LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
June 17, 2015 (ELGuiritan)
RULE 128
GENERAL PROVISIONS
What is law? Law is a rule of the human conduct just and
obligatory promulgated by legislative or legitimate authority for
common benefit and service.
What are the branches of law?
1. Substantive law is that branch of law which creates,
defines and regulates rights, so when you talk about the
civil code, the civil law, criminal law, commercial law
theyre all part and parcel of substantive law. For
example youre a prospective buyers, theres a
prospective seller, it put therefore be the law that would
create, define, and regulate the rights as such being
privy to a contract, is it not that under Article 1458 of
the civil code by contract of sale one of the contracting
parties binds himself to transfer the ownership of and to
deliver a determinate thing to another called the buyer
is also obligated to pay therefore a price certain in
money or its equivalent. In a substantive law it actually
tells you as seller what can I do or what is my obligation
as seller? Transfer the ownership of or deliver a
determinate thing. As buyer what will your obligations
be? It would be to pay price certain in money.
2. Now assuming that parties know their rights and
obligations how to they enforce them? That is when
Remedial, Procedural or Adjective law would come
in, because according to the classic definition, the SC in
the case of Bustos vs. Lucero 81 Phil. 640, it is
remedial law it provides for the method for enforcing
rights and obtain address for their violation.
So, in substantive law it tells you what your rights are,
what your obligation are but its remedial law that
actually tells you how you can go on.
What are the aspects of Philippine remedial law?
1. Public aspect of remedial law deals with remedies
available upon the state by a public individual or upon a
public individual by the state. Remedy kontra sa
gobyerno sa usa ka common nga tao ug remediya pud
sa usa ka common nga tao kontra saiyahang gobyerno.
For example what is an example of a remedial law that
regulates the remedies of the government against a
private individual?Criminal prosecution and in criminal
prosecution of course that is governed by the rules on
criminal procedure.
What about a remedy available for a private individual
that he can actually use against the state? Assume that
he has been deprived of his liberty without proper just
cause, what remedy do you have? You can file a writ of
habeas corpus to secure your liberty, you can file or
post bail to secure your provisional liberty in the
meantime or if your right have been violated lets say
for example a family members disappearance have been
imposed or probably he is a victim of a state enforced
disappearance, you can file under your civil procedure
for a writ of amparo. Amparo literally means protection,
so that is a remedy of an individual against the state.
Mao na sya karon ang public aspect sa remedial law.
2. Private aspect of remedial law and that would now
govern remedies available to a private individual against
another private individual, civil litigations, civil lawsuits
and for that we have already discussed civil procedure.
Mao ni sya ang mga different aspect of civil law.
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What are the branches of Philippine remedial law? Ang
buhaton nimo ana noh mutan-aw kalang ug codal sa rules of
court because there you can point out the specific branches of
remedial law.
Beginning with rules 1-56 of the rules of court governing civil
procedure which of course define and regulates the remedies in
private civil lawsuits.
Then you have as part and parcel of civil procedures rule 57-71
that shall govern provisional remedies and special civil
actions which deals with the remedies available to litigants to
maintain the status quo until the finality of litigation.
What follows next would be rule 72-109 which deals with
special proceedings or proceedings which aim to establish a
status, a right or a particular fact. An example is when you file
for the declaration of the nullity of marriage. What do you seek
to establish in an action for the declaration of nullity of marriage?
That marriage is null and void from the very beginning. Whats
the ground under article 36 of the family code? Its for
psychological incapacity to comply with the essential marital
obligations of marriage. So whats the effect if you are
successful? You gain a status, you establish a status or the very
least you will know for a fact that you have never been married
and therefore rather than the civil status being married, your
actually now single. Thats the purpose of special proceedings.
Then from rule 110-127 you have the rules on criminal
procedure which provides for the remedies available to the
state on a claim that a private individual or somebody else has
violated criminal statutes.
And my most favourite among all of them is our subject,
beginning from rule 128-134 although rule 134 technically
speaking does not exist anymore because it has been transferred
to civil procedure under modes of discovery we have the topic of
evidence, which is defined under as:
Rule 128. 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.
What a beautiful definition, the truth respecting a matter of fact,
truth, really? We are law students here and we are talking about
the truth, having been a lawyer for the past 12 years, I can tell
you that in a court of law sometimes the truth is immaterial.
Although that is the aim of every litigation, to ascertain the truth.
I will tell you right now that in a court of law the truth is not a
product of morality, but the truth ultimately will be the product of
what you can prove and what you cannot prove in a court.
Lets go back in constitutional law. Somebody was already
making a phone call and that somebody said hello Garci you
know the hello Garci scandal, a lot of people heard and know
about it, nobody is fooled about it,so we know the truth, but
after that monumental I am sorry made on national television,
the SC in an en banc decision in the case of Garcilliano vs. House
of Representatives because of some technicality that you will
learn when you read the case later on, this allowed further
investigation into the Hello Garci scandal, we know the truth
but because of some technical evidentiary rule, the truth doesnt
matter. One judge once told me that the truth is sacred but you
need to surround it with a bodyguard of lies.
Name another document in all of your study in law which
mentions truth, where else? In the preamble of the 1987
constitution. Regime of truth, justice, freedom, love, equality and
peace, do ordain and promulgate this constitution. (Sir talks
about love)
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Now, SC makes a lot of mistakes, why? Because our very own
rules is flawed, erroneous by way of premise. Ngano nag ingon
ko na erroneous ang premise sa Phil. Law? The Phil. Procedural
law is almost an exact copycat of the federal rules of procedure.
Now what are the similarities of the Phil. and the US in terms of
rules of procedure? For one both legal jurisdiction prescribes an
adversarial form of litigation, plaintiff-defendant, petitioner-
respondent. But what our lawmakers our SC with their rule-
making power under Art. VIII, Section 5(5) of the 1987
constitution did not take into consideration is the fact that in the
USA cases are decided by way of jury system while in the Phil.
we dont employ a jury system. You will soon realize that the
failure to take that into account is the basic flaw of the rules of
evidence and I will point that out to you one by one.
In the US there is a big difference between a question of fact
and a question of law, if it is a question of fact who will
determine the version of story to believe? It is the jury. But if it is
a question of law, the jury has no business in deciding the
interpretation of law. In the Phil. it wont matter because
eventually it will still be decided by the judge whether it is a
question of fact, law or a mix question of fact or law as
enunciated by the SC in the case of Cano vs. Philippine
National Police.
In the Phil. the only time when the distinctions between a
question of fact or a question of law become important is to
decide which court you are supposed to lay your remedy. If pure
question of law you can make your appeal directly to the SC but
if it is a question of fact or mix question of fact or law you lay
your appeal before the CA or any other lower appellate court.
The SC is not a trier of facts.
Is truth synonymous with evidence?
Sometimes dili, whatever you are not able to prove or whatever
you are able to prove will amount to the truth. In other words
the aim really of evidence is not to establish the truth but merely
to establish not the truth but merely a basis of conclusion. Thats
the rule of evidence.
A legally, defensible conclusion is not necessarily truthful. It will
depend on the quantum of proof required in a particular case.
In a criminal case it requires proof beyond reasonable doubt.
In civil case its mere preponderance of evidence. In an
administrative case, its mere substantial evidence. In certain
cases, clear and convincing evidence. There is a fifth
quantum, it is the least limitable quantum. It is the quantum
of conscience. What is an example of a case that is decided by
mere quantum of conscience? Impeachment cases (sir talks
about the impeachment of Justice Corona), rules of evidence
does not apply when the quantum required is merely that of
conscience.
June 19, 2015 (DJGolo)
x x x sanctioned by these rules x x x
What is meant by sanctioned by the rules? Evidence must be
allowed by the Rules of Court.
However, the Rules are not the main repositories relating to
evidence. There are the several provisions that may be
considered as evidentiary rules. Examples:
Art 1403 NCC statutes of frauds requirement ( in
writing)
Art. 2199, in torts, in actual damages that needs to be
proven actual pecuniary loss in relation to Art 2216 in
MENTL damages no proof of pecuniary loss is needed.
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But with respect to moral, nominal, temperate,
exemplary and liquidated damages, Art. 2216 provides
that we are not supposed to present proof of pecuniary
loss for you to be entitled for those type of damages.
Thats the evidentiary rule. Because it tells you that you
cannot prove your entitlement to these forms of
damages by way of receipts, they are not susceptible to
that kind of proof. To be entitled to liquidated damages
on the other hand, you also dont have to prove any
specific loss, injury or damage in your part. The only
thing you have to prove in that situation will be that
certain provisions in the contract where liquidated
damages were agreed upon by the parties have been
violated. Do not prove your injury; prove that a contract
has been breached.
It brings me also to one of my favorite principles in law,
the principle of res ipsa loquitor, the thing speaks for
itself. This is a common-law doctrine which tells you
that in a particular situation which leads to no other
conclusion than that the damage was definitely caused
by a particular actor, thenhe should be held liable for his
negligence. That would lead to a disputable
presumption that he was negligent.
Also brings me to the case of Republic vs. Luzon
Stevedoring pertaining to an accident between a
vessel and a bridge/wharf, who was negligent based on
those facts? Res ipsa loquitor, it cannot be the bridge
because it is a stationary object. Therefore, it was the
vessel that as negligent because you cannot deem as
negligent a stationary object. That is an evidentiary
principle.
What is the effect of a presumption? It throws
upon the other party a burden of proof. In that case, it
was the burden of the vessel to prove that it was not
negligent.
Another is the constitutional presumption of innocence;
the requirement that the guilt must be proved beyond
reasonable doubt.
x x x in a judicial proceeding x x x
What does it mean? It means that the Rules of Evidence is
actually applicable to judicial proceedings only, in a strict sense.
Because there exists non-judicial proceedings (administrative,
quasi-judicial) and so, how does the law treat of evidence
presented in non-judicial proceedings?
General Rule: When the proceedings are administrative or
quasi-judicial, the rules on evidence are not strictly applicable.
In fact in the case of Samar Electric Cooperative v. NLRC,
March 21, 1997, where SC ruled that technical rules of
evidence are not strictly followed in labor relations. Art 221 of the
Labor Code affirms this liberality, that the rules of evidence
prevailing in courts of law and equity shall not be controlling and
it is the spirit and contention of the Labor Code that prevails.
Hence, the technical rules of evidence will not be binding.
So how does a hearing officer in a labor case ascertain facts? In
Morales v. NLRC, the SC held that the hearing officer may avail
of all reasonable means to ascertain facts. Meaning, not too
formal, not too strict, it tells you that its not supposed to be a
trial-type hearing.
But, such liberality in the application of the rules of evidence
does not mean that the hearing officer himself can also disregard
the rules. As decided in the case of Kanlaon Construction v.
NLRC, despite the summary nature of the admin and quasi-
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
judicial proceedings, the hearing officer cannot disregard basic
requirements of due process which can be satisfied, at the very
least, by means of submissions of position papers (which content
are all admitted but does not mean that is believed by the court
since admissibility is different from credibility).
Baguio Country Club v. NLRC is a unique case because it tells
you the object of evidence, the purpose of evidence: to establish
the truth by the use of perceptive and reasoning faculties.
x x x the truth respecting a matter of fact.
What are the different types of facts?
1. Ultimate Facts (Factum Probandum) are
principal, determinate and constituted facts upon which
the existence of the plaintiffs cause of action or
defendants defense rests; factum probandum are
simply propositions; and
2. Evidentiary Facts (Factum Probans) these are
facts necessary for the determination of the ultimate
facts. As in the law of pleadings, evidentiary facts are
not supposed to be included.
Their distinction: Ultimate facts represent propositions to be
established and hence hypothetical whereas evidentiary facts
would constitute the material in evidencing the proposition and
hence existent. No ultimate fact will prove itself, evidentiary fact
is required.
In legal contemplation when you say matter of fact you are
actually also saying Question of Fact.
What is the difference between a question of fact and a question
of law? Cano v Chief of PNP, November 21, 2002:
Question of fact - when doubt or difference arises as
to the truth or falsehood of the alleged fact (Example:
W/N the accused is responsible for the murder)
Question of law - when the doubt or difference arises
as to what the law is on a certain set of facts (Example:
W/N the following set of facts lead to the application of
the law)
In the US, if it is a question of fact, a jury can make the factual
determination. Therefore if it is a pure question of law, since
none of the members of the jury are lawyers, they do not know
the law, the question is referred to trial by judge.
The more important distinction is with respect to the law that
you are going to apply. If it is a factual question, you apply the
rules of evidence. You use the rules on evidence to ascertain the
truth respecting that matter or question of fact. But if it is a
question of law, you apply the law involved, the law from which
the question arose (Ex. WON certain law is unconstitutional)
DIFFERENT CLASSES
OF EVIDENCE
AS TO TYPES
Object/Real Evidence those addressed to the
senses of the court, those exhibited to, examined and
viewed by the Court (Rule 130 Sec 1).
This evidence consists in tangible evidence, that which
can be appreciated by the exercise of your senses. For
example, a murder weapon, an injury (scar), other
matters relating to the physical appearance of an
object. Therefore, when a court appreciates object
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evidence, it exercises its sense of sight, touch, hearing,
taste and smell.
Documentary Evidence Documents as evidence
consists of writings or any material containing letters,
words, numbers, figures, symbols or other modes of
written expressions offered as proof of their contents
(Rule 130 Sec 2); the court exercises intelligence.
For example, color of this class card exercising sense of
sight, relating to physical characteristic then object
evidence but if it relates now to the contents of the
class card then it becomes documentary evidence.
Demonstrative Evidence - may still be in the form of
objects such as maps, scale models, symbol, diagrams
or objects that has, by themselves, no probative value
but is used to illustrate and clarify a factual matter in
issue or aid a testimony; court still exercises
intelligence.
It is not prohibited although not specifically mentioned
in the rules of court. What matters would be the
intelligence used by the court, from which the court can
draw conclusions and make inferences from the object
so presented.
Testimonial/Oral Evidence these are oral or
written assertion offered in a court as a proof of the
truth of what is being stated for as long the witness
whose testimony is offered can perceive, and if
perceiving, can make known his perception to us; there
is requirement of recollection and communication: the
capacity to remember and capacity to communicate.
Otherwise, not a credible witness.
Types of Testimonial evidence in People vs Balleno:
1. Oral made in open court before the judge; and
2. Written affidavits, depositions.
If there is conflict between the two above, it is the oral
testimony which prevails since usually affidavits are
really the products of the lawyers. Thats why these are
required to be in the language the witness is speaking
to ensure that he is really the one who made the same.
Example is an affidavit in Ilonggo, allegedly made by a
person who lives in Isabela (Ilocano language). Clearly,
it was not him who made the affidavit. Thats the
reason why affidavits are not reliable.
What is the most reliable among the 3? (Sir did not
mention/include Demonstrative)
In the case of People vs Lavapie, the SC held that greater
credence is given to physical evidence as evidence of the highest
order because it speaks more eloquently than a hundred
witnesses. This is because object evidence is self-evident.
GSIS vs CA, the SC held that testimonial evidence is easy of
fabrication and there is very little room for choice between
testimonial evidence and documentary evidence. Generally,
therefore, documentary evidence prevails over testimonial
evidence.
The HIERARCHY is, thus:
1. Object (self-evident)
2. Documentary (at least it has been reduced into writing)
3. Testimonial (the most prone to fabrication)
[Bring Me Game] Ten-peso coin as evidence of physical injury,
mutilation case; Blue Ballpen as evidence of attempted homicide;
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Class Card as evidence (contents). Sir proceeds to interrogate
them. Concludes that they are all objects cannot answer and
may therefore be not self-evident at all.
Thus in order to be appreciated by the court, there has to be
somebody who will identify, authenticate or give legal
significance to them in relation to the fact in issue.
Therefore, even if they ran very high in the hierarchy of
evidence, these objects cannot present themselves without the
witness and thus the testimonial evidence, even if so unreliable,
is the only way by which the object and documentary evidence
can be presented. THUS, despite the hierarchy, testimonial
seems to be the most important one.
AS TO WHETHER IT AFFIRMS OR NEGATES
1. Positive evidence when a witness affirms that a fact
occurred or did not occur (yes or no); and
2. Negative evidence when the witness avers that he
did not see or know the occurrence of fact (did not
know or see). Example: alibi (neither confirming nor
denying)
Pregnant Denial/ Negative Pregnant Is a form of
negative expression which carries with it an affirmation
or an implication of some kind favorable to the adverse
party. It is a denial pregnant with an admission of the
substantial facts alleged in the pleading. Where a fact is
alleged with qualifying or modifying language, and the
words of the allegation that are so qualified or modified
are literally denied, it has been held that the qualified
circumstance alone are denied when the fact itself is
admitted.
Sir Espejo: This is a denial which implies the exact
opposite, the affirmative opposite: by only denying the
qualification of the allegation, not the allegation itself.
Ex. Accused was charged with falsification of Board
Resolution, the allegation was according to them they
met on two separate days (January14 and 15) but
actually no meeting was made on the other day when
the subject Board resolution was issued.
Question: Did the Board of Directorshad the meetings?
Answer (witness): The Board did not have a meeting
on January 14.
It was a denial but the denial was pregnant with
something else because only denied not having the
meeting on January 14 only. Thus, by not commenting
on the qualification (January 15 meeting), the witness is
implying the exact opposite of what he is saying:
affirmation that there was a meeting on January 15.
Effect of negative pregnant denial in civil procedure is
ADMISSION.
As decided in the case of People vs Macalaba, SC
ruled that negative evidence cannot prevail over the
positive testimony, ruling We have time and again
ruled that mere denial cannot prevail over the positive
testimony of a witness. A mere denial, just like alibi, is a
self-serving negative evidence which cannot be
accorded greater evidentiary weight than the
declaration of credible witnesses who testify on
affirmative matters. As between a categorical testimony
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that rings of truth on one hand, and a bare denial on
the other, the former is generally held to prevail.
So positive prevails over negative.
AS TO MATERIALITY
1. Material evidence when it tends to prove or
disprove the fact in issue in a case;
How do you determine the fact in issue in the case? By
examining the pleadings (joinder of issues) Example:
Loan evidenced by promissory note. Allegation was non-
payment. ISSUE: W/N there was already payment. For
the plaintiff, material evidence is the promissory note.
For defendant, material evidence is the receipt.
2. Immaterial evidence the offered evidential fact is
directed to prove some probandum which is not proper
in issue. The rules of substantive law and of pleading
are what determine immateriality.
AS TO ADMISSIBILITY
1. Competent evidence Offered evidence is not
excluded by some rule of evidence; hence, admissible.
When you talk about incompetent evidence, it has a
different meaning. You say that when a witness is not
qualified, therefore incompetent to give evidence. When
you say competent evidence (used to describe objects),
it is not excluded by the Rules of Court, it means that
the evidence is admissible.
2. Inadmissible evidence - Offered evidence is excluded
by some rule of evidence.
Examples of rules not provided by the Rules that provide for
competent evidence:
Bill of Rights Article III. Section 2. The right of the
people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures
of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be
determined personally by the judge after examination
under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing
the place to be searched and the persons or things to
be seized.
Bill of Rights Article III. Section 3. (1) The privacy of
communication and correspondence shall be inviolable
except upon lawful order of the court, or when public
safety or order requires otherwise, as prescribed by law.
(2) Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any purpose
in any proceeding.
Rule 26. Admission of parties. Sec. 5. Effect of failure to
file and serve request for admission. Unless otherwise
allowed by the court for good cause shown and to
prevent a failure of justice, a party who fails to file and
serve a request for admission on the adverse party of
material and relevant facts at issue which are, or ought
to be, within the personal knowledge of the latter, shall
not be permitted to present evidence on such facts.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
AS TO RELEVANCY
1. Relevant evidence evidence which has a tendency
in reason to establish a probability or improbability of
thefact in issue. Relevant evidence is tending toprove or
disproves a material fact. Evidencehaving a tendency to
make the existence of any fact that is of consequence to
thedetermination of any action more or lessprobable
than it would be without the evidence.
Example of Dean Inigo: So there was a shooting of a
person. He was shot right between the eyes from a far
distance. A was the suspect. During the trial of A,
prosecution presented evidence tending to prove that A
was a former Olympic gold medalist in shooting. Is the
evidence material? Does it tend to prove that A killed
the victim? It does not. But even if it is not material, is it
relevant? It may be relevant, why? Because his ability
as a sharp shooter. It may not be MATERIAL but it is
RELEVANT. So that evidence in all probability will be
admitted.
2. Irrelevant or unrelated evidence it is the
opposite; not related therefore objectionable and can
properly be ruled to be excluded by the court
What is the distinction between materiality and
relevancy? As to materiality, evidence is offered to prove or
disprove a specific fact in issue. Relevancy, on the other hand,
evidence has the tendency in reason to establish the probability
or the improbability of the fact claimed. Materiality is a direct
proof; in relevancy, evidence may either be direct or
circumstantial.Material, self-evident; relevancy, may require
reasoning and inference.Material evidence is always relevant but
relevant evidence is not always material.
AS TO THE NEED TO INFER OR PRESUME
1. Direct Evidence. It is proof that if belief establishes
the truth or falsity of the fact in issue and therefore
does not arise from mere presumption; is that which
proves a fact in dispute, directly, without an inference
or presumption, and which in itself, if true, conclusively
establishes that fact. Example, direct testimony that the
victim was shot.
2. Circumstantial Evidence. It is evidence not bearing
directly on the fact in dispute but on various attendant
circumstances from which the judge might infer the
occurrence of the fact in dispute; merely collaterally
relevant to the fact in issue. Example, witnessing the
running of the accused away from the crime scene.
In the case of People vs Ramos, the SC held that the
evidence is either direct or circumstantial. Direct
evidence is that evidence which proves a fact in issue
directly without any reasoning or inferences being
drawn on the part of the factfinder. Circumstantial
evidence is that evidence which indirectly proves a fact
in issue. The factfinder must draw an inference or
reason from circumstantial evidence. Under our Rules of
Court, conviction based on circumstantial evidence is
sufficient if: (a) there is 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.
June 24, 2015 (DMiles)
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We already discussed materiality and relevancy right? Now lets
discuss another type of classification of evidence and that is as to
admissibility. We got there last time. Competent evidence means
evidence not excluded by the law or these rules. It means the
evidence is admissible. Inadmissible evidence on the other hand
is evidence which is deemed inadmissible because it is excluded
by the law or rules. Direct circumstantial evidence we already
discussed.
AS TO ORIGINALITY
As to originality, evidence can either be primary/best evidence or
it can either be secondary evidence.
1. Primary evidence is the evidence which the law
regards as affecting the greatest certainty of the fact in
question. For example, in a crime of murder. What
would be primary evidence? Perhaps an eyewitness
account that A shot B or it can be photographic
evidence clearly showing A shooting B.
2. Secondary evidence is evidence of inferior or
substitutionary nature. Its not the best one. Its not
the genuine original. It is only a copy of the original. It
merely indicates an existence of a more original source
of information. For example you have photocopy of a
contract you present in court. What does it mean? It
means there is an original of the photocopy making it
merely secondary or substitutionary. Now we will learn
later on under rule 130 sec 3, we have there the best
evidence rule which provides that when the subject of
inquiry is the contents of a document, no evidence shall
be admissible other than the original document itself.
It tells you it has to be the original but sec 3 also tells
you of exceptions to the rule.
AS TO SUPPORTING EVIDENCE
It can either be cumulative or corroborative evidence.
1. Cumulative evidence is additional evidence of the
same kind and character as that already given and
tends to prove the same proposition. Lets say youre
trying to prove that A shot B, that is your factum
probandum (proposition) and your facti probans
(evidentiary facts ) would be C testifying A shot B, D
testifying that A shot B, E testifying that A shot B. That
is merely cumulative evidence. It is the same kind and
tending to prove the same kind.
2. Corroborative evidence is additional evidence of a
different kind and character tending to prove the same
point but different types of evidence. For example,
your testimonial evidence tending to prove A shot B,
you also have object evidence in the form of
photograph showing A shot B. You also have an
affidavit of the confession of A saying he shot B. Those
are different types of evidence proving that A shot B.
Corroborative evidence is only necessary when there are
reasons to suspect that the witness did not tell the truth
or that his observation had been inaccurate. Because
normally the testimony of a lone witness is sufficient.
The question therefore, would it matter kung gamay ra imong
evidence? How many evidences are needed? A lot or a few?
Time and again the SC said that evidence is assessed in terms of
quality and not quantity.
Now let us relate that to the different quantum of proof required
in several cases. Let us go the lowest. SUBSTANTIAL
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
EVIDENCE, evidence which a reasonable mind might support the
conclusion. In administrative cases, what is required is
substantial evidence. The conclusion in an administrative case
tells you that even if you have 1 proof as long as it is substantial
to support the conclusion. How about the highest? PROOF
BEYOND REASONABLE DOUBT. Is it possible to produce a
conviction with only the testimony of 1 witness? Yes, even if only
1 testimony of a witness, it can result to conviction of the
accused. Now how about in civil cases? PROPENDERANCE OF
EVIDENCE.
RULE 133. Section 1. Preponderance of evidence, how
determined. In civil cases, the party having burden of proof
must establish his case by a preponderance of evidence. In
determining where the preponderance or superior weight of
evidence on the issues involved lies, the court may consider all
the facts and circumstances of the case, the witnesses' manner
of testifying, their intelligence, their means and opportunity of
knowing the facts to which there are testifying, the nature of
the facts to which they testify, the probability or improbability
of their testimony, their interest or want of interest, and also
their personal credibility so far as the same may legitimately
appear upon the trial. The court may also consider the number
of witnesses, though the preponderance is not necessarily with
the greater number.
See the court may consider the number of witness though the
preponderance is not necessarily with the greater number. What
Im trying to point out that fact that the number of evidences are
not the determining factor in arriving to the conclusion of the
court. Can you win a case without introduction of evidence? Yes
under Rule 9 when you are declared in default, the court can
decide the case based on the prayer of the complaint. What
about in a criminal case? A rape case. Yes, if there is no prima
facie evidence against the accused.
What is prima facie evidence? It is evidence sufficient to
establish a fact and if not rebutted becomes conclusive of a fact.
Example, in cases of bribery, the acceptance of a gift of a public
officer is deemed prima facie evidence of bribery. To illustrate:
What is burden of proof? It is your duty as a party litigant to
come forward of evidence to prove you cause of action but if you
do not have your burden of proof and you fail to adduce
evidence to discharge the burden. The opposite of the term is
benefit of assumption.
Let us apply this to a criminal case. Example in People vs Lao.
It is the burden of the prosecution to prove that Lao is guilty of
acts of lasciviousness. So it has to present evidence why? In
the meantime Lao is entitled to the benefit of the assumption,
why? Remember in the 1987 Consti, you are still innocent until
the contrary is proved. What if the prosecution was able to
present evidence, it means that the it was able to establish what
is known as prima facie evidence. So now it shifted, it is the
duty of Lao to defeat the prima facie evidence.
What about in a civil case? Juyo vs Lao. Collection for sum of
money. There is evidence of a promissory note. What would be
the effect of burden of proof and benefit of assumption in a civil
case? Who has the burden of proving and who has the benefit
of assumption? The law in evidence is that whoever alleges has
the burden of proof. So its Juyo who has the burden of proof to
establish a prima facie case.
What if Juyo was able to present a prima facie case? So she wins
the case.
What if she was not able to present a prima facie case? Will Lao
have to present evidence? No, because the benefit of
assumption that was with you at the beginning of the case
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remains with you since Juyo was not able to present a prima
facie case.
AS TO CONTROVERSION
You have prima facie evidence and conclusive evidence.
1. PRIMA FACIE. Sufficient if not rebutted. Another
example, BP22 cases there is prima facie evidence of
knowledge of insufficiency of funds. If prima facie
evidence, it can still be refuted.
2. CONCLUSIVE EVIDENCE. It is no longer susceptible
of contrary proof. It is a legal proposition which no
controversion or contestation is allowed. Example
under the law, RPC, crime committed by person who is
minor (18 below), there are classes of minors exempt
from criminal liability like below 9, does it matter if he
has discernment? No because the law provides or
presumes that a child below 9, child is exempt from
criminal liability and conclusively presumes that child
below 9 is incapable of discernment. In the case of
jarco marketing, in torts cases a child below 9 yrs of
age is conclusively held to be incapable of contributory
negligence.
What do you present? The childs birth certificate.
Theres a third one here.
3. REBUTTAL EVIDENCE. Is simply the evidence that
you present to combat the effects of a prima facie case
established against you.
Now mas importante ang prima facie evidence. Once there is a
prima facie evidence, burden of proof is shifted. The benefit of
assumption is transferred from one party to another. Prima facie
evidence if established and unrebutted would be sufficient to
produce a conviction.
Now in practice, is there a way where you can determine before
you present any evidence if a prima facie evidence has been
established? Now what is Rule 33 in civil procedure? You file a
demurrer to evidence. What is the nature? Is a motion to
dismiss except that it is not a motion to dismiss under Rule 16
but under Rule 33. And what it your only ground? That the
evidence presented is that the plaintiff is not entitled to relief.
That is like saying that there is no establish prima facie evidence.
Diba a demurrer of evidence you file it after the presentation of
evidence in chief. If the court grants your demurrer, you win. If
the court does not grant it, the plaintiff was able to establish a
prima facie case. Remember that demurrer can be in civil or
criminal cases. Remember also the difference of demurrer in civil
or criminal. (Always asked in the bar)
AS TO THE TENOR OF THE TESTIMONY
We are talking here of testimonial evidence.
The law requires that the testimony of the witness should be
based on his personal knowledge, derived from his own
perception. What he saw, smelled, touched. That would be
ORDINARY TESTIMONIAL EVIDENCE. Any testimony that is
not derived from your personal knowledge is hearsay. (Asks a
student her age)
The requirement for ordinary testimonial evidence is perception,
recollection and communication. You experienced, perceived it.
You remember it.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
After ordinary evidence, you have OPINION EVIDENCE. This is
what you think of the particular matter. (Calls a student
regarding the annoying Kris Aquino)
An opinion as testimonial evidence is one which is not based on
your perception but based on your beliefs and prejudices. Is
opinion as testimonial evidence allowed in court? As a general
rule, it is not allowed. Why? Because every fact in issue will
simply not be a fact finding effort but becomes a mere survey or
popularity. (Talks about Jobert Sucaldito)
But there would be certain opinions that are admissible like the
expert opinion and ordinary opinion.
Expert opinion, for example you present the medico legal
officer who conducted the autopsy of the victim. That would be
admissible. It is presented in court which is beyond the
knowledge of the court. Question: Can you think under the law
which would require an expert to prove a matter of fact?
Psychological incapacity under Art. 36 of the Family Code.
Remember psychological incapacity has to be proven as laid
down in the case of Molina.
Ordinary opinion, when it would be admissible? For example in
a case you are the witness of a hit and run. Then you are
examined in court. That is a valid opinion because you testifying
on your perception to the facts what you saw in the accident.
That is ordinary opinion.
Now finally under testimonial evidence, we have CHARACTER
or REPUTATION EVIDENCE. Generally it is not acceptable in
court. Why? For example there is this guy who is accused of
estafa. Then a former classmate testifies, that when they were
younger, he used to steal baon from you. Is that admissible in
court? Is not admissible because of the 2 reasons: It is
immaterial and it is irrelevant.
Why immaterial? Would that character evidence prove that he
really stole from the employer- the fact in issue? In fact you are
violating another rule called the res inter alius acta the rule
provides evidence of one did or did not do nothing at a particular
time is not evidence that he did another thing at a different
time. Simply put, A rape B, A rape C therefore A rape D? You
cannot conclude that. You have to prove each particular
instance. That is immaterial and irrelevant. When we are talking
relevant, there is logical reasoning. Like A is a man, dog is a
mammal. (Ano raw? Lol) you have to come up with a conclusion.
A copied from B when he was in elementary, A stole the baon
from B, therefore A stole from his employer. Now you can see it
is not relevant based on your premises. We are not talking
proofs here, we are only talking of probabilities. So character
evidence is evidence attesting to ones character and moral
standing in the community. Generally a character of a party is
regarded as legally irrelevant in determining a controversy.
When allowed the character evidence shall be limited to traits
and characteristics s involved in type of defense.
AS TO THE SOURCE OF EVIDENCE
You have either intrinsic/ parol evidence or extrinsic evidence/
evidence aliunde.
1. Intrinsic or parol evidence. It is information
necessary for the determination of an issue that is
gleamed from the provisions of the document itself.
Lets say A and B entered into a contract of sale which
reduced to writing. Is B allowed to say that it is a lease
contract? No, because based on the intrinsic evidence
which is the provisions of the contract it can be gleamed
[Page 7 of 107]
Ad Majorem Dei Gloriam
that it is a contract of sale. Example of the rule that
applies is under:
Rule 130. 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.
2. Extrinsic evidence or evidence alluinde. Its a
source outside the subject document itself. If you are
trying to prove something that is outside the document,
that is not allowed. What do you mean by evidence
aliunde? It means evidence from other sources other
than the document itself.
Now lets go to Section 2 relating to scope.
Rule 128. Section 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.
When you say all trials and hearings, it is applicable to all civil
and criminal cases.
When you say except otherwise provided by law or these rules,
what does it mean? Are there types of cases that would be
govern by other rules not rules on evidence?
Example 1: When you talk about the examination of child
witness. Before that, I want you to be acquainted with the
concept of leading question. A leading question is a question
that is suggesting the answer to the witness which the proponent
wants to hear. A non-leading question begins with who, what,
where, why, how. It requires a specific answer. In usual direct
examination, it should be who, what, where, why, how. Leading
questions are objectionable.
Now that rule against leading questions does not apply to rule in
examining child witness. According to the SC, in People vs.
Santos, children have problems in providing accounts of events
because they dont understand everything they experience. They
have limited vocabulary, limited comprehension that they have
been sexually abused. Most of the times they dont know what
happen to them.
Example 2: The rules on summary procedure where affidavits
take the place of actual testimonies.
Example 3: The rules on small claims-procedure. In these cases,
there is no direct examination, cross examination or redirect. In
fact you dont submit any affidavits. You simply fill up forms
there. It is recognizable in the courts of justice but it does not
follow the rules on evidence.
Example 4: What else? Now there is this JA (judicial affidavit)
which has already been accepted. The usual interrogatories are
reduced into writing prior to the introduction of the witnesses.
July 1, 2015 (JJA)
[Sharing about his Masteral experience and why his wife Atty. Yang-yang does not
want to take masteral]
Sir: Tell me why is there a departure from the customary rules of
evidence in the case of child witnesses?
A: Because the child has no discernment. He does not know what
is right or wrong.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Sir: What about the ability of the child to communicate?
A: Since the child is unable to understand what is going on, then
a different rule is used.
Sir: Example?
A: Leading questions is allowed to be asked to a child witness
unlike in ordinary rules.
JZE: At least you are able to listen. [another student] Tell me
another example where rules of evidence is not used or cases
that follows different evidentiary rules.
1) Rule on Examination of child witnesses
2) Small claims
3) Summary procedure (uses judicial affidavits)
Rule 128. Section 3. Admissibility of evidence. Evidence is
admissible when it is relevant to the issue and is not excluded by
the law of these rules.
Section 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.
THE TWO REQUISITES FOR
THE ADMISSIBILITY OF EVIDENCE
1. RELEVANCY
Section 4:
- Those with direct relation to the fact in issue which
may induce belief in its existence or non-existence
and
- Those collateral matters which tends to establish
probability or improbability of fact in issue
2. COMPETENCY
Section 3: Not excluded by law or any of these Rules
Let us suppose this eraser is an object evidence. Five senses may
be used to appreciate this evidence. In relevancy, what is used
is common sense. e.g. In a murder case, you need to prove
your factum probandum otherwise you will lose your case. At the
crime scene, possible evidence would be a gun, cigarette, blood
stained clothes. An ID is not directly answering the question on
murder but may be relevant also.
Now how do we ensure that the things will establish murder. For
example the gun? An expert witness may be used. Or an autopsy
may be made to link the gun and the bullet.
Each of the evidence must be proved (factum probans).
Everything here would place the accused in the scene of the
crime. All these evidence are relevant evidence.
This is what we call as evidence on collateral matters. They do
not directly prove the fact in issue. But because they tend to
advance the inquiry into the factum probandum, what is the
treatment under the rules is that they are made admissible.
Not directly material but since it forwards an inquiry into the
factum probandum to establish of probability or improbability of
the fact in issue, they are made admissible.
What about competency? It is when the evidence is not
excluded by the law or the rules.
[Page 8 of 107]
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Can you tell me of laws that would affect the competency of
evidence during the trial?
RA 4200 (anti wire tapping law) is an example. It is
grounded upon privacy of persons protected under the
constitutional.
Any exceptions to non-admissibility of wire-tapped conversation?
1) When there is consent by two parties.
Salcedo case: Involves declaration of nullity of marriage.
The husband instructed military operatives to wiretap
conversation of his wife. The issue here is WON the wiretap
conversation may be used as evidence to declare the
marriage a nullity. SC declared that the wiretap was not
admissible.
2) It is not private.
Even without consent is not covered by the anti-wiretapping
law because there is no reservation of expectation of my
privacy. Example, I shouted that I will kill Mateo... you can
use that against me because I did not reserve an
expectation to privacy.
Remember that materiality is different from relevancy.
Materiality is the ability of evidence to point the fact in issue in
the case. Relevancy is that evidence must have such a relation
to the fact in issue as to induce belief in its existence or non-
existence. We are not talking here of certainly but merely
probability or improbability based on the shirt, gun or ID.
John Henry Wigmore advances two requirement for
admission of evidence:
1. Axiom of Relevancy
2. Axiom of Competency
Thus, only those facts which have rational probative value are
admissible. When you say rational probative value, you are
talking about whether it advances the inquiry or not. If it does,
then it is relevant.
Probative value means the tendency of evidence to make a
fact of consequence more or less probable than it would be
without evidence. It has probative worth whether affirmative or
negative. If it makes you believe or not believe, it still has
probative worth. In laymans terms, it refers to the believability.
Or in a court of law, it refers to credibility, katuohan ba siya
whether you are in the negative or affirmative side of the issue.
Now, the provisions of the constitution that would affect
competency of evidence are the following:
1) Section 2 Article III (unlawful search and seizure).
Talks about the fruit of the poisonous tree (may refer to
documentary or object evidence).
2) Section 3 Article III (privacy of communication)
3) Section 12 Article III (Miranda doctrine). Talks about
testimonial evidence.
4) Section 17 Article III (right against self incrimination).
Talks about testimonial evidence.
Another exception is RA 9372 (Anti Terrorism Law).
RA 9372. Section 7. A police or law enforcement official and
the members of his team may, upon a written order of the
Court of Appeals, listen to, intercept and record, with the use of
any mode, form, kind or type of electronic or other surveillance
equipment or intercepting and tracking devices, or with the use
of any other suitable ways and means for that purpose, any
communication, message, conversation, discussion, or spoken
or written words between members of a judicially declared and
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
outlawed terrorist organization, association, or group of persons
or of any person charged with or suspected of the crime of
terrorism or conspiracy to commit terrorism.
You ask me, this is a very, very weak law. Why? Because it does
not really specifically define what terrorism is all about. It cites
or lists down provisions of RPC and uses them as terrorism acts.
RA 9372. Section 3. Terrorism. Any person who commits an
act punishable under any of the following provisions of the
Revised Penal Code:
a. Article 122 (Piracy in General and Mutiny in the High
Seas or in the Philippine Waters);
b. Article 134 (Rebellion or Insurrection);
c. Article 134-a (Coup d' Etat), including acts committed
by private persons;
d. Article 248 (Murder);
e. Article 267 (Kidnapping and Serious Illegal Detention);
f. Article 324 (Crimes Involving Destruction),
or under
g. Presidential Decree No. 1613 (The Law on Arson);
h. Republic Act No. 6969 (Toxic Substances and
Hazardous and Nuclear Waste Control Act of 1990);
i. Republic Act No. 5207, (Atomic Energy Regulatory and
Liability Act of 1968);
j. Republic Act No. 6235 (Anti-Hijacking Law);
k. Presidential Decree No. 532 (Anti-Piracy and Anti-
Highway Robbery Law of 1974); and,
l. Presidential Decree No. 1866, as amended (Decree
Codifying the Laws on Illegal and Unlawful Possession,
Manufacture, Dealing in, Acquisition or Disposition of
Firearms, Ammunitions or Explosives);
Thereby sowing and creating a condition of widespread and
extraordinary fear and panic among the populace, in order to
coerce the government to give in to an unlawful demand shall
be guilty of the crime of terrorism and shall suffer the penalty
of 40 years of imprisonment, without the benefit of parole as
provided for under Act No. 4103, otherwise known as the
Indeterminate Sentence Law, as amended.
[Yawyaw galore si Atty. Espejo about the weakness of the law]
Another is RA 1405 (Bank Secrecy Law) in relation to:
RA 9372. Section 27. Judicial Authorization Required to
Examine Bank Deposits, Accounts, and Records. The
provisions of Republic Act No. 1405 as amended, to the
contrary notwithstanding, the justices of the Court of Appeals
designated as a special court to handle anti-terrorism cases
after satisfying themselves of the existence of probable cause in
a hearing called for that purpose that: (1) a person charged
with or suspected of the crime of terrorism or, conspiracy to
commit terrorism, (2) of a judicially declared and outlawed
terrorist organization, association, or group of persons; and (3)
of a member of such judicially declared and outlawed
organization, association, or group of persons, may authorize in
writing any police or law enforcement officer and the members
of his/her team duly authorized in writing by the anti-terrorism
council to: (a) examine, or cause the examination of, the
deposits, placements, trust accounts, assets and records in a
bank or financial institution; and (b) gather or cause the
gathering of any relevant information about such deposits,
placements, trust accounts, assets, and records from a bank or
financial institution. The bank or financial institution concerned,
shall not refuse to allow such examination or to provide the
desired information, when so, ordered by and served with the
written order of the Court of Appeals.
[Page 9 of 107]
Ad Majorem Dei Gloriam
Nobody is allowed to inquire into your bank deposits because no
person is compelled to disclose information about his wealth
EXCEPT:
1) You do it every year when you pay taxes so that the
government would know whether you pay the right
amount of taxes
2) When you enter public service through SALN.
[Yawyaw again about impeached CJ Corona.]
Again under RA 9327, the court of appeals may order you to
open your accounts. Anti-money laundering council may also
order you to open your accounts.
Right now, slowly but surely, there are no more safeguards to
violations of the constitution.
Another law is RA 9165 (Dangerous Drugs Act of 72):
RA 9165. Section 21. Custody and Disposition of Confiscated,
Seized, and/or Surrendered Dangerous Drugs, Plant Sources of
Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment. The PDEA shall take charge and have custody of
all dangerous drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in
the following manner:
(1) The apprehending team having initial custody and
control of the drugs shall, immediately after seizure
and confiscation, physically inventory and
photograph the same in the presence of the
accused or the person/s from whom such items
were confiscated and/or seized, or his/her
representative or counsel, a representative
from the media and the Department of Justice
(DOJ), and any elected public official who shall
be required to sign the copies of the inventory
and be given a copy thereof;
(2) Within 24 hours upon confiscation/seizure of
dangerous drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, as well
as instruments/paraphernalia and/or laboratory
equipment, the same shall be submitted to the
PDEA Forensic Laboratory for a qualitative and
quantitative examination;
(3) A certification of the forensic laboratory
examination results, which shall be done under
oath by the forensic laboratory examiner, shall be
issued within 24 hours after the receipt of the subject
item/s:
Provided, That when the volume of the dangerous
drugs, plant sources of dangerous drugs, and
controlled precursors and essential chemicals does not
allow the completion of testing within the time frame,
a partial laboratory examination report shall be
provisionally issued stating therein the quantities of
dangerous drugs still to be examined by the forensic
laboratory:
Provided, however, That a final certification shall be
issued on the completed forensic laboratory
examination on the same within the next 24hours;
(4) After the filing of the criminal case, the Court
shall, within 72 hours, conduct an ocular inspection
of the confiscated, seized and/or surrendered
dangerous drugs, plant sources of dangerous drugs,
and controlled precursors and essential chemicals,
including the instruments/paraphernalia and/or
laboratory equipment, and through the PDEA shall
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
within 24 hours thereafter proceed with the
destruction or burning of the same, in the
presence of the accused or the person/s from
whom such items were confiscated and/or
seized, or his/her representative or counsel, a
representative from the media and the DOJ,
civil society groups and any elected public
official.
The Board shall draw up the guidelines on the manner
of proper disposition and destruction of such item/s
which shall be borne by the offender:
Provided, That those item/s of lawful commerce, as
determined by the Board, shall be donated, used or
recycled for legitimate purposes:
Provided, further, That a representative sample, duly
weighed and recorded is retained;
(5) The Board shall then issue a sworn certification
as to the fact of destruction or burning of the
subject item/s which, together with the
representative sample/s in the custody of the
PDEA, shall be submitted to the court having
jurisdiction over the case. In all instances, the
representative sample/s shall be kept to a minimum
quantity as determined by the Board;
(6) The alleged offender or his/her representative or
counsel shall be allowed to personally observe all of
the above proceedings and his/her presence shall NOT
CONSTITUTE ADMISSION OF GUILT. In case the said
offender or accused refuses or fails to appoint a
representative after due notice in writing to the
accused or his/her counsel within 72 hours before the
actual burning or destruction of the evidence in
question, the Secretary of Justice shall appoint a
member of the public attorney's office to represent the
former;
(7) After the promulgation and judgment in the
criminal case wherein the representative sample/s
was presented as evidence in court, the trial
prosecutor shall inform the Board of the final
termination of the case and, in turn, shall request
the court for leave to turn over the said
representative sample/s to the PDEA for proper
disposition and destruction within 24 hours from
receipt of the same; and
(8) Transitory Provision: x x x
Why is chain of custody is important? The chain of custody
is to preserve the evidence without any tampering.
Why preserve the evidence? Because the penalty is based on
the weight of drugs recovered.
What did the Supreme Court say with the non-compliance of RA
9165 in the case of People vs. Eugenio? Failing to comply
with the provision of Section 2 of R.A. No. 9165 does not
necessarily doom the case for the prosecution.
People vs. Pringas enlightens: Non-compliance by the
apprehending/buy-bust team with Section 21 is not fatal
as long as there is justifiable ground therefor, and as
long as the integrity and the evidentiary value of the
confiscated/seized items, are properly preserved by the
apprehending officer/team. Its non-compliance will not
render an accused's arrest illegal or the items seized/confiscated
from him inadmissible. What is of utmost importance is the
preservation of the integrity and the evidentiary value of the
seized items, as the same would be utilized in the determination
of the guilt or innocence of the accused.
[Page 10 of 107]
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So if you dont follow Section 21, it does not automatically render
the arrest illegal or the items seized inadmissible. So you dont
follow Section 21, the items may not automatically be rejected as
evidence.
What about in the case of People vs. Almorfe, did the SC come
up with the same ruling as in the case of Eugenio? NO (according
to Sir). The accused in Almorfe was acquitted because SC didnt
appreciate the evidence presented by the prosecution.
Considering the Eugenio ruling, why did the SC rule differently in
Almorfe and acquitted the accused.
The Supreme Court said: While a perfect chain of custody is
almost always impossible to achieve, an unbroken chain becomes
indispensable and essential in the prosecution of drug cases
owing to its susceptibility to alteration, tampering, contamination
and even substitution and exchange. Hence, every link must be
accounted for.
In fine, the prosecution failed to account for every link of the
chain starting from its turn over by Janet to the investigator, and
from the latter to the chemist.
In the case of Almorfe, the SC did not exclude the items as
evidence. It only declared that the integrity of evidence
(credibility) is questionable such that the chain of custody was
not followed. That is what the SC was saying.
The State argued that there was presumption of regularity. But
the SC said there were two presumption involve in this case. The
presumption of regularity and the other one is the presumption
of innocence. When there are two presumption involve, the
weaker presumption yields to the stronger presumption. In this
case, the presumption of innocence prevails over the
presumption of regularity.
Wala man conflict anang Eugenio and Almorfe cases.
We are done with Section 4. Now let us discuss a few more
concepts.
TYPES OF ADMISSIBILITY
A. Multiple Admissibility
This refers to a situation where a fact is offered for one
purpose and is admissible in so far as it satisfies all rules
applicable to it if offered for such purpose and is able to
satisfy the rules applicable to it if offered for another
purpose.
For example: evidence may be offered to prove many
things.
Birth certificate required in bar examinations. It proves the
age. But it proves something else like place of birth, parents.
That is multiple admissibility.
Another principle is that in M.A., an admissible evidence
for one purpose and may not be admissible for
another purpose.
For example, hearsay evidence. Hearsay evidence is not
admissible because testimonial evidence must come from a
witness who personally witnessed something (personal
knowledge dapat). But is it admissible for some other
purpose. It is admissible to prove that it was spoken. OK?
Why would it be admissible? Because it would be the very
fact in issue in the case or it is circumstantial evidence of the
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
fact in issue in the case. Medyo lisod pa ni siya ha. Basta the
evidence may not be admissible for one purpose but may be
admissible in another purpose.
For example: Bagundang, buang ka buang ka buang ka. And
Marlie heard it.
It is inadmissible that Marlie heard Atty. Espejo was saying
that Bagundang is buang because she is testifying what
other person was saying, because it is hearsay. You cannot
present what you heard from me.
But if the fact in issue in the case is that I said buang
buang buang the testimony of Marlie is admissible that in
fact Atty. Espejo said that Bagundang is buang.
It doesnt matter if she is buang or not. What matters is that
I said that she is buang. OK? That is Multiple Admissibility.
BQ: May a private document be offered and admitted as
documentary evidence and object evidence?
Answer: YES!!! for the simple reason that for example that if
my evidence is this classcard and the fact in issue is what is
stated in the class card then yes it is admissible as
documentary evident in the absence of other documents.
However, if the fact in issue is the shape or color of the
classcard, then the rectangular shape and green color is
object evidence and also admissible.
Just to round out the types of admissibility of evidence.
B. Conditional Admissibility
Evidence is admissible only depending on other facts. It is
received on expressed assurance of the counsel when
objection is manifested that other facts will be truly
presented at a suitable opportunity before the case is closed.
In other words, the evidence may not be apparent by mere
presentation but later on the party will supply the relation.
So it is conditionally admitted.
Ex: Cigarette during the murder of gerard by matteo. Is it
admissible per se? It is not. What is the relation. Even if you
prove that the cigarette belongs to the killer. You only prove
that he smoked. Right now it may not be admitted because
it has no relation but when you prove the connection that
Matteo actually used that cigarette later then the evidence
may be admitted. You must make the connection between
your factum probans and your factum probandum. Then that
is conditional admissibility.
C. Curative Admissibility
A party is allowed to introduce evidence on his behalf where
the court has admitted the same evidence adduced by other
party to avoid manifest injustice.
Under summary rules, if you failed to submit affidavit, your
witness is not allowed to testify. Only when you previously
submit affidavit then you are allowed to testify.
Under Judicial affidavit rule, ana pud ang rule.
But going back, I presented object evidence under summary
rules which I didnt previously mark. Bawal na sa summary
rules or sa pre-trial. If there is an objection, the court must
sustain it. But I pushed my luck. The court allowed it. Later
on if my adverse counsel will present evidence which is not
also admissible to counteract the effects of the inadmissible
evidence I presented, I cannot object because that would be
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admitted under the principle of curative admissibility to avoid
manifest injustice.
July 8, 2015 (AJUy)
I think were done with Rule 128 so lets now proceed to Rule
129 under the heading, what need not be proved. Now, it kind
of runs counter with our previous discussion on evidence as the
means sanctioned by these rules, in ascertaining in a judicial
proceeding, the truth respecting a matter of fact. Also discussed
on ultimate facts and evidentiary facts; ultimate facts being the
main proposition behind the hypothetical conclusion, using what
commodity? By the use of factum probans or evidentiary facts.
And so there cannot be, as a general rule in evidence, a matter
of fact which is self-evident or self-proving. You really need to
advance something: whether it is documentary, object or
testimonial evidence to prove a matter of fact. But Rule 129 says
that there are things or what are the instances when proof can
be dispensed with. Unsa ning mga butang na dili kinahanglan
iprove?
RULE 129
WHAT NEED NOT BE PROVEN
I. PRESUMPTIONS
Lets go first to something not found on Rule 129 and that is
presumptions. Presumptions are found in Rule 131, which I think
has the weirdest provisions. Now, what kind of a rule is that?
One section in Rule 131 reaches how many pages? Take a look.
That will the longest provision you will find in all of law: Section
3 of Rule 131 relating to disputable presumptions.
Why is it that presumptions need not be proved? It is because
precisely that the effect of a presumption a prima facie fact or a
prima facie case is established. Perfect example there would be
quasi-delict which we would be discussing in Torts in second
semester. The cornerstone of liability for quasi-delicts would be
the proving of negligence. The defendant cannot be made liable
without the plaintiff proving first or discharging first that the
defendant was negligent. Without any negligence there could be
no liability. If the plaintiff already establishes prima facie
evidence of the defendants negligence, thereby discharging the
plaintiffs burden of proof appurtenant to such case, and it is now
the defendants turn to present evidence to disprove the
negligence the law or the evidence establishes.
But the law sometimes, such as in quasi-delicts, dispenses with
the plaintiffs burden to prove negligence, because the law now
provides for the presumption.
Remember what I told you about, the doctrine of res ipsa
loquitor or the thing speaks for itself. Daghang mga kaso na ing-
ana. For example, Africa versus Caltex and my 11avour11ls
case in the whole wide world: Republic versus Luzon
Stevedoring. It simply says that the negligence of the alleged
wrongdoer may be inferred; there is no need to present evidence
to prove negligence. The accident happened and it may inferred
that such accident would not have occurred had there been no
negligence and the thing that caused the injury is shown to be
under the exclusive control of the defendant.
For example, in Africa case, theres a fire in a gasoline station.
Would there be a fire in the gasoline station caused by a factor
outside the people within the gasoline station? Kinsa bay nay
control sa instrumentality that caused the fire? It is the gasoline
station.
Or for example, there was 11avour11l as in the case of Luzon
Stevedoring. The difference between 11avour11l and collision:
Collision means two moving objects while 11avour11l means one
moving object and one stationary. Who is at fault in 11avour11l?
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Of course the one that is moving and therefore the thing speaks
for itself, there is negligence. It is not anymore the burden of the
plaintiff to prove that there is negligence and that is the effect of
the presumption. So when a presumption is applied in case, it
creates the burden of disproving. For example, when the doctrine
of res ipsa loquitor applies, the defendant now has the burden of
proving that there was no negligence.
There are two types of presumption under Rule 131:
Conclusive presumption. It is that which the law
does not allow to be controverted. For example, the
tenant cannot dispute the title of the land lord
because 12avour12ls applies. The land lord
therefore would already have in his 12avour the
presumption that he has good title to the property
he is leasing out. Another conclusive presumption is
one we have learned in Jarco Marketing versus
Court of Appeals, where the Supreme Court said
that a child below 9 years of age is conclusively
presumed to be incapable of contributory
negligence, in the same vein, the Revised Penal
Code also provides that a child below 9 years old is
incapable of discernment.
Disputable presumption.
II. JUDICIAL ADMISSIONS
Why is admission conclusive? It is because an admission is
greater than all proof. Why do you need to prove or disprove
something when there is already an admission? If you are the
prosecutor for example, you burden is to prove that the accused
is the one who committed the crime. That is your burden. Do you
need to prove with evidence when there is an admission of
confession that the accused committed the crime? No need. That
is judicial admission. (For more discussion re: Judicial Admissions
please go to July 22 TSN)
III. MATTERS WHICH FALL WITHIN THE REALM OF
JUDICIAL NOTICE
But of course the topic of the hour is judicial notice. Judicial
notice is the cognizance of certain facts which judges
may properly take and act on without proof because they
are already proven. It is a rule in the law of evidence that
allows a fact to be introduced into evidence if the truth of the
fact is so obvious or notorious or well-known that it cannot be
refuted. It is the cognizance of certain facts by the court without
proof because they are facts which by common experience are of
universal knowledge among intelligent persons within a country
or locality.
The latin maxim that would be applicable is manifesta
probatione non indigent or manifest things require no proof. I
think that is clear already on what judicial notice is.
The question is what is the rationale behind judicial notice? Why
is it that judges are allowed to take judicial notice or to not
require proof of certain facts? What is the essence of the law? It
is because of two things: convenience and expediency. It will be
superfluous to require proof; it would be inconvenient and
expensive for both parties and the court to require proof in the
ordinary way of facts which are already known to courts.
Insistence on not taking judicial notice will lead to absurdity.
For example, there is an American who is a witness in court. Of
course, he starts out by saying his name and personal
circumstances for the record. My name is lets say, Gerald
Anderson, originally from Detroit, Michigan. Can the court say
What is that Detroit, Michigan? Of course, it is in the United
States. Where is this United States? It is in North America.
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Where is this North America? Wouldnt that eb absurd. And that
is why judicial notice is mandated for existence and territorial
extent of states as well of the geographical divisions.
Another witness for example: I saw A push B from the 100 th
story of the building. And then what happened? Unsa pa man
diay mahitabo ana? Nahulog, sya splat, patay. You can of course,
take judicial notice that if you are pushed from the top of a 100
story building that the law of gravity will take place. That is the
law of nature. You do not need ocular inspection. You do not say
Okay judge. I will push you, lets see if you will fall. Diba? It
will lead to absurd result if you do not take mandatory judicial
notice.
There are a lot of cases here which will be taking in due time.
One such case is Pigao versus Rabanillo, where the Supreme
Court had the occasion to lay down the material requisites of
judicial notice.
REQUISITES FOR JUDICIAL NOTICE
(1) The matter must be one of common and general
knowledge;
(2) It must be well and authoritatively settled and
not doubtful or uncertain; and
(3) It must be known to be within the limits of
jurisdiction of the court.
The power of taking judicial notice is to be exercised by courts
with caution. Care must be taken that the requisite notoriety
exists and every reasonable doubt on the subject should be
promptly resolved in the negative. And therefore what this case
is saying, aside from laying down the material requisites, is that
taking judicial notice is the exception rather than the general
rule. The general rule, of course, is proof is required and one
exception is judicial notice.
Heres one that I always tell my students, found in the case of
Saludo versus American Express International. I asked this
in an exam two years ago and the question was this. What does
common knowledge mean? This one you need to remember. The
concept of facts of common knowledge in the context of judicial
notice has been explained as those facts that are so
commonly known in the community as to make it
unprofitable to require proof, and so certainly known to
as to make it indisputable among reasonable men. (VIP.
Memorize this phrase). The word that I want to emphasize
there is unprofitable. Requiring proof for facts which are of
general knowledge would lead to futile results because such
would be superfluous. No need to present proof diba? If you say
that in the bar unprofitable to require proof, you will be given
full point. Allow me to be a Judge Canete to you, because Judge
Canete would sometimes say This is the only way youre
supposed to answer this particular question. So remember na
ninyo ha? Unprofitable to require proof. If I ask this in the exam
and you do not put there unprofitable to require proof, then I
will not give you points. I will give you zero if you do not write
this phrase.
TYPES OF JUDICIAL NOTICE
(1) Mandatory Judicial Notice, which you have
memorized in Section 1
(2) Discretionary Judicial Notice and
(3) Judicial Notice when hearing necessary.
When you talk about the first one, the court does not have any
choice. What about discretionary? It is the type of judicial notice
where the judge has an option, whether to take judicial notice of
a particular fact or allow the parties to present their respective
claims. The third one, judicial notice when hearing necessary, is
not actually judicial notice. Why do I say that judicial notice when
hearing necessary, is not actually judicial notice? It is the
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
essence of judicial notice to not require hearing; to not require
the parties to submit evidence. What happens when there is a
hearing? Under Civil Procedure, you have to be ready with you
supporting affidavits and evidence when necessary. So to my
mind under Section 3, that is actually not judicial notice; it is
repugnant to the essence of judicial notice.
MANDATORY
JUDICIAL NOTICE
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.
Quite a mouthful noh? But for me, at least, this is complete. It
already enumerates the subject matter and topics that are
objects of mandatory judicial notice and therefore if it is not
found in Section 1 then that matter is not a matter of mandatory
judicial notice. Although, we will find later, that there is judicial
notice on certain matters beyond Section 1. Lets go over the
objects one-by-one:
(1) The existence and territorial extent of states, their
political history, forms of government and symbols of
nationality: Again, the purpose here would be expediency. It
would be absurd to require evidence on these matters. Besides,
judges should not be more ignorant than the rest of the people.
Where is this China? Prove to me where China is.
Dilinanakinahanglan.
(2) Law of Nations: Do you know what the law of nations is?
This refers to international law. But my next question is do you
know all these treaties?
For example, CEDAW or Convention on the Elimination of All
Forms of Discrimination Against Women as explained by the
Supreme Court in the case of Halaguena versus Philippine
Airlines, which is a Civil Procedure case. Okay for example
CEDAW, do you know its provisions? Have you even heard of
CEDAW? Im willing to bet 50% of you have not even heard
about it. Oh sige lets not go into specifics, ing.ani nalang: How
does international law become part of the law of the land, or
how does it become part of domestic law or national law? Can
you recall a Constitutional provisions on this matter? Diba, The
Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as
part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all
nations. That is Article II, Section 2 of the 1987 Constitution. By
virtue of that clause, for example, the CEDAW becomes a part of
the national law because it adheres to the generally accepted
principles. This is by virtue of the incorporation clause in the
Philippine Constitution, which other countries also have a similar
clause. International law is given an equal but not superior
standing than domestic laws.
Lahi pud ning atong ginatawag na transformation, where
international law becomes part of the law of the land when we
transform a convention or a treaty into a domestic law; we make
our own version. Example, Anti-Terrorism Act and Crimes against
International Humanitarian Act. We have our own laws for those.
We transform that into domestic law.
Now what about generally accepted principles of international
law that are not found in conventions, how do they form part of
the law of the land. In Public International Law, what are these
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two elements, can you recall? First is widespread sate practice
and second is opinio juris which means you follow this act
because you believe it is right; that is the psychological aspect of
international law.
How about the law of another state, United States for example.
Are courts required to take judicial notice of that? Answer is no.
That is not part of mandatory judicial notice. We will go to that
later on how judicial notice of foreign laws is taken; on what
happens when there is a mention of the foreign law but there is
no attempt to prove the law as a fact. There is a presumption
that actually applies which is processual presumption, where the
presumption is our law is same as ours. How about on same-sex
marriage? I dont know its legal implications yet.
(3) Matters of history of other states: If we cannot take
judicial notice of the law of the United States, can we take notice
of matters of history? It depends. We can if that part of history is
a matter of international interest. If it is purely local interest of
the foreign state, we cannot take judicial notice. For example,
the assassination of John F. Kennedy that is a matter of
international interest. Judges are expected to know that, thus, a
judge is wrong if he requires evidence to prove the death of John
F. Kennedy.
(4) Political Constitution and History of the Philippines:
As a rule, the political constitution and history of the Philippines
is subject to mandatory judicial notice. The requirement here is
mere notoriety; the judge should know them. In other words, it
must be a matter that is known to the whole country and not
limited to a single town or province. Therefore, you do not need
a historian or a history book to prove matters known to the
nation. The case there would be Municipal Board of Manila
versus Segundo Agustin. Its a very old case but it is still
applicable until today. But the question now, is history really
accurate? (Thats a different story.)
(5) Official acts of the legislative department: When you
talk about legislative acts of Congress, what does this refer to? It
refers to laws. Every judge must take judicial notice of every
statute. So if it is a national law, every judge in the country must
know such law. No litigant should have the present proof as to
whether a Republic Act exists or does not exist, the judge is
presumed to know that already, including the status of the law of
whether or not it is a good law or it has been repealed or has it
been amended and so on and so forth.
Its a different story when you talk about municipal law, although
I think it is already of public knowledge and unprofitable to
require proof that Davao City has a non-smoking ordinance.
Everybody in the country knows that; all judges should know
that. But lets say for example, do we know that theres an
ordinance somewhere in the Visayas region requiring its
constituents to render community service? Or that a particular
place you are allowed to jaywalk at certain times at particular
times? We do not know that. Judges are not expected to know
that. The rule is that if you are a judge of a Municipal Trial Court,
then you are expected to know the laws and ordinances within
that particular municipality or city within you sit. Remember that
there can be a Municipal Trial Court within a city. An RTC, on the
other hand, must take judicial notice:
1.) When required to do so by statute
2.) In a case on appeal before them where the inferior
court took judicial notice of an ordinance involving the
same case
3.) When capable of unquestionable demonstration.
Other than laws, what other official of congress must the courts
take mandatory judicial notice of? In the case of Chavez versus
Public Estates Authority, reports or minutes of investigations
and public hearings conducted by Senate Committees are subject
of mandatory judicial notice because they are considered official
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
acts of the legislature. So therefore, also, congressional debates
and other records that predicate a passage of a law are official
acts of the legislature which the court must take judicial notice
of.
Again, as a general rule, foreign laws present a question of fact,
they have to be proven in court in the manner provided in Rule
132 Section 24 and 25. But there are certain principles that we
have to be aware of. Foreign laws need not be proven if the
other party already admits them. That will be considered as a
judicial admission not requiring proof. Also we have the principle
of processual presumption: in the absence of proof or judicial
admission, the laws of the foreign state is presumed to be similar
to our laws.
Here is an interesting case: Teodora Sobejana-Condon
versus Comelec (2012). Here, the petitioner is the winning vice
mayoralty candidate of Caba, La Union. A petition for quo
warrantowas filed against her stating that she as a dual citizen,
under RA 9225, must execute a sworn renunciation of her
Australian citizenship. So the petitioner answered when she
execute a renunciation of her Australian citizenship in Australia,
she is deemed to have renounced her foreign citizenship. And
she wanted the court to take judicial notice of the laws of
Australia, which says that renunciation of her citizen under the
laws of Australia is binding to the whole world. She also
contended that her mere act of running for public office is a clear
abandonment of her foreign citizenship. According to the
Supreme Court, we do not take judicial notice of a foreign law
such as the Australian Citizenship Act. A sworn renunciation is
required under 9225, which requires the sworn renunciation of
foreign citizenship.
(6) Official acts of the executive department: what do they
consist of? Presidential decrees, presidential declarations,
Executive orders and so on and so forth. Cabinet secretaries
being the alter egos of the President, their acts are also
considered official acts of the executive department. So when
there is a department circular, administrative order,
administrative circular, courts should take judicial notice of it.
Now, one such matter which the president can exercise as an
official act of executive department is executive clemency.
Amnesty and pardon also falls under the acts of the executive
but how do you distinguish them.
In the case of People versus William O. Casido, pardon is
granted by the Chief Executive and as such it is a private act
which must be pleaded and proved by the person pardoned,
because the courts take no notice thereof; while amnesty by
Proclamation of the Chief Executive with the concurrence of
Congress, and it is a public act of which the courts should take
judicial notice. So if its a pardon, you have to prove the pardon,
id that is relevant to your case. But if it is an amnesty, which is
not only an official act of the President but with the concurrence
of the Congress, it is a public act which the courts are required to
take judicial notice.
(7) Official acts of the judicial department: Of course,
these refer to cases decided by the Supreme Court of
jurisprudence. So judges must not rely on the codal provisions
but be updated in the jurisprudence as well. Judges are also
supposed to take judicial notice of Rules of Court. Judges who
wouldnt follow the Rules of Court is something Dean Inigo,
during his lifetime, could not stand.
What else? Issuances by the Supreme Court such as Rules on
Electronic Evidence issued by the Supreme Court or Rules on the
procedure of environmental cases issued by the Supreme Court.
Courts must take judicial notice of these matters. The decisions
that pertain to mandatory judicial notice are only decisions of the
Supreme Court. How do you prove a decision of the Court of
Appeals or the lower courts? You have to give the court a copy, if
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they do not have a copy yet of the record or order of the lower
court.
Ok, Question 1: Can the court take judicial notice of matters
pending in another case? Question 2: Can a court be allowed to
take judicial notice of records in different courts for a purpose of
a particular case? Can the judge say, You dont need to present
evidence on that fact; that is already established in a case that I
tried a year ago and I will take judicial notice that the owner of
the gun is X. Can the court do that?
The general rule is no, the court cannot take judicial notice of the
decisions of the coordinate courts not even the decision or the
facts of a similar case tried by the same court. Even if the judge
has personal knowledge, the court does not have personal
knowledge thus the court cannot take judicial notice. It
emphasizes the difference of a court and a judge. Diba sa Civil
Procedure, you learned the difference of a court and a judge. So
whatever is within the personal knowledge of the judge, being an
officer of the court, does not equate to judicial notice. There is a
dichotomy between the judge and the court. There is a lot of
cases here you have to read: Judge Dolores Espaol versus
Atty. Formoso. The court here was questioned for taking
judicial notice of another case. The Supreme Court said: Courts
are not authorized to take judicial notice of the contents of
records of other cases even when such cases have been tried or
pending in the same court.
However, there are instances when the court may take judicial
notice. In Republic versus Court of Appeals (August 18,
1997), the Supreme Court said: A court will take judicial notice of
its own acts and records in the same case, of facts established in
prior proceedings in the same case, of the authenticity of its own
records of another case between the same parties, of the files of
related cases in the same court, and of public records on file in
the same court.
However, there is a qualification provided for by an earlier case
Occidental Land Transportation versus Court of Appeals
(1993): That there should be an absence of objection, meaning
both parties agree, as a matter of convenience between two
parties to treat the records of another case as read into the
records. Those are the two requisites you need to remember: the
absence of objection and the consent of the parties. Remember
these cases as well as the general rule and the exceptions.
(8) Laws of Nature: The most celebrated use of the laws of
nature in judicial notice is in a very old case in 1800s involving
Abraham Lincoln. There is a brawl during one night and there is
an eyewitness from afar of the assailant from a distance of 150
feet. You have to remember that during this time there was still
no light posts or wide spread used of electricity. Therefore,
because of the poor visibility it makes the identification of the
assailant from afar questionable. One witness said that he was
able to see the assailant because of the light of the moon. What
Abraham Lincoln did was take a farmer almanac and prove that
the moon has already set during that night and therefore
visibility of the assailant would have been impossible. And the
assailant was indeed acquitted.
Here is another case, this time in the Philippines, People versus
Meneses (1998), where the Supreme Court took judicial notice
that at around three in the morning during the Christmas season,
it is still quite dark and that daylight comes rather late in this
time of year. That is taking judicial notice of the laws of nature.
At three oclock in the morning, ngitngit pa jud na sya.
Heres another case: Gabriel versus Court of Appeals
(October 6, 2004). The testimony of the star witness was like
this: I stepped out to see what was going on. And then I heard
the sound of two vehicles colliding with one another.and then I
saw the vehicles colliding with one another. In other words, the
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
sound came before the actual collision. What is correct? The
sound occurs immediately after the collision. The Supreme Court
said that we have to take judicial notice of the laws of nature. If
true, the Supreme Court said: If true, this would rate as one of
the greatest scientific revelations of all time. But since courts are
obliged to take judicial notice of the laws of nature, this Court
prefers to side with prudence. So the Supreme Court can be
sarcastic at times.
(9) Geographical divisions: In the case of People of the
Philippines versus Sevilleno (1999), the Supreme Court said
that the geographical divisions of barangays and cities, that is
something that the Supreme Court should take judicial notice of.
Geographical divisions na sya.
Not only that but also the characteristics of these municipalities
and cities, like for example, that the court properly took judicial
notice that Talamban, Cebu City is an urban area, that was in the
case of Doris Chongbian-Oliva versus Republic.
In Banatao versus Dabbay (1918), the court can also take
judicial notice of rivers and whether they are navigable or not.
In People versus Pacabes, the Supreme Court also said: The
failure of a witness to report at once to the police authorities the
crime they had witnessed should not be taken against them. It is
not uncommon for a witness to a crime to show some reluctance
about getting involved in a criminal case. The natural reticence of
most people to get involved in a criminal case is of judicial
notice. That is natural, when there is a case being filed, we do
not want to be a witness, we do not want to be damay, dili ta
gusto mu.apil apil although pag.kahitabo sa crime kusog kaayo
ta maki.chismis. Ing.ana kausisero ang pinoy. Ing.ana atong
mentality. When you become lawyers, you will also encounter
that problem.
July 15, 2015 (JRLumanag)
DISCRETIONARY
JUDICIAL NOTICE
Rule 129. Section 2.Judicial notice, when discretionary. A
court may take judicial notice of matters which are of public
knowledge, or are capable of unquestionable demonstration, or
ought to be known to judges because of their judicial functions.
What are the matters which do not actually require proof in
court? Section 1, relates mandatory judicial notice. By the term
mandatory, the court has no discretion on whether or not to
require proof. If a court requires proof within the realm of
mandatory judicial notice, that court is ignorant of the law.
Therefore, that court can be subjected to administrative
disciplinary action. But in contrast with Section 2, which is
discretionary judicial notice, the court has the choice.
In mandatory, court has no choice. Section 2, court has
absolute choice.
So a court may take judicial notice of matters which are of public
knowledge, or are capable of unquestionable demonstration, or
ought to be known to judges because of their judicial functions.
This is termed discretionary under Sec 2 because of its very
nature, it depends wholly on the judgment of the court unless
the matter falls within section 1 of the Rule 129. No party can
compel a judge to take judicial notice of the same.
Can you therefore file an action for mandamus to compel the
Judge to take judicial notice of a matter? NO.
Mandamus does not lie to compel the performance of a non-
ministerial or discretionary act; only when it is purely ministerial
[Page 15 of 107]
Ad Majorem Dei Gloriam
that you can actually compel a judge by mandamus to do
something.
SALUDO VS. AMERICAN EXPRESS INTERNATIONAL
April 19, 2006 * digested by JRL *
Aniceto G. Saludo, Jr. filed a complaint for damages against
the American Express International, Inc. (AMEX) and/or its
officers with the RTC.
The complaint alleged, inter alia, that plaintiff (herein
petitioner Saludo) "is a Filipino citizen, of legal age, and a
member of the House of Representatives and a resident
of Ichon, Macrohon, Southern Leyte, Philippines."
The complaint's cause of action stemmed from the alleged
wrongful dishonor of petitioner Saludo's AMEX credit card
and the supplementary card issued to his daughter.
Respondents raised the affirmative defenses of lack of
cause of action and improper venue.
respondents averred that petitioner Saludo was not
allegedly a resident thereof as evidenced by the fact that
his community tax certificate.
Issue: W/N the court may take judicial notice of Saludos
residence. YES
Held:
There is no dispute that petitioner Saludo was the
congressman or the representative of the lone district of
Southern Leyte at the time of filing of his complaint with
the court a quo. Even the appellate court admits this fact
as it states that "it may be conceded that private
respondent ever so often travels to Maasin City, Southern
Leyte, because he is its representative in the lower house."
As a member of the House of Representatives, petitioner
Saludo was correctly deemed by the court a quo as
possessing the requirements for the said position, including
that he was then a resident of the district which he was
representing, i.e., Southern Leyte.
The concept of "facts of common knowledge" in the
context of judicial notice has been explained as
those facts that are "so commonly known in the
community as to make it unprofitable to require
proof, and so certainly known to as to make it
indisputable among reasonable men." Moreover,
"though usually facts of 'common knowledge' will
be generally known throughout the country, it is
sufficient as a basis for judicial notice that they be
known in the local community where the trial court
sits." Certainly, the fact of petitioner Saludo being
the duly elected representative of Southern Leyte at
the time could be properly taken judicial notice of
by the court a quo, the same being a matter of
common knowledge in the community where it sits.
Further, petitioner Saludo's residence in Southern Leyte
could likewise be properly taken judicial notice of by the
court a quo. It is bound to know that, under the
Constitution, one of the qualifications of a congressman or
representative to the House of Representatives is having a
residence in the district in which he shall be elected.
It tells you about facts of common knowledge, those facts that
are so commonly known in the community as to make it
unprofitable to require proof, and so certainly known to as to
make it indisputable among reasonable men. Moreover, though
usually facts of 'common knowledge' will be generally known
throughout the country, it is sufficient as a basis for judicial
notice that they be known in the local community where the trial
court sits." Thats under Section 2.
If it is a matter of common knowledge in a common locality, do
not apply section 1, apply section 2 relating to discretionary
judicial notice.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Another case is the case of:
STATE PROSECUTORS VS. MURO
September 19, 1994 * JRL *
On August 13, 1992, respondent judge issued an Order
dismissing eleven (11) cases
Respondent Judge issued his Order solely on the basis of
newspaper reports (August 11, 1992 issues of the
Philippine Daily Inquirer and the Daily Globe) concerning
the announcement on August 10, 1992 by the President of
the Philippines of the lifting by the government of all
foreign exchange restrictions and the arrival at such
decision by the Monetary Board as per statement of Central
Bank Governor Jose Cuisia
Issue: W/N the Judge was correct in taking judicial notice of the
supposed lifting of foreign exchange controls which appeared in
a newspaper. NO.
Held:
The doctrine of judicial notice rests on the wisdom and
discretion of the courts. The power to take judicial notice is
to be exercised by courts with caution; care must be taken
that the requisite notoriety exists; and every reasonable
doubt on the subject should be promptly resolved in the
negative.
Generally speaking, matters of judicial notice have
three material requisites: (1) the matter must be
one of common and general knowledge; (2) it must
be well and authoritatively settled and not doubtful
or uncertain; and (3) it must be known to be within
the limits of the jurisdiction of the court. The
provincial guide in determining what facts may be
assumed to be judicially known is that of
notoriety. Hence, it can be said that judicial notice is
limited to facts evidenced by public records and
facts of general notoriety.
To say that a court will take judicial notice of a fact
is merely another way of saying that the usual form
of evidence will be dispensed with if knowledge of
the fact can be otherwise acquired. This is because
the court assumes that the matter is so notorious
that it will not be disputed. But judicial notice is not
judicial knowledge. The mere personal knowledge
of the judge is not the judicial knowledge of the
court, and he is not authorized to make his
individual knowledge of a fact, not generally or
professionally known, the basis of his action.
Judicial cognizance is taken only of those matters
which are "commonly" known.
Things of "common knowledge," of which courts take
judicial notice, may be matters coming to the knowledge of
men generally in the course of the ordinary experiences of
life, or they may be matters which are generally accepted
by mankind as true and are capable of ready and
unquestioned demonstration. Thus, facts which are
universally known, and which may be found in
encyclopedias, dictionaries or other publications, are
judicially noticed, provided they are of such universal
notoriety and so generally understood that they may be
regarded as forming part of the common knowledge of
every person.
Respondent judge, in the guise of exercising discretion and
on the basis of a mere newspaper account which is
sometimes even referred to as hearsay evidence twice
removed, took judicial notice of the supposed lifting of
foreign exchange controls, a matter which was not and
cannot be considered of common knowledge or of general
notoriety. Worse, he took cognizance of an administrative
regulation which was not yet in force when the order of
[Page 16 of 107]
Ad Majorem Dei Gloriam
dismissal was issued. Jurisprudence dictates that judicial
notice cannot be taken of a statute before it becomes
effective. The reason is simple. A law which is not yet in
force and hence, still inexistent, cannot be of common
knowledge capable of ready and unquestionable
demonstration, which is one of the requirements before a
court can take judicial notice of a fact.
The Judge in this case dismissed 11 cases for violation of CB
circular 960 relating to foreign exchange against Imelda Marcos.
The Judge dismissed them on the basis of newspaper reports
concerning the announcement of President of the Philippines on
the lifting of all foreign exchange restrictions as embodied in the
circular. The judge said that the announcement of the President
had the effect of repealing the CB 960.
Was the court correct in dismissing the case on the grounds only
that CB 960 and the restrictions on foreign exchange were lifted
by an announcement that appears in a newspaper? What is that?
Is that a matter of judicial notice? Or a matter of judicial
knowledge?
If it is already an official act, then wala nay problema.Its subject
of mandatory judicial notice of fact. The question here is because
the judge said that there was this announcement and that it was
stated in the newspaper. Would that satisfy the requisites of
discretionary judicial notice under Section 2?
Requisites:
1. The matter must be one of common and general
knowledge;
2. It must be well and authoritatively settled and
not doubtful or uncertain; and
3. It must be known to be within the limits of the
jurisdiction of the court
SC said judicial notice is not equivalent to judicial knowledge.
The mere personal knowledge of the judge is not the judicial
knowledge of the court, and he is not authorized to make his
individual knowledge of a fact, not generally or professionally
known, the basis of his action.
Judicial notice cannot be taken of a statute before it becomes
effective. A law not yet enforced and hence, still inexistent
cannot be of common knowledge capable of ready and
unquestionable demonstration. And therefore, tama.Tama
ang State Prosecutors that the dismissal of the case was actually
premature.
What actually happens in section 2 when you apply discretionary
judicial notice? The judge announces his intention. The Judge
tells the parties that I am going to take judicial notice of this.
But the parties cannot object which is the difference between
section 2 and section 3.
JUDICIAL NOTICE,
WHEN HEARING NECESSARY
Rule 129. Section 3. Judicial notice, when hearing necessary.
During the trial, the court, on its own initiative, or on request of
a party, may announce its intention to take judicial notice of
any matter and allow the parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper
court, on its own initiative or on request of a party, may take
judicial notice of any matter and allow the parties to be heard
thereon if such matter is decisive of a material issue in the
case.
In section 3, same thing lang gihapon. The Judge tells the parties
that he is going to take judicial notice of this particular fact.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
In section 2, parties cannot do anything if the Judge already
exercises his discretion. In section 3, it is actually a weird
provision, if you ask me. Why? Because section 3 provides for JN
where hearing is necessary. Is it not a fact that JN by its very
nature dispenses with evidence and therefore dispenses with a
hearing? Section 3 is contrary to the essence of JN.
1st paragraph: So how do you propose something for the court
to take JN?
I was handling a case of my own cousin (17 years old), a
criminal case before the MTC. But because he was 17, it has to
be referred to a family court. During pre-trial, I ask the court
Your Honor can you take JN that my client was a minor at the
time of the commission of the crime? That is how you propose.
So you dont have to present evidence. So that it can be
dispensed already.
2nd paragraph: Just try to remember how it happens. During trial
or what happens if its already after trial, before judgment or on
appeal because theres a slight variation on how it happens.
LAND BANK OF THE PHILIPPINES VS. WYCOCO
January 13, 2004 * JRL *
Feliciano F. Wycoco is the registered owner of a 94.1690
hectare unirrigated and untenanted rice land
In line with the Comprehensive Agrarian Reform Program
(CARP) of the government, Wycoco voluntarily offered to
sell the land to the Department of Agrarian Reform (DAR)
for P14.9 million
In arriving at the valuation of Wycocos land, the trial
court took judicial notice of the alleged prevailing market
value of agricultural lands in Licab, Nueva Ecija without
apprising the parties of its intention to take judicial notice
thereof.
Issue: W/N the market value should have been taken judicial
notice of without the requirement of hearing. NO
Held:
Inasmuch as the valuation of the property of Wycoco is
the very issue in the case at bar, the trial court should
have allowed the parties to present evidence thereon
instead of practically assuming a valuation without basis.
While market value may be one of the bases of
determining just compensation, the same cannot be
arbitrarily arrived at without considering the factors to be
appreciated in arriving at the fair market value of the
property e.g., the cost of acquisition, the current value of
like properties, its size, shape, location, as well as the tax
declarations thereon. Since these factors were not
considered, a remand of the case for determination of just
compensation is necessary.
The power to take judicial notice is to be exercised
by courts with caution especially where the case
involves a vast tract of land. Care must be taken that
the requisite notoriety exists; and every reasonable doubt
on the subject should be promptly resolved in the
negative. To say that a court will take judicial notice of a
fact is merely another way of saying that the usual form of
evidence will be dispensed with if knowledge of the fact
can be otherwise acquired. This is because the court
assumes that the matter is so notorious that it will not be
disputed. But judicial notice is not judicial knowledge. The
mere personal knowledge of the judge is not the judicial
knowledge of the court, and he is not authorized to make
his individual knowledge of a fact, not generally or
professionally known, the basis of his action
[Page 17 of 107]
Ad Majorem Dei Gloriam
This is a case for expropriation. The court took JN of the
prevailing market value of agricultural lands in a particular
locality.
According to the SC, actually the court can do so but he cannot
do so under number 1 and 2. He has to do it under number 3.
Allow the parties to be heard thereon. In other words, it will not
entail(?) the presentation of evidence.
It becomes problematic under Section 3 because it requires
hearing. In pre-trial, let us suppose that I have this class card.
This is documentary evidence. Is there a process by which I can
dispense with the need of presenting this documentary evidnce
during trial without asking the court to take judicial notice? Is
there a way for me to do that? The court will not take JN but my
intention is not to present this at trial anymore, dilinanakoipa
authenticate sa witness. There is a way and we call it
stipulation. You ask the party to stipulate. Why would
stipulation produce the effect that it need not be presented
during trial? Because it falls now within the ambit known as
judicial admission. Gipa admit na nimo sya. That is Section 4.
Can that be considered as evidence? And when would it be
relevant? Appearance. Can it be objectively considered as
evidence? YES. When it is presented for the perusal of the court.
When it is examine to, or viewed by the court ad therefore,
object evidence,
JUDICIAL NOTICE ON APPEARANCE
The extent of bodily injury that you suffered in the hands of an
abuser. You are asking the court to use its sense of sight to
determine the extent of your injury. When the court does that,
can the court actually takes judicial notice of your appearance
and bodily injury? You are not taking JN! What you are
doing is called autoptic proference - using your senses to
observe the physical appearance and condition of an object.
Dean Inigo calls object evidence as autoptic proference.
[Linguistic 101: Coming from the term auto and optic. Auto means self and optic
means pertaining to the eyes or self-evidence or self-appreciation by the use of
your sight. Proference is under Rule 132.]
When you appreciate the physical appearance or condition by the
use of your senses, you are not taking judicial notice but you are
exercising Autoptic Proference.
JUDICIAL NOTICE ON AGE
Nobody has personal knowledge of his or her age. Age becomes
a factor in criminal cases or is an element of an offense. It is the
fact in issue.
When age is an issue? Or what are the legal
consequences of age in criminal cases? Age is important
because it may be an:
Exempting Circumstance
- Person under 9 or person over 9 but under 15 who
acted without discernment)
Mitigating Circumstance
- Person under 18 or over 17 who commits a criminal
offense, age may be appreciated as mitigating)
Aggravating Circumstance
Qualifying Circumstance
- If victim is under 18 and the offender is a relative
or if the victim is child below 7 years old
Element of Crime itself (e.g. Statutory rape If victim is
12 years old or below, statutory rape.)
In civil law?
Custody of the child (Child below 7 years of age, if
parents separate or marriage declared void, custody
shall go to the mother)
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Note: Age is sometimes a fact in issue that has to be
proven for the full appreciation of the court. It has to be
proven because there are certain legal consequences.
AGE AND APPEARANCE/ APPEARANCE IN ORDER TO
DETERMINE AGE
If you want to prove in a case that the offended party in a rape
case is below 12 years old. Can you ask the court to take JN that
this victim is below 12 years old?
Remember when the court take JN or examines the appearance
of the person to determine his or her possible age, the court is
no longer undergoing the process of JN but rather the court is
undergoing the process of autoptic proference which is
presentation of evidence. And therefore, appreciation of age and
appearance as evidence or appreciation of appearance in order
to determine probable age is repugnant to the concept of JN.
The court rather undertakes autoptic proference. So the court
does that militates the very concept of JN, the object of which is
to do away with the presentation of evidence.
The best proof of age is a birth certificate.
PEOPLE VS. PRUNA
October 10, 2002 * JRL *
On 27 January 1995, an information[2] for rape was filed
against accused-appellant Manuel Pruna y Ramirez or
Erman Pruna y Ramirez
Jacqueline, Lizettes mother, declared that at the time of
the alleged rape, LIZETTE was 3 years old, but at the time
Jacqueline testified on 17 October 1995, LIZETTE was 4
years old. LIZETTEs last birthday was on 19 April 1995
Pruna was convicted
Issue: W/N it was sufficiently established that Lizette was 3
years old at the time of the commission of the crime. NO.
Held:
A persons age is best proved by the birth
certificate. But is the presentation of the victims birth
certificate a sine qua non requirement to prove her age
for the appreciation of minority either as an element of
the crime or as a qualifying circumstance? Recent
jurisprudence has conflicting pronouncements.
In order to remove any confusion that may be engendered
by the foregoing cases, we hereby set the following
guidelines in appreciating age, either as an element
of the crime or as a qualifying circumstance.
1. The best evidence to prove the age of the offended
party is an original or certified true copy of the
certificate of live birth of such party.
2. In the absence of a certificate of live birth, similar
authentic documents such as baptismal certificate and
school records which show the date of birth of the
victim would suffice to prove age.
3. If the certificate of live birth or authentic document is
shown to have been lost or destroyed or otherwise
unavailable, the testimony, if clear and credible, of
the victims mother or a member of the family either
by affinity or consanguinity who is qualified to testify
on matters respecting pedigree such as the exact age
or date of birth of the offended party pursuant to
Section 40, Rule 130 of the Rules on Evidence shall
be sufficient under the following circumstances:
a. If the victim is alleged to be below 3 years of age
and what is sought to be proved is that she is
less than 7 years old;
b. If the victim is alleged to be below 7 years of age
and what is sought to be proved is that she is
less than 12 years old;
[Page 18 of 107]
Ad Majorem Dei Gloriam
c. If the victim is alleged to be below 12 years of
age and what is sought to be proved is that she
is less than 18 years old.
4. In the absence of a certificate of live birth, authentic
document, or the testimony of the victims mother or
relatives concerning the victims age, the complainants
testimony will suffice provided that it is expressly and
clearly admitted by the accused.
5. It is the prosecution that has the burden of proving
the age of the offended party. The failure of the
accused to object to the testimonial evidence
regarding age shall not be taken against him.
The trial court should always make a categorical finding as
to the age of the victim.
In the present case, no birth certificate or any similar
authentic document, such as a baptismal certificate of
LIZETTE, was presented to prove her age.
LIZETTE testified on 20 November 1996, or almost two
years after the incident, that she was 5 years
old. However, when the defense counsel asked her how
old she was on 3 January 1995, or at the time of the rape,
she replied that she was 5 years old. Upon further
question as to the date she was born, she could not
answer.
For PRUNA to be convicted of rape in its qualified form
and meted the supreme penalty of death, it must be
established with certainty that LIZETTE was below 7 years
old at the time of the commission of the crime. It must be
stressed that the severity of the death penalty, especially
its irreversible and final nature once carried out, makes
the decision-making process in capital offenses aptly
subject to the most exacting rules of procedure and
evidence.
In view of the uncertainty of LIZETTEs exact age,
corroborative evidence such as her birth certificate,
baptismal certificate or any other authentic document
should be introduced in evidence in order that the
qualifying circumstance of below seven (7) years old is
appreciated against the appellant. The lack of objection on
the part of the defense as to her age did not excuse the
prosecution from discharging its burden. That the defense
invoked LIZETTEs tender age for purposes of questioning
her competency to testify is not necessarily an admission
that she was below 7 years of age when PRUNA raped her
on 3 January 1995. Such being the case, PRUNA cannot
be convicted of qualified rape, and hence the death
penalty cannot be imposed on him.
This is an old case but still the case that you should remember.
What are the guidelines in the matter of appreciating the age of
victim either as an element of crime or a qualifying
circumstance?
1. The best evidence to prove the age of the offended
party is an original or certified true copy of the
certificate of live birth of such party.
2. In the absence of a certificate of live birth, similar
authentic documents such as baptismal certificate
and school records which show the date of birth of the
victim would suffice to prove age.
3. If the certificate of live birth or authentic document is
shown to have been lost or destroyed or otherwise
unavailable, the testimony, if clear and credible, of
the victims mother or a member of the family
either by affinity or consanguinity who is
qualified to testify on matters respecting pedigree
such as the exact age or date of birth of the offended
party pursuant to Section 40, Rule 130 of the Rules on
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Evidence shall be sufficient under the following
circumstances:
a. If the victim is alleged to be below 3 years of age
and what is sought to be proved is that she is less
than 7 years old;
Atty. Espejo: It means that if testimony tends to
show that the child is below 3, the court may
believe that she is below 7 through the testimony.
b. If the victim is alleged to be below 7 years of age
and what is sought to be proved is that she is less
than 12 years old;
Atty. Espejo: If the testimony tends to show that
the child is below 7, the court will instead believe
that the testimony is below 12. You will not get that
precision. What you can prove is that she is below
12. That is what the court will believe.
c. If the victim is alleged to be below 12 years of age
and what is sought to be proved is that she is less
than 18 years old.
Atty. Espejo: If the testimony tends to show that
the child is below 12 years old, the court will
believe that the child is below 18 years old.
These are the conditions kay wala kay birth certificate
and secondary evidences. What you only have is a
testimony.
4. In the absence of a certificate of live birth, authentic
document, or the testimony of the victims mother or
relatives concerning the victims age, the
complainants testimony will suffice provided that it
is expressly and clearly admitted by the accused.
- Atty. Espejo: You dont have any school records.
Can you prove your own age before the court?
General rule : Your testimony cannot prove that
your age. When will it be admitted? Only if the
accused EXPRESSLY AND CLEARLY ADMITS that
you are below 18. If you are the accused, why will
you admit? Haha
5. It is the prosecution that has the burden of
proving the age of the offended party. The failure
of the accused to object to the testimonial evidence
regarding age shall not be taken against him.
July 22, 2015 (ELG)
JUDICIAL ADMISSIONS
Rule 129. Section 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.
What is a judicial admission or an admission in judicio?
It is a deliberate, clear and unequivocal statement by a party
about a concrete fact within that partys knowledge.
It must be deliberate because an admission will not bind a party
making it if it was made by mistake. In other words, a party
making the admission must have meant to make an admission. It
must be clear and unequivocal and therefore shall not admit of
two or more interpretations. A supposed admission that is
susceptible of several interpretations cannot be considered an
admission because at most it is a vague statement, it is
equivocal.
[Page 19 of 107]
Ad Majorem Dei Gloriam
Remember also that base on the definition it must be to a fact
within the parties knowledge. If not within his personal
knowledge and he makes a statement that seems to imply an
admission, then that will not anymore be treated as an admission
because he has no personal knowledge, therefore there cannot
be any admission on a matter that is clearly hearsay statement.
It has to be of a party personal knowledge.
Judicial admission may also mean a formal concession, meaning
you proposed one fact and I concede to it, I do not confess it; I
do not take issue as to that fact. It is a formal concession in the
pleadings or stipulations by a party or counsel that is binding to
the party making them.
Although a judicial admission itself is not evidence, it has the
effect of withdrawing a particular fact from contention. So dili na
nato kinahanglan lalisan, dili na kinahanglan debatihon kay gi-
angkon naman nako. Thats the concept of admission.
The latin maxim applicable is Latin maxim applicable is
confessio facta in judicio omni probatione major est which
means confession made in a trial is stronger than all proof.
Why does a court take a judicial notice of a particular fact
specifically on matter falling under section 1 or section 2 where
judicial notice is discretionary? Because a certain fact may be of
so common in knowledge that it would be unprofitable to require
proof. The same thing applies with respect to a judicial admission
in as much as when you require proof of something that has
already been admitted by the adverse party, then what you are
actually doing is a surplusage. It would already be a waste of
time and resources of the court if you prove something that has
otherwise been admitted already by the adverse party.
Sources of judicial admissions
In the case of Binarao v. Plus Builders Inc., June 16, 2006,
SC said that a party may make judicial admissions in:
The pleadings
During the trial, either by verbal or written
manifestations or stipulations, or
In other stages of the judicial proceedings.
Now, lets try to recall the type of admissions that can be made
in civil procedure because Im sure that you know that there are
a lot of instances in civil procedure where there can make
admissions.
One of them is the matter of actionable documents. What is
an actionable document? Under Rule 8, Sec. 8. An actionable
document is one which is the very basis of a partys cause of
action or defense.
In other words, lets say for example you are suing
somebody for a collection of a sum of money based on a
promissory note you need to attach or incorporate or cite
the actionable document which is the promissory note so
that your cause of action may be properly pleaded in the
case. Now that is the very foundation of your cause of
action.
Now what about an actionable document that is a
foundation of the defense? Let us suppose that in the same
example that I gave you earlier on, apart from the
promissory note the defendant also possesses a receipt
proving that he has already paid the obligation that is
embodied in the promissory note. And therefore in order for
him to defend against the charge that he has not yet paid
the debt as evidenced in the promissory note he has this
receipt and he has to properly plead that receipt an
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
actionable document the basis of his defense properly in the
pleadings.
Rule 8. Section 8.How to contest such documents. When
an action or defence is founded upon a written instrument,
copied in or attached to the corresponding pleading as
provided in the preceding section, the genuineness and
due execution of the instrument shall be deemed admitted
unless the adverse party, under oath specifically denies
them, and sets forth what he claims to be the facts, but
the requirement of an oath does not apply when the
adverse party does not appear to be a party to the
instrument or when compliance with an order for an
inspection of the original instrument is refused.
Now, take not in section 8, Rule 8 it states there the effect
of failure to contest properly an actionable document and
the effect is there is deemed an admission of the said
actionable document
How do you contest the genuineness and due execution of
such actionable document? You have to do it under oath,
meaning your answer for example must be verified.
Im sure that you remember also that in civil procedure there
are how many types of pleading is allowed under the rules?
There are only 7 and remember the basic ones would be
complaint, answer and a reply. A reply is supposed to be the
last pleading to be submitted and its purposed is to make
issue as to any new matters that are stated in the answer.
Remember also that the filing of a reply will always be
optional. Why? Because if you dont file a reply all the matter
set forth in the answer are deem to be automatically
controverted.
Why is it that the law does not mandate that you should file
a reply? Precisely because the law wants everything to be
quick. You are already given 15 days to file an answer and
then when you are supposed to file your reply you are given
an extra 10 days.
Is there an instance under the law where it seems that the
filing of a reply is mandatory rather than optional? Say for
example this is the complaint, it sues for the recovery of
sum of money, specific performance pa bayron ka and then
in the answer the defendant pleads an actionable document
as his defense. Remember that the rule in Sec. 8 of Rule 8 is
that if you do not deny or contest under oath the
genuineness and due execution for example of the receipt,
the genuineness and due execution of the actionable
document is deemed to be admitted, so how do you now
contest that unless you file a reply. Therefore in that
situation it seems that it becomes already mandatory for a
party to make a reply.
This is the ruling in the case of Casent Realty vs.
PhilBanking Corporation, 2007: Here the respondent
failed to file a reply and in effect he had admitted already
the genuineness and due execution of the actionable
document attached in the answer. The SC went on to say
that Rule 129 Section 4 now apply, an admission, verbal or
written, made by the party in the course of the proceedings
in the same case, does not require proof. Take note of that
case where the defense and the action is based on an
actionable document.
Take note also of:
Rule 8. Section 11. Allegations not specifically denied
deemed admitted. Material averment in the complaint,
other than those as to the amount of unliquidated
damages, shall be deemed admitted when not specifically
[Page 20 of 107]
Ad Majorem Dei Gloriam
denied. Allegations of usury in a complaint to recover
usurious interest are deemed admitted if not denied
under oath.
In other words, if you are going to deny a particular
allegation in the complaint, for example your answer must
clearly spell out you own version of facts, so you have to say
why you are not admitting. If you simply make a general
denial that will have the effect of an admission.
Take note also that allegations of usury in the complaint to
recover usurious interest are deemed admitted if not denied
under oath. Although remember right now there is no such
thing as usury under Phil. law considering that the
contractual interest that would govern the parties in a
monetary obligation or forbearance of money would be
governed by their own freedom to contract. They can
stipulate such terms and conditions that are not contrary to
law. But remember that if the interest is already
unconscionable that can be struck down.
Rule 18, section 4 talking about pre-trial. During pre-trial
that is a valid subject, stipulation of facts, possibility of
making amicable settlement, stipulations of facts and
evidence.
Take note that admissions can be derived from any stage
proceedings in a case it can be by the filing of initiatory or
responsive pleading, it can be during pre-trial or during trial
and presentation of witnesses let us say for example the
counsel asks question during coss-examination, the party
admits then that is already considered a judicial admission.
Also stipulation and admissions made when you file motions
and other submissions before the court.
What are the distinctions between a pleading and a motion?
As to form they are the same. But remember that while
pleadings ask for judicial final determination of facts and
issue. A motion is an application for relief other than by
pleading. In other words, when you file a motion you are
asking for something that is interlocutory you are not asking
for final judgment in your favour. An example a motion to
transfer hearing, a motion for extension of time to file a
pleading, motion to dismiss it a motion but somehow if you
are the defendant is asking for a final judgment in your
favour because if it is dismissed, then final judgment will be
rendered by the court, that is the exception to the rule.
Can you recall the effects of filing a motion to dismiss to the
right of a party to amend his pleading as a matter of right?
Example: A files a complaint and B can file either an answer
or a motion to dismiss or file a motion for bill of particulars
those are the 3 options available to the defendant within the
15 day period to file an answer. The defendant realizes that
the complaint as worded is one that is not in the jurisdiction
of the RTC and so he files a motion to dismiss within the 15
day period to file an answer on the ground that court has no
jurisdiction. The plaintiff realizing his mistake want to amend
his pleading, so he files an amended complaint this time
adopting to the jurisdiction of the court.
Now if you are the judge will you dismiss the case or not?
You should not, even if under the original complaint prior
the amendment the court does not jurisdiction. Why?
Because amendment is still a matter of right because the
parties right to amend his pleading once can be availed of as
a matter of right at any time prior to the filing of a
responsive pleading. A motion to dismiss is not a pleading,
therefore pwede nimo ma-amend to confer jurisdiction to
the court.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Remember an admission may be verbal or written. Formal
judicial admission can take the form of a manifestation in
court or a testimony in court. As Dean Inigo said less talk
less mistake. So the more you say the more susceptible you
are to making an admission, remember that when you make
it during trial it is already binding and of course you can
contradict it later on.
Written Judicial Admission can be in the pleadings, in
the motions, written manifestation of the parties, brief,
memoranda, affidavits and even in a submission in an
answer for request for admission
Rule to remember: Judicial admissions are conclusive on the
party making them. Why should it be conclusive?
We know this equitable principle known as estoppel, when
you say something clearly and unequivocally you are not to
be permitted to later on contradict it, thats the basic rule of
estoppel. An admission made in the pleadings cannot be
controverted by the party making such admission and are
conclusive as to him and all proofs submitted by him
contrary thereto or inconsistent with the admission should
be ignored whether an objection is interposed by the party.
A good case to read would be the case of Alfelor vs.
Halasan, March 31, 2006: It talks about standing to
intervene in a case. If you already admit that a party who
seems to intervene in the case is an heir of the person
whose estate is under consideration then you are already
estopped from contesting nawala syay right to intervene.
Remember that the of the requirement of intervention would
be that the person must have a legal interest in the subject
matter in litigation or the success of any of the parties or
interest against the parties or when so situated as to be
adversely affected by a distribution or disposition of property
in custody of the court or officer thereof.
Now, we already talked about amendments, it can be a
matter of right or judicial discretion.
What would be the effect of amended pleadings to
admissions already made in the pleading in the original
answer or complaint? Remember that the amended
pleadings precedes the pleading that it amends, however
admission in superseded pleadings may be receive in
evidence against the pleader and claims or defenses alleged
therein not incorporated in the amended pleadings shall be
deemed waived.
First effect: That the amended pleading supersedes the
original one which it amends. So it abrogates it, in legal
contemplation thats no longer a pleading appurtenant to the
case.
Second effect: Admissions made in the original pleadings
that is amended cease to be judicial admissions. In other
words in your answer you admitted that you have a liability
to the plaintiff but you realized I should not have admitted it
and so I filed an amended answer as a matter of right this
time contesting the basis of his cause of action saying
nawala ko utang sa imoha.
Can you now forget about the admission that you made in
the answer saying that he is liable? Remember that the
amended pleadings supersedes the original in legal
contemplation that original no longer exist in that particular
case
So wala na to value ang admission naiyahang gibuhat? No,
naa gihapon sya value, it ceases to be a judicial admission
but it can still be presented, pleaded and proved as an
[Page 21 of 107]
Ad Majorem Dei Gloriam
extrajudicial admission, you can still use it but you have to
present it in evidence. Thats Bastida vs. Menzi, 58 P 188,
in order to be utilized as extrajudicial admission they must in
order to have such an effect be formally offered in evidence
Ching vs. CA 331 S 16.
Can you be allowed to withdraw the admission? Can you
contravene yourself in the sense that you made a previous
admission? The law provides that there are two exceptions:
1. THE JUDICIAL ADMISSION MAY BE
CONRTRADICTED BY SHOWING THAT IT WAS
MADE THROUGH PALPABLE MISTAKE
Palpable mistake it means the mistake is obvious to all
sides, these are mistakes that are glaring, that the
judge or the adverse party can see that there was really
no judicial admission was made by the party.
Under the old rules of evidence this palpable mistake
exception was the only exception that binds the party
making the admission but the new rules they added one
more
2. AND THAT NO SUCH ADMISSION WAS MADE
What do you mean when no such admission was made?
It means that no admission was made at all by the
parties or the admission was taken out of context or not
in the sense that the admission was made to by the
party.
In Atillo vs. CA Jan. 23, 1997, the SC said that an
admission made out of context the one making the
admission may show that he made no such admission
or that his admission was taken out of context, this is
interpreted to me not in the sense in which the
admission is made to appear. Mao daw nah ang
meaning anang no such admission was made.
You have to read all the cases assigned. The case of Aguenza
vs. Metrobank and Trust Company and Conahap vs. Heirs
of Regana where the SC said that the admissions of the parties
during pre-trial as embodied in the pre-trial order, are binding
and conclusive on them, unless there is a clear showing that the
admission was entered through palpable mistake. Such
admissions cannot be contradicted by the parties reason again
would be estoppels.
If youre a plaintiff in a case, who are allowed to make
admissions in your behalf? Admission made by your lawyer would
be binding on you as a general rule, subject to certain
exceptions.
Example in the case of People vs. Hernandez, a stipulation of
facts proposed during trial by prosecution and admitted by the
defense counsel is tantamount to a judicial admission of the facts
stipulated upon.
People of the PH vs. Christina Hernandez
July 1996 * digest by KJ *
Hernandez was charged with the crime of illegal recruitment and
was convicted of crime charged. On appeal, she contended that
the prosecution failed to prove one of the essential elements of
the crime of illegal recruitment that the offender is a non-
licensee or non-holder of authority to lawfully engage in the
recruitment and placement of workers. She questions the
reliance of the lower court in the supposed stipulation proposed
by the prosecution and admitted by the defense during trial
that neither appellant nor her company was licensed or
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
authorized to recruit workers as shown by the records of the
POEA. She claims that the stipulation of facts is null and void.
Issue: WON Section 4 of Rule 118 (requiring an agreement or
admission made or entered during the pre-trial conference to be
reduced in writing and signed by the accused and his counsel
before the same may be used in evidence against the accused)
equally applies to a stipulation of facts made during trial. NO.
Held: RE writing A stipulation of facts entered into by the
prosecution and defense counsel during trial in open court is
automatically reduced into WRITING and contained in the official
transcript of the proceedings had in court.
RE signature The conformity of the accused in the form of his
signature affixed thereto is unnecessary in view of the fact that
"...an attorney who is employed to manage a party's
conduct of a lawsuit... has prima facie authority to make
relevant admissions by pleadings, by oral or written
stipulation... which unless allowed to be withdrawn are
conclusive."
We have the case of Fule vs. CA, it became quite doctrinal that
it affected the rules on criminal procedure. The 1985 rules of
criminal procedure specifically with respect to pre-trial
agreement, the rule was no agreement or admissions made or
entered during the pre-trial shall be used in evidence against the
accused unless introduced into writing and signed by him and
counsel. Therefore the omission of the signature the accused and
his counsel as mandatorily required by the rules renders the
stipulation of facts inadmissible as evidence.
Now what if you are the prosecution and you simply rely on the
admission made by the accused during pre-trial? Therefore wala
naka nag present ug evidence, because remember the effect of
an admission, it withdraws a particular fact from contention, no
more need to present any evidence if it is already subject to a
stipulation of facts specifically if made during pre-trial. The SC
said: If that is the case you should not simply rely simply on that
admission which later on was invalidated by the SC. What the
prosecution should have done upon discovering that the accused
did not sign the stipulation of facts as required by rule 118 was
to submit an evidence to establish the element of the crime
instead of relying solely on the supposed admission of the
accused in the stipulation of facts without said evidence
independent of the admission the guilt of the accused cannot be
deemed established beyond reasonable doubt and therefore in
this case Fule was acquitted because of that technicality.
It is sort of unfair because the 1985 rules did not say anything
about the effect if it was not signed. Now it already provides the
effect under:
Rule 118. Section 2.Pre-trial agreement. All agreements or
admissions made or entered during the pre-trial conference
shall be reduced in writing and signed by the accused and
counsel, otherwise, they cannot be used against the accused.
The agreements covering the matters referred to in Section 1 of
this Rule shall be approved by the court.
So kinahanglan ug court approval and also states that otherwise
they cannot be used against the accused if the agreement
entered or made during the pre-trial is not reduced in writing and
signed by the accused and counsel.
[Page 22 of 107]
Ad Majorem Dei Gloriam
RULE 130
RULES OF ADMISSIBILITY
OBJECT EVIDENCE
Rule 130. 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.
Remember that object is synonymous to real evidence.
Why real evidence? Real comes from the word res. What is a
res? It is a Latin term for object. So when we say real evidence
you are talking about a thing or an object as evidence to be
presented before a trier of facts.
It is also called Autoptic Proference which I already discussed
when we were talking about the fact that when the court
examines the appearance of a person or the age of a person for
the purpose of probably taking judicial notice, actually dili lang
na siya judicial notice it becomes Autoptic Proference. Auto
means self; Optic pertains to the eyes.
When Autoptic Evidence is introduced in trial the fact finder will
now decide what way it should be accorded the same, in this
class of evidence the ascertainment of the uncontroverted acts is
made through demonstration involving the direct use of senses
of the presiding magistrate. So when you are presenting an
object in court by itself is the evidence. You are talking here
about a court being asked to appreciate the evidence using the
five senses (sight, smell, touch, hearing, taste).
For example, there is an allegation that the witness was bringing
liquor saiyahang sakyanan at the time he was apprehended, he
was driving drunk, what is found in the car is a flask or lapad of
tanduay. So during trial gipasimhot ang judge, so this uses the
sense of smell.
With respect to object evidence contrasted with documentary
evidence, you are limited to a mere observation. You observe
what is the condition and the appearance of the object that
would now consist the evidence that will now be the one given
weight in a particular case. Later on we will be discussing about
documentary evidence.
When you look at documentary evidence to a certain extent you
are also looking at physical appearance, what is written in that
documentary evidence. But rather than taking stop in the
appearance of the document you are actually trying to appreciate
what the contents of the document are. In order to do that you
use a different sense, thats the sense of intelligence no longer
limited to the five senses. Kailangan man nah nimo basahon and
whatever you understand from what you have read, that will be
the one that will be given weight by the court, so theres that big
difference between a documentary and object evidence.
Remember what we discussed before that in the hierarchy of
evidence in the case of People vs. Lavapie, greater credence is
given to object or real or physical evidence as evidence of the
highest order because it speaks more eloquently than a hundred
witnesses.
Moran (?) classifies object evidence in three:
I. Those object evidence which consist in the
exhibition or production of the evidence inside
the court room.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

