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EVIDENCE BAR REVIEW • Evidence is the cause necessary to establish proof.

It is also
the mode and manner of proving competent facts.
GENERAL PRINCIPLES Factum Probans versus Factum Probandum
I. Concept of Evidence • Factum probans is the evidentiary fact or the fact by which
the factum probandum is to be established.
*Evidence is the means of ascertaining in a judicial proceeding, the  Example: BBB’s admission that he is AAA’s father,
truth respecting a matter of fact (Rule 128, Sec. 1). and/or the existence of AAA’s birth certificate
*Evidence is adduced to address questions of facts. wherein BBB is indicated as AAA’s father.
 Questions of fact v. questions of law
• Questions of fact exist when the doubt • Factum probandum is the ultimate fact sought to be
or difference arises as to the truth or falsehood of established.
alleged facts.  Example: AAA’s uninterrupted possession of the
• On the other hand, questions of law status of a natural child of BBB.
exist when the doubt or difference arises as to what III. Admissibility of Evidence
the law is on a certain set of facts. A. Requisites for admissibility of evidence
Sources of Rules on Evidence 1. Relevance
 Substantive  Evidence is admissible when it is relevant to the issue
 Constitution (e.g. Art. III, Sec. 2 – unlawful (Rule 128, Sec. 3).
search and seizure; Sec. 3 – privacy of communication or  Evidence must have such a
correspondence; Sec. 12 – rights of persons under relation to the fact in issue as to induce belief in its
custodial investigation; Sec. 17 – rights of accused existence or non-existence (Rule 128, Sec. 4).
against self-incrimination).  Relevance depends on the factum probandum, or the
 General laws (e.g. New Civil Code, Art. 1735 – ultimate fact sought to be proved.
presumption of negligence against common carrier  Relevance is determined by rules of logic and human
unless they show exercise of extraordinary diligence; experience.
Labor Code, Art. 233 – parties’ statement during 2. Competence
conciliation proceedings are privileged • The evidence must not be excluded by law or by the
communications). Rules of Court (Rule 128, Sec. 3).
 Special laws (e.g. R.A. No. 7438 – rights of persons • All facts having rational probative value are admissible
detained or under custodial investigation; R.A. No. 8505, unless some specific rule forbids their admission.
Sec. 6. – Rape shield rule). • Competence is an affair of logic and
 Jurisprudence (e.g. doctrine of executive privilege, Neri v. law.
Senate, Akbayan v. Aquino)  Examples of exclusionary rules under the 1987
 Procedural (e.g. Rules of Court, Rule on Examination of Child Constitution:
Witness, Rule on DNA Evidence, Rule on Electronic Evidence,  The right against unreasonable searches and
etc.) seizures (Art. III, Sec. 2).
II. Scope of the Rules on Evidence  The right to privacy of communication
A. Uniform application in judicial proceedings and correspondence Art. III, Sec. 3).
 Rules of evidence shall be the same in all courts and in all  The rights of a person under custodial
trials and hearings, except as otherwise provided by law or investigation (Art. III, Sec. 12).
the Rules of Court.(Rule 128, Sec. 2).  The right against self-incrimination
• Evidentiary rules under the Rules of Court are (Art. III, Sec. 17).
specifically applicable only in judicial proceedings.  Examples of statutory exclusionary rules:
• In quasi-judicial proceedings, the same Section 201, NIRC - An instrument, document or paper which is
apply by analogy, or in a suppletory character, and required by law to be stamped and which has been signed, issued,
whenever practicable and convenient (Rule 1, Sec. 4). accepted or transferred without being duly stamped, shall not be
B. Rules of evidence are procedural in nature. recorded, nor shall it or any copy thereof or any record of transfer of
 Thus, it must not diminish, increase, or modify substantive the same be admitted or used in evidence in any court until the
rights (Article VIII, Section 5, par. 5, 1987 Constitution). requisite stamp or stamps shall have been affixed thereto and
 New rules may be held applicable to cases pending at the cancelled.
time of the change in rules as parties have no vested right  Examples of statutory exclusionary rules:
in the rules of evidence; except in criminal cases when the R.A. No. 4200 (Anti-Wiretapping Act) - It shall be unlawful for any
new rule would permit reception of a lesser quantum of person, not being authorized by all the parties to any private
evidence to convict. (See Article III, Section 2 of the 1987 communication or spoken word, to tap any wire or cable, or by using
Constitution prohibiting ex post facto laws and bill of any other device or arrangement, to secretly overhear, intercept, or
attainders). record such communication or spoken work by using a device
C. Evidence in Civil Cases versus Evidence in Criminal Cases commonly known as a Dictaphone or dictograph or detectaphone or
Proof versus Evidence walkie-talkie or tape recorder, or however otherwise described. x x x
• Proof is the effect of evidence. It is the probative effect of (Section 1).
evidence and is the conviction or persuasion of the mind  Examples of statutory exclusionary rules:
resulting from a consideration of the latter. R.A. No. 4200 (Anti-Wiretapping Act) – Any communication or
spoken word, or the existence, contents, substance, purport, effect,
or meaning of the same or any part thereof, or any information
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therein contained, obtained or secured by any person in violation of • Circumstantial evidence – refers to proof of the fact or
R.A. No. 4200 shall not be admissible in evidence in any judicial, facts from which, taken either singly or collectively, the
quasi-judicial, legislative or administrative hearing or investigation existence of a particular fact in dispute may be inferred as
(R.A. No. 4200, Sec. 4). a necessary or probable consequence.
 Examples of exclusionary rules under the Rules  Example: The testimony of the victim that he dreads the
of Court: mere presence of the accused is direct evidence that the
 Best Evidence Rule statement was made. It is likewise circumstantial evidence
 Parole Evidence Rule to show that this fear prevented the victim from attacking
 Hearsay Rule the accused without provocation.
B. Relevance of evidence and collateral matters *Positive and negative evidence
• Evidence must have such a relation to the fact in issue as to  Positive evidence - when a witness affirms that a fact did
induce belief in its existence or non-existence. Evidence on or did not occur. Entitled to greater weight since witness
collateral matters shall not be allowed, except when it tends relates matters within his personal knowledge.
in any reasonable degree to establish the probability or  Negative evidence - a witness states that an event did not
improbability of the fact in issue (Rule 128, Sec. 4). occur or that the facts alleged to exist did not actually
*Multiple admissibility exist.
• When evidence is relevant and competent for two or more *Competent and credible evidence
purposes, such evidence should be admitted for any and all  Competent evidence – refers to evidence which is not
the purposes for which it is offered provided it satisfies all excluded by law in a particular case.
the requirements of law for its admissibility. (Regalado,  Credibility – refers to worthiness of belief, that quality
Remedial Law Compendium [Vol. II], pp. 694-695). which renders a witness worthy of belief (Black’s Law
• Example: An extrajudicial confession may be inadmissible as Dictionary, 5th ed., 330). Whether or not a witness or
against a party who did not subscribe to it, yet such party evidence is credible is an issue addressed to the judgment
may use said document as evidence of lack of guilt. of the trial court (People v. Castro, G.R. No. 172874, 17
*Conditional admissibility December 2008).
 Where the evidence at the time it is offered appears to be IV. Burden of Proof and Burden of Evidence
immaterial or irrelevant unless it is connected with the • Burden of proof is the duty of a party to present evidence
other facts to be subsequently proved, such evidence may on the facts in issue necessary to establish his claim or
be received on the condition that the other facts will be defense by the amount of evidence required by law. (Rule
proved thereafter, otherwise the evidence will be stricken 131, Sec. 1).
out. • Examples: (a) conviction in a criminal case -- proof beyond
 Example: AAA files an action for recovery of ownership of a reasonable doubt; (b) issuance of warrant after preliminary
parcel of land against ZZZ. The complaint alleges that AAA is investigation – probable cause; reasonable ground that an
the owner of the property. During the trial, AAA testifies offense has been committed; (b) filing of criminal
and adduces evidence that a certain XXX bought the information – probable cause; prima facie evidence; (c)
property from ZZZ. The testimony of XXX may be allowed if civil cases – preponderance of evidence; (d) administrative
it would be shown the chain of events that led to the cases – substantial evidence.
ownership of AAA of the land. • Burden of evidence is the duty resting upon a party, by
*Curative admissibility means of evidence, to create or meet a prima facie case.
• There is curative admissibility when a party offers an • Burden of proof never shifts, while burden of evidence is
inadmissible fact which is received because there is no transferred from one litigant to another depending on the
objection by the other party. The other party does not progress of trial.
acquire the right to introduce in reply to the same kind of • Negative allegations
evidence, except whenever it is needed for removing an  Note that a negative allegation does not have to be
unfair prejudice which might otherwise have ensued from proven unless the same is an essential part of the cause
the original evidence. of action or defense.
• Example: In an action for damages arising from a car  However, in civil cases, even if a negative allegation is an
accident, the plaintiff introduced evidence to show that on essential part of the defense, such does not have to be
several occasions the defendant in the past had injured proven if it is only for the purpose of denying the
pedestrians because of his negligence. (This is inadmissible existence of a document which would properly be in the
under Rule 130, Section 34-Prior acts as evidence). Under custody of the adverse party.
the concept of curative admissibility the court must give the  If the criminal charge is predicated on a negative
party against whom the evidence was admitted the chance allegation or that a negative averment is an essential
to contradict or explain the alleged past acts he committed element of the crime - the prosecution has the burden
to counteract the prejudice which the improperly admitted of proving the charge.
evidence may have caused.  Where the negative of an issue does not permit of direct
*Direct and Circumstantial Evidence proof, or where the facts are more immediately within
• Direct evidence – refers to evidence that directly proves a the knowledge of the accused, the onus probandi rests
fact without need to make inference from another fact. on him.
 Example: The testimony of the prosecution • Equipoise or Equiponderance Doctrine.
witness claiming that he saw that it was actually the • Where the evidence on an issue of fact is in equipoise or
deceased who attacked the accused without the latter’s there is doubt on which side the evidence
provocation is direct evidence. preponderates, the party having the burden of proof
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fails upon that issue (Rivera v. Court of Appeals, et al., (l)That a person acting in a public office was regularly appointed or
G.R. No. 115625, January 23, 1998). elected to it;
• Therefore, as neither party was able to make out a case, (m) That official duty has been regularly performed;
neither side could establish its cause of action and (n) That a court, or judge acting as such, whether in the Philippines
prevail with the evidence it had. They are thus no better or elsewhere, was acting in the lawful exercise of jurisdiction;
off than before they proceeded to litigate, and, as a (o) That all the matters within an issue raised in a case were laid
consequence thereof, the courts can only leave them as before the court and passed upon by it; and in like manner that all
they are (Rivera, supra citing Municipality of Candijay, matters within an issue raised in a dispute submitted for arbitration
Bohol v. Court of Appeals, 251 SCRA 530). were laid before the arbitrators and passed upon by them;
• The equipoise rule finds application if the inculpatory (p) That private transactions have been fair and regular;
facts and circumstances are capable of two or more (q) That the ordinary course of business has been followed;
explanations, one of which is consistent with the (r) That there was a sufficient consideration for a contract;
innocence of the accused and the other consistent with (s) That a negotiable instrument was given or indorsed for a
his guilt, for then the evidence does not fulfil the test of sufficient consideration;
moral certainty, and does not suffice to produce a (t)That an indorsement of a negotiable instrument was made before
conviction. (Bernardino v. People, G.R. Nos. 170453 and the instrument was overdue and at the place where the instrument
170518, 30 October 2006, 506 SCRA 237, 25). is dated;
V. Presumptions (u) That a writing is truly dated;
• Presumption – is an inference of an existence or non- (v) That a letter duly directed and mailed was received in the regular
existence of a fact which courts are permitted to draw course of the mail;
from the proof of other facts. (w) That after an absence of seven years, it being unknown whether
A. Presumption compared with judicial notice and admissions: or not the absentee still lives, he is considered dead for all purposes,
• In presumption, proponent still has to introduce except for those of succession. The absentee shall not be considered
evidence of the basis of the presumption. dead for the purpose of opening his succession till after an absence
• In judicial notice and judicial admission, as a rule, of ten years. If he disappeared after the age of seventy-five years, an
proponent does not have to introduce evidence. absence of five years shall be sufficient in order that his succession
• Presumptions may be opened.
B. Classification of Presumptions *The following shall be considered dead for all purposes including
the division of the estate among the heirs:
1. Conclusive presumptions (1)A person on board a vessel lost during a sea voyage, or an aircraf
Conclusive presumptions are not permitted to be overcome by any which is missing, who has not been heard of for four years since the
proof to the contrary loss of the vessel or aircraf;
Conclusive presumptions: (2)A member of the armed forces who has taken part in armed
 Whenever a party has, by his own declaration, act, or omission, hostilities, and has been missing for four years;
intentionally and deliberately led another to believe a particular (3)A person who has been in danger of death under other
thing true, and to act upon such belief, he cannot, in any circumstances and whose existence has not been known for four
litigation arising out of such declaration, act or omission, be years;
permitted to falsify it (Rule 131, Sec. 2 [a]). (4)If a married person has been absent for four consecutive years,
 The tenant is not permitted to deny the title of his landlord at the spouse present may contract a subsequent marriage if he or she
the time of the commencement of the relation of landlord and has a well-founded belief that the absent spouse is already dead. In
tenant between them. (Rule 131, Sec. 2 [b]). case of disappearance, where there is danger of death under the
2. Disputable presumptions circumstances hereinabove provided, an absence of only two years
Disputable presumptions are those which the law permits to be shall be sufficient for the purpose of contracting a subsequent
overcome or contradicted. marriage. However, in any case, before marrying again, the spouse
Disputable presumptions (under Rule 131, Section 3): present must institute a summary proceeding as provided in the
(a) That a person is innocent of crime or wrong; Family Code and in the rules for a declaration of presumptive death
(b) That an unlawful act was done with an unlawful intent; of the absentee, without prejudice to the effect of reappearance of
(c) That a person intends the ordinary consequences of his voluntary the absent spouse.
act; (x) That acquiescence resulted from a belief that the thing
(d) That a person takes ordinary care of his concerns; acquiesced in was conformable to the law or fact;
(e) That evidence wilfully suppressed would be adverse if produced; (y) That things have happened according to the ordinary course of
(f) That money paid by one to another was due to the latter; nature and the ordinary habits of life;
(g) That a thing delivered by one to another belonged to the latter; (z) That persons acting as co-partners have entered into a contract of
(h) That an obligation delivered up to the debtor has been paid; co-partnership;
(i)That prior rents or instalments had been paid when a receipt for (aa) That a man and woman deporting themselves as husband and
the later ones is produced; wife have entered into a lawful contract of marriage;
(j)That a person found in possession of a thing taken in the doing of (bb) That property acquired by a man and a woman who are
a recent wrongful act is the taker and the doer of the whole act; capacitated to marry each other and who live exclusively with
otherwise, that things which a person possesses, or exercises acts of each other as husband and wife without the benefit of marriage
ownership over, are owned by him; or under a void marriage, has been obtained by their joint efforts,
(k) That a person in possession of an order on himself for the work or industry.
payment of the money, or the delivery of anything, has paid the (cc) That in cases of cohabitation by a man and a woman who are
money or delivered the thing accordingly; not capacitated to marry each other and who have acquired
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property through their actual joint contribution of money, • If the evidence is at the disposal of both parties.
property or industry, such contributions and their corresponding (People v. Ducay, 225 SCRA 1).
shares including joint deposits of money and evidences of credit • The suppression was not wilful.
are equal. • The suppressed evidence is merely corroborative or
(dd) That if the marriage is terminated and the mother contracted cumulative.
another marriage within three hundred days after such • The suppression is an exercise of a privilege (People v.
termination of the former marriage, these rules shall govern in the Navaja, 220 SCRA 624).
absence of proof to the contrary: Presumption of authorship of a recent lawful act (par. j)
(1) A child born before one hundred eighty days after the The rationale for this presumption is similar to the rationale for the
solemnization of the subsequent marriage is considered to presumption of authorship of falsification, which states that in the
have been conceived during the former marriage, provided it absence of satisfactory explanation, one found in possession of and
be born within three hundred days after the termination of who used a forged document is the forger of said document. If a
the former marriage; person had in his possession a falsified document and he made use
(2) A child born after one hundred eighty days following the of it, taking advantage of it and profiting thereby, the clear
celebration of the subsequent marriage is considered to have presumption is that he is the material author of the falsification.
been conceived during such marriage, even though it be born (Lastrilla v. Granada, G.R. No. 160257, 31 January 2006).
within the three hundred days after the termination of the • Liberal Construction of the Rules of Evidence
former marriage. • Rule 1, Section 6 of the Rules of Court states that the
(ee) That a thing once proved to exist continues as long as is usual “[r]ules shall be liberally construed in order to promote
with things of that nature; their objective of securing a just, speedy and inexpensive
(ff) That the law has been obeyed; disposition of every action and proceeding.”
