EVIDENCE – JUSTICE AQUINO 2017 - 2018

January 4, 2018
Evidence
 Means allowed by law to establish in a judicial proceeding
the truth of a matter of fact
Elements:
1. Means to prove something
- Various kinds or types of evidence
2. Allowed by law
- Implies that there are pieces of evidence which are not
admissible
3. In a judicial proceeding
- Exception: land registration, cadastral, naturalization,
insolvency cases
- In quasi – judicial proceedings: in their respective IRR
they provide procedures of litigation and therefore these
rules provided in their IRR are the ones applied in
proceedings held in those administrative bodies
EXCEPT when the matter in litigation is not covered by
the IRR, then the Rules of Court can be applied
SUPPLETORILY.
Purpose of Evidence – to prove or establish the TRUTH of a matter
of a fact
2 kinds of truth
1. Real/Objective truth – in accordance with reality
2. Judicial/Legal truth – may not be a real truth; all that is
needed is the truth that the evidence establishes
Why is real truth the standard for judges?
- What is required of the court is only to appreciate
evidenciary truth; only that which evidence can point to
as a fact
Difference between evidence and proof
 Evidence is the means, while proof is the effect (of evidence)
Types of Evidence
1. Object/Real Evidence
- Anything submitted to the Court for its appreciation
through the Court’s/Judge’s senses
- Demonstrations in Court
- Addressed to the senses
- Anything submitted as a thing
2. Documentary Evidence
- Anything written, symbols, or figures on any material
when its contents is the subject of judicial inquiry
- If contents is not the subject of inquiry, then it is real
evidence
3. Testimonial Evidence
- Testimony given by a witness in Court during a judicial
proceeding
- Always under oath

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- Always taken stenographically (transcript of Positive – affirms that a fact exists or does not exist, or that a
stenographic notes) NOTE: If TSN is submitted as person is present or not present
evidence, still testimonial not documentary
Negative – a qualified answer
 Under the affidavit rule, all direct evidence in civil cases
should be in affidavit form (still testimonial evidence; an Illustration:
exception to the rule that all written documents are Q: Nung dumating ka doon sa bahay ni J. Dela Cruz, sinong
documentary evidence) nakita mong tao doon? Nakita mo ba ung akusado doon?

Kinds of Evidence A1: Wala po siya roon – positive evidence

A2: Hindi ko po nakita – negative evidence
1. Prima Facie Evidence – an evidence that is sufficient to
prove a fact in issue if uncontroverted (ex. Marriage
Significance: GR is positive evidence trumps negative
certificate)
evidence (but there are exceptions)
2. Expert Evidence – consists of the testimony of experts in a
2. Cumulative and Corroborative Evidence
matter before the Court which requires extra knowledge not
possessed by the common man; admissible in evidence but it
Cumulative – evidence of the same kind as that already
must be shown that they are experts (qualifying of witnesses)
adduced proving the same thing
- Testimony of experts are admissible but not conclusive
- admissible BUT the Court can limit the number of
- The Court has the power to evaluate
cumulative evidence to be admitted
- It can be a guide for the Judge to decide

Common/Ordinary Opinion: as a GR, a lawyer cannot ask a witness Corroborative – evidence of a different kind from that
to give his opinion on certain matters unless he is an expert. It is not already adduced proving the same thing
an absolute rule that an ordinary witness cannot give opinions,
because they can testify or give opinions on ordinary matters 3. Evidence In Chief and Rebuttal Evidence

Pairing of Evidence Evidence in Chief – adduced by a party to prove a cause of

action or defense in civil cases, or to prove elements in
1. Positive and Negative Evidence
commission of a crime in criminal cases

