I.

Admissibility of Evidence

Rules of Court
PART IV. RULES OF EVIDENCE
RULE 128. General Provisions

Section 1. Evidence defined. — Evidence is the means, sanctioned by these rules, of ascertaining in a
judicial proceeding the truth respecting a matter of fact. (1)

Section 2. Scope. — The rules of evidence shall be the same in all courts and in all trials and hearings,
except as otherwise provided by law or these rules. (2a)

Section 3. Admissibility of evidence. — Evidence is admissible when it is relevant to the issue and is not
excluded by the law or these rules. (3a)

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

COMMENTARY:
1. Section 1. Evidence defined.
The means of ascertaining in a judicial proceeding the truth respecting a matter of fact.

2. Section 2. Scope.
General Rule: Shall be same in all courts and in all trials and hearings.
Exception: Otherwise provided by law or these rules.

3. Section 3. Admissibility of Evidence.

Relevancy: Admissible when it is relevant to the issue.
Competence: Not excluded by law or these rules.

4. Section 4. Relevancy; collateral matters.

 Evidence must have a relation to the fact in issue as to induce belief in its existence or non-
existence.
 On collateral matters.
General Rule: Evidence shall not be allowed.
Exception: It tends in any reasonable degree to establish the probability or
improbability of the fact in issue.

EXCLUSIONARY RULES UNDER THE 1987 CONSTITUTION

1987 Constitution of the Philippines

ARTICLE III. Bill of Rights

SECTION 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized.

SECTION 3. (1) The privacy of communication and correspondence shall be inviolable except upon
lawful order of the court, or when public safety or order requires otherwise as prescribed by law.
 (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.

COMMENTARY
1. Section 2, Article III, 1987 Constitution. Right against Unreasonable Searches and Seizures.

ELEMENTS OF A VALID WARRANT

a. Probable Cause. Such facts and circumstances antecedent to the issuance of the warrant
that in themselves are sufficient to induce a cautious man to rely on them and act in
pursuance thereof [People v. Syjuco, 64 Phil 667; Alvarez v. CFI, 64 Phil 33], For a search:
“such facts and circumstances which would lead a reasonably discreet and prudent man
to believe that an offense has been committed and that the objects sought in connection
with the offense are in the place sought to be searched” [Burgos v. Chief of Staff, 133
SCRA 800].

b. General Rule: Determination of probably cause personally by the judge.

Issuance of a Search Warrant. Section 4, Rule 126 of the Rules of Court requires
that the judge must personally examine in the form of searching questions and
answers, in writing and under oath, the complainants and any witnesses he may
produce on facts personally known to them, and attach to the record their sworn
statements together with any affidavits submitted.

Exception: Issuance of a Warrant of Arrest. It is sufficient that the judge “personally

determine” the existence of probable cause. It is not necessary that he should personally
examine the complainant and his witnesses [Soliven v. Makasiar, 167 SCRA 393].

The judge shall (1) personally evaluate the report and the supporting documents
submitted by the fiscal regarding the existence of probable cause and, on the basis
thereof, issue a warrant of arrest; or (2) if, on the basis thereof, he finds no probable
cause, he may disregard the prosecutor’s report and require the submission of
supporting affidavits of witnesses to aid him in arriving at a conclusion as to the
existence of probable cause. It is not obligatory, but merely discretionary, upon the
judge to issue a warrant of arrest, even after having personally examined the
complainant and his witnesses for the determination of probable cause. Whether
it is necessary to arrest the accused in order not to frustrate the ends of justice is
left to his sound judgment and discretion [Cruz v. Judge Areola, A.M. No. RTJ-01-
1642, March 06, 2002].

c. After examination, under oath or affirmation, of the complainant and the witnesses
he may produce. The personal examination must not be merely routinary or pro forma,
but must be probing and exhaustive. The purpose of this rule is to satisfy the examining
magistrate as to the existence of probable cause. [Soliven v. Makasiar, 167 SCRA 393]

d. Particularity of Description. To enable the law enforcers serving the warrant to (1) readily
identify the properties to be seized and thus prevent them from seizing the wrong items;
and (2) leave said peace officers with no discretion regarding the articles to be seized and
thus prevent unreasonable searches and seizures. [People v. Tee, G.R. Nos. 140546- 47,
January 20, 2003]

2. Section 3(1), Article III, 1987 Constitution. Right of Privacy of Communication and Correspondence.
General Rule: Right is inviolable.
 Exception: (1) Lawful order of the court; or (2) Public safety or order requires otherwise, as may
be provided by law.