(gg) That a printed or published book, purporting to be printed or • Liberal Construction of the Rules of Evidence
published by public authority, was so printed or published; • Clarification:
(hh) That a printed or published book, purporting to contain reports Procedural rules are tools designed to facilitate the adjudication of
of cases adjudged in tribunals of the country where the book is cases. Courts and litigants alike are thus enjoined to abide strictly by
published, contains correct reports of such cases; the rules. And while the Court, in some instances, allows a relaxation
(ii) That a trustee or other person whose duty it was to convey real in the application of the rules, this…was never intended to forge a
property to a particular person has actually conveyed it to him when bastion for erring litigants to violate the rules with impunity. The
such presumption is necessary to perfect the title of such person or liberality in the interpretation and application of the rules applies
his successor in interest; only to proper cases and under justifiable causes and circumstances.
(jj) That except for purposes of succession, when two persons perish While it is true that litigation is not a game of technicalities, it is
in the same calamity, such as wreck, battle, or conflagration, and it is equally true that every case must be prosecuted in accordance with
not shown who died first, and there are no particular circumstances the prescribed procedure to insure an orderly and speedy
from which it can be inferred, the survivorship is determined from administration of justice (Alamayari v. Pabale, G.R. No. 182924, 24
the probabilities resulting from the strength and age of the sexes, December 2008).
according to the following rules: VI. Quantum of Evidence
1. If both were under the age of fifteen years, the older is a) Proof beyond reasonable doubt
deemed to have survived;
2. If both were above the age of sixty, the younger is deemed to  Proof beyond reasonable doubt is that degree of proof which
have survived; produces conviction in an unprejudiced mind.
3. If one is under fifteen and the other above sixty, the former is  Proof beyond reasonable doubt is required in criminal cases.
deemed to have survived;
4. If both be over fifteen and under sixty, and the sex be  Absolute certainty is not required, only moral certainty.
different, the male is deemed to have survived; if the sex be the
same, the older; • N.B. An extrajudicial confession made by an accused, is not a
5. If one be under fifteen or over sixty, and the other between sufficient ground for conviction UNLESS corroborated by
those ages, the latter is deemed to have survived. evidence of corpus delicti. (Rule 133, Sec. 3).
(kk) That if there is a doubt, as between two or more persons who • Requisites for circumstantial evidence to be sufficient for
are called to succeed each other, as to which of them died first, conviction:
whoever alleges the death of one prior to the other, shall prove the  There is more than 1 circumstance;
same; in the absence of proof, they shall be considered to have died  The facts from which the inferences are derived are proven;
at the same time. and
C. Some notes on disputable presumptions under Rule 131, Section  The combination of all the circumstances is such as to produce
3 a conviction beyond reasonable doubt. (Rule 133, Sec. 4).
Wilful suppression of evidence (par. e) b) Preponderance of evidence
• Requisites:  Preponderance of evidence is required in civil cases
• The evidence is material.  In determining preponderance of evidence, the court may
• Party had the opportunity to produce consider:
the same. • All the facts and circumstances of the case;
• Said evidence is available only to said • The witnesses’ manner of testifying;
party. • Their intelligence;
• Presumption does not apply:

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• Their means and opportunity of knowing the facts to  Admiralty and maritime courts of the world and
which they testify; their seals;
• The probability or improbability of their testimony;  Political constitution and history of the
• Their interest or want of interest; Philippines.
• Personal credibility so far as the same may legitimately  Official acts of the legislative, executive, and
appear upon the trial; judicial departments of the Philippines;
• Number of witnesses (note preponderance is not  Laws of nature;
necessarily equivalent with the no. of witnesses).  Measure of time;
c) Substantial evidence  Geographical divisions.
Substantial evidence is that amount of relevant evidence which a • Matters of Judicial Notice
reasonable mind might accept as adequate to justify a conclusion. b) Discretionary
• Court may take place at the court's initiative, or on request
In cases filed before administrative or quasi-judicial bodies, a fact of a party; requires a hearing and presentation of
may be deemed established if it is supported by substantial evidence.
evidence, or that amount of relevant evidence which a reasonable • Judicial notice is discretionary in the following:
mind might accept as adequate to justify a conclusion.  Matters of public knowledge;
d) Clear and convincing evidence  Matters capable of unquestionable
Evidence is clear and convincing if it produces in the mind of the trier demonstration;
of fact a firm belief or conviction as to allegations sought to be  Matters which ought to be known to judges
established. It is intermediate, being more than preponderance, but because of their judicial functions.
not to the extent of such certainty as required beyond reasonable • Matters of Judicial Notice
doubt in criminal cases (Black’s Law Dictionary, 5th ed., 227). b) Discretionary
Power of the court to stop further evidence • When hearing is necessary (Rule 129, Sec. 3)
The court may stop the introduction of further testimony upon any During the trial, the court, on its own initiative, or on request of a
particular point when the evidence upon it is already so full that party, may announce its intention to take judicial notice of any
more witnesses to the same point cannot be reasonably expected to matter and allow the parties to be heard thereon.
be additionally persuasive. But this power should be exercised with After the trial, and before judgment or on appeal, the proper court,
caution. (Rule 133, Sec. 6) on its own initiative or on request of a party, may take judicial notice
Evidence on motion of any matter and allow the parties to be heard thereon if such
When a motion is based on facts not appearing of record the court matter is decisive of a material issue in the case.
may hear the matter on affidavits or depositions presented by the • Matters of Judicial Notice
respective parties, but the court may direct that the matter be heard b) Discretionary
wholly or partly on oral testimony or depositions. (Rule 133, Sec. 7). • Examples of matters of public knowledge:
Examples of motions which require presentation of evidence:  Giving of tips, especially in a first rate hotel, is an
 Motion for bail; accepted practice which the Court can take
 Application for TRO/injunction; judicial notice of (PAL v. CA, 257 SCRA 33, 1997).
 Motion to dismiss.  The current practice among major
VII. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS establishments to accept payment by means of
A. What Need Not Be Proved credit cards in lieu of cash (Mandarin Villa v. CA,
• The following need not be proved: 257 SCRA 538).
1. Facts which a court shall or may take judicial notice of  Scientific findings that drug abuse can damage
(Rule 129, Secs. 1 and 2); the mental faculties of the use. (Bughaw, Jr. v.
2. Judicial admissions (Rule 129, Sec. 4); Treasure Isle Industrial Corporation, G.R. No.
3. Conclusive presumptions; 169606, November 27, 2009).
4. Disputable presumptions not disputed;  Filipina’s inbred modesty and antipathy in airing
5. Res Ipsa Loquitur (Latin for “the thing or the transaction publicly things which affect her honor. (People v.
speaks for itself.”) Alfeche, 294 SCRA 352).
• Matters of Judicial Notice • Judicial Admissions
a) Mandatory • Judicial admission is an admission, verbal or written, made
• Court is compelled to take judicial notice; takes place at by a party in the course of the proceedings in the same
the court's own initiative. case, does not require proof. (Rule 129, Sec. 4).
• The court shall take mandatory judicial notice of the • The admission may be contradicted only by showing that it
following (Rule 129, Sec. 1): was made through palpable mistake or that no such
 Existence and territorial extent of states; admission was made. (Rule 129, Sec. 4).
 Their political history; • Judicial Admissions
 Forms of government; • Judicial admissions may be made in:
 Symbols of nationality;  Pleadings filed by the parties; or
 Law of nations;  During the course of the trial, either by verbal or
• Matters of Judicial Notice written manifestations or stipulations.
a) Mandatory • A judicial admission must be made in the same case in
• The court shall take mandatory judicial notice of the which it is offered. If made in another case or in another
following (Rule 129, Sec. 1): court, it must be proven as in any other fact, but entitled
greater weight. This is admissible unless:
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 Made only for purposes of the first case; • Foreign laws may be taken judicial notice in the following
 Withdrawn with the permission of the court; and instances:
 Court deems it proper to relieve the party.  When the foreign statute is accepted by the
• Judicial Admissions Philippine government (Republic v. Guanzon, 61
• Examples/Forms of Judicial Admissions SCRA 360).
 Implied admissions of allegations of usury and in  When a foreign judgment containing foreign law
actionable documents if not specifically denied is recognized for enforcement. (Rule 39, Sec.
under oath (Rule 8, Secs. 8 and 11). 48).
 Admissions during pre-trial in civil and criminal  If the foreign law refers to common law doctrines
cases. (N.B.: In criminal cases the admission must and rules from which many of our laws were
be reduced in writing and signed by accused and derived. (Alzua v. Johnson, 21 Phil. 308).
counsel [Rule 118, Sec. 4]). • Judicial Notice of Foreign Laws, Law of Nations and
 Admissions in superseded pleadings may be Municipal Ordinance
received in evidence against the pleader. (Rule Foreign laws
10, Sec. 8). These are treated as extrajudicial  Doctrine of Processual Presumption – Under this
admissions which must be proven as fact. doctrine, the foreign law is considered the same
• Judicial Admissions as the law of the forum. It arises if the foreign
 Examples/Forms of Judicial Admissions law, though properly applicable is either not
 Implied admissions in the modes of discovery alleged or if alleged is not duly proved before a
(Depositions; Interrogatories – Rule 23; Failure to competent court.
specifically deny under oath within 15 days a • Judicial Notice of Foreign Laws, Law of Nations and
Request for Admission in a pending case – Rule Municipal Ordinance
26). Foreign laws
 Plea of guilt in criminal case (N.B.: A withdrawn To prove foreign law, the party invoking it must present a copy
plea of guilt is inadmissible, unlike in civil cases thereof and comply with Rules 132, Sections 24 and 25 of the Rules
where a withdrawn judicial admission is of Court which states:
considered an extrajudicial admission). SEC. 24. Proof of official record. — The record of public
 Judicial Admissions documents referred to in paragraph (a) of Section 19, when
 Examples/Forms of Judicial Admissions admissible for any purpose, may be evidenced by an official
 Admissions by counsel are generally conclusive publication thereof or by a copy attested by the officer having the
upon a client absent any gross negligence which legal custody of the record, or by his deputy, and accompanied, if the
deprives counsel of due process of law or there record is not kept in the Philippines, with a certificate that such
is outright deprivation of property or liberty officer has the custody. If the office in which the record is kept is in
(Cuenco v. Talisay Tourist Sports Complex, G.R. a foreign country, the certificate may be made by a secretary of the
No. 174154, 17 October 2008). embassy or legation, consul general, consul, vice consul, or
 Judicial Admissions consular agent or by any officer in the foreign service of the
a) Effect of judicial admissions Philippines stationed in the foreign country in which the record is
Judicial admissions have the following effects: kept, and authenticated by the seal of his office.
 A matter admitted need no longer be proved; • Judicial Notice of Foreign Laws, Law of Nations and
 The matter admitted cannot be contradicted Municipal Ordinance
because they are conclusive upon the party Foreign laws
making it. To prove foreign law, the party invoking it must present a copy
• Judicial Admissions thereof and comply with Rules 132, Sections 24 and 25 of the Rules
b) How judicial admissions may be contradicted of Court which states:
Judicial admissions may be contradicted in the following instances: SEC. 25. What attestation of copy must state. — Whenever a copy
 Upon a showing that the admission was made through of a document or record is attested for the purpose of the evidence,
palpable mistake; and the attestation must state, in substance, that the copy is a correct
 When it is shown that no such admission was made. copy of the original, or a specific part thereof, as the case may be.
• Judicial Notice of Foreign Laws, Law of Nations and The attestation must be under the official seal of the attesting officer,
Municipal Ordinance if there be any, or if he be the clerk of a court having a seal, under
Foreign laws the seal of such court.
• Foreign laws may be taken judicial notice in the following • Judicial Notice of Foreign Laws, Law of Nations and
instances: Municipal Ordinance
 When the foreign law refers to the law of Law of Nations
nations. (Rule 129, Sec. 1). • Under the 1987 Constitution, the Philippines adopts the
 When the court takes judicial notice of a generally accepted principles of international law as part of
published treatise, periodical or pamphlet on a the law of the land. Being part of the law of the land, they
subject of law as a learned treatise. (Rule 130, are therefore technically in the nature of local laws and
Sec. 46). thus subject to mandatory judicial notice (cf. Section 2, Art.
• Judicial Notice of Foreign Laws, Law of Nations and II of the 1987 Constitution)
Municipal Ordinance • Judicial Notice of Foreign Laws, Law of Nations and
Foreign laws Municipal Ordinance
Municipal ordinances
6
 Generally, courts are required to take judicial but the court may exclude the public from
notice of laws. However, courts are not such view
mandated to take judicial notice of municipal • Viewing may not be refused if the indecent or
ordinances unless the charter of the concerned immoral object constitutes the very basis for
city provides for such judicial notice. (City of the criminal or civil action.
Manila v. Garcia, 1967). But inferior courts sitting Requisites for Admissibility
in the respective municipalities or cities are • To require its being viewed in court or in an ocular inspection
mandated to take judicial notice thereof. The would result in delays, inconvenience and expenses out of
reason is that violations of the ordinances are proportion to the evidentiary value of such object;
usually vested to the inferior courts exclusively in • Such object evidence would be confusing or misleading;
the exercise of their original jurisdiction. • Testimonial or documentary evidence already presented
 If an inferior court took judicial notice of a fact clearly portrays the object in question as to render viewing
and there was an appeal, such court taking the unnecessary.
appeal should likewise take judicial notice. (U.S. Categories of Object Evidence
v. Blanco, 37 Phil. 126). • The following are categories of object evidence:
• Judicial Notice of Foreign Laws, Law of Nations and  Unique Objects or objects that have readily
Municipal Ordinance identifiable marks
Court Orders • Example: caliber revolver with serial
 Courts are required to take judicial notice of the number
decisions of appellate courts but not of the  Objects made unique or objects that are made
decisions of coordinate courts. readily identifiable
 In fact, a court may not take judicial notice of the • Example: knife with the name of the
decision or the facts involved in another case owner
tried by the same court itself unless the parties  Non-unique objects or objects with no
introduce the same in evidence or doing so is identifying marks and cannot be marked.
convenient. • Example: drugs in powder form
• OBJECT (REAL) EVIDENCE Demonstrative Evidence
• Object (Real) Evidence • Demonstrative evidence is evidence in the form of a
Objects as evidence are those addressed to the senses of the court representation of an object. This is, as opposed to, real
(Rule 130, Sec. 1). evidence, testimony, or other forms of evidence used at
• Nature of Object Evidence trial.
 Object evidence includes any article or object • Examples: photos, x-rays, videotapes, movies, sound
which may be known or perceived by the use of recordings, diagrams, forensic animation, maps, drawings,
any of the senses – sight (visual), hearing graphs, animation, simulations, and models.
(auditory), touch (tactile), taste (gustatory), or • Demonstrative evidence is useful in assisting a finder of
smell (olfactory). fact (fact-finder) in establishing context among the facts
• Nature of Object Evidence presented in a case.
• Object Evidence includes: View of an Object or Scene
 Examination of the anatomy of a person or of • Autoptic proference, in legal parlance, simply means a
any substance taken therefrom; tribunal's self-perception, or autopsy, of the thing itself.
 Conduct of tests, demonstrations, or (Balingit v. COMELEC, G.R. No. 170300, 9 February 2007).
experiments; • It is referred to as the evidential datum which decision-
 Examination of representative portrayals of the makers will perceive using their five senses (Anderson,
object in question; Schum, and Twining, Analysis of Evidence, 2nd Ed.).
 Documents – only if the same are presented for Chain of custody, in relation to Section 21 of the Comprehensive
the ff. purposes: Dangerous Drugs Act of 2002
• To prove their existence or condition or The Chain of Custody Rule
the nature of the handwritings
thereon; • As a method of authenticating evidence, the chain of
• To determine the age of the paper custody rule requires that the admission of an exhibit be
used or the blemishes or alterations preceded by evidence sufficient to support a finding that
thereon. the matter in question is what the proponent claims it to
• Requisites for Admissibility be.
