CIVIL CRIMINAL
CHAPTER 1 Offer of compromise is not an
A. BASIC PRINCIPLES
EVIDENCE (Rule 128, Sec. 1)
- Evidence is the means, sanctioned by these rules, of ascertaining
in a judicial proceeding the truth respecting a matter of fact
- To be considered evidence, the same must be sanctioned or
allowed by the ROC.
o It is no evidence if it is excluded by law or by the Rules
even if it proves the existence or non-existence of a fact
in issue.
- Evidence is required because of the presumption that the court is
not aware of the veracity of the facts involved in a case. It is,
therefore, incumbent upon the parties to prove a fact in issue
through the presentation of admissible evidence.
SCOPE AND APPLICABILITY
- The rules on evidence in the ROC are guided by the principle of
uniformity.
- 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.
(Sec. 2, Rule 128)
- Only applies to judicial proceedings.
- The rule does not apply to election cases, land registration and
cadastral cases, naturalization and insolvency proceedings,
except by analogy or in a suppletory character and whenever
practicable and convenient (Sec. 4, Rule 1)
Cases
- Ong Chia vs. Republic, 328 SCRA 749
o The RTC granted the petitioner’s petition for
naturalization. The CA reversed the decision on the
ground that the RTC admitted evidence which were not
formally offered in evidence in violation of Sec. 34, Rule
132 of the Rules of Court.
o According to SC, the rule on formal offer of evidence is
not applicable to petition for naturalization unless
applied by analogy or in a suppletory character and
whenever practicable and convenient.
- Sugar Regulatory Administration vs. Tormon
o The general rule is that administrative agencies are not
bound by the technical rules on evidence.
o It can accept documents which cannot be admitted in a
judicial proceeding where the Rules of Court are strictly
observed. It can choose to give weight or disregard such
evidence, depending on its trustworthiness.
- Sasan vs NLRC
o Illustrates the rule on the non-applicability of the ROC,
including the rules on evidence to non-judicial
proceedings.
o The respondent submitted documents to NLRC which it
did not present before the LA.
o The technical rules of evidence are not binding on labor
tribunals (Manalo vs. TNS Phil.) Thus, written
statements of certain employees can be admitted even
if they were cross-examined.
- Castillo vs. Prudentialife Plans, Inc.
o The rules of evidence are not strictly observed in
proceedings before the NLRC which are summary in
nature and decisions may be made on the basis of
position papers
Parol evidence rule, like other rules of evidence, should not be strictly
applied in labor cases.
- Hence, a Labor Arbiter is not precluded from accepting and
evaluating evidence other than, and even contrary to, what is
stated in the CBA (Cirtek Employees Labor Union-Federation of
Free Workers vs. Cirtek Electronics, 650 SCRA 656-66)
CIVIL CRIMINAL
The burden of proof is The burden of proof is proof
preponderance of evidence beyond reasonable doubt.
EVIDENCE PRELIMS | J. GITO
Offer of compromise, as a
admission of liability general rule is an implied
admission of guilt.
The concept of presumption of Presumption of innocence
innocence does not apply. does apply
Evidence of character is Prosecution is not allowed to
admissible if the issue of prove the bad moral character
character is involved (Sec. of the accused even if pertinent
51(b), Rule 130). to the issue, unless in rebuttal
(Sec. 50(a), Rule 130).
WHEN IS EVIDENCE NECESSARY?
- Issues of Fact
INSTANCES WHERE EVIDENCE IS NO LONGER REQUIRED:
- When the pleadings in a civil case fail to tender an issue. judgment
on the pleading will ensue in accordance with Rule 34.
- When parties stipulated on certain facts.
- When a fact is subject to judicial notice.
- When the fact is judicially admitted
- When the law presumes the truth of a fact.
PROOF vs EVIDENCE
- Proof is the product of evidence
- Evidence is the medium of proof
FACTUM PROBANDUM VS. FACTUM PROBANS
- Factum probandum is the fact or proposition to be established,
while factum probans is the fact or material evidencing the fact or
proposition to be established.