Ex. The effects of the crime or the means to perpetrate
the crime, the murder weapon that is exhibited and
produced inside the court room and appreciated in that
manner.
II. Those object evidence which consist in the
inspection of an object outside of the court room.
Does the court do that examine an object outside of the
court room or should it always be placed inside the
court room or the court vicinity?
What else is not covered in the right against self-
incrimination? When you are subjected to a paraffin test
thats purely mechanical and because it is purely
mechanical you cannot object to the conduct of the test
on the ground of violation of the right against self-
incrimination.
DNA test, would the taking of DNA sample from the
body of the accused constitute a violation of the right
against self-incrimination? The correct legal answer
there is NO, because that is purely mechanical.

What you do not know is this is actually a very common Which brings me to the case of People vs. Joel Yakar
practice where the court examines the object outside May 19, 2004: Here DNA evidence was taken from the
the court room through the process of ocular inspection. accused and according to the accused the blood sample
taken from him as well as the DNA test were conducted
(Sir talks about a case he handled before respecting a boundary dispute in violation of his right to remain silent as well as his
just because of a mango)
right against self-incrimination under sections 12 and 17
of the 1987 constitution. The contention is untenable
You cannot bring the land to the court but you can
according to the SC the kernel of the right is not against
bring the court to the land. So what usually happens is
all compulsion but against testimonial compulsion. The
the court will be there or the clerk of court, remember
right against self-incrimination is simply against a legal
you can delegate the inspection of evidence to the clerk
process of extracting from the accused own lips an
of court, the clerk of court can make objections but he
admission of his guilt, it does not apply where the
has no power to rule on the objections, i-note
evidence sought to be excluded is not an incrimination
langniyaang objections and bring it to the attention of
but as part of the object evidence.
the court the court will make the ruling. The
stenographer will also be there. Then a report about the
So pag object, use of the five senses lang dyud nah;
ocular inspection. So it can be done.
When you use intelligence, no longer. When you
communicate you use your intelligence, when you are
III. Object evidence can also consist in those of
testifying, when you are compelled to say something
experimentation.
that already requires the use of intelligence. Thus a
person may be compelled to submit to finger printing,
The best example I can give you is the case of OJ
photographing, paraffin, blood and DNA test as there is
Simpson he used to be a very famous football player
no testimonial compulsion involved.
and he is also an occasional actor. Robert Kardashian
was a very famous lawyer and he was the lawyer of OJ.
What about a case where the policemen forcibly took
hair samples from the accused? This is too much. This
OJ was accused of double murder of his ex-wife Nicole
case of People vs. Romero actually pubic hair ang
Brown and boyfriend niya at that time, theyre estrange.
gikuha to analyze the pubic hair left in that area after
OJ supposed to be daw wife beater, abuse his wife so
the act of sexual intercourse, so i-match ang duh aka
much and then they separated. So one time they were
pubic hair and it was a match. According to the SC even
killed the main suspect was OJ Simpson. At the scene of
if the hair samples were forcibly taken for forensic
the crime nay nabilin na pair of bloody gloves thats one
examination the hair samples may be admitted against
of the pieces of evidence presented in the court room.
him for what is proscribe is the use of testimonial
The prosecution are saying to simplify everything to
compulsion or any evidence communicative in nature
determine whether or not he had opportunity because
acquired from the accused under duress. Thats the
they already established the motive. In American
right against self-incrimination in relation to object
criminal law remember important ang motive and
evidence.
opportunity. They already establish the motive that OJ
was angry with Nicole Brown she has already move on
Take note that in order for object evidence to be
and she has a new boyfriend so you killed both of them
admissible you must pass the test of relevancy and
in a fit of jealous rage but you need to put OJ in the
competency. Not all object evidence would be admissible as in
scene of the crime and therefore if the gloves would fit
any other type of evidence it would still be subject to the test of
OJ Simpson it could prove that in all probability he was
relevancy and competency, if it excluded by the law or the rules
there in the crime scene and in all probability if the
of court such an object will not be allowed in court or if it not
gloves were his then he was the one who committed
relevant to the fact in issue or not even collaterally relevant then
the double murder.
it will also not be admitted in court. Thus when an object is
excluded by the law or the rules lets say on the ground that it is
The defense led by Robert K. objected because that
a fruit of a poisonous tree such as search incident to an arrest
might violate their right against self-incrimination but
and then lifted from your body lets say sachets of shabu. That
eventually the judge allowed OJ to try on the gloves but
cannot be used against you if the arrest in the first place is not
the gloves did not fit and that caused the case to fall.
lawful, there was no probable cause to make a stop and frisk.
So that is an object evidence in the form of
experimentation.
Remember also that Autoptic Proference must also be relevant
and its relevant only when it makes a pack of consequence more
Does this not violate OJ Simpsons right against self-
or less probable than in the absence of Autoptic Proference.
incrimination? The right against self-incrimination covers
only compulsion to confess guilt but it does not exclude
Take note object evidence itself does not establish the factum
purely mechanical acts. Example you wear a gloves that
probandum, there is no factum probandum solely provable by
is purely mechanical and therefore it is not covered.
object evidence.

