
information sought to be disclosed are not privileged. They
are evidentiary matters which will eventually be disclosed
during the trial. What is privileged under sec. 24b of R 130
is (a) the communication made by the client to the attorney,
or (b) the advice given by the attorney, in the course of, or
with the view to professional employment. The information
sought is neither a communication by the client to the
attorney nor is it an advice by the attorney to his client.
Physician- Patient Privilege
Bar 1998
Q: C is the child of the spouses H and W. H sued his wife
for judicial declaration of nullity of marriage under Art. 36 of
the FC. In the trial, the following testified over the objection
of W: C H and D, a doctor of medicine who used to treat W.
Rule on Ws objection which are the ff:
(C.1.). D cannot testify against her because of the
doctrine of privileged communication.
(c.2) C cannot testify against her because of the
doctrine of parental privilege

confession of sins. As clearly provided in the rule. The

advice given as a result of the confession, must be made in
the ministers processional character or in his spiritual
capacity. Accordingly, where the penitent discussed
business arrangements with the priest, the privilege does
not apply.
Privileged Communication under the rules on
electronic evidence
Priv. Comm apply even to electronic evidence. Under sec.
3 rule 3 of the rules on e-evid, the confidential character of
a privileged communication is not lost solely on the ground
that it is in the form of an e-document.
Other Privileged Communication not found in the
Rules of Court
-editors may not be allowed to disclose the source of
published news
-voters may not be compelled to disclose for whom they
voted
-trade secrets
-info. contained in tax census returns; and bank deposits

A1: D cannot testify over the objection of W where the

subject of the testimony is the advice or treatment given by
him or any information which he may have acquired in
attending to W in his professional capacity.

-under Art. 233 Labor Code information and statements

made at conciliation proceedings shall be treated as
confidential. AMLA, institutions covered by the law and its
officers and employees who communicate suspicious
transactions to AMLC are barred from disclosure the fact of
such report to other persons.

A2. W cannot invoke the privilege which belongs to the

child. C may testify if he want to although he may not be
compelled to do so.

Examination of Witnesses

Priest/Minister- Penitent Privilege

NOTE!
The privilege extends not only to a confession made by the
penitent but also to any advice given by the minister or
priest. The confession and the advice must have been
made or given pursuant to the course of discipline of the
denomination or sect to which the minister or priest
belongs. Thus, the minister or priest must be duly ordained
or consecrated by his sect.
Not every communication made to a minister or priest is
privileged. The communication must be made pursuant to

Examination of Witness and Record Proceedings

Bar 1978
Q: After the accused himself had testified in his defense in
a murder case, the trial judge over the objection of the
fiscal, allowed the defense counsel to file and merely
submit the affidavits of the other witnesses of the accused
in lieu of their direct testimony but subject still to cross
examination by the prosecution. The fiscal thus filed with
the SC a petition for certiorari and prohibition to nullify the
order of the trial court judge allowing such a procedure.
Should said petition be granted?

A: The petition should be granted. The provisions of the

Rules of Court require that the examination of the
witnesses shall be done in open court and their answers be
given orally, not in writing unless the exceptions mentioned
therein apply to with the witness is incapacitated to speak,
or the question calls for a different mode of answer. None
of the exceptions apply to the case under consideration.
The court therefore, acted in excess of jurisdiction
amounting to lack of jurisdiction when it allowed the
presentation of the affidavits without an oral examination of
the witness.
Rights and Obligations of a Witness
Bar 2005

Should the DNA evidence be admitted or not?

A: The DNA evidence should be admitted. The right against
self-incrimination applies only to testimonial evidence.
Extracting blood samples and cutting strands of hair do not
involve testimonial compulsion but purely mechanical acts
which neither requires discretion or reasoning.
Bar 1998

Q: Under Republic Act No. 8353, one may be charged with

and found guilty of qualified rape if he knew on or before
the commission of the crime that he is afflicted with Human
Immuno-Deficiency Virus (HIV)/Acquired Immune
Deficiency Syndrome (AIDS) or any other sexually
transmissible disease and the virus or disease is
transmitted to the victim.
Under Section 17(a) of Republic Act No. 8504 the court
may compel the accused to submit himself to a blood test
where blood samples would be extracted from his veins to
determine whether he has HIV.
a)

forensic matching of the materials found at the crime scene

and AAs hair and blood samples, AAs counsel objected,
claiming that DNA evidence is inadmissible because the
materials taken from AA were in violation of his
constitutional right against self-incrimination as well as his
right of privacy and personal integrity.

Are the rights of the accused to be presumed

innocent of the crime charged, to privacy, and
against self-incrimination violated by such
compulsory testing? Explain.