- The factum probandum is the fact to be proved; it is the fact which
is in issue in a case and to which the evidence is directed. On the
other hand, factum probans is the probative or evidentiary fact
tending to prove the fact in issue
Illustration
- In a suit involving damage to property caused by the negligence
of the defendant, the factum probandum is the negligence of the
defendant that caused damage to the property of the plaintiff. The
factum probans are the evidences, whether it be object, testimonial,
documentary, to prove the negligence of the defendant
- In civil cases, the factum probandum is the elements of the cause
of action which are denied by the defendant.
- In criminal cases the factum probandum refers to matters which the
prosecution must prove beyond reasonable doubt in order to justify
the conviction.
o RA 10591 – Illegal possession of firearm
o RA 9165 – Dangerous Drugs Act
- In every tort case file under Art. 2176 of the NCC, the plaintiff has to
prove
o The damages suffered by him;
o The fault or negligence of the defendant or some other
person for whose act he must respond; and
o Connection of cause and effect between the fault and
negligence and the damages incurred.
In case of robbery,
- That there be personal property belonging to another 

- That there is unlawful taking of that property 

- That the taking is with intent to gain 

- That there is violence against or intimidation of persons 
or force
upon things (Art. 293, RPC) 

In case of prosecution for illegal sale of prohibited or dangerous drugs
- The identity of the buyer and the seller, the object, and the
consideration
- The delivery of the things sold and the payment therefor.
Is the presentation of the informant in illegal drug cases indispensable
for a successful prosecution?
- No, because his testimony would merely be corroborative and
cumulative.
CDR NOTES | 1

LIBERAL CONSTRUCTION OF THE RULES
- Must be liberally construed.
- A strict and rigid application of the rules must always be eschewed
if it would subvert their primary objective of enhancing substantial
justice.
- Procedural rules must be liberally interpreted and applied so as not
to frustrate substantial justice.
o However, to justify relaxation of the rules, a satisfactory
explanation and subsequent fulfillment of the
requirements have always been required.
NOTE that there is no vested rights in the rules on evidence because they
are subject to change by the SC pursuant to its powers to promulgate rules
concerning pleading, practice, and procedure.
- The change is subject to the constitutional limitation on the
enactment of ex post facto laws.
WAIVER OF THE RULES
- The Rules may be waived.
- When an otherwise objectionable evidence is not objected to, the
evidence becomes admissible because of waiver.
- As long as no law or principles of morality, good customs, and
public policy are transgressed or no rights of third persons are
violated, the rules on evidence may be waived by the parties.
- However, it is submitted that failure to object with respect to
privileged communication involving state secrets communicated to
a public officer in official confidence should not be construed as a
waiver of the privileged character of the communication because
public policy considerations as when the state secret is one
involving national defense and security
ART 6. Rights may be waived, unless the waiver is contrary to law, public
order, public policy, morals, or good customs, or prejudicial to a third person
with a right recognized by law.
As long as no law or principles of morality, good customs and public policy
are transgressed or no rights are violated, the rules of evidence may be
waived by the parties.
B. ADMISSIBILITY OF EVIDENCE
REQUISITES
- Rule 128, Section 3
- Evidence is admissible when it is relevant to the issue and is not
excluded by the law or these rules.
ADMISSIBILITY INVOLVES TWO QUESTIONS:
- Relevancy
- Competency
Wigmore’s Two Axioms of Admissibility
- That none but facts having rational probative value are admissible;
and
- That all facts having rational probative value are admissible unless
some specific rule forbids them.
NOTE: The first axiom is, in substance, the axiom of relevance while the
second axiom is of competence.
Will relevancy alone make the evidence admissible?
- No. An item of evidence may be relevant but not admissible. It is
not admissible because although relevant, it may be incompetent,
i.e., it is excluded by law or by a particular rule or by both.
Illustrations:
In a prosecution for homicide, the witness swears the accused killed the
victim because his ever truthful boyhood friend told him so.
- The testimony although relevant, is inadmissible because witness
was not testifying based on his personal knowledge of the event.
- The testimony is hearsay.