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 EVIDENCE – JUSTICE AQUINO
Rebuttal – evidence that controverts or overturns of
Evidence in Chief
 Factum Probandum – proposition to establish (what is to be
proved)
 Factum Probans – the means to prove factum probandum
January 9, 2018
Documentary Evidence
 A document is admissible if the two requirements are
present:
1. Relevancy – evidence is relevant if it has a relation to the
fact in issue
- there must be a direct relation and connection between
the evidence and the fact in issue
- serves to prove the probability or improbability
2. Competence – means that the evidence is not excluded
by the rules
- If an evidence is explicitly excluded, then it is
inadmissible as evidence
Is it a possibility that evidence is admitted to the Court and yet the
Court did not give it any kind of value? - YES
Weight of evidence – degree of persuasion or the persuasive effect
that evidence has
Note: Admissibility and Weight of evidence are two distinct
concepts
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Rules on Collateral Evidence
- An evidence which does not directly pertain to matter
subject of judicial inquiry
- By itself, it is not admissible because it is irrelevant,
unless, in relation to other collateral evidence – once
supported by another evidence, it may become
admissible to prove factum probandum
- It is not similar to circumstantial evidence, they are only
similar in one aspect, as a general rule, several
circumstance are involved. However, in circumstantial
evidence, one circumstance is enough as proof which
can never happen in collateral evidence
Note: evidence that a person did something in the past, is not
evidence for his acts in the present
Testimonial Evidence
- Evidence orally given in Court in a judicial proceeding
by a witness who is not disqualified (classic definition)
- There is testimonial evidence that is written – Transcript
of Stenographic Notes, Judicial Affidavits
- May be admissible if the witness is not excluded
When testimonial evidence is presented, two questions must be
answered:
1. Is the testimony relevant?
2. If relevant, is it excluded? – If not, then it is admissible
For testimonial evidence to be given probative value, it must satisfy
two considerations: (MUST ALWAYS CONCUR)
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1. The witness must be credible 2. Summary hearing

2. The testimony must be credible
What is the standard on credibility of testimony? - If it is
consistent with the common knowledge or experience of man
Silence of the victim after commission of the crime – there must
be evidence of the commission of the crime or the identity of the
person, otherwise the testimony will not be accepted
Judicial Notice
- it is a rule by which a Court is allowed to appreciate a
fact without the need of evidence
- Applies only when there is disputed fact
2 kinds:
1. Mandatory judicial notice – COMMANDS/ORDERS the
Court to appreciate a fact even without proof
- Matters of universal knowledge, which every person is
supposed to know
2. Discretionary judicial notice – the rule ALLOWS the Court
to appreciate
How initiated:
By the parties:
1. Make a Motion, Manifestation, or Request for the Court to
take judicial notice
2. Summary hearing
Note: When it is the contents of the document which is the subject of
judicial inquiry, said document cannot be appreciated in evidence if
it is not offered. It can be appreciated even if not formally offered if
what it intends to prove is that said document exists
January 11, 2018
Difference between burden of proof and burden of evidence
Burden of Proof – the one making a claim, seeking a status, asserting
a right, praying for a relief should prove the same (he who alleges,
should prove)
General Rule: the cause of action is one where the burden of proof
lies with the petitioner
Burden of Evidence – the duty of a party to present evidence to
counteract the evidence of the proponent

Mandatory Judicial Notice Basic difference – in burden of evidence, the burden does not
change, it is always on the part of the proponent, in burden of proof,
- No proceeding needed it shifts from party to party. Why? Because when the plaintiff has
submitted evidence sufficient to establish the cause of action (prima
Discretionary Judicial Notice facie evidence), the defendant has the burden of proof to overturn
By the Court: said evidence.