[Page 23 of 107]
Ad Majorem Dei Gloriam
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Do you agree? Lets say the factum probandum would be A killed
B. How could object evidence prove that factum probandum?
What are the objects that would be relevant? So the body of the
victim, the stab wound, the murder weapon. Let us suppose that
there all admitted in court there are photographs of the
deceased.
Would that prove all by itself the factum probandum? No, it must
first be supported by other propositions and in the ultimate
analysis it must be proven to have a logical relationship to the
ultimate fact in issue.
How do you that? You can only do that by means of testimonial
evidence. Testimonial evidence is that method by which you are
able to authenticate object evidence to identify object evidence.
While you evidence is consisted of object evidence these
evidence must first be identified and authenticated by competent
witness, sponsored by a witness.
What about money? Is money object or documentary evidence?
Naa bay symbols in money, nay words, characters, figures, and
means of written expression? Yes, so is this 100 peso bill a
document or is it object evidence that is addressed to the senses
of the court when relevant to the fact in issue this money may be
exhibited tot examined or viewed by the court?
If the fact in issue bill appears to be new or any physical
attributes relative to appearance and condition then this is of
course object evidence. So if this is presented that this object is
ube in color then this is object evidence. But if the fact in issue
relates to whatever is written here then it is documentary
evidence.
What if it is a special type of money? Would marked money be
considered object evidence or documentary evidence?
According to the SC in the case of People vs. Reyes, marked
money is actually object evidence. Marked money is the
consideration paid for the sale of illegal drugs transaction. It is
relevant to the fact in issue, it may be exhibited to, examined
and viewed by the court making marked money object evidence
despite the fact that what really identifies a marked money would
be the mark, you simply have to take note of the serial numbers
and that will now be matched during trial. What really matters
there is what you read from the marked money unsay contents
but it is still considered as object evidence.
Another interesting case, the case of People vs. William, June
15, 1992: In a prosecution for possession of marijuana. The
accused was charged under dangerous drugs act and his defense
was the object evidence the marijuana taken from me is not
admissible in evidence on the ground that it is beyond the
commerce of men. If it is beyond the commerce of men it cannot
be a valid object it is illicit subject matter. But would that have a
bearing under the laws of evidence the fact that it was beyond
the commerce of men? The SC said that is absurd the transfer
marijuana was incidental to the arrest of the appellant and a
confiscation of the subject matter of the crime. It is in the same
category as a death certificate or an autopsy report which are
admissible evidence of the subject of the crime. The human
cadaver which is also beyond the commerce of men transfer
goods as a consequence or by virtue of police or state action
such as forfeiture, seizure, confiscation does not fall within the
phrase commerce of men.
July 29, 2015 (DJG)
DOCUMENTARY EVIDENCE
Rule. 130. Section 2. Documentary Evidence. Documents as
evidence consists of writings or any material containing letters,
words, numbers, figures, symbols or other modes of written
[Page 24 of 107]
Ad Majorem Dei Gloriam
expressions offered as proof of their contents.
Section 2 actually covers the two types of documentary
evidence:
1. Writings per se; and
2. Any material containing letters, words, numbers,
figures, symbols or other modes of written expressions.
Suppose, evidence consist of a certain inscription at the side of a
building and what you want to prove would be: When was that
building founded? When was it established? Since the inscription
consists of such letters proving the same, then technically
speaking that consists of documentary evidence.
In both types of documentary evidence, the requirement is that
the writing or material must be offered as proof of its contents.
Remember that the subject of inquiry would be what is contained
in such writing. If offered as proof of execution of the document,
it now becomes object evidence.
BQ 1994: How do you characterize marked money in a buy-bust
operation? Can a person, the accused, object to the presentation
of a mere photocopy of the marked money? It being a photocopy
implies there is a greater source. Can you present that secondary
evidence? It depends. Is it offered as proof of their contents?
A: NO. It was offered as an object evidence of the transaction.
Thus, the best evidence rule does not apply it being non-
documentary evidence, but an object evidence.
BQ 2005: A question was asked relating to the multiple
admissibility of evidence application: May a private document be
presented and admitted as both documentary and object
evidence?
A: It can be both object and documentary evidence. Remember,
if the fact in issue here is the content of a document , you apply
the rule relating to documentary evidence, but if the purpose of
presenting the evidence would simply be for the sake of
testifying as to its appearance (other than its contents), as to its
form and then it is an object evidence.
RE: Letters, etc. If youre going to present letters as evidence
you dont present it to prove that the paper is yellow, but in
order to prove something that was written therein.
Can an email be used as a documentary evidence based on its
definition in Section 2?It cant. Is it tangible? How about text
messaging? Is it possible for a contract to be executed and
perfected through text? Yes. What is important is the meeting of
the minds. If you are going to sue for payment, you present the
text message. You are offering the contents of the text message
as proof of their contents but is it documentary evidence? No.
The SC has already pronounced the A.M. No. 01-7-01-SC or
the Rules on Electronic Evidence:
Rule 2. Section 1. An Electronic Document refers to
information or the representation of information, data, figures,
symbols or other modes of written expression, described or
however represented, by which a right is established or an
obligation extinguished, or by which a fact may be proved and
affirmed, which is received, recorded, transmitted, stored,
processed, retrieved or produced electronically. It includes
digitally signed documents and any print-out or output,
readable by sight or other means, which accurately reflects the
electronic data message or electronic document. For purposes
of these Rules, the term electronic document may be used
interchangeably with electronic data message.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Under these Rules an electronic document is considered, in
certain situations, as functional equivalent of paper-based
documents. The law provides whenever a rule of evidence refers
to the term writing, instrument, document, memorandum or any
form of writing such term shall be deemed to include an
electronic document.
Thus, electronic evidence are now deemed covered under the
Rules of Court pertaining to documentary evidence. So any
reference to a document in the Rules of Court is deemed to
include already electronic evidence.
GENERAL REQUISITES FOR THE
ADMISSIBILITY OF DOCUMENTARY EVIDENCE
1. Documentary evidence must be relevant;
2. It must be competent and, in addition;
3. It must be subject to exclusionary rules under the rules
of court such as the hearsay rule, the best evidence rule
and parole evidence rule; and
4. It must be authenticated by a competent witness.
5. Must be formally offered in evidence.
(Note: Those highlighted are those which Atty. Espejo called the
Basic Requisites.)
Best Evidence Rule
Simplest way to articulate the rule: Original document must
be produced. No evidence shall be admissible other than the
original document itself.
Best Evidence Rule (BER) appears to be a misnomer. Why? It
does not purport to be a declaration of the Rules of Court that
the documents are the best or superior evidence but rather
refers to the fact that the original is the best evidence. And so it
should have been Original of the Document Rule or Primary
Evidence Rule. It does not also mean that weaker evidence is
substituted by stronger evidence.
Why does the BER exist? What is its essence? The SC held
that the underlying purpose of the rule is the prevention of fraud
or mistake in the proof of the contents of a document. Requiring
the original of the document would actually prevent that.
Otherwise, if a duplicate or photocopy is allowed, it will pave the
way or will allow an unscrupulous party to present spurious
evidence. It will be easy to perpetrate fraud. [Excuse letter story
in Elementary]
The best case to explain the reasons would be Lee v People,
G.R. No. 159288, October 19, 2004. Also read Solidbank v Del
Monte, G.R. No. 143338, July 29, 2005. [READ]
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:
xxx
Again, the rule was designed to guard against fraud, the
introduction of altered copies and the withholding of the
originals. But the modern justification has expounded the rule to
the recognition that writings occupy a certain position in the law.
WHEN APPLICABLE
Basic requisites for the application of the BER:
1. The subject matter must involve a document;
2. The subject of inquiry is the contents of a
document.
[Page 25 of 107]
Ad Majorem Dei Gloriam
The rule therefore applies only when the purpose is to establish
the terms or contents of a writing. When the evidence produced
concerns some external fact about the writing like its existence,
execution, and delivery, without reference to its terms, the BER
cannot be invoked.
WHEN NOT APPLICABLE
In Lee vs. People, SC said it does not apply to:
1. Proof of facts collateral to the issues such as the
nature, appearance or condition of physical objects
(such as when the evidence is presented as an object
and not as a document from which we read);
2. Evidence relating to a matter which does not come
from the foundation of the cause of action or
defense;
3. When a party uses a document to prove the
existence of an independent fact, as to which the
writing is merely collated or incidental.
And so, when the document is merely collaterally in
issue, the rule does not apply. Take not however, that
like any other rule, the BER is subject to waiver when it
is not raised in the trial, or when there is failure to
object.
4. Also, it does not apply when the original
disappeared.
Is there a way to restate the Best Evidence Rule so as to remove
the misnomer?
The original must be presented except when the
proponent can justify the unavailability of the original in
a manner provided by the rules.
Exceptions to the Best Evidence Rule
So the exceptions may be regarded as the justifications for
unavailability. These are the possible justifications:
xxx
(a) When the original has been lost or destroyed, or cannot be
produced in court, without bad faith on the part of the offeror;
xxx
Loss
When can we consider a document to be lost?
New Civil Code. Article 1189. It is understood that
the thing is lost when it perishes, or goes out of
commerce, or disappears in such a way that its
existence is unknown or cannot be recovered.
Thats the only definition of loss in all of the law.
So, the original of the document is considered lost if it
perishes, goes out of commerce, or disappears in such a
way that its existence is unknown or it cannot be
recovered.
Destruction
Destruction, as defined in Succession (when is a will
considered destroyed?), simply means physical
obliteration. Obliteration, meaning, by tearing,
shredding or burning. It can also include acts of
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
alteration that would render the contents of the
document unintelligible for the purpose it is offered in
evidence.
If it is no longer readable by sight then it is destroyed; if
it is no longer legible or readable by sight,
(unintelligible) the document is considered, destroyed.
Unavailability
Types of unavailability:
1. physical unavailability. Example: inscription in
the building, instead of bringing the building to
the court, you take a picture of it); and
2. constructive or legal unavailability. This is
beyond the coercive jurisdiction of the court
where the evidence is to be presented.
Example original of contract exists but it was
executed in Nigeria, can it be subpoenaed to
be mailed in the Philippines? It depends if they
cooperate.
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.
So under this provision, if the original has been lost,
destroyed or unavailable, you need to prove:
1. The execution or existence of the original;
2. The cause of its unavailability; and
3. That the unavailability was without bad faith
on your part.
Bad faith on the part of the offeror
Why is this important? Because it is possible that you
dont want to produce the original; maybe you
deliberately destroyed or maybe you sent it somewhere
the court does not have coercive jurisdiction. Hence, the
requirement.
In the case of Dela Cruz vs CA, the SC held that
before you are able to present secondary evidence, all
originals of the document must be accounted for. Thus,
you have to prove loss, destruction and unavailability
over all those originals first.
The correct order of proof:
1. Existence (that it exists);
2. Execution (that it has been duly executed);
3. Loss (how it was lost); and
4. The contents.
Thus, after proving the above listed, the offeror may
now prove the contents of the documents
through the existence of secondary evidence:
1. By a copy of the original; and
2. By a recital of its contents in some other
documents.
Can you think about a situation under the law where the
original is contained is some other authentic document
that can be admissible as well as a functional equivalent
of the original?
[Page 26 of 107]
Ad Majorem Dei Gloriam
Example, you are going to plead an actionable
document. You have two options: you can either attach
it or incorporate it.
Another example, Land Titles and Deeds, the decree of
registration. Who issues it? The LRA. So, whatever is
stated in your certificate of title is actually a recital of
what a decree of registration contains. Those are
actually identical.
xxx
(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;
xxx
The mere fact that the original is in the possession of
the adverse party does not ipso facto authorize the
introduction of the photocopy or secondary evidence to
prove its contents.
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
The following must be complied:
1. Must prove that the original exists;
2. Must prove that it is in the custody or control
of the adverse party;
3. There was reasonable notice; and
4. That adverse party failed to produce it.
xxx
(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
xxx
Example, you are engaged in business so in the daily
basis you issue receipts, invoices. Imagine a case where
your documentary evidence constitute voluminous
number of documents that you need to present. You no
longer have to present all of those because it will be a
complete waste of time. You dont really care about the
specifics; you are more interested in the end result.
What you have to remember is that, the only thing you
need to impress upon the court is the general result of
the whole, you can thus present summaries certified by
an independent CPA. Why does the allow you to present
these? Because of simplicity, expediency, judicial
economy.
Read the case Atlas Consolidated Mining
Corporation vs CIR, I ask this case almost every year
in my exams. [READ. IMPT]
The procedure is as follows, that you be allowed to
present:
1. a summary containing, among others, a
chronological listing of the numbers, dates, and
amounts covered by the invoices or receipts
and the amount paid; and
2. certification by a CPA attesting to the
correctness of the contents of the summary
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
after making an examination, evaluation, and
audit of the voluminous receipts and invoices.
If you read that case together with the Judicial Affidavit
Rule, you will know that there is a need to attach
everything. The only shortcut there is that you dont
have to testify on every attachment one by one. Also,
you dont have to individually identify all those
attachments during the testimony of the witness.
xxx
(d) When the original is a public record in the custody of a
public officer or is recorded in a public office.
This is governed by the provision:
Rule 130. 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.
For example, you are going to take the Bar already, you
are asked to produce a copy of your Birth Certificate.
When you go to the Civil Registrar, are you given the
actual, real copy of your BC which was entered into in
1980s? You are simply issued a NSO certified copies of
your BC. Same with marriage contracts.
Now, when you go to the ROD. The entries there are
public records, are you given the original? Of course
not. You might be given a certified true copy. Why?
Because of:
Rule 132. Section 26. Irremovability of public
record. Any public record, an official copy of which
is admissible in evidence, must not be removed from
the office in which it is kept, except upon order of a
court where the inspection of the record is essential to
the just determination of a pending case.
Thus, where the original document is a public record,
the secondary evidence allowed is a certified true copy
issued by the public officer in custody thereof.
Rule 130 Section 4.Original of document.
(a) The original of the document is one the contents of which
are the subject of inquiry.
xxx
We have no problem with letter (a) noh? But letter (b) needs a
little bit of discussion:
xxx
(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.
xxx
Best example are receipts. Triplicate receipts are considered
originals. All docs or sheets are considered originals.
Take note, what section 4 really intended to cover were
documents executed in carbon copies.
xxx
(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
[Page 27 of 107]
Ad Majorem Dei Gloriam
originals.
A journal (an original), first thing you right on your transactions.
Ledger (entries were all copies from original), where you compile
everything, your journals. Is it correct to assume that whatever
there is in the ledger, it came first from the journal? Yes. So that
is the best example here, ledger and journal. Both are regarded
as originals.
August 5, 2015 (DM)
Parol Evidence Rule
The Parol Evidence rule is a very rich source of bar questions.
Rule 130. Section 9. 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.
xxx
(asks a student) Did you ever entered into a written agreement?
(Yes) Did you read that before you signed? (Yes) Did you add
stipulations to such contract? (No) In other words you just
adhered to the contract?
Have you ever submitted a paper in your life, a recollection
paper? Do you not proofread the paper prior to submission?
Everything you wanted to say was there.
By its phraseology it is hinted there that what Sec. 9 governs
would be how youre going to prove a written agreement if it has
already been reduced into writing. Is it not logical for the
parties to negotiate?
Perfect example Mayweather v Pacquiao. Back and forth, back
and forth. I want 500k No I can only afford 400k So after
oral accords, they finally come up with terms that are mutually
acceptable between them. What usually follows via logical
consequence of the back and forth, they reduced agreement to
writing.
Here comes the other party being sued for breach of that
contracts saying: Thats not all we agreed upon. We agreed on
something else.
That is #1: counter-productive. Why would you reduce
agreement to writing and leave out some agreements and not
integrate them into the agreement youre going to sign. Thats
the reason of the parole evidence rule.
(Linguistics 101: Heres a little word play. The word PAROL. If you read your books,
it means oral. It is oral evidence. What the parole evidence therefore limits, is the
ability of the party to present oral evidence to modify an agreement which has been
reduced into writing by the parties.
What confuses me is the word parole. The TSNers use parole with an e. What is
parole? Under Crim, you know, its a means of modifying criminal liability. A
process that a convict undergoes to secure an earlier release subject to certain
conditions most notably that he will not commit a crime.
The words parol and parole come from the same root word in french: parole.
Meaning word or speech.
What connection do I want you to realize? When you use parol you mean oral,
spoken by word of mouth. When you include the origin of the french word, parole
means word of honor. A prisoner of war would be released by his captors after he
has suffered a sentence if he gives a word of honor to not commit a crime against
his captor after his release.
Another bit: parole french comes from latin parabole. Parable stories in the Bible
related by Christ or his followers orally, iyang gi-sulti, gi-sermon. Parable, naay
connection.
What I cannot find a connection for: parol in Filipino. Farol, murag gipabading lang,
parol. In Spanish, theres a sentecnce farol de viento to lie, or in Bisaya,
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
maghambog. So when you say, nag inviento. Or vientelador something tbat
releases air.)
Lets go back to parole evidence rule. Take note that the PER is a
so-called Rule of Integration. Everything we have agreed upon
prior to reducing it into writing, prior to signing, is supposed to
be integrated in the WA. If its not seen in the WA, therefore it is
deed waived. That is the rule of wiaver after integration.
BASIS OF PAROL EVIDENCE RULE
1. The principle of hierarchy of evidence. Very very basic.
In terms of hierarchy what is the highest? Object,
documentary and last testimonial. And something that is
written and something between testimony, it is
documentary evidence that will prevail, as said in GSIS
vs CA, May 28 1993.
2. Principle of waiver after integration in Cavenan vs CA
1999. When a jural act is embodied in a single
memorial all other appurtenances of the parties on that
topic are legally immaterial for the purpose of
determining what the terms of their act are.
3. Based on the belief that comparatively, written evidence
would always be more reliable than any other evidence
based on the fleeting memory of man. Therefore if it is
written, that should govern.
4. When it is testimonial, it is most prone to fabrication its
very very easy for party/witness to change testimonies.
Affidavits may be recanted. What would prevail?
Something na pwede bawion or something that is not.
5. Based on the rule on the interpretation of contracts that
gives primacy of the intention of the parties as law
between them
6. Policy of the law to give stability to written agreements
and to remove the temptation of perjury. If that is
allowed, sayon ra kaayo mag perjure. A party may
simply perjure himself to get what he wants.
What is the status of a contract that does not follow the
mandate of the PER? Does it make the contract void?
Voidable? Rescissible? Or is it simply an evidentiary rule that
would be allowed?
The contract may still be valid. Suppose the contract is executed
between the parties as the final covenant between them (like
how God wrote 10 Commandments in stone. Are we to assume
theres an 11th?) Does it mean that if God made an 11th
commandment that is not in stone, the 11th rule is invalid?
If truly there is a contract between that is not included in the
wrirtten agremeent, does it necessary mean that its not valid.
Example: A & B entered into MOA. MOA cannot simply be
denominated a contract of sale, etc because it embodies many
sub contracts between the parties. Im going to sell you this land
for this amount, but we will not execute a deed of sale yet. Why
would they do this, enter into a MOA? To avoid immediate tax
consequences. Remember you are given 30 days to pay the
necessary taxes on the transfer of the property? Its capital gains
tax of 6% based on consideration of contract of sale or the zonal
value of the property as per BIR whichever is higher. Not
mention you have to pay 1.5% documentary stamp taxes.
So they dont have a DOS between them yet. Does that mean
walay baligya? What if in addition to that not including in their
MOA to conceal the fact, para si buyer ang magbayad ng CG tax?
Does that mean that the agreement between them not found in
writing is not valid? Remember the only requisites for validity of
the contract? (meeting of minds) But can you prove it in court?
[Page 28 of 107]
Ad Majorem Dei Gloriam
That is the only thing that matters when you are talking about
PER which is not a limitation for the validity of a contract.
It is simply a requirement that must be taken into
consideration as a condition sine qua non to prove such
contract that seems to be un-integrated in the written
agreement. Majority of contracts are consensual. Once a
contract is created it is binding on the parties.
PER is not a limitation on the validity but it is a limitation on
the provability of an existence of something other than
the written agreement.
When would PER apply? When there is a written agreement.
Does the law define agreement? Is agreement therefore a
technical term that has a definition under the law? NO.
Agreement refers to contracts which are defined under the NCC.
Does the PER applies to all contracts? YES. The resulting written
contract is already covered by the PER.
Now, the last paragraph:
xxx
The term "agreement" includes wills.
Premise: Agreement includes wills.
Can a making of will subject to agreement? For example Testator
A agrees with B to make B an heir. They become mutual wills of
the other. (donation capta toria) Will cannot be subject that
agreement.
You cannot subject the making of a will to an agreement under
the basic principle that the making of a will is a strictly personal
act.
Will compared to other contracts
Does a will need to be notarized? It depends if it is a notarial will
or holographic will. Ang contract ba pwede notarized? Of course.
When I agree to give you your exam, thats a contract. When I
dont do that, you can declare me in breach.
If a will is not notarized, does it make it any less valid? NO as
long as it follows the formalities of a will. If a contract is not
notarized, will it be binding? It is still binding between the parties
but no to third parties.
Notarization side: If you notarized a DOAS, is the notary public
required to keep a copy? Yes. What about wills? No, notary
public is not required to keep copy.
Why include wills?
Given these background information, should a will be treated as
a contract? Is there a meeting of minds? No. Bawal. Why then, is
it that the law includes the term wills under agreements? You
have to look at the danger that the law seeks to avoid.
We have a contract, this is what we have agreed. Other party
says thats not what we agreed upon. You will perjure yourself if
youre gonna question the contract under PER.
Is that evil of perjury applicable in the making of a will? Testator
instituted 3 heirs, A 1M B 2M C 3M, Favored si C. A and B say C
should not be given. the testator cannot contradict. AB says we
spoke to the testator while he was making the will. Can that
perjurious testimony be contradicted? Definitely not. Dead mans
statute, shuffled down the mortal coil.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Does it apply to will? YES, with greater reasons that it should
applies to will.
But when you consider wills as an agreement, you only do so
under fiction of law. Its only considered an agreement for the
limited purpose of applying PER.
Exceptions to the Parol Evidence Rule
The situational premise here is the law trying to curb the
pernacious practice of people trying to add to or modify the
agreement after the constitution of the written contract, because
it is more beneficial for them to deny na naa man gud among
gisabutan. The law does not allow that. If you read on there are
many exceptions.
xxx
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:
xxx
What you need to know before reciting all the exceptions is you
cannot claim these exceptions unless you put it as an issue in
your pleading.
It is needed in your pleading before you can raise it. If you plan
to introduce oral evidence to refute a written agreement you
have to state that. Without this requisite, you cannot claim
exception.
xxx
a. An intrinsic ambiguity, mistake or imperfection in the
written agreement
xxx
AMBIGUITY
Ambiguous, di klaro uncertainty of meaning usually
cause by words or phrases that convey more than one
meaning. When you read ambiguity in the context of
PER, ambiguity is susceptible of two or more
interpretations.
Two types:
1. Patent or extrinsic apparent on the face of
the instrument to anyone reading even if he is
unacquainted with the circumstances of the
parties.
Would this be curable by oral or parole
evidence? Authorities would tell you that while
a.
law is silent on this point, parol evidence may
only be used to explain what is written, not
what was intended to be written. Under PHL,
you cannot cure patent ambiguity.
Ex. You give a property through a will.
I bequeathe to A by way of legacy,
something.
Is it ambiguous? YES. Its a patent ambigutiy.
When you read that, you wouldnt be able to
understand. Can you explain that that
something is 2 billion pesos. You cant
because it will violate the PER. It will render
the witness and party susceptible to perjury.
2. Latent or intrinsic where the wording of an
instrument is on the face of it clear and
[Page 29 of 107]
Ad Majorem Dei Gloriam
intelligble and at the same time apply to two
different things or subject matters.
In Kuya Germs will I give to my nephew John
my Mercedes Benz car.
Is it ambiguous on its face? No, theres clear
testamentary intent. But the problem is there
are many nephews named John. In intrinsic
ambiguity we have no problem on how the
devise or legacy is worded but it is the
interpretation that is susceptible to several
meanings: John A, John B or John C.
By way of exception, a latent ambiguity may
be explained by parol evidence as the
ambiguity which is brought about by
circumstances that are outside the instrument
or extraneous to the instrument the
explanation must necessary be sought outside
the instrument. It is only outside the will where
the ambiguity exists. Thus it can be cured by
something from the outside, pwede ang PER.
MISTAKE
In order for mistake to be an exception: you have to
reckon with requisites of mistake. If you look at Rules of
Court theres no definition of mistake. Thankfully it is
covered by civil law.
BPI vs. fidelity Insurance, October 19 1927:
1. mistake should be of fact ,not law
2. mistake should be proved by clear and
convincing evidence
3. mistake is common to both parties of the
instrument
Therefore applying it to S9, the mistake referred to by
the law should be mutual. Its a mistake to both debtor
and creditor. If it was only your mistake, it cannot
justify the exception under the PER. MAGELLAN
MANU vs. CA, Aug 22 1991 [READ]. It talks about
transshipment act of transferring goods from one
carrier to another. I always ask this.
IMPERFECTION
Writing is incomplete and does not express the whole
agreement of the parties. Agreement insufficiently
describes the exact terms and conditions.
xxx
The failure of the written agreement to express the
true intent and agreement of the parties thereto
xxx
Poor guy who owns land needs money to buy fertilizer,
pay utang after harvest. Usually parties enter into
contract of loan with mortgage. If debtor does not pay
you need to foreclose. Or a deed of sale I will tear
this deed of sale if you do not pay.
Whats the true intention of the parties? To secure the
loan.
But the agreement was a sale.
There was failure of the agreement to express the true
agreement of the parties. If youre farmer you can
object and put in issue in your pleading that the
agreement did not express true intent of the parties.
later on during trial you are not allowed to present oral
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
evidence to prove the contract is not a sale but an
equitable mortgage.
Recall: lease with option to buy vs. deed of sale
TRUTH IS SACRED BUT SAFEGUARD IT WITH BODYGUARD OF LIES.
Whats the remedy under civil law to make an
agreement to reflect the true intent of the parties
remedy of reformation. Can a will be subject to
reformation on this ground? NO Article 1366.
xxx
b. The validity of the written agreement
xxx
If you want to apply the exception under PER, youre
trying to present parole evidence to say the contract
was not valid in the first place. You only apply the rule
of integration to contracts which have been properly
integrated. But if void ab intiio, no need to apply PER.
In all probability it is the oral contract that is valid.
You need to raise the invalidity of the contract in your
pleading.
Example: Contract where consideration was never really
paid. Sale of property for 1M. COS drawn up, etc. Can
the seller prove that he never got the consideration of
the contract when in fact the deed of sale already said
consideration was already received. YES, this is covered
by this exception. You raised it as an issue in his
pleading.
If the agreement is alleged to be forged, that is also an
exception ALORIA vs CLEMENTE, Feb 23 3006.
Evidence to established illegality or fraud BEAU vs
Hontiveros 1919 and Woodhouse vs Halili, July 31
1958
xxx
c. The existence of other terms to by the parties or their
successors in interest after the execution of the written
agreement.
xxx
Subsequent (an exception, not covered by PER)
Other than the written agreement we executed, we had
a subsequent oral agreement. These agreements are
not covered under the PER and they are considered as
exceptions.
Ex. B borrowed money from A. To evidence the loan, B
signed a PROMISSORY NOTE, maturity date Dec 1
2015, but B defaulted. A sued.
B contends, amount is not due because A agreed to
extend period of payment until Dec 17. What is Bs
defense? Extension of payment, So he has to put that in
his pleading that they entered into another subsequent
agreement which novated the original obligation. If he
does not plead, PER exception does not apply.
Why does the law allow this exception? Simple logic. We
cannot put in an agreement something that we have
not yet agreed upon.
What section 9 guarantees provided there is proper
pleading of this exception is the admissibility of
evidence. You can testify for sure, but it DOES NOT
[Page 30 of 107]
Ad Majorem Dei Gloriam
ensure the credibility/believability/weight given to such
testimony.
So, ALLOWABLE EXCEPTION: Subsequent oral
agreements even if such agreements have the
effect of adding, modifying or altogether
abrogating the contract of the parties as evidence
by the PER. Admissible na sya.
Ex: A contract of loan where B will repay 100k. After
the contract, the creditor said, you dont have to pay,
consider it a donation. Will that be a valid provable
agreement? Yes.
Only prior and contemporaneous agreements which are
DEEMED TO HAVE BEEN MERGED to the writing
conformably to the integration of the agreement is
covered by the PER.
Prior or contemporaneous (covered by PER)
Now, if an agreement was prior or contemporaneous to
the agreement. Can you plead that as an exception?
Ex: We negotiated. Right at the time we agreed to put it
into writing, we had side agreements. Covered by the
PER or not? Covered. Thus you cannot prove them if
they are contrary to the written agreement.
Reason: waiver by integration. If it was not stated in
the agreement and it was prior or contemporaneous, it
is deemed waived.
Not of the same subject in the written agreement
or collateral matters (not covered)
What about agreements which are not of the same
subject as the written agreement? Agreements which
are collateral to the written agreement made prior,
contemporaneous oral agreements are not covered by
the PER because they are not related to the written
agreement.
A & B contact of sale
B told A you wash my car
Is it a provable agreement or is deemed covered by the
PER? NO because its only collateral.
Agreements involving fraud and false
representation (not covered)
All other agreements whether prior and
contemporaneous, subsequent or collateral if the issue
revolves around fraud and false representation because
they are incidental to the execution and not to the
integration of the agreement is not covered by the PER.
Thats Woodhouse versus Halili 1958.
Agreements where 3rd parties are involved
All other agreements whether prior and
contemporaneous, subsequent or collateral when 3rd
parties who are not privy thereto are involved are not
covered by the PER. That is in LECHUGAS versus CA
GR l-3992.
RECAP: WHAT IS COVERED? Only prior and
contemporaneous agreements which are deemed to
have been merged to the writing conformably to the
integration of the written agreement.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
WHAT IS NOT COVERED?
1. Subsequent agreements
2. Collateral agreements or those not of the same
subject as the written agreement
3. All other agreements if the issue involves
around fraud and false representation since
they are incidental to the execution and
integration of WA
4. All other agreements whether prior,
contemporaneous or subsequent or collateral
when 3rd parties who are not privy thereto are
involved.
August 7, 2015 (JJAstillo)
I guess the last time, we already discussed the different types of
agreement covered and not covered by the PER.
When you say covered it means that the rule applies. You cannot
present oral or parole evidence to change, modify, add to the
term of the written agreement with respect to prior and
contemporaneous agreement which are deemed to have been
merged into writing. But there are certain classes of agreement
that are not covered by the parole evidence rule.
And we have also identified the four types of agreements that
are not so covered. For example, side agreements, collateral
agreements which although are oral and contemporaneous with
the writing are actually considered separate and distinct. Thats
why we call them contemporaneous oral agreements. We will
discuss a little bit of that later on.
Oral agreements whether prior or contemporaneous, subsequent
man o collateral to the issue, if it revolves around fraud and false
representation, since they are incident to the execution and not
the integration to the agreement and all other agreements when
third parties who are not privy thereto are involved.
Now lets try to define contemporaneous agreement. We dont
have problem with prior agreements because they are
agreements deemed to be integrated already in the written
agreement. Contemporaneous agreement is one entered into at
the same time as the agreement which was already been
reduced into writing.
The question therefore is if it was an oral agreement entered into
at the time when the parties already reduced their agreement
into writing, automatic ba na sya that its no longer covered by
PER? Remember that if a contemporaneous oral agreement is
separate and distinct from the written agreement, such oral
agreement is curable by parole evidence.
Perfect example is where A sells land to B. of course, there was
payment already and turnover of certificate of title over the land
but what the agreement that they signed failed to include was
their contemporaneous agreement which was executed at the
same time that I have the right to repurchase or right to
reconveyance of property. And that is one of the inducement for
A to sell his land to B. Can you not prove by parole evidence the
fact that you have agreed to sell the land because there was also
contemporaneous agreement of repurchase or reconveyance? If
you are barred from doing so then that would lead to a very
unfair situation. And therefore in such a situation, the law allows
a party to prove by parole evidence the existence of such
contemporaneous oral agreement because it is deemed to be
separate and distinct from the agreement that was reduced into
writing.
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Ad Majorem Dei Gloriam
What we need to remember therefore, with respect to
contemporaneous oral agreements would be two tests:
1) If the subject matter of the written agreement is
different from that of the contemporaneous oral
agreement, then the COA is deemed to be separate and
distinct as an agreement and therefore is provable by
parol evidence. There are two different contracts
therefore contemporaneous contracts are provable by
parole evidence.
2) Or it could be that while the agreement refers to the
same subject matter (land), one for the sale of the land
and the other is for the reconveyance of the land,
therefore even if they actually refer to the same subject
matter you need to determine whether or not they are
separate. Can the COA be separable from the written
agreement? If COA is separable then it is already
considered as separate and distinct and therefore
provable by parole evidence. That is a very important
doctrine that you need to remember. (Laureano v
Kilayco)
In the case of Woodhouse vs. Halili, SC also ruled that
inducements and representations which led to the execution of
the written agreement in the first place may also be proven by
parole evidence because they actually do not vary the terms of
the agreement. They speak of the intent of the parties. Intent is
not normally included in the agreement. And therefore, what we
can expect with respect to inducement and representations, they
are not integrated into the written agreement. That is the reason
why in this case, you can prove inducement and representations
by parole evidence.
Parole evidence is also admissible to prove an independent and
collateral agreement which constitutes an inducement to the
making of the sale or part of the consideration thereof. For
example is the 1billion sale of GMA. There are collateral
agreements.
Condition precedent not stipulated in the written agreement is
also provable by oral evidence. For example in a contract to sell,
what are the condition of obligation of the parties full payment
of the price or securing title of the property. The SC said that a
condition precedent is provable by parole evidence because
before the happening of the condition there is no written
agreement yet to which the parole evidence rule may apply. So
in a conditional sale where transfer of ownership is subordinated
to full payment of purchase price, there is no deed of sale to
speak of. And therefore that condition precedent even if it is not
provided in the written agreement, it is provable by parole
evidence. (Land Settlement Corporation vs. Garcia)
Remember that one of the exception of PER is when there is
failure of the written agreement to express the true intent and
agreement of the parties thereto.
Take note of the quantum of proof required in order to contradict
the terms of the written agreement, whether by parol or any
other evidence. In Manzano vs. Perez: In order to contradict
the fact contained in a notarial document for example as well the
presumption of regularity of the execution thereof, there must
clear and convincing evidence that is more than merely
preponderance of evidence. Why I am saying that? because you
need to remember that in the hierarchy of evidence, oral
testimony cannot, as a general rule, prevail over written
agreements of the parties.
Favorite part daw ni Sir: Now how do you distinguish best
evidence rule from parole evidence rule?
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

Best Evidence rule Parole evidence rule note or memorandum, thereof, be in writing, and
The contents of the writing WON to allow a party to subscribed by the party charged, or by his agent;
contradict the terms of written evidence, therefore, of the agreement cannot be
agreement by means of oral received without the writing, or a secondary evidence
testimony of its contents:
Secondary evidence is Offered Purpose of the offer of the oral (a) An agreement that by its terms is not to
to prove the contents of the testimony is to change, be performed within a year from the making
writing which is not allowed if modify the terms of the thereof;
it falls in any of the complete written agreement (b) A special promise to answer for the debt,
exceptions. E.g. loss, which is not allowed unless the default, or miscarriage of another;
destruction, physical case falls under the (c) An agreement made in consideration of
unavailability exceptions. marriage, other than a mutual promise to
Only the parties and their marry;
successors may invoke the (d) An agreement for the sale of goods,
protection of the PER. chattels or things in action, at a price not less
Remember PER does not apply than five hundred pesos, unless the buyer
if there are 3rd parties involve. accept and receive part of such goods and
chattels, or the evidences, or some of them,
As in any evidentiary rule, PER is waived by failure to timely of such things in action or pay at the time
object. some part of the purchase money; but when
a sale is made by auction and entry is made
What would be the effect of novation to the applicability of PER? by the auctioneer in his sales book, at the
[not answered, just read the case of Market Developers vs. time of the sale, of the amount and kind of
IAC]. property sold, terms of sale, price, names of
the purchasers and person on whose account
the sale is made, it is a sufficient
STATUTE OF FRAUDS memorandum;
(e) An agreement for the leasing for a longer
Interestingly enough when we talk about exclusion the main law period than one year, or for the sale of real
is: property or of an interest therein;
(f) A representation as to the credit of a third
New Civil Code. Article 1356. contracts are obligatory in person.
whatever form they may have been entered into provided all xxx
the requisites are present
ROD will never accommodate transfer of ownership if there is no
Contracts are perfected by mere consent. Form is important only contract in writing. This is only for purposes of convenience and
if a law mandates that it be written. We know that a contract to not for validity.
sell is a consensual contract. Delivery is an obligation, a condition
precedent for the transfer of ownership. But a contract to sell is a 1) You cannot enforce in court an action relating to
consensual contract perfected by mere consent. Contract of sale contract if you do not comply with SoF. Evidence will
can be in writing or word of mouth or partly in writing or partly not be received if not reduced to writing. (not
of word of mouth or even inferred from the conduct of the necessarily notarized.)
parties. E.g. auction sale, sinyas sinyas lng bisan wala words. 2) Application of SoF, without note or memorandum does
not foreclose the application of Best Evidence rule or
In contracts of sale, it is delivery that consummates the contract. substitutionary evidence.
Consummation is not required to its validity. It is valid in 3) Any note or memorandum would do. E.g. tissue paper
whatever form they may be entered into. In other words, a will suffice.
contract of sale if valid gisulat man nimo o wala.
Originally the Statute of Frauds is not found in the Civil Code. It
For validity However, there are provisions of the law which is found in the Rules of Evidence because originally it was
provides for formalities of a contract. Examples are: intended to be a requirement of provability and because it is a
requirement of provability, it is an evidentiary rule. But later on it
1) Antichresis the only contract that is required to be was migrated to civil code from rules of evidence in order to
written to be valid. reflect its true nature, that it is substantive law.
2) Sales by an agent thru special power of attorney
3) Donations of personal property 5000 and up.; if real Claudel vs. CA, July 12, 1991: The purpose of the Statute of
property must be in public instrument Frauds is to prevent fraud and perjury in the enforcement of
4) Stipulations on interest obligations depending for their evidence upon the unassisted
memory of witnesses by requiring certain enumerated contracts
For greater efficacy/ convenience Under Statute of and transactions to be evidenced in Writing.
Frauds, not all contracts are covered. Not the entire Article 1403
is Statute of Frauds. It is only Section 2 of Article 1403 is the The provisions of the Statute of Frauds originally appeared
Statute of Frauds. under the old Rules of Evidence. However when the Civil Code
was re-written in 1949 (to take effect in 1950), the provisions of
New Civil Code. Article 1403. The following contracts are the Statute of Frauds were taken out of the Rules of Evidence in
order to be included under the title on Unenforceable Contracts
unenforceable, unless they are ratified:
xxx in the Civil Code. The transfer was not only a matter of style but
to show that the Statute of Frauds is also a substantive law.
(2) Those that do not comply with the Statute of
Frauds as set forth in this number. In the following
So whats the requirement here, there are certain enumerated
cases an agreement hereafter made shall be
unenforceable by action, unless the same, or some contracts you have to have some written evidence of the
contract. If you dont have written evidence, if the contract is

[Page 32 of 107]
Ad Majorem Dei Gloriam
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
breached and you are aggrieved, you cannot prove that contract
to obtain relief. In a nutshell, that is the Statute of Frauds.
One thing you need to remember also, when you talk about
Statute of Frauds, not all contracts are covered by SoF. When
you go outside to buy from Manang Luchi or Manong
Paningkamot sa una nagapangutang ko og sigarilyo o candy sa
tindahan sa gawas. Does it have to be covered by SoF? With
respect to the framing of the SoF, it was the tasks of the writers
of the law to identify certain contracts to be subject to strict
scrutiny. So that they can be enforceable. They already
enumerated it and can be found in # 2 Section 1403 of the civil
code.
So what are the unenforceable contracts under Statute of
Frauds: Unenforceable by action means you cannot sue on
the contract. You cannot prove that a contract exists in court.
That is what is meant by that unless a note or memorandum is
made. Again evidence cannot be received without the writing.
We are not talking here of formal notarized contract. It is not
necessary that it be reduced by a notary public in a contract.
Why? Because the law simply requires a note or memorandum
that is of course in writing. Dili kinahanglan nga notarized. Note
or memorandum is enough.
Take note that SoF does not foreclose the application of the Best
Evidence Rule, the substitutionary evidence. The exception to
BER. So this requirement of note or memorandum would do. E.g.
a tissue paper will do.
Torcuator vs. Bernabe (2005): It is required that
memorandum or note should require atleast the name of the
parties, the terms and conditions of the contract, the description
of the property that are capable of identification.
It is not like will that it has to be either a notarial will or
holographic will. Notarial daghan kaayo formalities. Holographic
naa pud formalities. Lisod giyahapon.
What is the shortest will ever? There was this case. A German made a will using
very short words. all my properties will go to my wife. It was probated. And was
admitted into probate. Everything went well.
Pwede ba na siya in a note or memorandum requirement under
SoF? Actually No! Why? Because kinahanglang ang name sa
parties, terms and conditions and description of the property
sufficient to render it capable of identification.
At least man lang it is required that the note or memo must
contain the essential elements of contract expressed with
certainty that may be ascertained from the note or memo itself
or some other writing which it refers or within which it is
connected without resorting to parole evidence. Pwede kung you
can deduced the existence of the contract from what is written in
the note or memo.
Can a receipt be sufficient? Let us say CDRking namalit ka didto.
That is already sufficient as a contract of sale because there are
names of the parties. Name of CDRking, name of the buyer, the
description of items. Terms of conditions is also there.
Warranties are also there. So that would be enough note or
memo. No need for contract of sale.
Now lets go to the specific contracts:
A. An agreement that by its terms is not to be performed
within a year from the making thereof;
My observation here is that when you talk about a contract which
must not be performed within one year it refers to both parties.
By both parties. Why? Because if it is to be performed by only
one party, the contract is already partially fulfilled and therefore
[Page 33 of 107]
Ad Majorem Dei Gloriam
outside the coverage or application of SoF. So both parties must
actually perform the contracts otherwise not covered by SoF.
B. A special promise to answer for the debt, default, or
miscarriage of another;
This is all about guaranty. A contract of personal security or
guaranty. It is not a formal contract but must comply with SoF
because it is provided in SoF. Surety is not covered because the
latter is primarily liable of the debt hence may be proved by
parole evidence.
C. An agreement made in consideration of marriage,
other than a mutual promise to marry;
What are possible agreements here? There must be
consideration of marriage. Meaning there can be no transaction
without marriage. Example is Pre-nuptial agreeements, donation
propter nuptias.
[Chika mode about Kris Aquino, James Yap and baby James]
Breach of promise to marry whether unilateral or mutual is not
actionable. So not covered under SoF. E.g. Pe vs. Pe case.
D. An agreement for the sale of goods, chattels or things
in action, at a price not less than five hundred pesos,
unless the buyer accept and receive part of such
goods and chattels, or the evidences, or some of
them, of such things in action or pay at the time some
part of the purchase money; but when a sale is made
by auction and entry is made by the auctioneer in his
sales book, at the time of the sale, of the amount and
kind of property sold, terms of sale, price, names of
the purchasers and person on whose account the sale
is made, it is a sufficient memorandum;
To my mind this is already antiquated because p500 as a
parameter here is in 1950s. Today, p500 is very small already.
(talking about banana que).
A has debt to B amounting to 1000. A tells B he cant pay B
because he is liquid. A tells B to accept cellphone hoping that this
will stand as payment (dacion en pago). There is already
novation. Instead of money, obligation now is to deliver
something as form of payment. Money now becomes a thing.
This novation is called objective novation. Changing of an object
of contract. This is a sale in reverse. In contract of sale, you give
me money I give the thing. In dacion en pago you give a thing
and I give you money.
The law specifically provides that dacion en pago where property
is alienated to the creditor, the payment of debt is governed by
law on sales. If sales is governed by SoF, would dacion en pago
be covered by SoF? Because remember it is governed by law on
sales. What is the answer here?
In the case of DAO HENG BANK, INC v SPS. LILIA and
REYNALDO LAIGO (2008): Being likened to that of a contract
of sale, dacion en pago is governed by the law on sales. The
partial execution of a contract of sale takes the
transaction out of the provisions of the Statute of Frauds
so long as the essential requisites of consent of the
contracting parties, object and cause of the obligation concur
and are clearly established to be present.
What are the other contract governed by Law on Sales? We have
barter governed by law on sales. Except for two rules:
1) If there is doubt whether it is a sale or barter, you look
at the intention of the parties.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
2) If the intention does not appear, you look at the
monetary equivalent of the thing given. (mas dako ang
thing, its barter, if dako ang money, its sales.
Thats the only special rule that applies to barter.
What else? Contract for piece of work, in certain situations.
Like warranties, governed by law on sales.
In the case of COMMISSIONER OF INTERNAL REVENUE
vs. THE COURT OF APPEALS, THE COURT OF TAX
APPEALS and ATENEO DE MANILA UNIVERSITY: The
contract of sale and contract of piece of work, they are
practically the same. Why? Again a party necessarily walks away
with a thing.
Now, if dacion en pago being governed by law on sales, is it
actually covered by the statues of fraud? Would a contract of
barter be covered by SoF? Second, would a contract of piece of
work be covered by SoF? Find out your own. I will tell you
the answer next meeting. Find out first.
E. An agreement for the leasing for a longer period than
one year, or for the sale of real property or of an
interest therein;
Nothing much there. It is self-explanatory.
CONSOLACION DUQUE SALONGA, vs. JULITA B.
FARRALES, 1981: this provision according to the SC includes
compromise agreement on the sale of land.
F. A representation as to the credit of a third person.
What is a representation as to the credit of a third person?
Meaning you are vouching for somebody else. What is an
example? According to Dean Inigo, it is similar to a guaranty.
Thats all I remember he is saying.
What is a contract similar to a guaranty? Surety! But based on
what Dean Inigo was saying also, Suretyship is not included in
SoF. Only guaranty lang diay. So it only covers guaranty.
What if you are an accommodation party without signing or
writing anything? Pero dili man diba. mao gani nga ginatawag ka
party kay party ka sa negotiable instrument whether
accommodation endorser ka or maker and so on? Pero murag
dili.
What else ang possible nga ing-ana? In credit transaction you
will come across a contract known as contract of letter of credit
transaction. There are 3 parties. Buyer, seller and bank. The
undertaking of a bank is to ensure payment of the sales price
provided the seller present to the bank the bill of lading or a
warehouse receipt proving nga napadala na. Can you become a
guaranteeing bank in letter of credit transaction without writing
anything? Walay contract? Suppose the bank did not pay and
there was letter of credit issued? Nothing is in writing? Is it
covered under representation as to the credit of a third person?
Somehow it is covered. I am not saying for sure ha. There is no
ruling of SC to that effect specifically talking about letter of credit
accommodation. Mogawas na karon na bar. Usually mogawas
akong predictions 5 years from now.
LIMITATIONS
(1) DOES NOT APPLY TO PARTIALLY PERFORMED OR
EXECUTED CONTRACTS
Remember again that it does not apply to partially performed or
executed contracts. Why? Because of the possibility of unjust
enrichment.
[Page 34 of 107]
Ad Majorem Dei Gloriam
E.g. oral contract between A and B. later on nagbayad si A and
later on si B nag-ingon am not in contract with you. Can A sue B?
Yes, because B already benefited from the contract. To avoid
unjust enrichment.
So that is why SoF does not apply to partially performed or
executed contracts.
Read the case of ANTHONY ORDUA vs. EDUARDO J.
FUENTEBELLA: There is this land bought by virtue of oral
contract of sale by instalments for how many years until the
seller decided to sell it somebody else to someone in full all the
while receiving partial payments. And seller sold it to another and
the present buyer wants the first buyer to be evicted.
Would SoF defeat those buyers in instalments? According to SC:
No! The contract was already executed and therefore can be
proved by oral evidence that there is such a contract. It is not
unenforceable.
August 7, 2015 (KJ)
ANUNCIACION VDA. DE OUANO vs.THE REPUBLIC OF THE
PHILIPPINES, 2011: Heres this land in Lahug City which the
National Airport Authority wants to expropriate. What usually
happens when a property is expropriated, can you not contest
that anymore because its the govt youre fighting? Of course
not. Number 1 question, proper taking, and then number 2 if the
taking was proper, you can question the compensation.
And so the NAA to induce property owners to sell their lands
voluntarily, or to not oppose the expropriation anymore, said that
ok anyway if we dont want to use the property anymore you
can have it back just pay back what we paid you as just
compensation.
So they did not appeal the judgment on the expropriation of their
properties anymore.
So it was supposed to be made as an airport, in Lahug. But now
where is the airport in Cebu? Is it in Lahug? Of course not. It is
in Mactan in Lapu-lapu City. So they actually abandoned the
Lahug area and made an airport a city away!
And so now, the families of the persons from whom the
properties where taken by way of expropriation wanted to buy
back the properties by saying that orally the govt told us that
we are allowed to buy back or redeem the property in a sense if
the govt is no longer using it. The govt said No, it is barred by
the statute of frauds, thus you cannot but it back.
So can the former owners buy them back by proving through
testimonial evidence the promises, assurances and
representations of the govt when the property was bought from
them? Saying pede na ninyo paliton balik! but nothing was
reduced into writing. Would that be proper?
What contract is involved here? Consummated contract. So,
because of the promise that they can buy it back, that was the
reason why they did not appeal the judgment of expropriation.
So according to the SC: The statute of frauds is not applicable.
Besides, it appeared to be an after-thought on the part of the
govt because they did not object immediately to the admissibility
of evidence on the basis of statute of frauds. It has to be timely
raised otherwise it is deemed waived.
Now, take note that execution or partial performance is not
limited to the act of paying, na bayad ka partially sa purchase
price. Even if there is no partial payment, partial performance
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

can mean possession of property under a contract of sale, the
making of improvements, the rendition of services, the payment
of taxes, relinquishment of rights and all other acts of ***. So
these can be partial execution or partial performance.
(2) DOES NOT APPLY TO ORAL PARTITION OF
PROPERTY
Take note that SOF does not apply to oral partition of property.
You havent taken up Rules 74, so I will not yet explain it further.
(3) DOES NOT APPLY TO WILLS
- In a demurrer of evidence. Remember that if it is
unenforceable supposedly you cannot present any
evidence to prove it. But lets assume that the judge still
admitted the oral contract, erroneously. So the other
party has finished presenting his evidence-in-chief.
What can you do being the defendant? File a demurrer
of evidence stating that theres violation of SOF under
Rule 33. Why, because there can never be a prima facie
case unless there is admissible evidence to support the
claim.
- How else? By objecting to the reception of such oral
evidence when it is presented in court.

Would the SOF apply to wills? Can there be oral wills in the PH? Remember that failure to object in any of these occasions is
Of course not but anyway just to make an academic distinction: tantamount to a waiver of the right to object based on the
if a parol evidence rule by fiction of law considers a will an ground of SOF. That is why you really need to memorize the
agreement for the application of Section 9 Rule 130, under the SOF. For your sake, as future barristers and as future lawyers. Be
statute of frauds it is not considered an agreement. It does not familiar with it.
cover wills. Although anyway, we dont have oral wills here so
that is for academic purpose only; because the effect is the (Chika minute: Prof in obli before never told us to memo SOF but I just memorized
it for the heck to it. Question number 1 during that examination, aguy! Also, chika
same. You cannot allege that the testator told you that his will
about teaching obli for half a sem).
give you all the property he has at the time of his death. You
cannot do that.
Also, when you cross-examine, that is tantamount to waiver of
objections. Please remember that.
(4) APPLIES ONLY TO ACTIONS FOR VIOLATIONS OF
CONTRACTS OR ACTIONS FOR SPECIFIC
PERFORMANCE
STATUTE OF FRAUDS versus PAROL EVIDENCE
(5) DOES NOT APPLY WHEN PARTY OFFER PAROL
Similarities: They are similar in the sense that both rules limit the
EVIDENCE TO PROVE TRUE INTENT
ability of a party to present oral evidence in certain contractual
situations. Same type of evidence, which is parol or oral evidence
The SOF does not apply when the party offers to prove through
is prohibited in both.
parol evidence that the agreement does not express the true
intent of the parties. Dili na siya mao ang applicable, what is
Distinctions between SoF and PER:
applicable? The parol evidence rule. Because the action there is
to make the contract express the true agreement of the parties.
It is an imperfection in the written agreement. Law New Civil Code. Rules of Court.
Article 1403 (2) Rule 130, Section 9
(6) CANNOT BE INVOKED BY A PERSON NOT PRIVY Object Certain agreement Nothing to do with the
TO THE CONTRACT must be proved by manner of proving
some writing, note agreements. Its object is to
or memorandum in prohibit alteration, change,
HOW TO RAISE SOF AS A DEFENSE order to be modification, variation or
enforceable contradiction of the terms
of a written agreement
How do you use the SOF to prevent the introduction of parol or
RE: Clearly, does not By fiction of law, treats
oral evidence during trial of the contract? There are many ways
Wills apply to wills wills as agreement and
to skin the cat so to speak:
thus it made applicable to
wills
- Use it as a ground as a motion to dismiss within the
time required for you to file your answer. Remember When Cannot be invoked Cannot be invoked by
under Rule 16 Section 1, SOF is a ground for motion to invoked by a stranger to the either party to the litigation
dismiss. contract against the other where at
least one of the parties to
Question: So your motion to dismiss based on SOT was the suit is not a party or a
granted, can the plaintiff refile the complaint this time privy of a party to the
attaching the written contract? So SOF, with prejudice. written instrument.
Such order ordering the dismissal of the case based on
SOT shall bar the refiling of the same action or claim. Simply stated: This does
That is Rule 16, Section 5. not apply where third
parties are affected (?)
- File an Answer and use SOF as an affirmative defense.
[Tip: Do not answer in a table. Do not answer in one big paragraph without any
An advantage to that (instead of filing motion to white space whatsoever. Answer in proper essay form. Also, do not limit with
dismiss) is because a motion to dismiss is NOT a contrast. Write down the similarity as well. Try to answer just like in enumeration
pleading, it does not affect the other parties right to questions. That, for me, will result to topnotch answers. Provided your answers are
also correct.]
amend his pleading as a matter of right. So you would
rather file an Answer and use SOF as a ground as an
affirmative defense then ask a preliminary hearing as if
August 12, 2015 (AJU)
a motion for dismissal was made. (review about
affirmative defense, being a confession and avoidance
Interpretation of Documents
defense, hello, CivPro all over the place)

[Page 35 of 107]
Ad Majorem Dei Gloriam
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
We are now in testimonial evidence, but before that let me just
lecture a little bit on interpretation of documents.
Rule 130. Section 10. Interpretation of a writing according to
its legal meaning. The language of a writing is to be
interpreted according to the legal meaning it bears in the place
of its execution, unless the parties intended otherwise.
Remember in you civil law you have lex loci celebrationis and you
also have lex loci contractus which are concepts you encountered
in civil law. The law of the place where the contract is made.
Lex Loci Contractus: "law of the place where the contract is
made". This governs the interpretation and meaning attached to
the contract based on the place it was made.
Lex loci celebrationis: the law of the land where the marriage
was celebrated". This governs in everything else; the nature and
the meaning attached to the contract.
For example, non-compete clause, where an employee agrees
not to pursue an occupation similar to that of his employer for a
certain period of time. There is no discussion of the non-compete
clause in the codal provision of Philippine law, its just considered
a clause where the parties are free to stipulate.
But in the State of California, non-compete clause are
automatically void for violation of public policy and for restraint
of trade.
So the interpretation is different based on the locality; if it is in
the Philippines it may be allowed but in California it is considered
void.
Rule 130. Section 11. Instrument construed so as to give
effect to all provisions. In the construction of an instrument,
where there are several provisions or particulars, such a
construction is, if possible, to be adopted as will give effect to all.
In other words, the ultimate objective in interpretation is a
contract is harmony. This applies if there are provisions which
are equivocal and in conflict with each other. You need to
harmonize the provisions of the contract as much as possible
with each other.
Multinational Village Homeoweners
Association versus Ara Security
Here there are two provisions that are in conflict with each other
so just read that case.
From FT of the case: Section 11 of Rule 130 of the Rules of Court
states that [i]n the construction of an instrument where there are
several provisions or particulars, such a construction is, if
possible, to be adopted as will give effect to all. Contrary to
petitioners contention, paragraph 5 is not inconsistent with
paragraph 12. More important, the former does not in any way
deal with the termination of the Contract. Neither does it provide
for a right to rescind.
Rule 130. Section 12. Interpretation according to intention;
general and particular provisions. In the construction of an
instrument, the intention of the parties is to be pursued; and
when a general and a particular provision are inconsistent, the
latter is paramount to the former. So a particular intent will
control a general one that is inconsistent with it. (10)
Intention is the main rule of interpretation. For example, Article
1468, which would tell you how to interpret a contract between a
sale and a barter. Pag mas dako ba ang kwarta, is it
automatically a contract of sale? Or if masdako ang value sa
object, is it automatically a contract of barter? No. The first rule
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is that you have to identify the intention of the parties; if they
intend sale or barter. If the intention doe not appear clearly, that
is the time you apply the rules. Do not immediately assume that
it is a sale or it is immediately barter.
Ligon versus Court of Appeals
At the outset, it should be stated that, as a rule, in the
construction and interpretation of a document the intention of
the parties must be sought (Rule 130, Section 10, Rules of
Court). This is the basic rule in the interpretation of contracts
because all other rules are but ancillary to the ascertainment of
the meaning intended by the parties. And once this intention has
been ascertained it becomes an integral part of the contract as
though it has been originally expressed therein in unequivocal
terms.
The section also says when a general and a particular provision
are inconsistent, the latter is paramount to the former.
It means that it is the particular provision that prevails over the
general provision. A particular intent will prevail over a general
one inconsistent with it. This is a principle that is prevalent in
law.
Generalia Specialibus Non Derogant: Latin maxim of
interpretation the provisions of a general statute must yield to
those of a special one.
When a matter falls with a general provision and specific
provision it is the specific provision that prevails. When you were
discussing Transportation Law, you discussed damages by
common carriers. There are damages that are unique only to
transportation, such as averages, but as to other damages;
moral, exemplary, nominal, etc. you apply Civil Code.
As to averages, that is determined by Transportation Law.
Whoever is benefitted by jettison shall pay for the averages.
Rule 130. Section 13. Interpretation according to
circumstances. For the proper construction of an instrument,
the circumstances under which it was made, including the
situation of the subject thereof and of the parties to it, may be
shown, so that the judge may be placed in the position of those
who language he is to interpret.
The person who is interpreting the document is implored to put
himself into the shoes of the party making the contract.
For example in a contract of sale, was there really an intent to
sell or merely a means to secure a loan with property? And
therefore, is it a contract of sale or an equitable mortgage?
Rule 130. Section 14. Peculiar signification of terms. The
terms of a writing are presumed to have been used in their
primary and general acceptation, but evidence is admissible to
show that they have a local, technical, or otherwise peculiar
signification, and were so used and understood in the particular
instance, in which case the agreement must be construed
accordingly.
GR: The terms in a contract is supposed to be given the
interpretation that a layman would give to it. It is the laymans
acceptation that will be given to the particular term.
Exception: You are not however prevented form presenting
evidence that the term is to be interpreted in its technical and
peculiar sense.
For example, if you buy everything in a store that is what you
call in Cebuano pakyaw. But in Labor Law, pakyaw has a
technical and peculiar meaning. Its a manner of payment and
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
engaging a person to work based on a fixed amount regardless
of amount spent of performing the work.
Another example, pag.kanang nag-pusta tapos wala na mbayad,
tawagan aning.pago. But under the law, pago means payment.
Security Bank versus Court of Appeals
This involves a technical contract realting to insurance indemnity.
What is meant by recovery for insurer? Is it judicial or
extrajudicial?
From the FT of the case: From the above events, it seems clear
that SBCs suit against LIC was not a mere afterthought after LIC
had rejected its claim. Rather, SBC exercised its right of action
against PISA pursuant to paragraph 5(e) of the PRA. This
interpretation is consistent with settled canons of contract
interpretation, has the import that would make SBCs right of
action effectual, and would yield the greatest reciprocity of
interests. Indeed, we agree with SBC that PISAs interpretation of
the clause would lead to an effective waiver of SBCs right of
action, because to await the judicial determination of the LIC suit
may lead to the prescription of SBCs right of action against PISA.
If some stipulations of any contract should admit of several
meanings, it shall be understood as bearing that import which is
most adequate to render it effectual. The various stipulations of
a contract shall be interpreted together, attributing to the
doubtful ones that sense which may result from all of them taken
jointly. 35 When it is impossible to settle doubts by the rules
established in the preceding articles, and the doubts refer to
incidental circumstances of an onerous contract, the doubt shall
be settled in favor of the greatest reciprocity of interests.
Moreno versus Private Management Office
If you accept a suggestive indicative price, does that lead to a
perfected contract? Just read that case.
From the FT of the case: The reliance of the trial court in the
Webster definition of the term "indicative," as also adopted by
petitioner, is misplaced. The transaction at bar involves the
sale of an asset under a privatization scheme which attaches a
peculiar meaning or signification to the term "indicative price."
Under No. 6.1 of the General Bidding Procedures and Rules of
respondent, "an indicative price is a ball-park figure and
[respondent] supplies such a figure purely to define the ball-
park." The plain contention of petitioner that the transaction
involves an "ordinary armslength sale of property" is
unsubstantiated and leaves much to be desired.
It appears in the case at bar that petitioners construction of
the letter of February 22, 1993 that his assent to the
"suggested indicative price" of P21,000,000.00 converted it as
the price certain, thus giving rise to a perfected contract of
sale is petitioners own subjective understanding. As such, it
is not shared by respondent. Under American jurisprudence,
mutual assent is judged by an objective standard, looking to
the express words the parties used in the contract. Under the
objective theory of contract, understandings and beliefs are
effective only if shared. Based on the objective manifestations
of the parties in the case at bar, there was no meeting of the
minds.
Rule 130. Section 15. Written words control printed.
When an instrument consists partly of written words and partly
of a printed form, and the two are inconsistent, the former
controls the latter.
This is quite self-explanatory. This is a simplified version of the
parol evidence rule. Under the parol evidence rule you are not
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allowed to vary the written document by oral evidence. Similarly,
among the written, document the written part prevails over the
printed part.
Rule 130. Section 16. Experts and interpreters to be used in
explaining certain writings. When the characters in which an
instrument is written are difficult to be deciphered, or the
language is not understood by the court, the evidence of persons
skilled in deciphering the characters, or who understand the
language, is admissible to declare the characters or the meaning
of the language.
So you are allowed to present an expert or an interpreter. For
example, the document is written in a language not known to the
court. Or for example, the instrument is difficult to decipher.
If the document is in a language not known to the court, then
you introduce an interpreter: someone who is familiar with that
language.
If the document is unintelligible, you employ an expert to
decipher the instrument.
The language of the Philippine Bar is English, even though we
are not English speakers. Under the judicial affidavit rule, you are
allowed to testify as to the language the witness knows. If the
witness wants to testify in Illongo or Cebuano, then the
questions that have to be propounded to him must be in Illongo
or Cebuano. Take note that Tagalog is not Filipino, since Filipino
is already an amalgam of Tagalog and other dialects.
Rule 130. Section 17. Of Two constructions, which preferred.
When the terms of an agreement have been intended in a
different sense by the different parties to it, that sense is to
prevail against either party in which he supposed the other
understood it, and when different constructions of a provision are
otherwise equally proper, that is to be taken which is the most
favorable to the party in whose favor the provision was made.
So, weird phraseology. The situation is that there are many
interpretations given by different parties for a single document.
And if that is the situation, what would be the rules you are
going to use? What are the rules you apply in that situation?
First, the interpretation which the other party believed and
used.
Second, when both constructions are equally proper, that
interpretation which is most favorable to the party on whose
benefit the contract was made in the first place is to be
given effect.
There are certain provisions in a contract that is naturally to
the benefit of a certain party. There is a natural prejudice in
favor of a party. For example, a stipulation for the payment
of installments is for the benefit of the buyer, because
naturally if you were the seller you would want your money
right away.
However if there is a stipulation for interest, that provision is
in favor of the seller.
Stipulation for payment of interest in a contract of loan is
construed in favor of the lender. Therefore, the provision is
construed in favor of the lender.
This section applies when there are two interpretations, because
the GR in your obligations and contracts is that the contract is
presumed to have been entered into for the benefit of both
parties.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Rule 130. Section 18. Construction in favor of natural right.
When an instrument is equally susceptible of two interpretations,
one in favor of natural right and the other against it, the former
is to be adopted.
A natural right is a right that exists by virtue of natural law,
meaning it does not have to be included in a law or statue for it
to exist.
Does the Constitution or a statute need to articulate that we
have the right to live? No. But the right to cause somebody not
to live has to be in some statute. Is it allowed to take a life? Only
the State is given the right to take a life; to police its citizens to
maintain order.
Section18 is a rule that says that if there is an interpretation that
is contrary to his interests, that would be contrary to his nature.
Of course, the instinct of any person is self-preservation. If a
party to a contract acts against his self-preservation or contrary
to human experience, doubt is resolved to the opposite
interpretation.
Waivers for example are construed strictly. Why would you waive
a right when it is easier to enjoy it? So in case of doubt as to the
validity of a waiver, that doubt is construed in favor of a persons
natural prejudices.
Rule 130. Section 19. Interpretation according to usage. An
instrument may be construed according to usage, in order to
determine its true character.
The example of Dean Inigo is the Bill of Lading. The Bill; of
Lading has two functions: as a receipt and as a contract. It is a
receipt for the goods shipped and a contract for the transport of
the same. As a receipt, is states the date of the shipment and
describes the quantity, quality, character and value of the goods
shipped. As a contract, it names the parties, fixes the route,
provides for the charges and stipulates the rights and obligations
of the parties. Therefore, because of the dual character of the
Bill of Lading, it is to be interpreted as to its usage.
TESTIMONIAL EVIDENCE
Testimonial evidence is evidence from the mouth of the witness
as distinguished from documentary or real evidence. It is
sometimes called viva voce evidence or living voice or
evidence by word.
Try to recall our discussion in hierarchy of evidence. The highest
in the rank is real evidence because it is immutable: the rock will
always be a rock, a gun will always be a gun. Followed by
documentary evidence. And the most prone to fabrication is
testimonial evidence.
Despite being the lowest in the hierarchy, it is important because
you need a witness to sponsor real evidence. You cannot present
real evidence without it being sponsored by a testimony of a
qualified and competent witness. Likewise, you cannot present
documentary evidence without a witness sponsoring the contents
of the document.
Remember that under the judicial affidavit rule, it is already the
submission of the judicial affidavit that takes place of the direct
examination. The usual matter of presenting testimonial evidence
before is that the witness is made to take an oath, placed on the
witness stand and be asked questions. That is the old way of
presenting. Instead of doing that, under the JA rule, the affidavit
substitutes that procedure. Of course the affidavit is in writing on
paper.
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Now the question is when you talk about JA, is it real evidence,
documentary evidence or testimonial evidence? It is testimonial
evidence. That is why I have a problem with courts who order a
pre-marking of judicial affidavits because for me these are
testimonial evidence. What do you pre-mark? Only for
documentary and object evidence and not testimonial evidence.
This practice which treats a judicial affidavit as a testimonial and
object evidence. [sa court, ang judge ang hawd, wa nay lain pa]
Qualifications of a Witness
Rule 130. 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. xxx
Do you think you are qualified witnesses? Yes you are because
the law presumes you are competent witnesses, there is that
presumption. But if a party desires to question the competence
of a witness, he must do so by making an objection as soon as
the facts tending to show the witnesses incompetence become
apparent. What are these qualifications? You look at Section 20.
Taking into account this provision, what are the basic requisites
for a person to be a witness:
1. He can perceive
2. He can make his perception known to others
Remember when you say ability to perceive it means you have
the capacity of observation. It involves use of the senses: touch,
sight, smell and hear. If you are asked How did you feel? That
is already asking for an opinion.
You must also be able to make known you perception to others.
What do you need to make known you perception to others? You
need to be able to communicate. But aside from the capacity of
communication, you must also have the capacity of recollection.
A blind person has no capacity to see just as a deaf mute has no
capacity to hear. You do not have the capacity of recollection if
you are an amnesiac, you cannot remember. As to capacity of
communication, should a deaf mute be disqualified as a witness?
No. Because a deaf mute person can still communicate with the
use of sign language. Judges of course are not trained to
understand that. But aside from those very basic requirements
which are capacity to perceive and capacity to make known their
perception to others, you can also add these requisites:
3. He must take an oath or affirmation
4. He must not possess the disqualifications by law
or by the rules
1. Ability to perceive
Take note that a person must testify to those facts which are of
his personal knowledge. How do you obtain personal knowledge?
By observation and perception. Personal knowledge therefore
consists of what you see, what you hear, what you smell and etc.
Therefore, a person who testifies as to a matter not of his
personal knowledge is not qualified to testify. Because what he
will be testify on is hearsay, chismis lang, not taken from his own
personal knowledge of the events.
2. Ability to make his perception known to others
So again, there are two elements to this ability:
a) Ability to remember what has been perceived or the
capacity of recollection and
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
b) Ability to express what he has perceived or the
capacity of communication.
People versus Tuangco
The Supreme Court discussed the competence of deaf mute
witnesses. Deaf-mutes are competent witnesses where they:
(1) Can understand and appreciate the sanctity of an
oath;
(2) Can comprehend facts they are going to testify on;
and
(3) Can communicate their ideas through a qualified
interpreter.
3. Oath or affirmation
Rule 132. Section 1. The examination of witnesses
presented in a trial or hearing shall be done in open court, and
under oath or affirmation. xxx
Is this really required? For those of you who do not what oath
the witness takes it is to swear to tell the truth, the whole truth
and nothing but the truth. So help me God. So what if you are a
non-believer of God? The witness is exempt from taking an oath
but he must make an affirmation. For example, take note that
the President before assuming office must take an oath or
affirmation. So it prepares us for the possibility of a President
who does not believe in God. But we are a religious country, so a
person who is averse to the belief of God will not be President of
the Philippines.
So that means if you do not believe in God, you still must make
an affirmation. You are going to say that I affirm that I will tell
the truth, the whole truth and nothing but the truth.Wala nay
so help me God.
Why is this necessary? Because it means that if you lie, you open
yourself to the liability of perjury. You understand that by
speaking falsehood in the presentation of you testimony, you can
be prosecuted for perjury.
Take note that it is enough to sign something with the effect of
an oath or affirmation. There is no prescribed form of oath or
affirmation.
Rule 130. Section 20. xxx
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.
Take note also of the second paragraph of the section: you
cannot disqualify a witness on the basis of his religious beliefs.
You cannot also disqualify a witness based on the fact that the
accused is of an opposing religion or a different political party.
How about interest in the outcome of the case? Is it not that if
you have an interest in the outcome of the case, you would
testify to the effect that would ensure that outcome? In other
words you are a biased witness. A lot of lawyers object Your
Honor, the witness is biased. Kapila nako nakadunggog ana. I-
try ra gud ninyo analyze. Isnt it that all witnesses, provided they
are not hostile witnesses, are biased witnesses? The witness that
you will present will prove you cause of action or you defense,
making them biased already. Why would you present a witness
that would defeat your cause? Tanga aka. Mas labaw nang tanga
ang lawyer na mu-object Your Honor, the witness presented is a
biased witness.Asa man kanangitaana dong? All witnesses are
biased. Ive encountered objections were the other party
objected to the presentation of the wife as a witness. That is
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Ad Majorem Dei Gloriam
incorrect. Perceived biases is not a ground for disqualification of
witnesses. At most, what interest in the outcome of the case
affects is not admissibility but the credibility of the testimony. If
the court sees that the witness is really biased, then the court
will not believe the testimony but the court should still allow the
testimony of that witness.
How about those convicted of crimes? What if the opposing
counsel objects: Your Honor, that witness has been convicted of
forgery, falsification, etc. No. That is not a ground for
disqualification. Conviction of a crime or being accused of a
crime, if they are to be considered as disqualifications, it will be
very difficult to secure a conviction. Lets us suppose A is facing
two criminal cases for a crime and for conspiracy in a crime. If A
is convicted, does that means he cannot testify as to his co-
conspirators B, C and D as a state witness? No. Otherwise it
would be difficult to get a conviction. A person who has a
pending case or is convicted is not by that fact itself disqualified
as a witness.
People versus Taneo
The credibility of the witness was questioned because he has a
motive to give a false testimony. The fact that he has been
convicted does not affect his believability. That was in the case
of People versus Taneo.
From the FT of the case: Thus, if he were to testify falsely
against the latter, he must have been moved by a strong,
improper and ulterior motive. That motive must have been
established; appellant failed to do so. In the absence of evidence
to show any reason or motive why witnesses for the prosecution
should have testified falsely, the logical conclusion is that no
improper motive existed, and that their testimony is worthy of
full faith and credit.
People versus De Leon (1995)
The star witness was accused of murder in a different case.
Now, he is going to testify as to another case of murder. So
the witness in a murder is also the murderer in another case.
The SC said, again, that is not a ground for disqualification.
From the FT of the case: Fast realizing that his cause lacks the
proverbial "leg to stand on," the appellant capitalizes on
Mariano's admission that he was charged with homicide or
murder before another court. He then submits that no
credence could be given to Mariano because the latter was
himself accused of having killed somebody. 39 Such a
submission fails to impress us. Section 20, Rule 130 of the
Rules of Court provides that except as provided for in the
succeeding sections [Sections 21, 22, 23, 20, and 25], all
persons who can perceive, and perceiving, can make known
their 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 a ground for disqualification. Clearly, the mere
pendency of a criminal case against a person does not
disqualify him from becoming a witness. As a matter of fact,
conviction of a crime does not disqualify such person from
being presented as a witness unless otherwise provided by
law.
What does this part mean:
xxx conviction of a crime unless otherwise provided by law,
shall not be ground for disqualification.
This means that a conviction of certain crimes will disqualify you
in certain instances. For example, in the law of succession, Article
821 of the Civil Code, which disqualifies a person from being a
witness of the will for conviction of a crime of perjury,
falsification and false testimony. Take note that Article 821 only
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
disqualifies a person from being a witness to a will. It does not
pertain to a persons disqualification in any other case.
People versus Umali
The phrase "conviction of a crime unless otherwise provided by
law" takes into account Article 821 of the Civil Code which states
that persons 91 convicted of falsification of a document, perjury
or false testimony" are disqualified from being witnesses to a
will."
Since the witness Francisco Manalo is not convicted of any of the
above-mentioned crimes to disqualify him as a witness and this
case does not involve the probate of a will, We rule that the fact
that said witness is facing several criminal charges when he
testified did not in any way disqualify him as a witness.
DISQUALIFICATION BY REASON OF
MENTAL CAPACITY OR IMMATURITY
Rule 130. Section 21. 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; x x x
Lets go to the first one. Whats an example of that person? The
law seems to say the witness is still able to perceive but cannot
make his perception known to others. You have Alzheimers
disease for example, which affects a persons memory and
recollection. Youre a mental retardate, for example, can you still
testify? The SC said a mental retardate is not disqualified per se
for as long as he can make his perception known to others. He
will still be considered a competent witness.
How about senile dementia? Again, if it does not affect the
capacity for perception, recollection and communication, then go
ahead, such person can be a witness.
August 26, 2015 (JRL)
Review on Sections 20 and 21: Sec 20 refers to the general
qualification of witnesses. We noted that the only requirement
there is that the witness can perceive and in perceiving, he can
make known his perception to others. So remember:
1. Capacity to observe
2. Capacityto remember
3. Capacity of communication
We discussed as well the necessity of oath which renders the
witness liable for perjury just in case it testifies falsely.
GR: Conviction of a crime does not necessarily render you
incapable to be witnesses in court UNLESS otherwise
provided by law.
Exception: Witnesses to a will are disqualified when convicted
of falsification of a document, false testimony or perjury
We discussed Sec 21, disqualification by reason of mental
incapacity of immaturity which provides that:
Lesson proper:
Rule 130. Section 21. xxx
(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.
[Page 40 of 107]
Ad Majorem Dei Gloriam
Presumptions regarding a child: A child is conclusively presumed
incapable of contributory negligence.
A child is conclusively presumed incapable of ***.
With respect to manner of proving the age of the child, the child
for example is the victim of the crime of rape, how do you prove?
[we already covered that before]
GR: Any child, regardless of age, can be competent witnesses if
they can perceive and in perceiving, can make known their
perception to others and of narrating truthfully the facts
respecting which they are examined.
Therefore, a child can be considered a competent witness if he
possesses the same capacities that we have when we are talking
of witnesses in general. So, a child can be competent
witnesses if he has the capacity of observation, capacity
of remembrance and capacity of communication.
But we have to consider the special situations. Unsa man ni?
Children depending on the age would make up certain problems
in communication.
So, again, the presumption is the competence of the child. No
reverse assumption that the child is incompetent.
That is perpetuated in Section 6 of the Rules on Examination of
Child Witness Administrative Matter 004-7-SC which was
promulgated by the SC on November 21, 2000 and which took
effect on December 15, 2000.
Rules on Examination of Child Witness
Section 6. Competency. Every child is presumed qualified to
be a witness. However, the court shall conduct a competency
examination of a child, muto proprio or on motion of a party,
when it finds that substantial doubt exists regarding the ability
of the child to perceive, remember, communication, distinguish
truth from falsehood, or appreciate the duty to tell the truth in
court.
Now, the same formula applies:
- Capacity of observation
- Capacity of recollection and
- Capacity of communication in determining the
competency of the child as a witness.
So does it mean that the Rules of Court will apply in all
evidentiary questions relating to the testimony of a child as a
witness in court?
Rules on Examination of Child Witness
Section 1. Applicability of the Rule. Unless otherwise
provided, this Rule shall govern the examination of child
witnesses who are victims of crime, accused of a crime, and
witnesses to crime. It shall apply in all criminal proceedings
and non-criminal proceedings involving child witnesses.
Remember that if there is a special rule, you apply the special
rule rather than the general rule. The PRIMARY RULE to be
applied in cases of child witnesses is the Rules on The
Examination of Child Witnesses. THE RULES OF EVIDENCE,
THEREFORE, APPLIES SUPPLETORILY.
So when does the Rules of Court only apply?
1. Disposition because the special rule does not provide for
such.
2. Conditional examination of witnesses.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Take note that the objective of the rule under Section 2:
Section 2. Objectives. The objectives of this Rule are to
create and maintain an environment that will allow children to
give reliable and complete evidence, minimize trauma to
children, encourage children to testify in legal proceedings,
and facilitate the ascertainment of truth.
In People vs. Baring, January 28, 2002, the rule is deemed
to include the avoidance of the use of evasive matters to
determine sexual abuse which stands to reason.
What do you mean by avoidance of the use of evasive matters?
In ordinary cases, a woman claims that she is sexually abused by
the accused. If you have been to court, the lawyer or cross
examiner will actually prove in a manner that is almost insulting.
For example, what happens when your panty was removed, did
you like it? The lawyer cannot do that in examining a child!
Question: How will you consider one as a child witness?
Section 4. Definitions.
(a) A "child witness" is any person who at the time of giving
testimony is below the age of 18 years. In child abuse cases, a
child includes one over 18 years but is found by the court as
unable to fully take care of himself or protect himself from
abuse, neglect, cruelty, exploitation, or discrimination because
of a physical or mental disability or condition.
Section 4 provides that a child over 18 can still be considered a
child witness if he is unable to take care of himself or protect
himself from abuse because of physical or mental disability or
condition. The reason for this is to avoid the evil sought to be
avoided as well as the objective sought to be promoted to
protect the child witness.
A child does not want to appear in court but his testimony is
needed to prosecute.
Question: What do you mean by child abuse?
We now have RA 7610 (Special Protection of Children Against
Abuse, Exploitation and Discrimination Act) and RA 9262 (Anti-
Violence Against Women and their Children Act of 2004 or VAWC
Law) which refers or applies to violence against children not only
to violence against women.
RA 7610. Section 3. Definition of Terms. xxx
(b) "Child abuse" means physical, psychological, or sexual
abuse, and criminal neglect as defined in Republic Act No.
7610 and other related laws.
Question: Now, we have a facilitator. What is a facilitator?
Section 4. Definitions. xxx
(c) "Facilitator" means a person appointed by the court to pose
questions to a child. xxx
The appointment of a facilitator provides for the possibility that
questions are not asked directly by the court to the child or by
the adverse counsel to the child or by the defense to the child
but thru the facilitator to make the question more
understandable.
Just take note of the definitions under this Rule.
Section 5. Guardian ad litem.
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(a) The court may appoint a guardian ad litem for a child who
is a victim of, accused of, or a witness to a crime to promote
the best interests of the child. In making the appointment, the
court shall consider the background of the guardian ad litem
and his familiarity with the judicial process, social service
programs, and child development, giving preference to the
parents of the child, if qualified. The guardian ad litem may be
a member of the Philippine Bar. A person who is a witness in
any proceeding involving the child cannot be appointed as a
guardian ad litem.
Therefore, ang guardian karon is not limited only to the person
of the child but there is appointment of a guardian ad litem to
see the welfare of the child. This is a special guardian.
In the case of Obedencio vs. Murillo, February 5, 2004, if a
judge fails to appoint a guardian ad litem to a child, it is a
ground for administrative liability of said judge.
The guardian ad litem may be a member of the Bar. Why not say
that a guardian ad litem may simply be a professional? Why
member of the Bar? Because of what is contained in Section 5
(c).
Section 5. Guardian ad litem. xxx
(c) The guardian ad litem shall be notified of all proceedings
but shall not participate in the trial. However, he may file
motions pursuant to Sections 9, 10, 25, 26, 27 and 31(c). If
the guardian ad litem is a lawyer, he may object during trial
that questions asked of the child are not appropriate to his
developmental level.
If he is a lawyer, he may object that questions asked to the child
is not appropriate for the childs development, he may file
motions to safeguard the welfare of the child. Mas mayo kung
lawyer.
So what are the motions that a guardian ad litem may file? Just
be familiar.
1. Motion for the appointment of an interpreter (Section 9)
2. 2. Motion for appointment of a support person (Section
10)
3. Order that the testimony of the child be taken in a room
outside the courtroom and be televised in the courtroom
by live link television (Section 25)
4. Motion that screens be placed in courtrooms in such a
manner that the witness cannot see the accused while
testifying (Section 26)
5. Motion for an order that a deposition be taken on the
testimony of the child and that it be recorded and
preserved on video (Section 27)
6. To issue additional orders to protect the privacy of the
child (Section 31(c)
Rules on Examination of Child Witness
Section 6. Competency. Every child is presumed qualified to
be a witness. However, the court shall conduct a competency
examination of a child, motuproprio or on motion of a party,
when it finds that substantial doubt exists regarding the ability
of the child to perceive, remember, communicate, distinguish
truth from falsehood, or appreciate the duty to tell the truth in
court.
Remember competency examination of a child. We will go there
later.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