In a civil case for collection of sum of money, testimony of an eyewitness
to the tranx between the creditor and debtor is is competent evidence
EVIDENCE PRELIMS | J. GITO
- Because the witness would be testifying on the basis of his personal
knowledge
- HOWEVER, if the subject of the testimony includes the alleged
frequent bouts of the debtor, that portion is inadmissible.
Upon timely objection, oral evidence will be excluded to prove a contract of
sale of a parcel of land which does not conform to the Statute of Frauds.
1. RELEVANCY
- It is the relationship of evidence to the fact in issue. If the evidence
will tend to prove the fact in issue, then the evidence is relevant. If
there is no connection at all, then the evidence is not relevant.
- How do you determine the connection of evidence with the fact in
issue?
o It is not matter of law, rather it is a matter of logic.
What is the test for relevance
- If the evidence induces belief as to the existence or the non-
existence of the fact in issue, the evidence is relevant. If it does not
issue such belief, it is irrelevant.
NOTE: Although competency of the evidence is a necessary component of
admissible evidence, the question that most often arises in court is the
relevance of the evidence. When an advocate offers a piece of evidence for the
court’s consideration, he offers the evidence to prove a fact.
This may either be:
a. Immediate fact in issue
b. Ultimate fact in issue
Test for Determining the Relevancy
- Evidence must have such a relation to the fact in issue as to induce
belief in its existence or nonexistence. (Sec. 4, Rule 128)
- To be relevant, evidence must relate to an issue of fact. If not, then
it is irrelevant.
- If you introduce evidence for a fact not alleged in the pleading, then
the introduction of such evidence may be objected for being
irrelevant.
NOTE: The matter of relevance is a matter that is addressed to the Court
(People v. Galleno, 291 SCRA 761). Accordingly, there is no precise and
universal test of relevancy provided by law. However, the determination of
whether particular evidence is relevant rests largely at the discretion of the
court, which must be exercised according to the teachings of logic and
everyday experience.
Problem:
- A was charged for killing B. The information was captioned as
Murder. However, the Information failed to allege circumstances
which would qualify the killing to murder. During trial, the prosecution
introduced evidence of treachery.
- If you are the counsel for the defense, what procedural action will
you do to protect the interest of your client?
Answer:
- I will object to the presentation of evidence of treachery on the
ground of relevancy. The qualifying circumstance was not put as an
issue for failure to allege the same in the Information.
- Under Section 8, Rule 110, it is required that the qualifying and
aggravating circumstance must be specified in the Information.
DESIGNATION OF THE OFFENSE
- Section 8, Rule 110
o The complaint or information shall state the designation of
the offense given by the statute, aver the acts or omissions
constituting the offense, and specify its qualifying and
aggravating circumstances. If there is no designation of
the offense, reference shall be made to the section or
subsection of the statute punishing it
People vs. Feliciano, May 5, 2014
- In Anti-Hazing Law, disguise is an aggravating circumstances. The
information was not able to allege that the participants in the hazing
were wearing mask. But, they were able to prove the same during
trial.
CDR NOTES | 2
 - Is it proper for the Court to appreciate the fact of wearing mask as
an aggravating circumstance? Is objection on the ground that it is incompetent an accepted form of
- No. The failure to state an aggravating circumstance, even if duly objection?
proven during the trial, will not be appreciated as such. It will violate - No, because it is a general objection. The objection should specify
the constitutional right of the accused to be informed of the nature the ground for its incompetence such as leading, hearsay or parol.
and cause of the accusation against him. - Note that courts neither need nor appreciate generalities. General
objections are viewed with disfavor because specific objections are
COLLATERAL MATTERS required by Sec. 36, Rule 132.
- Thus, for purposes of trial objections, evidence is never incompetent.
GR: Evidence on collateral matters shall not be allowed, It is people who are. It is a sloppy usage to object to a testimony or
a document as incompetent.
XPN: When it tends in any reasonable degree to establish the probability - Such term more appropriately describes a witness who under
or improbability of the fact in issue. (Sec. 4, Rule 128) evidentiary rules, does not possess the qualifications of a witness or
suffers from disqualification to be one.