1. Announce that it is taking judicial notice of such fact

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Best Evidence Rule
Subject of judicial inquiry: the contents of any written
document
(If it is not the content, it is object evidence)
What kind of document: the original document
What is prohibited: introduction of secondary evidence
 When the contents of a written instrument is the subject of
judicial inquiry, the original copy is the only admissible
proof to prove such contents
 When the terms or agreement is adduced into writing, there
can be no evidence other than the original documents
 You cannot submit secondary evidence when the subject of
judicial inquiry is the contents of the document to prevent
machinations.
Exceptions – Rule 130, Sec 3
 In voluminous documents, the original is the entire
voluminous document. But if what is sought to be proven is
the sum of the accounts, then a summary of the results would
be enough to prove the totality of the voluminous
documents.
Certificate of general result – the document to be introduced
which would represent the voluminous records
What are original documents? – Rule 130, Sec 4
- Document made by the parties to express their
agreement
- Private documents submitted in public offices as
required by the law
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Is an original document necessarily a public document? – No
What is the initial act that should be done before introducing
secondary evidence?
First step – matters should be impleaded/alleged in the
complaint
Second step – prove existence of the document
Third step – prove authenticity of the document
The fact that the original was lost must be alleged, and all
efforts to look for it have been exhausted. The existence of
the document must be proved (through testimonial
evidence), it is not enough to just allege. After proving the
existence, prove the authenticity.
3 categories of secondary evidence arranged according to
importance:
1. Copy of the original
2. Contents of documents are incorporated in an
authentic document
3. Recollection of witnesses (testimony of a witness)
Best secondary evidence rule – if not submitted in evidence, as a
general rule, the two succeeding forms cannot be admitted in
evidence unless reason as to why it cannot be produced is explained
in satisfaction of the court. But there should be a basis which consists
of the condition or ground being pleaded. If you are trying to
introduce secondary evidence, you allege it in the complaint.
 EVIDENCE – JUSTICE AQUINO
 No secondary evidence can be presented without being
impleaded. If you are submitting secondary evidence of a
lost original you must prove that it was lost, proof of
exertion of efforts to locate the same but failed
Parole Evidence Rule
Subject of judicial inquiry: the terms of a contract or will
Documents involved: (exclusive list)
4. written agreements/contracts
5. wills
What is prohibited: the presentation of parole evidence
Difference between parole evidence rule and parole evidence
Parole evidence rule – requires that when the terms of an agreement
are in writing, no parole evidence can be introduced to prove those
terms and conditions
Parole Evidence - consists of any evidence, oral or written, that
would vary, change, or modify the terms in the contract or will
Exceptions – Rule 130, Sec 9
 Intrinsic Ambiguity – ambiguity which does not appear on
the face of the document. Ambiguous because it is
susceptible to different interpretations. Comes into play only
during the execution.
 Subsequent agreements are an exception because agreements
made after the execution of the contract in question is
supposed to be amendatory.
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 When the document does not express the full intention of the
parties, the written remedy is REFORMATION OF
DOCUMENT which is a personal action.
Note: exceptions MUST BE impleaded, stated, or alleged in the
complaint. Otherwise, the parole evidence is not authorized.
Rules on Interpretation
 Only when there is ambiguity or irregularity in a document
that interpretation can be availed of. When the terms of the
document are clear, no interpretation can be availed of.
 An instrument or document should be interpreted in such a
way that the provision of the law harmonizes with one
another.
 In interpretation, the intentions of the parties should always
prevail.
January 16, 2018
Difference between document and documentary evidence
Document – writing on any writing material
Documentary evidence – document in which its contents are subject
of litigation
 There is no document that can be introduced or presented in
evidence without a witness. All documents offered in
evidence have to be identified by a witness. (applies to all
documents)
Difference when presenting a public and private instrument
Public instrument – you need only an identification of documents
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Private instrument – you need an identification, proof of due 2. Immaturity – one who cannot understand the value of an
execution, and proof of authenticity oath, nor to identify what is right and wrong, nor to
communicate what he perceived because of his age
 Identification of an object of evidence pertains to a
testimony which points out that the document in court is the Q: can deaf – mutes testify?
same as the document or object of evidence that is the
subject of the suit. A: yes
 Due execution is when the document complies with all the Voir de re – term used to qualify an infant
requirements of the law
II. Relative disqualification
Note: what is not prohibited is allowed.  A witness is qualified to testify, but there are certain areas
Testimonial Evidence which he is not allowed to testify
a. Husband and wife disqualification (marital or spousal
 Consists of a testimony given in court under oath and in a disqualification)
course of a proceeding b. Survivorship disqualification (dead man’s statute)
c. Disqualification by reason of privileged communication
First implication – existence of a witness 1. Husband and wife
2. Attorney and client
Who can be a witness? – Rule 130, Sec 20
3. Physician and patient
Standard: 4. Minister, priest and penitent
5. Public office with regard to information made to him
1. Capacity to perceive in his official capacity
2. Ability to perceive d. Other privileged from disclosure
1. Executive privilege
Taxonomy of disqualification of a witness
2. Parental – filial privilege
I. Disqualification of a witness (absolute) 3. Editor’s privilege
4. Voter’s privilege
2 kinds: 5. Trader’s privilege
6. Taxpayer’s privilege
1. Mental incapacity – insane; not all kinds of mental problems
7. Depositor’s privilege
constitute insanity. Insanity pertains to an ailment which
e. Other matters
deprives the person of perception of reality
1. National defense and security