• When an object is relevant to the fact in issue, it may be • It would include testimony about every link in the chain,
exhibited to, examined or viewed by the court (Rule 130, from the moment the item was picked up to the time it is
Sec. 1). offered into evidence, in such a way that every person who
• Court may refuse introduction of object evidence and rely touched the exhibit would describe how and from whom it
on testimonial evidence alone if: was received, where it was and what happened to it while
 Exhibition of such object is contrary to public policy, in the witnesses' possession, the condition in which it was
morals or decency. received and the condition in which it was delivered to the
• But if viewing is necessary in the interest next link in the chain.
of justice, the evidence may still be exhibited • These witnesses would then describe the precautions
taken to ensure that there had been no change in the
7
condition of the item and no opportunity for someone not Failure to take photographs and inventory the same is not fatal as
in the chain to have possession of the same. (People v. long as the integrity and evidentiary value of seized illegal drugs
Kamad, G.R. No. 174198, 19 January 2010). were preserved
Essential links in the chain of custody of seized illegal drugs • In People v. Presas (G.R. No. 182525, 2 March 2011), the
– The following are the links that must be established in the Supreme Court noted that the failure of the prosecution to
chain of custody of seized illegal drugs: first, the seizure and show that the police officers conducted the required
marking, if practicable, of the illegal drug recovered from physical inventory and photograph of the evidence
the accused by the apprehending officer; second, the confiscated pursuant to said guidelines, does not
turnover of the illegal drug seized by the apprehending automatically render accused’s arrest illegal or the items
officer to the investigating officer; third, the turnover by the seized from him inadmissible.
investigating officer of the illegal drug to the forensic • Notably, the implementing rules of the IRR provide that
chemist for laboratory examination; and fourth, the "non-compliance with these requirements under justifiable
turnover and submission of the marked illegal drug seized grounds, as long as the integrity and the evidentiary value
from the forensic chemist to the court. (People v. Fermin of the seized items are properly preserved by the
and Madayag, Jr., G.R. No. 179344, 3 August 2011). apprehending officer/team, shall not render void and
– As provided by the implementing rules and jurisprudence, invalid such seizures of and custody over said items." The
strict compliance of the requisites under Section 21 of same provision also states that it must still be shown that
Republic Act No. 9165 can be disregarded as long as the there exists justifiable grounds and proof that the integrity
evidentiary value and integrity of the illegal drug are and evidentiary value of the evidence have been
properly preserved; and its preservation can be well preserved.
established if the chain of custody of illegal drug was Presumption of regularity, standing alone, cannot defeat the
unbroken. (People v. Fermin and Madayag, Jr., G.R. No. presumption of innocence
179344, 3 August 2011). • The presumption that the police officers regularly
Testimony on perfect chain not required performed their duty cannot, standing alone, defeat the
• The Supreme Court held that, “undeniably, a testimony presumption of innocence of the accused. Generally, law
about a perfect chain is not always the standard as it is enforcers are presumed to have regularly performed their
almost always impossible to obtain an unbroken duty, but this is a mere procedural presumption which
chain...what is of utmost importance is the preservation cannot overturn the constitutionally recognized
of the integrity and the evidentiary value of the seized presumption of innocence of the accused where lapses in
items.” the buy bust operation are shown. An effect of this lapse,
• An astute perusal of Section 21of the IRR of RA 9165 as held in Lopez v. People, is to negate the presumption
readily reveals that the custodial chain rule is not to be that official duties have been regularly performed by the
rigorously applied, provided "the integrity and police officers. Any taint of irregularity affects the whole
evidentiary value of the seized items are properly performance and should make the presumption
preserved by the apprehending officer/team." Thus, the unavailable. (People v. Martin, G.R. No. 193234, 19
supposed procedural infirmities alleged by Quiamanlon October 2011)
with regard to the custody, photographing, inventory, and VII.RULE ON DNA EVIDENCE (A.M. NO. 06-11-5-SC)
marking of the seized items do not, in any manner, affect a) Meaning of DNA
the prosecution of the instant case and do not render her – “DNA” means deoxyribonucleic acid, which is the chain of
arrest illegal or the items seized from her inadmissible molecules found in every nucleated cell of the body. The totality
(People v. Quiamanlon, G.R. No. 191198, 26 January 2011). of an individual's DNA is unique for the individual, except
Presentation of confidential informant not indispensable identical twin. (Sec. 3 [b], A.M. No. 06-11-5-SC).
• The non-presentation of the confidential informant is not b) Applicable for DNA testing order
fatal to the prosecution’s case. The presentation of an – Who may issue a DNA Testing Order?
informant is not a requisite in the prosecution of drug • The appropriate court, at any time, either motu proprio or
cases. The failure to present the informant does not vitiate on application of any person who has a legal interest in the
the prosecution’s cause as his testimony is not matter in litigation. (Sec. 4)
indispensable to a successful prosecution for drug-pushing • The Rule on DNA Evidence does not preclude the conduct of
since it would be merely corroborative of, and cumulative DNA testing, without need of a prior court order, at the
with, that of the poseur-buyer who was presented in court behest of any party, including law enforcement agencies,
and testified on the facts and circumstances of the sale before a suit or proceeding is commenced.
and delivery of the prohibited drug. (People v. Andres, G.R. o Conditions of issuance:
No. 193184, 7 February 2011).  (1) Due notice and hearing; and
Failure to immediately mark seized drugs  (2) a showing that:
• The failure to immediately mark seized drugs will not (a) A biological sample exists that is relevant to the case;
automatically impair the integrity of chain of custody as (b) The biological sample: (i) was not previously subjected to
long as the integrity and the evidentiary value of the the type of DNA testing now requested; or (ii) was previously
seized items have been preserved, as these would be subjected to DNA testing, but the results may require
utilized in the determination of the guilt or innocence of confirmation for good reasons;
the accused. What is essential is that the police officers (c) The DNA testing uses a scientifically valid technique;
account for the crucial links in the chain of custody of
seized illegal drugs. (People v. Morales, G.R. No. 188608, 9
February 2011).
8
(d) The DNA testing has the scientific potential to produce new • N.B.: If the laboratory is not accredited, the relevant experience
information that is relevant to the proper resolution of the case; of the laboratory in forensic casework and credibility must be
and properly established (Section 7[b])
(e) The existence of other factors, if any, which the court may • The provisions of the Rules of Court concerning the appreciation
consider as potentially affecting the accuracy or integrity of the of evidence shall apply suppletorily in assessing the probative
DNA testing. value of DNA evidence (Section 7, par. 2).
– Contents of DNA Testing Order • Evaluation of DNA Testing Results; Factors
• If the court finds that the requirements in Section 4 have been (a) The evaluation of the weight of matching DNA evidence or the
complied with, the court shall – relevance of mismatching DNA evidence;
(a) Order that biological samples be taken from any person or crime (b) The results of the DNA testing in the light of the totality of the
scene evidence; other evidence presented in the case; and
(b) Impose reasonable conditions on DNA testing designed to (c) DNA results that exclude the putative parent from paternity shall
protect the integrity of the biological sample, the testing process and be conclusive proof of non-paternity (Section 9).
the reliability of the test results, and – If the value of the Probability of Paternity <
(c) Issue an order requiring all parties to the case or proceedings to 99.9%, the results of the DNA testing = corroborative
witness the DNA testing to be conducted if there not enough evidence.
samples for confirmatory testing of the other party (Section 5).
– The court my order that the result of the DNA testing be – If the value of the Probability of Paternity >
simultaneously released to the parties. (Section 5). 99.9% or higher = there shall be a disputable presumption of
– N.B.: An order granting the DNA testing shall be immediately paternity (Section 9[c]).
executory and shall not be appealable. DNA Testing Orders in paternity and filiation suits
– Any petition for certiorari initiated therefrom shall not, in any – Is a prima facie showing of possible paternity necessary
way, stay the implementation thereof, unless a higher court before a court can issue a DNA testing order? Yes.
issues an injunctive order (Section 5). – In Lucas v. Lucas (G.R. No. 190710, 6 June 2011), the
– The grant of a DNA testing application shall not be construed Supreme Court felt the need to supplement Section 4 of the
as an automatic admission into evidence of any component of Rule on DNA Evidence and ruled that since a DNA Testing
the DNA evidence that may be obtained as a result thereof. Order could indeed be likened to a “search,” it is proper that
c) Post-conviction DNA testing; remedy during hearings on motions for DNA testing, the movant must
– Court order is not required. present prima facie evidence or establish a reasonable
– This remedy is available to the prosecution or any person possibility of paternity.
convicted by final and executory judgment provided that: e) Rules on evaluation of reliability of the DNA testing
(a) a biological sample exists; methodology
(b) such sample is relevant to the case; and Evaluation of the Reliability of DNA Testing Methodology; Factors
(c) the testing would probably result in the reversal or modification (a) The falsifiability of the principles or methods used, that is,
of the judgment of conviction (Section 6) whether the theory or technique can be and has been tested;
– Remedy if the results are favorable to the (b) The subjection to peer review and publication of the principles
convict or methods;
• File a petition for a writ of habeas corpus in the court of origin. A (c) The general acceptance of the principles or methods by the
similar petition may be filed either in the Court of Appeals or the relevant scientific community;
Supreme Court, or with any member of said courts, which may (d) The existence and maintenance of standards and controls to
conduct a hearing thereon or remand the petition to the court of ensure the correctness of data generated;
origin and issue the appropriate orders. (e) The existence of an appropriate reference population database;
• In case the court, after due hearing, finds the petition to be and
meritorious, it shall reverse or modify the judgment of conviction (f) The general degree of confidence attributed to mathematical
and order the release of the convict, unless continued detention calculations used in comparing DNA profiles and the significance and
is justified for a lawful cause. (Section 10). limitation of statistical calculations used in comparing DNA profiles
d) Assessment of probative value of DNA evidence and (Section 8).
admissibility VIII. DOCUMENTARY EVIDENCE
– Factors considered in the assessment of probative value of DNA • Meaning of Documentary Evidence
evidence: • Documents as evidence consist of writings or any material
(a) The chain of custody (i.e., handling and collection biological containing letters, words, numbers, figures, symbols or
samples; possibility of contamination of the samples) other modes of written expression offered as proof of their
(b) The DNA testing methodology, including the procedure followed contents (Rule 130, Sec.2).
in analyzing the samples, the advantages and disadvantages of the • A document is a deed, instrument or other duly authorized
procedure, and compliance with the scientifically valid standards in paper by which something is proved, evidenced or set
conducting the tests; forth (U.S. v. Orera, 11 Phil 596).
(c) The forensic DNA laboratory, including accreditation by any
reputable standards-setting institution and the qualification of the • Documentary evidence is that which is furnished by written
analyst who conducted the tests. instruments, inscriptions and documents of all kinds (32
(d) The reliability of the testing results CJS 475).
– Factors considered in the assessment of probative value of DNA • Requisites for Admissibility
evidence: • The following are the requisites for admissibility of
documentary evidence:
9
or about the same time with identical contents,
1. The document must be relevant; or is a counterpart produced by the same
2. The evidence must be authenticated; impression as the original, or from the same
3. The document must be authenticated by a matrix, or by mechanical or electronic re-
competent witness; and recording, or by chemical reproduction, or by
4. The document must be formally offered in other equivalent techniques which accurately
evidence. reproduces the original. (Rules on Electronic
• Best Evidence Rule Evidence, Sec. 2)
a) Meaning of the rule 6. Best Evidence Rule
• When the subject of inquiry is the contents of a document, c) Meaning of original
no evidence shall be admissible other than the original • N.B.: Under the Rules on Electronic Evidence, copies or
document itself (Rule 130, Sec. 3). duplicates shall not be admissible to the same extent as
• Best Evidence Rule the original if:
b) When applicable – a genuine question is raised as to the
• The rule is applicable when the subject of inquiry is the authenticity of the original; or
contents of a document (Rule 130, Sec. 3). – in the circumstances it would be unjust or
• The Best Evidence Rule does NOT apply: inequitable to admit the copy in lieu of the
(a) to proof of facts collateral to the issues, such as the nature, original. (Rules on Electronic Evidence, Sec. 2)
appearance or condition of physical objects or to evidence relating • Best Evidence Rule
to a matter which does not come from the foundation of the cause d) Requisites for introduction of secondary evidence
of action or defense; or • Secondary evidence is allowed in the following instances:
(b) when a party uses a document to prove the existence of an 1. When original is unavailable (Rule 130, Sec. 5)
independent fact, as to which the writing is merely collateral or – There must be proof by satisfactory evidence of:
incidental (Lee v. People G.R. No. 159288, 19 October 1 2004). • Due execution of the original
• Best Evidence Rule • Loss, destruction or unavailability of all
b) When applicable such originals; and
• Simply put, the Best Evidence Rule applies only when the • Reasonable diligence and good faith in
terms of a writing are in issue. When the evidence sought the search for or attempt to produce
to be introduced concerns external facts, such as the the original.
existence, execution or delivery of the writing, without • Best Evidence Rule
reference to its terms, the Best Evidence Rule cannot be d) Requisites for introduction of secondary evidence
invoked (Heirs of Prodon v. Heirs of Alvarez and Clave, G.R. • Secondary evidence is allowed in the following instances:
No. 170604, 2 September 2013). 1. When original is unavailable (Rule 130, Sec. 5)
• Best Evidence Rule – How to Prove Due Execution:
c) Meaning of original 1. Testimony of person/s who executed document;
• The following are considered originals of a document: 2. Testimony of the person before whom its execution was
1. The original of the document is one the contents acknowledged; or
of which are the subject of inquiry (Rule 130, 3. Any person who was present and saw it executed and
Sec. 4). delivered or who thereafter saw it and recognized the signatures, or
2. When a document is in two or more copies one to whom the parties thereto had previously confessed the
executed at or about the same time, with execution thereof
identical contents, all such copies are equally d) Requisites for introduction of secondary evidence
regarded as originals (Rule 130, Sec. 4). • Secondary evidence is allowed in the following instances:
3. When an entry is repeated in the regular course 1. When original is unavailable (Rule 130, Sec. 5)
of business, one being copied from another at or – Secondary evidence which could be introduced
near the time of the transaction, all the entries after proving unavailability of the original (in
are likewise equally regarded as originals (Rule the order stated):
130, Sec. 4). 1. Copy of said document;
• Best Evidence Rule 2. Recital of its contents in an authentic document; or
c) Meaning of original 3. Recollection of witnesses.
• The following are considered originals of a document: • Best Evidence Rule
4. An electronic document shall be regarded as the d) Requisites for introduction of secondary evidence
equivalent of an original document under the • Secondary evidence is allowed in the following instances:
Best Evidence Rule if it is a printout or output 1. When original is unavailable (Rule 130, Sec. 5)
readable by sight or other means, shown to • Nevertheless, where the law specifically provides for the
reflect the data accurately. (Rules on Electronic class and quantum of secondary evidence to establish the
Evidence, Sec. 1) contents of a document, or bars secondary evidence of a
5. Best Evidence Rule lost document, such requirement is controlling.
c) Meaning of original – Example: lost notarial will requires the testimony of at
• The following are considered originals of a document: least 2 credible witnesses.
4. .. d) Requisites for introduction of secondary evidence
5. Copies as equivalent of the originals – When a • Secondary evidence is allowed in the following instances:
document is in two or more copies executed at
10
2. When original is in adverse party's custody or control (Rule 130, a) Scope; coverage; meaning of electronic evidence; electronic data
Sec. 6) message
– Requisites *Meaning of “electronic document”
1. Document is in the custody or under the control of adverse party; – “Electronic document” refers to information or
2. He must have reasonable notice to produce it; the representation of information, data, figures, symbols
3. If after such notice and after satisfactory proof of its existence, he or other modes of written expression, described or
fails to produce the document, secondary evidence may be however represented:
presented as in the case of its loss. • by which a right is established or an
• Best Evidence Rule obligation extinguished, or
d) Requisites for introduction of secondary evidence • by which a fact may be proved and
• Secondary evidence is allowed in the following instances: affirmed, which is received, recorded, transmitted, stored,
2. When original is in adverse party's custody or control (Rule 130, processed, retrieved or produced electronically.
Sec. 6) – It includes digitally signed documents and any print-out or
Where the nature of the action is in itself a notice, as where it is for output, readable by sight or other means, which accurately
the recovery or annulment of documents wrongfully obtained or reflects the electronic data message or electronic
withheld by the other party, no notice to produce said documents is document. Under the REE, the term “electronic
required. (Warner, Barnes & Co., Ltd. v. Buenaflor, 36 OG 3290) document” is interchangeably with “electronic data
• Best Evidence Rule message.” (REE, Rule 2, Sec. 1[h]).
d) Requisites for introduction of secondary evidence *Meaning of “electronic data message.”
• Secondary evidence is allowed in the following instances: – “Electronic data message” refers to information generated,
2. When original is in adverse party's custody or control (Rule 130, sent, received or stored by electronic, optical or similar
Sec. 6) means. (REE, Rule 2, Sec. 1[g]).