- Collateral matters are not direct evidence.
- It is just additional or auxiliary evidence to the fact in issue. It could Although evidence is incompetent if excluded by law or rules, evidence is
not directly prove the fact in issue. not objected to on the ground that it is incompetent.
- The objection must specify the ground for its incompetent (e.g.
Illustration: leading, hearsay, or parol)
- Although evidence of character is generally inadmissible, the
accused may prove his good moral character which is pertinent to ADMISSIBLE EVIDENCE DISTINGUISHED FROM CREDIBLE EVIDENCE
the moral trait involved in the offense charged.
ADMISSIBLE EVIDENCE CREDIBLE EVIDENCE
RELEVANCE OF EVID ON THE CREDIBILITY OF WITNESS Means that the evidence is Refers to the worthiness of
- Credibility or lack of it is always relevant. of such character that the belief, that quality which
- In every proceeding, the credibility of the witness is always an court is bound to receive it renders a witness worthy
issue because it has the inherent tendency to prove or disprove or allow it to be introduced of belief. It means
the truthfulness of his assertions and consequently, the probative at the trial. It does not, “believability.”
value of the evidence. however, guarantee
- Every type of evidence sought to be admitted, whether it be an credibility.
object or document, requires the testimony of a witness who shall
identify, testify, and affirm or deny the authenticity of the evidence. ADMISSIBILITY AND WEIGHT OF THE EVIDENCE\
- Thus, Sec. 11 of Rule 132 authorizes his impeachment by
contradictory evidence. ADMISSIBILITY WEIGHT OR PROBATIVE
VALUE
The Importance of Credibility of A Witness refers to the question of refers to the question of
- Allow the adverse party to test such credibility through cross- WON the evidence is to be WON it proves an issue. It
examination. considered at all. It also also pertains to its
depends on it relevance tendency to convince and
What is the purpose of cross-examination? and competence. persuade.
- The importance of the credibility of a witness in a judicial
proceeding is highlighted by rules which allow the adverse party to
test such credibility through a process called cross- examination. Thus, a particular item of evidence may be admissible, but its weight depends
on judicial evaluation within the guideline provided by the rules of evidence.
NOTE: The adverse party can test the credibility of the witness through cross-
examination not only on matters taken up in the direct examination. The KINDS OF ADMISSIBILITY
broad spectrum of the questions allowable in a cross examination of a
witness includes questions on matters connected with those taken up by 1. Multiple Admissibility
direct examination. - Evidence which is admissible for two or more purposes.
- It includes questions designed to grant the cross-examiner o Example: Declaration of a dying person – it may be offered
sufficient fullness and freedom to test the accuracy and as dying declaration, or part of res gestae, or declaration
truthfulness if the witness, his interest or bias, or the reverse (Sec. against interest.
6, Rule 132). - Sometimes, it is inadmissible for one purpose but admissible for
another or vice versa.
2. COMPETENCY o Example: Evidence of a person’s bad reputation for truth,
- it is one that is not excluded by the law or rules. honesty, or integrity is objectionable if offered to prove that
- If the test of relevancy is logic and common sense, the test of he committed the crime charged but it may be admissible
competency is the law or rules to impeach the credibility of a witness under the authority
- If a law or particular rule excludes evidence, it is incompetent. of Sec. 11, Rule 132.
- May also be admissible against one party, but not against another.
The question as to competence is: is the evidence allowed by law or rules?
- If allowed, competent NOTE: If the testimony is offered to prove that the subject was completed
- If not, incompetent pursuant to the contract, it cannot be offered to prove that the project was
delayed.
Illustration: - It must be noted that the purposes for which evidence is offered must
- If it is required that only documentary evidence to which a yellow be specified because such evidence may be admissible for several
ribbon is attached may be admitted, but the adverse counsel purposes under the doctrine of multiple admissibility, otherwise the
presents the evidence to which a red ribbon is attached, the adverse party cannot interpose the proper objection.
document is to be excluded.