3. Section 3(2), Article III, 1987 Constitution. Exclusionary Rule.

Evidence obtained in violation of Section 2, Article III or Section 3(1), Article III of the 1987
Constitution is inadmissible for any purpose in any proceeding.

1987 Constitution of the Philippines

ARTICLE III. Bill of Rights

SECTION 12. (1) Any person under investigation for the commission of an offense shall have the right
to be informed of his right to remain silent and to have competent and independent counsel preferably
of his own choice. If the person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be
used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention
are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible
in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation
to and rehabilitation of victims of torture or similar practices, and their families.

SECTION 17. No person shall be compelled to be a witness against himself.

COMMENTARY

1. Section 12, Article III, 1987 Constitution. Miranda Rights.

 Rights are available only during “custodial investigation” or “in custody interrogation of accused
persons” [People v. Judge Ayson, 175 SCRA 216]

 Custodial Investigation is “any questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of action in any significant
way”.

 Right available:
a. Right to remain silent.
b. Right to competent and independent counsel at all stages of the investigation.
c. Right to be informed of such rights.
d. No torture, force, etc., which vitiates free will shall be used.
e. Secret detention places, etc., are prohibited.

 Rights (a), (b), and (c) cannot be waived except in writing and signed by the person in the
presence of his counsel.

Sec. 2(d), R.A. 7438, provides that any extrajudicial confession made by a person arrested,
detained or under custodial investigation shall be in writing and signed by such person in
the presence of his counsel or in the latter’s absence, upon a valid waiver, and in the
presence of any of the parents, older brothers and sisters, his spouse, the municipal mayor,
the municipal judge, district school supervisor, or priest or minister of the gospel as chosen
by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any
proceeding.
  Confessions/admissions obtained in violation of rights (provided in Section 12) are inadmissible
as evidence.

2. Section 17, Article III, 1987 Constitution. Right Against Self-Incrimination.

 The kernel of the right is not against all compulsion, but testimonial compulsion only [Alih v.
Castro, supra.]. The right against selfincrimination is simply against the legal process of
extracting from the lips of the accused an admission of his guilt. It does not apply where the
evidence sought to be excluded is not an incriminating statement but an object evidence
[People v. Malimit, 264 SCRA 167] What is actually proscribed is the use of physical or moral
compulsion to extort communication from the accused-appellant and not the inclusion of his
body in evidence when it may be material.

A person may be compelled to submit to fingerprinting, photographing and paraffin testing,

as there is no testimonial compulsion involved.

 The prohibition extends to the compulsion for the production of documents, papers and chattels
that may be used as evidence against the witness, except where the State has a right to inspect
the same such as the books of accounts of corporations, under the police or taxing power.

 The right against self-incrimination may be waived, either directly or by a failure to invoke it,
provided the waiver is certain and unequivocal and intelligently made. Thus, the accused who
takes the witness stand voluntarily and offers testimony in his behalf may be cross-examined
and asked incriminating questions on any matter he testified to on direct examination.

Tax Reform Act of 1997

SEC. 201. Effect of Failure to Stamp Taxable Document. - An instrument, document or paper which
is required by law to be stamped and which has been signed, issued, accepted or transferred without
being duly stamped, shall not be recorded, nor shall it or any copy thereof or any record of transfer of
the same be admitted or used in evidence in any court until the requisite stamp or stamps are affixed
thereto and cancelled.

No notary public or other office authorized to administer oaths shall add this jurat or acknowledgment to
any document subject to documentary stamp tax unless the proper documentary stamps are affixed
thereto and cancelled.

REPUBLIC ACT No. 1405. LAW ON SECRECY OF BANK DEPOSITS

AN ACT PROHIBITING DISCLOSURE OF OR INQUIRY INTO, DEPOSITS WITH ANY BANKING

INSTITUTION AND PROVIDING PENALTY THEREFOR.

Section 1. It is hereby declared to be the policy of the Government to give encouragement to the people
to deposit their money in banking institutions and to discourage private hoarding so that the same may
be properly utilized by banks in authorized loans to assist in the economic development of the country.

Section 2. All deposits of whatever nature with banks or banking institutions in the Philippines including
investments in bonds issued by the Government of the Philippines, its political subdivisions and its
instrumentalities, are hereby considered as of an absolutely confidential nature and may not be
examined, inquired or looked into by any person, government official, bureau or office, except upon
written permission of the depositor, or in cases of impeachment, or upon order of a competent court in
cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or
invested is the subject matter of the litigation.
Section 3. It shall be unlawful for any official or employee of a banking institution to disclose to any
person other than those mentioned in Section two hereof any information concerning said deposits.