• A party who calls for the production of *Meaning of “electronic signature.”
a document and inspects the same is – “Electronic signature” refers to any distinctive mark,
not obliged to offer it as evidence (Rule characteristic and/or sound in electronic form,
130, Sec. 8). representing the identity of a person and attached to or
• Best Evidence Rule logically associated with the electronic data message or
d) Requisites for introduction of secondary evidence electronic document or any methodology or procedure
• Secondary evidence is allowed in the following instances: employed or adopted by a person and executed or
3. When the original consists of numerous accounts or other adopted by such person with the intention of
documents which cannot be examined in court without great loss authenticating, signing or approving an electronic data
of time and the fact sought to be established from them is only the message or electronic document. An electronic signature
general result of the whole. (Rule 130, Sec. 3[c]). includes digital signatures.. (REE, Rule 2, Sec. 1[j]).
• Best Evidence Rule b) Probative value of electronic documents or evidentiary weight;
d) Requisites for introduction of secondary evidence method of proof
• Secondary evidence is allowed in the following instances: • Evidentiary weight of electronic documents
3. When the original consists of numerous accounts or other – Electronic evidence is considered as the
documents which cannot be examined in court without great loss functional equivalent of paper-based documents.
of time and the fact sought to be established from them is only the Whenever a rule of evidence refers to the term
general result of the whole. (Rule 130, Sec. 3[c]). of writing, document, record, instrument,
– Requisites memorandum or any other form of writing, such
1. The voluminous character of the records must be term shall include an electronic document (REE,
established; and Rule 3, Sec. 1)
2. Such records must be made accessible to the adverse party – The electronic document shall be regarded as
so that their correctness may be tested on cross-examination the equivalent of an original document under
• Best Evidence Rule the Best Evidence Rule if it is a printout or output
d) Requisites for introduction of secondary evidence readable by sight or other means, shown to
• Secondary evidence is allowed in the following instances: reflect the data accurately (REE, Rule 4, Sec. 1).
4. When the original is a public record (Rule 130, Sec. 7) *Factors for assessing evidentiary weight
When the original of document is in the custody of public officer or In assessing the evidentiary weight of an electronic document, the
is recorded in a public office, its contents may be proved by a following factors may be considered:
certified copy issued by the public officer in custody thereof. (a) The reliability of the manner or method in which it was
• Rules on Electronic Evidence generated, stored or communicated, including but not limited to
(A.M. No. 01-7-01-SC) input and output procedures, controls, tests and checks for accuracy
a) Scope; coverage; meaning of electronic evidence; electronic data and reliability of the electronic data message or document, in the
message light of all the circumstances as well as any relevant agreement;
• Scope (b) The reliability of the manner in which its originator was
– The Rules on Electronic Evidence (“REE”) apply identified;
whenever an electronic document or electronic
data message is offered or used in evidence (REE, * In assessing the evidentiary weight of an electronic document, the
Sec. 1). following factors may be considered:
IX. RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC)

11
(c) The integrity of the information and communication system in the Supreme Court shall be considered as a public document and
which it is recorded or stored, including but not limited to the proved as a notarial document under the Rules of Court. (REE, Rule
hardware and computer programs or software used as well as 5, Sec. 2).
programming errors; • Rules on Electronic Evidence
(d) The familiarity of the witness or the person who made the entry (A.M. No. 01-7-01-SC)
with the communication and information system; c) Authentication of electronic documents and electronic signatures
• Authentication of electronic signatures.
* In assessing the evidentiary weight of an electronic document, the o An authenticated electronic signature under the REE is
following factors may be considered: admissible in evidence as the functional equivalent of the
(e) The nature and quality of the information which went into the signature of a person on a written document. (REE, Rule 6,
communication and information system upon which the electronic Sec. 1).
data message or electronic document was based; or o An electronic signature may be authenticated in any of the
(f) Other factors which the court may consider as affecting the following manner:
accuracy or integrity of the electronic document or electronic data (a) By evidence that a method or process was utilized to establish a
message. (REE, Rule 7, Sec. 1). digital signature and verify the same;
*Integrity of an information and communication system (b) By any other means provided by law; or
In any dispute involving the integrity of the information and (c) By any other means satisfactory to the judge as establishing the
communication system in which an electronic document or genuineness of the electronic signature. (REE, Rule 6, Sec. 2).
electronic data message is recorded or stored, the court may d) Electronic documents vis-a-vis the hearsay rule
consider, among others, the following factors: • Business records as exception to the hearsay rule
(a) Whether the information and communication system or other – “Business records” include records of any
similar device was operated in a manner that did not affect the business, institution, association, profession,
integrity of the electronic document, and there are no other occupation, and calling of every kind, whether or
reasonable grounds to doubt the integrity of the information and not conducted for profit, or for legitimate or
communication system; illegitimate purposes. (REE, Rule 2, Sec. 1[b]).
(b) Whether the electronic document was recorded or stored by a • Inapplicability of the hearsay rule. – A memorandum,
party to the proceedings with interest adverse to that of the party report, record or data compilation of acts, events,
using it; or conditions, opinions, or diagnoses
(c) Whether the electronic document was recorded or stored in the – made by electronic, optical or other similar
usual and ordinary course of business by a person who is not a party means at or near the time of or from
to the proceedings and who did not act under the control of the transmission or supply of information by a
party using it. (REE, Rule 7, Sec. 2). person with knowledge thereof, and
Method of Proof – kept in the regular course or conduct of a
All matters relating to the admissibility and evidentiary weight of an business activity, and
electronic document may be established by an affidavit stating facts – such was the regular practice to make the
of direct personal knowledge of the affiant or based on authentic memorandum, report, record, or data
records (REE, Rule 9). compilation by electronic, optical or similar
• The affidavit must affirmatively show the competence of the means, all of which are shown by the testimony
affiant to testify on the matters contained therein (REE, Rule 9, of the custodian or other qualified witnesses, is
Sec. 1). excepted from the rule on hearsay evidence.
• The affiant shall be made to affirm the contents of the affidavit (REE, Rule 8, Sec. 1).
in open court and may be cross-examined as a matter of right – However, the hearsay rule may be applied to
by the adverse party (REE, Rule 9, Sec. 2). business records as defined under the REE by
c) Authentication of electronic documents and electronic signatures presenting evidence of the untrustworthiness of:
• Authentication of electronic documents • the source of information;
• Manner of authentication: Before any private electronic • the method or circumstances of the
document offered as authentic is received in evidence, its preparation, transmission or storage
authenticity must be proved by any of the following thereof. (REE, Rule 8, Sec. 2).
means: e) Audio, photographic, video and ephemeral evidence
(a) by evidence that it had been digitally signed by the person • Audio, video and similar evidence shall be proven:
purported to have signed the same; – by the testimony of a person who was a party to
(b) by evidence that other appropriate security procedures or the same or has personal knowledge thereof.
devices as may be authorized by the Supreme Court or by law for – In the absence or unavailability of such
authentication of electronic documents were applied to the witnesses, other competent evidence may be
document; or admitted.
(c) by other evidence showing its integrity and reliability to the – If the foregoing communications are recorded or
satisfaction of the judge. (REE, Rule 5, Sec. 2). embodied in an electronic document, then the
• Rules on Electronic Evidence provisions of Rule 5 on authentication of
(A.M. No. 01-7-01-SC) electronic documents shall apply.
c) Authentication of electronic documents and electronic signatures *Meaning of “ephemeral electronic communication”
• Authentication of electronic documents “Ephemeral electronic communication” refers to telephone
Proof of electronically notarized document: a document conversations, text messages, chatroom sessions, streaming audio,
electronically notarized in accordance with the rules promulgated by
12
streaming video, and other electronic forms of communication the • Authentication and Proof of Documents
evidence of which is not recorded or retained.(REE, Rule 2, Sec. 1[k]). b) Public and private documents
X. PAROL EVIDENCE RULE • For the purpose of their presentation evidence, documents
• Parol Evidence refers to any evidence aliunde, whether are either (a) public or (b) private. (Rule 132, Sec. 19).
oral or written, which is intended or tends to vary or
contradict a complete and enforceable agreement • The classification of documents under the Rules of Court is
embodied in a document. different from the classification of documents into official,
a) Application of the parol evidence rule public, commercial and private under the RPC (Regalado,
• The following are the requisites for the application of parol p. 803).
evidence rule: • Authentication and Proof of Documents
– There is a valid contract; b) Public and private documents
– The terms of agreement reduced to writing; • Public documents are:
– There is an issue as to the terms of agreement; (a) The written official acts, or records of the official acts of the
– The dispute is between parties and their sovereign authority, official bodies and tribunals, and public officers,
successors in interest (Rule 130, Sec. 9). whether of the Philippines, or of a foreign country;
• The written agreement is already considered to contain all (b) Documents acknowledge before a notary public except last wills
the things agreed upon. Being a final agreement any and testaments; and
extraneous evidence or parol evidence is inadmissible for (c) Public records, kept in the Philippines, of private documents
any of the following purposes: (a) to modify, (b) to explain; required by law to the entered therein (Rule 132, Sec. 19, par. 2).
or (c) to add to the terms of the written agreement. • Authentication and Proof of Documents
b) When parol evidence can be introduced b) Public and private documents
• A party may present evidence to – • All other writings are private (Rule 132, Sec. 19, par. 3).
a. Modify; • As a general rule, public documents need not be
b. Explain; or authenticated; private documents have to be
c. Add to the terms of written agreement if he puts in issue in his authenticated to be admissible in evidence. (J. Benipayo,
pleading: Evidence: Basic Principles and Selected Problems)
– An intrinsic ambiguity, mistake or imperfection in • Authentication and Proof of Documents
the written agreement; c) When a private writing requires authentication; proof of a
– The failure of the written agreement to express private writing
the true intent and agreement of the parties • Before any private document offered as authentic is
thereto; received in evidence, its due execution and authenticity
– The validity of the written agreement; or must be proved either:
– The existence of other terms agreed to by the (a)By anyone who saw the document executed or written; or
parties or their successors in interest after the (b)By evidence of the genuineness of the signature or handwriting of
execution of the written agreement. (Rule 130, the maker (Rule 132, Sec. 20, par. 1).
Sec. 9) • Any other private document need only be identified as that
b) When parol evidence can be introduced which it is claimed to be. (Rule 132, Sec. 20, par. 2).
• Example: The vendee of a parcel of land can validly tell the • Authentication and Proof of Documents
court that the deed of sale subject of litigation is not really d) When evidence of authenticity of a private writing is not
one of sale but one or mortgage as long as he puts in issue required (ancient documents)
in the pleadings, any of the matters enumerated above. • Evidence of authenticity is not required when:
• The Parol Evidence Rule does not apply, and may not – Private document is more than thirty years old;
properly be invoked by either party to the litigation against – Produced from the custody in which it would
the other, where at least one party to the suit is not a party naturally be found if genuine; and
or privy of a party to the written instrument in question – Is unblemished by any alterations or
and does not base a claim or assert a right originating in circumstances of suspicion, no other evidence of
the instrument of the relation established thereby. Thus, if its authenticity need be given (Rule 132, Sec. 21).
one of the parties is a complete stranger to the contract, • Authentication and Proof of Documents
he is not bound by the rule. (See Rule 130, Sec. 9, par. 1) e) How to prove genuineness of a handwriting
b) When parol evidence can be introduced • The handwriting of a person may be proved by:
• Basis of Parol Evidence Rule 1. Testimony of:
– Parol evidence is based upon the consideration – Witness who actually saw the person writing the
that when the parties have reduced their instrument (Rule 132, Sec. 20a).
agreement on a particular matter into writing, all – Witness familiar with such handwriting (Rule
their previous and contemporaneous 132, Sec. 22) and who can give his opinion
agreements on the matter are merged therein. thereon, such opinion being exception to opinion
(De Guzman v. Calma, 100 Phil 1008). rule (Rule 130, Sec 50b).
a) Meaning of authentication – Expert witness (Rule 130, Sec. 49).
• Authentication is the act or mode of giving authenticity to 2. Comparison by the court of the questioned handwriting and
a statute, authority or other written instrument, or a admitted genuine specimens thereof (Rule 132, Sec. 22).
certified copy thereof, so as to render it legally admissible • Authentication and Proof of Documents
in evidence (Herrera, Remedial Law Vol. VI, 1999 ed., p. e) How to prove genuineness of a handwriting
262).
13
• No preference rule - The law makes no preference, much • Authentication and Proof of Documents
less distinction among and between the different means h) Public record of a public document
stated in the Rules of Court in proving the handwriting of a • Proof of public records of private documents
person. (Domingo v. Domingo, G.R. No. 150897, 11 April 1. The original record; (Rule 132, Sec. 27)
2005) 2. Copy of the original record, attested by the legal custodian of the
• Probative value of opinions of handwriting experts - record, with an appropriate certificate that such officer has the
Courts are not bound to give probative value or evidentiary custody. (Rule 132, Sec. 27)
value to the opinions of handwriting experts, as resort to • Authentication and Proof of Documents
handwriting experts is not mandatory. (Bautista v. Castro, i) Proof of lack of record
G.R. No. 61260, 17 February 1992, 206 SCRA 305, 312) • A written statement signed by an officer having the
• Authentication and Proof of Documents custody of an official record or by his deputy that after
f) Public documents as evidence; proof of official record diligent search no record or entry of a specified tenor is
• Public documents as evidence found to exist in the records of his office, accompanied by
1. Entries in public records made in the performance of a duty by a a certificate as above provided, is admissible as evidence
public officer are prima facie evidence of the facts therein stated. that the records of his office contain no such record or
(Rule 132, Sec. 23). entry (Rule 132, Sec. 28).
2. All other public documents are evidence, even against a third • Authentication and Proof of Documents
person, of: j) How a judicial record is impeached
• the fact which gave rise to their • Any judicial record may be impeached by evidence of:
execution; (a) want of jurisdiction in the court or judicial officer;
• and of the date of the document. (Rule (b) collusion between the parties; or
132, Sec. 23). (c) fraud in the party offering the record, in respect to the
• Authentication and Proof of Documents proceedings (Rule 132, Sec. 29.).
f) Public documents as evidence; proof of official record • Authentication and Proof of Documents
• Proof of official records k) Proof of notarial documents
– The record of public documents (referred to in • Notarial documents may be presented in evidence without
paragraph Rule 132, Sec. 19 [a]) may be further proof, the certificate of acknowledgment being
evidenced by: prima facie evidence of the execution of the instrument or
1. An official publication thereof; or document involved (Rule 132, Sec. 30).
2 By a copy attested by the officer having the legal custody of the • Authentication and Proof of Documents
record, or by his deputy. l) How to explain alterations in a document
• Authentication and Proof of Documents • A party may show that alteration was:
g) Attestation of a copy 1. made by another, without his concurrence;
• Attestation requirements. 2. was made with the consent of the parties affected by it or was
– Primary requisites otherwise properly or innocent made; or
1. Statement of correctness - The attestation must state, in 3. that the alteration did not change the meaning or language of the
substance, that the copy is a correct copy of the original, or a specific instrument (Rule 132, Sec. 31).
part thereof, as the case may be. (Rule 132, Sec. 25) • Authentication and Proof of Documents
2. Official Seal - The attestation must be under the official seal of the m) Documentary evidence in an unofficial language
attesting officer, if there be any, or if he be the clerk of a court having • Article XIV, Sec. 3 1935 Constitution – English and Spanish
a seal, under the seal of such court. (Rule 132, Sec. 25) are official languages.
• Authentication and Proof of Documents • Article XV, Sec. 3(3), 1973 Constitution – English and
g) Attestation of a copy Filipino. (P.D. No. 155 – Spanish language shall continue to
• Attestation requirements. be recognized as an official language while important
– Requisites for foreign public documents documents in government files are in the Spanish language
1. Certificate of custody - If the record is not kept in the Philippines and not translated into Pilipino or English)
the copy must be accompanied by a certificate that such officer has • Article XIV, Sec. 7, 1987 Constitution - the official languages
the custody. The certificate may be made by a secretary of the are Filipino and, until otherwise provided by law, English,
embassy or legation, consul general, consul, vice consul, or consular with the regional languages as auxiliary official languages
agent or by any officer in the foreign service of the Philippines in the region
stationed in the foreign country in which the record is kept (Rule • TESTIMONIAL EVIDENCE
132, Sec. 24). • Qualifications of a Witness
2. Authentication – the certificate must be authenticated by the seal • All persons who can perceive, and perceiving, can make
of the office of the issuer (Rule 132, Sec. 24). their known perception to others, may be witnesses (Rule
• Authentication and Proof of Documents 130, Sec. 20).
g) Attestation of a copy • Religious or political belief, interest in the outcome of the
• Attestation requirements. case, or conviction of a crime unless otherwise provided by
– Requisites for foreign public documents law, shall not be ground for disqualification (Rule 130, Sec.