For example, a case for declaration of nullity of marriage by not be disqualified and may serve as the interpreter of the
reason of PI. How will the testimony of a psychiatrist be child. The interpreter, however, who is also a witness, shall
presented in court? By proving the competency or qualifications testify ahead of the child.
of the psychiatrist.
(c) An interpreter shall take an oath or affirmation to make a
In the case of a child, the competency examination of a child is true and accurate interpretation.
only required when there is a that substantial doubt exists
regarding the ability of the child to perceive, remember, So earlier, we noticed that there is a person called facilitator.
communicate, distinguish truth from falsehood, or appreciate the Now we have interpreter. How do you distinguish the two?
duty to tell the truth in court.
DIFFERENCE INTERPRETER FACILITATOR
A party seeking for the competency examination must prove the When needed When the child does Needed when the
sufficiency of such. Why? Because of the presumption. The age not understand the child is unable to
of the child itself is not a sufficient basis for his incompetency. To language or is understand or
rebut the presumption of the competency lies on the party unable to respond to the
challenging it. communicate in questions asked by
such languages. the Judge.
Who conducts examination? ONLY THE JUDGE. But the parties
can submit questions to the judge and if the judge finds that the Therefore, the duty Therefore, the
questions are proper, then he may ask the questions. is to translate in the difficulty here is not
language you are the understand of the
Section 7. Oath or affirmation. Before testifying, a child trying to ask. language in which the
shall take an oath or affirmation to tell the truth. questions where
asked. The difficulty
The process of competency examination of a child is also called here is on the
VOIRE DIRE. This is the examination of prospective witnesses comprehension of the
under oath to determine their competency or suitability as child. Dili niya
witnesses. masabtan.
Qualification Purely linguistic. Not linguistic but
In the case of People vs. Miscala: Voire dire literally means to Knowledge of a special qualifications.
speak the truth and denotes American jurisprudence, preliminary particular language. It can either be
examination under oath of prospective jurors. because of
a. Relationship
In the US, ang VOIRE DIRE is to determine that a person is not (mother)
biased to sit as juror. [Michael Jordan story where a juror was b. Training (in the
disqualified because he admitted being a fan of Michael Jordan]. case of social
workers) or
People vs. Miscala c. Expertise (child
September 27, 1991 psychologists)
Duty To make a true and To pose questions to
From the FT: When the court subjects the witness to voir dire, accurate the child according to
the court reminds him or her about the consequences of the interpretation. the meaning intended
truth. While the court is satisfied that the influence of fear or by the counsel.
hope has been ruled out, then the confession of the witness Otherwise stated, to
can be deemed voluntary. In the case at bar, the requisites of translate a question
voir dire have been met. asked in the
Question: How is the examination of a child witness done? language the child
does not understand
Section 8. Examination of a child witness. The examination to a language the
of a child witness presented in a hearing or any proceeding child understands.
shall be done in open court. Unless the witness is incapacitated
to speak, or the question calls for a different mode of answer, For example (under the duty of the Facilitator), the question
the answers of the witness shall be given orally. posed is describe the penis of the accused. In all probability, the
The party who presents a child witness or the guardian ad child cannot understand the word penis! You now ask pikoy or
litem of such child witness may, however, move the court to whatever ba.
allow him to testify in the manner provided in this Rule.
Now, lets go to Support Persons.
GR: Examination of a child witness shall be done in open
court. Rules on Examination of Child Witness

Section 9. Interpreter for child. Section 11. Support persons. -

(a) When a child does not understand the English or Filipino
language or is unable to communicate in said languages due to
his developmental level, fear, shyness, disability, or other
similar reason, an interpreter whom the child can understand
and who understands the child may be appointed by the court,
motu proprio or upon motion, to interpret for the child.
(b) If a witness or member of the family of the child is the only
person who can serve as an interpreter for the child, he shall
(a) A child testifying at a judicial proceeding or making a
deposition shall have the right to be accompanied by one or
two persons of his own choosing to provide him emotional
support.
(1) Both support persons shall remain within the view
of the child during his testimony.
(2) One of the support persons may accompany the
child to the witness stand, provided the support
person does not completely obscure the child from
the view of the opposing party, judge, or hearing

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 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
officer.
(3) The court may allow the support person to hold
the hand of the child or take other appropriate steps
to provide emotional support to the child in the
course of the proceedings.
(4) The court shall instruct the support persons not to
prompt, sway, or influence the child during his
testimony.
(b) If the support person chosen by the child is also a witness,
the court may disapprove the choice if it is sufficiently
established that the attendance of the support person during
the testimony of the child would pose a substantial risk of
influencing or affecting the content of the testimony of the
child.
(c) If the support person who is also a witness is allowed by
the court, his testimony shall be presented ahead of the
testimony of the child.
These people will support you, give you confidence. In Section
11, the use of support persons is encouraged.
Why is this important? Why the need to make this provision for
children? Ordinary witnesses can bring people to cheer them on!
Whats the importance here? This is similar to the ordinary rules
on exclusion of witnesses. The court has the power to remove or
exclude people from the court room, diba? Upon motion, the
court can exclude witnesses (For example, in a case where an
STD is involved).
If the support person who is also a witness is allowed by
the court, his testimony shall be presented ahead of the
testimony of the child.
One of the supporters may accompany the child in the witness
stand provided, the support person will not obstruct the view.
The holding of the hand of the child by a support person may
also be allowed to provide emotional support to the child.
If the supporters chosen by the child is also a witness of the
court, the court may disprove the choice but only if it is
sufficiently established that the attendance of the supporters
during the testimony of the child will case substantial impressed
(?) of influencing or affecting the content of the testimony of the
child. That is then only time you can exclude a support person as
a witness.
If the support person is also a witness, then make the support
person testify ahead of the child. That is the general rule ha.
Section 16. Testimonial aids. The court shall permit a child
to use dolls, anatomically-correct dolls, puppets, drawings,
mannequins, or any other appropriate demonstrative device to
assist him in his testimony.
So this is a direct reference to demonstrative evidence.
Demonstrative evidence is actually object evidence but it is not
the object that is the evidence but the inference drawn.
This provides the opportunity to ask a child during the trial. You
present a puppet or doll and ask the child, where were you
touch by the accused?
Section 17. Emotional security item. While testifying, a child
shall be allowed to have an item of his own choosing such as a
blanket, toy, or doll.
Children has emotional security item. Usually, a toy
Section 18. Approaching the witness. The court may
prohibit a counsel from approaching a child if it appears that
the child is fearful of or intimidated by the counsel.
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Ad Majorem Dei Gloriam
In Genil vs. Judge Rivera, January 23, 2006, whats the
extent of the power of the court to exclude the public from trial?
Including the ability of the court to stop people from approaching
the child.
Noteworthy is that the Rule on Examination of Child Witness
does not permit a defense counsel to even approach a child who
is testifying if it appears that the child is fearful of or intimidated
by the counsel.
Section 19. Mode of questioning. The court shall exercise
control over the questioning of children so as to:
(1) facilitate the ascertainment of the truth,
(2) ensure that questions are stated in a form appropriate to
the developmental level of the child,
(3) protect children from harassment or undue
embarrassment, and
(4) avoid waste of time.
The court may allow the child witness to testify in a narrative
form.
In usual evidentiary procedure, you cannot be allowed to testify
in a narrative form.
Section 20. Leading questions. The court may allow leading
questions in all stages of examination of a child if the same will
further the interests of justice.
A leading question is one which already suggests to the witness
what the questioner wants to hear. So, its the person asking the
questions supplying the facts required.
Again GR, leading questions subject to exception. Leading
question like it can be answered by yes or no. As part of the
exception in the ordinary rules of evidence, leading questions
could be ask in the cross-examination, ok lang na xa kasi you are
just testing the credibility and that is how usually debating skills
will help you. But with respect to children pwedeang leading
questions sa direct, re-direct, cross, or re-cross. In ordinary
procedure it is only allowed during cross and re-cross.
The easiest to ask whether or not a signature which appears on
a document is to ask the witness, is that your signature? But the
law does not require that. The proper way of asking is that,
there is a signature on page 3, please identify said signature.
Dili man ka pwede muingon na whose signature is that? In a
court of law, naa pay chichiburichi.
In a normal case.you are not allowed to answer in a narrative
form. For example, on August 15, 2015, what happened? You
must object. Because that question is too general!
*Chief Justice Corona story wherein he testified in a narrative
form which was allowed. He is a child witness daw. lol*
Remember testimony in a narrative form is only allowed in
a testimony by a child witness.
The court may allow leading questions IN ALL STAGES OF
EXAMINATION OF A CHILD.
Reason why child allowed to testify in a narrative form: Because
it is easier to get intelligible answers from the child when he
testifies in a narrative form.
Rules on Examination of Child Witness
Section 21. Objections to questions. Objections to
questions should be couched in a manner so as not to mislead,
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
confuse, frighten, or intimidate the child.
Naay uban lawyer na kusog kaayog tingog mu-object! So with
respect to a child witness, dont do that!
What would be inadmissible evidence in any criminal proceeding
involving a child witness:
Section 30. Sexual abuse shield rule.
(a) Inadmissible evidence. The following evidence is not
admissible in any criminal proceeding involving alleged child
sexual abuse:
(1) Evidence offered to prove that the alleged victim
engaged in other sexual behavior; and x x x
So you rape somebody ad your defense is she was no longer a
virgin.
(2) Evidence offered to prove the sexual
predisposition of the alleged victim. x x x
When you say predisposition, the victim simply had an interest or
have the inclination to engage in sexual behavior.
(b) Exception. Evidence of specific instances of sexual
behavior by the alleged victim to prove that a person other
than the accused was the source of semen, injury, or other
physical evidence shall be admissible.
A party intending to offer such evidence must:
(1) File a written motion at least 15 days before trial,
specifically describing the evidence and stating the
purpose for which it is offered, unless the court, for
good cause, requires a different time for filing or
permits filing during trial; and
(2) Serve the motion on all parties and the guardian
ad litem at least 3 days before the hearing of the
motion.
Before admitting such evidence, the court must conduct a
hearing in chambers and afford the child, his guardian ad
litem, the parties, and their counsel a right to attend and be
heard. The motion and the record of the hearing must be
sealed and remain under seal and protected by a protective
order set forth in section 31(b). The child shall not be required
to testify at the hearing in chambers except with his consent.
*Laude case story* cum laude? Aw. Huhuhuh
MARITAL
DISQUALIFICATION RULE
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
This is the Marital DQ Rule. Some would call it Espousal
Confidentiality.
What does this forbid? It forbids the husband or the wife from
testifying for or against the other without his or her consent.
Thats the rule. Except of course those cases provided. The
prohibition extends not only to the testimony adverse to the
spouse but also to a testimony in favor to a spouse. It also
extends not only to civil cases but also to criminal cases.
*Interview kay Ate Danielle. Hahaha*
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Ad Majorem Dei Gloriam
As noted by Wigmore, the marital disqualification rule consists of
two parts:
(1) The incapacity of one spouse to testify for the
other, a disqualification designed to obviate
perjury; and
(2) The privilege of one spouse not to
testify against the other, a right designated to
prevent domestic disunion and unhappiness (U.S.
vs. Concepcion, 31 Phil. 182,187; 2 Wigmore on
Evidence 731).
The basis of the rule is not to commit perjury. The basis is in
order to preserve the communitys intent to preserve the
marriage relations and promote domestic peace.
The rule precludes the spouses from becoming the
others condemnation. When you are already married, you are
considered as unitas personae. Isa nalang mo.
People vs. Francisco
July 16, 1947
The privilege is grounded on the following reasons: First,
identity of interest; second, the consequent danger of perjury;
third, the policy of the law which deems it necessary to guard
the security and confidences of private life even at the risk of
an occasional failure of justice, and which rejects such evidence
because its admission would lead to domestic disunion and
unhappiness; and fourth, because where a want of domestic
tranquility exists, there is danger of punishing one spouse
through the hostile testimony of the other.
Mas sakit na ang imong asawa ang mu-witness sa imo. If you
want to read one case, you have to read the case of Alvarez vs.
Ramirez. In this case, the husband set fire to the house of his
sister in law. Is that covered by the exception? Remember it has
to be direct relatives not collateral and sister is collateral. Can the
wife testify?
Alvarez vs. Ramirez
October 14, 2005
From the FT: The act of private respondent in setting fire to
the house of his sister-in-law Susan Ramirez, knowing fully
well that his wife was there, and in fact with the alleged intent
of injuring the latter, is an act totally alien to the harmony and
confidences of marital relation which the disqualification
primarily seeks to protect. The criminal act complained of had
the effect of directly and vitally impairing the conjugal
relation. It underscored the fact that the marital and domestic
relations between her and the accused-husband have become
so strained that there is no more harmony, peace or
tranquillity to be preserved.
The Supreme Court has held that in such a case, identity is
non-existent. In such a situation, the security and confidences
of private life which the law aims to protect are nothing but
ideals which through their absence, merely leave a void in the
unhappy home. (People v. Castaeda, 271 SCRA 504). Thus,
there is no longer any reason to apply the Marital
Disqualification Rule.
It should be stressed that as shown by the records, prior to the
commission of the offense, the relationship between petitioner
and his wife was already strained. In fact, they were
separated de facto almost six months before the incident.
Indeed, the evidence and facts presented reveal that the
preservation of the marriage between petitioner and Esperanza
is no longer an interest the State aims to protect.
At this point, it bears emphasis that the State, being interested
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
in laying the truth before the courts so that the guilty may be
punished and the innocent exonerated, must have the right to
offer the direct testimony of Esperanza, even against the
objection of the accused, because (as stated by this Court
in Francisco, it was the latter himself who gave rise to its
necessity.
Requisites for the applicability of Section 22:
1. The spouses must be legally married for the spouse to
invoke the benefit of the rule. Thus, the rule does not cover
illicit cohabitation. The rule applies whether a witness-
spouse is a party to a case or not but the other spouse must
be a party to the case. So it doesnt matter if they are not
sued in their capacity as husband and wife as long as one
spouse is a party to a case.
2. The prohibited testimony is one that is given during
the existence of the marriage.
Question: Suppose what is being ask of the wife is not to testify
but to PRODUCE DOCUMENTS against the husband, is this
unallowed? Like if the husband is charged with estafa and the
contract is with the wife. Does the rule therefore covers the
compulsion to produce documents that can be used to
incriminate the other spouse?
Answer: I havent seen anything in the Philippine jurisprudence
but in American jurisprudence it is very clear that the marital
disqualification rule covers not only utterances of the witnesses
but also the production of documents.
Another question: Is it enough that you present the documents?
Answer: A subpoena duces tecum necessarily includes a
subpoena ad testificandum. So marital privilege rule also applies
in the production of documents.
Exceptions to the Marital DQ Rule
1. Consent. Rule does not apply if the other spouse consents.
Kung gusto jud sya, pwede!
2. Civil case by one against the other
3. Criminal case for a crime committed by one against
the other or the latters direct descendants or
ascendants. Kung mu-file ka ug adultery. Then, there is
this expansion with regard to the latters direct descendants
or ascendants.
PEOPLE V. NATIVIDAD
70 Phil 315
A wife cannot testify against the husband without his consent
even if the husband is accused of killing the wifes own child.
This was the rule before. Presently, the SC realized that it led to
injustice
ORDONO V. DAQUIGAN
2 SCRA 270
The SC allowed the wife to testify against her husband for
raping her daughter.
Now, under Section 22, pwede na. That is already an exception.
Question: Should the crime be of such nature destructive of the
marital union? Like murder of the child?
[Page 45 of 107]
Ad Majorem Dei Gloriam
Answer: In the case of People vs. Castaneda. The act
complained of as constituting the crime of Falsification of Public
Document is the forgery by the accused of his wife's signature in
a deed of sale, thereby making it appear therein that said wife
consented to the sale of a house and lot belonging to their
conjugal partnership when in fact and in truth she did not.
PEOPLE V. CASTANEDA
February 27, 1979
From the FT: It must be noted that had the sale of the said
house and lot, and the signing of the wife's name by her
husband in the deed of sale, been made with the consent of
the wife, no crime could have been charged against said
husband Clearly, therefore, it is the husband's breach of his
wife's confidence which gave rise to the offense charged. And
it is this same breach of trust which prompted the wife to
make the necessary complaint with the Office of the Provincial
Fiscal which, accordingly, filed the aforesaid criminal case with
the Court of First Instance of Pampanga. To rule, therefore,
that such criminal case is not one for a crime committed by
one spouse against the other is to advance a conclusion which
completely disregards the factual antecedents of the instant
case.
So, even in a falsification case, the rule still applies.
Also, the case of Alvarez vs. Ramirez. Remember that the
exception is supposed to be committed only against the latters
direct descendants or ascendants. What do you mean by direct
descendants or ascendants? Kanang pasaka ba. Mama, Papa,
Lolo, Lola. In the case of Alvarez, arson case. Wala na ang
marital harmony sought to be protected by the State. The
husband set fire the house of the sister-in-law knowing fully well
that the wife is inside the house!
Marital Disqualification Rule and Marital Privilege Rule. Please
concentrate on these.
DQ BY REASON OF DEATH
OR INSANITY OF ADVERSE PARTY
Section 23. 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.
This is the DEAD MANS STATUTE or sometimes called the
SURVIVORS DISQUALIFICATION RULE.
This rule applies ONLY to a civil case or a special proceeding and
NOT in a criminal case because in all probability, if it is the
adverse party or the accused that dies, in whom the claim is
demandable, of course, it carries with it the extinction of criminal
liability. In the same manner that if a person is insane, he cannot
also be fit to undergo criminal proceedings. In fact, there are
provisions that would say that it will be suspend.
The Dead Mans Statute provides that if one party to the
alleged transaction is precluded from testifying by death,
insanity, or other mental disabilities, the surviving party is not
entitled to the undue advantage of giving his own uncontradicted
and unexplained account of the transaction. But before this rule
can be successfully invoked to bar the introduction of testimonial
evidence, it is necessary that:
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
1. The witness is a party or assignor of a party to a
case or persons in whose behalf a case is
prosecuted.
2. The action is against an executor or administrator
or other representative of a deceased person or a
person of unsound mind;
3. The subject-matter of the action is a claim or
demand against the estate of such deceased
person or against person of unsound mind;
4. His testimony refers to any matter of fact which
occurred before the death of such deceased
person or before such person became of unsound
mind.
The problem is section 23 is how it is worded. We need to
properly understand this one.
Example: A borrowed from B and C (siblings) at the same time in
the office of B and C. In other words, when A borrowed from B,
C was present and when A borrowed from C, B was present. A
died.
Can B testify for C? No. Death has closed the lips of the debtor
and so also should the lips of the creditor. GR is, B cannot testify
na nay utang si A. Also, C cannot testify na nay utang si A.
What if the evidence of B is the testimony of C and the evidence
of C is the testimony of B, is that allowed? Yes. When death has
already closed the lips of a deceased person who may or may not
be obligated against the survivor or the person who survived
(thats why you call it a survivorship disqualification rule), you
cannot testify as to any matter of fact occurring before or prior
to the death.
Therefore, in this case, Mr. C is incompetent to testify as to the
transaction he had with Mr. D.
August 28, 2015 (ELG)
Continue from last discussion:
When we talk about Dead Mans Statute, kinsa ba ang
disqualified? It will always be the survivor or the person who
claims that he was the contractual (?) with the person deceased
or the person who became of unsound mind; kadto dyud ng buhi
pa, the remaining party to a supposed contract from which the
survivor bases his claim.
Therefore if it NOT a claim of a survivor against the estate of the
deceased person the survivorship disqualification rule does not
apply. It actually forestalls the possibility of parole evidence to be
introduced to support a claim of such a deceased person who
can no longer refute the statement made. But we need to
remember that if the contract supposedly is the contract which is
the source of the claim by the survivor against the deceased
person is proven by any other evidence other than the mere
testimony if the survivor pwede ka mu-claim.
Therefore what is covered are unwitnessed or undocumented
claims. If there is some documents to prove for example a claim
of the survivor against the estate of the deceased person, of
course that evidence is allowed under the rules of court, the
rules on special proceedings to claim.
The logical question to ask is to whom you file the claim?. The
initial point of inquiry here would be to determine the parties
involved. In order to determine whether or not the survivorship
disqualification rule will apply to a particular situation, you should
know who the plaintiff is. The plaintiff must be the survivor or
somebody in contractual privity with a survivor after the death of
the deceased person or after the person became of unsound
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Ad Majorem Dei Gloriam
mind. Pwede man pud na ang survivor will cede or assign his
rights to another person.
What would be the basis of the claim of the transferee of the
survivor? Still the same testimony, the oral claim of the survivor
so he still covered.
Next, the nature of the case. What cases are covered here? The
case here clearly is specified to be a claim against the estate of a
deceased person or a person of unsound mind and therefore the
rule will not apply if the action involved is not against the estate
or not upon a claim against the estate. The survivorship
disqualification rule or the dead mans statute will therefore not
apply if it is the other way around, meaning it is the estate that is
claiming against the survivor and we will learn later on that when
that is the case, if it is the estate is claiming against the survivor,
then the survivor would actually be allowed to testify already on
certain oral claims because of the estate having open the doors
already for him to present his claim.
And finally the person prohibited to testify and the subject matter
of his testimony under the rules refer to parties or assignors of
parties to a case or persons in whose behalf a case is
prosecuted. Remember that the right to object to testimony
being improper under the dead mans statute belongs solely to
the estate or the administrator or executor or the representative
of the deceased or the legally disabled person.
Exceptions to the Dead Mans Statute
Now I need you to take note of the exceptions. The rule is quite
harsh if you, if you would observe its very harsh. What if really
you have a claim against that deceased person, what of really
you have right to collect certain sums of money from such
person but unfortunately for you he died so you cannot get
anymore? So the rule is harsh but there are a lot of exceptions.
1. When the plaintiff is the executor or administrator or legal
representative of the deceased or the person of unsound
mind, the defendant or defendants are free to testify against
the plaintiff.
The exception also covers counterclaims in addition to
original claims. Sila ang nag file ug case sa imoha and
therefore you are allowed to file a counterclaim. Would your
counterclaim be barred simply because patay na kadtong tao
na dapat imohang file-an ug kaso, so it would be unfair if
that is the case.
2. The plaintiff is a corporation the stockholders or officers of a
corporations are not disqualified.
3. Ordinary witnesses who are not plaintiff or assignor of the
plaintiff or person on whose behalf the case is prosecuted
may testify.The dead mans statute does not operate to
close the mouth of a witness as to any matter of fact coming
to his knowledge in any other way than through personal
dealings with the deceased person or communication made
by the deceased to the witness.
And for that we already discussed the case of Samson vs.
CA, April 22, 2003 where the transaction to creditors as to
one debtor and they are witnesses of one another. So one
can testify as to the transaction of the deceased with the
other and the other can testify as to the transaction of the
deceased person with the other one. So kung nay witnesses
sa transaction and therefore pwede gihapon ka mu-testify
notwithstanding the fact that in this case they were both
plaintiffs, they were both survivors in a sense. So since non-
party witnesses can testify to events or conversationthey
observed, the net result therefore of the rule is that only
unwitnessed conversation or events with the decedent are
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
off-limits, thats the only time na dili pwede. So remember
the case of Samson because it really shows/illustrates to you
how to apply the exceptions to section 3.
4. When there is an imputation of fraud against the deceased,
the plaintiff is not barred from testifying to such fraud.
Although I dont know how it relates to the rule in civil
procedure which I assume that you all know, that fraud is
something that needs to be testified of, unsa ba ng overt
acts that would spell out fraud, diba ang fraud according to
the SC or the intent to defraud at least is actually a condition
of the mind diba and therefore it has to be manifested by
overt acts.
5. When the defendant or defendants through the heirs of the
deceased are sued in their personal and individual capacities
the survivor may testify against them.
You just have to just relate this to the fact kang kinsa ba gi-
file ang claim. If not filed against the deceased but it is the
heirs of the deceased sued in their personal and individual
capacities and therefore the claim no longer relates to a
claim between the survivor against the deceased person.
6. When the survivors testimony refers to a negative fact. For
example, the existence of a co-partnership between the
plaintiff and the deceased person, pwede ba na sya, can the
survivor testify to the non-existence of it, it being a negative
fact. So, that is from the case of Mendezona vs. Vda de
Guisha, 54 Phil 557.
7. When the survivors testimony is favorable to the deceased
rather than establishing a claim against the estate of the
deceased person, it actually establishes the opposite.
It establishes that the estate now has a claim against
another person or against the survivor by his own testimony,
so that would be allowed.
8. The adverse party is competent to testify to transactions or
communications with the deceased or the incompetent
person which were made with an agent of such person in
cases where such agent is still alive and competent to
testify.
Why is it an exception? If you really look at it, the rule
prohibits unwitnessed claims but here because there is an
agent it appears that it is not unwitnessed at all, there are at
least two persons to the transaction, the principal who is
already deceased and the agent as well, so the agent can
actually be called to refute the testimony. But the testimony
of the adverse party must be confined to those transactions
or communications which were had with the agent not to
transactions sans the agent. Thats Goni vs. CA, 144 SCRA
222.
9. The deceased or disabled party opens the door by
introducing testimony or deposition concerning conversation
and or events in the presence of the deceased person and
that under the American law is known as the Opening
Doors Exception or the Waiver Exception.
Ikaw bitaw nag-una-una e di pwede kabalosan, its as simple
as that, fair play nalang ang ginapromote ana sa exception.
If you are the representative or the executor or
administrator of the estate of the deceased person or a
person of unsound mind, how is waiver made? Because
again as any other exclusionary ** and the only person who
can waive it is the person for whom the rule was
established. So first would be if the defendant meaning the
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Ad Majorem Dei Gloriam
estate or the representative of the deceased person does
not object to the plaintiffs testimony on prohibited matters.
When you become lawyers therefore if you feel that it falls
within the prohibition that is provided under the dead mans
statute you have to be very careful, thats why you have to
memorize the rule however difficult the wording of the
words maybe or let us suppose the plaintiff did not testify
during his direct examination especially now that it is by
virtue of judicial affidavit, but you as counsel for the
defendant estate cross-examined the plaintiff as to the
prohibited claims or prohibited matters, ikaw pa hinuon
karon ang ni-open sa doors, therefore you are deemed to
have waived it during cross-examination.
So what will you do if the testimony therefore is prohibited,
let us suppose it is inadmissible, should you cross-examine,
sulayan nimo ug du-otang witness for him to admit further
that it is actually prohibited? No, just state your objection,
do not cross-examine, because the act of cross-examination
is considered a waiver in certain cases.
Also, if you call witnesses to testify on prohibited matters, do
not introduce evidence yourself regarding prohibited
matters.
Another would be the case again Goni vs. CA, when the
plaintiff deposition is taken by the representative of the
estate or when counsel for the representative cross-
examined the plaintiff as to matters occurring during the
death of the deceased, this is just a reinforcement of the
court for the manner of **, or if you offer rebuttal evidence
to refute prohibited testimony, if it is prohibited do not
rebut, do not cross examine because if you do that is a
waiver. You have to trust the judge to determine it to be
really prohibited. All you can do as counsel would be to
object, failure to object that is tantamount to waiver. So,
objections that is all you can do.
10. Finally, as a final exception to the survivorship
disqualification rule although its not really an exception. If
the testimony while establishing a claim by the plaintiff
survivor against the deceased person is also founded upon a
document because if the claim of the plaintiff and the
testimony of this witness for example is based on a contract
or a document not solely on non-written dealings and
communications with the deceased the testimony is
admissible under the so called foundation testimony
exception. All you have to remember there is now a
document which is the foundation of the claim other than
the oral claim of the plaintiff.
So those are the exceptions to the rule, there are a lot of
exceptions.
11. Another one will be if according to American jurisprudence,
if the testimony to be introduced relates to any fact
regarding the heirship of the decedent, meaning its no
longer about the claim of the deceased persons or his estate
but rather you are trying to prove lets say paternity/filiation
according to American jurisprudence that is an exception to
the survivorship disqualification rule. In the Philippines it
cannot be so, why? Because you are not actually
establishing a financial claim against the estate. Remember
you can only hold an estate liable financially kung nay utang
ang deceased sa imoha you can prosecute it as against the
estate. The estate cannot be made to take cognizance that
you are an heir. Diba if you want to establish your filiation to
a deceased person especially if it is illegitimate filiation you
have to do it during the lifetime of the deceased, you cannot
do that anymore here. I believe that exception only applies
in American jurisprudence.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
A recent case that I want you to read is the case of Garcia
vs. Caparas, G.R. 180843, April 17, 2003, as of this
morning this is the latest case relating to the dead mans
statute. Its about a promise by the deceased person to a
certain group of people instituting then as tenants of the
land pwede ba nah sya, can you use that, can you claim that
against the estate later on, to compel the estate to
recognize your tenancy over the land on the conversation
made by the supposed tenant with the deceased owner of
the property? According to the SC the alleged admission of
the deceased that he entered into a sharing of the leasehold
rights with the petitioners cannot be used as evidence
against the respondent heirs because as the latter would be
unable to contradict or disprove the same, the dead mans
statute applies. Read the case.
DQ BY REASON OF PRIVILEGED COMMUNICATION/
PRIVILEGED COMMUNICATIONS
How many classes are covered here? There are five classes of
relationships that are covered by the privileged communication
rule:
Marital Privilege Communication Rule
Section 24. (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; x x x
Now, we have already discussed the so called Marital
Disqualification Rule, related bani sila? The answer is No, now
take note that under section 24 (a) this marital privilege
communication rule, there are certain person who cannot testify
as to matters learned in confidence, remember that spouses are
one of this classes of persons, remember that similar also to the
marital disqualification rule, the prohibition or the privilege
actually applies only to legitimate spouses.
It is not applied to common law relationships because if that
were the case the position of those in sin would be equal to the
status those who are living under a legally valid constituted
marriage.
The husband or the wife without any distinction cannot be
examined without the consent of the other as to any
communication received in received in confidence by one from
the other during the marriage. And so initially we have to make
this comment contrasted with the marital disqualification rule
that it is a rule that would allow a spouse entirely not to take the
witness stand (confusing ka sir ) you are disqualified to testify
for or against the spouse subject to certain exceptions. But the
way section 24(a) is worded tells you that this privilege
communication rule is not a way for you to escape the witness
stand if you are a spouse, you cannot be compelled lang to
reveal privilege communication. Can you ask something else? Yes
you can for as long as it is not covered by the privilege pwede.
The next question that you need to ask would be when it would
be covered by the privilege?
You need to remember the requisites for the application of the
rule.
i. There must be a valid marriage between the
husband and the wife.
[Page 48 of 107]
Ad Majorem Dei Gloriam
Now, what is the status of a marriage that is undergoing
a petition for declaration on the ground of psychological
incapacity, unsa man na sya? It is still a valid marriage
until there such a declaration that it no longer exist.
Therefore dili nimo pwede i-compel pa karon without
the consent of the affected spouse.
ii. There is a communication made in confidence
by one to the other.
The husband admits to his wife I killed Jose Rizal
although you might be crazy if you say that but it still
one that is made in confidence. Remember here that
while the GR is all communication in the absence of
contrary evidence is considered to be privilege or
presumed confidential. If the communication was not
intended to be confidential that will not be covered by
the prohibition.
When will the presumption that the communication is
intended to be confidential, kanus-a man nimo pwede i-
presume? For example I told my wife about something
and somebody heard it, will it lose its confidential
nature? No, because it was never intended to be
confidential. But if I talked to my wife ** and I tell her
something of a privilege nature and then you all hear it
because our voices were quite loud, that is a
communication that will be given the benefit of the
presumption of confidential. There has to be that
element of confidentiality.
iii. The confidential communication must have
been made during the marriage.
A communication was made during the marriage thats
the time element here although if you look act section
24 (a) here during or after the marriage that is the time
element of the prohibition. When would the information
be deemed privilege? During and after the marriage.
When should the privilege communication have been
relayed to one of the spouses? During the marriage. Do
not be confused.
So when the requisites concurs the spouse against whom the
testimony is offered may validly object to the testimony of the
other on the confidential matters.
By way of exception, take note, that the rule does not apply if it
is a testimony offered by one in a civil case by one against the
other meaning sila ang nag kasuhanay (annulment of marriage,
RA 9262, and all other species of cases filed by one spouse
against another) and second in a criminal case for a crime
committed by one against the other or the latters direct
ascendants or descendants. This definitely sounds familiar
because it is the same exception in the Marital
Disqualification Rule.
What happens I tell something of a confidential nature to my
wife and the children were listening, can my wife now be
examined on the ground that the children were listening and
therefore the communication is not intended to be confidential
and therefore not privilege?
According to Dean Inigo, it depends on the age of the children, it
will still be considered to be confidential if the children listening
to the conversation are still minor but if they are already of age,
adults already that will not be considered privilege
communication. Again there is that presumption of
confidentiality.
Now, every communication between spouses are confidential,
communications made in the presence of third parties are not
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

confidential unless the third person may be considered as the How would you distinguish between the Marital Disqualification
agent of the spouses. When you say agent, what do you mean? Rule with the Marital Privilege Communication rule because they
A person who may be deemed by the spouses to be working with are closely related?
confidence. If I for example relay a confidential information to
my wife together lets say with a common friend or a relative the Marital Disqualification Marital Privilege
communication does not lose it privilege nature on the ground Rule Communication Rule
that such person may be considered as an agent. Not agency in Sec. 22, Rule 130 Sec. 24 (a), Rule 130
the sense nga nay SPA dili kinahang lanug ingon ana.
If an adverse testimony Communications that are
Communications overheard by third person remain confidential for example is offered intended to be confidential
between the spouses but the third person who overheard may be by one against the other or if the facts of the problem
called upon to testify. as a result of a remarks would reveal that element of
not made in confidence confidentiality
I do not agree with that because it gives a premium to endanger The communication
the right to privacy. Now what if you keep confidential although confidential is
information in your locker and then without a search warrant the not made during the
police open your locker and got the confidential information. Will marriage, it was made
you be able to use your right to privacy to cause the non- before or after marriage
admissibility of the confidential information under the
constitution, diba supposed to be that is fruit of the poisonous This is a broader form of
tree, and it cannot be used against you because your right to disqualification
privacy was violated. But my question is can the same Acts merely observed by the Applies only to testimonies of
expectation to privacy be employed or used against private spouse may fall here a confidential nature made
individuals. Remember that the bill of rights under article 3 of the by one spouse to the other
1987 constitutions is a proscription against state action not during the marriage and
against private individuals, unsa man imong mabuhat, you can does not include acts merely
sue for damages kana bitaw meddling with the private life of observed by the spouse
another person that is a ground for you to sue for damages but Can no longer be invoked spouse affected by the
can you stop ang pagdivulge sa supposedly confidential once the marriage is adverse testimony may
information that is still a big question mark. The right to privacy dissolved and may be object to the testimony even
is one that can be reasonably expected against the state but not asserted only during after the dissolution of the
against private individual. marriage (main distinction, marriage, diba during or
lifespan of the rule) after the marriage
Communications coming into the hands of third person whether Requires that the spouse for Does not require that. In
legally or illegally remain confidential as between the spouses but or against whom the other words the spouses
again the third person may be called upon to testify. testimony is offered is a need not be parties to the
party to the action case they can be ordinary
Remember that Marital Privilege Communication Rule is a witnesses in another case
privilege between the spouses only claimable by and against the and still the wife cannot
spouses. Dili nimo pwede i-apply na to third persons. testify as to privilege matters
against the husband
If the third persons acquire the knowledge of the The prohibition here is a The prohibition is to the
communications by collusion involuntary disclosure on the part of testimony for or against the examination of the spouse as
either of the spouses, what happens? There is created the effect other spouse to confidential matters
of agency. My husband told me that he killed Jose Rizal and so This rule prevents the This rule can only be invoked
ayaw lang ug saba huh, if you want to tell it to anybody else ok spouse to testify, or to take when the spouse is already
lang ayaw lang ingna na gikan sa akoa, thats what this principle the witness stand asked during the
means, this collusion, divulge it but dont tell that I am the examination whether direct,
source of the information. indirect or cross, to divulge
confidential information
Can the privilege be claimable still in that situation, claimable related to him/her against
against the spouse to whom the confidential information was his/her spouse
disclosed? Yes.
Then nag-quiz @.@ (QUESTIONS)
What about the person? Claimable still because there is collusion
and that collusion produces the effect of agency and therefore 1. In a pending case, A died, what will happen to parole evidence that the
plaintiff B wants to present relating to a debt of a subject of the case.
kadtong tao na the spouse was in collusion with is deemed to be Pending and kaso it was already file against A, B is the survivor problem
the agent so claimable gihapon against him/her ang privilege is si B angiyahang evidence is purely testimonial walasyay documents
communication rule. pero namatay na karon si A kadtong debtor. Can there still be an
application of the dead mans statute? (dead mans statute is applicable
the law does not distinguish, it did not say na applicable lang siya if the
Communications intended for transmission to third person are death occurs prior to the filing of the case.)
not confidential.
2. Should the marital privilege communication rule be extended to parties
living as husband and wife but with no impediment to marry each other
US vs. Antipolo 37, Phil 726. Can it be waived? Yes, every but have not yet married? (wala gi-answer ni sir)
evidentiary advantage is waivable maskin unsa pa na by your
failure to object. Attorney-Client Privilege
The privilege is claimable by the spouse not called as a witness, Being a lawyer subject you to certain rules specifically what you
so that it is waivable only by him or her or by any act of such can and what you cannot do to information divulge to you by
spouse which may be considered as an express or implied your client, part of this is sec. 24(b).
consent to the disclosure of a communication.
Sec. 24 (b) An attorney cannot, without the consent of his

[Page 49 of 107]
Ad Majorem Dei Gloriam
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
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; x x x
Why do you think there should be some rules relating to privilege
communication between lawyers? [chika2x]
Even if your client is guilty as a lawyer you should also try to find
ways to mitigate liability, try to find either ordinary or privilege
mitigating circumstances to make the clients liability be lesser.
How is that related therefore to our topic right now, attorney-
client privilege, the fact that a lawyer is not in a position to
choose only innocent clients? Open communication between
clients is always encourage and the lawyer cannot simply ask
filtering question like the question that Im going to ask you
right now Mr. Client you may or you may not answer the
question pwede ba nah? Can you handle properly your clients
cause properly if you are hearing the information that you might
**. Probably somebody would compel you to divulge that
information in the future, were it not for the attorney-client
privilege. Open dapat ang communication.
How would you feel if there is no attorney-client privilege, you go
to your lawyer and tell him attorney I cheated with my wife with
a six foot guy it would be an embarrassing information so, I will
not tell my lawyer nalang, you would not be able to advise him
properly because theres a chance that my lawyer might tell it to
somebody else. That is what is being safeguarded by the
attorney-client privilege.
Sept. 2, 2015 (DM)
Last time we are talking about attorney-client privilege. Take
note of the following requisites:
1. There must be a communication made by the client or
an advice given by the attorney to him
2. The advice must have been given in confidence
3. The communication or advice must have been given
either in the course of professional employment or with
a view to professional employment
In other words, if a client goes to an attorney there is an
interview that will happen. The client will tell his problem and the
lawyer will give an advice. [Talks about consultation fees
doctrine of immediate benefit of a client upon going to the
lawyer seeking advice even without fees. Gawa-gawa lang to].
The communication is privilege even if only with a view to
professional employment. The assistants or employees of the
lawyer in the office are also included in the privilege
communication.
Would the privilege include that a court can ask for the identity
of his client?
GR: The identity of the client is not privilege.
Exceptions: The case of Regala vs SB, Sept 20, 1996, GR
105938 [read this case, VERY IMPT].
In the case, the SC said as a general rule the lawyer cannot
refuse to tell the court who his client is because the court has the
right to know the person claiming that privilege is in the flesh.
These exceptions are based on jurisprudence:
[Page 50 of 107]
Ad Majorem Dei Gloriam
1. When a strong probability exists that naming the
client would implicate the person in the very same
activity for which is sought the lawyers advice.
Ex. A, B, C are implicated for plunder. It is very public that
A and B are the clients of X. nobody knows who the lawyer
of C is. Assume that X is ask is C your client? Privilege or
not? Would that implicate C in the very same activity for
which he sought the lawyers advice. Theres a big
possibility.
2. When disclosure would open the client to liability. It
means liability in general.
3. When the name would furnished the only link that
would form the chain of testimony necessary to
convict. That is the LAST LINK DOCTRINE.
This doctrine identity of a client which is non-privilege
information becomes a privilege information if the regulation
of the identity of the client would necessarily reveal the
privilege communication.
Note: Conversations made to your lawyer friend or if you are in
business with a lawyer partner the communications or
information made are not privilege communication.
Note also: If the communication is for the client to evade the law
or to commit a crime that is not privilege communication.
The attorney client privilege communication applies to both oral
and written communications. It applies also to actual pending
cases. Right now, text messages between the client and lawyer is
covered under the rule.
What happens if your lawyer is a co-conspirator in a criminal
case? Can the lawyer be compelled to testify? Yes, that is not
covered as ruled in the case of People vs SB, July 16, 1997.
The crime here was falsification where the lawyer was also a co-
conspirator. If there is already the element of illegality, the
privilege cannot be applied.
If the lawyer is sued for disbarment, the lawyer can reveal the
information. An attorney may circumvent the privilege if
revealing the information would relieve him or her of accusations
of wrong doing.
Note: You have to remember that the privilege communication is
owned by the client even if the he is already dead.
But there are certain cases that the privilege is already
extinguished upon the death of the client, example according to
Wigmore: if there is an attack on the validity of the will,
communications made to the attorney upon the drawing of the
will while confidential during the lifetime of the testator are not
intended to require secrecy after.
Note: It is the client who owns the privilege. The lawyer
cannot waive it for him.
GR: The communications made by the client and lawyer are
confidential.
Another case is Ramon Saura, Jr. vs. Atty. Lalaine Lilibeth
Agdeppa, Feb. 17, 2000. In the case, what if your opponents
request for information regarding an accounting for an estate?
That is not privilege but rather that is a request for an
information allowed by the law.
Physician-Patient Privilege
Sec. 24 (c) A person authorized to practice medicine,
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
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;
It applies only to a civil case. Applies only to persons authorized
to practice medicine, surgery or obstetrics. Also to the secretary
of the doctor who is the agent of the doctor.
The reason for the privilege so that the patient will not be
discourage from divulging necessary information to his physician
to enable the latter to diagnose him properly. A patient is more
encourage to divulge such information. It protects the interests
of the patient. The patient owns the privilege.
Five requisites:
1. The action in which the advice or treatment given
is to be used in a civil case.
2. The relation of the physician-patient existed
between the person claiming the privilege or his
legal representative and the physician. If the
patient is already dead, it is his legal
representative who can claim the privilege.
3. The advice, treatment or any information given
was acquired by the physician while attending
the patient.
4. The information was necessary for the
performance of his profession and the disclosure
of the information would tend to blacken the
reputation of the patient.
[sir only mentioned 4 though ]
Read the case of Gonzales vs CA, October 30, 1998. The
evidence was the affidavit of the physician that he examined the
deceased of gonorrhea and for that he has become sterile and
could not sire children. Would that constitute privilege
communication? The SC prevented the disclosure of the medical
findings of the deceased person because it would tend to blacken
his reputation and the privilege communication survives the
death of the deceased person.
Note: Summarily, communication not given in confidence is not
privilege communication.
If is irrelevant in the treatment, is also not privilege.
If it is for the commission of a crime, it is not covered under the
privilege.
If the communication is intended to be made public, not
privilege.
However, it can be waived by the patient under the case of a life
insurance wherein the company doctor is the one examining the
client and the client is made to sign a waiver.
Another case is Chan vs Chan, July 24 2013. In this case, the
issue here is would the privilege apply only to testimonial
evidence made in courts or will also apply to medical records?
Can it be subject of a subpoena?
If it is privilege information, medical records cannot be
subpoena. The documents must not be privilege for sub poena
to apply. In this annulment case, it was alleged that the
[Page 51 of 107]
Ad Majorem Dei Gloriam
husband was psychologically incapacitated and he undergone
treatment for that. The physician was being made to testify for
the prior treatment made and the diagnosis before the
annulment case was filed.
The SC held that is privilege communication. To allow the
hospital records to be produce in court is covered under the
privilege rule.
Note: Nurses, midwives, albularyos or MU (murag doctor) is not
covered under this rule. [LOL]
Other interesting cases:
Lim vs CA 214 scra 273. The privilege is not violated by
permitting the physician to give expert testimony on highly
hypothetical facts.
Krohn vs CA, 1994. A non-physician testimony on medical
psychologist report is not covered by the privilege. A report
made by the physician and somebody else interprets it for him.
[Sir comments that is hearsay because he has no personal
knowledge]. Apparently in this case, there was no objection on
the hearsay rule. Remember, it is deemed waived if you do not
object.
Priest and the penitent privilege
Section 24. (d) A minister or priest cannot, without the
consent of the person making the confession, be examined
as to any confession made to or any advice given by him in
his professional character in the course of discipline enjoined
by the church to which the minister or priest belongs;
Elements:
1. There must be relationship of priest and
penitent;
2. There must be a confession or advice given
thereon by the priest to a penitent;
3. The confession must have been made in the
course of the discipline enjoined by the church to
which the minister or priest belongs.
It only says minister or priests. It doesnt cover pastor or Imam,
but the law says any advice given by him in his professional
character. I believe it covers those who goes to their pastors
and confess something confidential. It is covered. [Sir hates
discussing politics and religion. LOL]
Example: I went out with a friend who is a priest. At the bar, I
told him that I committed a crime. Is that covered? No, because
the law says any advice given by him in his professional
character. You went to him in the church during confession. You
seek him out as a priest. You have to approach him as a priest.
There must be confession.
The Privilege of State Secrets
Section 24. (e) A public officer cannot be examined during
his term of office or afterwards, as to communications made
to him in official confidence, when the court finds that the
public interest would suffer by the disclosure.
Elements:
1. The communication must have been made to the
public officer in official confidence
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
2. Public interest would suffer by the disclosure of
the communication
It would not apply if it is within the ambit of constitutional
guarantees.
If you are a public officer, the public has the right to know but
subject to those constitutional guarantees.
Other Privilege Communication Rules
Newsmans Privilege. From RA 53 as amended RA
1477: Editors cannot be compelled to disclosure their
sources.
Political Vote Privilege. That a voter cannot be compelled
to disclose who they voted. The secrecy of a ballot. But, exit
polls are not covered.
Information obtained from tax census returns. That is
confidential. Income tax returns are not confidential at all.
They are public records and can be inspected upon lawful
order.
Secrecy of Bank Deposits. In the case of Dipad vs
Oliban, July 25, 2012, GR NO. 168771: Under RA 1405, all
bank deposits of whatever nature are considered absolute
confidential nature and can be examined only if:
a. There is written permission from the depositor
b. In cases of impeachment
c. Upon order of a competent court in cases of bribery or
dereliction of duty of a public officials
d. Where the money deposited is the subject matter of the
litigation
Human Security Act (RA 9372)
Crime against Terrorism
AMLA or Anti-Money Laundering Act (RA 9160)
Trade Secrets
In the case of Airphill vs Pennswell Corp, Dec. 13, 2007,
the SC held that a person cannot compel to disclose the
formulation of ingredients of a product. It would cripple the
business and place it on undue advantage.
ART 233 of the Labor Code
ADR or Alternative Dispute Resolution (RA 9235) in
which information obtained during ADR are protected.
Arbitration records of CIAC (Construction industry
arbitration cases)
Records in the disbarment cases of a lawyer.
Parental and Filial Privilege
Section 25. No person may be compelled to testify against
his parents, other direct ascendants, children or other direct
descendants.
What is prohibited is compulsion but you can voluntary testify.
Art. 215. No descendant shall be compelled, in a criminal
case, to testify against his parents and grandparents, except
when such testimony is indispensable in a crime against the
descendant or by one parent against the other.
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Ad Majorem Dei Gloriam
They have different scope. Sec 25 does not refer to any case but
under 215, it implies criminal cases.
Note: Can an adopted testify against an adoptor? NO, the
adopted child has the same rights as that of a legitimate child.
What if the adopted testified against the adopter? He is covered
under the privilege.
Lee vs CA. Can a stepmother stop her step children from
testifying against him? No, under this section there is only
prohibition against compulsion to testify but not to if you
volunteered to testify. Read the case!
Sept. 4, 2015 (DJG)
Extrajudicial Admissions
Take note that this is not the first time that we encounter the
concept of admission of course if I may remind you we discussed
first Rule 129:
Rule 129. Section 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.
The concept of a judicial admission is, remember confession
facta in judicio omini probitione major est which means
that the confession made during trial is stronger than all proof.
But what we discussed in Rule 129 Sec. 4 are judicial admissions.
Rule 130. 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 this section 26? Admissions of the parties, what type of
admissions are we talking about here? Were talking about
extrajudicial admissions or those admission made by a party out,
not during the proceedings. Going back to sec. 26, what is an
admission? Its an act, declaration or omission of a party as to a
relevant fact may be given in evidence against him.
Take note that when we discussed Sec. 26 and the succeeding
provisions there two types of admission that might be relevant.
First, when the admission is given by the party himself in which
case the applicable rule would be sec. 26 or by a third party. A
third party makes an admission that may or may not have an
effect as to the party to a case, in which case, the applicable rule
would be sec. 28, subject to exceptions found in sections 29-31.
Himay-himayon nato ang section 26.
Section 26. xxx act, declaration or omission xxx
Whats an example of an ACT that may lead to an admission, an
example is found under Sec. 27, where in criminal cases for
example the act of offering a compromise by the accused maybe
taken as an implied admission of his guilt, it is not necessary that
the admission is made there by orally even in writing, it can be
implied through certain acts committed by the parties to the
case.
Rule 130. Section 27. Offer of compromise not admissible.
xxx
DECLARATIONS are any statement that may have been made by
the party which can be given in any *** still assuming of course
that it is relevant to the fact in issue to the case.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

And then you have an OMISSION, how can there be an omission The rule to remember is if an admission made by a party is
out of the failure of a party to perform a particular act. For favorable to him that is not admissible in court, but if the
example section 32. advocates for admits against his interest that would be
admissible. Gwapo ko, self-serving? A party maybe believed in
Rule 130. Section 32. Admission by silence. xxx he advocates against his interest but should not be believed if
advances his own interest.
In other words, your failure to act or failure to react can be used
as an admission in silence, youre failure to act can be taken as To explain further let us look at the requisites of self-serving
an implied admission of the fact which naturally call for a admission or self-serving evidence:
reaction. An admission can be by an act, declaration or an 1. Testimony is favorable to the declarant
omission. 2. It is made extra-judicially
3. It is made in anticipation of litigation
General rule: (most important requisite)

Section 26. xxx relevant fact may be given in evidence In other words, what you are trying to do is talk to somebody
against him. and then later on secure this testimony and repeats simply what
you said. So A goes to B and he says C is not my child and then
Now to explain properly the concept of an admission remember later on a paternity suit was filed against A by C, can he get B as
this one is made out of the court, not made in court because if it a witness to testify that as per my knowledge and to what was
is made in court whether through the pleadings or by assertions relayed to me he is not the son of A? He cannot do that because
of the parties sec.4 of Rule 129 will apply. that is self-serving admission made in anticipation of litigation.
What are you trying to do in making self-serving admission? You
In order to discuss this fully we need to discuss first the concept are trying to plant evidence ahead of the litigation and therefore
of hearsay rule, Sec. 36. the requirement that it must be anticipatory to litigation. You are
planting possible testimonial evidence for use later on.
Rule 130. Section 36.Testimony generally confined to
personal knowledge; hearsay excluded. A witness can In Licauco vs. Atlantic, A man may be safely believed if he
testify only to those facts which he knows of his personal declares against his own interest but not if he advocates his
knowledge; that is, which are derived from his own interest. It is excluded on the same grounds in hearsay evidence
perception, except as otherwise provided in these rules. that the lack of opportunity of cross-examination by the adverse
party.
That therefore would be the general rule with respect to
Now you go to court, a party is made a witness to a case and
testimonial evidence, a witness must only testify to those facts
then he makes self-serving admission or he declares something
which he knows of his personal knowledge. Dili sya pwede mu-
that is favorable to his cause of action or favorable to his
testify as to matter that were merely related to him, because in
defense, should that be excluded on the ground it is hearsay
laymans you call that chismis, thats hearsay testimony if you
evidence? No, the reason is simple, why is it that self-serving
simply say what was relayed to you, that is not testifying based
admission made out of court is inadmissible in evidence?
on your personal knowledge.
Precisely because of the lack of the lack of opportunity for cross-
examination, which is the same reason why hearsay evidence is
Relate that to the concept of admission, a party makes an
not admissible in court.
admission for example, to his neighbor na naa syay utang kay A,
can he use the neighbor as a witness to the case, to testify that
What about if the self-serving admission is made in open court,
it is not true in his pleading, but he wrote in his pleading na wala
would there be no opportunity for cross-examination? Of course
syay utang because he actually admitted to the neighbor nga
there would be opportunity and therefore there is no self-serving
naa sya utang, can he do that, would that fall under the concept
admission if the same is made in open court. So if made in open
of an extrajudicial admission which if relevant may be taken as
court the other party is given the opportunity to cross-examine
evidence against him? Isnt that hearsay? When he testifies does
him then its not inadmissible but would it be believable? That is
he know that of his personal knowledge nga nay utang and
a different story because admissibility is different from credibility
party? It is not of his personal knowledge, the information was
or the believability of witness.
merely relayed to him. But admission as you would later on know
and appreciate can be an exception to the hearsay rule.
What we are trying to deal here under Sec. 26 is an admission
that is not self-serving it is an admission that would tend to
However, before not all type of admission are admissible because
weaken the cause of action or defense of a party. Example, the
according to whether or not an admission is favorable to the
husband sues the wife for adultery, the wife had previously made
party making it. An admission can either be an under sec. 26
an admission out of court to her neighbor saying that she has
admission per se or a self-serving admission.
had sexual relations with other men than her husband, that
would be admissible in evidence because:
Lets go first to the concept of a self-serving admission. What is a
self-serving admission? In the case of Licauco vs. Atlantic, 84
(1) It is relevant;
Phil 342, the SC define it simply as an admission favorable to
(2) It is made out of court;
the party making it.
(3) It is adverse to the interest being advance by the party.
Mao na sya ang admissible na admission. (Advice your
Elsewhere in National Development Company vs.
clients daw to keep quiet)
Workmens Compensation Commission, April 27, 1967,
the SC said that a self-serving evidence is evidence made by a
If you say something that advocates against your interest that
party out of court at one time and which is favorable to the party
can be used against you as either and admission or a confession
making it. It is excluded on the same ground as any hearsay
as the case may be.
evidence that is the lack of opportunity for cross-examination by
the adverse party and on the consideration that its admission
What are the requisites for the admissibility of an admission?
would open the door to fraud and the fabrication of witness.
1. It must involve matters of facts and not of law