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 EVIDENCE – JUSTICE AQUINO
2. Executive sessions of congress and the courts
3. Matters involving foreign affairs and diplomacy
Marital or Spousal disqualification
 during marriage, neither husband nor wife can testify for or
against each other on information made during marriage
except:
- in a civil case by one against the other
- In criminal cases when the crime is committed against
the other or the latter’s direct descendants or ascendants
Note: the disqualification is invocable only while the marriage is
subsisting. If marriage is dissolved, then the disqualification does not
apply anymore. One of the spouses should be a party to the case.
Q: How about living together as husband and wife on a consensual
basis, is the disqualification applicable?
A: No, there is no marriage
Q: If they are married and estranged, separated from bed and board
for a number of years, is one still prohibited to testify for or against
the other?
A: No, because the solemnity of the marriage is no longer there.
Disqualification does not apply anymore.
Rationale:
Testifying for – not allowed because it might compel one spouse to
commit perjury
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Kind of information subject of the disqualification: no limitation as
to the kind of information as long as it is for or against the other
spouse
Period of limitation: during the marriage
Does it require that the information is privileged? – No, section on
privileged communication applies
Can the disqualification be availed of even after separation of the
spouses? - No, section on privileged communication applies
Survivorship disqualification
Purpose: prevent fraud
 When a person enters into a contract with another and the
terms and conditions of their agreement as specified in the
contract and subsequently one of the parties die or becomes
insane and a person sues the estate of the deceased person
represented by the executor or administrator or
representative of the insane person, there can be no evidence
of the terms of the contract except the contract itself
 Protects the estate of the deceased or a person of unsound
mind
 Any alleged agreement whether true or not before or
contemporaneous with the execution of the contract which
try to vary or to explain the written document would not be
admissible (evidence aliunde)
 Agreements posterior or after the written agreement if
proven are admissible. Because it is already amendatory and
parties are allowed to amend.
 EVIDENCE – JUSTICE AQUINO
Note: what should be recognized as the agreement between the
parties is the one written on paper
Disqualification by reason of privileged communication
1. Husband and wife
 Cannot, without the consent of the other, testify on any
information conveyed by one to the other in confidence
during marriage except:
- in a civil case by one against the other
- In criminal cases when the crime is committed against
the other or the latter’s direct descendants or ascendants
 Not required that one spouse is a party to the case.
 The confidential information under this disqualification
includes even communications that happened before the
marriage
 What is important is that the communication is that of
confidential nature
 Even after the marriage, this disqualification still prevails
Q: supposed the husband confessed to the wife during marriage that
he killed someone, is that an exception? Can the wife testify that the
husband conveyed to her that he killed someone?
A: she cannot be compelled to testify, but she can volunteer.
January 23, 2018
Attorney and Client
Q: Are all confidential communications between lawyer and client
considered privileged?
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A: Any information given by one person to another in confidence is
privileged communication, even if the matter is objectively
confidential but it has nothing to do with the case disqualification
does not apply.
Note: if it has nothing to do with the case, it is not admissible not
because of disqualification but because it is irrelevant
Q: You are the lawyer, before arraignment he jumps bail. A week
after he tells you where he is. Should you tell the court about the
whereabouts of your client?
A: Yes. There are two duties of a lawyer, duty to his client and duty
to the court. Duty to the court should prevail. If you don’t, you are
obstructing justice.
Doctor and Patient
Information covered by the privilege: communication made by the
patient to the doctor in relation to the ailment and the prescription
and advice of the doctor in relation to the ailment. Information
should be confidential.
 Physician is disqualified to testify, the patient cannot be
compelled to testify. That is without the consent of the other.
Priest and Penitent
 Penitent cannot be compelled to testify
 Penance is not under privileged communication
Privileged Communication to Public Officers
Documents which are exceptions to the constitutional right to
information for matters of public concern: (considered privileged)
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1. Administrative actions against a judge/lawyer

2. All Proceedings – decisions may be made public, but the
proceedings are confidential

Executive Session – is resulted to by Congress in the course of

conducting an investigation where delicate matters are the subject of
disclosure and therefore should be given only in a secure place.
Considered as privileged. (in the judiciary, it is known as
deliberation)

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