Absent the attestation of the officer having the legal custody of the 20).
records and the certificate to that effect by a Philippine foreign • Competency versus Credibility of a Witness
service officer, a mere copy of the foreign document is NOT • Competency: The presence of those characteristics, or the
admissible as evidence to prove foreign law (Wildvalley Shipping Co. absence of those disabilities, which render a witness
Ltd. v. CA, G.R. No. 119602, 6 October 2000).
14
legally fit and qualified to give testimony in a court of 1. Valid marriage;
justice. 2. Other spouse is party to the action.
• Credibility: Worthiness of belief; that quality in a witness Waiver of spousal immunity:
which renders his evidence worthy of belief. After the – The objection to the competency of the spouse
competence of a witness is allowed, the consideration of must be made when he or she is first offered as
his credibility arises. a witness. Failure to make a timely objection is
• Competency versus Credibility of a Witness tantamount to waiver of spousal immunity
• A competent witness is one who is not excluded by law or (People v. Pansensoy, G.R. No. 140634. 12
the Rules of Court from being a witness. Competency is September 2002).
determined by the prevailing exclusionary rules of • Disqualifications of Witnesses
evidence. b) By reason of marriage
• A credible witness is one who being competent to give Spousal immunity in cases where a spouse is jointly charged with
evidence, is worthy of belief (Black’s Law Dictionary). other accused:
• It is well-settled that the determination of the credibility • The testimony of a wife of an accused, when timely
of the witnesses is correctly assigned to the trial court, objected to, is inadmissible against the latter. However, the
which is in the best position to observe the demeanor and same may be admitted as against other persons jointly
bodily movements of all the witnesses (People v. Banzuela, charged in said case. (People v. Quidato, Jr. G.R. No.
G.R. No. 202060, 11 December 2013). 140634, 12 September 2002).
• Disqualifications of Witnesses • Disqualifications of Witnesses
a) By reason of mental capacity or immaturity b) By reason of marriage
• The following persons cannot be witnesses: Estranged Spouses
(a) Those whose mental condition, at the time of their • The disqualification does not apply in case of estranged
production for examination, is such that they are incapable of spouses. Where the marital and domestic relations are so
intelligently making known their perception to others; strained that there is no more harmony to be preserved
(b) Children whose mental maturity is such as to render them nor peace and tranquility which may be disturbed, the
incapable of perceiving the facts respecting which they are examined reason based upon such harmony and tranquility fails. In
and of relating them truthfully (Rule 130, Sec. 21) such a case, identity of interests disappears and the
• Disqualifications of Witnesses consequent danger of perjury based on that identity is
a) By reason of mental capacity or immaturity non-existent. Likewise, in such a situation, the security
• Minority, alone, is not a sufficient ground for and confidences of private life, which the law aims at
disqualification. Leeway should be given to witnesses who protecting, will be nothing but ideals, which through their
are minors, especially when they are relating past incidents absence, merely leave a void in the unhappy home
of abuse (People v. Dominguez, G.R. No. 191065, 13 June (Alvarez v. Ramirez, G.R. No. 143439, 14 October 2005).
2011). Thus, a child may still be a witness as long as the • Disqualifications of Witnesses
following are shown: c) By reason of death or insanity of adverse party
(a) capacity of observation; (Dead Man’s Statute or Survivor’s Disqualification Rule)
(b) capacity of recollection; and • Cases where applicable:
(c) capacity of communication (People v. Mendoza, G.R. (i) cases against an executor or administrator or other representative
No. 113791, 22 February 1996, 254 SCRA 18). of a deceased person upon a claim or demand against the estate of a
• Disqualifications of Witnesses deceased person; or
a) By reason of mental capacity or immaturity (ii) against a person of unsound mind, upon a claim or demand
• Mental retardation per se does not affect credibility against the estate of such person of unsound mind (Rule 130, Sec.
(People v. Rosales, G.R. No. 197537, 24 July 2013). 23).
• Mental unsoundness of the witness at the time of the • Disqualifications of Witnesses
event testified to affects only his or her credibility. As long c) By reason of death or insanity of adverse party
as the witness can convey ideas by words or signs and • To Whom or When not applicable:
gives sufficiently intelligent answers to the questions (i) Ordinary witnesses, who are not the plaintiff, assignor of plaintiff,
propounded, she is a competent witness even if she is a or person in whose behalf the case is prosecuted. (Bajenting v.
mental retardate (People v. Maceda, G.R. No. 138805, 28 Bañez, G.R. No. 166190, 20 September 2006).
February 2001, 353 SCRA 228). (ii) Officers and/or stockholders of a corporation are not
• Disqualifications of Witnesses disqualified from testifying, for or against a corporation which is a
b) By reason of marriage party to an action upon a claim or demand against the estate of a
• General Rule: During their marriage, spouses may not deceased person, as to any matter of fact occurring before the death
testify for or against the other without the consent of the of such deceased person. (Lichauco v. Atlantic Gulf, G.R. No. L-2016,
affected spouse. (Rule 130, Sec. 22). 23 August 1949).
• Exceptions: • Disqualifications of Witnesses
– In a civil case by one against the other; or c) By reason of death or insanity of adverse party
– In a criminal case for a crime committed by one • To Whom or When not applicable:
against the other or the latter's direct (iii) When there is an imputation of fraud against the deceased
descendants or ascendants. (Rule 130, Sec. 22). which had been established beyond all doubt, the plaintiff is not
• Disqualifications of Witnesses barred from testifying to such fraud. The Dead Man’s Statute is not
b) By reason of marriage designed to shield wrongdoers and to render a plaintiff incompetent
Requisites for spousal immunity:
15
to testify to fraudulent transactions of the deceased (Ong Chua v. • Disqualifications of Witnesses
Carr, 53 Phil. 975; Go Chi Gun v. Co Cho, 96 Phil. 622). • Disqualifications of Witnesses
(iv) When the plaintiff is the executor, administrator or legal d) By reason of privileged communications
representative of the deceased, or the person of unsound mind, the (b) Attorney-Client Privilege Rule
defendant or defendants are free to testify against the plaintiff • An attorney cannot, without the consent of his client, be
(Tongco v. Vianzon, 50 Phil. 698). examined as to any communication made by the client to
• Disqualifications of Witnesses him, or his advice given thereon in the course of, or with a
c) By reason of death or insanity of adverse party view to, professional employment, nor can an attorney's
• To Whom or When not applicable: secretary, stenographer, or clerk be examined, without the
(v) When the survivor's testimony refers to a negative fact. consent of the client and his employer, concerning any fact
(Mendezona v. Vda. de Goitia, 54 Phil. 557). the knowledge of which has been acquired in such
(vi) When the survivor's testimony is favorable to the deceased capacity.
(Icard v. Marasigan, 71 Phil. 419). • Disqualifications of Witnesses
(vii) Testimony on transactions with agent of deceased or d) By reason of privileged communications
incompetent party (Goni, et al., v. Court of Appeals, et al., 144 SCRA (b) Attorney-Client Privilege Rule
231). – Requisites:
• Disqualifications of Witnesses (1) Relationship of lawyer and client;
c) By reason of death or insanity of adverse party (2) Privilege is invoked with respect to a confidential communication
• How protection of the dead man’s statute is waived: between them in the course of, or with the view of professional
(i) By not objecting to plaintiff's testimony on prohibited matters employment;
(Marella v. Reyes, 12 Phil. 1). (3) Client has not given his consent to the disclosure of the
(ii) By cross-examining the plaintiff on prohibited matters. (Tongco communication. (Rule 130, Sec. 24[b]; Disini v. Sandiganbayan, G.R.
v. Vianzon, 50 Phil. 698). No. 180564, 22 June 2010).
(iii) By calling witnesses to testify on prohibited matters. (Arroyo v. • Disqualifications of Witnesses
Azur, 76 Phil. 493). d) By reason of privileged communications
(iv) When the plaintiff's deposition is taken by the representative of (b) Attorney-Client Privilege Rule
the estate or when counsel for the representative cross-examined  Persons covered:
the plaintiff as to matters occurring during the deceased's lifetime (1) The attorney;
(Goni, et al., v. Court of Appeals, et al., 144 SCRA 231). (2) The attorney's secretary, stenographer, or clerk be examined,
• Disqualifications of Witnesses without the consent of the client and his employer, concerning any
• Disqualifications of Witnesses fact the knowledge of which has been acquired in such capacity
d) By reason of privileged communications (Rule 130, Sec. 24[b]).
• (a) Husband and wife (Marital Privilege Rule)  Waiver of protection:
 The husband or the wife, during or after the The client may waive the protection of the Attorney-Client Privilege
marriage, cannot be examined without the Rule. If the client waives the privilege, even his attorney cannot
consent of the other as to any communication invoke it.
received in confidence by one from the other • Disqualifications of Witnesses
during the marriage except in a civil case by one d) By reason of privileged communications
against the other, or in a criminal case for a crime (b) Attorney-Client Privilege Rule
committed by one against the other or the • The Regala Doctrine
latter's direct descendants or ascendants. • General rule: A lawyer may NOT
• Disqualifications of Witnesses invoke the privilege and refuse to
d) By reason of privileged communications divulge the name or identity of his
• (a) Husband and wife (Marital Privilege Rule) client.
– Applicability • Exceptions: (1) When a strong
• Scope of protection extends during or probability exists that revealing the
after the marriage. (Rule 130, Sec. 24 name would implicate that person in
[a]). the very same activity for which he
• Since the confidential nature of the sought the lawyer’s advice; (2) When
communication is the basis of the disclosure would open the client to
privilege, the same cannot be invoked liability; (3) When the name would
where it was not intended to be kept in furnish the only link that would form
confidence by the spouse who received the chain of testimony necessary to
the same, as in the case of a dying convict (Regala v. Sandiganbayan, G.R.
declaration of the husband to his wife No. 105938, 20 September 1996).
as to who was his assailant. • Disqualifications of Witnesses
• Disqualifications of Witnesses d) By reason of privileged communications
d) By reason of privileged communications (c) Physician-Patient Privilege
• (a) Husband and wife (Marital Privilege Rule) • A person authorized to practice medicine, surgery or
– Waiver of protection: obstetrics cannot in a civil case, without the consent of the
(1) Failure to object to presentation; or patient, be examined as to any advice or treatment given
(2) Through any conduct that may be construed as implied consent by him or any information which he may have acquired in
(Lacurom v. Jacoba, A.C. No. 5921, 10 March 2006). attending such patient in a professional capacity, which
16
information was necessary to enable him to act in capacity, professional character in the course of discipline enjoined
and which would blacken the reputation of the patient. by the church to which the minister or priest belongs.
• Disqualifications of Witnesses • Disqualifications of Witnesses
d) By reason of privileged communications d) By reason of privileged communications
(c) Physician-Patient Privilege (e) State Secrets Rule
– Requisites: – A public officer cannot be examined during his
(1) The physician is authorized to practice medicine, surgery or term of office or afterwards, as to
obstetrics; communications made to him in official
(2) The information was acquired or the advice or treatment was confidence, when the court finds that the public
given by him in his professional capacity for the purpose of treating interest would suffer by the disclosure.
and curing the patient – Public interest is paramount. The rule that a
(3) The information, advice or treatment, if revealed, would blacken public officer cannot be examined as to
the reputation of the patient; communications made to him in official
(4) The privilege is invoked in a civil case whether the patient is a confidence does not apply when there is nothing
party thereto or not (Rule 130, Sec. 24 [c]). to show that the public interest would suffer by
• Disqualifications of Witnesses the disclosure in question (Banco Filipino v.
d) By reason of privileged communications Monetary Board, 142 SCRA 523).
(c) Physician-Patient Privilege • Disqualifications of Witnesses
• Meaning of “professional capacity” d) By reason of privileged communications
– The physician may be considered to be acting in (f) Parental and Filial Privilege Rule
his professional capacity when he attends to the • No person may be compelled to testify against his parents,
patient for curative, preventive, or palliative other direct ascendants, children or other direct
treatment. Thus, only disclosures which would descendants (Rule 130, Sec. 25).
have been made to the physician to enable him • No descendant shall be compelled, in a criminal case, to
"safely and efficaciously to treat his patient" are testify against his parents and grandparents, except when
covered by the privilege. (Lim v. Court of such testimony is indispensable in a crime against the
Appeals, G.R. No. 91114, 25 September 1992). descendant or by one parent against the other (Family
• Disqualifications of Witnesses Code, Article 215).
d) By reason of privileged communications • Disqualifications of Witnesses
(c) Physician-Patient Privilege d) By reason of privileged communications
• Waiver of protection (g) Newsman’s Privilege
– This privilege belongs to the patient, so that it is • The publisher, editor or duly accredited reporter of any
only he that can claim or waive it. It is waivable newspaper, magazine or periodical of general circulation
expressly or impliedly (See Penn. Mutual Life Ins. cannot be compelled to reveal the source of any news
Co. v. Wiler, 100 Ind. 92). report or information appearing in said publication which
– Example: Under Rule 28, the court may order a was related in confidence to him, unless the court or a
party to submit to a physical or mental House or committee of Congress finds that such revelation
examination, so long as the mental or physical is demanded by the security of the State (See R.A. No. 53,
condition is in dispute. The party examined may as amended by R.A. No. 1477, the “Shield Law”).
request a report of the examination. By doing so, • Disqualifications of Witnesses
he waives any privilege he may have in that d) By reason of privileged communications
action regarding the testimony of every other (h) Privilege under the Labor Code
person who has examined him in respect of the
same examination (Rule 28, Sec. 4). • All information and statements made at conciliation
• Disqualifications of Witnesses proceedings shall be treated as privileged communications
d) By reason of privileged communications and shall not be used as evidence in the NLRC, and
(c) Physician-Patient Privilege conciliators and similar officials shall not testify in any
– Information elicited during consultation with a court or body regarding any matter taken up at the
physician in the presence of third parties conciliation proceedings conducted by them (Labor Code,
removes such information from the mantle of Art. 233).
the privilege (Lim v. Court of Appeals, G.R. No. • Disqualifications of Witnesses
91114, 25 September 1992). d) By reason of privileged communications
– What is protected is the tenor of the (i) Privilege under Alternative Dispute Resolution (ADR) laws
consultation. The number of times a patient • Mediation
consulted with his doctor is not privileged. (Lim – Information obtained through mediation shall be
v. Court of Appeals, supra). privileged and confidential (R.A. No. 9285, Sec.
– Disqualifications of Witnesses 9[a]).
d) By reason of privileged communications – A party, a mediator, or a nonparty participant
(d) Minister/Priest – Penitent Privilege may refuse to disclose and may prevent any
• A minister or priest cannot, without the consent of the other person from disclosing a mediation
person making the confession, be examined as to any communication (R.A. No. 9285, Sec. 9[b]).
confession made to or any advice given by him in his • Disqualifications of Witnesses
d) By reason of privileged communications
17
(i) Privilege under Alternative Dispute Resolution (ADR) laws (5) Not to give an answer which will tend to degrade his
• Mediation reputation, unless it be to the very fact at issue or to a fact from
– Confidential information obtained during which the fact in issue would be presumed. But a witness must
mediation shall not be subject to discovery and answer to the fact of his previous final conviction for an offense.
shall be inadmissible in any adversarial (Rule 132, Sec. 3).
proceeding, whether judicial or quasi-judicial. • Examination of a Witness
However, evidence or information that is a) Rights and obligations of a witness
otherwise admissible or subject to discovery • Obligations:
does not become inadmissible or protected from 1) A witness must answer questions, although his
discovery solely by reason of its use in a answer may tend to establish a claim against him
mediation (R.A. No. 9285, Sec. 9[b]). (Rule 132, Sec. 3, par. 1).
• Disqualifications of Witnesses 2) A witness must answer to the fact of his previous
d) By reason of privileged communications final conviction for an offense (Rule 132, Sec. 3,
(i) Privilege under Alternative Dispute Resolution (ADR) laws par. 5).
• Mediation 3) A witness must testify under oath or affirmation
– In such an adversarial proceeding, the following (Rule 132, Sec. 1).
persons involved or previously involved in a • Examination of a Witness
mediation may not be compelled to disclose b) Order in the examination of an individual witness
confidential information obtained during i. Direct examination
mediation: (1) the parties to the dispute; (2) the
mediator; (3) the counsel for the parties; (4) the – Direct examination is the examination-in-chief of
nonparty participants; (5) any persons hired or a witness by the party.
engaged in connection with the mediation as – Scope: facts relevant to the issue (Rule 132, Sec.
secretary, stenographer, clerk or assistant; and 4).