[Page 53 of 107]
Ad Majorem Dei Gloriam
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Question of fact would be whether or not by your actions
the law has been violated. When you make an admission
that you and B committed an act that violated the law that
can be considered an admission. But when you say simply
that the law is applicable or that the law is not applicable
that is not considered an admission because it is not for you
to decide whether or not the law is admissible.
2. It must be categorical and definite
Therefore it should not be subject to a different
interpretation as to whether you made the admission or not.
3. It must be knowingly and voluntarily made
There is no such thing as an admission by mistake.
4. It must be adverse to the admitters interest
As you can recall if it is favorable to him it is considered as
self-serving evidence that is not evidence in courts of law.
Take note that an admission maybe received in evidence not
only against the party who made it or his successors-in-
interest but in certain situations it may also be applicable
against third person.
Lets discuss the distinctions between R129, Sec. 4 and R130,
Sec. 26.
When you talk about rule 129 sec.4 that is judicial admission, in
other words, you make it in court whether by way of your
testimony or by way of pleading. It is conclusive upon the
admitter whether made in writing or made orally. You can no
longer contest a judicial admission except if it falls within the
exceptions that we have discussed. Take note that judicial
admission applies to civil, criminal cases, administrative cases
and even special proceedings.
Rule 130, sec. 26 relates to extrajudicial admission under this
rule, the admission is admissible only if it is against the interest
of the admitter. Remember that when you talk about the term
admission whether its judicial or extra-judicial it applies to both
civil and criminal cases. What if you made an admission
admitting that you have committed a crime, what do you call
that in such situation? You call that confession.
Lets take the case of an admission that can be taken from the
acts of a party. Lets say a criminal case. A case was filed against
you for estafa, a warrant of arrest was issued and you try
evading arrest. What do you call that when you escape? Flight.
Remember that flight is considered a deserving(?) acts and it is
prejudicial to the interest the accused. It is an implied admission
of guilt, it is circumstantial evidence of the guilt of the accused.
If flight is an implied admission of guilt, would non-flight be
considered an implied admission of innocence? It cannot, no
contrary presumption can arise from non-flight because it is self-
serving, it is favorable to the party. Thats the only reason why
there cannot be a contrary presumption. [Sir talks about Binay]
What other types of JUDICIAL admissions are there?
As to form:
1. Formal Judicial Admission
o Made in writing such as in the pleadings or in
motions or stipulations of facts during trial or pre-
trial.
2. Informal Judicial Admission
[Page 54 of 107]
Ad Majorem Dei Gloriam
o Those that are made orally in the course of the
testimony of a party or his witness or any
depositions or affidavits or even the statements of
counsel, remember that when counsel makes an
admission it is binding to the client. If a client
makes an admission in open court contrary to the
advice of counsel, counsel is bound. The only thing
the counsel can do, is to provide that the admission
made by his client was through palpable mistake or
that no such admission was made.
EXTRAJUDICIAL admission can be:
1. Express
o Those made in definite or unequivocal language
2. Implied
o Those which may be inferred from the act, conduct,
declaration, omission or silence of the party.
What are examples of implied extra-judicial admissions under the
law?
1. Laches. Laches is different from prescription. Prescription is
provided by substantive law, it is the civil code that
prescribes the several periods for acquisitive or extinctive
periods, and on the other hand, laches is an equitable
principle. Prescription can take away your cause of action. In
other words your right to file an action may have already
prescribe. What about laches how does it relate to your right
to bring action, and what could be the possible implied
extra-judicial admission that can be presumed from such
inordinate delay in bringing the action? From laches there
can be derived an implied extra-judicial admission that the
party has either abandoned or decline to pursue his cause of
action because it is inherently weak.
2. Flight and Concealment. Flight strongly indicates a guilty
mind and creates the existence of a guilty conscience.
Fatetur facinus qui judicium fugit or He who flees from
trialconfesses his guilt. Because if you have a good defense
why the need for flight, thus it is considered an implied
indication and circumstantial evidence of guilt.
3. Admission by silence
Rule 130, Section 32. Admission by silence. An act or
declaration made in the presence and within the hearing
or observation of a party who does or says nothing when
the act or declaration is such as naturally to call for action
or comment if not true, and when proper and possible for
him to do so, may be given in evidence against him.
Youre guilty @.@ (siga lang ang mata) you did not refute
it, that can be considered as an implied admission of the fact
that youre guilty, that is an admission by silence. If a
statement is such that would naturally call for comment, you
are to invoke you right to comment in fact you have to
comment otherwise an implied admission may be taken
against you.
4. An offer of compromise
Is also considered in certain situations an implied admission.
Why would you compromise when in fact you have a strong
defense or if you really have cause of action why offer
compromise? But under Section 27 not all offers of
compromise can be considered as an implied admission of
liability.
Rule 130. Section 27. Offer of compromise not
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
admissible. xxx
But in a criminal case an offer of compromise by the accused
may be received in evidence as an implied admission of his
guilt. It actually does not take into consideration the fact
that he did it more than times, even if a party is actually
innocent of a crime charge and still he will offer compromise
precisely to just evade litigation.
5. Plea of forgiveness
This is akin to an offer of compromise. Ngano ka mangayu
ug pasay-lo kung wala kay sala? In a court of law can a plea
of forgiveness can be taken as a good thing or a bad thing,
isnt a plea of forgiveness a show of magnanimity in certain
instances.
In People vs. Abadines, July 11, 2002, the accused here
wrote a letter to his own daughter asking for forgiveness
and he wrote Im sorry anak, I made this letter to ask for
your forgiveness alam mo bang sorbrang-sobra na ang
pagsisi ko sa ginawa ko, parang awa mon a ne hirap na
hirap na ako. The SC convicted a plea of forgiveness is
considered an offer of compromise and therefore an implied
admission of your guilt, why would you ask for forgiveness
from your daughter if you really did not rape her.
Same thing in People vs. Espanol, February 13, 2009, a
murder case nangayu ug pasaylo ang accused sa iyahang
sister-in law for killing his wife. That is analogous to an
attempt to compromise which in turn can be received as an
implied admission of guilt under Sec. 27 of rule 130.
6. Offer of marriage
Gilukos ang babae, sige pakaslan nalang taka para dili ka
maulawan (wow, ikaw na gani ang nanglugus huh). The
offer of marriage have the effect on culpability, can there be
an admission that can be derived from the act of offering
marriage in crimes against chastity.
According to jurisprudence, consistently an offer of marriage
by the accused during the investigation of a rape case is also
an admission. Moral lesson (1) do not rape (2) have plastic
surgery because you are not attractive enough (LOL).
7. Withdrawal of appeal and acceptance of a lower
penalty.
In Pp vs. Arsenio, April 6, 1998, the SC ruled that the
withdrawal of appeal and acceptance of a lower penalty is
also an implied admission of guilt. The accused here realized
Im still going to spend a lot of time in jail, despite the
withdrawal of appeal and acceptance of lower penalty ang
gibuhat niya he withdraw his withdrawal and cried lack of
due process. The SC said when you withdraw your appeal in
the first place that is already an implied admission.
8. Attempt to influence witnesses
Why would you attempt witness to influence when in fact
you have evidence that would win your case? Why would
you bribe witnesses not to appear during trial? When you try
to suppress evidence there is a presumption that arises that
it is produce adverse to the accused attempting to
suppression
9. A change for the better and the financial condition of
a personal use of a crime involving money
immediately or shortly after the date of the crime
may be shown upon the theory that sudden
[Page 55 of 107]
Ad Majorem Dei Gloriam
possession of funds has a tendency to protect said
person of the crime
To my mind that is not really an admission but it is
something that can give rise to the presumption of
culpability. Youre presumed to have offered some kind
because of the sudden change for the better in your
financial condition.
Lets now go to Sec. 27:
Rule 130. 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.
Let us summarize. First, try to look at the different types of the
cases covered and what would be the effect of an offer of
compromise. In civil cases regardless of the nature of that civil
case, an offer of compromise is not an admission of any liability
its not admissible. Im talking about civil cases in general, there
is no exception that is provided under this provision. In criminal
cases however there is a different treatment of an offer of
compromise.
General rule is that an offer of compromise by the accused may
be received in evidence as an implied admission of his guilt
subject to certain exceptions. Most of these exceptions would be
quasi-offenses or those prosecuted under article 365 of the RPC
those considered to be reckless imprudence, criminal negligence.
What is an example of a criminal offense that the law allows to
be compromised, naa ba? Rape does the law allow that to be
compromised? Walay nakabutang diri. To my mind probably tax
cases diba nay criminal element ang tax evasion its a crime. In
section 204 of the NIRC or RA 8424 recommending the
commissioner of the internal revenue can actually enter into
compromises to tax offenders.
Going back to the general rule an offer of compromise is
admissible against the accused as an implied admission of guilt
except for quasi-offenses or those offenses allowed by law to be
compromised. Why is it encourage? Again its just a quasi-
offense walay na priso sa quasi-offense.
Rule 130. Section 27.
xxx
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.
xxx
Precisely because of a party or any person natural inclination
bitaw na dili magkaso kay kapuy kaau mag kaso.
In both civil and criminal cases there is the so called Good
Samaritan Rule provided that an offer to pay or the payment
of medical, hospital or other expenses occasioned by an injury is
not in admissible in evidence as proof of civil or criminal liability.
You should not be damned by your generosity. Wala man sala
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
pero nitabang gihapon ka kay naluoy gihapon ka will that be
considered as an implied admission? That is not fair if that is the
case. So the law puts up the so called Good Samaritan rule.
In torts and damages you will learn later on that there is an
equivalent rule which mitigates the amount of damages imposed.
If after the accident for example you did everything that you
could to minimize the injury then that will be considered as a
deduction to a possible damages.
Lets now go to section 28:
Section 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.
Later on we will be discussing this to be the Res Inter Alios
Acta rule. This is a fair rule, walay damayay. What you say
should not prejudice me, what I say should not prejudice you as
a general rule because otherwise it will be so easy to implicate a
person for something that is improper or criminal even. This is
the so called Res Inter Alios Acta Rule or Res Inter Alios
Acta Alteri Nocere Non Debet thats the latin maxim. It
means things done between people ought not to injure those
who are not parties thereto.
There are two parts to the Res Inter Alios Acta Rule.
I. FIRST PART OF RES INTER ALIOS ACTA RULE
The first one is the one we are discussing, that the rights of
a party cannot be prejudiced by act, declaration or omission
of another except the exception provided in succeeding
provisions. The statements made between two parties
cannot prejudice a third person in other words bawal
mangdamay.
We are talking here about things concluded between parties
which if it is made to affect third person would prejudice
that person. Were only talking about matters which are
prejudicial. Why is it that res inter alios acta rule will cover
only something that is prejudicial to a third party? Because
as a general rule the law allows the compartment of benefits
to third parties even if you have their consent or even
knowledge. What is an example of something that confers
not in prejudice but a benefit concluded between persons
and yet allowed to affect third party? Stipulations pour
autrui, but generally it will not affect if it prejudices.
GR: The act, declaration or omission of parties cannot prejudice
the rights of another person.
Exceptions: Vicarious admissions This is used often in torts
and damages, vicarious liability in torts where a person is made
to answer for the acts or omissions of another person, example
of vicarious liability in tort law would be parents with respect to
the acts of their minor children, if your minor child commits a tort
or damages to the property of another person as parents we pay
for the damage cause, meaning somebody answering for
another. Vicar meaning you stand for somebody else. Under
our law on res inter alios acta rule the following are considered
as Vicars, those people who are:
o Partners
o Agents
o Those with joint interest
o Conspirators
o Privies
The acts of this people can be made to affect third person and
therefore serves as an exception to the Res Inter Alios Acta rule.
Exceptions (first part)
[Page 56 of 107]
Ad Majorem Dei Gloriam
Admission by co-partner, or agent, or those with joint
interest
Rule 130. Section 29. 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.
What does Sec. 29 tells you? That if you are a partner or agent
your act, declaration or omission may prejudice your co-partner
or agents subject to the requisites provided in Sec. 29.
First thing you need to remember the act or declaration of
partner or agent or person with joint interest must be within the
scope of his authority and during the existence of the partnership
or agency, it cannot be before the agency or partnership was
establish or after it was concluded, it has to be made during the
partnership or agency.
The further requisite is that the partnership or agency must be
proved first. How do you prove it? By evidence whether it is
testimonial or documentary other than act or declaration and
therefore this exception will not be applicable if the only thing
that proves the existence of the partnership or agency is the act
or declaration of the supposed co-partner or agent only. It has to
be proven but independent evidence.
Example: If the declaration is A is my partner and we owe B 1M,
how do you prove the partnership other that the declaration that
we are partners and we owe this much but if there is a document
proving that the partnership actually exist my declaration can
actually prejudice third person. Remember the same rule applies
to the act, declaration to a joint owner, joint debtor or other
person jointly interest with the party.
Those are the three exceptions provided in sec. 29.
An interesting case Villanueva vs. Balaguer, June 23, 2009,
it talks about IBC 13 a television network and it was made to
account by the Commission of Elections for alleged improper
leasing of ad time diba pag under election laws theres supposed
to be some limits to the number of hours or minutes that you
have for ad time during the election period. This person
Villanueva is an assistant manager of IBC 13 he was dismissed
from employment on the ground of lost confidence for selling
forged certificates of performance. He filed a case for illegal
dismissal before NLRC, during the pendency of the case, you
know networks they have airtime they called for press
conferences during one this conferences the president of the
network Balaguer quoted that the uncovered various anomalies
in IBC 13 during his tenure led to the dismissal of Villanueva. IBC
then filed before the RTC a complaint for damages against
Balaguer because his statements seems to confer nga naa sya
gibuhat na irregularity in IBC 13. The petitioner claims that there
was defamation. IBC denied participation in the statements and
publication si Balaguer ra man ang nag issue, IBC also filed a
counterclaim against Villanueva and cross-claim against
Balaguer. According to Villanueva when Balaguer said that there
were really irregularities uncovered referring to me as the former
manager then Balaguer must have been speaking for IBC as its
president and therefore by such declaration it can therefore be
used against IBC because they have joint interest. SC said the
res inter alios acta rule applies. The fact that IBC filed a cross-
claim against Balaguer means that whatever joint interest which
they have had been effectively terminated. Whatever Balaguer
says will not prejudice IBC.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Another case Nara Nickle Mining vs. Redmont Mining April
21, 2014, the situation was that Naras evidence to prove that
the corporation was a foreign-owned corporation so it is not
qualified to apply for a mining certificate was the literature
documents that it provided its stockholder wherein the foreign
corp. said that they own the corporation contrary to what was
submitted with the DENR. The question is can you apply section
29 because of the admission of the foreign company that it owns
the corporation, and if so, it cannot validly mine in the Philippines
because it is not a Filipino corporation.
According to the SC can there be a finding of joint interest that is
proven other than the act or declaration in this case that of
documents. If the partnership is proven other than the act or
declaration then it applies. The SC limited that certain document
tending to establish that there is that joint venture. Therefore
other than the act or declaration the co-partnership, the joint
interest had already been established under Sec. 29, thus the
corporation is not qualified.
Sept 5, 2015 (JJA)
Admission by conspirator
Section 30. 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.
The other exception to Res Inter Acta Rule is Section 30. This
provision is common provision used in prosecution of cases
where conspiracy is alleged.
In conspiracy, there is an agreement between two persons.
The phraseology of section 30 would be that is akin to section
29. In other words, before the admission of a co-conspirator to
be used against his alleged conspirator, you have to prove the
existence of conspiracy first other than the act or declaration
which by itself is indicative of a conspiracy. So declaration of one
against a co-conspirator will not exist without proving first the
existence of conspiracy.
How do you usually do that? Again you have to prove conspiracy
by evidence other than the act or declaration. And therefore, that
should refer to extra-judicial acts and declaration of a conspirator
and not to his testimony as witness in the trial. So naa siya
giingon previously that conspirators acted in concert such
conspiracy exist by their concert or action.
What are the exceptions to the rule the extra-judicial statements
of the accused indicating a co-accused may not be used against
him?
1) A co-accused adopted the confession (akin to admission by
silence.)
2) The accused voluntarily and independently executed
confessions without collusion (concept of interlocking
confessions) although not in perfect harmony but it
indicates that they acted in concerted effort. (pare-pareha
ang ilang ginaingon.)
3) The accused admit of the facts after being apprised of the
confession. Direct evidence is not being talked about here
but rather circumstantial evidence.
Admission by privies
Section 31. Where one derives title to property from another,
the act, declaration, or omission of the latter, while holding the
title, in relation to the property, is evidence against the former.
[Page 57 of 107]
Ad Majorem Dei Gloriam
This is what is known as the rule on the admission by privies.
You are in privity of title with a predecessor for example. X is the
father of Z. when the former is alive he said to an acquaintance
that land where his house stood has been sold already. The
declarant must have title before the evidence against the other is
made admissible.
Thats the only thing you need to remember here.
II. SECOND PART OF RES INTER ALIOS ACTA RULE
Rule 130. 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.
You cannot be damned by your past behaviour. That is what this
section is talking about. Because otherwise everyone would be
dishonest because in the past we are dishonest.
Exception (second part)
However evidence that you did at one time may be received to
prove a specific intent or knowledge, identity.
Collective they are referred to as Modus Operandi (pronounced
as operanday). Example: A was accused in raping his made. In
the following year he was accused of acts of lasciviousness. Later
year the same was accused against A. and so on and so forth., in
2000, he was accused again, though past evidence may not
prove but the same may be received to prove a habit on the part
of A.
Lets go to Sec. 32.
Section 32. Admission by silence. An act or declaration
made in the presence and within the hearing or observation of
a party who does or says nothing when the act or declaration
is such as naturally to call for action or comment if not true,
and when proper and possible for him to do so, may be given
in evidence against him.
Section 32 once again. Requisites are:
1) Hearing and understanding of the statement of the party.
2) Opportunity and necessity of denying the statements.
3) The statement must refer to a matter affecting his right.
4) The facts are within the knowledge by the parties.
5) The facts admitted were inference to be drawn from his
silence would be material in issue.
Exceptions to the rule:
1) When there is no good reason exist for the party to
comment on the declaration
2) When the party had no opportunity to comment on the act
or declaration.
3) When the act or declaration were made in the course of an
official investigation.
4) When silence is upon the advice of counsel.
Read Estrada v Desierto, April 3, 2001. This case discussed
the concept of Adoptive Admission an extension of Section
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
32. This talks about rules of court taking the back seat and giving
way to political convenience.
Lets go to Sec. 33.
Section 33. Confession. The declaration of an accused
acknowledging his guilt of the offense charged, or of any
offense necessarily included therein, may be given in evidence
against him.
A confession is a declaration of the accused acknowledging his
guilt on the offense charge or of any offense necessarily included
therein.
Example: I am guilty of the offense charge by the prosecution.
So if you confessed to Murder then you confessed necessarily to
Homicide because the latter is necessarily committed when you
commit the former.
Remember that confession is the evidence of the highest order.
It represents the outward manifestation of a man unless
confession is nullified by evidence of duress or you are merely
coerced or forced to confess.
If the confession is true and voluntary, the deliberate act of the
accused with the full comprehension of the significance, there is
no impediment of its admission as evidence and becomes
evidence of the high order since it is supported by the strong
presumption that no person of normal mind will deliberately and
knowingly confess himself to be the perpetrator of crime
especially if it be a serious crime.
[Pepsi Paloma story, who was allegedly gang raped]
Assuming that in the press conference, the accused asked an
apology to Pepsi such that hey are guilty will that be sufficient to
convict them for the crime charge?
For that you need to know the different type of confessions:
1) Judicial confession (made in court in the course of the
trial or proceeding) This can be verbal or written.
Sufficient to convict.
2) Extra-judicial confession This is not sufficient to
convict an accused. You have to prove corpus delicta. Under
rule 132, EJC is not itself sufficient to convict unless
corroborated by evidence corpus delicta.
What is corpus delicta? The body of the crime.
Even if you confessed but the prosecution is able to probe the
corpus delicta of the crime by other independent other evidence
that the crime was committed by the accused, EJC will not
produce a conviction.
So that is the difference between the two.
How do you distinguish an admission and confession?
Admission Confession
A statement of fact which A statement or declaration
does not involve acknowledging once guilt of
acknowledgement of guilt the offense charged
May be expressed or implied Must be expressed
May be made by a party of a May be made only by the
third person party himself. No body can
confess for you
A general term which applies Applies only to criminal cases
to both criminal and civil as a rule
cases
[Page 58 of 107]
Ad Majorem Dei Gloriam
A confession therefore is subsumed as part of admission.
Confession is actually part of admission. (Ex: An admission of
guilt). In other words, admission is a broader term than
confession.
What are the requisites for the admissibility of extra-judicial
confessions?
1) It must involve an expressed or categorical
acknowledgement (U.S. vs Corrales)
2) It must have been made voluntarily. (People vs
Nishishima?)
3) It must be made intelligently. (Dilaan vs Cusi)
Take note that EJC can be admitted as circumstantial evidence (if
no collusions).
MEMORIZE THE HEARSAY RULE.
Rule 130. 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.
Hearsay evidence is not a product of the senses but rather it
about the person who is seeing or hearing the crime. Rather it is
something that you heard from other person and not a product
of personal knowledge. In other words, someone related to you
the information.
But why is it that your age is admissible in court when you dont
have personal knowledge of you age or date of birth? It is only
relayed to you?
Reasons why hearsay evidence are excluded from admissibility.
Absence of cross examination (except cross
examination has been waived)
Absence of demeanor evidence (perception itself by
the judge.)
Absence of an oath
There are two types of hearsay evidence:
1) Secondhand information Not derived from the
personal knowledge of a witness
2) A testimony of a witness based on his personal
knowledge made in court or out of court but the
adverse party is not given the opportunity to
cross examine.
A statement is considered hearsay if:
1) Assertive statement meaning it has to be an
intentional communication of a fact. A fact must be
involved in the statement.
2) It must be made out of court by a declarant
(made extra-judicially)
3) It is offered to prove the truth of the matter (as
the truth of the matter) considered as a hearsay.
In a scale of 1 to 10, what is the probative value of HE? ZERO!
Why? Because in several cases, evidence objected to or not must
not be admitted by the court.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
GR: Affidavits have no probative value unless you bring the
affiant in court. Purpose of affidavit is to memorialise the content
of the affidavit.
Exception: Judicial affidavit rule, NLRC cases. However,
affidavits require re-affirmation in DOLE cases.
Other types of Hearsay Evidence:
A letter
Medical certificate
Resolution of municipal council as to the records of an
accused in a criminal case
Newspaper articles.
Sept. 9, 2015 (AJU)
OTHER EXCEPTIONS TO THE HEARSAY RULE
From last time, we ended with the general rule and exceptions as
to the hearsay rule. But there are a lot of exceptions aside from
what is provided in Section 37 to Section 47. Meaning the Rules
of Court are not the sole repository of exceptions to hearsay.
ADMISSIONS
We mentioned previously in Section 26 that the act, declaration
or omission of a party as to a relevant fact may be given in
evidence against him. This can be considered as an exception to
the hearsay rule precisely because that is a statement made out
of court and the witness is the person who has heard the
admission against interest. And that person is the one now who
will be testifying what the defendant admitted. Technically, that
is an exception to the hearsay rule, but only with respect to
admissions per se and not to self-serving admissions.
EXAMINATION OF CHILD WITNESS
In Section 28 on the Rule on Examination of Child
Witnesses, which we have already discussed, you need to
remember that the rules of evidence are relaxed in the
examination for child witnesses.
RA 7610. Section 28. Hearsay exception in child abuse
cases. A statement made by a child describing any act or
attempted act of child abuse, not otherwise admissible under
the hearsay rule, may be admitted in evidence in any criminal
or non-criminal proceeding subject to the following rules:
(a) Before such hearsay statement may be admitted, its
proponent shall make known to the adverse party the
intention to offer such statement and its particulars to
provide him a fair opportunity to object. If the child is
available, the court shall, upon motion of the adverse
party, require the child to be present at the
presentation of the hearsay statement for cross-
examination by the adverse party. When the child is
unavailable, the fact of such circumstance must be
proved by the proponent.
(b) In ruling on the admissibility of such hearsay
statement, the court shall consider the time, content
and circumstances thereof which provide sufficient
indicia of reliability. It shall consider the following
factors:
(1) Whether there is a motive to lie;
(2) The general character of the declarant child;
(3) Whether more than one person heard the
statement;
(4) Whether the statement was spontaneous;
(5) The timing of the statement and the relationship
between the declarant child and witness;
(6) Cross-examination could not show the lack of
[Page 59 of 107]
Ad Majorem Dei Gloriam
knowledge of the declarant child;
(7) The possibility of faulty recollection of the
declarant child is remote; and
(8) The circumstances surrounding the statement are
such that there is no reason to suppose the
declarant child misrepresented the involvement
of the accused.
(c) The child witness shall be considered unavailable
under the following situations:
(1) Is deceased, suffers from physical infirmity, lack
of memory, mental illness, or will be exposed to
severe psychological injury; or
(2) Is absent from the hearing and the proponent of
his statement has been unable to procure his
attendance by process or other reasonable
means.
(d) When the child witness is unavailable, his hearsay
testimony shall be admitted only if corroborated by
other admissible evidence.
The situation covered by Section 28 is nay bata na gi-abuse
tapos nisumbung sa iyahang ginikanan. And it will now be the
testimony that can be offered in court. Normally, that will be
hearsay evidence. But the Rule on Examination of Child witness,
that can be allowed, provided that you follow the rules. These
rules. In a nutshell provide:
1.) The proponent of the hearsay statement, meaning ang
ginikanan gi-ingnan sa bata, should announce his
intention that he will present hearsay testimony
regarding what the child told him.
2.) If the child is available for cross examination or
confrontation, then the child must be allowed to testify.
3.) If the child is not available, the non-availability must be
proved by the proponent in order to allow the hearsay
testimony.
4.) In ruling on the admissibility of such hearsay statement,
the court shall consider the time, content and
circumstances thereof which provide sufficient indicia of
reliability.
Then there are factors to be considered. No need to memorize
that because these are not exact factors. The court will
determine on a case-to-case basis and these are just suggestions
by the law.
WRIT OF AMPARO
You have here the case of Razon versus Tagitis. What is the
Writ of Amparo all about? The Writ of Amparo is supposed to be
a writ for the purpose of protection of Constitutional rights. It
comes from Mexico but strangely Spain does not have the Writ of
Amparo. Nothing in the Philippine law is ever a Filipino creation.
Anyway, when you are talking of Writ of Amparo this enables
family members to inquire as to enforced disappearances, which
of course is a violation of a Constitutional right. This writ is
usually directed to a police officer or an agent of the state who
had a hand in the enforcement of the disappearance that is
precisely what happened in Razon versus Tagitis, the husband
was allegedly abducted by the military.
The wife now seeks for a Writ of Amparo. What is the ground for
writ of Amparo? The mere fact of disappearance? Of course not.
You need to get your information elsewhere and in this case, the
information was given by a secret source. In this case, it was a
colonel who told her that it was the police that took her husband
under the suspicion of being involved in a crime. So she went to
court and to the agencies involved for a writ of Amparo for an
explanation as to the whereabouts of her husband.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Razon and company object to the issuance of the Writ because
the basis for the Writ of Amparo is hearsay; that is just chismis
na gi-kuha imung bana sa police.
The SC said you have to relax the hearsay rule in the petition for
writ of Amparo because it is precisely in the nature of these
cases that you do not have information. It would come from
sources who could neither confirm nor deny the truth and falsity
of the information.
Take note, however, he SC said we are not dispensing totally
dispensing with the rules on evidence in writ of Amparo cases.
The evidence must still pass the most basic test which is the rule
on relevancy. That is the minimum requirement for writ of
Amparo cases.
Razon versus Tagitis
From the FT of the case: We explained that although the Kasim
evidence was patently hearsay (and was thus incompetent and
inadmissible under our rules of evidence), the unique evidentiary
difficulties posed by enforced disappearance cases compel us to
adopt standards that were appropriate and responsive to the
evidentiary difficulties faced. We noted that while we must follow
the substantial evidence rule, we must also observe flexibility in
considering the evidence that we shall take into account. Thus,
we introduced a new evidentiary standard for Writ of Amparo
cases in this wise:
The fair and proper rule, to our mind, is to consider all the pieces
of evidence adduced in their totality, and to consider any
evidence otherwise inadmissible under our usual rules to be
admissible if it is consistent with the admissible evidence
adduced. In other words, we reduce our rules to the most basic
test of reason i.e., to the relevance of the evidence to the issue
at hand and its consistency with all the other pieces of adduced
evidence, Thus, even hearsay evidence can be admitted if it
satisfies this minimum test.
When we ruled that hearsay evidence (usually considered
inadmissible under the general rules of evidence) may be
admitted as the circumstances of the case may require, we did
not thereby dispense with the substantial evidence rule; we
merely relaxed the evidentiary rule on the admissibility of
evidence, maintaining all the time the standards of reason and
relevance that underlie every evidentiary situation. This, we did,
by considering the totality of the obtaining situation and the
consistency of the hearsay evidence with the other available
evidence in the case.
The next exception is something that is really not found in a
codal provision, we are talking here about independently relevant
statements.
INDEPENDENTLY RELEVANT STATEMENTS
This was defined in this case:
People versus Malibiran
The law, however, provides for specific exceptions to the hearsay
rule. One is the doctrine of independently relevant statements,
where only the fact that such statements were made is relevant,
and the truth or falsity thereof is immaterial. The hearsay rule
does not apply; hence, the statements are admissible as
evidence. Evidence as to the making of such statement is not
secondary but primary, for the statement itself may constitute a
fact in issue or be circumstantially relevant as to the existence of
such a fact. The witness who testifies thereto is competent
because he heard the same, as this is a matter of fact derived
[Page 60 of 107]
Ad Majorem Dei Gloriam
from his own perception, and the purpose is to prove either that
the statement was made or the tenor thereof.
o TENOR/ FACT THAT STATEMENT WAS MADE:
So what is relevant here is not whether or not the statement is
correct, or whether or not it is true or false. What matters here is
the mere fact that the statement was made and somebody had
heard it. That is an independently relevant statement.
What do you mean when you say tenor? The testimony of the
witness is about whether or not the statement was said and not
whether or not it is true. In People versus Malibiran the SC
said that the evidence is admissible when it is the very fact in
issue in the case or when circumstantial evidence of the fact in
issue.
Example: When a statement is the very fact in issue, your
neighbor told you kabit ka! Of course, you will file now a case
for oral defamation. Nadunggan sa imung mga silingan. Being a
kabit of course, is something that would cause your reputation to
be violated. In that prosecution, you will now present your
neighbor as witness. Then the opponent will say objection your
Honor, hearsay. Of course, you have to say No your honor,
although it is hearsay it is an exception to the rule, it being an
independently relevant statement. We are not trying to prove
that the private complainant is not a kabit. What we are trying to
prove that the statement was said. The statement is the very fact
in issue in the case.
o CIRCUMSTANTIAL EVIDENCE OF THE VERY
FACT IN ISSUE:
It is also admissible. Example: What would be the fact in issue in
a probate case? Whether or not the testator is of sound and
disposing mind. A testator who is not in possession of full mental
capacity in such extent that he no longer knows and understands
the objects of his bounty would not be able to make a valid will.
So in a probate case, you present a caregiver of the testator who
was also the witness in the execution of the will.
What did you hear the testator say at the time of the execution,
madam witness? Then the other party objects Your Honor,
hearsay. What will you say? No, Your Honor, that is an
independently relevant statement. So the witness answered
The testator said he was Superman. So in this case are we
trying to prove he was Superman? Of course not. We are trying
to prove the state of mind of the testator, thus the statement
becomes a circumstantial evidence in the fact in issue.
Some would also comment that a statement, even though
hearsay, would also be admissible to prove its effects upon the
listener. That is an example from Dean Riano.
Example: In a case for arbitrary detention, meaning there is a
policeman who arrested without an arrest warrant. There is a riot
and the policeman saw someone lying in the ground who is hurt.
Then he heard somebody in the crowd say that that person
wearing red is the one who did it; that he is only pretending to
be a bystander. SO the police arrested that person without a
warrant.
So the person arrested now files a case for arbitrary detention:
What is your probable cause of arresting me? That is merely
hearsay. In some jurisdictions, that is allowed. But in
Philippines, my presupposition is that is not allowed. You are
talking here about the liberty of another. In Philippine law, again,
you have to remember that we have this rule as to hearsay.
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,
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
which are derived from his own perception, except as otherwise
provided in these rules.
What is the main reason hearsay is excluded? Lack of
opportunity to cross-examine the witness. On the other hand, we
have the Constitutional right of an accused to confront the
witness. And how does the accused confront the witness? By
cross-examination.
The trend in foreign jurisdictions is that the interpretation to the
exceptions of the hearsay rule are slowly and slowly becoming
stricter. Its more difficult to allege exceptions to the hearsay
because of Constitutional movements in the US that there must
be the right to cross examine.
If we have time, we will discuss how to balance the right to
confrontation and the hearsay rule.
Here in PP vs. Malibiran, what was the out of court statement?
That somebody heard a conversation that the accused Rolando
Malibiran would fetch a man from Bulacan who knew how to set
a bomb. That is hearsay because he only heard the conversation.
But the SC said that would admissible is it is offered as an
independently relevant statement as proof of that particular
conversation.
People versus Malibiran
From the FT of the case: In this case, Oswaldo's testimony that
he overheard a conversation between Rolando and appellant that
they would fetch a man in Bulacan who knew how to place a
bomb in a vehicle is admissible, if only to establish the fact that
such statement was made and the tenor thereof. Likewise, Janet
may testify on matters not only uttered in her presence, since
these may be considered as independently relevant statements,
but also personally conveyed to her by appellant and Rolando.
EXCEPTIONS TO THE HEARSAY RULE
UNDER THE RULES OF COURT
DYING DECLARATIONS
Section 37. 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.
Ok. One point I want to emphasize right now that part which
says received in any case. What is any case? Any case!
Criminal, civil, administrative, etc. That is codal. But of course,
we will try to get back on that as we go further.
The dying declaration is one of the oldest exception in the
hearsay rule in fact in the 1928 case of People versus Toledo,
citing the SC of Mississippi, said that the dying declaration is
necessary "to reach those man slayers who perpetrate their
crimes when there are no other eyewitnesses."
And from that pronouncement of the Supreme Court you can
gather than in a crime the dying declaration is admissible if the
only evidence as to that crime is the dying declaration.
A was walking around. And in a place where people gather for
drinking, he saw B crawling on the ground saying that it was Phil
Younghusband who stabbed him. No one else saw that it was
Phil who stabbed B. In that situation, Phil Younghusband would
not escape prosecution. In the case filed against Phil
Younghusband, A can be a witness for the cause and
surrounding circumstances of the death of B.
[Page 61 of 107]
Ad Majorem Dei Gloriam
Another name for dying declarations is an ante mortem-
statement: a statement made before death. It is also called a
statement in articulo mortis. Of course, you have already
heard about that in your Persons and Family Relations: marriage
in articulo mortis or marriages at the point of death.
The latin maxim applicable here is Nemo moriturus
praesumitur mentiri: "No-one on the point of death should be
presumed to be lying" or No one who is about to meet his
Creator with a lie on his lips.
Why is it dying declarations are allowed? There are two obvious
reason given in the case of:
People versus Bautista (1997)
There are 2 obvious reasons for the admissibility of a dying
declaration: (a) necessity and (b) trustworthiness.
Necessity, because the declarants death renders impossible his
taking the witness stand. And trustworthiness, since the
declaration is made in extremity, when the party is at the point
of death and every hope of this world is gone; when every
motive to falsehood is silenced, and the mind is induced by the
most powerful consideration to speak the truth. A situation so
solemn and awful is considered by the law as creating an
obligation equal to that which is imposed by an oath
administered in court.
There are 4 requirements for the admissibility of a dying
declaration, to wit:
[1] That death is imminent and the declarant is conscious of that
fact;
[2] That the declaration refers to the cause and surrounding
circumstances of such death;
[3] That the declaration relates to facts which the victim is
competent to testify to; and
[4] That the declaration is offered in a case wherein the
declarants death is the subject of inquiry.
So if you look at the trustworthiness element of the dying
declaration, it seems to be somehow religious. The dying
declaration is trustworthy because the hope no longer pertains to
this world but to the next. Question: What if the person does not
believe in God? Thats the problem if evidentiary principles or any
law is grounded on religious belief.
People versus Comiling
It is further stated that a dying declaration or ante mortem
statement is evidence of the highest order and is entitled to
utmost credence since no person aware of his impending death
would make a careless and false accusation. The declaration is
made in extremity, when the party is at the point of death and
when every motive to falsehood is silenced and the mind is
induced by the most powerful considerations to speak the truth.
The law considers the point of death as a situation so solemn
and awful as creating an obligation equal to that which is
imposed by an oath administered in court.
Please read the case of People versus Serenas as to how the
court took the dying declaration. (Sir did not discuss the case)
In People versus Salcedo, It seems the SC changed the
requisites a little bit.
People versus Salcedo
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
In order for a dying declaration to be held admissible, four
requisites must concur: first, the declaration must concern the
cause and surrounding circumstances of the declarant's death;
second, at the time the declaration was made, the declarant
must be under the consciousness of an impending death; third,
the declarant is competent as a witness; and fourth, the
declaration must be offered in a criminal case for homicide,
murder, or parricide, in which the declarant is the victim.
Naa pay pilosopo na pangutana: Sir ngano dili apil ang
infancticide? Before you ask a question, think about you
question.
Why is this case different? Because here the SC now specified:
the declaration must be offered in a criminal case for homicide,
murder, or parricide, in which the declarant is the victim. Unsa
nay nahitabo sa codal? The provision says in any case. That is
what Section 37 tells you. It does not say it should be in a
criminal case.
Lets go one by one as to the traditional requisites.
[1] That the declaration refers to the cause and
surrounding circumstances of declarants death
My example is always this: What is there is a husband and a
wife; the husband was stabbed, the wife was shot. The wife died
instantly. But the husband was bought to the hospital and said in
the emergency room that it was X who shot his wife. Shortly
after, he died. Would the declaration of the husband related to
the attending nurse be considered as a dying declaration?
Clearly no. Remember the requisite: That the declaration refers
to the cause and surrounding circumstances of the declarants
death. The declaration that refers to the cause and surrounding
circumstances of the persons death is not considered as a dying
declaration. That would be absurd. Ka-chismoso nalang ba nimu
mas napansin pa nimu ang death sa other person kaysa imuha.
It is contrary to human nature.
Another example: There is this dad who is suffering from a
terminal disease. The he confides a secret to his son that the
childs brother is not actually his brother; that the other brother
was just adopted from outside their doorstep. The father died.
That is what the American law would call a death bed confession
but we do not have that in Philippine law. In a case filed later,
the son excludes his brother from the estate on the grounds that
he is not really an heir. Can the fathers declaration be
considered a dying declaration?
No. Although the fact of legitimacy is very relevant to the case of
settlement of the estate and could in fact be disproven by the
supposed dying declaration, it does not concern the cause and
surrounding circumstances of the declarants death.
[2] That death is imminent and the declarant is conscious
of that impending death
Example: There is this guy walking around in the neighborhood
and was shot. Pero murag wala lang man sa iyaha. So maybe Ill
just go home, ride a taxi and change clothes. The he saw a taxi
and the taxi driver happens to be his friend. So he said to his
friend Remember Jun, our classmate from elementary? He shot
me. And indeed when he got home he died. Can that be
considered as a dying declaration?
No. It was not uttered under the consciousness of an impending
death. Remember that the reason why a dying declaration is
deemed trustworthy because it reflects his final words before he
dies. He does not want to meet his Maker with a lie. But if you
are not conscious of an impending death, the requisite is not
satisfied.
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Ad Majorem Dei Gloriam
But take note later on that in such situation, while that may not
be considered as a dying declaration that can be considered as
part of res gestae, which we will of course be discussing later.
People versus Rarugal
This case is a good illustration of how the requisites are applied
to determine whether or not it is dying declaration. Here, the
witness dies 7 days after the stabbing. Immediately after the
incident, he happened to mention to his brother, while they were
on the way to the hospital, that it was X and Y who attacked
him. Will that satisfy the requisite that it was made under the
consciousness on an impending death?
Take note that 7 days pa bagosyanamatay. Should the death
succeed after a short interval after the making of the dying
declaration? The answer of course is no. Why do we say that?
Jurisprudence is uniform in saying that it is not the rapid
succession of death but it is the circumstances of the person
making the dying declaration such as for example, the gravity of
his wound or whether or not there is an interval of time where
his imagination may run free.
From the FT of the case: We agree with the Court of Appeals
that the statement of Florendo made to his brother Renato has
complied with the requisites of a dying declaration. It is
important to note that Florendo, after being stabbed by appellant
twice on the chest, went home and under labored breathing, told
Renato that it was appellant who had stabbed him. Clearly, the
statement made was an expression of the cause and the
surrounding circumstances of his death, and under the
consciousness of impending death. There being nothing in the
records to show that Florendo was incompetent, he would have
been competent to testify had he survived. It is enough to state
that the deceased was at the time competent as a witness.
Lastly, the dying declaration is offered in an inquiry the subject
of which involves his death.
It is of no moment that the victim died seven days from the
stabbing incident and after receiving adequate care and
treatment, because the apparent proximate cause of his death,
the punctures in his lungs, was a consequence of appellants
stabbing him in the chest.
The victim need not state that he has lost all hope of recovering
or living. It is sufficient that the circumstances where such that
will inevitably lead to the conclusion that the time the declaration
was made the declarant was conscious of an impending death. It
is the belief in impending death and not the rapid succession of
death in point of fact that renders the dying declaration
admissible. It is not necessary that the approaching death be
presaged by the personal feelings of the deceased. The test is
whether the declarant has abandoned all hopes of survival and
looked on death as certainly impending.
[3] That the declarant would be competent to testify had
he survived
Example: There is a guy travelling abroad and went to the airport
and has a coffee. Just before the airplane leaves, the guy shows
symptoms of poisoning.Before he dies he say the manufacturer
used poisonous ingredients. And then he dies. Can that be used
against the coffee manufacturer?
No. Is he competent to testify at a medical certainty that he was
poisoned? Assuming he was poisoned, can he testify that it was
the coffee manufacturer who administered the poison? Of course
not.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Example: If someone was reading a newspaper (while covering
his face with the newspaper) and he was shot, can his
declaration that X shot him be considered as a dying declaration.
Of course not. He did not see the assailant at the moment he
died. That was precisely the ruling of the SC in People versus
Geraldo.
People versus Geraldo
The medico-legal findings would support that the victim was shot
at the back. How would you see your assailant even assuming
you survived? And therefore, the declaration cannot be
considered as dying declaration admissible as evidence.
From the FT of the case:It has not been established, however,
that the victim would have been competent to testify had he
survived the attack. There is no showing that he had the
opportunity to see his assailant. Among other things, there is no
indication whether he was shot in front, the post-mortem
examination report having merely stated that the points of entry
of the wounds were at the "right lumbar area" and the "right iliac
area."
Another condition to the requirement that he would have been
competent had he survived is that the statement was uncoerced.
It is a product of his spontaneous and voluntary intention to
speak. Not because someone was asking Si X nipatay nimu
nu?. That is coercion, influence and suggestion.
[4] The dying declaration is offered in any case where the
subject of inquiry is the declarants death
Take note that in common law, where our laws were taken from,
dying declaration are applicable only in relation to criminal cases.
When the federal rules of evidence itself came out, sometime
around in the 1980s, they rejected the limit in the application of
common law and applied it to any case. That is reflected on our
own Section 37.
In a criminal case for homicide, murder, or parricide, in which the
declarant is the victim, of course the subject of inquiry is the
death of the declarant.
In a civil case, can you ever apply a dying declaration? The
question you need to ask is: is there a civil case where the
subject of inquiry is the declarants death? For example,
ngitngitkaayodirasaAstorga. A person is hit by a vehicle in a very
dark part of the street. Then he makes a dying declaration that
he identifies that the vehicle who hit him is the neighbors vehicle
so he knows the vehicle intimately. He told the rescuing people
that it was X who was driving that killed him. And then he died.
So the heirs filed a civil case for damages for wrongful death
based on Article 2176 of the Civil Code; based on quasi-delict.
So what is the fact in inquiry in this case? It is the death of the
declarant. So the dying declaration must be introduced as
evidence as to the cause of death and surrounding circumstances
of death. So pwede sa civil case.
But again, take note of that limitation placed by people versus
Salcedo that such is limited to criminal cases: homicide, murder
or parricide.
One thing is clear here however: the declarant must have died. It
cannot be considered a dying declaration if the declaration is still
alive. For example, somebody was shot and then he told the
rescuer that X shot him and he lapsed into a comma. Is that
considered a dying declaration? Can there be a dying declaration
in homicide or murder in its attempted or frustrated stage? Wala
man namatay. No. There has to be death. It does not apply if the
person is alive, even though he is in a comma or brain dead.
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What is the only law that defines death? Organ Donation Act
of 1991.
Republic Act No. 7170. Section 2. x x x
(J) "Death" the irreversible cessation of circulatory and
respiratory functions or the irreversible cessation of all functions
of the entire brain, including the brain stem. A person shall be
medically and legally dead if either:
(1) In the opinion of the attending physician, based on the
acceptable standards of medical practice, there is an absence of
natural respiratory and cardiac functions and, attempts at
resuscitation would not be successful in restoring those
functions. In this case, death shall be deemed to have occurred
at the time these functions ceased; or
(2) In the opinion of the consulting physician, concurred in by
the attending physician, that on the basis of acceptable
standards of medical practice, there is an irreversible cessation of
all brain functions; and considering the absence of such
functions, further attempts at resuscitation or continued
supportive maintenance would not be successful in resorting
such natural functions. In this case, death shall be deemed to
have occurred at the time when these conditions first appeared.
The death of the person shall be determined in accordance with
the acceptable standards of medical practice and shall be
diagnosed separately by the attending physician and another
consulting physician, both of whom must be appropriately
qualified and suitably experienced in the care of such parties.
The death shall be recorded in the patient's medical record.
Arent there two types of death under the law? Actual death and
presumptive death. Can the rule on dying declaration be applied
when there is a presumptive death? But before that, you must
first ask the question: Can there be a prosecution for homicide or
murder if the body of the victim cannot be found? Yes.
People versus Roluna
The conviction of the accused for murder although the body of
the victim was not found or recovered. In said case, we ruled
that in case of murder or homicide, it is not necessary to recover
the body of the victim or show where it can be found. It is
enough that the death and the criminal agency causing death is
proven. The Court recognized that there are cases where the
death and intervention of the criminal agency that caused it may
be presumed or established by circumstantial evidence.
The People relies on the disputable presumption provided under
Section 5 (x) (3), Rule 131 of the Rules of Court, viz.:
The following shall be presumed dead for all purposes, including
the division of the estate among the heirs:
xxx xxx xxx
(3) A person who has been in danger of death under other
circumstances and his existence has not been known for 4 years.
So the SC sustained the conviction.
I cant think of a concrete example so I dont know if you will but
this crap: Lets say A, B and C were in a deserted island. Si A and
B nag-away sa pagkaun. Using a makeshift knife, B stabbed A.
Then A heard a shipped passing so he ran to the ship. Then C
asked him why are you running? A said there is a ship. C asked
why are you bloodied? A said B stabbed me but that doesnt
matter, lets go to the ship. Then the body of A was lost, kay
na-anud.
Can the declaration of A be considered as a dying declaration?
Why not pwede siguro If you know a case, tell me.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
If the victim survives, take note that can still be considered as
part of res gestae but never a dying declaration.
People versus Gatarin
Here it seemed like a dying declaration but they were not able to
prove with positively that the declarant made the declaration
under the consciousness of an impending death. In a nutshell,
what the SC is saying here is that the circumstances must be
proven by a positive testimony. If you are the person who heard
the dying declaration, your testimony must prove the four
requisites. As a lawyer, that will guide you as to making the
questions in cross examinations in relation to dying declaration.
From the FT of the case:In the case at bar, it appears that not all
the requisites of a dying declaration are present. From the
records, no questions relative to the second requisite was
propounded to Januario. It does not appear that the declarant
was under the consciousness of his impending death when he
made the statements. The rule is that, in order to make a dying
declaration admissible, a fixed belief in inevitable and imminent
death must be entered by the declarant. It is the belief in
impending death and not the rapid succession of death in point
of fact that renders a dying declaration admissible. The test is
whether the declarant has abandoned all hopes of survival and
looked on death as certainly impending. Thus, the utterances
made by Januario could not be considered as a dying declaration.
Normally, a dying declaration is used to prosecute the accused to
produce a conviction. Can it be used in favor of the accused?
Yes. The requisites do not say that it is supposed to pinpoint the
guilt of the accused.
Example: It was not X; it was Y who shot me. That can be
used to exculpate X from guilt.
Example: Katung Boston Massacre sauna. Prior the death of the
victims, they admitted to the physician that the soldiers who shot
them did so because the victims provoked them; they stirred up
trouble. The defense lawyer used dying declaration. So some of
the soldiers were acquitted and some had reduced sentence. So
dying declarations need not be prosecutory and can be used as a
defense.
Can there be a written dying declaration? Such as police
investigators who prepared the statement as to who shot the
person and had that person thumb mark the statement. Is it
admissible as a dying declaration? Yes, according to the case of
People versus Comiling. Can it be in an affidavit prepared by
the police and signed by the person? Yes, it can be admitted as a
dying declaration. But it does not mean that if it is admitted, it
will be believed. Admissibility is different from believability.
That can be considered as a dying declaration because in this
case the policeman actually heard the dying declaration and then
gi-sulat lang niya.
Also, take note of the case of People versus Padrones. The
dying declaration here consisted of a three page statement
signed by the declarant in bold strokes and in grand flourishes.
SC said that is not a dying declaration; it is not made under the
consciousness of an impending death.
People versus Padrones
From the FT of the case: It bears to stress that a mere cursory
examination of the three signatures appearing on the three-page
statement, in bold and clear strokes with two of them occupying
four inches of the page, and in grand flourishes, pronounced and
considered by the trial judge as a dying declaration, precludes
any indication that the signer thereof was under an impending
death. Further, if the deceased were truly on the point of death,
[Page 64 of 107]
Ad Majorem Dei Gloriam
he could not have had the strength to affix three signatures as
above described.
How about gestures or non-verbal acts? Can they be considered
as dying declarations?
So nag-palibut ang mga tao tapos nay gi-tudlo tung biktima and
then he died. Can that be considered as a dying declaration? It
can be interpreted in many ways. In other words, what you have
to remember here is the DOCTRINE OF COMPLETENESS. The
dying declaration must in itself be complete as to the purpose it
is offered for evidence. A dying declaration is considered
complete if it is a full expression of all the declarant wanted to
say with regard to the circumstances of the case. A simple hand
gesture not accompanied by any words is subject to many
interpretations. Dili na sya pwede. Non-verbal acts cannot be
considered as dying declaration.
According to Wigmore, as cited in:
People versus De Joya
The application of the doctrine of completeness is here peculiar.
The statement as offered must not be merely apart of the whole
as it was expressed by the declarant; it must be complete as far
it goes. But it is immaterial how much of the whole affair of the
death is related, provided the statement includes all that the
declarant wished or intended to include in it. Thus, if an
interruption (by death or by an intruder) cuts short a statement
which thus remains clearly less than that which the dying person
wished to make, the fragmentary statement is not receivable,
because the intended whole is not there, and the whole might be
of a very different effect from that of the fragment; yet if the
dying person finishes the statement he wishes to make, it is no
objection that he has told only a portion of what he might have
been able to tell.
People versus Medina
From the FT of the case: Henry Aniversarios positive
identification of Eduardo was further corroborated by Nelsons
dying declaration, as relayed to Nilda, identifying Eduardo as
the person responsible for the crime. As testified by Nilda, his
brother Nelson identified Eduardo as his assailant. Nelsons
declaration, uttered after he was shot and at the point of
death, constituted a dying declaration. While, generally, a
witness can testify only to those facts which are derived from
his own perception, a recognized exception thereto is the
reportage in open court of the declaration of a dying person
made under the consciousness of an impending death where
that persons death is the subject of inquiry in the case. To be
admissible, a dying declaration must:
(1) refer to the cause and circumstances surrounding the
declarants death;
(2) be made under the consciousness of an impending death;
(3) be made freely and voluntarily without coercion or
suggestions of improper influence;
(4) be offered in a criminal case in which the death of the
declarant is the subject of inquiry; and
(5) the declarant must have been competent to testify as a
witness had he been called upon to testify.
These requisites were sufficiently met in this case. Nelson,
having been shot and hit on the chest and thigh, was already
weak when he reached the doorstep of their house. Upon
reaching their doorstep, Nelson wasted no time in uttering to
his sister, Nilda, dalhin mo ako sa ospital. Nadali ako ni Eddie
Boy Fluid. May kinalaman si Gerry Conti dahil kanya ang baril.
(Nilda, bring me to a hospital. Eddie Boy Fluid got me. Gerry
Conti has something to do with it as he owns the gun.) Feeling
the weariness caused by his wounds and loss of blood, he
uttered those words to his sister Nilda, asking to be brought to
the hospital and informing her as to who is responsible for the
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

crime at the same time. His consciousness of the seriousness As to their differences, admissions against interest are those
of his condition was shown by his desire to be given immediate made by a party to a litigation or by one in privity with or
medical attention and his statement on the identity of the identified in legal interest with such party, and are admissible
perpetrator of the crime, evidently out of fear that failing to do whether or not the declarant is available as a witness.
so could be too late. Indeed, Nelson shortly expired thereafter,
30 minutes from arriving at the hospital due to exsanguination Declarations against interest are those made by a person who is
or severe loss of blood. neither a party nor in privity with a party to the suit, are
secondary evidence, and constitute an exception to the hearsay
DECLARATION AGAISNT INTEREST rule. They are admissible only when the declarant is unavailable
as a witness.
Section 38. The declaration made by a person deceased, or
So that is the distinction.
unable to testify, against the interest of the declarant, if the fact
is asserted in the declaration was at the time it was made so far
ACTS OR DECLARATION ABOUT PEDIGREE
contrary to declarant's own interest, that a reasonable man in his
position would not have made the declaration unless he believed
it to be true, may be received in evidence against himself or his Section 39. The act or declaration of a person deceased, or
successors in interest and against third persons. unable to testify, in respect to the pedigree of another person
related to him by birth or marriage, may be received in evidence
where it occurred before the controversy, and the relationship
The situation here is the declaration against interest is made by
between the two persons is shown by evidence other than such
the deceased and therefore, he cannot be brought in court
act or declaration. The word "pedigree" includes relationship,
anymore to testify. What he declares is anything that is
family genealogy, birth, marriage, death, the dates when and the
prejudicial to him and now a person testifies as to such
places where these fast occurred, and the names of the relatives.
declaration in court. That is declaration against interest.
It embraces also facts of family history intimately connected with
This should sound familiar to you because this is similar to extra-
pedigree.
judicial admissions. What is different in Section 38 from an
admission per se? But before that read:
What is the testimony here all about? The pedigree of the
Fuentes versus CA person. A person who has knowledge of these matters is already
dead and therefore cannot be brought to court. So, a person who
There are 3 essential requisites for the admissibility of a has heard these statements as to pedigree may testify as to what
declaration against interest: was told about pedigree. So for example, the declarant while
alive said X is our distant relative. So that declaration can be
(a) the declarant must not be available to testify; used as to the filiation and paternity of that person. That can be
(b) the declaration must concern a fact cognizable by the used as evidence.
declarant; and
(c) the circumstances must render it improbable that a motive to Tecson versus Comelec
falsify existed.
This is a case to prove the citizenship of Fernando Poe Jr. and his
qualification to run as president of the Philippines. The SC was
What is the reason for its admissibility? Necessity and contrained to use Section 39 to prove his Filipino Citizenship.
trustworthiness; pareho lang sa dying declaration.
From the FT of the case: Thus, the duly notarized declaration
made by Ruby Kelley Mangahas, sister of Bessie Kelley Poe
Lazaro versus Agustin
submitted as Exhibit 20 before the COMELEC, might be accepted
to prove the acts of Allan F. Poe, recognizing his own paternal
From the FT of the case: At the outset, it bears to point out that
relationship with FPJ, i.e, living together with Bessie Kelley and
it is wrong for petitioners to argue that Basilisa's alleged sworn
his children (including respondent FPJ) in one house, and as one
statement is a declaration against interest. It is not a declaration
family.
against interest. Instead, it is an admission against interest.
Tison versus CA
Indeed, there is a vital distinction between admissions against
interest and declarations against interest. Admissions against
From the FT of the case: Such a statement is considered a
interest are those made by a party to a litigation or by one in
declaration about pedigree which is admissible, as an exception
privity with or identified in legal interest with such party, and are
to the hearsay rule, under Section 39, Rule 130 of the Rules of
admissible whether or not the declarant is available as a witness.
Court, subject to the following conditions:
Declarations against interest are those made by a person who is
neither a party nor in privity with a party to the suit, are
(1) That the declarant is dead or unable to testify;
secondary evidence, and constitute an exception to the hearsay
(2) That the declarant be related to the person whose pedigree is
rule. They are admissible only when the declarant is unavailable
the subject of inquiry;
as a witness.
(3) That such relationship be shown by evidence other than the
declaration; and
In the present case, since Basilisa is respondents' predecessor-in-
(4) That the declaration was made ante litem motam, that is, not
interest and is, thus, in privity with the latter's legal interest, the
only before the commencement of the suit involving the subject
former's sworn statement, if proven genuine and duly executed,
matter of the declaration, but before any controversy has arisen
should be considered as an admission against interest.
thereon.
What is the distinction between declaration against interest and
EVIDENCE REGARDING PEDIGREE
admission?