A: The rights of the accused are not violated by such

testings. This is a settled rule. There is no testimonial
compulsion involved by extracting blood from the accused
for testing purposes. There is hence, no violation of the
right to privacy and the right to be presumed innocent.
Bar 2004
Q. At the scene of a heinous crime, police recovered a
mans shorts with blood stains and strands of hair. Shortly
afterwards, a warrant was issued and police arrested the
suspect. AA during his detention, a medical tech extracted
blood sample from his finger and cut a strand from his hair,
despite AAs objections
During AAs trial for rape and murder, the prosecution
sought to introduce DNA evidence against AA, based on

Q: A was accused of having raped X. rule on admissibility

of the ff. pcs. Of evidence:
-

A pair of short pants allegedly left by A at the

crime which the court, over the objection of A,
required him to put on and when he did, it fit him
well.

A: The pair of short pants may be considered as

circumstantial evidence when taken with other
circumstances. No valid objection may be interposed over
the order of the court to put on the pair of pants. The right
against self-incrimination does not apply to a physical and
mechanical act. It applies only to testimonial compulsion
which is not the case under the facts.
NOTE: if the witness is the accused, he may totally refuse
to take the stand. A mere witness cannot altogether refuse
to take the stand. Before he refuses to answer, he must
wait for the incriminating question.
Leading questions
Q: The case is a collection case. The defendant contends
that the debt has been paid. He calls a witness to testify to
the fact of payment.
-while the plaintiff and the defendant were engaged in a
conversation on the date and time you mentioned, did you
see the defendant deliver 50k to the plaintiff?
Here, the question of objectionable on the ground that it is
leading. Here the examiner obviously wants the witness to
directly testify that money was delivered by the defendant

to the plaintiff in his presence. The question could have

been properly framed in this manner: what have you
observed if any, while the plaintiff and the defendant were
engaged in a conversation
Q. The fact situation is a robbery case. The accused claims
innocence and that a couple of hours after the alleged
robbery, he is arrested by the police while in the park with
his children. The defense counsel calls the accused to the
stand.

A: The testimony would be admissible even if it would be

an opinion. The opinion of an ordinary witness is
admissible when such testimony refers to his impressions
of the emotion, behavior condition or appearance of
person.

--------x--------o---------------o----------x
CHAPTER V

- What where you doing in the park? I was taking a stroll

with my two adolescent children,
- While you were in the park with your children, the police
officers arrived to arrest you, is that true.
The question is leading. It suggests the next
event which the witness should testify to. The atty. Could
convert the question into a non-leading one by taking the
suggestive element our of the question. Thus What
happened if any, while you and your children were at the
park?

HEARSAY EVIDENCE
Q. What is the hearsay rule?
In relation to the hearsay rule, what do the following rules
of evidence have in common?
1. The rule on statements that are part of the res gestae;
2. The rule on dying declarations;
3. The rule on admissions against interest.

Opinion Evidence

A: 1. Sec. 36 R.130

Open of an Ordinary Witness; When Admissible

2. They are exceptions to the rule that hearsay evidence

is inadmissible. They are in other words, admissible
hearsay

Bar 2005
Q: Dencio barged into the house of Marcela, tied her to a
chair and robbed her of assorted pieces of jewelry and
money. Dencio then brought Candida, Marcelas maid, to a
bedroom where he raped her. Marcella could hear Candida
crying and pleading.Huwag! MAawa ka sa akin!
After raping Candida, Dencio fled from the house with the
loot. Candida then untied Marcela and rushed to the police
station about a kilometer away and told Police Officer
Roberto Maawa that Dencio had barged into the house of
Marcela, tied the latter to a chair and robbed her of her
jewelry and money. Candida also related to the police
officer that despite her pleas, Dencio had raped her. The
policeman noticed that Candida was hysterical and on the
verge of collapse. Dencio was charged with robbery with
rape. During the trial, Candida can no longer be located.
b)

If the police officer will testify that he noticed

Candida to be hysterical and on the verge of
collapse, would such testimony be considered as
opinion, hence, inadmissible? Explain.

Bar 2004
Q: Distinguish hearsay evidence and opinion evidence
A.

Hearsay evidence is one that is not based on

ones personal perception but based on the
knowledge of others to prove the truth of the
matter asserted in an out-of-court declaration
(sec36R130)
An opinion evidence is based n the personal
knowledge or personal conclusions of the
witness based on his skill, training or experience
(sec. 49 R 130)

Independently Relevant Statements

Bar 2003

Q: The prosecution presented in evidence a newspaper

clipping of the report to the reporter who was present
during the presscon stating that X admitted the robbery. Is
the newspaper clipping admissible against X?
A: The newspaper clipping is admissible as non-hearsay if
offered for the purpose of showing that the statement of X
was made to a reporter regardless of the truth or falsity of
the statement. The admissibility depends now on whether
the fact that the statement was made is relevant to the
case. It is relevant, it is admissible as an independent
relevant statement. It would be hearsay if offered to prove
the truth that x was the robber.
Note: The statement of X to a reporter may be admitted as
an admission under sec 26. of R130. This answer should
also be considered by the examiner because it has a clear
legal basis.