(6) any other person who obtains or possesses – Judicial Affidavit Rule (A.M. No. 12-8—SC) –
confidential information by reason of his/her judicial affidavits of witnesses shall take the
profession (R.A. No. 9285, Sec. 9[c]). place of their direct testimonies (Sec. 2)
• Disqualifications of Witnesses • Examination of a Witness
d) By reason of privileged communications b) Order in the examination of an individual witness
(i) Privilege under Alternative Dispute Resolution (ADR) laws i. Direct examination
• Arbitration • Judicial Affidavit Rule (A.M. No. 12-8-8-SC) –
– The arbitration proceedings, including the – Civil Case: The parties shall file with the court
records, evidence and the arbitral award, shall be and serve on the adverse party, personally or by
considered confidential and shall not be licensed courier service, not later than five days
published except (1) with the consent of the (5) before pre-trial or preliminary conference or
parties, or (2) for the limited purpose of the scheduled hearing with respect to motions
disclosing to the court of relevant documents in and incidents, the following:
cases where resort to the court is allowed (1) The judicial affidavits of their witnesses, which shall take the
herein. place of such witnesses' direct testimonies; and
• Disqualifications of Witnesses (2) The parties' documentary or object evidence, if any, which shall
d) By reason of privileged communications be attached to the judicial affidavits (Sec. 2)
(i) Privilege under Alternative Dispute Resolution (ADR) laws • Examination of a Witness
• Arbitration b) Order in the examination of an individual witness
– Provided, however, that the court in which the i. Direct examination
action or the appeal is pending may issue a • Judicial Affidavit Rule (A.M. No. 12-8-8-SC) –
protective order to prevent or prohibit disclosure – Criminal Case: The Judicial Affidavit Rule shall
of documents or information containing secret apply to all criminal actions:
processes, developments, research and other (1) Where the maximum of the imposable penalty does not exceed
information where it is shown that the applicant (6) six years;
shall be materially prejudiced by an authorized (2) Where the accused agrees to the use of judicial affidavits,
disclosure thereof (R.A. No. 9285, Sec. 23). irrespective of the penalty involved; or
• Examination of a Witness (3) With respect to the civil aspect of the actions, whatever the
a) Rights and obligations of a witness penalties involved are (Sec. 9).
• Rights: • Examination of a Witness
(1) To be protected from irrelevant, improper, or insulting b) Order in the examination of an individual witness
questions, and from harsh or insulting demeanor; i. Direct examination
(2) Not to be detained longer than the interests of justice • Judicial Affidavit Rule (A.M. No. 12-8-8-SC) –
require; – Criminal Case:
(3) Not to be examined except only as to matters pertinent to – The prosecution shall submit the judicial
the issue; affidavits of its witnesses not later than five days
(4) Not to give an answer which will tend to subject him to a (5) before the pre-trial, serving copies if the
penalty for an offense unless otherwise provided by law; or same upon the accused (Sec. 9).

18
– If the accused desires to be heard on his defense (1) test witness’ accuracy and truthfulness and freedom from
after receipt of the judicial affidavits of the interest or bias, or the reverse; and
prosecution, he shall have the option to submit (2) to elicit all important facts bearing upon the issue.
his judicial affidavit as well as those of his • Examination of a Witness
witnesses within ten (10) days from receipt of b) Order in the examination of an individual witness
such affidavits. These affidavits shall serve as v. Recalling the witness
direct testimonies of the accused and his • After the examination of a witness by both sides has been
witnesses when they appear before the court to concluded, the witness cannot be recalled without leave
testify (Sec. 9) of the court. The court will grant or withhold leave in its
• Examination of a Witness discretion, as the interests of justice may require. (Rule
b) Order in the examination of an individual witness 132, Sec. 9)
ii. Cross examination • A showing of some concrete, substantial grounds for
• Scope: recall, i.e. such as particularly identified material points
(1) any matters stated in the direct examination; were not covered, or particular vital documents were not
(2) or connected therewith (Rule 132, Sec. 5). presented to the witness or the cross-examination was
(3) If unwilling/hostile/adverse party witness – cross is limited to conducted in so inept manner as to result in a virtual
matters stated during direct examination. (Rule 132, Sec. 12) absence thereof (People v. Rivera, 200 SCRA 786).
• Purpose: • Examination of a Witness
(1) test witness’ accuracy and truthfulness and freedom from • Judge’s participation during examination of a witness
interest or bias, or the reverse; and • A judge who presides at a trial is not a mere referee. He
(2) to elicit all important facts bearing upon the issue. (Rule 132, must actively participate therein by directing counsel to
Sec. 5). the facts in dispute, by asking clarifying questions, and by
• Examination of a Witness showing an interest in a fast and fair trial (Clarin v. Yatco,
b) Order in the examination of an individual witness 56 O.G. 7042, Nov. 14, 1960).
ii. Cross examination • He can interrogate witnesses to elicit the truth, to obtain
• Nature of right of cross-examination. clarification, or to test their credibility (People v Moreno,
1. Fundamental right - The right of a party to confront and cross- 83 Phil. 286).
examine opposing witnesses in a judicial litigation, be it criminal or • However, this power must be exercised by the court
civil in nature, or in proceedings before administrative tribunals with sparingly and judiciously (People v. Ferrer, 44 O.G. 112).
quasi-judicial powers, is a fundamental right which is part of due • The judge cannot curtail counsel's right to interrogate
process. (Savory Luncheonette v. Lakas ng Manggagawang Pilipino, witnesses. (People v. Bedia, 83 Phil. 909)
et al., 1975, 62 SCRA 258) • Examination of a Witness
2. Personal right- The right to cross-examination is a personal right Recantation of a witness
which may be expressly or impliedly waived. (Savory Luncheonette v. • Courts look with disfavor upon retractions, because they
Lakas ng Manggagawang Pilipino, et al., 1975, supra). can easily be obtained from witnesses through
• Examination of a Witness intimidation or for monetary considerations. Hence, a
b) Order in the examination of an individual witness retraction does not necessarily negate an earlier
ii. Cross examination declaration. They are generally unreliable and looked
• Lack of cross-examination; effect upon with considerable disfavor by the courts (People v.
When cross examination is not and cannot be done or completed Bulagao, G.R. No. 184757, 5 October 2011).
due to causes attributable to the party who offered the witness, the • The rule is settled that in cases where previous testimony
uncompleted testimony is thereby rendered incomplete and should is retracted and a subsequent different, if not contrary,
be stricken from the record. (Bachrach Motor Co., Inc., v. Court of testimony is made by the same witness, the test to decide
Industrial Relations, 86 SCRA 27). which testimony to believe is one of comparison coupled
• Examination of a Witness with the application of the general rules of evidence
b) Order in the examination of an individual witness (People v. Bulagao, G.R. No. 184757, 5 October 2011)
iii. Re-direct examination • Examination of a Witness
• Scope: c) Leading and misleading questions
(1) any matter covered during cross-examination; • A leading question is a question which suggests to the
(2) Matters not covered during cross, upon the court’s discretion. witness the answer which the examining party desires
(Rule 132, Sec. 6). (Rule 132, Sec. 10).
• Purpose: • General rule: A leading question is not allowed.
(1) to explain; or • Exceptions:
(2) to supplement his answers given during the cross-examination. (a) On cross examination;
(Rule 132, Sec. 6). (b) On preliminary matters;
• Examination of a Witness (c) When there is difficulty in getting direct and intelligible
b) Order in the examination of an individual witness answers from a witness who is ignorant, or a child of tender years, or
iv. Re-cross examination is of feeble mind, or a deaf-mute;
• Scope: (d) Of an unwilling or hostile witness; or
(1) Any matter covered during re-direct examination; (e) Of a witness who is an adverse party or an officer, director,
(2) Other matters, upon the court’s discretion. (Rule 132, Sec. 7). or managing agent of a public or private corporation or of a
• Purpose: partnership or association which is an adverse party. (Rule 132, Sec.
10).
19
• Examination of a Witness • This arises from the presumption that the witness is
c) Leading and misleading questions truthful and of good character, hence the necessity of
• A misleading question is one which assumes as true a fact initially showing such traits is unnecessary (Riano, p. 331).
not yet testified to by the witness, or contrary to that • Examination of a Witness
which he has previously stated. g) Judicial Affidavit Rule (A.M. No. 12-8-8-SC)
• General rule: A misleading question is not allowed. • Under the Judicial Affidavit Rule, judicial affidavits of
• Exceptions: none. witnesses shall take the place of their direct testimonies
• Examination of a Witness (Sec. 2).
d) Methods of impeachment of adverse party’s witness
A party can impeach the adverse party’s witness by (Rule 132, Sec. • The adverse party shall have the right to cross-examine the
11): witness on his judicial affidavit and on the exhibits
(1) Contradictory evidence; attached to the same.
Contradictory Evidence refers to other testimony of the *ADMISSIONS AND CONFESSIONS
same witness, or other evidence presented by him in the same case, a) Res inter alios acta rule
but not the testimony of another witness • The maxim res inter alios acta alteri nocere non debet
(2) Evidence of prior inconsistent statements; literally means “things done between strangers ought not
Prior inconsistent Statements refer to statements, oral or to injure those who are not parties to them” (Black’s Law
documentary, made by the witness sought to be impeached on Dictionary, 5th ed., 1178).
occasions other than the trial in which he is testifying • The res inter alios acta rule has two branches, to wit:
(3) Evidence of bad character; – The rule that the rights of a party cannot be
(4) Evidence of bias, interest, prejudice or incompetence. prejudiced by an act, declaration, or omission of
• Examination of a Witness another, except as hereinafter provided (Rule
d) Methods of impeachment of adverse party’s witness 130, Sec. 128); and
• A party can impeach his own witness only by: – The rule that the evidence that one did or did
(1) Evidence contradictory to his testimony; or not do a certain thing at one time is not
(2) Evidence of prior inconsistent statements. admissible to prove that he did or did not do the
• Exception: However, in the case of hostile witnesses, same or similar thing at another time (Rule 132,
adverse party witnesses or involuntary witnesses, they can Sec. 34).
also be impeached by other modes of impeachment, aside • Admissions and Confessions
from contradictory statements and prior inconsistent b) Admission by a party
statements made by them. (Rule 132, Sec. 12). An admission is an act, declaration or omission of a party as to a
• Examination of a Witness relevant fact which may be given in evidence against him (Rule 130,
e) How the witness is impeached by evidence of inconsistent Sec. 2).
statements (laying the predicate) • Admissions and Confessions
• Before a witness can be impeached by evidence that he • Admission and Confession, Distinguished
has made at other times statements inconsistent with his • Admissions and Confessions
present testimony: c) Admission by a third party
1. the statements must be related to him, with the • General rule: The rights of a party CANNOT be prejudiced
circumstances of the times and places and the persons by an act, declaration, or omission of another (Rule 130,
present; Sec. 28).
2. he must be asked whether he made such statements, and *This is also known as the first branch of the Res Inter Alios Acta Rule
if so, allowed to explain them; and (from “res inter alios acta alteri nocere non debet”).
3. if the statements be in writing, they must be shown to the • Exceptions (a.k.a. “vicarious admissions”)
witness before any question is put to him concerning them 1. Admissions by partner (Rule 130, Sec. 29);
(Rule 132, Sec. 13). 2. Admissions by agent or one who has a joint-interest with the party
• Examination of a Witness (Rule 130, Sec. 29);
e) How the witness is impeached by evidence of inconsistent 3. Admission of co-conspirator (Rule 130, Sec. 30);
statements (laying the predicate) 4. Admission of privy of the party (Rule 130, Sec. 30).
• Non-compliance with the foundational elements for this • Admissions and Confessions
mode will be a ground for an objection based on d) Admission by a co-partner or agent
“improper impeachment.” Over a timely objection, • The act or declaration of a partner or agent of the party
extrinsic evidence of a prior inconsistent statement may be given in evidence against such party under the
without the required foundation is not admissible (Riano, following requirements:
p. 327). (1) That the partnership, agency or joint interest is established by
• Examination of a Witness evidence other than the act or declaration;
f) Evidence of the good character of a witness (2) That the act/declaration must have been within the scope of the
• Evidence of the good character of a witness is not partnership, etc;
admissible until such character has been impeached (Rule (3) Such act/declaration must have been made during the existence
132, Sec. 14). of the partnership, etc (Rule 130, Sec. 29).
• Admissions and Confessions
e) Admission by a conspirator

20
• The act or declaration of a conspirator relating to the (6)The fact admitted or the inference to be drawn from his silence is
conspiracy and during its existence, may be given in material to the issue. (Rule 130, Sec. 32; People v. Ciobal, G.R. No.
evidence against the co-conspirator : 86220, 20 April 1990; People v. Ranario, 49 Phil. 220)
(1) The conspiracy is shown by evidence aliunde; • Admissions and Confessions
(2) The admission was made during the existence of the conspiracy; g) Admission by silence
and • When not applicable
(3) The admission relates to the conspiracy itself.  Accused’s refusal to be a witness during trial
(Rule 130, Sec. 30; Tamargo v. Antiporda, G.R. No. 177727, 19 (Art. III, Sec. 17, 1987 Constitution).
January 2010).  Silence during official investigation (Art. III, Sec.
• Admissions and Confessions 12, 1987 Constitution; U. S. v. De la Cruz, 12 Phil.,
e) Admission by a conspirator 87).
• This rule applies only to extra-judicial acts or declaration  Where the party had a justifiable reason to
of a co-conspirator, but NOT to testimony given on the remain silent [e.g. acting on advice of counsel].
stand at the trial, where the defendant has the (People v. Fong, G.R. No. L-7615, 14 March
opportunity to cross-examine the declarant. And while the 1956).
testimony of accomplices or confederates in crime is • Admissions and Confessions
always subject to grave suspicion, "coming as it does from g) Admission by silence
a polluted source," and should be received with great • When applicable to statements made in writing
caution and doubtingly examined, it is nevertheless The rule on admission by silence applies to adverse statements in
admissible and competent (People v. Serrano, G.R. No. L- writing if the party was carrying on a mutual correspondence with
7973, 27 April 1959). the declarant. However, if there was no such mutual
• Admissions and Confessions correspondence, the rule is relaxed on the theory that while the
f) Admission by privies party would have immediately reacted by a denial if the statements
• Where one derives title to property from another, the act, were orally made in his presence, such prompt response can
declaration, or omission of the latter, while holding the generally not be expected if the party still has to resort to a written
title, in relation to the property, is evidence against the reply (Villanueva v. Balaguer, G.R. No. 180197, 23 June 2009).
former. • Admissions and Confessions
• Requisites: g) Admission by silence
(1) There must be a relation of privity between the party and the • Voluntary re-enactment.
declarant; Voluntary participation in the re-enactment of the crime conducted
(2) The admission was made by the declarant, as predecessor in by police is considered tacit admission of complicity. In such cases,
interest, while holding title to the property; and the accused actually committed positive acts without protest or
(3) The admission is in relation to said property (Rule 130, Sec. 31). denial when he was free to refuse. Had he not actually participated
• Admissions and Confessions in the commission of the offense for which he is charged, he would
f) Admission by privies have protested being made to take part in the reenactment thereof
• Privity in estate may have arisen by: (1) succession; (2) by (People v. Fong, G.R. No. L-7615, 14 March 1956).
acts mortis causa; or (3) by acts inter vivos. • Admissions and Confessions
h) Confessions
• Illustration: AA, father of BB, while the former was alive, • The declaration of an accused acknowledging his guilt of
openly told his acquaintances, that the land where his the offense charged, or of any offense necessarily
house stood had already been sold to CC. Here, the included therein, may be given in evidence against him
declaration by AA is NOT admissible against BB, because (Rule 130, Sec. 33).
the statement was made after AA held title to the land. • Admissions and Confessions
• Admissions and Confessions h) Confessions
g) Admission by silence • Judicial confession - one made before a court in which the
• Requisites: case is pending and in the course of legal proceedings
Any act or declaration made in the presence and within the therein; can sustain conviction by itself.
observation of a party who does or says nothing when the act or • Requisites:
declaration is such as naturally to call for action or comment if not 1. It must be a categorical acknowledgement of guilt;
true, may be given in evidence against him, under the following 2. It must be made by an accused in a criminal case; and
requisites: 3. It is without any exculpatory statement or explanation.
(1) He must have heard or observed the act or declaration of the • Admissions and Confessions
other person; h) Confessions
(2) He must have had the opportunity to deny it; • Extrajudicial confession - one made in any other place or
(3) He must have understood the statement; occasion and cannot sustain a conviction unless
• Admissions and Confessions corroborated by evidence of the corpus delicti. (Rule 133,
g) Admission by silence Sec. 3).
• Requisites: • Corpus delicti means the substance of
(4) He must have an interest to object as he would naturally have the crime; it is the fact that a crime has
done if the statement was not true; actually been committed (People v. De
(5) The facts are within his knowledge; and Leon, G.R. No. 180762, 4 March 2009).