As to similarity, they are both prejudicial to declarant. Section 40. Family reputation or tradition regarding pedigree.
The reputation or tradition existing in a family previous to the
controversy, in respect to the pedigree of any one of its

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 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
members, may be received in evidence if the witness testifying
thereon be also a member of the family, either by consanguinity
or affinity. Entries in family bibles or other family books or charts,
engravings on rings, family portraits and the like, may be
received as evidence of pedigree.
This is the reason why even though you do not have personal
knowledge of your date of birth, evidence can be presented as to
you birthday; it is one of the matters relating to pedigree. The
traditions existing in our families as to when we are born is good
enough.
What is a family bible? Not a simple bible ha. Karaangpanahon
man gud, families would write when children are born, deaths of
families, etc. It is not a bible itself but if you look at Genesis,
there is a genealogy.
Engravings on rings what are we talking about? In my wedding
ring, there are several things engraved. So a hundred years from
now, my ring still survives. And then a question is asked as to
when I got married, my children, etc., this ring can be used as
evidence of family reputation and tradition.
Family portraits: so during special occasions we take family
pictures.
Take note that there is the word: and the like, meaning this
section is not an exclusive list. So what is included in this term
and the like?
Jison versus CA
We hold that the scope of the enumeration contained in the
second portion of this provision, in light of the rule of ejusdem
generis, is limited to objects which are commonly known as
"family possessions," or those articles which represent, in effect,
a family's joint statement of its belief as to the pedigree of a
person. These have been described as objects "openly exhibited
and well known to the family," or those "which, if preserved in a
family, may be regarded as giving a family tradition." Other
examples of these objects which are regarded as reflective of a
family's reputation or tradition regarding pedigree are inscriptions
on tombstones, monuments or coffin plates.
So apilang tombstones. Sometimes other family members names
are engraved on tombstones. So clearly related
tungmgapangalanna to.
People versus Llanita
The above provision contains three requisites for its admissibility,
namely:
1.) That there is a controversy in respect to the pedigree of any
of the members of a family;
2.) That the reputation or tradition of the pedigree existed
previous to the controversy; and
3.) That the witness testifying to the reputation or tradition
regarding the pedigree of the person must be a member of the
family of said person.
The word "pedigree" under Section 39 of the same Rule includes
relationship, family genealogy, birth, marriage, death, the dates
when and places where these facts occurred and the names of
relatives.
What is the difference between Section 39 and Section 40?
The important difference is who the witness is. In Section 39, the
witness need not be a member of the family. He is a person who
[Page 66 of 107]
Ad Majorem Dei Gloriam
heard the act or declaration of the family member. In Section 40,
the witness must be a member of the family. He is himself part
of the family.
In Section 39, the relationship between the declarant and the
person whose pedigree is under consideration must be
established by independent evidence. In Section 40, it is the
witness himself to whom the fact of pedigree relates. It is not
necessary for him to establish his relationship in the family.
In Section 39, it is about the statement made by the declarant
who is dead or is unavailable to testify concerning the pedigree
of family. In Section 40, the statement is about what usually is
the tradition and belief within the family regarding the pedigree
of another.
COMMON REPUTATION
Section 41. Common reputation existing previous to the
controversy, respecting facts of public or general interest more
than thirty years old, or respecting marriage or moral character,
may be given in evidence. Monuments and inscriptions in public
places may be received as evidence of common reputation.
Why would this be admissible as evidence when in fact tit is not
credible? Common reputation refers top those facts which
everybody seems to know and yet you cannot pinpoint the
source of information. For example, if you are from Davao City,
you would share with your fellow Davaoeno the understanding
that Uyanguren is our China Town.
Whoever was the source of that information? We do not now.
But that reputation has existed for a long time. And that is the
reason why such reputation becomes necessary and trustworthy.
Everybody knows it and thus it is trustworthy. It is necessary
because the source could no longer be known. There is a public
and general notice.
Monuments and inscriptions: Example, that inscription in the
house of Jose Rizal which says Bahay ni Jose Rizal. You take it
as that; that is its common reputation. What profit will you get
from disproving that?
Marriage: This rule is also applicable as to marriage. For
example, a couple who has for a long time, purported
themselves as husband and wife when in fact they are not.
As to moral character, read CSC versus Belagan, GR 132164
and Trinidad versus CA, GR 118904.
Sept. 16, 2015 (DJG)
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.
Once again our law makers have deemed it quite sufficient to
just mention the phrase res gestae without defining it.
Literal translation of res gestae:
Res things
Gestae done
Literally speaking, things done
Why is it that sec 42 exception to hearsay? This is based on the
belief that there are certain statements that are made naturally,
spontaneously and without deliberation during the course of an
eventthat may leave very little room for misunderstanding or
misinterpretation.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Imagine a situation, your first time riding a roller coaster; sudden
changes in direction and acceleration, reaction makuratan,
mahadlok, or you'll scream. That's a startling occurrence.
Will you pause, and perhaps contemplate as to best way to
react? NO. We react according to what comes out naturally; you
dont think as to what you are going to react.
That is why the law considers res gestae as an exception,
because of its spontaneous nature, of the spontaneity involved.
That the law will presume that whatever comes out of the mouth
of the declarant is supposed to be reliable. Because there is very
little room to fabricate and contemplate the proper reaction
Ikaw daw pusilon, luguson?
SC defines res gestae as that which refers to statements made
by the participants or the victims of or the spectators to a crime
immediately or during or after its commissions.
These statements are spontaneous reaction or utterance without
any opportunity for the declarant to fabricate the statement.
An Excited Utterance, statement made spontaneously.
Why is it an exception?
Necessity because the declarant is unavailable to testify
(maybe due to death or other physical unavailability)
Trustworthiness because it presupposes a declaration
made out of instinct and spontaneity and the lack of
opportunity to concoct a story
Two exceptions subsumed thus under section 42 (two
parts of res gestae) :
I. SPONTANEOUS REACTION: Statements that give
legal significance to startling occurrences.
Statements made by a person while a starting
occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances
thereof;
So assume that there's this house where a robber just
barged in, Bangs, owner and has a maid, Melai; robber
sees a lot of women, lustful, raped Melai. Rape victim
screaming Maawakasa akin! Nihawaang robber. Police
arrived. Bangs had heard Melai shouting; Melai said I
was raped by the robber. In the prosecution, unavailable
si Melai.
Can you still prove without Melai? Yes. Either bangs (as
to what she heard) or police (as to what was related to
him) can testify.
Requisites of admissibility (as spontaneous statement):
1. The principal act or res gestae is a startling occurrence;
2. The statements were made before the declarant had the
time tocontrive or devise; and
3. The statementsmust concern the occurrence in question
and its immediately attending circumstances.
Important: Statements are made spontaneously.
II. EQUIVOCAL or simply, VERBAL ACTS: Equivocal
acts or actions which ordinarily would be
susceptible to several interpretation or meanings
but is given legal significance by statement
accompanying it.
Actions which might be susceptible to several
interpretation and the statements which accompany
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Ad Majorem Dei Gloriam
these acts will be considered as an exception to the
hearsay rule. (proceeds to give money to Kirstin) in the
illustration, the point is, The Legal significance proves
by what is stated, that is, a loan transaction.
How do you distinguish these two parts of Res Gestae? As
to principal fact:
a. Spontaneous Reaction: it is the statement made in a
startling occurrence(Statement may precede,
accompany or succeed; before during or after); no need
to explain principal fact
b. Verbal Act:it is the equivocal act itself (statement must
accompany or immediately subsequent, cannot be prior
since no verbal act to speak of yet); must explain
principal fact and give it legal significance
The concept of Present Sense Impression a statement
made by a person that conveys his/her sense of state ( Gigutom?
Kalibangon?) in an event,
If somebody hears you saying that, that person can testify that
that was what you were feeling that time. Ex. Car isgoing very
fast, when riding the car, and therefore, when overheard may be
used as evidence in case for overspeeding.
Lozano vs People, July 9, 2010, look for the present sense
impression.
Distinction between Section 37 (DD) & Section 42 (RG)
1. As to death
DD: declarant must die, if the declarant did not die
then what applies is that there was startling
occurrence, then that can be admitted as part of
the RG.
RG: no need for the declarant to die, but must be
unavailable to testify
2. When do you make a declaration?
DD: after the injury has already been inflicted
RG: statement can be made prior or simultaneous
with or subsequent to the startling occurrence (ex.
What happens if somebody was wounded but did
not die, and prior to losing consciousness he was
able to utter the name of assailant, enriquegil? So
unavailable to testify, pasok sa RG)
3. Who makes the declaration?
DD: the Victim, the person who died
RG: Practically anybody, it can be the victim or the
assailant himself, or the spectators
Statement may qualify as a DD and RG: Under the concept
of multiple admissibility of evidence, where statements were
considered as both DD and RG.
Cases:
People vs *** 265 scra 472, the concepts were
simultaneously applied.
Girl Josephine at the emergency room, saw a boy
carried by a man followed by grandmother, shouting
hysterically, pinatay siya ng sariling ama, boys father
had beaten him up tied his hands and stabbed him
Although not dying, is actually part of res gestae.
Immaterial if grandma was accurate or stating in
personal knowledge.
Martorillas vs People, April 18, 2006
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Brgy captain, nay gibaril nga neighbor then fled the
scene of the crime. Si kapitan nipusil, and the guy shot
was able to tell the wife it was kapitan who shot him
and then wife went to kapitan himself, the alleged
assailant, kapitan, nganu man nimo gipusil ang akong
bana?
So there were two statements: that by the victim and
that by the wife. How do you appreciate what the wife
said? That is part of the res gestae, since it was uttered
after a startling occurrence: the shooting of her
husband.
The SC ruled that even if it will not qualify as dying
declaration, it will still be admissible as part of the res
gestae.
Factors in determining the spontaneity of a statement:
1. Time that lapsed between the occurrence of the act or
transaction and the making of the statement;
2. Place where the statement was made;
3. Condition of the declarant when he made the
statement;
4. Presence or absence of intervening events between the
occurrence of statement relative thereto; and
5. Nature and circumstances of statement.
If you are able to cast doubt as to the spontaneity of the
supposed statement, then it will be considered as hearsay.
Take note of the following cases:
1. DBP vs RMN, January 27, 2006
2. People vs Pascual, January 19, 2006
May nangyari sa taas, at galling doon si
BOYET. Startling event: rape and murder.
Can RG be appreciated in a non-criminal case? YES.
Golden Delta Sales case, January 12, 2009
This is a special civil action for replevin; warehouse,
gipanguha ang stocks or inventories by the purported
owner. Gilista ang mga gipangkuha sa employee. What
if the one who prepared the list is unavailable to testify?
Can the list hurriedly prepared considered as part of
RG? (thus no need for the one who prepared?)
It was admitted as part of RG by statements, acts or
conducts accompanying the main transaction as to
become a part of it.
RG can also come from the accused himself. As what happened
in the case of People vs Sase, April 5 2010
After raping and killing a child, dazed, naglutaw, nag
confess sa police. While prosecuted, he claims you
cannot use that confession, that statement; It is
hearsay and against my right under custodial
investigation.
The SC said, no. It is part of RG. The startling
occurrence: rape and murder which must have been so
unsettling and unnerving to the accused that he had the
urge to confess. And not considered as custodial
investigation if you voluntarily confess to the police
investigators.
People vs Feliciano, May 5, 2014:
About fraternity war that broke out, victim who died is
Dennis Venturina, happened in 1994 but the SC wrote
finis only after 20 years.Now, members were eating at
the canteen, masked men charged at them, then
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Ad Majorem Dei Gloriam
rumble. UP police took statements of the
bystandersstating that the attackers were masked and it
happened too fast. However, the testimony by members
of sigma rho had different statements. They claimed
they were able to unmask their attackers. So, two
conflicting statements.
During trial (battle of alumni lawyers), What prevails?
Positive identification or res gestae?
The SC said the former prevails anytime. Why? It is the
very nature of res gestae, as an exception to hearsay
rule, that occurrence is startling and thus not totally
reliable.
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.
This is known as Business Records Exception.
Requisites: Security Bank vs GAN, June 27, GR 150464
1. Person who made the entry must be dead or unable to
testify;
2. The entries were made at or near the time of the
transaction;
3. Entrant must be in a position to know the facts stated
ion the entries;
4. Entries were made in a professional capacity or in
performance of a duty whether legal, contractual, moral
or religious; and
5. Entries were made in ordinary or regular course of
business.
Why is this exception to the hearsay rule? Rationale:
Necessity - since the person who made the entry might
possibly be dead or unable to testify; and
Trustworthiness because of route and repetition,
hence reliable on the world of business
What is the significance of entries were made in professional
capacity? Meaning if you are an accountant, you are making the
entries as an accountant, if bookkeeper, as bookkeeper and so
on.
x x x in performance of a duty whether legal, actual,
moral or religious
Ex. Baptismal certificates (transcript of the book kept by the
parish or church)
Cases:
Republic vs Mangotara, July 2012, GR 17037
Sps Delacruz vs Planters, February 2013
Section 44. Entries in official records. - Entries in official
records made in the performance of his duty by a public
officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law, are prima
facie evidence of the facts therein stated.
This is known as Official Records Exception.
Requisites: Miro vs Mendoza, November 20, 2013
1. Entry was made by public officer or any person specially
enjoined by law to do so;
2. That it was made by an officer in the performance of a
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
duty or such other persons in the performance of a duty
specially enjoined by law; and
3. Public officer or other person has sufficient knowledge
of the facts which must have been acquired personally
or through official information.
Example, what you do when somebody injured you? A blotter,
accident reports, etc., do you need to present the police
officer who prepared those, so that the blotter may be admitted
as evidence? If the requisites are present, then that will be
admitted. (Malayan Insurance vs Alberto, February 1, 2012)
Medico-legal Report.When is this required? When it is a result
of suspected criminal activity. After the tests are conducted,
there is formed an anatomical sketch. Are these self-
authenticating if you do not present the medico-legal officer?
People vs Mayingque, July 6, 2010.
The testimony of Dr. Salen as regards the Anatomical
Sketch, and Medico Legal Report, among other things,
prepared by Dr. Aranas falls under the exception to the
hearsay rule because the said sketch and report are
entries in official records made by Dr. Aranas in the
performance of his duty as a Medico Legal Officer of the
WPD Crime Laboratory. The entries were duly entered in
a regular manner in the official records, hence, the
entries in said sketch and report are prima facie
evidence of the facts therein stated and are admissible
under Section 44.(from OLD tsn)
Report of Forensic Chemist. With regard to quantity of meth
found in the crime scene, etc. People vs Presas, March 2,
2011.
Corpus delicti of the offense, the drugs mismo. Would
that require the testimony of the forensic chemist?
Again, SC said, NO. it is presumed regular, it is
considered as entries in official records.
Cadastral Survey Maps. SC said in Dimaguila vs Monteiro,
January 27, 2014. These are considered as entries in official
records.
How do you distinguish Section 43 and 44?
1. Who is the entrant?
a) 43: anybody who has done it pursuant to a
professional duty, whether legal, moral, contractual
or religious;
b) 44: must be a public officer or private individual
who performs a duty specially enjoined by law
(ITR).
2. How is the entrant?
a) 43: must be dead or unable to testify
b) 44: no requirement
Read: Patula vs. People, April 11, 2012, GR 164457
Section 45.Commercial lists and the like. Evidence of
statements of matters of interest to persons engaged in an
occupation contained in a list, register, periodical, or other
published compilation is admissible as tending to prove the
truth of any relevant matter so stated if that compilation is
published for use by persons engaged in that occupation
and is generally used and relied upon by them therein.
Why are these considered exceptions?
Necessity it would be impracticable to identify the source
of the information because they are so many (compilation
gud ni)
Trustworthiness because it is used in the industry or
occupation
[Page 69 of 107]
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Example: Phonebook, yellow pages. You do not have to present
the publisher.
PNOC vs. CA, G.R. No. 107518 October 8, 1998.
A maritime collision case. Ship A (at fault) and Ship B
(innocent) collided. How to prove the ships worth? Price
quotations presented. Are they admissible? They are.
But GR is you must present the person who made the
quotations. Defendant objected. No presentation of
persons.
Not commercial list since the requisites are as follows:
1. it is a statement of matters of interest to persons
engaged in an occupation;
2. such statement is contained in a list, register,
periodical or other published compilation;
3. said compilation is published for the use of persons
engaged in that occupation, and
4. it is generally used and relied upon by persons in
the same occupation.
Section 46.Learned treatises. A published treatise,
periodical or pamphlet on a subject of history, law, science,
or art is admissible as tending to prove the truth of a
matter stated therein if the court takes judicial notice, or a
witness expert in the subject testifies, that the writer of the
statement in the treatise, periodical or pamphlet is
recognized in his profession or calling as expert in the
subject.
According to Francisco, learned treatises are those historical
works, scientific works or treatises on law.
Ex. On medical malpractice committed by a doctor. What is an
accurate statement on contemporary medical standards? You
have to refer to medical treatise made by an expert on the
subject.
Two modes for which learned treatises are made
admissible:
1. When the court takes judicial notice; and
2. If the court does not take judicial notice, then a witness
expert on the subject should testify re the offered
evidence.
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.
Deposition or testimony at a different case. This has a very
limited application: only against the adverse party.
Remember, that in the two cases, the same parties.
Requisites for admissibility: (Samallo vs CA, March 05):
1. Testimony must be given in a former case or
proceeding;
2. Must be the same parties representing the same
interests;
3. Former case involves the same subject as that in the
present case although a different cause of action;
4. The issue testified to and witnessed in the former trial is
the same issue involved in the present case; and
5. The adverse party had an opportunity to cross-examine
the witness in the former case.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Rationale:
Necessity because of death or unavailability of a former
witness or deponent;
Trustworthiness because the adverse party had an
opportunity to cross-examine the witness in the former case.
Opportunity is enough; the fact that he did not cross
examine, does not matter.
Other Causes of Unavailability:
1. Illness;
2. Mental incapacity;
3. Physical disability due to sickness or age;
4. Beyond coercive jurisdiction of the court;
Read: Toledo vs People, September 30, 1978.
OPINION RULE
Section 48. General rule. The opinion of witness is not
admissible, except as indicated in the following sections.
Opinions are immaterial. Otherwise, prosecution becomes a
popularity contest.
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 possess, may be
received in evidence.
Who is an expert witness? A person who has special
knowledge, skill, experience or training which he shown to
possess on matters pertinent to case.
In one case, an expert witness is defined as one who belongs to
the professional or calling which the subject matter inquiry lays
and who possesses special knowledge on questions on which he
composes to express an opinion.
GR: Opinion is inadmissible
Exc: Expert Opinion
Why? In matters other than legal or there are special knowledge
that is required to determine culpability or non-culpability in a
case, the court should not presume to be expert but rather seek
the opinion of experts.
Example: Article 36, psychological incapacity. Because of
Republic vs Molina which requires the opinion of a psychiatrist or
psychologist attesting to the curability or incurability of the
incapacity. Without that, case cannot prosper.
He testifies based on hypotheticals. Like for example, if this is
what happened, what will be the probable result?
What do you do when you want to present an expert witness?
1. Propose to the adverse party a stipulation that your
witness is an expert; if the court takes judicial notice, he
may be presented;
2. If the court does not take judicial notice, then he cannot
be considered a witness, you have to qualify.
How do you qualify a witness? To qualify is the act of proving
that the witness is an expert. This is done by making the expert
testify to preliminary questions as to his training, education, and
expertise. There is expertise achieved by training and knowledge
(not only scholarly), like a carpenter since 9 years old until now.
Since there is no precise requirement as to the mode in which
skill or experience required.
Cases to read:
Kalimutan vs People, February 9, 2006
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Ad Majorem Dei Gloriam
Babao vs People, July 20, 2011
Dela llana vs Biong, December 4, 2013
People v. Abriole, Oct 17, 2001,
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.
The witness may also testify on his impressions of the
emotion, behavior, condition or appearance of a person.
Identity: When a person you have known for the longest time
calls you through phone, pagingun pa lang ug hello you know
who it is.
Handwriting: Sir knows the handwriting of his wife.
Mental sanity: Dugay namo kaila, buang gyud na. Did he seem
happy? Was he agitated?
Condition: Was he cold? He seems scared.
Section 51.Character evidence not generally admissible;
exceptions:
(a) In Criminal Cases:
(1) The accused may provehis good moral
character which is pertinent to the moral trait
involved in the offense charged.
(2) Unless in rebuttal, the prosecution may not
prove his bad moral character which is pertinent
to the moral trait involved in the offense charged.
(3) The good or bad moral character of the
offended party may be proved if it tends to
establish in any reasonable degree the probability
or improbability of the offense charged.
(b) In Civil Cases:
Evidence of the moral character of aparty in civil
case is admissible only when pertinent to the
issue of character involved in the case.
(c) In the case provided for in Rule 132, Section 14.
Why? A case in court is not supposed to be won on character.
Your info about the character is purely circumstantial in nature
and therefore, immaterial.
Memorize the above section 51 and section 14 of Rule 132.
Rebuttal evidence is that which is presented in court to refute
or destroy the prima facie evidence presented.
September 23, 2015 (JRL)
In a civil case, what do you call a claiming party? Plaintiff.
Always up against a defendant. Of course, we understand that a
defendant can also be aplaintiff. A fellow defendant can also be
an additional defendant in a cross-claim. And both plaintiff and
defendant can also be plaintiffs in a third party claim where
somebody is ****. Also, when there is a complaint in
intervention where either the plaintiff or defendant can also
sought be held liable.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
In criminal procedure, what do you call the claiming party? In
the title of the cases People of the Phil. But who actualy
prosecures the case on behalf of the People of the Phil?
Prosecution! Prosecution vs. The accused or Prosecution vs. The
defense.
Only on appeal can the prosecution be considered the defending
party when the accused appeals his conviction, it would be called
now Pp vs. The accused. Pero dili pwede na mabaliktad ang
kaso. *inaudible*
In the case of a summary procedure case usually, muagi jud kag
preliminary investigation which is an inquest to PI which happens
when the accused was caught in flagrante delicto.
If you are going to file special civil action, what do you call
the claming party and the defending party? What do you file in a
SCA? You file a petition diba. So Petitioner vs. Respondent. It can
be complainant vs. Respondent in administrative cases (where
you do not file the Rules of Court).
So let us suppose a case has already been filed (civil, criminal or
SCA), question is kinsay una mu-present ug evidence? When you
ask the question, who goes first? It can be equated to a more
legal question: Who bears the onus probandi? Or the burden of
proof? Once you are able to answer that, you would be able to
also understand which among the parties has the burden of
proving the fact in issue of the case? That is the goal of
evidence: to prove the fact in issue. Remember that if a fact is
not an issue, it need not be proved because it becomes irrelevant
to the case.
The burden of proof as a general rule rests on the
person claiming. So if you are the Plaintiff in a civil case,
ordinarily as a general rule, you present first. Because
the law says you have the burden.
GR same thing with the prosecution. Normally, it is the
prosecution unless of course the accsied claims a
justifying circumstancfe like self defnes! Which
practically reverses the ordfer of trial. But GR is
prosecution.
SCA, Proof to present evidence argued properly that you
are entitled to a relief otherwise, your petition would
fail!
Question: Why should these cases be dismissed if P, prosection
or P does not advance anything?
Burden of proof always go hand in hand with benefit of
assumption. There could not be any proof unless there is a
benefit of assumption.
Example: Why is it that the prosecutor has the burden of proof?
Because the accused has the benefit of assumption. That is to be
presumed innocent until the contrary is proved.
Unsa ang basis karon? (civil cases, SCA, etc.) Is there a
presumption of innocence when it comes to civil cases? The
benefit of assumption if you possess it would entitle you to an
acquittal or dismissal of the civil case filed against you because
the plaintiff, prosecutor or petitioner was not able to discharge
the general rule (?). So, unsa ang basis? For these civil cases or
SCA, it is simply due process.
Its not enought that a claim is filed but courts of law must be
convinced that there is something thats *** the claim. Its not
enough. The burden of proof therefore under Phil, setting,
always has to do with proving that you did not do anything
wrong (example Grace Poe na DQ for running as a President,
etc. etc.)
[Page 71 of 107]
Ad Majorem Dei Gloriam
Why do you think burden of proof exists? If you want to claim
something or if you accused someone of doing something, why
do you have to prove that first?
Example: [During the time of Solomon]
Mama A Ako ng anak!
Mommy B Akoa pud ng anak!
Both of them are claming and therefore, they have the burden of
proving? (*naabot na sa Biblical times ug birth certificate ug
census) How did Solomon adjudicate their claim? Solomon said
na tungaon ang bata and they will be entitled to of the child.
Mommy A said dili pwede. So, Solomon decided na ** mao na
ang tinuod na inahan sa bata and therfore, giaward niya giving
the mother the benefit of presumption. Whoever has the
benefit of assumption, if unrefuted, unless the burden of
proof is discharged defeating the benefit assumption, the
person who has the benefit of assumption wins.
[Talks about the Presidential candidates] Well talk now about
Rule 131 [Pisti, karon pa diay magsugod!]
Rule 131
BURDEN OF PROOF AND PRESUMPTIONS
Trivia: Longest provision is Section 3.
BURDEN OF PROOF. What is this? In political law or maybe in
criminal law when we are talking about due process, naa tay
ginatawag na burden of proof.
PRESUMPTIONS. When did you encounter presumptions?
Presumption means that unless it is rebutted by contrary proof, it
will be taken as truth.
Republic vs. Luzon Stevedoring
There is a barge and a statitonery object. A moving object
collides with a stationery object, kinsa naay sala? Therefore
based on the facts, it can be presumed that it was the barge
that was negligent because facts would have it ***. And
therefore, res ipsa loquitor applies the thing speaks for itself
and presumption is thereby **
Other presumptions:
1. Presumption of innocence
2. Criminal intent Need not be proved. Intent is presumed.
Why is burden of proof lumped together with presumptions? Why
in the same Rule?
When there is a burden of proof, the opposite side will always
have the benefit of presumption. A presumption would entitle
you with....
From other source: This is because of the intimate connection of
the two. As a rule, the burden of proof lies upon he who alleges
and not upon one who denies. However, when there is an
applicable presumption, the burden of evidence shifts on the
party who denies to dispute hat applicable presumption.
Therefore, an unrebutted resumption is equivalent to truth.
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.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
DUTY. Because you have to do it. Therefore, it is a judicial
imperative. Present evidence on the facts in issue, never upon
something that has no bearing of the issue in the case because it
would therefore become irreleant, immaterial to establish his
claim or defense which tells you that there is a burden of proof
of can be *** at one time or another to the plaintiff or defendant
, prosecution and accused, petitioner and respondent. It applies
to both the claimant and the defending party. But the amout of
evidence required is different.
QUANTUM OF PROOF. What is the quantum of proof? What is
this amount of evidence?
If you are prosecuting a ciminal case > proof beyond a
resonable doubt. Even if you presented proof in a criminal
case and you are the prosecutor but you have failed to
adduce proof beyond reasonable doubt, the accused is
entitled to an acquittal because the prosecution failed to
discharge the burden of proof, the onus prbandi of the case.
Civil case -> What is the quantum of proof? A mere
preponderance of evidence.
What about in administrative cases -> Mere substantial
evidence, such amount of evidence that a resonable mind
might accept as sufficient to sustain a conclusion. All you
have to do is prove prior facts. Dili na kailangan ang proof
beyond reasonable doubt.
Rule 128, Section 1. Evidence is the means, sanctioned by
these rules, of ascertaining in a judicial proceeding the truth
respecting a matter of fact.
Therefore, evidence is actually the device that we use to
discharge the burden of proof because when you are able to
discharge the burden of proof then you establsh the truth
respecting a matter otf fact. To discharge the burden of proof is
therefore the end sought to be achieved by the presentation of
evidence. In latin semper necessitas probandi incumbit ei qui
agit, the best translation of which seems to be: "the necessity of
proof always lies with the person who lays charges."
It is the proesecution the carries the burden of proof intially
during trial and similarly, in other cases, whoever alleges has the
burden of proof.
Example: That whoever alleges has the burden of proof
Expropriation cases. Who files it? Government. Its the
Government that seeks to expropriate property and has the
burden of proving the existence of compliance witht the elemnts
for the valid exercise of the right of eminent domain. So if
govenment does not able to rpove that there is justitfication for
thet aking, therefore ther eis imporper taking, the case for
edxpropriation shoudl fail., he who alleges must prove his claim.
Test in determining where the burden of proof lies. Which
party to the case will fail if he offers no evidence competent to
show the facts averred as the basis of the relief he seeks? So if
the P does not present any evidence against the D, he loses. If
the Prosecutor does not establish or present evidence trying to
prove the guilt of the accused, the accused therefore is entitled
to an acquittal as a matter of fact.
The party who has the burden of proof is the party who
stands to lose in the case if no evidence is presented by
the parties to the case.
But there are varations to that.
Example: If the D has a counterclaim.
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Ad Majorem Dei Gloriam
Theerfore, for that counterclaim, D also has the burden of
prvoing. To be awarded his counterclaim, D must prsesent
evidence such that if the D does not present evidence, P will win.
Are there instances where technically speaking the initial burden
of proof does not rest with the P himself? Meaning, defendant
ang mauna!
2 types of defenses
1. Negative Defenses
What are you alleging in negative defenses? Here, you
are alleging facts by way of specific denial. So the plaintiff
is saying that you borrowed money and you are saying
that you did not! That you totally deny that and you deny
that you know the plaintiff. That is negative defense.
2. Affirmative Defenses
In a similar situation where p claims money from D. The D
can defend himself by saying that he has laredy paid
plaintiff. Or that D got money but that was not a loan but
a donation. Here, you are saying that you got money but
you ahve already paid or that the debt had already
prescribed.
Defense of confession and avoidance.
Question: P sues D for collection of money. D has how many
options? If you are the D, within the 15 day period, you have
how many options that are available to you?
Answer: You only have 3 options within the 15-day period from
the service of summons.
1. File an answer with or without affirmative defenses
2. File a motion to dismiss
3. Motion for Bill of Particulars
Suppose you have a ground for MD and your ground is that the
claim set forth in the Ps pleadings has been paid or waived or
nag prescribe na. You can file a MD. Dili naka ka collect. What is
the effect if you file a MD? A MD is not a ** adn therefore,
masayang lang kay pwede pa ddiay niya i-amend iyang pleading
as a matter of right. Amendements as a matter of right can only
be affected only if the pelading has been respondedd to by
another pleading. And so, you choose to file an answer with
affirmative defenses. Youre going to allege now in your answer
your ground for a MD.
So what is the effect of alleging that? You are saying yes na naa
kay utang but you should not be made to pay because the debt
has already prescribed. Or even if you file a MD and you say that
the debt has already prescribed, you are also confessing, you are
hypothetically admitting that the admissions in the compaint are
true except that the complaintant is entitled to relief because the
debt has already prescribed. What does the law say when you
file a MD or an answer with affirmative defense? What is the
effect? What does the law say? There will be a preliminary
hearing of the motion to dismiss where the D who set up the
ground for a motion to dismiss will be given his chance to prove
that his ground was proper.
Remeber that a motion will always be heard. There should be
notice and hearing, an actual hearing. So who presents evience
first? Is it the P or the D? Its really the D because if he proves
that it has prscreibedm,kelangan pa ba mag p[rsent ni P? No.
Who has the burden of proving initially? is that already proven by
the hypothetical admission that the debt exists? So the burden of
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
proof initially rests upon the defendant. If you file an affirmative
defense.
Criminal cases, who has the burden of proof? It is the
prosecution because of the constitutional presumption of
innocence. Accusation is not synonymous to proof. But as we
noted that if the accused admits to the killing but alleges a
justifying circumstance for example, self-defense, the burden of
proof shifts. What does the prosecution have to prove? Nothing!
Becasue the killing has already been admitted. It is easier to
prove self-defense compared to prosecuting an accused. Why?
Because the wuantum of proof is a little bit low. Self-defense,
mere and convincing proof. Mao lang na sya.
Where do you proceed to determine the burden of proof? In the
pleadings.
What would be the effect if lets say the civil case for a collection
of a debt, the P was able to establish already the existence of
***.
There are two effects: [Effects if P discharges his burden of
proof]
1. He effectively captures the benefit ofassumption
He is correct until refuted by the defendant.
2. The plaintiff is deemed to haveestablished PRIMA
FACIE case
When aprima facie case is established, theburden of proof is
effectively passed on tothe defending party. if the
prosecutionwas able to establish the prima facie caseand
therefore acquires the benefit ofassumption, the accused will
now have topresent evidence to establish hisinnocence.
So, therefore, if you dont have the burden of proof, then
definitely, you have the benefit of assumption. You lose the
beenfit of assumption if your adverse party has established a
prima facie case by discharging the burden of proof. It cannot
belong to one person at the same time during the trial. Wlay
mahitabo nga naa kay burden of proof ug naa [pud kay ebenfit
of asusmnption.
For burden of proof, you actually have two separate burdens:
1. Burden of Going Forward with the evidence
That of producing evidence to prove the fact in issue insofar
as your case is concerned.
Let us suppose P files a case for collection of sum against D
and P was able to present evidence. Where thedebtor
introduces evidence of payment, the burdenof going forward
with the evidence - as distinctfrom the general burden of
proof- shifts to thecreditor who is then under the duty of
producingevidence to show non-payment.
That is why you have presentation of the evidence in chief f
the P as an order of trial then presetnation of evidence in
chief of th eD followed by Rebuttal of evidence by P and
followed by rebuttal of evidence for the D. Becasuser you
have the burden of proof, you have the first say. The D
having the benefit of assumption will always have the last
say.
2. Burden of Persuasion.
Burden ofpersuading the trier of fact that theburdened party
is entitled to prevail.
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What will happen in a civil case when neither party presents
evidence? So only the P files a pleading, D fails to answer. What
happens? P wins, right? Because the D has been declared in
default. What if the P files a pleading and D also answers? But
the P has not presented any evidence whatsoever? Who wins? It
depends on the answer of the D.
If the D files an answer allegeing purely negative defenses or
specific denial, P does not present evidence, then, D wins. What
is the justification? Becasue the P failed to discahrge his burden
of proof.
But if the D alleged purely affirmative defenses which means that
he has hypothetically admitted the allegations to be true, who
wins? Plaintiff wins. Why? What he has to prove? Defendant has
already admitted! But he is not able to prove his affirmative
defense so P wins.
In criminal cases, can an accused win without submitting a
pleading? So prosecution filed an information, accused did not
submit a counter affidavit during PI, can he still win? Yes. Why?
If the prosecution is unable to discharge its burden of proof. If
the prosecution presnts no evidence whatosever, accused wins
precisely because of the prosecution not being able to discharge
its burden of proof and the benefit of assumption under Article 3,
Section 14 of the Constitution on the presumption of innocence.
If you hypotherically admit something and you are not given the
chance to refute, would that produce a prima facie case? In
certain cases, it would have the effect of meeting ****.
Bar question: Distinguish burden of proof in Rule 131, Section 1
and burden of evidence.
BURDEN OF PROOF BURDEN OF EVIDENCE
Burden of proof is the duty or While burden of evidence is
obligation of a party to the duty of a party to go
present evidence on the facts forward with the evidence to
in issue necessary to establish overthrow prima facie
his claim or defense by the evidence established against
amount of evidence required him or to defeat a prima facie
by law. (Sec. 1 of Rule 131) case.
Burden of Proof NEVER Burden of Evidence is
SHIFTS during trial TRANSFERRED from one
litigant to another depending
on the progress of trial.
Who has the burden of proving their claim in a collection case?
Both parties has their won burden of proof but the initial burden
meaning the duty to go forward would initally rest upon the P.
Once the P is able to etablish a prima facie case and therefore
discharging his burden of proof, then the burden of evidence
shifts now to the D who now has the benefit of assumption. After
that, he has not established a prima facie case that he has
already paid the debt and therefore, he is entitled to win. Burden
of evidence would now shift to the P and this time, he can
present evidence saying that the receipt that D presented is
actually spurious. [Wala ko kasabot. I thought mapasa na kay D
ang burden of evidence? Sorry.]
PRINCIPLE OF NEGATIVING AVERMENT. A negative
averment does not have to be proven UNLESS the negative
averment is an essential part of the cause of action or defense.
Example: The prosecution is charging you with possessing a
firearm without the requisite license to carry I dont carry guns.
I am averse to the idea of guns. So anyway, it is essential in the
information in illegal possession of firearms that the person is
carrying without a license. And so in the principle of negativing,
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
you have to prove that negative fact. It is not enough to allege
that he was not carrying the license.
How about in a civil case? Your cause of action is non-payment.
So you have to prove that your debtor did not pay yet. You have
to prove that the debt exists and that there was non-payment.
The general rule however is that if it is a negative allegation
consisting exclusively in denial, you do not have to prove it.
Imagine, in a criminal prosecution, justice is represented by Lady
Justice, carrying a scale. Nganu scale? Remember the doctrine
that evidence is not counted but rather evidence is weighed.
Kung unsay mas bug-at, kung unsay mas believable. When
evidence is admitted by the court, its as if the court is giving it
the proper weight it deserves. The court will say in a decision
the court is swayed by the evidence of the party. And so, in an
acquittal, you imagine the scale tilted in favor of the defendant.
In a conviction, the scale is tilted in favor of the prosecution. But
what happens if it is even? The scale is equally balanced. Pwede
ba na? Lets say both evidences of the parties are equally
persuasive and equally preponderant. That is called under the
law as EQUIPOISE or EQUIPONDERANCE OF EVIDENCE.
The question is who is entitled to win? Under the doctrine of
equipoise, whoever has the burden of proof at the beginning of
the trial and the evidence is at equipoise, the burden of proof is
not discharged and therefore the defending party should win.
Thats usually applicable only in civil case.
There cannot be equiponderance in criminal cases because you
have the constitutional presumption of innocence.
In labor cases, can there be equipoise? No because there is a
bias in favor of labor. But in your Labor Relations, the bias is
against you. I know, I am a student of Father Gus.
Anyway, remember the "equipoise doctrine" is the rule which
states that when the evidence of both parties are so evenly
balanced, the appreciation of such evidence calls for the tilting of
the scales against the party who has the burden of proof. Thus,
the court should render a verdict in favor of the defendant.
This is a favorite bar exam question. What is the constitutional
basis of this doctrine? In criminal cases, this cannot be applied
because of the constitutional presumption of innocence. In civil
cases, the basis for this doctrine is in:
Article III of 1987 Constitution. Section 1. No person shall
be deprived of life, liberty, or property without due process of
law, nor shall any person be denied the equal protection of the
laws.
And therefore, when there is equipoise, due process is the
reason why you should not win.
De Leon vs. BPI
November 20 2013
A secured a car loan with chattel mortgage from BPI. All of the
sudden, A stopped paying BPI as early as August 2007. The in
November of 1997, A said I stopped paying because the car
was stolen. And so, A would not be paying anymore since he
informed the bank of the theft of the car and it is now the duty
of the bank to find the car. Anyway, A says that the car is fully
insured. And as proof, A alleged that he informed the bank
about the loss through fax. BPI contends that it is not its duty
to claim the insurance and so BPI filed a case for replevin. A
says unsa man imung i-replevin, na nakawat gani ang
sakyanan?
If you are BPI, your burden is to prove non-payment. If you
are A, your burden is to prove the loss of the vehicle.
[Page 74 of 107]
Ad Majorem Dei Gloriam
And that he already informed the bank of the loss, and since
he informed the bank of the loss, it is now the obligation of the
bank to claim from the insurance company.
That situation illustrates the separate parties burden of proof.
So who should win in that situation? The Supreme Court says,
it is BPI should win. A failed to prove his defense.
First, A claims he faxed it but he was not able to show his
transmittal report or transmittal receipt. This report or receipt
comes after the fax. If you really faxed it you will keep this
report.
Besides, the court said that A stopped payment August 2007
but he claimed the car was lost November 2007. So even
before the car was lost, you already stopped payment. So BPI
won the case.
PRESUMPTIONS
As I told you earlier, burden of proof is connected with
presumptions and that is why they are lumped together.
When a presumption applies, and it is unrebutted, it establishes a
prima facie case. Remember what we said as to prima facie case,
it is equivalent to the party discharging the necessary burden of
proof. If it is a prima facie case, that means you are entitled to
win. Therefore, presumption is not evidence. But it has the
effect of establishing a prima facie case and has the effect of
sometimes dispensing the need to forward evidence. For
example, res ipsa loquitor means the thing speaks for itself.
Barge nagbangga sa pier. So it is a moving object hitting a
stationary object. Does the party have to provide evidence to win
a case for damages based on tort or quasi-delict? The answer is
no. Because the presumption of negligence applies, and it is now
the burden of the defendant to prove that he was not negligent.
So the burden of proof now reverses. The very issue of a quasi-
delict case is negligence of the defendant. The plaintiff does not
have to prove it because the presumption applies. That is the
effect of presumption.
Can you recall you obligations and contracts? Suppose naa kay
utang payabale in ten installments. And you hold with you a
receipt evidencing that you have paid your last installment or the
payment for the last amortization was received by the creditor.
What is the presumption of that? The presumption is all the
previous installments have been received by the creditor. So
again take note that the burden of proof lies with the one who
alleges and not the one who denies. But when there is an
applicable presumption the burden actually shifts to the party
that denies. An unrebutted presumption is equivalent to proof
already.
September 30, 2015 (DJG)
SOCRATIC METHOD! @_@
What is a presumption?
S: An inference taken from a set of facts so as to make a
conclusion out of those facts.
Can you give me an example of a presumption?
You are telling me that you are trying to draw an inference from
certain set of facts. In other words, set of facts produces a
legal conclusion? Or facts lang gihapon?
S: It produces legal conclusion meaning it has legal effect.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
For example, I suddenly get up from this chair and then
approach you and then punch you. What presumption can be
drawn? [You dont conclude a presumption. You have to draw a
line between presumption and conclusion because these two are
different]
S: I would infer that you have a grudge against me.
When you say that you can presume that I have a grudge
against you, is that a fact or is that a conclusion of fact?
Conclusion of law? Presumption of fact? Or presumption
of law?
Are we giving rise to application of law or the
establishment of facts?
S: The establishment of fact.
Yes. And then there is legal conclusion which also gives rise to
the application of law.
How is presumption related to evidence? Presumption per
se is not the same as evidence.
Why? Presumption is an inference drawn from a set of facts
which would give rise to a party to present evidence to affirm
such presumption.
What is evidence? Evidence is the means, sanctioned by these
rules, of ascertaining in a judicial proceeding the truth respecting
a matter of fact.
So, when you say a matter of fact that is factum probandum
rather than factum probans. The factum probandum, that is your
conclusion, that is what you have to prove.
So if your cause of action against me is a collection of sum of
money, what evidence will you present in court?
A contract of loan.Other documents.
Only documentary evidence?
Also testimonial evidence. You are going to present a witness to
testify the veracity of your allegations that I contracted a loan
from you.
So you present these proofs in order to convince the court that
you are entitled to relief. Is it safe to assume that, in the
absence of evidence you will not be able to prove your
case? Yes.
Can you win a case on the basis of presumption alone?
Yes. If the adverse party cannot overcome the presumption
provided by law. Like what? Presumption of innocence in
criminal cases.
So, because you are not proven anything, you are therefore
innocent. And that is a fact, that is a matter of fact that is
relevant in a judicial proceeding.
If presumption is not evidence, what is its effect in
court? Presumption affects the burden of presenting evidence.
Lets take for example a vehicular accident, overspeeding. Under
the law, if you are overspeeding, you are, at the time of the
incident, violating a traffic regulation and under the civil code,
such violation gives rise to the presumption that the actor was
negligent. What is the effect of this presumption?
[Page 75 of 107]
Ad Majorem Dei Gloriam
Why do you need to discharge the burden of proof?To
establish prima facie evidence, which if unrebutted will have
the effect of what? Then such evidence will become
conclusive.
So, thats the goal of burden of proof, to establish a prima facie
case if you are the plaintiff. Therefore a presumption, when
applicable, throws the burden upon the defendant. So if the
presumption applies in your favor, do you have to
present evidence?
No. It is the defendant now who will have to present evidence.
That is the effect of the presumption.
In Rule 131, the title there is Burden of Proof and Presumptions,
why do you think they are lumped together?
They have intimate connection which is if the presumption is
applicable; The effect is to shift the burden of proof upon the
adverse party.
What are the different types of presumption?
1. Conclusive
2. Disputable
3. Presumption of law ex. Presumption of innocence;
The mere fact that you are an accused of a case,
entitles you to a presumption of innocence, that you are
presumed innocent until the contrary is proven
4. Presumption of fact ex. Hostility; you do not put a
label rather you simple infer from that particular set of
facts without applying any legal principle or coming up
with a legal conclusion
Under Rule 131, what presumptions are they? Of law or
of fact? Presumption of law.
Distinguish conclusive from disputable presumption.
Disputable susceptible of contrary proof, can be
refuted by presenting rebuttal evidence
Conclusive not susceptible of contrary proof. Ex. A
child below 9 years is incapable of contributory
negligence
Why is it that conclusive presumptions are considered
children of substantive law? Meaning, it is not procedural
anymore. It is actually a mandate of substantive law.
What is the difference between substantive and
Remedial law?
Substantive law- a branch of law that creates, defines and
regulated rights;
Remedial law provides for the procedure by which you
can seek redress for the violation of rights or the
enforcement of obligation.
If you are entitled to a conclusive presumption to be applied in
your favor, can you enforce that as a matter of right? Yes.
Just like the rights that are provided by substantive law. Thats
the reason.
Thats why if Section 2 (a) and (b) are applicable, the contrary
cannot be proved anymore, it cannot be taken away from you.
PRIMA FACIE EVIDENCE
Any case which is prosecuted, whether civil, criminal, even
administrative, the doctrine of prima facie will always be
applicable. If you are not able to establish a prima facie case,
you practically lost the case.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
What is the reason why there is a requirement that the
plaintiff or the prosecution or petitioner, needs to
establish a prima facie case?
In order to prevent litigant from bringing spurious charges and
waste upon the time of the court.
A prima facie case is a case that if unrebutted would already
entitle the claimant relief. Will you be able to establish a prima
facie case it was only spurious? No. Therefore, the doctrine is a
deterrent. If you dont have prima facie evidence in your
position, you will not be able to win the case and therefore you
should not have been entitled to file the case in the first place.
Kay wala kay cause of action.
Assume that claimant failed to establish a prima facie case
against you as a defendant, whats your next step? Whats
your remedy to cause the dismissal of the case against
you?
By filing a motion to dismiss on the ground of failure to state a
cause of action.
What if he is not able to establish by evidence the
elements of his cause of action?
By filing a demurrer to evidence on the ground of failure to
establish a prima facie case. [Since Rule 16 is no longer available
at that time]
SEC 2.Conclusive Presumptions. The following are
instances of conclusive presumptions: x x x
These are the presumptions which cannot be rebutted anymore.
The proper conclusion therefore is that they are practically
equivalent to proof. The basis is estoppel.
There is a contract of lease. Later, A (tenant) says to B
(landlord), you are not my landlord. By your act of entering
into as landlord-tenant relationship with that property-owner, is
equivalent to estoppel.
xxx
a. Whenever a party has, by his own declaration, act or
omission, intentionally and deliberately led another to believe
a particular thing is true, and to act upon such belief, he
cannot, in any litigation arising out of such declaration, act,
or omission, be permitted to falsify it.
xxx
Example: Corporation by estoppel. A group of persons purport
themselves to be a corporation in their dealings with third
persons (meaning, unincorporated) they cannot later on deny
liability to those third persons by saying that they are not in fact
a corporation.
What is the doctrine of promissory estoppel? What are the
requisites?
The doctrine of promissory estoppel is an exception to the
general rule that a promise of future conduct does not constitute
an estoppel. In some jurisdictions, in order to make out a claim
of promissory estoppel, a party bears the burden of establishing
the following elements:
(1) A promise reasonably expected to induce action or
forebearance;
(2) Such promise did in fact induce such action or
forebearance; and
(3) The party suffered detriment as a result.
[Page 76 of 107]
Ad Majorem Dei Gloriam
So if a person makes a representation upon you and by reason of
such you are induced to act, you cannot later on withdraw from
such representation.
Planters development bank case
The bank was dispensing notes. What was the allegation of
Spouses Lopez? Since planters failed to disburse the
remaining amount of their loan, they also failed to continue
the construction. Planters argued that they did not release
such funds because instead of the promise to construct only
4-storey building, they were constructing a 6-storey building.
Issue: W/N Planters is justified in not releasing the remaining
balance of the loan?
Ruling: NO.the SC applied the doctrine of equitable
estoppel.Planters had conducted an ocular inspection. And
with that, they failed to act upon knowing such fact.
Requisites of the doctrine of equitable estoppel:
1. Conduct amounting to false representation or
concealment of material facts or at least
calculated to convey theimpression that the
facts are otherwise than, and inconsistent
with, those which the party subsequently
attempts to assert;
2. Intent, or at least expectation that this
conduct shall be acted upon, or at least
influenced by the other party; and
3. Knowledge, actual or constructive, of the
actual facts.
Planters in this case never objected nor did they consent,
should that be taken against Planters Bank?Yes.It may
be considered as a misrepresentation or fraud as to raise an
equitable estoppel.
xxx
b. The tenant is not permitted to deny the title of his landlord
at the time of the commencement of the relation of the
landlord and the tenant between them.
That is related to Article 1436 of the Civil Code, a lessee or bailee
is estopped from asserting title to the thing leased as against the
lessor or bailor.
By entering into a Contract of commodatum you already submit
that the owner of the thing borrowed is the one you borrowed it
from.
For example in ejectment of agricultural tenants, can you
use this?
There is this titled land owner and my client, a tenant who has
been in the property for 50 years. Remember, that if it is
agricultural land, you have to be able to trace your title to that
particular law that awards you that land. Remember that if you
are applying for original registration of agricultural land under
any of the modes allowed by law, you need to prove that you
have been in continuous possession and cultivation. In
agricultural land law, cultivation must be actual, you must be the
one exercising acts of dominion so that you are the one entitled.
But this titled land owner was able to have title of the land
despite the fact that he has never been in the land and has never
cultivated the land. Now this case filing a case against my client,
the tenant, ejecting him, asserting that as tenant, he is not
allowed to assert title. Tama o mali? MALI. Why? Because
there are exceptions to the conclusive presumption.
For example:
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
1. In a case where the landlord-tenant relationship has not
been sufficiently established; or
2. The very existence of the relationship is the issue of the
case; or
3. When there is a change in the nature of the title of the
landlord during the subsistence of the tenancy (ex.
Sale)
If the title asserted is one that is alleged to have been acquired
subsequently to the commencement of that relation, the
presumption will not apply. Hence the tenant may show that the
landlords title has expired or been conveyed to another and he is
not estopped to deny a claim for rent if he has been ousted or
evicted. So nag change ang ownership at the time of the
pendency of the landlord tenant relationship, then this provision
will not apply.
SEC 3.Disputable presumptions.The following presumptions
are satisfactory if uncontradicted, but may be contradicted
and overcome by other evidence: x x x
These are those that admit evidence to the contrary.
Man and woman purport themselves to be husband and wife.
During the time of their cohabitation, nanganak ang babaye.
What is the presumption? You presume that that child was born
out of that union and that they have sexual relations with one
another to produce offspring. That is what we see and therefore
that is what we presume.
But are you allowed to produce proof nga kato bataa to dili gyud
to anak sa papa? Yes. You can produce proof to refute the
disputable presumption, the prima facie presumption.
(a) That a person is innocent of crime or wrong;
The law does not distrust you. It will never presume wrongdoing
on your part absent any indicative factors that you have done a
mistake. That is in accord with natural law. What is the first
instinct of a person? Self-preservation. But the law does not
presume that in doing so, you are going to do something criminal
or wrong.
Under the constitution, the accused shall be presumed innocent
until proven guilty. And even reiterated in Rule 131 section 3(a)
and the quantum of proof required, that is, proof beyond
reasonable doubt.
Is this presumption applicable only to criminal cases? NO.
Otherwise it would have stopped at the word crime. Wrong is
a generic term which can refer to both criminal and merely civil
acts.
The effect of this presumption is to throw the burden of proof
upon the party who alleges wrongdoing.
(b) That an unlawful act was done with an unlawful
intent;
In criminal law, if you commit an unlawful act, you dont even
have to prove criminal intent because mens rea is already
presumed. But you can introduce evidence. If no intent and you
committed a killing or injury, that is 365 under RPC.
(c) That a person intends the ordinary consequences of
his voluntary act;
Under Article 4 of RPC, on how criminal liability is incurred: By
any person committing a felony although the wrongful
act done be different from that which he intended.
For example, illegal discharge of firearm and somebody got shot
by your stray bullet. Can you say you did not intend to kill that
person? No, because the act of firing the gun was voluntary.
[Page 77 of 107]
Ad Majorem Dei Gloriam
Nobody forced you to fire a gun. As a consequence, somebody
was killed. Thus, the presumption is, you also intend that.
In torts and damages, under article 2201, the damages for which
the obligor who acted in good faith is liable shall be those that
are natural and probable consequences of the breach of
obligation in which the parties have foreseen or could have
reasonably foreseen at the time the obligation was constituted.
Under that rule, the requirement is simply reasonable
foreseeability.
So if there is breach of written contract, would it be reasonably
foreseen that your breach would lead to damages? If it is, then
you are to pay damages. However, in case of fraud, bad faith,
malice, the obligor shall be responsible for all damages which
may be reasonably attributed to the nonperformance of the
obligation.
Example, contract of transportation, a case which involve a
student who rode the bus and then he was injured. Can we
award loss of earning capacity in a breach of contract of carriage.
If the bus company acted in fraud, bad faith, malice or wanton
attitude, it will be responsible for all damages which may be
reasonably attributed to the nonperformance of the obligation. If
the bus driver did not drive so negligently and cause damage and
injury, ma medical doctor ba and passenger? You only ask this
question when there is fraud, bad faith, malice or wanton
attitude present.
(d) That a person takes ordinary care of his concerns;
The law presumes that all of us are reasonably diligent. And
when the law is silent, what will be the degree of diligence or
standard of care required? Ordinary diligence or the diligence of
a good father of a family.
Under Article 2180, suppose my 15-year old kid, by being
negligent, hurt her classmate. Now she is a minor and so my wife
and I are responsible for our daughters acts or omissions. The
liability rests on the father, and if dead or incapacitated, the
mother. But under the family Code, because parental authority is
jointly exercised, no longer preference as to the liability, both the
father and the mother will be jointly and severally liable.
The most important there is the last sentence of Art. 2180: the
responsibility created under this article shall cease when the
persons herein mentioned prove that they observe all the
diligence of a good father of a family to prevent damage.
The law presumes that you take ordinary care of your concerns.
Whoever alleges negligence has to prove it. But Article 2180 is a
reverse presumption, that you are presumed negligent in
supervising your minor children. Thus, if you are charged under
Art. 2180, you have to prove that you have been not negligent,
that you have observed the required diligence.
(e) That evidence willfully suppressed would be adverse
if produced;
This is the Adverse Presumption of Suppression of
Evidence. It is in our nature. We tend to keep secret that thing
which will either injure or incriminate us.
Exceptions:
If the evidence isat the disposal of both parties; meaning I
will not be forced to present a document as my evidence
simply because its in my possession. Nobody can force me
to present evidence that I dont want to present.
If the suppression was not willful. The evidence cannot be
produce by sheer force of circumstance and he suppression
was not due solely to the suppressive parties.In a case, the
SC ruled that a suppression is not willful if the witness
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

allegedly suppressed was suffering from a mental illness The obligation meant in the provision actually refers to the
andcould not stand judicial proceedings. evidence of the obligation, the promissory note. Review Articles
When the evidence allegedly suppressed is merely 1271 and 1272 of the Civil Code.
corroborative or cummulative; meaning you are not
presenting the testimony of that witness for the first time, it (i) That prior rents or installments had been paid when
has been presented already through a prior witness; or that the receipt for the later ones is produced;
info was already presented through a different document or
object. So you dont have to present it again. This is related to Article 1253. If you are found in possession of
If the suppression if by the exercise of a privilege; you will payment of a later installment, presumption is that previous
not testify because you are actually disqualified under the installments have been paid.
rules, or covered by attorney-client privilege communication.
The prosecutor has the exclusive prerogative to determine (j) That a person found in possession of a thingtaken
the witnesses to be presented. in the doing of a recent wrongful act is the taker
and the doer of the whole act; otherwise, that
Read People v Isla, GR 96176. things which a person possesses, or exercises acts
of ownership over, are owned by him;
What will prevail, the presumption of innocence (constitutional)
or the privilege of the prosecutor to withhold evidence
Divide the above into two:
(procedural)? The constitutional presumption prevails.
1. A person found in possession of a thing taken in the
Now, among presumptions, there is a hierarchy: The weaker
doing of a recent wrongful act is the taker and the doer
presumption yields the greater presumption.
of the whole act;
The presumption will be taken against the accused only if the
Ex. Ang laptop ni Father Gus found in your possession,
application of the same does not impair the substantive rights. In
you are presumed to be the thief
other words, if the application of the presumption is against the
accused, meaning to benefit the prosecution, it will only be
2. That things which a person possesses, or exercises acts
allowed if the accused has no other remedy against the supposed
of ownership over, are owned by him.
suppression of evidence.
Is there conflict of law of presumption? None.
You know that there is a witness nga wa lagi present sa
prosecutor during trial, so theres that adverse presumption of
The first presumption simply applies to when a crime was
suppression of evidence, that can be used as reasonable doubt in
committed, when something was unlawfully taken. The second
your favor, to your acquittal. But do you have any other remedy?
one, otherwise.
Present that witness that you are thinking was suppressed! This
remedy is to have compulsory process to secure the attendance
Read People v Ong, January 9, 2013, GR 18126.
of witnesses, that is, sub poena and subpoena duces tecum.

Presumption of Fabrication of Evidence. If a party resorts to
fabrication of evidence, it is presumed that his case is weal for
there will be no need to fabricate evidence if his case is strong.
(f) That money paid by one to another was due to the
latter;
The law does not say why, that is, due to debt? Donation? What
the law actually says is that a person is expected not to pay off
certain amounts by mistake. There is no presumption of payment
by mistake or solution indebiti.
(g) That a thing delivered by one to another is
belonged to the latter;
Delivery has a lot of connotations under the law. In Sales,
delivery is the act that transfers ownership, not the sale itself.
But delivery cannot be presumed to transfer ownership in certain
contracts. For example in commodatum, there is always an
obligation to return. But in mutuum, there is transfer of
ownership, you are not obliged to deliver the exact same money.
(h) That an obligation delivered up to the debtor has
been paid;
This is vague. How can you deliver obligation to the debtor when
in fact it is the debtor who delivers? The situation is naa koy
utang sa akoa creditor evidenced by a promissory note. Once I
have paid, do I have to return the note? No. but it is no longer
evidence of indebtedness because the debt has already been
paid.
(k) that a person in possession of an order on himself
for the payment of the money, or the delivery of
anything, has paid the money or delivered the thing
accordingly;
(l) that a person acting in a public office was regularly
appointed or elected to it;
There is no presumption of usurpation. If somebody is there in
the mayors office purporting to be the mayor, exercising the
functions, then he must be the mayor.
October 7, 2015 (AJU)
(m) That official duty has been regularly performed;
Why should we presume that these officials perform their official
duty regularly?
In the case of People versus De Guzman (February 9,
1994) the Supreme Court gave the reason why regularity is
presumed: Presumption of this nature is indulged by the law
for the following fundamental reasons:
- first, innocence, and not wrong-doing, is to be
presumed;
- second, an official oath will not be violated; and
third, a republican form of government cannot
survive long unless a limit is placed upon
controversies and certain trust and confidence
reposed in each governmental department or agent
by every other such department or agent, at least
to the extent of such presumption.