Bar 1985
Q: Fallen by a bullet upon being fired at, Santos before
expiring told Romero, a passerby who came to his rescue,
I was shot by Pablo, our neighbor
May Romeros testimony o what was told him by Santos be
offered and admitted in evidence in the separate civil action
for damages brought by the heirs against Pablo Cruz?
Discuss
A: The statement is admissible. A dying declaration, as in
the facts in the case at bar, may be offered in a civil case
provided that the cause and circumstances of the death of
the declarant are the subjects of inquiry.

Res Gestae

Bar 1991

Spontaneous Statement

Q: What are the requisites to the admissibility of a dying

declaration?

Bar 2005

See sec 37 of Rule 130

Q: One evening at 9:00 just as he reached the gate of his
house in Apas, Cebu city, and as soon as he alighted from
his car to open the gate, Carlos was shot by tito, who had
been waiting behind a coconut tree nearby, with a .38
caliber revolver, Carlos was hit at the sternum of the
second rib. Hearing the shot, Marilyn, Carlos; wife ran out
toward the gate and found Carlos lying on the ground, with
blood splattered on his chest. With her son Y, she brought
Carlos to the Cebu Doctors Hospital. In the car, although
he was in a semi0conscious state, Carlos told Marilyn that
it was Tito who shot him. Carlos was brought to the ER.
However, two hours later, he expired. Tito was then
charged with murder before the RTC of Cebu. Marilyn was
presented as witness for the prosecution by her testimony
regarding the above statement of Carlos was objected to
under the hearsay rule. The court overruled the objection
on the ground that the statement may be considered as a
dying declaration. Is the ruling correct?
A: The ruling is correct. While declaration of Carlos is
hearsay evidence, the declaration is admissible as a dying
declaration and hence, admissible as an exception. The
declaration of Carlos contains all the elements of a during
declaration (should enumerate the elements).

Q: Dencio barged into the house of Marcela, tied her to a

chair and robbed her of assorted pieces of jewelry and
money. Dencio then brought Candida, Marcelas maid, to a
bedroom where he raped her. Marcela could hear Candida
crying and pleading: Huwag! Maawa ka sa akin! After
raping Candida, Dencio fled from the house with the loot.
Candida then untied Marcela and rushed to the police
station about a kilometer away and told Police Officer
Roberto Maawa that Dencio had barged into the house of
Marcela, tied the latter to a chair and robbed her of her
jewelry and money. Candida also related to the police
officer that despite her pleas, Dencio had raped her. The
policeman noticed that Candida was hysterical and on the
verge of collapse. Dencio was charged with robbery with
rape. During the trial, Candida can no longer be located.
a)

If the prosecution presents Police Officer Roberto

Maawa to testify on what Candida had told him,
would such testimony of the policeman be
hearsay? Explain.

A: The testimony would be hearsay if offered to prove the

truth of the statement of Candida, but an admissible
hearsay as an exception to the hearsay rile. Under the
rules of court, statements made by a person while a
startling occurrence are taking place or immediately proper
or subsequent thereto with respect to the circumstances

thereof, maybe given in evidence as part of the res gestae.

The statements made by Candida to the police officer falls
within the res gestae rule.

Substantial Evidence

If the statement of Candida is offered merely to prove the

tenor of the statement, i.e. what Candida told the police
officer without regard to whether the statement is true or
not, it may be considered as an independently relevant
statement and this not hearsay.

Q: Dist preponderance of evidence from substantial

evidence

--oOo

Chapter VI
Burden of Proof, Quantum of Evidence and
Presumptions

Bar 2003

A: The term preponderance of evidence applies to civil

cases. It means the greater or superior weight of
evidence. It is the evidence that is more convincing and
more credible than the one offered by the adverse party. It
means that the evidence as a whole adduced by one side
is superior to that of the other.
Substantial Evidence applies to cases filed before
administrative or quasi-judicial bodies and which requires
that in order to establish a fact, the evidence should
constitute that amount of relevant evidence which a
reasonable mind might accept as adequate to support a
conclusion.

Bar 2004

--oOO

Q: Dist: Burden of proof and burden of evidence

A: Burden of proof is the obligation of a party to present
evidence on the facts in issue necessary to establish his
claim or defense by the amount of evidence required by
law.
Burden of evidence is the duty of a party to go forward with
the evidence to overthrow any prima facie presumption
against him.

Chapter VII
Offer of Evidence and Trial Objections
When Formal Offer of Evidence is Not Required
A formal offer of evidence is not required in certain cases:
1.

In a summary proceeding because it is a

proceeding where there is no full blown trial

Bar 1995

2.