• Admissions and Confessions
h) Confessions
21
• Extrajudicial confession The constitutional procedures on custodial investigation do not apply
• Illustrations: to a spontaneous statement, not elicited through questioning by the
(a) In arson, the corpus delicti is generally satisfied by proof of the authorities, but given in an ordinary manner whereby accused orally
bare occurrence of the fire, e.g., the charred remains of a house admitted having committed a crime. The rights under Sec. 12 are
burned down and of its having been intentionally caused. guaranteed to preclude the slightest use of coercion by the State as
(b) In murder or homicide, the corpus delicti is the fact of death would lead the accused to admit something false, not to prevent him
(People v. Garcia, 99 Phil. 381), which may be proved even from freely and voluntarily telling the truth. (People v. Mantung, G.R.
circumstantially (People v. Sasota, 91 Phil. 111; People v. Moro No. 130372, 20 July 1999).
Ansang, 93 Phil. 44). • Admissions and Confessions
• Admissions and Confessions i) Similar acts as evidence
h) Confessions
• Extrajudicial confession • Evidence that one did or did not do a certain thing at one
• Illustrations: time is not admissible to prove that he did or did not do
(c) In robbery or theft, the fact of loss (People v. Niem, 75 Phil. 668). the same or similar thing at another time(Rule 130, Sec.
(d) In an affray, the fact that pistol shots were heard and a bystander 34).
was killed by one of the shots constitute evidence of corpus delicti,
which is the violent death of a person, whether feloniously caused or • However, such evidence may be received to prove a
not (People v. Nocum, 77 Phil. 1018) specific intent or knowledge; identity, plan, system,
• Admissions and Confessions scheme, habit, custom or usage, and the like (Rule 130,
h) Confessions Sec. 34).
• Extrajudicial confession *HEARSAY RULE
• Requisites of Extrajudicial Confession: a) Meaning of hearsay
1. It must be voluntary; • Hearsay evidence – any evidence, whether oral or
2. It must be made with the assistance of a competent and documentary, whose probative value is based not on
independent counsel; personal knowledge of the witness but on the knowledge
3. It must be express; and of some other person not on the witness stand.
4. It must be in writing (People v. Domantay, G.R. No. 130612, 11 • Hearsay Rule
May 1999). a) Meaning of hearsay
• Extrajudicial confession is not binding upon third parties • If a party does not object, the hearsay evidence is
An extrajudicial confession is binding only on the confessant, is not admissible. Illustration: The repeated failure of the party to
admissible against his or her co-accused, and is considered as cross-examine the witness is an implied waiver of such
hearsay against them. right and the testimony of the said witness who died
The reason for this rule is that on a principle of good faith and thereafter should not be excluded from the record (Savory
mutual convenience, a man’s own acts are binding upon himself, and Luncheonette v. Lakas ng Manggagawang Pilipino, G.R.
are evidence against him. So are his conduct and declarations. Yet it No. L-38964, 31 January 31).
would not only be rightly inconvenient, but also manifestly unjust,  But even if hearsay evidence not objected to is
that a man should be bound by the acts of mere unauthorized admissible, it has no probative value. Hearsay
stranger (Tamargo v. Awingan, G.R. No. 177727, 19 January 2010). evidence whether objected to or not has no
• Extrajudicial confession; when admissible against co- probative value (People v. Parungao, G.R. No.
accused 125812, 28 November 1996).
While the general rule is that an extra-judicial confession of an • Hearsay Rule
accused is binding only upon himself and is not admissible against a) Meaning of hearsay
his co-accused, it has been held that such a confession is admissible • Two concepts of hearsay evidence:
against a co-accused where the confession is used as circumstantial (1) Second hand information (not derived from personal knowledge
evidence to show the probability of participation by the co- of witness); and
conspirator (People v. Condemna, L-22426, 29 May 1968), and (2) Testimony by a witness derived from his personal knowledge but
where the co-conspirator's confession is corroborated by other the adverse party is not given opportunity to cross-examine.
evidence (People v. Victor, G.R. No. 75154-55, 6 February 1990). • Hearsay Rule
• Extrajudicial confession not admissible when confessant a) Meaning of hearsay
was not assisted by counsel • Principle of Independently Relevant Statements
An extrajudicial confession executed without the assistance of The doctrine on independently relevant statements holds that
independent and competent counsel is inadmissible in evidence. conversations communicated to a witness by a third person may be
(People v. Velarde, G.R. No. 139333, 18 July 2002). A municipal admitted as proof that, regardless of their truth or falsity, they were
mayor cannot be considered as a competent actually made. Evidence as to the making of such statements is not
and independent counsel qualified to assist a person under custodial secondary but primary, for in itself it (a) constitutes a fact in issue or
investigation (People v. Velarde, supra). (b) is circumstantially relevant to the existence of such fact (Republic
• Extrajudicial confession v. res gestae v. Heirs of Alejega, G.R. No. 146030, 3 December 2002).
Where the verbal extrajudicial confession was made without • Hearsay Rule
counsel, but it was spontaneously made by the accused immediately b) Reason for exclusion of hearsay evidence
after the assault, the same is admissible, not under the confession • The real basis for the exclusion of hearsay evidence lies in
rule, but as part of the res gestae (People v. Tampus, G.R. No. L- the fact that hearsay testimony is not subject to the tests
44690, 28 March 1980). which can ordinarily be applied for the ascertainment of
• Statements during press-conference the truth of testimony, since the declarant is not present
22
and available for cross-examination (Mollaneda v. the occasion renders the reception of such evidence advisable and,
Umacob, G.R. No. 140128, 6 June 2001). further that the reliability of such declaration asserts facts which
• Hearsay Rule are against his own pecuniary or moral interest (Parel v. Prudencio,
c) Exceptions to the hearsay rule G.R. No. 146556, 19 April 2006).
i. Dying declaration • Hearsay Rule
 Dying declaration is an ante mortem statement • Hearsay Rule
or statement in articulo mortis. c) Exceptions to the hearsay rule
 Requisites: iii. Act or declaration about pedigree
(1) That death is imminent and the declarant is conscious of that • Requisites:
fact; (1) The actor or declarant is dead or unable to testify;
(2) That the declaration refers to the cause and the surrounding (2) The act or declaration is made by the person related to the
circumstances of such death; subject by birth or marriage;
(3) That the declaration relates to facts which the victim is (3) The relationship between the declarant or the actor and the
competent to testify to; subject is shown by evidence other than such act or declaration;
(4) That the declaration is offered in a case wherein the declarant’s (4) The act or declaration was made prior to the controversy. (Rule
death is the subject of the inquiry (People v. Serenas, G.R. No. 130, Sec. 39; Nepomuceno v. Lopez, G.R. No. 181258, 18 March
188124, 29 June 2010). 2010).
• Hearsay Rule • Hearsay Rule
c) Exceptions to the hearsay rule c) Exceptions to the hearsay rule
i. Dying declaration iv. Family reputation or tradition regarding pedigree
 Dying declaration has weight even if declarant
did not die immediately after his declaration. • Requisites:
It is the belief of impending death and not the rapid succession of (1) Witness testifying as to reputation or tradition must be a
death that renders the dying declaration admissible (People v. member, by consanguinity or affinity, of the same family as the
Bautista, G.R. No. 111149, 5 September 1997) subject;
i. Dying declaration (2) Such tradition or reputation must have existed in that family ante
 Victim need not state that he has lost all hope litem motam. (Rule 130, Sec. 40; People v. Soriano, G.R. No. 154278,
of recovery. 27 December 2002).
It is sufficient that circumstances are such as to inevitably lead to the • Hearsay Rule
conclusion that at the time the declaration was made, the declarant c) Exceptions to the hearsay rule
would not expect to survive the injury from which he actually died. v. Common reputation
The degree and seriousness of the wounds and the fact that death – Common reputation refers to general reputation;
supervened thereafter constitute substantial evidence of the victim's definite opinion of the community in which the
consciousness of his impending death (People v. Tanaman, et al., fact to be proved is known or exists.
G.R. No. 71768, 28 July 1987). • Requisites.
• Hearsay Rule (1) The subject of inquiry must be facts of public or general interest
c) Exceptions to the hearsay rule more than 30 years old, respecting marriage or moral character;
i. Dying declaration (2) The evidence must refer to facts ante litem motam;
 Mere gesture of dying victim inconclusive. (3) The facts may be established by:
The gesture of a dying woman in pointing to a direction, when asked Testimonial evidence of competent witness;
for the identity of her assailant, is too vague to be given such Monuments and inscription in public places;
probative value in determining the culpability of the accused (People Documents containing statements of reputation.
v. Ola, G.R. No. L-47147, 3 July 1987). • Hearsay Rule
• Hearsay Rule c) Exceptions to the hearsay rule
c) Exceptions to the hearsay rule vi. Part of the Res Gestae
ii. Declaration against interest • Res gestae is a Latin phrase which literally means "things
• Requisites: done.“ (Capila v. People, G.R. No. 146161, 17 July 2006).
(1) The declaration is made by: • Two Types of Res Gestae:
(i) a person deceased; or 1. Spontaneous statements; and
(ii) a person who is unable to testify [i.e. in foreign country 2. Contemporaneous statements or verbal acts
or with physical/mental impairments]; (Rule 130, Sec. 42)
(2) The declaration is against the interest of the declarant; • Hearsay Rule
(3) The fact asserted in the declaration was at the time it was made c) Exceptions to the hearsay rule
so far contrary to declarant's own interest, that a reasonable man in vi. Part of the Res Gestae
his position would not have made the declaration, unless he believed • Requisites of the First Type (Spontaneous Statements):
it to be true (Rule 130, Sec. 38; Fuentes v. Court of Appeals, G.R. No. The rule in res gestae applies when the declarant himself did not
111692, 9 February 1996). testify and the testimony of the witness who heard the declarant
• Hearsay Rule complies with the following requisites:
c) Exceptions to the hearsay rule (1) the principal act, the res gestae, is a startling occurrence;
ii. Declaration against interest (2) the statements were made before the declarant had time to
• Theory: contrive or devise; and
The theory under which declarations against interest are received in
evidence notwithstanding they are hearsay is that the necessity of
23
(3) the statements concerned the occurrence in question and its viii. Entries in official records
immediately attending circumstances (prior or subsequent) (Rule • Police reports of vehicular accidents.
130, Sec. 42; Maturillas v. People, G.R. No. 163217, 18 April 2006). The presentation of the police report itself is admissible as an
• Hearsay Rule exception to the hearsay rule even if the police investigator who
c) Exceptions to the hearsay rule prepared it was not presented in court, as long as the requisites
vi. Part of the Res Gestae under Rule 130, Sec. 44 could be adequately proved (Malayan
• Requisites of the Second Type (Verbal Acts): Insurance Co., Inc. v. Alberto, G.R. No. 194320, 1 February 2012).
(1) The principal act to be characterized must be equivocal; • Hearsay Rule
(2) The equivocal act must be relevant to the issue; c) Exceptions to the hearsay rule
(3) The verbal act must be contemporaneous with the equivocal act; ix. Commercial lists and the like
(4) The verbal act must give legal significance to the equivocal act • Requisites:
(Talidano v. Falcom Maritime & Allied Service, Inc. G.R. No. 172031, A document is a commercial list if:
14 July 2008). (1) it is a statement of matters of interest to persons engaged in an
• Hearsay Rule occupation;
c) Exceptions to the hearsay rule (2) such statement is contained in a list, register, periodical or other
vii. Entries in the course of business published compilation;
• Requisites: (3) said compilation is published for the use of persons engaged in
(1) The person who made the entry must be dead or unable to that occupation, and
testify; (4) it is generally used and relied upon by persons in the same
(2) The entries were made at or near the time of the transaction to occupation (Rule 130, Sec. 45; PNOC Shipping v. Court of Appeals,
which they refer; G.R. No. 107518, 8 October 1998).
(3) The entrant was in a position to know the facts stated in the • Hearsay Rule
entries; c) Exceptions to the hearsay rule
(4) The entries were made in his professional capacity or in the x. Learned treaties
performance of a duty, whether legal, contractual, moral or religious; • Requisites:
(5) The entries were made in the ordinary or regular course of (1) The court takes judicial notice of published treatise, periodical or
business or duty (Rule 130, Sec. 43; Jose, Jr. v Michaelmar Phils., Inc., pamphlet on a subject of history, law, science or art; or
et al., G.R. No. 169606, 27 November 2009). (2) A witness expert in the subject testifies, that the writer of the
• Hearsay Rule statement in the treatise, periodical or pamphlet is recognized in his
c) Exceptions to the hearsay rule profession or calling as an expert in the subject (Rule 130, Sec. 46).
• vii. Entries in the course of business • Hearsay Rule
• Theory for admissibility c) Exceptions to the hearsay rule
Entries in the course of business are accorded unusual reliability xi. Testimony or deposition at a former trial
because their regularity and continuity are calculated to discipline • Requisites:
record keepers in the habit of precision. If the entries are financial, (1) Witness is dead or unable to testify;
the records are routinely balanced and audited. In actual experience, (2) His testimony or deposition was given in a former case or
the whole of the business world function in reliance of such kind of proceeding, judicial or administrative, between the same parties or
records (LBP v. Monet’s Export and Manufacturing Corp., G.R. No. those representing the same interests;
184971, 19 April 2010). (3) The former case involved the same subject as that in the present
• Hearsay Rule case, although on different causes of action;
c) Exceptions to the hearsay rule (4) The issues testified to by the witness in the former trial is the
viii. Entries in official records same issue involved in the present case; and
• Requisites: (5) The adverse party had an opportunity to cross-examine the
(1) Entries were made by: (i) a public officer in the performance of witness in the former case.
his duties; or (ii) by a person in the performance of a duty specially • Hearsay Rule
enjoined by law; c) Exceptions to the hearsay rule
(2) The entrant had personal knowledge of the facts stated by him or xi. Testimony or deposition at a former trial
such facts were acquired by him from reports made by persons
under a legal duty to submit the same; and • Meaning of “unable to testify”
(3) Such entries were duly entered in a regular manner in the official The phrase "unable to testify" refers to a physical inability to appear
records (Alvarez v. PICOP Resources, G.R. No. 162243, 3 December at the witness stand and to give a testimony. Hence
2009). notwithstanding the deletion of the phrase "out of the Philippines,"
• Hearsay Rule which previously appeared in Section 47, Rule 130 of the Rules of
c) Exceptions to the hearsay rule Court, absence from jurisdiction may still constitute inability to
viii. Entries in official records testify under the same rule (Republic v. Sandiganbayan, G.R. No.
• Entrant need not be presented. 152375, 16 December 2011).
The presentation of the records themselves would, therefore, have • Hearsay Rule
been admissible as an exception to the hearsay rule even if the c) Exceptions to the hearsay rule
public officer/s who prepared them was/were not presented in xi. Testimony or deposition at a former trial
court, provided the above requisites could be adequately proven
(Alvarez v. PICOP Resources, supra; Africa v. Caltex, 123 Phil. 272). • Meaning of “same parties.”
• Hearsay Rule To render the testimony of a witness admissible at a later trial or
c) Exceptions to the hearsay rule action, the parties to the first proceeding must be the same as the
24
parties to the later proceeding. Physical identity, however, is not • Evidence of the moral character of a party in a civil case is
required; substantial identity or identity of interests suffices, as admissible only when pertinent to the issue of character
where the subsequent proceeding is between persons who involved in the case.
represent the parties to the prior proceeding by privity in law, in • Opinion Rule
blood, or in estate. The term "privity" denotes mutual or successive • Evidence of the good character of a witness is not
relationships to the same rights of property (Republic v. admissible until such character has been impeached (Rule
Sandiganbayan, supra). 130, Sec. 51).