[Page 78 of 107]
Ad Majorem Dei Gloriam
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Thus, this presumption evinces a rule of convenient public policy
universally applied and without which great distress would spring
in the affairs of men. And so its actually intended to benefit
public service. The presumption does not apply to those who
transact with public officials and offices but rather this
presumption is to safeguard our public officers.
The presumption of regularity in the performance of official
functions cannot by itself affect the constitutional
presumption of innocence of the accused, particularly if the
evidence for the prosecution is weak. That was held by the
Supreme Court in the case of People versus Padilla
(August 24, 2007).
It is important to note because you have these two
presumptions. On one hand, you have here the presumption of
regularity of performance of official duty and on the other hand,
you have here the constitutional presumption of innocence. And
remember that when two presumptions collide, the weaker
presumption should yield to the stronger presumption and in
such case the constitutional presumption of innocence would
apply. In any other case, the presumption of regularity would be
upheld.
(n) That a court, or judge acting as such, whether in
the Philippines or elsewhere, was acting in the
lawful exercise of jurisdiction;
(o) That all the matters within an issue raised in a case
were laid before the court and passed upon by it;
and in like manner that all matters within an issue
raised in a dispute submitted for arbitration were
laid before the arbitrators and passed upon by
them;
Take note that, collectively, letter (n) and (o) are known as the
presumption of regularity of judicial acts.
Letter (n), in particular, is known as the presumption of
jurisdiction. Letter (n) simply means that a judge or court
purporting to dispense judicial functions would be acting in lawful
exercise of jurisdiction. There is a presumption that a court acts
within its jurisdiction but it also does not shield the court from
what we know as errors of judgment.
There is a difference between error of jurisdiction and an error of
judgment. If it is an error of jurisdiction, the remedy is the
special writ of certiorari. If it is an error of judgment, the remedy
is appeal.
(p) That private transactions have been fair and regular;
That is called the presumption of regularity of private acts. Based
on these provisions, we can see that regularity is always
presumed and he who alleges fraud and/or irregularity has the
burden of proving that the other party is motivated to act
without good faith.
(q) That the ordinary course of business has been
followed;
This still falls under the presumption of regularity. Take note that
while the prior provisions (m,n and o) apply to public
transactions and (p) applies to private transactions, letter (q)
applies to both private and public transactions.
(r) That there was a sufficient consideration for a
contract;
Remember that under the Civil Code:
[Page 79 of 107]
Ad Majorem Dei Gloriam
Article 1354. Although the cause is not stated in the contract, it
is presumed that it exists and is lawful, unless the debtor proves
the contrary.
That is actually a civil law presumption. And related to that
provision:
(s) That a negotiable instrument was given or indorsed
for a sufficient consideration;
But before we continue further, Id like to go back to letter (o)
because in the latter part of it states: all matters within an issue
raised in a dispute submitted for arbitration were laid before the
arbitrators and passed upon by them.
Take note that the presumption does not only apply to the courts
of justice but it also applies to arbitration proceedings.
Remember that arbitration is a recognized means of disputes
resolution.
Let me just talk about a practitioners take on arbitration. One, it
costs a lot; its expensive. Let us suppose that you contractually
stipulate that in case of breach then you would resort to
arbitration. That is expensive particularly so if the arbitration has
an international component. Do you know that it is lawful to
stipulate in a Philippine contract you can choose to resort to
arbitration outside the Philippines? So lingaw kayo ang abogado
na maka-adtog New York or ug Singapore. There is a trend
where students are prepared for ASEAN practice. Imagine Ateneo
students practicing law in the ASEAN community
Lets now go to letter (t):
(t) That an endorsement of negotiable instrument was
made before the instrument was overdue and at the
place where the instrument is dated;
So that is the presumption I do not claim I am an expert of
negotiable instruments.
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was received
in the regular course of the mail;
But if I may just comment on letter (v), I believe that this
presumption only applies to private express couriers, because
they make it their business to deliver mail in the quickest time
possible. Why? Should we not apply that to the registered mail
before the Philippine post office? No, you cannot presume that.
There were already many times that I have received court orders
two or three days after it was actually registered in the
registered mail. The problem is that you are presumed to have
received it. Therefore, makadawat kag order asking you to
explain why you did not appear. And this system is prone to
abuse: I once received an order from an office a block away from
my office. Pwede lang man unta to baktasun. Are lawyers
allowed to do that? Of course. If their intent is to delay. Take
note that the date of mailing is considered the date of filing.
(w) That after an absence of seven years, it being
unknown whether or not the absentee still lives, he
is considered dead for all purposes, except for those
of succession.
The absentee shall not be considered dead for the
purpose of opening his succession till after an
absence of ten years. If he disappeared after the
age of seventy-five years, an absence of five years
shall be sufficient in order that his succession may
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
be opened.
The following shall be considered dead for all
purposes including the division of the estate among
the heirs: x x x
Thats quite a long provision so lets try to simplify it:
The general rule for absence is that after 7 years, the
missing person is presumed to be dead.
The first exception is for succession which would have
10 years.
The second exception is the period of 5 years, which
would apply if the absentee would disappear after the
age of 75-years.
Provided however, that when the person disappears
with danger of death, the period is 4 years where the
person becomes considered dead for all intents and
purposes. Take note, for all intents and purposes
meaning that includes the opening of succession. So it
is also an exception to the rule of 10 years for the
purposes of succession.
(1) A person on board a vessel lost during a sea
voyage, or an aircraft with is missing, who has not
been heard of for four years since the loss of the
vessel or aircraft; x x x
The first instance under the exception is when a person becomes
missing on board a vessel or in an aircraft. This is actually very
relevant. God forbid, you become lost in a sea voyage or in a
flight, how long would it take for them to discover your remains?
How long did it take for them to discover whats left of Titanic,
which unfortunately did not include the remains of Leonardo de
Caprio. Quite long. If an aircraft crashes on land, then it can
easily be found. But what if it crashes in the sea? So the
presumption of death becomes relevant.
(2) A member of the armed forces who has taken part in
armed hostilities, and has been missing for four
years; x x x
The second instance is a member of the armed forces who has
taken part in armed hostilities. I have this story, where this
woman approached me and asked for advice. Her husband has
been missing for more than four years and he is involved in
armed conflict. But the thing is her husband is not with the
armed forces but rather with the NPA; the rebels. She was
looking for a judicial annulment of marriage so that she can
marry her foreign boyfriend. And this process would take quite
some time. Ingun pa nila mapalit daw na nimu, kanang
annulment, with matching psychological reports plus the
decision. I neither confirm nor deny that this is true
Anyway, so what I did, for her situation was to apply number (3)
and (4):
(3) A person who has been in danger of death under
other circumstances and whose existence has not
been known for four years;
(4) If a married person has been absent for four
consecutive years, the spouse present may contract
a subsequent marriage if he or she has well-
founded belief that the absent spouse is already
death. In case of disappearance, where there is a
danger of death the circumstances hereinabove
provided, an absence of only two years shall be
sufficient for the purpose of contracting a
subsequent marriage. However, in any case, before
marrying again, the spouse present must institute a
[Page 80 of 107]
Ad Majorem Dei Gloriam
summary proceedings as provided in the Family
Code and in the rules for declaration of presumptive
death of the absentee, without prejudice to the
effect of reappearance of the absent spouse.
A person who has been in danger of death under other
circumstances and whose existence has not been known for four
years and if a married person has been absent for four
consecutive years, the spouse present may contract a
subsequent marriage if he or she has well-founded belief that the
absent spouse is already death.
So number (4) is another exception. But take note of the
exception to the exception: In case of disappearance, where
there is a danger of death the circumstances hereinabove
provided, an absence of only two years shall be sufficient for the
purpose of contracting a subsequent marriage.
So the periods are four years and two years, but in her case 5
years has already passed. So then I prepared my first ever
petition for declaration of presumptive death for the purpose of
remarriage. Human na ang pleading, i-file na unta nako. But then
without my permission, the girl already filed a case of VAWSI
against her husband That was supposed to be an opportunity
for me to apply what I only see in paper. I would have seen how
it actually works. Take note that the provision says without
prejudice to the effect of reappearance of the absent spouse.
Now if the first husband reappears, how do you resolve that? It
may be easy to resolve that legally, but would the girl accept the
husband? Nahigugma nagud sya atong foreigner.
Take note in the Family Code:
Art. 41. A marriage contracted by any person during subsistence
of a previous marriage shall be null and void, unless before the
celebration of the subsequent marriage, the prior spouse had
been absent for four consecutive years and the spouse present
has a well-founded belief that the absent spouse was already
dead. In case of disappearance where there is danger of death
under the circumstances set forth in the provisions of Article 391
of the Civil Code, an absence of only two years shall be
sufficient.
For the purpose of contracting the subsequent marriage under
the preceding paragraph the spouse present must institute a
summary proceeding as provided in this Code for the declaration
of presumptive death of the absentee, without prejudice to the
effect of reappearance of the absent spouse.
This would have been the provision I would have applied.
Sayang.
(x) That acquiescence resulted from a belief that the thing
acquiesced in was conformable to the law or fact;
Whats another term for acquiescence? What does that mean? It
means consent. Palisudlisudun pa tag litok. It reinforces my
belief that the law is not written for lay men.
(y) That things have happened according to the ordinary
course of nature and ordinary nature habits of life;
(z) That persons acting as copartners have entered into a
contract of copartneship;
Whats another term for co-partnership? Its partnership.
Partnership na gani, co- pa jud. Try to relate this with Article
1825:
Article 1825. When a person, by words spoken or written or by
conduct, represents himself, or consents to another representing
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
him to anyone, as a partner in an existing partnership or with
one or more persons not actual partners, he is liable to any such
persons to whom such representation has been made, who has,
on the faith of such representation, given credit to the actual or
apparent partnership, and if he has made such representation or
consented to its being made in a public manner he is liable to
such person, whether the representation has or has not been
made or communicated to such person so giving credit by or with
the knowledge of the apparent partner making the
representation or consenting to its being made:
(1) When a partnership liability results, he is liable as though he
were an actual member of the partnership;
(2) When no partnership liability results, he is liable pro rata with
the other persons, if any, so consenting to the contract or
representation as to incur liability, otherwise separately.
When a person has been thus represented to be a partner in an
existing partnership, or with one or more persons not actual
partners, he is an agent of the persons consenting to such
representation to bind them to the same extent and in the same
manner as though he were a partner in fact, with respect to
persons who rely upon the representation. When all the
members of the existing partnership consent to the
representation, a partnership act or obligation results; but in all
other cases it is the joint act or obligation of the person acting
and the persons consenting to the representation.
So what does that letter (z) say? If you represent yourselves as
copartners, then you will be treated by law as copartners. Article
1825, on the other hand, would tell you about a person who
represents himself as a partner to an already existing
partnership. The effect is discussed in the second paragraph of
Article 1825. What arises is a sort of agency, but it is not
actually agency because remember in agency, it can never be
presumed. It has to conform to legal requirements to be
considered as an agency. And if it is not an agency, the
subsequent transactions becomes null and void. Remember that
an agency is a mere preparatory contract. A preparatory contract
is not entered into for its own sake.
Lets try to illustrate. You enter into a contract of agency to enter
into further juridical relations through the agent. No one enters
into agency just to have an agent. How do you define
partnership?
Article 1767. By the contract of partnership two or more
persons bind themselves to contribute money, property, or
industry to a common fund, with the intention of dividing the
profits among themselves.
Two or more persons may also form a partnership for the
exercise of a profession.
So no one enters into partnership for the sake of being partners.
So going back to my point, in agency you have to have a special
power of attorney. Si Jazzie ra ba gihapon ang tudlog Sales diri?
I used to be her professor but she is now better than me. Thats
good; that is the destiny of a professor. You have accept that
your student will surpass you.
Take note that estoppel can be a basis for presumptions.
Section 21 of the Corporation Code. Corporation by
estoppel. All persons who assume to act as a corporation
knowing it to be without authority to do so shall be liable as
general partners for all debts, liabilities and damages incurred or
arising as a result thereof: Provided, however, That when any
such ostensible corporation is sued on any transaction entered by
it as a corporation or on any tort committed by it as such, it shall
not be allowed to use as a defense its lack of corporate
personality.
[Page 81 of 107]
Ad Majorem Dei Gloriam
On who assumes an obligation to an ostensible corporation as
such, cannot resist performance thereof on the ground that there
was in fact no corporation.
This rule apply it is the corporation by estoppel or the ostensible
corporation that is being sued. But take note that if you are the
ostensible corporation, under Civil Procedure, you do not have
that capacity to sue. You do not have legal standing. So what do
you do? You file your case as individuals. But you can be sued as
a corporation you purported to be when you dealt with third
persons.
Lets go to cases: Lim Tong Lim versus Philippine Fishing
Gear Industries (November 3, 1999) and Christian
Childrens Fund versus NLRC (June 30, 1989). The
Supreme Court said:
From the FT of the case: As an organization lawfully created,
the doctrine of corporation by estoppel will apply. When a
third person has entered into a contract with an association
which represented itself to be a corporation, the association
will be estopped from denying its corporate capacity in a suit
against it by such third person. It cannot allege lack of
capacity to be sued to evade responsibility on a contract it had
entered into and by virtue of which it received advantages and
benefits.
To my mind, when this applies, there is no application of the
concept of separate personality. There is no corporation to speak
off, there is no corporate veil to be pierced. What is the
advantage of incorporating? Remember that you can only be
sued as a stockholder to the extent of your share in the
corporation but in this case you can be held personally liable as
there is no corporate veil to speak of.
And in Reynaldo Lozano versus delos Santos (June 19,
1997), what is the basis of this doctrine on estoppel:
From the FT of the case:Corporation by estoppel is founded on
principles of equity and is designed to prevent injustice and
unfairness. It applies when persons assume to form a
corporation and exercise corporate functions and enter into
business relations with third person. Where there is no third
person involved and the conflict arises only among those
assuming the form of a corporation, who therefore know that
it has not been registered, there is no corporation by estoppel.
(aa) That a man and woman deporting themselves as
husband and wife have entered into a lawful contract
of marriage;
If for example a man and a woman live together; nag live-in. The
presumption is that they are lawfully married.
(bb) That property acquired by a man and a woman who
are capacitated to marry each other and who live
exclusively with each other as husband and wife
without the benefit of marriage or under void
marriage, has been obtained by their joint efforts,
work or industry.
(cc) That in cases of cohabitation by a man and a woman
who are not capacitated to marry each other and who
have acquire properly through their actual joint
contribution of money, property or industry, such
contributions and their corresponding shares
including joint deposits of money and evidences of
credit are equal.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
What does (bb) and (cc) provide? Equality. The law does not
speak of a proportion based on their actual work. In the case
where a man is working and the woman is a housewife. What
happens if they part ways, walay makuha ang babae? That is not
fair. Taking care of the household and the children is a form of
industry. Remember that what we are talking about here
cohabitation, not a valid marriage. The default property regime
for spouses under the Family Code is absolute community of
property unless you have stipulated in your marriage settlement
otherwise. That applies of there is marriage. But the Family Code
also treats those cohabitations without the benefit of marriage.
How do you treat them? It is the same in the Rules of Court:
equal shares. What happens if the cohabitation is not between a
man and a woman? We are talking about a man and a man or a
woman and a woman? What happens in that case? The
presumption does not apply. The law does not talk about that
relationship. [Sir proceeds to discuss the impracticability of same
sex marriage as of the moment]
(dd) That if the marriage is terminated and the mother
contracted another marriage within three hundred
days after such termination of the former marriage,
these rules shall govern in the absence of proof to the
contrary:
(1) A child born before one hundred eighty days after the
solemnization of the subsequent marriage is
considered to have been conceived during such
marriage, even though it be born within the three
hundred days after the termination of the former
marriage.
(2) A child born after one hundred eighty days following
the celebration of the subsequent marriage is
considered to have been conceived during such
marriage, even though it be born within the three
hundred days after the termination of the former
marriage.
While you are reading that, Im also reading this provision:
Art. 168 of the Family Code. [same]
They are identical. So (dd) is actually not only procedural, but it
has already become part of substantial law.
(ee) That a thing once proved to exist continues as long
as is usual with things of the nature;
(ff) That the law has been obeyed;
So when you say the law has been obeyed, does it mean a legal
obligation has been complied? Are those two statements the
same? When you obey the law, it also means a legal obligation
has been complied. That is the same thing. That is why the BIR
cannot just padlock your business without any evidence. There
must be a prima facie evidence that you did not pay your taxes
or did not comply with regulations. Because the presumption is
that you paid your taxes and you complied with regulations.
(gg) That a printed or published book, purporting to be
printed or published by public authority, was so
printed or published;
We are talking here of official books. This applies to government
issuances. It does not apply to public authority, in the sense, like
for example, the book by an authority on taxation. This provision
does not apply.
(hh) That a printed or published book, purporting contain
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Ad Majorem Dei Gloriam
reports of cases adjudged in tribunals of the country
where the book is published, contains correct reports
of such cases;
(ii) That a trustee or other person whose duty it was to
convey real property to a particular person has
actually conveyed it to him when such presumption is
necessary to perfect the title of such person or his
successor in interest;
So that refers to land titles.
(jj) That except for purposes of succession, when two
persons perish in the same calamity, such as wreck,
battle, or conflagration, and it is not shown who died
first, and there are no particular circumstances from
which it can be inferred, the survivorship is
determined from the probabilities resulting from the
strength and the age of the sexes, according to the
following rules:
1. If both were under the age of fifteen years, the
older is deemed to have survived;
2. If both were above the age sixty, the younger is
deemed to have survived;
3. If one is under fifteen and the other above sixty,
the former is deemed to have survived;
4. If both be over fifteen and under sixty, and the
sex be different, the male is deemed to have
survived, if the sex be the same, the older;
5. If one be under fifteen or over sixty, and the
other between those ages, the latter is deemed
to have survived.
Most important here is the first clause which says except for the
purposes of succession. Lets try to examine these rules on
presumption of survivorship. Under the law, if both were under
the age of fifteen years, the older is deemed to have survived. So
in this instance, the law puts a premium on maturity. If both
were above the age sixty, the younger is deemed to have
survived. So here, the law would favor the youth. So under
fifteen, the law favors maturity while over 60 the law favors the
youth. Number 3, if one is under fifteen and the other above
sixty, the former is deemed to have survived. Number 4, If both
be over fifteen and under sixty, and the sex be different, the
male is deemed to have survived, if the sex be the same, the
older. Unfair to girls, right?
So the law presumes that a 16 year old boy has better odds of
surviving than a 59 year old woman. The law favors the male.
Number 5, if one be under fifteen or over sixty, and the other
between those ages, the latter is deemed to have survived. So
says if one be under fifteen or over sixty, so that means means
either. So if one is 20 years old and the other is 99 years old, the
20 year old is deemed to have survived. If one is 20 years old
and the other is 9 years old, the 20 year old is deemed to have
survived.
(kk) That if there is a doubt, as between two or more
persons who are called to succeed each other, as to
which of them died first, whoever alleges the death
of one prior to the other, shall prove the same; in
the absence of proof, they shall be considered to
have died at the same time. (5a)
Question: there are two persons who are supposed to succeed
each other; father and child. SO they went to a trip. The child
himself has a child and a wife. So remember in your Succession,
who are the compulsory heirs? The spouse and the child. If you
have children, in your succession, it excludes your parents.
Therefore, whoever dies first has legal ramifications. So the rule
is that one who claims that one died ahead of the other has
proving such occurred. If there is no proof, the presumption is
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
that they died at the same time. What is the effect if the law
presumes they die at the exact moment? There is no succession;
they do not become heirs of one another.
Article 43. If there is a doubt, as between two or more persons
who are called to succeed each other, as to which of them died
first, whoever alleges the death of one prior to the other, shall
prove the same; in the absence of proof, it is presumed that they
died at the same time and there shall be no transmission of
rights from one to the other.
What if there was a one second interval between their deaths? Is
there succession? To my mind, yes. Lets put that into context.
Lets talk about a contract of sale, since nahisgutan naman nato
si Maam Jazzie Sarona. There are three stages in a contract of
sale: preparation, perfection and execution. What is the shortest
stage? It is perfection. A contract is perfected when there is a
meeting of the minds. Meeting of the minds takes place in a split
second. Same thing with succession. It opens from the moment
of death.
So lets say an heir died five seconds after, there is already a
transmission of rights. So if you are going to allege that you are
the son of the child who died. If the grandfather died prior to the
father, then the father becomes an heir. So the father has an
increase in his patrimony and therefore the son can inherit. You
have the burden of proof of proving who died first because you
are the one who stands to be benefitted by the proof.
Section 4. No presumption of legitimacy or illegitimacy. There
is no presumption of legitimacy of a child born after three
hundred days following the dissolution of the marriage or the
separation of the spouses. Whoever alleges the legitimacy or
illegitimacy of such child must prove his allegation.
What is the normal intrauterine life of a baby? 9 months. Why
300 days? Because that is the longest scientifically recorded
intrauterine life; 300 days or 10 months. Section 4 speaks of
legitimacy or illegitimacy.
OTHER PRESUMPTIONS
Presumptions under the Civil Code of the Philippines
Rule 131 is not the only repository of presumptions.
Article 10. In case of doubt in the interpretation or application
of laws, it is presumed that the lawmaking body intended right
and justice to prevail.
That is a useless presumption. You cannot apply it in court. What
is right and just is relative. What is right and just for one may not
be right and just for another.
Now Im not going to read all of these next presumptions but just
take note of them. They are in my previous lectures if you have a
copy. [sir does not discuss all of these, he just mentions the
article numbers]
Article 446. All works, sowing, and planting are presumed made
by the owner and at his expense, unless the contrary is proved.
Article 485. The share of the co-owners, in the benefits as well
as in the charges, shall be proportional to their respective
interests. Any stipulation in a contract to the contrary shall be
void.
The portions belonging to the co-owners in the co-ownership
shall be presumed equal, unless the contrary is proved.
[Page 83 of 107]
Ad Majorem Dei Gloriam
Article 527. Good faith is always presumed, and upon him who
alleges bad faith on the part of a possessor rests the burden of
proof.
Article 529. It is presumed that possession continues to be
enjoyed in the same character in which it was acquired, until the
contrary is proved.
You could be the owner of the property now, then you sold the
property but then you still possess the property. That is what
they call tradition constitu possesorium. So the presumption
there, without any proof to the contrary, is that you are still the
owner.
Article 554. A present possessor who shows his possession at
some previous time, is presumed to have held possession also
during the intermediate period, in the absence of proof to the
contrary.
For example, a car. Ikaw ang tag.iya karun. And the people did
not see you for a long time and then they now see you driving
the same car which you are the purported owner. The
presumption is that you held it in the same capacity.
Article 659. The existence of an easement of party wall is
presumed, unless there is a title, or exterior sign, or proof to the
contrary:
(1) In dividing walls of adjoining buildings up to the point of
common elevation;
(2) In dividing walls of gardens or yards situated in cities, towns,
or in rural communities;
(3) In fences, walls and live hedges dividing rural lands.
As lawyers, you make easement contracts but you do not really
practice law on easements. Just take not of that presumption.
Article 661. Ditches or drains opened between two estates are
also presumed as common to both, if there is no title or sign
showing the contrary.
There is a sign contrary to the part-ownership whenever the
earth or dirt removed to open the ditch or to clean it is only on
one side thereof, in which case the ownership of the ditch shall
belong exclusively to the owner of the land having this exterior
sign in its favor.
Article 940. In alternative legacies or devises, the choice is
presumed to be left to the heir upon whom the obligation to give
the legacy or devise may be imposed, or the executor or
administrator of the estate if no particular heir is so obliged.
If the heir, legatee or devisee, who may have been given the
choice, dies before making it, this right shall pass to the
respective heirs.
Once made, the choice is irrevocable.
In the alternative legacies or devises, except as herein provided,
the provisions of this Code regulating obligations of the same
kind shall be observed, save such modifications as may appear
from the intention expressed by the testator.
So for example, I give to you a house and lot or a laptop and I
leave to the administrator or executor to decide what to give. Or
I leave it to my son to determine what to give.
Article 1138. In the computation of time necessary for
prescription the following rules shall be observed:
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
(1) The present possessor may complete the period necessary
for prescription by tacking his possession to that of his grantor or
predecessor in interest;
(2) It is presumed that the present possessor who was also the
possessor at a previous time, has continued to be in possession
during the intervening time, unless there is proof to the contrary;
(3) The first day shall be excluded and the last day included.
Article 1196. Whenever in an obligation a period is designated,
it is presumed to have been established for the benefit of both
the creditor and the debtor, unless from the tenor of the same or
other circumstances it should appear that the period has been
established in favor of one or of the other.
So ordinarily, in the absence of any proof to the contrary, a
period is established for the benefit of both creditor and debtor.
But there are certain stipulations and contracts under the law
where clearly the tenor of the same is established in favor of one
over the other. For example commodatum. Nanghulam kag
sakyanan; Iuli pag one week. Commodatum arises out of the
liberality of the lender so it is presumed that the period is for the
benefit of the lender. Another example is in a case of precarium
or the return of the thing at will of the lender.
Article 1208. If from the law, or the nature or the wording of
the obligations to which the preceding article refers the contrary
does not appear, the credit or debt shall be presumed to be
divided into as many shares as there are creditors or debtors, the
credits or debts being considered distinct from one another,
subject to the Rules of Court governing the multiplicity of suits.
Article 1265. Whenever the thing is lost in the possession of
the debtor, it shall be presumed that the loss was due to his
fault, unless there is proof to the contrary, and without prejudice
to the provisions of article 1165. This presumption does not
apply in case of earthquake, flood, storm, or other natural
calamity.
Article 1272. Whenever the private document in which the debt
appears is found in the possession of the debtor, it shall be
presumed that the creditor delivered it voluntarily, unless the
contrary is proved.
You can take Article 1272 a step further, if you are in possession
of the evidence of the obligation, it is presumed that the
obligation has been paid, in the absence of proof to the contrary.
Article 1302. It is presumed that there is legal subrogation:
(1) When a creditor pays another creditor who is preferred, even
without the debtor's knowledge;
(2) When a third person, not interested in the obligation, pays
with the express or tacit approval of the debtor;
(3) When, even without the knowledge of the debtor, a person
interested in the fulfillment of the obligation pays, without
prejudice to the effects of confusion as to the latter's share.
Article 1319. Consent is manifested by the meeting of the offer
and the acceptance upon the thing and the cause which are to
constitute the contract. The offer must be certain and the
acceptance absolute. A qualified acceptance constitutes a
counter-offer.
Acceptance made by letter or telegram does not bind the offerer
except from the time it came to his knowledge. The contract, in
such a case, is presumed to have been entered into in the place
where the offer was made.
Article 1354. Although the cause is not stated in the contract, it
is presumed that it exists and is lawful, unless the debtor proves
the contrary.
[Page 84 of 107]
Ad Majorem Dei Gloriam
Article 1387. All contracts by virtue of which the debtor
alienates property by gratuitous title are presumed to have been
entered into in fraud of creditors, when the donor did not reserve
sufficient property to pay all debts contracted before the
donation.
Alienations by onerous title are also presumed fraudulent when
made by persons against whom some judgment has been
rendered in any instance or some writ of attachment has been
issued. The decision or attachment need not refer to the
property alienated, and need not have been obtained by the
party seeking the rescission.
In addition to these presumptions, the design to defraud
creditors may be proved in any other manner recognized by the
law of evidence.
So you have debts and you donated the bulk of your property,
these donations are presumed to be in fraud of your creditors.
This kind of article is rare because it presumes fraud or bad faith.
The default presumption is good faith but Article 1387 presumes
fraud.
Article 1446. Acceptance by the beneficiary is necessary.
Nevertheless, if the trust imposes no onerous condition upon the
beneficiary, his acceptance shall be presumed, if there is no
proof to the contrary.
Article 1448. There is an implied trust when property is sold,
and the legal estate is granted to one party but the price is paid
by another for the purpose of having the beneficial interest of
the property. The former is the trustee, while the latter is the
beneficiary. However, if the person to whom the title is conveyed
is a child, legitimate or illegitimate, of the one paying the price of
the sale, no trust is implied by law, it being disputably presumed
that there is a gift in favor of the child.
Article 1572. If two or more animals are sold together, whether
for a lump sum or for a separate price for each of them, the
redhibitory defect of one shall only give rise to its redhibition,
and not that of the others; unless it should appear that the
vendee would not have purchased the sound animal or animals
without the defective one.
The latter case shall be presumed when a team, yoke pair, or set
is bought, even if a separate price has been fixed for each one of
the animals composing the same.
Sige daw be what is a redhibitory defect? This refers to the thing
sold. You have what is called a hidden defect and redhibitory
defect is also a hidden defect. It is a type of hidden defect but
this is not equivalent to hidden defect. For example, if the animal
is sick, you can return the animal if the sickness is not apparent.
The term redhibitory does not refer actually to the defect but to
the remedy that is given to the defect, which is redhibtion. What
is redhibition? You return the object and get what you have paid.
Or keep the animal and then ask for a proportionate refund or
discount.
ARTICLE 1602. The contract shall be presumed to be an
equitable mortgage, in any of the following cases:
(1) When the price of a sale with right to repurchase is unusually
inadequate;
(2) When the vendor remains in possession as lessee or
otherwise;
(3) When upon or after the expiration of the right to repurchase
another instrument extending the period of redemption or
granting a new period is executed;
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
(4) When the purchaser retains for himself a part of the purchase
price;
(5) When the vendor binds himself to pay the taxes on the thing
sold;
(6) In any other case where it may be fairly inferred that the real
intention of the parties is that the transaction shall secure the
payment of a debt or the performance of any other obligation.
In any of the foregoing cases, any money, fruits, or other benefit
to be received by the vendee as rent or otherwise shall be
considered as interest which shall be subject to the usury laws.
Article 1725. The owner may withdraw at will from the
construction of the work, although it may have been
commenced, indemnifying the contractor for all the latter's
expenses, work, and the usefulness which the owner may obtain
therefrom, and damages.
Article 1982. When it becomes necessary to open a locked box
or receptacle, the depositary is presumed authorized to do so, if
the key has been delivered to him; or when the instructions of
the depositor as regards the deposit cannot be executed without
opening the box or receptacle.
Article 2163. It is presumed that there was a mistake in the
payment if something which had never been due or had already
been paid was delivered; but he from whom the return is claimed
may prove that the delivery was made out of liberality or for any
other just cause.
So those would sum up most of the other presumptions found
out throughout Civil Code.
Disputable Presumptions under the
Rule on Electronic Evidence (A.M. NO. 01-7-01-SC)
RULE 6, SEC. 3. Disputable presumptions relation to electronic
signature. Upon the authentication of an electronic signature, it
shall be presumed that:
(a) The electronic signature is that of the person to whom it
correlates;
(b) The electronic signature was affixed by that person with the
intention of authenticating or approving the electronic document
to which it is related or to indicate such persons consent to the
transaction embodied therein; and
(c) The methods or processes utilized to affix or verity the
electronic signature operated without error or fault.
RULE 6, SEC. 4. Disputable presumptions relating to digital
signatures. Upon the authentication of a digital signature, it
shall be presumed, in addition to those mentioned in the
immediately preceding section, that:
(a) The information contained in a certificate is correct;
(b) The digital signature was created during the operational
period of a certificate;
Take note of these presumptions. This is actually important right
now, this rule on electronic evidence. Because these days you
can contract electronically. You do not have to meet the person
to contract. But I do not think these rule can be made applicable
to wills.
Presumption as to notarization
Now this is something I think youll be interested in. This is a
presumption that is not found in law but rather in jurisprudence.
Here is the case of Lazaro versus Agustin (April 15,
[Page 85 of 107]
Ad Majorem Dei Gloriam
2010):
From the FT of the case: Settled is the rule that generally, a
notarized document carries the evidentiary weight conferred
upon it with respect to its due execution, and documents
acknowledged before a notary public have in their favor the
presumption of regularity. However, this presumption is not
absolute and may be rebutted by clear and convincing
evidence to the contrary. Moreover, not all notarized
documents are exempted from the rule on authentication.
Thus, an affidavit does not automatically become a public
document just because it contains a notarial jurat. The
presumptions that attach to notarized documents can be
affirmed only so long as it is beyond dispute that the
notarization was regular.
What would be the effect of notarization? It converts the
document into a public document.
RULE 132
PRESENTATION OF EVIDENCE
EXAMINATION OF WITNESSES
Section 5. Direct examination. Direct examination is the
examination-in-chief of a witness by the party presenting him on
the facts relevant to the issue.
As an introduction, take note that although I can make you
memorize Section 5, it is already amended by the Judicial
Affidavit rule. Direct examination is only done exclusively in
limited situations. So I will not ask you to memorize that Section.
Section 6. Cross-examination; its purpose and extent. Upon
the termination of the direct examination, the witness may be
cross-examined by the adverse party as to many matters stated
in the direct examination, or connected therewith, with sufficient
fullness and freedom to test his accuracy and truthfulness and
freedom from interest or bias, or the reverse, and to elicit all
important facts bearing upon the issue.
Memorize Section 6. I will not ask you to memorize Section 7 and
Section 8 but I charge you to find out what is the English Rule
and American Rule as found in the lectures of Dean Inigo.
OCT 9, 2015 (DMiles)
Now lets go to presentation of evidence.
Sec 1. The examination of witnesses presented in trial or
hearing shall be done in open court and under oath or
affirmation. Unless the witness is incapacitated to speak, or
the questions calls for a different mode of answer, the
answers of the witness shall be orally.
The requirements are:
1. The examination of witness must be done in open
court
In criminal case, this is in pursuant to the right of the
witness to confront the witness.
Also, it is for the court to observe the demeanor of the
witness. It is for the court to observe the demeanor of the
witness. Demeanor is the collusion, influence or the
observation of the court. In the case of People vs. Silvano
(7-17-03), the reason for the requirement is for the court
to judge the credibility of the witness by the manner of
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
relating the facts, his intelligence and his appearance. It is
unquestionably the safest and most satisfactory method of
investigating facts and affords the protection to the rights of
the individual.
Thus the general rule: The testimony must be made in open
court.
Exceptions: When the examination of the witness can be
done NOT in open court.
a) Sec 8, Child Witness Rule Its practically the
same with Sec 1, Rule 132 unless the witness is
incapacitated to speak or the questions calls for a
different mode of answer, the answers of the
witness shall be given orally. The guardian of the
child may request the court to let the child testify
not in open court under the rule on child witness
examination.
What are the other modes under child witness
examination rule?
i. Sec 25 By use of Live-link television testimony in
criminal cases where the child is a victim or a
witness.
ii. Sec 27 By video-taped deposition
iii. Sec 29 Admissibility of videotaped and
audiotaped in-depth investigative or disclosure
interviews in child abuse cases.
Other modes:
b) Under civil procedure on taking of
depositions. Rule 24, Sec 4 The deposition of
a witness whether or not a party may be used by
any party for any purpose if the court finds that the
witness is dead, is out of province and at a greater
distance than 50 kilometers from the court, fails to
testify due to sickness, age, infirmity or
imprisonment, or that the party offering the
deposition fails to procure the attendance of the
witness thru subpoena and upon application of
notice that such exceptional circumstances as to
make desirable in the interest of justice and due
regard to the importance of presenting the
testimony of witnesses orally in open court to allow
the deposition to be use.
2. It must be under oath or affirmation
3. The answer of witness must be done orally
3rd requirement, the answers must be done orally.
Exceptions: Other than verbal.
a) If the witness is incapacitated to speak such as a
deaf-mute witness
b) The questions calls for a different answer such as
the answer calls for a gesture or the witness points
to the accused
c) Under summary rules the testimonies will be
reduced into writing in the form of affidavits.
Sec 2. The entire proceedings of a trial or hearing ,
including the questions propounded to a witness and his
answers thereto, the statements made by the judge or any
of the parties, counsel or witnesses with reference to the
case, shall be recorded by means of a shorthand or
stenotype or by other means of recording found suitable by
the court.
[Page 86 of 107]
Ad Majorem Dei Gloriam
A transcript of the record of the proceedings made by the
official stenographer, stenotypist or recorder and certified as
correct by him shall be deemed prima facie a correct
statement of such proceedings.
There is that presumption of regularity of the transcripts. If you
want to correct the details in it, you file a motion to correct the
stenographic notes because if not, there is a presumption of
regularity.
Sec 3. A witness must answer questions, although his
answer may tend to establish a claim against him. However
it is the right of a witness: x x x
When you present a witness in court, this section you should
know. You can file your objections using this section.
1. To be protected from irrelevant, improper or
insulting questions and from harsh or insulting
demeanor; x x x
The right of witness is protected under the forms of questions
and manner of questions. Your objection is irrelevant as to
improper questions. As to manner, in the US it is called
badgering the witness.
2. Not to be detained longer than the interests of
justice requires; x x x
This is a safeguard against repetitive questions.
3. Not to be examined except only as to matters
pertinent to the issue; x x x
The general ground for objection here is the question has no
basis or irrelevant.
4. Not to give an answer which will tend to subject
him to a penalty for an offense unless otherwise
provided by law; x x x
This is a safeguard against the right to self-incrimination; applies
only to criminal offenses.
Exceptions under right to self-incrimination:
1) Used immunity when you discharged as a state
witness. The witness will be still be indicted but the
statements given cannot be use against him.
2) Transactional immunity this is absolute
immunity not only from the use of your testimony
but from the prosecution of the offense charged.
5. Not to give an answer which will tend to degrade
his reputation unless it to be the very fact at issue
or to a fact from which in issue would be presumed.
But a witness must answer to the fact of his
previous final conviction for an offense.
A conviction is not something that degrades your reputation as
referred to this statement.
Section 4: The order in which the individual witness may
be examined is as follows:
a. Direct examination by the proponent
b. Cross-examination by the opponent
c. Re-direct examination by the proponent
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

d. Re-cross-examination by the opponent Note: A judicial affidavit is not a Filipino invention. It came from
US under the federal rules of procedure. It has been defined as
Proponent Is the person presenting the witness a written declaration or statement of facts made voluntarily and
Witness The one who will testify on the elements of the cause confirm by the oath or affirmation of the party making it taken
of action before an officer of the court having authority to administer such
Opponent is the one adverse to the proponent oath or affirmation. In the US, it can made in any form. It does
not need to be use in a judicial proceeding.
Section 5: Direct examination is the examination-in-chief of
Under Phil law, the form of our affidavit is actually ours. It is
a witness by the party presenting him on the facts relevant
to the issue. judicial because it is intended to be use in court in a judicial
proceeding. So our judicial affidavit is defined under phil law
as a statement of facts made voluntarily by a witness in a
Remember right now, the direct examination now is done thru
language understood by him to serve as his direct
Judicial Affidavit. It now already expedited the litigation process.
testimony which may contain and identify his
documentary or objective evidence thru a notarial jurat
Judicial Affidavit Rule
and for use in a judicial proceeding.
A.M. 12-8-8-SC
Characteristics of a judicial affidavit:
Section 3. Contents of judicial Affidavit. - A judicial affidavit
shall be prepared in the language known to the witness and, 1. It is statement of facts presented in question and answer
if not in English or Filipino, accompanied by a translation in form.
English or Filipino x x x 2. It is made under oath and affirmation.
3. It serves a judicial purpose use as a substitute for a
It means if the affidavit is in English or Filipino, no need to be witness directs testimony.
accompanied by a translation of English or Filipino. So you can 4. It may obtain and identify non testimonial evidence you
submit a judicial affidavit in Filipino. have to affix it in the judicial affidavit.
5. It is prepared ex-parte.
What are the contents?
Distinguish JA and ordinary affidavit:
a. The name, age, residence or bus address and occupation
of the witness; AS TO JA Ordinary Affidavit
FORM JA is a narration of It is still a statement
b. The name and address of the lawyer who conducts or facts under oath but in of facts under oath
supervises the examination of the witness and the place a Q&A form unlike in
where the examination is being held; an OA.
LANGUA In a JA, it is in the In OA (normally) in
Note: if you facilitate a judicial affidavit even if you did not GE USED language of the the language of the
appear in court as the counsel of that party, that is already witness counsel. (ex affidavit
engaging as the counsel of such witness equivalent to an of loss)
appearance in court which is liable to a conflict in interest if you In JA, it is submitted in (Some) do not reach
are the counsel of such adverse party. court the courts.
USES It has only one For any use (ex
c. A statement that the witness is answering the purpose to take the affidavit of
questions asked of him, fully conscious that he does place of testimony of cohabitation / non-
so under oath and that he may face criminal liability witnesses in direct tenancy), it can be of
for false testimony or perjury; testimony. any subject under the
sun.
d. Questions asked of the witness and his corresponding ADMI- There is a specific Jurisprudence would
answers, consecutively numbered, that: SSIBILIT situation under the rule say that it is hearsay
1. Show the circumstances under which the witness Y where the courts will when its affiant did
acquired the facts upon which he testifies not consider the JA not take the stand.
2. Elicit from him those facts which are relevant to anymore only if the
the issues that the case presents witness fails to appear
3. Identify the attached documentary and object at the schedule hearing
evidence and establish their authenticity in or the JA does not
accordance with the rules of court confirm to the
4. The signature of the witness over his printed requirements of Sec 3
name (contents ) and Sec 4
(attestation
e. The signature of the witness over his printed name. requirement of the
lawyer)
f. A jurat with the signature of the notary public who WAIVER The counsel who fails Cross examination is
administers the oath or an officer who is authorized by OF THE to appear without valid waived by any means
law to administer the same. CROSS cause despite notice allowed by law.
EXAM has deemed to have
How many lawyers are required in making a judicial affidavit? waived his clients right
Minimum Two lawyers and there instances where 3 lawyers are to confirm by cross
required examination the
witness.
One who is asking the question and another one lawyer
administering the oath, executing the jurat. How did the JA affected the rules of procedure?