Q: Explain the equipoise doctrine in the law of evidence

and cite its constitutional basis.

Documents judicially admitter or taken judicial

notice of

3.

Documents, affidavits and depositions used in

rendering a summary judgment;

4.

Documents or affidavits used in deciding quasijudicial or admin. Cases

5.

Lost objects previously marked, identified,

described in the record and testified to by
witnesses who had been subjects of crossexamination in respect to said objects

A: The equipoise doctrine is based on the principle that no

one shall be deprived of life, liberty or property without due
process of law.
The doctrine refers to a situation where the evidence of the
parties is evenly balanced or there is doubt on which side
the evidence preponderates. In this case the decision
should be against the party with the burden of proof.
Hence, where the burden of proof is on the plaintiff and the
evidence does not suggest that the scale of justice should
weigh in his favor the court should render a verdict for the
defendant.

Bar 2003
Q: X and Y were charged for murder. Upon application
of the prosecution, Y was discharged from the
information to be utilized as a state witness. The

prosecutor presented Y as witness but forgot to state

the purpose oof his testimony much less offer it in
evidence. Y testified that he and X conspired to kill the
victim but it was X who actially shot the victim. The
testimony of U was the only material evidence
establishing the guilt of X. H was thorognly crossexamined by the defense counsel, after the
prosecution rested its case, the defense filed a motion
for demurrer to ecidence based on the following
grounds:
a.

The testimony of Y should be excluded because

its purpose was not initially stated and it was not
formally offered in evidence as required by s. 34 r
132 off evidence
Rule on the motion of the demurrer.

A: The demurrer to evidence should be denied.

While under the Rules of Court, the court shall
consider no evidence which has not been
formally offered this is true only when the failure
to offer evidence has been objected to. The
failure to object to the omission of the prosecutor
and the cross-examination of the witness by the
adverse party, taken together, constitute a waiver
of the defect.
How an Offer of Evidence is Made
Bar 1983
Atty. Felipe Malang was the counsel for the plaintiff in an
action to collect the alleged purchase price of a tractor. For
his principal defense, the defendant alleged that the true
transaction between the parties was only a lease of the
tractor, not a sale thereof, and therefore the defendant,
being a mere lessee, was not liable for the alleged
purchase price
In the course of the trial, lawyer was asked his
witnesses to identify certain documents which he marked
as: Exhibit A, the delivery receipt signed by the defendant
acknowledging delivery of the tractor,..Pls refer to p461
(toooooooooooo long)
Did Atty. Malang commit any error in the manner by which
he made an offer of the documentary evidence made by
the plaintiff? Reasons

A: Atty. Malang committed errors in the manner by which

he offered is documentary evidence
Under the rules, when a party makes a formal offer of his
evidence, he must state the nature or substance of the
evidence, and the specific purpose for which the evidence
is offered. Atty. Malang failed to do all these.
Bar 1997
Q: What are the two kinds of objections? Explain each
briefly. Give an example of each
A: Formal and substantive Objections
A formal objection is one directed against the alleged
defect in the formulation of the question. Examples of
defectively formulated questions: ambiguous question;
leading and misleading questions; repetitious questions;
multiply questions; argumentative questions
A substantive objection are objections made and directed
against the very nature of the evidence, i.e., it is in
admissible either because it is irrelevant or incompetent or
both. Examples: parol; not the best evidence; hearsay
privileged communication not authenticated; opinion; res
inter alios acta
Bar 2004
Q: in a complaint for a sum of money filed before the MM
RTC, plaintiff did not mention or even just hint at any
demand for payment made on defendant before
commencing suit. During the trial, plaintiff dully offered Exh.
A in evidence for the stated purpose of proving the making
of extrajudicial demand on defendant to pay P500k the
subject of the suit. EXh A was a letter of demand for
defendant to pay said sum of money within 10 days from
receipt, addressed to and served on defendant some 2
months before suit was begun. Without objection from
defendant, the court admitted exh A in evidence.
A: The admission of the evidence was correct. There was
no objection when Exh S was offered in evidence. It could
have been objected to on the ground that is not related to
an issue raised in the pleadings. However, it is a basic rule
that inadmissibility of evidence may be waived.
Tender if Excluded Evidence (Offer of Proof)
Bar 1991

Q: Dist. Formal offer of evidence from offer of proof

A: Formal offer of evidence refers either to the offer of the
testimony of a witness prior to the latters testimony, or to
the offer of the documentary and object evidence after a
party has presented his testimonial evidence
Offer of proof, is the process by which a proponent of
excluded evidence tenders the same. If what has been

excluded is testimonial evidence, the tender is made by

stating for the record the name and other personal
circumstances of the proposed witness and the substance
of his proposed testimony. If the evidence excluded is
documentary or of things, the offer of proof is made by
having the same attached to or made a part of the record.