• General rule • Opinion Rule
The opinion of a witness is NOT admissible (Rule 130, Sec. 48). • Rape Shield Rule
• Exceptions In prosecutions for rape, evidence of complainant's past sexual
(1) Opinion of expert witness conduct, opinion thereof or of his/her reputation shall not be
(2) Opinion of ordinary witness admitted unless, and only to the extent that the court finds, that
a) Opinion of expert witness such evidence is material and relevant to the case (R.A. No. 8505,
• The opinion of a witness on a matter requiring special Sec. 6).
knowledge, skill, experience or training which he is shown XII. RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-
to possess, may be received in evidence. (Rule 130, Sec. 07-SC)
48). a) Applicability of the rule
• Opinion Rule • Unless otherwise provided, the Rule shall govern the
a) Opinion of expert witness examination of child witnesses who are victims of crime,
• Courts are not bound by expert’s testimony. accused of a crime, and witnesses to crime. It shall apply in
Section 49, Rule 130 of the Revised Rules of Court states that the all criminal proceedings and non-criminal proceedings
opinion of a witness on a matter requiring special knowledge, skill, involving child witnesses (Sec. 1).
experience or training, which he is shown to possess, may be b) Meaning of “child witness”
received in evidence. The use of the word "may" signifies that the • A child witness is any person who at the time of giving
use of opinion of an expert witness is permissive and not testimony is below the age of 18 years. In child abuse
mandatory on the part of the courts. Allowing the testimony does cases, a child includes one over 18 years but is found by
not mean, too, that courts are bound by the testimony of the expert the court as unable to fully take care of himself or protect
witness. The testimony of an expert witness must be construed to himself from abuse, neglect, cruelty, exploitation, or
have been presented not to sway the court in favor of any of the discrimination because of a physical or mental disability or
parties, but to assist the court in the determination of the issue condition (Sec. 4[a]).
before it, and is for the court to adopt or not to adopt depending on c) Competency of a child witness
its appreciation of the attendant facts and the applicable law (Tabao
v. People, G.R. No. 187246, 20 July 2011). • Every child is presumed qualified to be a witness. However,
• Opinion Rule the court shall conduct a competency examination of a
b) Opinion of ordinary witness child, motu propio or on motion of a party, when it finds
• The opinion of a witness for which proper basis is given, that substantial doubt exists regarding the stability of the
may be received in evidence regarding; (a) the identity of child to perceive, remember, communicate, distinguish
a person about whom he has adequate knowledge; (b) a truth from falsehood, or appreciate the duty to tell the
handwriting with which he has sufficient familiarity; (c) truth in court (Sec. 6).
the mental sanity of a person with whom he is sufficiently • Proof of necessity. A party seeking a competency
acquainted; and (d) his impressions of the emotion, examination must present proof of necessity of
behavior, condition or appearance of a person (Rule 130, competency examination. The age of the child by itself is
Sec. 48). not a sufficient basis for a competency examination (Sec.
• Character Evidence 6[a]).
• General rule:
Character evidence is not admissible (Rule 130, Sec. 51). • Burden of proof. To rebut the presumption of competence
• Opinion Rule enjoyed by a child, the burden of proof lies on the party
Exceptions: challenging his competence (Sec. 6[b]).
a) Criminal cases c) Competency of a child witness
• Accused – may prove his good moral character pertinent • Persons allowed at competency examination. Only the
to the moral trait in the offense charge. following are allowed to attend a competency
• Prosecution – may present character evidence pertaining examination:
to accused’s bad moral character pertinent to the moral (a) The judge and necessary court personnel;
trait involved in the offense charged only in rebuttal. (b) The counsel for the parties;
• Offended party - The good or bad moral character of the (c) The guardian ad litem;
offended party may be proved if it tends to establish in any (d) One or more support persons for the child; and
reasonable degree the probability or improbability of the (e) The defendant, unless the court determines that competence can
offense charged be fully evaluated in his absence (Sec. 6[c]).
• Opinion Rule • Conduct of examination. Examination of a child as to his
Exceptions: competence shall be conducted only by the judge. Counsel
b) Civil cases for the parties, however, can submit questions to the judge
that he may, in his discretion, ask the child (Sec. 6[d]).

25
• Rule on Examination of a Child Witness (A.M. No. 004-07- (7) His reaction to any prior encounters with the accused in court
SC) or elsewhere;
c) Competency of a child witness (8) His reaction prior to trial when the topic of testifying was
• Developmentally appropriate questions. The questions discussed with him by parents or professionals;
asked at the competency examination shall be appropriate (9) Specific symptoms of stress exhibited by the child in the days
to the age and developmental level of the child; shall not prior to testifying;
be related to the issues at trial; and shall focus on the (10) Testimony of expert or lay witnesses;
ability of the child to remember, communicate, distinguish (11) The custodial situation of the child and the attitude of the
between truth and falsehood, and appreciate the duty to members of his family regarding the events about which he will
testify truthfully (Sec. 6[e]). testify; and
• Continuing duty to assess competence. The court has the (12) Other relevant factors, such as court atmosphere and
duty of continuously assessing the competence of the child formalities of court procedure.
throughout his testimony (Sec. 6[f]). (f) The court may order that the testimony of the child be taken by
d) Examination of a child witness live-link television if there is a substantial likelihood that the child
• The examination of a child witness presented in a hearing would suffer trauma from testifying in the presence of the accused,
or any proceeding shall be done in open court. Unless the his counsel or the prosecutor as the case may be. The trauma must
witness is incapacitated to speak, or the question calls for be of a kind which would impair the completeness or truthfulness of
a different mode of answer, the answers of the witness the testimony of the child.
shall be given orally. The party who presents a child (g) If the court orders the taking of testimony by live-link television:
witness or the guardian ad litem of such child witness may, (1) The child shall testify in a room separate from the courtroom
however, move the court to allow him to testify in the in the presence of the guardian ad litem; one or both of his
manner provided in this Rule (Sec. 8). support persons, the facilitator and interpreter, if any; a court
officer appointed by the court; persons necessary to operate the
e) Live-link TV testimony of a child witness closed-circuit television equipment; and other persons whose
(a) The prosecutor, counsel or the guardian ad litem may apply for presence are determined by the court to be necessary to the
an order that the testimony of the child be taken in a room outside welfare and well-being of the child;
the courtroom and be televised to the courtroom by live-link (2) The judge, prosecutor, accused, and counsel for the parties
television. shall be in the courtroom. The testimony of the child shall be
Before the guardian ad litem applies for an order under this section, transmitted by live-link television into the courtroom for viewing
he shall consult the prosecutor or counsel and shall defer to the and hearing by the judge, prosecutor, counsel for the parties,
judgment of the prosecutor or counsel regarding the necessity of accused, victim, and the public unless excluded.
applying for an order. In case the guardian ad litem is convinced that (g) If the court orders the taking of testimony by live-link television:
the decision of the prosecutor or counsel not to apply will cause the (3) If it is necessary for the child to identify the accused at trial,
child serious emotional trauma, he himself may apply for the order. the court may allow the child to enter the courtroom for the
The person seeking such an order shall apply at least five (5) days limited purpose of identifying the accused, or the court may
before the trial date, unless the court finds on the record that the allow the child to identify the accused by observing the image of
need for such an order was not reasonably foreseeable. the latter on a television monitor.
(b) The court may motu propio hear and determine, with notice to (4) The court may set other conditions and limitations on the
the parties, the need for taking the testimony of the child through taking of the testimony that it finds just and appropriate, taking
live-link television. into consideration the best interests of the child.
(c) The judge may question the child in chambers or in some (h) The testimony of the child shall be preserved on videotape,
comfortable place other than the courtroom, in the presence of the digital disc, or other similar devices which shall be made part of the
support person, guardian ad litem, prosecutor, and counsel for the court record and shall be subject to a protective order as provided in
parties. The questions of the judge shall not be related to the issues Section 31(b).
at trial but to the feelings of the child about testifying in the f) Videotaped deposition of a child witness
courtroom. (a) The prosecutor, counsel, or guardian ad litem may apply for an
(d) The judge may exclude any person, including the accused, whose order that a deposition be taken of the testimony of the child and
presence or conduct causes fear to the child. that it be recorded and preserved on videotape. Before the guardian
(e) The court shall issue an order granting or denying the use of live- ad litem applies for an order under this section, he shall consult with
link television and stating the reasons therefor. It shall consider the the prosecutor or counsel subject to the second and third
following factors: paragraphs of section 25(a).
(1) The age and level of development of the child; (b) If the court finds that the child will not be able to testify in open
(2) His physical and mental health, including any mental or court at trial, it shall issue an order that the deposition of the child
physical disability; be taken and preserved by videotape.
(3) Any physical, emotional, or psychological injury experienced (c) The judge shall preside at the videotaped deposition of a child.
by him; Objections to deposition testimony or evidence, or parts thereof,
(4) The nature of the alleged abuse; and the grounds for the objection shall be stated and shall ruled
(5) Any threats against the child; upon at the time of the taking of the deposition. The other persons
(6) His relationship with the accused or adverse party; who may be permitted to be present at the proceeding are:
(1) The prosecutor;
(e) The court shall issue an order granting or denying the use of live- (2) The defense counsel;
link television and stating the reasons therefor. It shall consider the (3) The guardian ad litem;
following factors: (4) The accused, subject to subsection (e);
26
(5) Other persons whose presence is determined by the court to (6) Cross-examination could not show the lack of knowledge of
be necessary to the welfare and well-being of the child; the declarant child;
(6) One or both of his support persons, the facilitator and (7) The possibility of faulty recollection of the declarant child is
interpreter, if any; remote; and
(7) The court stenographer; and (8) The circumstances surrounding the statement are such that
(8) Persons necessary to operate the videotape equipment. there is no reason to suppose the declarant child misrepresented
(d) The rights of the accused during trial, especially the right to the involvement of the accused.
counsel and to confront and cross-examine the child, shall not be (c) The child witness shall be considered unavailable under the
violated during the deposition. following situations:
(e) If the order of the court is based on evidence that the child is (1) Is deceased, suffers from physical infirmity, lack of memory,
unable to testify in the physical presence of the accused, the court mental illness, or will be exposed to sever psychological injury; or
may direct the latter to be excluded from the room in which the (2) Is absent from the hearing and the proponent of his statement
deposition is conducted. In case of exclusion of the accused, the has been unable to procure his attendance by process or other
court shall order that the testimony of the child be taken by live-link reasonable means.
television in accordance with section 25 of this Rule. If the accused is (d) When the child witness is unavailable, his hearsay testimony
excluded from the deposition, it is not necessary that the child be shall be admitted only if corroborated by other admissible evidence
able to view an image of the accused. (Sec. 28).
(f) The videotaped deposition shall be preserved and h) Sexual abuse shield rule
stenographically recorded. The videotape and the stenographic
notes shall be transmitted to the clerk of the court where the case is Inadmissible evidence: The following evidence is not admissible in
pending for safekeeping and shall be made a part of the record. any criminal proceeding involving alleged child sexual abuse:
(g) The court may set other conditions on the taking of the (1) Evidence offered to prove that the alleged victim engaged in
deposition that it finds just and appropriate, taking into other sexual behavior; and
consideration the best interests of the child, the constitutional rights (2) Evidence offered to prove the sexual pre-disposition of the
of the accused, and other relevant factors. alleged victim.
(h) The videotaped deposition and stenographic notes shall be Exception: Evidence of specific instances of sexual behavior by the
subject to a protective order as provided in section 31(b). alleged victim to prove that a person other than the accused was the
(i) If, at the time of trial, the court finds that the child is unable to source of semen, injury, or other physical evidence shall be
testify for a reason stated in section 25(f) of this Rule, or is admissible. A party intending to offer such evidence must:
unavailable for any reason described in section 4(c), Rule 23 of the (1) File a written motion at least fifteen (5) days before trial,
1997 Rules of Civil Procedure, the court may admit into evidence the specifically describing the evidence and stating the purpose for
videotaped deposition of the child in lieu of his testimony at the which it is offered, unless the court, for good cause, requires a
trial. The court shall issue an order stating the reasons therefor. different time for filing or permits filing during trial; and
(j) After the original videotaping but before or during trial, any party (2) Serve the motion on all parties and the guardian ad litem at
may file any motion for additional videotaping on the ground of least three (3) days before the hearing of the motion.
newly discovered evidence. The court may order an additional • Before admitting such evidence, the court must conduct a
videotaped deposition to receive the newly discovered evidence hearing in chambers and afford the child, his guardian ad
(Sec. 27). litem, the parties, and their counsel a right to attend and
g) Hearsay exception in child abuse cases be heard. The motion and the record of the hearing must
be sealed and remain under seal and protected by a
A statement made by a child describing any act or attempted act of protected order set forth in section 31(b). The child shall
child abuse, not otherwise admissible under the hearsay rule, may not be required to testify at the hearing in chambers
be admitted in evidence in any criminal or non-criminal proceeding except with his consent (Sec. 30).
subject to the following rules i) Protective orders
(a) Before such hearsay statement may be admitted, its proponent (a) Protective order. Any videotape or audiotape of a child that is
shall make known to the adverse party the intention to offer such part of the court record shall be under a protective order that
statement and its particulars to provide him a fair opportunity to provides as follows:
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 (1) Tapes may be viewed only by parties, their counsel, their expert
the hearsay statement for cross-examination by the adverse party. witness, and the guardian ad litem.
When the child is unavailable, the fact of such circumstance must be (2) No tape, or any portion thereof, shall be divulged by any person
proved by the proponent. mentioned in subsection (a) to any other person, except as
(b) In ruling on the admissibility of such hearsay statement, the court necessary for the trial.
shall consider the time, content and circumstances thereof which (3) No person shall be granted access to the tape, its transcription or
provide sufficient indicia of reliability. It shall consider the following any part thereof unless he signs a written affirmation that he has
factors: received and read a copy of the protective order; that he submits to
(1) Whether there is a motive to lie; the jurisdiction of the court with respect to the protective order; and
(2) The general character of the declarant child; that in case of violation thereof, he will be subject to the contempt
(3) Whether more than one person heard the statement; power of the court.
(4) Whether the statement was spontaneous; (4) Each of the tape cassettes and transcripts thereof made available
(5) The timing of the statement and the relationship between the to the parties, their counsel, and respective agents shall bear a
declarant child and witness; cautionary notice that the object or document and the contents
thereof are subject to a protective order issued by the court.
27
(5) No tape shall be given, loaned, sold, or shown to any person  Exception: If objection is based on two or more
except as ordered by the court. grounds, a ruling sustaining the objection on one
(6) Within thirty (30) days from receipt, all copies of the tape and or some of them must specify the ground or
any transcripts thereof shall be returned to the clerk of court for grounds relied upon.
safekeeping unless the period is extended by the court on motion of • Ruling
a party. • Erroneous rulings on admissibility of evidence are:
(7) This protective order shall remain in full force and effect until (1) Considered errors in judgment, not of jurisdiction;
further order of the court (Sec. 31 [b]). (2) Are interlocutory in nature;
(b) Additional protective orders. The court may, motu propio or on (3) May not be the subject of a separate appeal or review on
motion of any party, the child, his parents, legal guardian, or the certiorari;
guardian ad litem, issue additional orders to protect the privacy of (4) Must be assigned as errors and reviewed in the appeal properly
the child (Sec. 31(c). taken from the decision rendered by the trial court on the merits of
XIII. OFFER AND OBJECTION the case. (Triplex Enterprises, Inc. v. PNB-Republic Bank, et al. G.R.
*Offer of Evidence No. 151007, 17 July 2006).
• The court shall consider no evidence which has not been • Striking Out of an Answer
formally offered. The purpose for which the evidence is • Should a witness answer the question before the adverse
offered must be specified (Rule 132, Sec. 34). party had the opportunity to voice fully its objection to the
*When To Make An Offer same, and such objection is found to be meritorious, the
Testimonial evidence - must be offered at the time the witness is court shall sustain the objection and order the answer
called to testify. given to be stricken off the record (Rule 132, Sec. 39).
• On proper motion, the court may also order the striking
Documentary and object evidence - must be offered after the out of answers which are incompetent, irrelevant, or
presentation of a party's testimonial evidence. Such offer shall be otherwise improper (Rule 132, Sec. 39).
done orally unless allowed by the court to be done in writing (Rule • Tender of Excluded Evidence
132, Sec. 35). • If documents or things offered in evidence are excluded by
*Objection the court, the offeror may have the same attached to or
• Rule: grounds for objections must always be specified. made part of the record. If the evidence excluded is oral,
(Rule 132, Sec. 36, par. 4). the offeror may state for the record the name and other
personal circumstances of the witness and the substance
*When to make objections: of the proposed testimony (Rule 132, Sec. 40).
1. Testimonial evidence - must be objected to immediately after the Thank you!
offer is made. (Rule 132, Sec. 36, par. 1).
2. Objection to a question during oral examination - must be made
as soon as the grounds therefor shall become reasonably apparent
(Rule 132, Sec. 36, par. 2).
3. Documentary evidence - shall be objected to within three (3) days
after notice of the offer unless a different period is allowed by the
court (Rule 132, Sec. 36, par. 3).
• Repetition of an Objection
• Repeating an objection is NOT necessary when it becomes
reasonably apparent in the course of the 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. (Rule
132, Sec. 37).
• In such case, it is sufficient for the adverse party to record
his continuing objection to such class of questions. Rule
132, Sec. 37).
• Ruling
• When made: Immediately after the objection is made.
 Exception: Unless the court desires to take a
reasonable time to inform itself on the question
presented (Note: 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).
• Ruling
• Content of ruling: The reason for sustaining or overruling
an objection need NOT be stated. (In contrast, objections
made by lawyers must always specify the grounds
therefor.)

28