[Page 87 of 107]
Ad Majorem Dei Gloriam
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
1. In the case of objections, a testimony can be lengthy
and it will consume the time only for direct examination.
Thats why solution is JA for direct testimony. The
sacrifice only here is for the court to observe the
demeanor of the witness during testimony.
2. In the case of asking question, leading question is not
allowed so it takes time to elicit answers from the
witness. In JA, the court can allow you since you can
submit your objections to the questions.
The rationale why the JA was implemented is TO SAVE TIME.
There is no need for the lengthy direct examination and
objection. JA is applicable practically to all courts, special court
and quasi-judicial bodies.
Octoner 14, 2015 (ELGuiritan)
Lets continue with our discussion on JAR and perhaps a short
explanation of why we are discussing it. We are now in section 5
regarding direct examination.
The examination in chief of a partys witness, right now with the
promulgation of the Judicial Affidavit Rule (JAR) we have
changed it. The way we receive evidence under the direct
examination has already been changed and the major change
enforce introduction of judicial affidavits rather than examination
in the court. Its no longer oral type of presentation of evidence it
is already in the form of written testimonial evidence or judicial
affidavits.
What will be the type of cases are covered by the judicial
affidavit rule? According to the rule its very clear that it shall
apply to all actions, proceeding and incidents requiring the
reception of evidence. So any case is covered the civil or criminal
for as long as its a court case it applies, special proceedings are
also covered not necessarily limited to mere civil actions and
even incidents which we will discuss later on.
What the rule specifically excludes from its application is small
claims cases because its expeditious already. Take note that
while it is applicable in criminal cases there may be certain cases
excluded from the ambit of the rule. Remember JAR would only
apply to criminal cases in three situations provided by Section 9:
Section 9. Application of rule to criminal actions.
(a) This rule shall apply to all criminal actions:
(1) Where the maximum of the imposable penalty does
not exceed six years;
(2) Where the accused agrees to the use of judicial
affidavits, irrespective of the penalty involved; or
(3) With respect to the civil aspect of the actions,
whatever the penalties involved are.
xxx
The rule in criminal procedure that a civil action is deemed
impliedly instituted with the filing of the criminal case.
First introduce evidence for example to establish the elements of
the events the same thing goes for the accused then supposed
to be when you present damages or any reparation that may be
called for the criminal case that is when you apply the JAR. But it
does not take into account the fact that when you actually testify
for example you are a private complainant in a criminal case that
when you testify, you do not testify by listening, you testify as to
what the accused did to you and at the same time as to what
damages you incurred so for the elements of the offense you
testified may be orally because its actually allowed by the rules
its not part of the ambit of the rules when you are talking about
criminal aspect because it is only in the civil action that is
covered. So you testify gidunggab ka sa accusado then later on
[Page 88 of 107]
Ad Majorem Dei Gloriam
you later on you re-testify by judicial affidavit (JA) for the
purpose of proving the damages incurred example hospitalization
or moral damages, it stands to reason that when you testify as to
the criminal aspect then you testify as well to the civil aspect.
That is why here in Davao city when you opt for the submission
of JA what happens? Then you testify everything including the
civil aspect not only the criminal aspect.
And finally in any case where the accused agrees to the use of
the rule regardless of the penalty. But if the accused says yeah
lets submit JA because anyways represented by counsel de
parte. This now brings a lot of problems to the prosecution who
for example if you are a particular prosecutor assigned to a sala
that has a lot of cases pending, how many JA do you have to
make in order for you to present evidence because if you do not
have JA you cannot present.
Take note also that JAR was made specifically applicable to cases
already pending at the time of its promulgation. Remember the
basic rule under the JAR that you submit your JA together with
the pre-trial brief so it has to be filed already before the court at
the time that you conduct pre-trial. But let us supposed that
there was already a pre-trial and then the JAR took effect, what
happens then, would that be applicable already? Yes, because it
is a remedial legislation and therefore it should be given
retroactive application. Even if a pre-trial had already been
conducted the presentation of evidence could still be governed
by the rule. Justice Abad said that the presentation of witnesses
would be considered incidents remember that the JAR applies in
pleadings. In all actions, proceeding and incidents requiring the
reception of evidence.
When you say incident what does it mean? Lets say you file a
motion to dismiss? Remember under rule 16 when you file a
motion to dismiss you have to support that with affidavits
because not all grounds for a motion to dismiss are legal in
nature example prescription thats apparent on the face of the
complaint, no need for any affidavit the court simply has to look
into the complaint and see whether or not the action has already
prescribed. But what if your ground is based on something
factual like litis pendencia, or res ajudicata? The courts do not
take cognizance of records of other cases of other courts and so
you need to secure a copy of the decision and testify on that
copy of the decision so that will require JA thats an incident.
Unsa pa man na incident that would require the presentation of
witnesses, example you are asking for TRO or a writ of
preliminary injunction so that will be heard ahead of the main
case. How do you now support you prayer for preliminary
injunction? By means of testimony to the effect that there is
urgency that is needed already, a writ of injunction is needed for
the preservation of the status quo, how do you do that? By
means of JA.
According to Justice Abad even if pre-trial has been had because
the JAR is specifically given retroactive application then you treat
the presentation of witnesses there after pre-trial to be incidents
in which case the rule is the JA has to be submitted to the courts
within the period provided by the rules prior to the incident. This
is under section 12 of the JAR
Section 12. Effectivity. - This rule shall take effect on January 1,
2013 following its publication in two newspapers of general
circulation not later than September 15, 2012. It shall also apply
to existing cases.
When you talk about JA you are also talking about a formal
requirement prior the pre-trial not only the pre-trial brief but also
the submission of the JA ingon ana daw ingon ni Justice Abad.
However you have to remember that lawyers are very busy so it
has detrimental effects especially in the beginning of the
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
application of the rule, example in a criminal case regardless of
the penalty if the accused tells a court we opt for submission of
JA so its the will of the accused that will govern. So lets say
there are 5 complainants naka pre-trial na and during the pre-
trial the 5 complainants were identified as witnesses themselves
and in addition another 5 witnesses as corroborating evidence so
all in all 10 witnesses. What about the accused? You have that
complete luxury of even withholding sometimes your evidence
why? Because these criminal procedural rules are always literally
construed in favor of the accused.
So remember under the constitution you have the right to a
speedy trial magabsent lang ang prosecution for how many trial
setting he can now file a motion to dismiss on the grounds of
speedy trial and that is the effect there will be double jeopardy.
That is the bias of the law in favor of the accused when it comes
to criminal procedures. So ingonana nahitabo 10 kabuok ang
witness then the accused your honor we only have 1 witness its
the accused but we reserve the right to present more evidence
and so now JA is applicable so because the case was still at pre-
trial after being there for three years like what happened to me
why? Because the court really want the parties to settle and I do
not blame the court. Now JA took effect the case was so the case
was called again for trial and then here comes the accused
saying that your honor we opt for the submission of JA the
court then set the trial date for a month after. So I have to make
10 JA as opposed to the accused only 1 with the reservation that
you will submit further JA. The law is silent on that point which
means it might be allowed but for the prosecution is a lot
stricter. Remember that if these important witnesses will not be
able to submit their JA they cannot testify anymore. The JAR
actually made the task of the prosecution more difficult.
After the JAR became effective there was a moratorium for the
prosecutors. It will not take effect yet in cases where there is no
private prosecutors. Supposed to be a public prosecutor will take
care of the public aspect and the private prosecutor will take care
of the civil aspect. Let me correct you there on paper that is
correct but there is a private prosecutor the public prosecutor will
simply lay back not do anything.
Motions are considered incidents, motion to dismiss attach JA,
TRO or writ of preliminary attachment attach already JA, in
preliminary hearing on your affirmative defenses if you did not
file a motion to dismiss thats the same thing you have to attach
JA.
Question: a demurrer to evidence is in a motion, youre the
accused, you filed a demurrer to evidence saying that the
prosecution failed to establish a prima facie case against you.
The evidence of the offense were not proven during prosecution,
are you required to submit a JA? Thats an incident a motion, are
you required? NO, remember that in a demurrer you are saying
that with the evidence already presented by the prosecution
without referring at all to the evidence that I have as accused Ill
be entitled to an acquittal, they have not proven anything and so
a demurrer is filed without attachments as everything is
argument. I-argue lang nimo nganu wala na prove, that there is
no prima facie case and therefore you are not allowed to present
evidence. A motion for demurrer of evidence is a motion that
does not require the presentation of evidence and therefore it is
not covered by JAR.
Technically speaking a motion for postponement requires JA.
When you file for postponement due to sickness what do you
need to attach an affidavit, there is a requirement to attach an
affidavit not merely a medical certificate or you file a
postponement on the ground a very important witness is not
available pwede man nah but you have to attach the proper
affidavits. Because that is an incident technically speaking
dapatnakay JA but that is not being followed because imbes na
sayon nalang unta kay mag papostpone na gudka the judge can
[Page 89 of 107]
Ad Majorem Dei Gloriam
simply take note of if mag require pa bakaug JA? The law does
not require or at least the judges here in Davao wala naga
require ana. Any mention in the rules of civil or criminal
procedure regarding affidavits that is supposed to refer as well
now to JA.
How do you serve and file JA? Let me refer you back to rule 18
section 6 regarding pre-trial. What is the deadline for the
submission of a pre-trial brief? That is 3 days prior to the date of
the pre-trial. Remember that the non-submission of a pre-trial
brief if you are the defendant you are deemed to be as in
default, if youre the plaintiff and you failed to file your pre-trial
brief you are considered non-suited the case will be dismissed or
the defendant can be declared as in default. Remember under
the JAR opportune time to submit the JA is when you submit
your pre-trial brief, the law requires that the JA should
accompany the pre-trial brief. There was this issue if under rule
18 section 6 the requirement for you to submit your pre-trial
brief 3 days prior to the pre-trial of the case what happens now
to that period considering that the requirement is to submit JA 5
days prior to the scheduled pre-trial the law says:
Section 2. Submission of Judicial Affidavits and Exhibits in lieu
of direct testimonies.
(a) The parties shall file with the court and serve on the adverse
party, personally or by licensed courier service, not later than five
days before pre-trial or preliminary conference or the scheduled
hearing with respect to motions and incidents x x x
So here is a 3 days period prior for pre-trial brief and 5 days prior
for JA (so under JAR it requires earlier filing). The issue before
was does it have the effect of actually shortening the period
within which you can file your pre-trial brief 3 days under rule 18
section 6 now under the JAR where you attach the JA to the pre-
trial brief 5 days prior so it shortens your time. So did it have the
effect of amending the period provided in rule 18 sec. 6? So ang
gibuhat sa mga lawyer they still submit ahead the JA by
submitting a court paper called submission of JA and then 2 days
after they submit the pre-trial brief.
How are JA served and filed in criminal cases? You apply section
9 b and c, the period is still the same:
Section 9. Application of rule to criminal actions.
xxx
(b) The prosecution shall submit the judicial affidavits of its
witnesses not later than five days before the pre-trial, serving
copies if the same upon the accused. The complainant or public
prosecutor shall attach to the affidavits such documentary or
object evidence as he may have, marking them as Exhibits A, B,
C, and so on. No further judicial affidavit, documentary, or object
evidence shall be admitted at the trial.
xxx
This provision applies to cases where the law says the JAR
applies not to cases where the accused by his choice opts for the
submission of JA because in certain cases its the decision of the
accused that will prevail when the accused says we will opt for
the submission of JA thats the only time when the prosecution
will be required to submit their own JA that is not covered by
section 9. When will the accused say that he opts for the
submission of JA? During the pre-trial, so section 9 applies to
cases where JA are submitted after pre-trial like it was a mere
incident. So if a particular witness is supposed to testify on a
particular date then 5 days before that date then JA must have
been filed and served upon the adverse party.
Now whats the period for the accused?
Section 9. Application of rule to criminal actions.
xxx
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
(c) If the accused desires to be heard on his defense after
receipt of the judicial affidavits of the prosecution, he shall have
the option to submit his judicial affidavit as well as those of his
witnesses to the court within ten days from receipt of such
affidavits and serve a copy of each on the public and private
prosecutor, including his documentary and object evidence
previously marked as Exhibits 1, 2, 3, and so on. These affidavits
shall serve as direct testimonies of the accused and his witnesses
when they appear before the court to testify.
What does it means? Letter c simply upholds the right of the
accused not to opt for the submission of JA. For the prosecution
its the general rule 5 days prior to the pre-trial, but for the
accused it is only when you already saw what was written in the
JA that you may not be let to file a JA if he wants to and he is
given a longer period of 10 days from receipt of such affidavits.
Is it okay if he does not submit a JA? Yes, its his choice.
GR: 5 days prior to the trial applies to the prosecution
Exception: section 9(c) if the accused desire to be heard on his
defense after receipt of the judicial affidavits of the prosecution,
he shall have the option to submit his JA as well as the JA of his
witnesses to the court within 10 days from such affidavits. In
section 9(b) take note:
xxx No further judicial affidavit, documentary, or object evidence
shall be admitted at the trial.
Take note that this sentence does not appear in section 9(c)
regarding the accused, does this means that the accused is
allowed to submit further JA in the course of the trial together
with his non testimonial evidence? The rule is silent on that point
and the presumption is if the law is silent, the law does not
prohibit then its allowed.
Another issue service to client. In section 2 of the JAR there is
only two modes of service for filing of JA are allowed:
1. Personal service
2. Licensed courier service
We are talking about LBC, JRS etc. pwede nah but you have
to reconcile that with the rules on civil procedure because
civpro tells you that it is only when you file by registered
mail that you can apply the date of mailing is the date
filing rule. This abused by lawyers its a way to delay the
case. When the law mentions licensed courier service would
the rule the date of mailing is the date of filing applicable?
NO, because it is not registered mail service. Can you opt to
mail by registered mail service? Can you? The law does not
mention it, it only mentions personal or license courier? The
law is silent meaning its allowed but be sure to look out to
ensure that when you use registered mail service it arrives
prior to the period provided by the law, 5 days prior to the
pre-trial, 5 days prior to the incident so on and so forth.
What is important is the date of receipt masking i-file pa
nimo 20 days ahead of the scheduled trial for example but
nadawat less than 5 days then that JA should be excluded,
thats supposed to be the rule. You can via license courier at
the same time by registered mail para sigurado.
What does section 9 tells you again, no further judicial affidavit,
documentary, or object evidence shall be admitted at the trial,
can you submit amended or supplemental affidavits? The
situation is like this, theres newly discovered evidence that
severely affects youre cause of action for your defense in that
civil case but pre-trial has already been had and therefore gipa
submit naka JA, you were not aware of nor were you in position
of that evidence at the time you submitted JA, so kalimtan
nalang nimo nga nakaingonana na evidence because anyway you
cannot file supplemental JA? The law says no further JA affidavit
[Page 90 of 107]
Ad Majorem Dei Gloriam
is allowed, thats how strict the law is but to my mind that should
always be a decision. If you can file a motion for new trial or
reconsideration on the ground of newly discovered evidence
youre not allowed to file amended or supplemental JA? You
should be allowed, I have file this before and it was allowed by
the court in the interest of justice because it was due to
inadvertence. Interpret the rules not by the letter that killeth but
by the spirit that giveth life.
Section 3, you need to be familiar with the contents: [please
check full text of Section 3 in the prior discussion]
Section 3. Contents of judicial Affidavit.
xxx
(f) A jurat with the signature of the notary public who
administers the oath or an officer who is authorized by law to
administer the same.
Last content is the sworn attestation of the lawyer. There are
two lawyers involved:
The lawyer who conducts the examination who may
himself notarize any other JA; and
The lawyer who notarizes the attestation the one
conducting the examination.
You cant be the lawyer who executes the jurat and at the same
time the lawyer who conducted the examination dili na sya
pwede so there has to be two counsel department. If youre a
lawyer notary public, can you administer any oath, under the
rules of notarial practice lets say for example naa kay classmate
kani-adto nakapasa ug real estate brokers board unya niduol sa
imoha pwede ba ikaw nalang mag pa-oath sa akoa, can you
administer the oath? pwede? Can you administer that oath? Yes
you can as a notary public you can I did that a lot of times, most
recently when I still had a notarial commission I administer an
oath to librarians, I was the guest of owner and speaker and at
the same time I administer the oath of office. Thats the reason
why you are allowed to administer an oath for a JA if you are the
one examining
What if you *** right now, no notarial commission. Can I ask
question under oath sa witness nako, can I ask my witness to
swear or to take an oath that he will answer my questions
truthfully, can I? Two possible answer here:
(1) I cannot, Im not a notary public without the notarial
commission I cannot administer oaths
(2) Im still an officer of the court and being an officer of
the court I am allowed to administer oaths.
Take note that the lawyer who conduct examination must also
make a statement under oath under section 4 which provides:
Section 4. Sworn attestation of the lawyer.
(a) The judicial affidavit shall contain a sworn attestation at
the end, executed by the lawyer who conducted or
supervised the examination of the witness, to the effect
that:
(1) He faithfully recorded or caused to be recorded
the questions he asked and the corresponding
answers that the witness gave; and
(2) Neither he nor any other person then present
or assisting him coached the witness regarding
the latter's answers.
(b) A false attestation shall subject the lawyer mentioned to
disciplinary action, including disbarment.
That is what we call the sworn attestation of the lawyer. Any new
rule that the SC comes up with it always worry lawyers because
they can always provide that if you violate this rule you are liable
for disbarment or any administrative action. There are a lot of
rules one is Efficient Use of Paper Rule, they provide what kind of
font the number of copies. Can you imagines without efficient
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
use of paper rule how many copies you have to file. Thankfully
the Efficient Use of Paper Rule does not have the penalty of
disbarment if you did not efficiently use paper. They want to
develop this e-filing system, paperless judiciary. According to
Justice Abad he was the one who pushed for this. Kanang pwede
lang i-email nimo ang papers. In the US it is already being done.
How do they do it? At the beginning of the case all parties
including their lawyers should already give their contact
information and so since you are the one who give that contact
info you cannot claim nawala nimo nadawat it is very easy to
verify whether you really receive it and it is your look out to
really open your email. Pwede unta nasya sa JA because it will
really solve a lot of problems.
Do you remember this franking privilege if you recall your Consti
law kung mag padala ug court papers and court mismo through
the post office you are not supposed to be charged anything
thats free. What language should be used in the affidavit?
Language know to the witness and if the language known to the
witness is not English or Filipino it has to be accompanied by a
translation in English or Filipino.
Offer is important remember in rule 132 section 35:
Rule 132, 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.
So before a witness testifies the lawyer should make an offer, its
a way to tell the court in advance what the witness is about to
testify on. So that the court can know whether or not that
testimony is still relevant or whether or not that is needed
because that testimony might be stipulated upon the adverse
might say lets just stipulate so no need to present the witness or
the most practical purpose is for the adverse party to object. If
the testimony is offered for an objectionable purpose, then the
adverse party may object. But in the JAR, it provides that:
Section 6.Offer of and objections to testimony in judicial
affidavit. - The party presenting the judicial affidavit of his
witness in place of direct testimony shall state the purpose of
such testimony at the start of the presentation of the witness. x x
x of the witness and the substance of the proposed. (n)
Another question, remember that when you submit a JA you
have to identify your exhibits already so your first attachment is
exhibit 1, 2 and so on. So all your documentary object evidence
should already be pre-marked and identified as a specific exhibit.
Question: Is a JA required to be marked and identified as an
exhibit? The rule does not say so but if you ask me, I think there
is a ground for the courts to do that. Why? It has to be identified
and marked because it is evidence itself. The JA is itself
evidence, it is a written testimonial evidence so kinahang lan
nimo ipa mark dapat.
Objection to a witness may take the form of a disqualification
from testifying or to be a specific question raised. Disqualification
from testifying, what is the example for this marital
disqualification rule, atty-client privilege communication rule, that
is a ground for the exclusion of the entire JA but there can be
objection in the form of objection to be specific questions raised.
Take note that under the rules of court an objection to a
question propounded in the course of oral examination of a
witness shall be made as soon as the grounds therefore shall
become reasonably apparent. When would the grounds for
objections become reasonably apparent? When the question is
asked. Lets say it is a leading question very clear sa phraseology
sa question. If it is answerable yes or no thats leading. What if
your objection is a general one, that it is immaterial? You can
object to that, you can comment, you can file your objections to
your JA based on that grounds and that question will be stricken
[Page 91 of 107]
Ad Majorem Dei Gloriam
off. If the objection for example is by reason of some
exclusionary rule like the statute of frauds or the parole evidence
rule, is that a valid ground to object questions asked in the JA?
Yes that may easily be revealed in the JA alone, what if the
attachment in the JA is a mere photocopy and therefore violated
the best evidence rule, the rule is actually strict. The only way for
you to get away with attaching a mere photocopy is under
section 2-b:
Section 2.Submission of Judicial Affidavits and Exhibits in lieu of
direct testimonies. x x x
(b) Should a party or a witness desire to keep the original
document or object evidence in his possession, he may, after the
same has been identified, marked as exhibit, and authenticated,
warrant in his judicial affidavit that the copy or reproduction
attached to such affidavit is a faithful copy or reproduction of
that original. In addition, the party or witness shall bring the
original document or object evidence for comparison during the
preliminary conference with the attached copy, reproduction, or
pictures, failing which the latter shall not be admitted.
You still have to bring the original and ask the other party to
stipulate on the reproduction, is it a faithful reproduction of the
original that was brought by the party for pre-trial purposes.
Because if it were under the old rules the usual remedy would be
simply to reform the questions and the court can order the
amendment of the JA on the ground that it is leading but now
the rule does not provide for a procedure in reforming questions.
What happens if the witness is himself disqualified from
testifying? What is you remedy? The remedy there would be
tender of excluded evidence under section 40 rule 132 which is
conceive to allow the reversal of the courts ruling in excluding
evidence but only on appeal.
Rule 132, 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
Conceivably therefore the superior courts may hear cases on
appeal and most of its tasks would consist in the review of
exclusions and disqualifications in the court a quo. Thats very
possible. Lets say your witness was disqualified to testify by
order of the court, can you appeal that disqualification? No, why?
Because an order disqualifying a witness is a mere interlocutory
order. There is no appeal from an interlocutory order, but
exceptionally you can file a petition for certiorari. What is the
best certiorari that you can file? The certiorari that you should
file is one that includes a prayer that in the meantime stay the
proceeding pending the determination of whether or not my
witness can actually testify. That is something that you can do.
That is your remedy. Because otherwise, the proceedings will
continue because it is a mere interlocutory order that you are
questioning.
Human naka sa imohang JA what happens after that? Thats the
time that we go back to the old rules because theres now cross-
examination. This is the same cross-examination that happens in
cases governed by the old procedure. After cross examination,
there is re-direct. After re-direct, there is re-cross and so on and
forth, unless the cross, redirect and re-cross are waived by the
accused.
What if your witness is a government employee, a policeman
these people are busy. So you need to find a schedule when that
policeman or government employee is available to come to your
office and take this JA there. But what if dili pwede, they decline
to come to your office, so what is your remedy? Subpoena dapat.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
So you are going to subpoena somebody before pre-trial,
technically speaking the court has not yet begun, pre-trial palang
ta, wala pa ta sa trial and remember subpoena is a remedy
available only during trial.
What are the effects of non-compliance? It depends on what
constitutes non-compliance it can be:
(1) Failure to file a JA
So what is the sanction for failure to file a JA? Waived.
If you did not submit the required JA or failed to submit JA
on time then the parties deemed to have waived their
submission. However the rule allows one exception provided
the following requirements are present: (1)
Nangayokaugpanahon, it must be with leave of court and
the court has discretion whether to allow it or not. (2) The
delay must be for a valid reason the rule does not indicate at
what point the late submission is allowed. Is it allowed a
month after or will it only be allowed within a week after,
the law does not say that. (3) if it would not unduly
prejudice the opposing party (4) the defaulting party pays a
fine of not less than 1,000 nor more than 5,000 pesos at the
discretion of the court.(5) Then finally, it is availed only
once. You cannot anymore ask for a second extension.
(2) Failure to comply with the prescribe requirements and
absence during the scheduled trial hearing.
What if the non-compliance is the failure to comply with the
contents of a JA? Let us say for example, naay problema ang
attestation? Or it does not bear the translation that is
required? The law says that the courts shall not admit JA
that do not conform to the content requirements. So, it is a
total exclusion. The court may however, allow only once the
subsequent submission of the compliant replacement
affidavits before the hearing or the trial provided that the
delay is for a valid reason and will not unduly prejudice the
opposing party, and provided further that, public or private
opposing counsel responsible for the preparation and
submission pays a fine of not less than P1,000.00 nor more
thanP5,000.00, at the discretion of the court.
Section 10. Effect of non-compliance with the judicial
Affidavit Rule.
xxx
(c) The court shall not admit as evidence judicial affidavits
that do not conform to the content requirements of Section 3
and the attestation requirement of Section 4 above. The
court may, however, allow only once the subsequent
submission of the compliant replacement affidavits before
the hearing or trial provided the delay is for a valid reason
and would not unduly prejudice the opposing party
and provided further, that public or private counsel
responsible for their preparation and submission pays a fine
of not less than P1,000.00 nor more than P 5,000.00, at the
discretion of the court.
I am not saying that it is the first time in the legal history that it
is provided, but usually lawyers do not pay anything. Lawyers are
supposed to not pay anything, it is the client that is supposed to
shoulder the expenses. Some judges would penalize by
dismissing the case.
So, it the lawyer that pays ha, not the client. For example, fiscal
ang required na magsubmit ug JA, violated the content
requirements provided by the rule, you are asking a fiscal to pay?
What if a PAO lawyer, you are asking a PAO lawyer to pay the
fine? That is so unfair. Dili nah nila mapasa sa ilang cliente ang
fine, even if the reason why they violated it is because of the
client.
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Absence during the scheduled trial date. The situation is, you
submitted a JA, but you did not appear during the scheduled trial
of the case for the presentation of the JA. The court shall not
consider the affidavit of any witness who fails to appear at the
scheduled hearing of the case.
Now, here is the problem. No problem with when you are
supposed to file your JA, all of them should be ready during pre-
trial. Wala tay problema ana. But what about the requirement
under the rules of civil procedure, that all witnesses should be
present at the time of the presentation of evidence? All of them
submitted, so during that initial trial, because there is this
innovation right now of face-to-face trial, all witnesses should be
there, the judge will just ask questions left and right and
determining the presence of the witness at the further time for
later examination. So does it mean to say nawala man ka on that
date, naay judicial affidavit, tanggal na dayon ka as witness? I
have not tried that yet.
So, that are that salient features of the Judicial Affidavit Rule.
Criticisms of JA:
First, it deprives the court to observe demeanor evidence during
direct examination. Remember that a JA is always prepared ex-
parte, it is the lawyer and his witness. So what ensures the court
that the question and answer process is really spontaneous? That
the lawyer did not sensor or filter answers, apart from the fact
that the court cannot ask clarificatory questions during the direct
examination. So first time that the court can ask clarificatory
questions is during cross-examination on the adverse party,
giving the impression that the court is asking questions for the
adverse party, he biased towards the adverse party.
Second, it is actually cumbersome. In cases where the litigant for
example, has a de parte lawyer, compliance will take at least
three lawyers, the de parte lawyer asking question,the examining
notary public if the de parte lawyer is not a notary public, and
the lawyer who will notarize the examining notary publics
affidavit. Minimum of 2, ideally of 3.
Third, the examining notary public, due to the extra burden on
him to study the case thoroughly in advance will demand
astronomical fees from the litigant just for the preparation of the
JA over and above the de parte counsels acceptance fee in the
first place. The first place would also demand higher fees for the
added effort of complying with the judicial affidavit rule. Ang
pagbuhat ug JA, it takes a lot of time.
So that will end our discussion on Judicial Affidavit. Let us
continue with Rule 132.
With that, we are done already with Section 5 (Direct).
Section 6. Cross-examination; its purpose and extent.
Upon the termination of the direct examination, the witness
may be cross-examined by the adverse party as to many
matters stated in the direct examination, or connected
therewith, with sufficient fullness and freedom to test his
accuracy and truthfulness and freedom from interest or bias,
or the reverse, and to elicit all important facts bearing upon
the issue. (8a)
Now, remember that cross examination is an important
requirement of due process. Without cross examination, litigants
would not have any tool by which to test the accuracy and
truthfulness of an adverse party, which brings us to what we can
and what we cannot do on cross examination.
For direct examination, you are not allowed to ask leading
questions. For cross examination, you are allowed to ask leading
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
questions. Misleading questions, on the other hand, never
allowed. What is the remedy for the leading question being
asked? You object to it on the ground that it is leading and the
court will simply ask the party asking question to reform the
question. A misleading question, on the other hand, is not
susceptible to reformation. It should not be asked at all.
Differences of leading and misleading questions:
Section 10. Leading and misleading questions. A
question which suggests to the witness the answer which the
examining party desires is a leading question. It is not
allowed, except:
(a) On cross examination;
(b) On preliminary matters;
(c) When there is a difficulty is getting direct and
intelligible answers from a witness who is ignorant,
or a child of tender years, or is of feeble mind, or a
deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an
officer, director, or managing agent of a public or
private corporation or of a partnership or
association which is an adverse party.
A misleading question is one which assumes as true a fact
not yet testified to by the witness, or contrary to that which
he has previously stated. It is not allowed. (5a, 6a, and 8a)
Simply read Section 6. Remember lang what is the nature of the
right to cross examine? What would be its practical purposes?
What is the basis of the right to cross examine? What is the
effect of the lack of cross examination? I have already discussed
that previously when we were talking about hearsay evidence. A
testimony of a witness which was not cross examined is
technically a hearsay, being a hearsay, it should not be
admissible and the remedy of the opponent is a motion to strike.
You also need to remember the reason why there is no cross
examination made in the first place, whose fault was it, that
there was no cross examination? Was it the fault of the
proponent? If it is the fault of the proponent, then, testimony will
be stricken off. If it is the fault of the opponent, meaning, the
supposed cross examiner, they are deemed to have waived their
right to cross examine.
What is the doctrine of incomplete testimony? This is something
that we have also discussed previously. When the cross
examination cannot be done or completed, with causes
attributable to the party who offered the witness, the incomplete
testimony is rendered incompetent, which should be stricken
from the record.
Section 7, section 8, important provisions, but what I would
expect from you would be what is required or what is allowed
during re-direct? What is allowed during re-cross? Remember, re-
direct examination is made by the proponent and therefore, it is
subject to the same rules as during direct examination. So in the
re-direct examination would of course disallow leading questions.
It cannot be asked during direct examination. Re-cross, on the
other hand, follows the same rules as cross examination and
therefore, leading questions may be asked.
Section 7. Re-direct examination; its purpose and extent.
After the cross-examination of the witness has been
concluded, he may be re-examined by the party calling him,
to explain or supplement his answers given during the cross-
examination. On re-direct-examination, questions on matters
not dealt with during the cross-examination, may be allowed
by the court in its discretion. (12)
Section 8. Re-cross-examination. Upon the conclusion of
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Ad Majorem Dei Gloriam
the re-direct examination, the adverse party may re-cross-
examine the witness on matters stated in his re-direct
examination, and also on such other matters as may be
allowed by the court in its discretion. (13)
Another question, unsay pwede nimo ipangutana during cross
examination? Remember that cross examination is sufficient
fullness and freedom. I need that to mean that anything may be
asked as long as the questions would have some relevance to
the testimony of the witness, especially now in the judicial
affidavit rule, you have more time to craft your questions, that it
is no longer probable for a question to be asked that are totally
irrelevant to the fact in issue. Sometimes there are questions
asked in the cross examination which seem to be unrelated to
the testimony, the minimal requirement is that it should be later
on connected or shown to be connected with the fact that is
essential during the direct examination, a relevant fact during the
direct examination.
Naa tay English rule, naa tay American Rule. Which one gives
you more leeway, the American rule or the English rule?
American is stricter. In other words, kung wala gipangutana
during direct, you cannot ask it during cross. But we follow here
a mixture. Why? Because while section 6 specifically tells you
that the witness may be cross examined by the adverse party as
to many matters stated in the direct examination, only matters
stated in the direct examination, but if there is a logical
connection connected therewith, then pwede. Not to mention the
fact that you are given sufficient fullness and freedom to test his
accuracy and truthfulness and freedom from interest or bias. The
minimum requirement is relevance.
What about our rule regarding re-direct examination? In section
7, diba the only purpose of the re-direct examination is only to
allow the witness to explain his answers during the direct
examination. You cannot ask any matters if you are the
proponent. On re-direct examinations, questions on matters not
dealt with during the cross examination may be allowed by the
court at its discretion. So, he may attempt to be strict, but later
on there is this exception that the court, in its discretion, may
allow questions that were not touched upon during the cross.
Because normally, what happens is, the bulk of the questions
happen during direct, then it is trimmed down during cross,
because the topics that you will ask supposed to be gikan man
nah sa direct, and then the same thing happens during re-direct,
only those matters touched upon during cross and then finally,
we have re-cross which should only cover matters covered by the
re-direct. Nagagamay dapat, but there is always this exception,
even in section 8 and also on such matters as may be allowed
by the court in his discretion. That is why there are a lot of
judges facing administrative cases because of the discretion
given on them.
Section 8.Re-cross-examination. xxxand also on such
other matters as may be allowed by the court in its
discretion. (13)
Section 9.Recalling witness. After the examination of a
witness by both sides has been concluded, the witness
cannot be recalled without leave of the court. The court will
grant or withhold leave in its discretion, as the interests of
justice may require. (14)
Gidischarge na nimo, ang testimony is already over, human na,
until re-direct examination and re-cross examination, the witness
has already been excused by the court, you cannot recall the
witness anymore. The only time is when leave of court is given
with the court, for what reason? Very broad, as the interest of
justice may require.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Take note of the case of People vs. Rivera, August 16, 1991.
What is the criteria for the grant of a leave of court to recall a
witness? Read that case to find out.
October 16, 2015 (JRLumanag)
So leading case under Sec. 9 of 132 is the case of:
People vs. Rivera
August 16, 1991
There must be a satisfactory showing of some concrete,
substantial ground for the recall. There must be a
satisfactoryshowing on the movant's part, for instance,
thatparticularly identified material points were notcovered in
the cross-examination, or thatparticularly described vital
documents were notpresented to the witness whose recall is
prayedfor, or that the cross-examination was conductedin so
inept a manner as to result in a virtualabsence thereof.
[Discussion of the facts not clear.]
From the FT: But obviously that discretion may not be
exercised in a vacuum, as it were, entirely, isolated from a
particular set of attendant circumstances. The discretion to
recall a witness is not properly invoked or exercisable by an
applicant's mere general statement that there is a need to
recall a witness "in the interest of justice," or "in order to
afford a party full opportunity to present his case," or that, as
here, "there seems to be many points and questions that
should have been asked" in the earlier interrogation. To regard
expressed generalities such as these as sufficient ground for
recall of witnesses would make the recall of witness no longer
discretionary but ministerial. Something more than the bare
assertion of the need to propound additional questions is
essential before the Court's discretion may rightfully be
exercised to grant or deny recall.
Recalling witness is one of the power that must be exercised
properly especially when thejudge exercises this. There is
nothing in the Rules that prohibit the jduge from ctively
particiapting. He can ask questions. A judges participation ina
trial may be construed as a judge favoring a party, right?
Is it correct for the judge to participate actively?
Remeber that in a case, you mustn convicen the judge. Compare
that to a trial by jury. There you do not convince the Judge but
the jury. Mas lisod na.
When a trial judge may participate in a trial? To elicit the truth,
to obtain clarification, or to test their credibility. However, this
power must be exercised by the court sparingly and judiciously.
Section 6. Power of the court to stop further evidence. The
court may stop the introduction of further testimony upon any
particular point when the evidence upon it is already so full
that more witnesses to the same point cannot be reasonably
expected to be additionally persuasive. But this power should
be exercised with caution.
Now, we have Section 10:
Section 10. Leading and misleading questions. A question
which suggests to the witness the answer which the examining
party desires is a leading question. It is not allowed, except:
xxx
Section 10 tells you that a leading question is a question which
suggeststo the witness the answer which the examining party
desires is a leading question.
[Page 94 of 107]
Ad Majorem Dei Gloriam
By framing a question in such a manner that is answerable by
yes or no. By that, you are already supplying a fact and the
witness merely answers whether it is true or not. Example, were
you there? Yes! That is leading! That is a question which desires
to illicit a specific fact.
WHEN LEADING QUESTIONS ARE ALLOWED
1. Cross-examination
Because the witness that you are cross-examining is
expected to be hostile to you. The witness will not cooperate
to (with) you because he si hostile.
2. Preliminary Matters
This isallowed to hasten the proceedings and tozeroed in
immediately to a particularpoint or time of a witness
testimony. If not allowed, it would take a long time for direct
testimony to commence (?).
3. When there is a difficulty is getting direct and
intelligible answers from a witness who is ignorant,
or a child of tender years, or is of feeble mind, or a
deafmute
Recallthat the court may allow leadingquestions at any stage
in the rule ofexamination of a child witness in thefurther
interest of justice.
If the witness is a deaf-mute, pwede ka mag ask ug leading
questions because it is quite easier to information from a
deaf-mute even in the absnnece of an interpreter.
4. Of an unwilling or hostile witness
Kinsa maning hostile witness? Relate Sec 12 1st par:
Section 12. Except with respect to witnesses referred to
inparagraphs (d) and (e) of Section 10, theparty producing a
witness is not allowed to impeach his credibility.
xxx
GR: You are not allowed to impeach your own witness
XPN : hostile or unwilling witness
So Section 12 talks about that a party may not impeach his
own witness. Y oucannot destroy the cxredibility of your
witness. But of course, anythign goes with the adverse party
or his witnesses. The adverse party will be expected to be
hostile with you. Therefore, you are allowed to ask leading
questions. For what purpose? To impeach his testimony. To
impress upon the mind of the Judge that that witness might
have been lying or inventing his truth. Thats the treason
why you are allowed to ask leading questions to an adverse
party or his witneesses. You cannot get information from
him. He is expected to behostile to you.
Is that the hiotstile witness Sec 12 is talking about? No.
The hostile witneess that is being described here is a witness
who is deaclared by the court to be an unwilling or hostile
witness upon adequate showing of his afverse interest
unjustifiedreluctance to testify, or his having misled the
party into calling him to the witness stand.
Remedy: Ask the court to declare a witness an unwilling or
hostile witness.
The rule that you are not allowed to impeach your own
witness has an exception and that is a hostile or unwilling
witness.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
[Story about his personal experience with Judge Daray]
5. Of a witness who is an adverse party or an officer,
director, or managing agent of a public or private
corporation or of a partnership orassociation which is
an adverse party corporation or of a partnership or
association which is an adverse party.
MISLEADING QUESTION
Section 10. Leading and misleading questions. x x x
A misleading question is one which assumes as true a fact not
yet testified to by the witness, or contrary to that which he
haspreviously stated. It is not allowed.
Example: Counsel says You are related to the accused, correct?
That is a question which assumes as true a fact not yet testified
to by the witness!
Remember that misleading questios are absolutely not allowed
while a leading question may be subject to a mere reformation, a
misleading question may not.
[Story again about a guy with an administrative case]
Section 11. Impeachment of adverse party's witness. A
witness may be impeached by the party against whom he was
called, by contradictory evidence, by evidence that his general
reputation for truth, honestly, or integrity is bad, or by
evidence that he has made at other times statements
inconsistent with his present, testimony, but not by evidence
of particular wrongful acts, except that it may be shown by the
examination of the witness, or the record of the judgment,
that he has been convicted of an offense.
[Story about the impeachment of Estrada]
Impeachment of a witness is the process of challenging or
callinginto question the credibility or intention of anindividual
testifying in court.
3 MODES OF IMPEACHMENT
1. By contradictory evidence
This involves the presentation of evidencewhich is the exact
opposite of what thewitness said. In effect the opponent
isdestroying the credibility of the witnessby essentially telling
the court that hecannot be believed as there isevidence to
the contrary of what he is saying.
So he is saying na wala syay utang,ipakita nako nga naa
syay utang. Ipakitanako ang promissory note, contract
ofloan.
2. By evidence that his general reputation for truth,
honesty or itnegrity is bad (Character Evidence)
By means of character evidence. You are not allowed to
present evidence to specific acts. But general reputation may
be presented. Evidenceof particular wrongful acts is not
allowedexcept that it may be shown by theexamination of
the witness, or the recordof the judgment, that he has
beenconvicted of an offense.
The opponent must show that the witnessgenerally has a
reputation for dishonesty.However evidence of a
particularwrongful act is not allowed. It means thatthe
specific examples of character areintransmissible. In other
words, you arenot allowed to say na tong grade 1
[Page 95 of 107]
Ad Majorem Dei Gloriam
sanangopya siya, tong grade 2 nangopya napod, particular
wrongful act.
3. By evidence that he has made in some other times
statements inconsistent with his present testimony
or prior inconsistency
It meanshere that the witness made 2 or moreconflicting
statements. By exposing hisconflicting statements, you
reduce hiscredibility.
Kung naay affidavit, that is the basis. But during cross-
examination, different!
Are there other modes?
Bias. The opponet will try to prove that the witness is bias
against the other party in favor of the other. And the witness has
a personal interest in the outcome of the case.
For example, wife testifying for her husband. Bias gyud. Labi na
sa mag-asawa becasuse bias was present from the very
beginning of the relationship.
What is the difference between impeachment by contradiction
and impeachment by prior inconsistency?
When you say prior inconsistency statements, he made
statements in court but he previously testified something else.
Contradiction on the other hand during the same testimony, he
changed his line.
Lets go back to Section 12: A party may not impeach his own
witness. Exception is if the witness is an unwilling or hostile or if
the witness is the adverse party.
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.
Q: Youre the P. Can you make the D your witness? Can you call
him to the witness stand to testify as your witness?
Answer: You can! There is nothihng that would stop you. For as
long as he testifies based on personal knowledge and then he
has the capacity of recollection and communication.
Q: Would you call the adverse party as your witness?
So when can a qwitnes be considered as unwilling or hostile?
There must be decalration by the court that he is a hostile
witness, and
There must be a showing that there is adverse
interest,unjustified reluctance to testify, or his having misled
the party into calling him to the witness stand.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Unsa ang effect if you obtain that declaration that the witness is
unwilling or
According to Dean Inigo, there are three effects:
1. Leading questions can now be asked in direct examinations.
2. The hostile witness may beimpeached and cross examined
by theadverse party, however, becausetechnically speaking
that witness is thewitness of the adverse party. The
crossexamination must only be on the subjectmatter of the
examination in chief. Andthat is an application of the
american rule.
3. Cross examination by his own lawyer (adverse partys
lawyer) willbe governed by the rules on directexamination,
which means that even incross examination, a leading
question can be asked.
So baliktad youre the one calling an adverse partyor an
unwilling or hostile witness, your manner ofexamination will
be governed by the Rules on CrossExamination. But upon
cross examination of theadverse party, the rule will be
covered by what youcan do during the direct examination.
[Section 13 not discussed properly]
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.
Laying the foundation or laying the basis- refers to a
situation where an evidence which is otherwise incompetent will
be introduced in evidence because it falls under the exceptions to
that rule on exclusion.
Section 14. Evidence of good character of witness.
Evidence of the good character of a witness is notadmissible
until such character has been impeached.
The rationale is the witness is presumed trustworthy. It also
speeds up proceedings by not spending time bolstering the
witness.
PROCESS OF BOLSTERING. Section 14 applies only when the
character of the witness has been impeached. Bolstering is not
allowed.
REHABILITATION. This is allowed only if there has already
been impeachment.
Atty. Espejo: How do you rehabilitate?
By character evidence. If your witness has been impeahced by
evidence that is general reputation for truth, honesty or itnegrity
is bad then you present character evidence that is contrary to
what they have. Show that he has a good reputation.
You can rehabilitate according to the manner that the wintess
has been impeached.
Section 15. Exclusion and separation of witnesses. Onany
trial or hearing, the judge may exclude from the court any
witness not at the time under examination, so that he may not
[Page 96 of 107]
Ad Majorem Dei Gloriam
hear the testimony of other witnesses. The judge may also
cause witnesses to be kept separate and to be prevented from
conversing with one another until all shall have been
examined.
To my mind, Section 15 is useless!
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.
Section 17.When part of transaction, writing or record given
in evidence, the remainder, the remainder admissible. When
part of an act, declaration, conversation, writing or record is
given in evidence by one party, the whole of the same subject
may be inquired into by the other, and when a detached act,
declaration, conversation, writing or record is given in
evidence, any other act, declaration, conversation, writing or
record necessary to its understanding may also be given in
evidence.
Section 18. Right to respect writing shown to witness.
Whenever a writing is shown to a witness, it may be inspected
by the adverse party.
Authentication and Proof of Documents
How do you prove authentication in documents?
BASIC REQUISITES FOR THE ADMISSIBILITY OF
DOCUMENTARY EVIDENCE
1. The evidence must be relevant;
2. The evidence must be authenticated by a competentwitness;
and
3. The document must be formally offered in evidence.
AUTHENTICATION. Authentication, in the law of evidence, is
the process by which documentary evidence and other physical
evidence is proven to be genuine, and not a forgery.
For documents in general and from a practical standpoint,
authentication can be shown in one of two ways.
First, a witness can testify as to the chain of custody through
which the evidence passed from the time of the discovery up
until the trial.So, kinsa nipirma? Asa gipirmahan? Kanus-a
gipirmahan? And why do you have a copy of that? Are you party?
Have you seen the document executed?
Second, the evidence can be authenticated by the opinion of an
expert witness examining the evidence to determine if it has all
of the properties that it would be expected to have if it were
authentic.
Section 19. Classes of Documents. For the purpose of their
presentation evidence, documents are either public or private.
xxx
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
So duha ra ka klase ang documents: public documents and
private documents. But take note that the classification of
documents in Sectio 19 is only for the purpose of authentication
of evidence. Naa pa diay laing purpose na mag classify kag
documents? Naa! In RPC, it classififes documentss into public,
commercial, private. And what is the purpose there? Is it for
thepurpose of authentication? No. To determine what crime was
committed by the accused.
PUBLIC DOCUMENTS
Section 19. x x x Public documents are:
(a) The written official acts, or records of the official acts
of the sovereign authority, official bodies and
tribunals, and public officers, whether of the
Philippines, or of a foreign country;
(b) Documents acknowledge before a notary public except
last wills and testaments; and
(c) Public records, kept in the Philippines, of private
documents required by law to the entered therein.
All other writings are private.
How do you prove them? Sections 23 and 24.
Section 23. Public documents as evidence. Documents
consisting of entries in public records made in the performance
of a duty by a public officer are prima facie evidence of the
facts therein stated. All other public documents are evidence,
even against a third person, of the fact which gave rise to their
execution and of the date of the latter.
So if they are already prima fcie evidence of the facts therein
stated, whats the burden now of proving that mao jud ng
nakasulat sa official document? Its on the opponent! And
therefore with respect to the propononent, he no longer has the
duty.
Does this mean that the officer who executed this should b
presented in vcourt? No.! Becasuse it is not even covered by the
hearsay rule. IF you recall, section 44, Rule 130
Section 44. Entries in official records. - Entries in official
records made in the performance of his duty by a public officer
of the Philippines, or by a person in the performance of a duty
specially enjoined by law, are prima facie evidence of the facts
therein stated.
This is an exception to the hearsay rule.
Official Records
Section 24. Proof of official record. The record of public
documents referred to in paragraph (a) of Section 19, when
admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having
the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a
certificate that such officer has the custody. If the office in
which the record is kept is in foreign country, the certificate
may be made by a secretary of the embassy or legation,
consul general, consul, vice consul, or consular agent or by
any officer in the foreign service of the Philippines stationed in
the foreign country in which the record is kept, and
authenticated by the seal of his office.
By way of summary, the official record may be evidenced by:
1. An official publication thereof;
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2. A copy attested by the officer having the legal custody ofthe
record, or by his deputy, and accompanied, if the recordis
not kept in the Philippines, with a certificate that suchofficer
has the custody.
Notarial Documents
Section 30.Proof of notarial documents. Every instrument
duly acknowledged or proved and certified as provided by law,
may be presented in evidence without further proof, the
certificate of acknowledgment being prima facie evidence of
the execution of the instrument or document involved.
[Kinsa ba daw gusto mag notaryo? Si Atty. Batacan ultra rich na
daw] [discussion insufficient, supplied]
Notarization of a private document converts such documentinto a
public one and renders it admissible in court without further
proof of its authenticity; courts, administrative agencies and the
public at large must be able to rely upon the acknowledgement
executed by a notary public and appended to a private
document.
There is a presumption of regularity of notarial documents,
However, there is an exception with respect to last will and
testaments.
October 21, 2014 (DJGolo)
So last meeting we talked about authentication and proof of
documents.
Official Acts and Public Records
Take note of Sections 23 and 24 [check text above].
So if you want to contest the contents, you have to defeat the
prima facie presumption. The entries in public records are prima
facie evidence of all the facts therein stated.
[Sec. 24] Its a long provision but what you have to remember
under section 24 is that, the official record may be evidenced by:
1. An official publication thereof; and
2. A copy attested by the officer having the legal custody
of the record, or by his deputy, and accompanied, if the
record is not kept in the Philippines, with a certificate
that such officer has the custody.
Take note that if the record is in a foreign country then it must
be certified by whom? the secretary of the embassy or legation,
consul general, consul, vice consul, or consular agent or by any
officer in the Foreign Service of the Philippines stationed in the
foreign country. If it is kept in the Philippines, must be certified
by the officer having custody.
How about notarial documents? How do you prove them?
SEC 30. Proof of notarial documents. - every instrument
duly acknowledged or proved and certified as provided by
law, may be presentedin evidence without further proof, the
certificate of acknowledgment being prima facie evidence of
the execution of the instrument or document involved.
Angeles versus Ibanez
January 15, 2009
The SC held that notarization of private documents
transforms that documents into a public one and renders it
admissible in court without proof of its authenticity and
therefore courts must be able to rely upon the
acknowledgement executed by the notary public and
appended by a private document. The notarial officer must
exercise utmost care to comply with the elementary
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
formalities in its performance.
There is this presumption of regularity in notarial documents.
Notarized document carries the evidentiary weight conferred on
it with respect to its due execution and documents acknowledged
before the notary public have in their favor the presumption of
regularity. However, this presumption is not absolute and may be
rebutted by clear and convincing evidence to the contrary. Its a
disputable presumption.
What about public records of private documents? What
are the examples of these? Forms accomplished by private
citizens and required by law to be submitted to a government
office. Example: tax returns, birth certificates.
How do you prove these? For that we go to section 27.
SEC 27. Public record of a private document. An authorized
public record of a private document may be proved by the
original record, or by a copy thereof, attested by the legal
custodian of the record, with an appropriate certificate that
such officer has the custody.
You do not give your original birth certificate. You only give a
copy with the attestation of the legal custodian of the record.
PRIVATE DOCUMENTS
SEC. 20. Proof of private document. Before any private
document offered as authentic is received in evidence, its
due execution and authenticity must be proved either:
(a) By anyone who saw the document executed or
written; or
(b) By evidence of the genuineness of the signature or
handwriting of the maker.
Any other private document need only be identified as that
which it is claimed to be. (21a)
So, section 20 underscores the difference between public
document and private document. Based on section 20, a private
document requires certification hence requires to a certain extent
an authentication while a public document normally is self-
authenticating. So section 20 provides for the means to
authenticate and prove the genuineness and due execution of a
private document.
Remember that private documents need to be authenticated,
when is this authentication may be dispensed with?
1. Actionable documents. When the cause of action is
grounded upon an actionable document, it has to be
denied under oath. Otherwise, It is deemed admitted,
therefore there is no need to authenticate if it is not
denied under oath. Because it has the effect of
admission.
2. When the authenticity and due execution of
documents are otherwise admitted. It happens
during pre-trial, for example, there is a document where
you stipulate that this is authentic. Then no problem
anymore. You dont even have to prove it. It is already
part of the records of the case.
3. Where the private document is an ancient
document under section 21.
SEC 21. When evidence of authenticity of private
document not necessary. Where a private document
is more than thirty years old, is produced from the
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custody in which it would naturally be found if genuine,
and is unblemished by any alterations or circumstances
of suspicion, no other evidence of its authenticity need
be given.
So, the first one we have no problem because that is a
public document, and it is self-authenticating. What
about the other one? What is the rationale why there is
no need to authenticate? Because of necessity and
trustworthiness. Necessity, because the authors of the
document could no longer be found and therefore who
would authenticate it? Trustworthiness, because is it
sound in the custody which it could be naturally found if
genuine and unblemished by any alterations which
arouse suspicion.
Requisites to be considered ancient document:
1. The private document is more than thirty years
old;
2. It is produced from the custody in which it would
naturally be found if genuine; and
3. It is unblemished by any alterations or
circumstances of suspicion.
Read the case of Sequena vs Bolante, April 06, 200*. This is
significant because it compares the ancient document rule to the
dead man statute.
As a sidebar, newspapers in the US are considered self-
authenticating. Here in the Philippines we look at these papers
with double hearsay. Whats the reason? It is because
newspapers are widely circulated and it is publicly used.
Here in Philippines, for example, you want to change your
gender in your birth certificate, so you file a petition and there is
the requirement of publication. You have to produce a lot of
documents. Thats how meticulous our law is.
SEC. 22. How genuineness of handwriting proved. The
handwriting of a person may be proved by any witness who
believes it to be the handwriting of such person because he
has seen the person write, or has seen writing purporting to
be his upon which the witness has acted or been charged,
and has thus acquired knowledge of the handwriting of such
person. Evidence respecting the handwriting may also be
given by a comparison, made by the witness or the court,
with writings admitted or treated as genuine by the party
against whom the evidence is offered, or proved to be
genuine to the satisfaction of the judge.
Section22 is very very useful, mostly for personal protection. You
saw the person write, so you are in position to testify as to the
genuineness of the handwriting. Or you have a writing purporting
to be that persons, or you can do it by expert testimony.
Hence you can prove the genuineness of a handwriting through
three modes:
1. By ordinary witnesses;
2. By expert witnesses; or
3. By way of opinion of ordinary witnesses.
Remember, the GR is opinion is inadmissible as evidence but the
opinion of a witness for which proper basis is given, may be
received in evidence regarding a handwriting with which he has
sufficient familiarity. So in your opinion, that is the handwriting of
the accused.
SEC. 25.What attestation of copy must state. Whenever a
copy of a document or record is attested for the purpose of
evidence, the attestation must state, in substance, that the
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
copy is a correct copy of the original, or a specific part
thereof, as the case may be. The attestation must be under
the official seal of the attesting officer, if there be any, or if
he be the clerk of a court having a seal, under the seal of
such court.
You can encounter this a lot in practice. When you petition
before the CA, you need to submit certified true copies of such
orders, decisions that you want to contest. So to be safe, you
acquire certified true copies of all the records.
What is attestation? It is the act of authenticating a document by
observing its execution at the request of the party signing it.
SEC. 26. Irremovability of public record. Any public record,
an official copy of which is admissible in evidence, must not
be removed from the office in which it is kept, except upon
order of a court where the inspection of the record is
essential to the just determination of a pending case.
We already discussed this when we discussed hearsay rule under
Rule 130. Whenever a certificate of title is issued, duha gyud na.
One is the ODCT (Owners duplicate Certificate of Title) and the
one kept by the register of deeds. This one person holds the one
that is supposed to be kept with the register of deeds. So all I
was able to do was ask the ROD nganu nakagawas mani?
SEC 28.Proof of lack of record. A written statement
signed by an officer having the custody of an official record
or by his deputy that after diligent search no record or entry
of a specified tenor is found to exist in the records of his
office, accompanied by a certificate as above provided, is
admissible as evidence that the records of his office contain
no such record or entry.
What does it prove? Because there is a big difference proof of
lack of record and proof that a transaction never occurred. For
example, in a Certificate of No Marriage, if it stated that no
marriage between certain persons is found in the record does not
mean that no such marriage exists.
SEC. 29. How judicial record impeached. Any judicial
record may be impeached by evidence of:
(a) want of jurisdiction in the court or judicial officer;
(b) collusion between the parties; or
(c) fraud in the party offering the record, in respect to
the proceedings.
This section is talking about judicial records and judgment of a
domestic court offered in evidence in another case. For example,
you contracted marriage abroad and subsequently divorced, you
need to present and prove the decree of divorce here in the
Philippines.
For foreign judgments we have Section 48 Rule 39.
SEC. 48. Effect of foreign judgments or final orders. The
effect of a judgment or final order of a tribunal of a foreign
country, having jurisdiction to render the judgment or final
order is as follows:
(a) In case of a judgment or final order upon a specific
thing, the judgment or final order, is conclusive
upon the title to the thing, and
(b) In case of a judgment or final order against a
person, the judgment or final order is presumptive
evidence of a right as between the parties and their
successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled
by evidence of a want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact.
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Lets go to section 31.
SEC. 31.Alteration in document, how to explain. The party
producing a document as genuine which has been altered
and appears to have been altered after its execution, in a
part material to the question in dispute, must account for the
alteration. He may show that the alteration was made by
another, without his concurrence, or was made with the
consent of the parties affected by it, or was otherwise
properly or innocent made, or that the alteration did not
change the meaning or language of the instrument. If he
fails to do that, the document shall not be admissible in
evidence.
Look at that consequence. If there is no explanation for the fact
the document is altered, just to be safe it will not be admitted in
evidence.
SEC. 32.Seal. There shall be no difference between
sealed and unsealed private documents insofar as their
admissibility as evidence is concerned. Just remember the
rule. No difference whether sealed or unsealed.
SEC. 33. Documentary evidence in an unofficial language.
Documents written in an unofficial language shall not be
admitted as evidence, unless accompanied with a translation
into English or Filipino. To avoid interruption of proceedings,
parties or their attorneys are directed to have such
translation prepared before trial.
There is a civil requirement under the judicial affidavit rule, it
should be English or Filipino, or it must be accompanied with a
translation into either.
OFFER
SEC. 34. Offer of evidence.The court shall consider no
evidence which has not been formally offered. The purpose
for which the evidence is offered must be specified.
Offer, in Civil Law, is a proposal which, if accepted by the other
party, would constitute a contract (?). How do you make an offer
in evidence? Prior to the judicial affidavit rule, before your
witness will testify, counsel must make a statement as to what
he expects to prove from the testimony of the witness. No
evidence, even self-authenticating documents that would prove
themselves. All evidence must be sponsored.
Why is there a need to offer?
People vs. Villanueva
September 1, 2010, G.R. No. 181829
A formal offer is necessary because judges are mandated to
rest their findings of facts and their judgment only and
strictly upon the evidence offered by the parties at the trial.
Its function is to:
1. Enable the trial judge to know the purpose or
purposes for which the proponent is presenting the
evidence;
2. On the other hand, this allows opposing parties to
examine the evidence and object to its admissibility;
and
3. It facilitates review as the appellate court will not be
required to review documents not previously
scrutinized by the trial court.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
Now, what will the court do? The court is supposed to examine
the offer. If the testimony is offered for inadmissible purposes,
then the court shall disallow.
Lets say 10 witnesses have already testified that A shot B, the
court will make sure that there is no further waste of time. THAT
WAS BEFORE THE JUDICIAL AFFIDAVIT RULE.
In JAR, is there a requirement for offer of evidence? Yes but now
for convenience, judges would require you to state the purpose
of the offer of the testimony w/in the JA.
For an adverse party, upon hearing the offer, he has the
opportunity to object.
The offer also serves the purpose of limiting the testimony. You
are not supposed to reveal information or produce testimony that
is not covered in the offer.
Effect if there is no offer: the evidence will be excluded from the
records of the case.
Example: The witness already testified what counsel did not
make a formal offer, should you or should you not cross-
examine? No. You should not cross-examine. You should move
for the exclusion to expunge from the records the testimonial
evidence on the ground of lack of offer. If you cross-examine, its
as if its okay for you that theres nooffer.
What is the remedy of the opponent? To move for the striking
out of evidence in the record and the court may exclude the
same motu proprio.
There are exceptions: even if there is no offer the court still
allows the introduction of evidence:
1. Substantial Compliance
Tiomico vs. CA, March 4 1999
There was no mention of the word offer so that the
other party objected. The SC said that was mere
inadvertence. You dont have to specifically say that you
offer this evidence, its enough that there is
accomplishment of the purpose of the offer. Since the
purpose of subject testimony was succinctly stated, the
reason behind the requirement for its formal offer has
been substantially complied with.
2. Judicial Admissions
Lets go to Section 35.
SEC. 35. When to make offer.As regards the testimony of
a witness, the offer must be made at the time the witness is
called to testify.
Documentary and object evidence shall be offered after the
presentation of a party's testimonial evidence. Such offer
shall be done orally unless allowed by the court to be done in
writing.
Memorize this. Before you ask your first question to a witness,
you should have first offered his testimony. For other evidence, it
shall be offered after the presentation of a party's testimonial
evidence, orally unless allowed by the court to be done in
writing.
Right now under the JAR, immediately after the testimony dapat
you have to make your offer. Wala gihpaon, mangayo gihapon
ug 15-days, etc. when in fact, the GR is orally
There is this case of Pasad v Parocha. The document was
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pre-marked. It was identified during trial but not formally
offered. It is not given any admissibility by the court for lack
of formal offer.
SC said the mere fact that a particular document has been
identified and marked as an exhibit does not mean that it
has already been offered as part of evidence. It must be
emphasized that any evidence that a party wish to connect
for the consideration of the court must be formally be offered
otherwise it is excluded and rejected. (General Rule)
Further cases on Exception aside from the earlier Tiomiko case
on Substantial compliance:
1) People v Mate, March 27, 1981. The matters that were no
formally offered here were extrajudicial
statements/admissions made by the accused. The
prosecutor failed to formally offer the exhibits. Should they
be admitted?
The SC said it was a mere oversight. Even without the
exhibits which have been incorporated into the records of
the case, the prosecution can still establish the case because
the witnesses properly identified those exhibits and their
testimonies are recorded.
2) Mato vs CA, November 23, 1995. The SC enunciated the
requisites for admission, that is:
a. Evidence must have been identified by testimony duly
recorded; and
b. It must have been incorporated in the records of the
case.
Example of those incorporated in the records: mini-
hearings, like hearing on your motion to dismiss (these
do not need to be formally offered), bail hearing (those
that are presented in evidence therein do not need to
be formally offered in the main case)
3) Example of case on incorporation is the case of Bravo vs.
Borja, February 25, 1985. The certificate of live birth of the
petitioner was already made part of the record of the case
when they were hearing a motion. So the SC said there is no
need for formal offer.
Exception to the Exception: Fule Doctrine. Take note that if
it is a criminal case, even if it has been pre-marked and
identified, evidence will still be excluded where the pre-trial order
is not signed. No agreement made or entered into during the
pre-trial conference shall be used in evidence against the
accused unless reduced to writing and signed by his counsel.
So, lets summarize:
Three (3) Exceptions to Rule on Formal Offer:
1. Waiver by failing to object or by cross-examining the
witness;
2. Substantial compliance (Tiomico Case);
3. Identified and incorporated (Mate and Mato Cases)
OBJECTIONS
SEC. 36.Objection. Objection to evidence offered orally
must be made immediately after the offer is made.
Objection to a question propounded in the course of the oral
examination of a witness shall be made as soon as the
grounds therefor shall become reasonably apparent.
An offer of evidence in writing shall be objected to within
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
three (3) days after notice of the offer unless a different
period is allowed by the court.
In any case, the grounds for the objections must be
specified.
Objection is a formal protest (as to the type of evidence to be
presented, as to the admissibility) raised in court during a trial to
disallow a witnesss testimony or other evidence which would be
in violation of the rules of evidence or other procedural law.
DIFFERENT KINDS OF OBJECTIONS
As to the GROUND:
1. General or broadside your ground is simply based
on either immaterial, incompetent or irrelevant. Youre
not going to state why and you dont have to. It would
be up to the court whether its immaterial, incompetent
or irrelevant.
2. Specific states the ground upon which the objection
is claimed. Ex. Statute of frauds
As to the TYPE:
1. Objections as to formrefers to the manner by which
the questions are being asked; Example Objection Your
Honor, counsel is leading the witness, or those
argumentative questions. Since this objection is as to
form, these can be asked again, if rephrased.
2. Objections as to substance - objections made and
directed against the very nature of the evidence, i.e. it
is inadmissible either because it is irrelevant or
incompetent or both. This CANNOT be rephrased and
CANNOT be asked again. Ex. Hearsay and misleading
question.
Objection may either be sustained or overruled.
Can you make objections outside of trial? It can! It is necessary
to be before a judge, it can also be before a:
1. deposition officer. But those are preserved for the trial;
2. trial by commissioner, you can object but he cannot rule
upon the objection. The commissioner will have to refer
the same to the judge;
3. clerk of court, in cases where there is ex parte
presentation of evidence or delegated reception of
evidence.
In the Philippines, the person to whom you raise your objection
is the very person who will consider the evidence which is saying
that once the judge overrules your objection, mura na pud ka ug
napildi. Kay siya man gihapon ang mudecide sa case [unlike in
the US where there is a jury which decides upon the case,
separate from the judge who decides upon the objections.]
Purpose of objection
1. Protest upon the admissibility of evidence presented;
2. Preserve error for review in the event the objection is
overruled- Example, inadmissible evidence was admitted
by the lower court, so you have to object so that later
on when you appeal you can point out specifically that
you have objected against such admission so that there
will be no waiver by failure to object. Had the court
sustained my objection, we would have won the case,
thats what you are going to argue.
3. Protect witness it is the right of the witness to be
protected from insulting mediator, the adverse counsel
for example; and to protect from himself because he
may incriminate himself.
SEC. 37.When repetition of objection unnecessary. When
it becomes reasonably apparent in the course of the
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examination of a witness that the questions being
propounded are of the same class as those to which
objection has been made, whether such objection was
sustained or overruled, it shall not be necessary to repeat the
objection, it being sufficient for the adverse party to record
his continuing objection to such class of questions.
So, you keep on objecting. In the series of questions, if pabalik-
balik and pangutana, pabalik-balik pud and imuha objection.
What you can do then, will be to register your continuing
objection
SEC. 38. Ruling. The ruling of the court must be given
immediately after the objection is made, unless the court
desires to take a reasonable time to inform itself on the
question presented; but the ruling shall always be made
during the trial and at such time as will give the party against
whom it is made an opportunity to meet the situation
presented by the ruling.
The reason for sustaining or overruling an objection need not
be stated. However, if the objection is based on two or more
grounds, a ruling sustaining the objection on one or some of
them must specify the ground or grounds relied upon.
When does the court rule on an objection made in the course of
the trial or hearing? It should be immediately! The rule is that
the court must immediately rule on the objection during trial and
at such time as will give the party an opportunity to meet the
situation in case it is overruled.
If overruled, then the counsel will proceed. If sustained, the
counsel shall stop or rephrase his question. But if the court
desires to take reasonable time, then the ruling of the question
may be deferred.
The reason for sustaining or overruling an objection, based on
one ground, need not be stated. Why? Because if your objection
if immaterial, the judge ruled upon the same because it is in
fact immaterial. Meaning, sabotable.
But if the objection is based on two or more grounds, the judge
must specify the ground for sustaining the objection. This time it
will be relevant. This is necessary in case the case is appealed.
To provide on record the basis for error found which will be
raised on appeal.
No need of ground for overruling because if the objection is
overruled, and the grounds are many, it means there is no need
to preserve anything for purposes of appeal.
SEC. 39. Striking out answer. Should a witness answer the
question before the adverse party had the opportunity to
voice fully its objection to the same, and such objection is
found to be meritorious, the court shall sustain the objection
and order the answer given to be stricken off the record.
On proper motion, the court may also order the striking out
of answers which are incompetent, irrelevant, or otherwise
improper. (n)
Witness nga dili kahulat. Wala pa gani nahuman ang question,
nitubag na. When there is no time to raise the objection, the
remedy is to have that answer stricken off.So the judge must
moderate. So, witness you wait until the question is asked.
Because there must be given an opportunity to object.
Otherwise, you can ask that the answer be ordered stricken off
the records, but only if the objection is sustained.
So what happens now under the JAR? The objection will be
written submitted to the judge.
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
What if it is a general objection? As in the witness could really
not testify based on the nature of the objection? The entire
judicial affidavit shall be stricken off the record. The answer is
under Section 40.
SEC. 40. Tender of excluded evidence. If documents or
things offered in evidence are excluded by the court, the
offeror may have the same attached to or made part of the
record. If the evidence excluded is oral, the offeror may state
for the record the name and other personal circumstances of
the witness and the substance of the proposed testimony.
This is what Dean Inigo calls, PROFFER EVIDENCE. You want
to present particular evidence which the judge did not allow you
to present. What you need to do, if you really think it is
important, is to proffer evidence. This in order to preserve the
issue and for purposes of appeal.
How do you make the tender? By making the tender of the
testimony of his witness, his name, his personal circumstances,
and had the honorable court allowed the testimony, this witness
would have testified so and so. Now, can you make proffer of
particular questions? (kintahay wala natubag sa court) Yes, you
can make use of tender.
How do you distinguish offer of evidence from proffer of
evidence? There is no commonality between them. so whats the
point of distinction?Siguro, that both are telling the court what
the testimony is about, its substance or what its supposed to be.
To my mind, there is no point to make a distinction. So why ask?
Ocotber 8, 2015 (AJUy)
RULE 133
WEIGHT AND SUFFICIENCY OF EVIDENCE
Rule 131, 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.
That is burden of proof for you. The question to ask perhaps
would be how much evidence would you present? Unsa man
kadaghan na ebidensiya ang imoha ipresintar sa huwes para
mudaog ka sa imohang kaso? To be entitled with your claim or to
be believed with yourdefense that what is answered by Rule 133.
Because again it is about weight and sufficiency of evidence.
What is weight? Remember when we were discussing evidence in
general regarding the nature of evidence, that evidence is not
supposed to counted. It is not numbered but rather it is weighed.
Unsa kabug-aton sa imo ebidensya? Because if evidence is
believed it means that is given weight by the court and being
given weight by the court means that the evidence that we
presented would be taken to consideration when the court
actually decides the case already. That is incumbent upon every
private [facts] to consider the evidence being presented.
So unsakabug.at? Thats weight. Whatever side the imaginary
scales of justice tilts, that case wins. So that is weight for you.
Now to determine whether or not certain evidence should be
given weight depends on judicial evaluation. That is why judges
as a general rule must be able to see the witnesses, their
demeanor, their sincerity and the evidence to determine what
weight of a particular testimony. What about sufficiency?
Sufficiency refers to such adequacy of evidence in character such
evidence in character weight more amount as to legally justify
judicial action demanded or prayed for the contending parties.
Now when you look at the terms weight or sufficiency, it seems
to state a certain numerical o quantitative quality. Perodiba
evidence is supposed to be weighed, not measured by number.
There is a bit of a misnomer there; murag numerical iyang dating
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but you should look at the weight of sufficiency of evidence in
terms of quality rather than quantity.
Sufficiency therefore refers to the question whether the evidence
meets the required quantum. How do you discharge your burden
of proof and thereby entitling you to win the case and do so by
presenting the required quantum? Sufficiency of evidence refers
to the adequacy of evidence. Such evidence in character, weight,
or amount, as will legally justify the judicial action demanded or
prayed by the parties. Im sure you have hear the different
quantum of proof required. In criminal cases, we know that proof
beyond reasonable doubt, while for administrative you have
substantial evidence and of course for civil cases, preponderance
of evidence. My question is unsaangpinakabug-
at,unsaangpinaka-gaan?
Manalo versus Roldan
November 19 1992)
The Supreme Court said that the hierarchy of evidentiary
values, we find proof beyond reasonable doubt at the highest
level, followed by clear and convincing evidence,
preponderance of evidence, and substantial evidence, in that
order. So that is the qualification. Although clear and
convincing evidence is not found in Rule133 but I am sure
that we already discussed this in other subjects perhaps,
where clear and convincing evidence as a quantum of proof
was discussed.
Other classifications of evidence can be conclusive. So when the
evidence is already conclusive, it is no longer susceptible of
rebuttal. It can no longer be controverted to by competent proof.
It can be considered as prima facie evidence. In the absence of
proof to the contrary, that conclusion as derived, should stand.
Third, you have probable cause which is also a evidential
standard where that is the one required for filing an information
in the court or for the issuance of a warrant of arrest or search
warrant or perhaps to conduct a search without a warrant.
Lets now to the specific quantums of evidence in Rule 133.
Section 1. Preponderance of evidence, how determined.
In civil cases, the party having burden of proof must establish his
case by a preponderance of evidence. In determining where the
preponderance or superior weight of evidence on the issues
involved lies, the court may consider all the facts and
circumstances of the case, the witnesses' manner of testifying,
their intelligence, their means and opportunity of knowing the
facts to which there are testifying, the nature of the facts to
which they testify, the probability or improbability of their
testimony, their interest or want of interest, and also their
personal credibility so far as the same may legitimately appear
upon the trial. The court may also consider the number of
witnesses, though the preponderance is not necessarily with the
greater number.
What do you mean by the word preponderance? Do you know
where the word comes from? Do you ever ponder? Of course
you ponder. To ponder means to think upon, reflect, appraise or
evaluate. That is where the word preponderance comes from. I
normally ask students to memorize Section 1 since it comes out
in the bar examination.
To give us a more layman's definition for preponderance:
BJDC Construction versus Lanuzo
March 24 2014
The Supreme Court said by preponderance of evidence is
meant that the evidence as a whole adduced by one side is
superior to that of the other. It refers to the weight, credit
and value of the aggregate evidence on either side and is
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
usually considered to be synonymous with the term greater
weight of evidence or greater weight of the credible
evidence. It is evidence which is more convincing to the court
as worthy of belief than that which is offered in opposition
thereto.
That is preponderance evidence. Although, this still is not a
laymans definition. It is more of a jural definition.
Preponderance of evidence is the quantum proof to win a civil
case. Remember na dili ni siya padaghanay. It is not the quantity
that determines the decision of the court but rather the quality of
evidence presented in the case. This a common misconception.
Section 2 .Proof beyond reasonable doubt. In a criminal
case, the accused is entitled to an acquittal, unless his guilt is
shown beyond reasonable doubt. Proof beyond reasonable doubt
does not mean such a degree of proof, excluding possibility of
error, produces absolute certainly. Moral certainly only is
required, or that degree of proof which produces conviction in an
unprejudiced mind.
Id like to refer you to this old old case of United States
versus Reyes (December 3, 1903), reasonable doubt already
has a lot of definitions.
From the FT of the case: A reasonable doubt in criminal cases
must be resolved in favor of the accused. A reasonable doubt
has been variously defined. It is most difficult to define. It has
been said that a reasonable doubt was the doubt of a
reasonable man under all the circumstances of the case. This
statement is too general and includes too much. Neither does
the rule that the judge (or jury) must be convinced beyond a
reasonable doubt mean that he must be convinced to an
absolute certainly. This construction would preclude a
conviction based upon circumstantial evidence. Proof "beyond
a reasonable doubt" does not mean, upon the other hand,
proof beyond all "possible or imaginary" doubt. It means
simply such proof, to the satisfaction of the court, keeping in
mind the presumption of innocence, as precludes every
reasonable hypothesis except that which it is given to support.
It is not sufficient for the proof to establish a probability, even
though strong, that the fact charged is more likely to be true
than the contrary. It must establish the truth of the fact to a
reasonable and moral certainly a certainty that convinces
and satisfies the reason and conscience of those who are to
act upon it.
Very poetic definition. Here, the Supreme Court by telling
what reasonable doubt is not, by process of elimination, it
tells us what it is.
If there reasonable doubt in a case, what is the effect?
Theoretically and properly, the accused should be entitled to an
acquittal.
Jose Amanquiton vs. People of the Philippines
August 14, 2009
The Supreme Court said that the proof of beyond reasonable
doubt lies behind the back that in a criminal prosecution the
state is arraigned against the accused. So ato pa
angtibuokmakinaryasa State, go against the accused.The
accused must equipped the accused with specific procedural
rules that would govern his/her disadvantage. There a
constitutional undermining which a person cannot be deprived
with right of liberty, poverty and due process of law. Also
constitutionally the accused is entitled to be acquitted unless
is guilty proven with reasonable doubt.
There are instances where the court can still convict despite
reasonable doubt. Do you know Hubert Webb? Unsa gani na nga
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Ad Majorem Dei Gloriam
kaso? Vizconde Massacre. What was the his defense? What was
his alibi? It was a great alibi. He had his passport. He was in the
United States and not in the Philippines. Clearly showing that he
was not here at that time. Dont you think that there is
presumption of regularity, in how the immigration officers would
stamp each passports. Thats the reasonable doubt. And yet, the
judge chose not to believe it. The judge still decided against him.
Unsay ginadudahan karon sa huwes? Ang passport entry. If you
cannot that it is manufactured your duties to acquit rather.
Karon, lahi na ang Pilipinas, So baliktad na karon, diba
accusations is not synonymous to conviction. If one is accused of
something, especially for a mere irregularity, you have the
burden of proving beyond reasonable doubt. Remember also that
it would be better to set 10 men free who might be probably
committed the crime charged than to convict 1 innocent man for
a crime he did not commit. By reasonable doubt does not mean
that which a possibility may arise but it is that doubt engendered
by an investigation of the whole proof and inability after special
investigation to let the mind rest easy upon certainty of guilt. An
acquittal based on reasonable doubt will prosper even though the
defendants innocence may be doubted when criminal conviction
rests on the strength of the evidence presented by the
prosecution and not on the weakness of the evidence of the
defense. Suffice it to say, it will resolved in favour of the
accused. People v. Dela Cruz (June 8, 2013). For the basis:
due process and the constitutional presumption. An explanation
for that we will find in the case of Macayan v. People (March
18 2015).
Would the requirement of reasonable doubt and of proof beyond
reasonable doubt in criminal cases apply to cases or
circumstances that would qualify the crime or increase criminal
responsibility? Of course, the elements of the offense itself must
be proven beyond reasonable doubt. Otherwise the accused
should be acquitted. Incidental or qualifying circumstances of the
crime should it be proven beyond reasonable doubt.
Say for example there is an imputation that A acted in concert
with B and C. Should conspiracy be proven beyond reasonable
doubt as well? Or can conspiracy be proven by clear and
convincing evidence? Conspiracy could make you criminally
liable, so is it proof beyond reasonable doubt? Is it clear and
convincing proof? Is it substantial evidence or is it preponderance
of evidence?
Benito v. People
February 11, 2015
So long as the evidence presented show a "common design or
purpose" to commit the crime, all of the accused shall be held
equally liable as co-principals even if one or more of them did
not participate in all the details of the execution of the crime.
For this reason, the fact of conspiracy "must be proven on the
same quantum of evidence as the felony subject of the
agreement of the parties.
That is proof beyond reasonable doubt. To my mind, medyo
weird sya. Conspiracy is very difficult to prove. With the
exception of interlocking confessions, the conspiracy must be
proven other than the act or declaration consisting of a crime. So
that is very difficult to prove. Benito versus People has the effect
of making conspiracy all the more hard to prove.
So lets leave the proof beyond reasonable doubt and proceed
with section 5, on substantial evidence.
Section 5. Substantial evidence. In cases filed before
administrative or quasi-judicial bodies, a fact may be deemed
established if it is supported by substantial evidence, or that
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
amount of relevant evidence which a reasonable mind might
accept as adequate to justify a conclusion.
Ang Tibay v. Court of Industrial Relations
February 27, 1940
The Supreme Court laid down what we now know to be the
seven cardinal primary requirements of administrative due
process. The Supreme Court said:
From the FT of the case:
1) The first of these rights is the right to a hearing, which
includes the right of the party interested or affected to present
his own case and submit evidence in support thereof.
(2) Not only must the party be given an opportunity to present
his case and to adduce evidence tending to establish the rights
which he asserts but the tribunal must consider the evidence
presented.
(3) "While the duty to deliberate does not impose the obligation
to decide right, it does imply a necessity which cannot be
disregarded, namely, that of having something to support it is a
nullity, a place when directly attached."
(4) Not only must there be some evidence to support a finding or
conclusion but the evidence must be "substantial."
(5) The decision must be rendered on the evidence presented at
the hearing, or at least contained in the record and disclosed to
the parties affected.
(6) The Court of Industrial Relations or any of its judges,
therefore, must act on its or his own independent consideration
of the law and facts of the controversy, and not simply accept
the views of a subordinate in arriving at a decision. It may be
that the volume of work is such that it is literally Relations
personally to decide all controversies coming before them. In the
United States the difficulty is solved with the enactment of
statutory authority authorizing examiners or other subordinates
to render final decision, with the right to appeal to board or
commission, but in our case there is no such statutory authority.
(7) The Court of Industrial Relations should, in all controversial
questions, render its decision in such a manner that the parties
to the proceeding can know the various issues involved, and the
reasons for the decision rendered. The performance of this duty
is inseparable from the authority conferred upon it.
Office of the Ombudsman in administrative disciplinary cases also
follows substantial evidence. All other administrative agencies
would follow substantial evidence. Thats there quantum. Thats
why in my experience in administrative cases are easiest to
execute or easiest to defend. How do you determine whether
you presented substantial evidence or not. What is the test to
determine substantial evidence? Reasonableness. The evidence
to be presented should be reasonable, logical and would lead to
a desired conclusion.
I-review langnaninyo ha kanang AngTibay v. Court of
Industrial Relations. This is the case where Justice Laurel
really studied American jurisprudence to come up with cardinal
primary requirements of administrative due process.
Okay, next, not on the codal provisions: clear and convincing.
In what situation or in what case is this applicable? Actually
daghan kaayo. Daghan kaayoug clear and convincing na
requirement.
CLEAR AND CONVINCING PROOF means that the evidence
presented by a party during the trial is more highly probable to
be true than not and the jury or judge has a firm belief or
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Ad Majorem Dei Gloriam
conviction in it. A greater degree of believability must be met
than the common standard of proof in civil
actions, preponderance of the evidence, which requires that the
facts more likely than not prove the issue for which they are
asserted. In the cases of Manalo, unsay pinakauna? Proof
beyond reasonable doubt, then clear and convincing evidence
and you have preponderance, then finally, substantial which is
the easiest quantum.
Lisod baya mag come up ug clear and convincing evidence. What
would be the standard or the test in determining whether or not
the proof is clear and convincing?
In substantial evidence, the test is reasonableness; mere
reasonableness of the evidence. What about clear and convincing
proof? High probability. Is it highly probable what the plaintiff
or defendant is alleging? Persons and family relations, bad faith
is never presumed, it must be proved by clear and convincing
evidence. If the law does not presume bad faith, what does it
presume? Remember in Rule 131, good faith is that which is
presumed. So you have that pattern. If we think of presumption
therefore, we mean clear and convincing. Thats the general rule.
Exception is, constitutional presumption of innocence.
In illegal dismissal cases, in Duty Free Philippines v. Tria,
June 27, 2012, the Supreme Court said that in illegal
dismissal cases, the employer is burdened to prove just cause
for terminating the employment of its employee with clear and
convincing evidence. Again, the pattern is the same. Why?
Because the law places bias in favour of labour. All doubts
should be resolved in favour of labour. Therefore, we have
that benefit of assumption.
In People v. Lara, the Supreme Court said, due to its
doubtful nature, alibi must be supported by clear and
convincing evidence.
In People v. Gani(June 5 2013)still related to alibi:
From the FT of the case: Alibi is an inherently weak defense
because it is easy to fabricate and highly unreliable. To merit
approbation, the appellant must adduce clear and convincing
evidence that he was in a place other than the situs criminis
at the time when the crime was committed, such that it was
physically impossible for him to have been at the scene of the
crime when it was committed. In this case, appellant failed to
prove that it was physically impossible for him to be at the
crime scene on February 21, 1997. His token defense, during
his direct examination, that he was in Quezon City when the
victim was raped is hardly credible because he failed to prove
the physical impossibility of his presence at the scene of the
crime when it was committed. On the contrary, he admitted,
when he was cross-examined, that he was, in fact, in the
same locality (SitioBayogbayog, Barangay Bulata) when AAA
was raped.
It is so difficult to have written proof of alibi. Sometimes the
accused would present a relative.
People versus Nieva (February 5 2010): It has been
consistently held that mere denial cannot prevail over the
positive testimony of a prosecution witness. A defense of
denial which is unsupported and unsubstantiated by clear and
convincing evidence becomes negative and self-serving,
deserving no weight in law, and cannot be given greater
evidentiary value over convincing, straightforward and
probable testimony on affirmative matters.
San Juan v. People which is in contradiction with the case
of Benito v. People which we already discussed. In San Juan
v. People, the Supreme Court said the conspiracy must be
proven through clear and convincing evidence but in Benito
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
versus People, no it should be proven in the same way to
prove crime itself: proof beyond reasonable doubt.
Fraud or undue influence must be established by clear and
convincing evidence. In People versus Dela Cruz (August
16, 1994) if your defense is that the evidence was planted, or
there was a frame-up, and you were framed up by someone
who is a police officer that should also be proven by clear and
convincing evidence.
In the case of Webb versus People(July 24 1997), he
wanted to make a judge to inhibit, to disqualify herself. The
Supreme Court here said, to disqualify a judge on the ground
of bias that would prejudice the trial has to be proven by clear
and convincing evidence. The Supreme Court noted that
quantum is a heavy burden and the petitioners are charged
over it.
In People versus Malikdin(November 12, 2012):self-
defence and accident on the part of the accused to prove such
by clear and convincing evidence.
People v. Lagos(March 6 2013) unless there is clear and
convincing evidence that the members of the buy-bust team
were inspired by any improper motive or were not properly
performing their duty, their testimonies on the operation
deserve faith and credit.
Okay, were done with clear and convincing evidence. Lets go to
Section 3, extrajudicial confession.
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.
We already discussed this provision extensively. So, remember
the difference between judicial and extrajudicial. When you make
a judicial confession, that in itself is sufficient to convict because
there judge will have the chance to interpolate the confession
and in that basis, the judgment of conviction can be handed
down with; whereas in extrajudicial confession is insufficient in
itself to convict. It must be corroborated by evidence of corpus
delicti. Unsaganining corpus delicti? In English, this means body
of the wrong or body of the crime. But it does not refer to
actual human body because appreciation of human body for the
law is relative. In the crime of murder or homicide, it is the fact
of unlawful killing, not necessarily human body or the corpse.
Remember the requisites for the admissibility of extrajudicial
confessions? The confession must involve an express and
categorical acknowledgement of guilt. The facts submitted must
be constitutive of the crime committed. The confession must be
given voluntarily. It must be made intelligently. And must have
been made with the assistance of an independent counsel under
Article III, Section 12 of the 1987 Constitution.
For example, I am a co-accused. My extrajudicial confession is
binding only upon myself and does not bind my co-accused.
With of course, there are exceptions provided under the law. For
example, the interlocking confessions or confessions which are
independently made without collusion, which are identical with
each other and complimentary and confirmatory with one
another. When the extrajudicial confession is impliedly
acquiesced or adopted. Where the accused admitted the facts
stated by the confessant after being apprised of such confession.
If they are charged as co-conspirators of the crime which was
confessed by one of the accused and said confession is used only
as a corroborative evidence. Now, in extrajudicial confession by
one of the co-accused is not the only evidence to convict. Where
the confession is used as a mere circumstantial evidence, it
should not be the very evidence that convicts.
[Page 105 of 107]
Ad Majorem Dei Gloriam
Now, what about the corpus delicti? Remember in extrajudicial
confession, it must be corroborated by a corpus delicti to sustain
conviction. What is corpus delicti again? It refers to a specific
crime and signifies that a specific offense had actually been
committed by someone. In theft, it resulted to the asportation of
property. In arson, for example, property has been burned and
that someone is criminally responsible for the actual commission
of the crime. It is the body or substance upon which the crime
has been committed. It refers to the fact of the crime had
actually been committed. In the case of murder or homicide, the
corpus delicti is the fact of death. In robbery or theft, the fact of
loss. In arson, the fact of burning, and many more.
Take note of the case of People v. Villahermosa, what
would be the corpus delicti for the prosecution of illegal sale
of dangerous drugs? The fact of sale. And in order to prove
that there would have a sale, in buy-bust operation, you
present the elements, the elements of contract to sale. Unsa
man ang elements? Consent, object, consideration. The
Supreme Court said in the case that the corpus
delictidililangang drugs, dililangangshabu, dililang kana. It is
the fact of sale, this includes the marked money for example.
Lets go to Section 4, circumstantial evidence.
Section 4. Circumstantial evidence, when sufficient.
Circumstantial evidence is sufficient for conviction if:
(a) There is more than one circumstances;
(b) The facts from which the inferences are derived are
proven; and
(c) The combination of all the circumstances is such as
to produce a conviction beyond reasonable doubt.
Circumstantial evidence, what does it mean? It is an evidence
which does not directly prove a fact or issue. The evidence is not
direct. And if the evidence is not direct, it means that it does not
directly prove the fact or issue but its merely circumstantial. And
circumstances which the existence of the main fact can be
inferred from reason and common experience.
If all your evidence is circumstantial and you are the
prosecution is it possible to secure a conviction? Finding of
guilt is still possible despite the absence of direct evidence.
Conviction based on circumstantial evidence may result if
sufficient circumstances, proven and taken together, create an
unbroken chain leading to the reasonable conclusion that the
accused, to the exclusion of all others, was the author of the
crime. That is the ruling in the case of People versus
Almojuela (June 2, 2014).
Also in Candelaria versus People (December 8 2014), The
Supreme Court held:
From the FT of the case: Circumstantial evidence is sufficient
for conviction if: (a) there is more than one circumstance; (b)
the facts from which the inferences are derived are proven;
and (c) the combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt. Circumstantial
evidence suffices to convict an accused only if the
circumstances proven constitute an unbroken chain which
leads to one fair and reasonable conclusion pointing to the
accused, to the exclusion of all others, as the guilty person;
the circumstances proved must be consistent with each other,
consistent with the hypothesis that the accused is guilty, and,
at the same time, inconsistent with any other hypothesis
except that of guilt. Corollary thereto, a conviction based on
circumstantial evidence must exclude each and every
hypothesis consistent with innocence.
Unsa diay ang requirement? If you are going to convict
somebody based on pure circumstantial evidence, the hypothesis
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
that these evidentiary facts would establish admits no other
explanation. If the evidence is more consistent with the
innocence of the accused then it is the duty of the trial court to
acquit him. For example:
Celedonio versus People
July 1 2015
The neighbor stole from the other neighbor. He stole some
tools and utensils. So nagsumbong ang silingan kay
gi.kawatan sya kuno. The next day, the police searched the
area, the stolen items was seen inside the compartment of the
neighbors motorcycle. Anfd his defense was the evidence was
planted.
From the FT of the text: Jurisprudence tells us that direct
evidence of the crime is not the only matrix from which a trial
court may draw its conclusion and finding of guilt. The rules
on evidence allow a trial court to rely on circumstantial
evidence to support its conclusion of guilt. The lack of direct
evidence does not ipso facto bar the finding of guilt against
the appellant. As long as the prosecution establishes the
accused-appellant's participation in the crime through credible
and sufficient circumstantial evidence that leads to the
inescapable conclusion that he committed the imputed crime,
the latter should be convicted.
Celedonio was, in fact, caught in exclusive possession of some
of the stolen items when the police officers flagged down his
motorcycle during their follow-up operation. He failed to give
a reasonable explanation as to his possession of the said
items. Section 3(j), Rule 131 of the Revised Rules of Court
provides that a person found in possession of a thing taken in
the doing of a recent wrongful act is the taker and the doer of
the whole act; otherwise, that thing which a person
possesses, or exercises acts of ownership over, is owned by
him.
Another name for circumstantial evidence is presumptive
evidence or indirect evidence. It is presumptive because it
does not directly prove the particular fact in issue. You need to
use logic and common sense to create a conclusion. Establishing
circumstantial evidence is like forming a chain. You form the
chain in such a way that there is no other end other than the
conclusion you are proposing.
In Manulat versus People (August 17, 2015): Where the
court relies solely on circumstantial evidence, the combined
effect of the pieces of circumstantial evidence must inexorably
lead to the conclusion that the accused is guilty beyond
reasonable doubt. Conviction must rest on nothing less than
moral certainty, whether it proceeds from direct or
circumstantial evidence.
This one is important. In People versus Galvez (March 30
2007), the Supreme Court had the occasion to lay down the
guidelines for judges in terms of circumstantial evidence.
From the FT of the case:
a) It should be acted upon with caution;
b) All the essential facts must be consistent with the
hypothesis of guilt;
c) The facts must exclude every other theory but that
of guilt of the accused; and,
d) The facts must establish with certainty the guilt of
the accused as to convince beyond reasonable doubt
that he was the perpetrator of the offense.
The peculiarity of circumstantial evidence is that the series of
events pointing to the commission of a felony is appreciated
not singly but collectively. The guilt of the accused cannot be
deduced from scrutinizing just one (1) particular piece of
[Page 106 of 107]
Ad Majorem Dei Gloriam
evidence. It is more like a puzzle which when put together
reveals a convincing picture pointing to the conclusion that
the accused is the author of the crime.
In People versus Monje (September 27, 2002), the
Supreme Court characterized circumstantial evidence as like a
puzzle which when put together reveals a convincing picture
pointing to the conclusion that the accused is the author of
the crime.
Another case is Medina versus People (June 17 2015).
From the FT of the case: Theft is committed by any person
who, with intent to gain, but without violence against or
intimidation of persons nor force upon things, shall take
personal property of another without the latters consent.
Although proof as to motive for the crime is essential when
the evidence of the theft is circumstantial, the intent to gain is
the usual motive to be presumed from all furtive taking of
useful property appertaining to another, unless special
circumstances reveal a different intent on the part of the
perpetrator.
Take note of the case of Cirera versus People (July 14
2014): The combination of these circumstances "constitute[s]
an unbroken chain which leads to one fair and reasonable
conclusion pointing to the [petitioner], to the exclusion of all
others, as the guilty person." There are many crimes that can
be proved by circumstantial evidence. The only crime that
circumstantial evidence does not apply would be rape. When
you are raped, sometimes you do not know who raped you.
Sometimes a person is raped while unconscious.
So anyway for crimes such as murder, it can be proved through
circumstantial evidence and it is very rare to find direct evidence
of murder. Why? People are scared to testify. So you will rely on
circumstantial evidence.
Lets go to Section 6:
Section 6. Power of the court to stop further evidence.
The court may stop the introduction of further testimony upon
any particular point when the evidence upon it is already so
full that more witnesses to the same point cannot be
reasonably expected to be additionally persuasive. But this
power should be exercised with caution.
What is the purpose of Section 6? To avoid delays. When
evidence on a matter is not expected to be additionally
persuasive the court should stop the presentation of the
evidence. If the evidence does not add any believability to your
evidence, the judge may stop it.
Is it possible for the testimony of the witness to be admitted
without having to take the witness stand at all? There is what we
call a stipulation as to the testimony. That usually happens when
the evidence is repetitive. For example, the opposing party would
ask would the other party stipulate that 1, 2, 3, 4 and 5 is true?
The tendency is that lawyers would not like to stipulate. In the
same way, lawyers do not likfe modes of discovery.
Section 7. Evidence on motion. When a motion is based
on facts not appearing of record the court may hear the
matter on affidavits or depositions presented by the respective
parties, but the court may direct that the matter be heard
wholly or partly on oral testimony or depositions.
Section 7 here is somehow misplaced because it does not really
fit with the general criteria of Rule 133. Maybe its better to put
this in Rule 130. Whats the situation described by Section7. Say
 LAW ON EVIDENCE TSN
From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

for example you are accused of a heinous crime. Remember that

you cannot post bail. The only way you can post bail if you can
prove the evidence of guilt is not strong. You never have the
opportunity to file a counter affidavit. So there is no way for you
to submit your evidence, as in zero. You file now a motion for
bail on the ground the evidence of the guilt is not strong. During
the bail hearing, remember that the evidence is not yet
submitted. So therefore the court may order that the hearing be
conducted mainly or partly based on oral testimony. So if the
court requires the submission of evidence in these mini-
hearings, take note that evidence presented in such is
automatically deemed reproduced in the main case. An example
of is in a motion for bail. Another is application for preliminary
attachment. Another is petition for support pendent lite. So in
these instances, you reproduce evidence that automatically
becomes part of the records of the case.

Pinausukan versus Far East Bank

January 20, 2014)

The case here was dismissed because there was no affidavit

of witnesses that was attached. The contention of the
petitioner that they filed a verified petition, which they say is
like an affidavit under oath. Why would affidavit be
necessary?

From the FT of the case: Pinausukans failure to include the

affidavits of witnesses was fatal to its petition for annulment.
Worthy to reiterate is that the objective of the requirements of
verification and submission of the affidavits of witnesses is to
bring all the relevant facts that will enable the CA to
immediately determine whether or not the petition has
substantial merit. In that regard, however, the requirements
are separate from each other, for only by the affidavits of the
witnesses who had competence about the circumstances
constituting the extrinsic fraud can the petitioner detail the
extrinsic fraud being relied upon as the ground for its petition
for annulment. This is because extrinsic fraud cannot be
presumed from the recitals alone of the pleading but needs to
be particularized as to the facts constitutive of it. The
distinction between the verification and the affidavits is made
more pronounced when an issue is based on facts not
appearing of record. In that instance, the issue may be heard
on affidavits or depositions presented by the respective
parties, subject to the court directing that the matter be heard
wholly or partly on oral testimony or depositions.

END OF EVIDENCE DISCUSSION

God bless us. KCJavier

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Ad Majorem Dei Gloriam