Section 4. All Acts or parts of Acts, Special Charters, Executive Orders, Rules and Regulations which
are inconsistent with the provisions of this Act are hereby repealed.

Section 5. Any violation of this law will subject offender upon conviction, to an imprisonment of not more
than five years or a fine of not more than twenty thousand pesos or both, in the discretion of the court.

Section 6. This Act shall take effect upon its approval.

REPUBLIC ACT No. 4200. WIRETAPPING ACT

AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED VIOLATIONS OF
THE PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES.

Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or arrangement,
to secretly overhear, intercept, or record such communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or
however otherwise described:

It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next
preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such
record, or copies thereof, of any communication or spoken word secured either before or after the
effective date of this Act in the manner prohibited by this law; or to replay the same for any other person
or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish
transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such
record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned
in section 3 hereof, shall not be covered by this prohibition.

Section 2. Any person who willfully or knowingly does or who shall aid, permit, or cause to be done any
of the acts declared to be unlawful in the preceding section or who violates the provisions of the following
section or of any order issued thereunder, or aids, permits, or causes such violation shall, upon conviction
thereof, be punished by imprisonment for not less than six months or more than six years and with the
accessory penalty of perpetual absolute disqualification from public office if the offender be a public
official at the time of the commission of the offense, and, if the offender is an alien he shall be subject to
deportation proceedings.

Section 3. Nothing contained in this Act, however, shall render it unlawful or punishable for any peace
officer, who is authorized by a written order of the Court, to execute any of the acts declared to be
unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking
war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to
commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition,
kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616,
punishing espionage and other offenses against national security: Provided, That such written order shall
only be issued or granted upon written application and the examination under oath or affirmation of the
applicant and the witnesses he may produce and a showing: (1) that there are reasonable grounds to
believe that any of the crimes enumerated hereinabove has been committed or is being committed or is
about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy
and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting
to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as
the case may be, have actually been or are being committed; (2) that there are reasonable grounds to
believe that evidence will be obtained essential to the conviction of any person for, or to the solution of,
or to the prevention of, any of such crimes; and (3) that there are no other means readily available for
obtaining such evidence.

The order granted or issued shall specify: (1) the identity of the person or persons whose
communications, conversations, discussions, or spoken words are to be overheard, intercepted, or
recorded and, in the case of telegraphic or telephonic communications, the telegraph line or the
telephone number involved and its location; (2) the identity of the peace officer authorized to overhear,
intercept, or record the communications, conversations, discussions, or spoken words; (3) the offense or
offenses committed or sought to be prevented; and (4) the period of the authorization. The authorization
shall be effective for the period specified in the order which shall not exceed sixty (60) days from the date
of issuance of the order, unless extended or renewed by the court upon being satisfied that such
extension or renewal is in the public interest.

All recordings made under court authorization shall, within forty-eight hours after the expiration of the
period fixed in the order, be deposited with the court in a sealed envelope or sealed package, and shall
be accompanied by an affidavit of the peace officer granted such authority stating the number of
recordings made, the dates and times covered by each recording, the number of tapes, discs, or records
included in the deposit, and certifying that no duplicates or copies of the whole or any part thereof have
been made, or if made, that all such duplicates or copies are included in the envelope or package
deposited with the court. The envelope or package so deposited shall not be opened, or the recordings
replayed, or used in evidence, or their contents revealed, except upon order of the court, which shall not
be granted except upon motion, with due notice and opportunity to be heard to the person or persons
whose conversation or communications have been recorded.

The court referred to in this section shall be understood to mean the Court of First Instance within whose
territorial jurisdiction the acts for which authority is applied for are to be executed.

Section 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or
meaning of the same or any part thereof, or any information therein contained obtained or secured by
any person in violation of the preceding sections of this Act shall not be admissible in evidence in any
judicial, quasi-judicial, legislative or administrative hearing or investigation.

Section 5. All laws inconsistent with the provisions of this Act are hereby repealed or accordingly
amended.

Section 6. This Act shall take effect upon its approval.

Approved: June 19, 1965

COMMENTARY

1. PROHIBITED ACTS:
A. Not being authorized by all the parties to any private communication or spoken word to:
a. tap any wire or cable;
b. by using any other device or arrangement, to secretly overhear, intercept;
c. record such communication or spoken word by using a device commonly known as a
dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however
otherwise described:
3.