May a private document be offered and admitted in evidence both as
In general, competence refers to eligibility of an evidence to be received as documentary and as object evidence?
such. - A private document may be offered and admitted both as
documentary evidence and as object evidence depending on the
However, when applied to a witness, the term competent refers to the purpose for which the document is offered. If offered to prove its
qualifications of the witness existence, condition or for any purpose other than the contents of a
- in other words, it refers to his eligibility to take the stand and testify. document, the same is considered as an object evidence.

EVIDENCE PRELIMS | J. GITO CDR NOTES | 3

 - When a private document is offered as proof of its contents, the
same is considered as a documentary evidence (Sec. 2, Rule 130
of Rules of Court).
2. Conditional Admissibility
- Sometimes the relevance of an evidence is not readily apparent at
the time it is offered, but the relevance of which may be seen when
connected to other pieces of evidence not yet offered.
- In which case, such evidence may be admitted conditionally.
3. Doctrine of Curative Admissibility
- allows a party to introduce otherwise inadmissible evidence to
answer the opposing party’s previous introduction of inadmissible
evidence.
- Thus, a party who first introduces either irrelevant or incompetent
evidence into the trial cannot complain of the subsequent
admission of similar evidence from the adverse party relating to
the same subject matter
Example
In a collection suit filed by A against B, A introduced evidence that B
borrowed money from C, D and E, but did not pay. B objects on the ground
that it is immaterial and constitute character assassination.
- Nevertheless, the Court allowed. B, can introduce evidence
that he already paid his debt to C, D and E.
In an action for damages arising from a car accident, the plaintiff, despite
objections from the defendant, introduced evidence to show that in the past,
the defendant had injured pedestrians because of his negligence. Is this
evidence admissible? Discuss the effect of the doctrine of curative
admissibility.
- This kind of evidence is admissible because evidence that a
person did certain thing at one time is not admissible to prove that
he did the same thing.
- If we follow the doctrine of curative admissibility, the court may be
asked to give the party against whom the evidence was admitted
the chance to contradict or explain the alleged past acts he
committed and to show evidence of past acts of diligence of the
defendant to counteract the prejudice which the improperly
admitted evidence may have caused.
Does the doctrine of curative admissibility refer to a situation where
incompetent evidence was erroneously received by the court despite
the objection from the other party? dapat may objection, tapos di pinansin ng Court
- Local case law does not extensively address the matter but some
American cases, they hold that the doctrine of curative
admissibility, in its broadest form, allows a party to introduce
otherwise inadmissible evidence when necessary to counter the
effect of improper evidence previously admitted by the other party
without objection.
- Another case also allowed curative evidence even if there was a
failure to object to the objectionable document.
- It is submitted in our jurisdiction, the doctrine of curative
admissibility should not be made to apply where the evidence was
admitted without objection because the failure to object constitutes
a waiver of the admissibility of the evidence. In our jurisdiction,
admissible evidence not objected to become admissible.
NOTE: An objection to an otherwise inadmissible evidence is not merely
suggested but required by the Rules of Court.
Sec. 36, Rule 130, Rules of Court:
- Objections to evidence offered orally must be made immediately
after the offer is made and objections to questions propounded
in the course of the oral examination of the witnesses shall be
made as soon as the grounds therefor shall become apparent.
NOTE: It is only where the objection was incorrectly overruled, the court
should allow the other party to introduce evidence to contradict the evidence
improperly admitted in order to cure the prejudice caused to the other party
against whom the offered evidence was erroneously admitted.
- Common reason suggests that there is a waiver, there is no defect
to cure.
What is the reason for the limitation as to the application
EVIDENCE PRELIMS | J. GITO
- If no limitations are placed on the doctrine of curative admissibility,
the doctrine will predictably be open to abuse and will encourage
counsel not to object to an admissible evidence to “open the door”
for him to introduce inadmissible evidence. The more logical rule
should be done which will not allow a party to be heard through the
offering of inadmissible evidence if he declines or fails to timely
object to the other party’s inadmissible evidence.
- One American case puts it: “A breach of the rules of evidence by one
party does not suspend those rules with respect to the other party”
CLASSIFICATION OF EVIDENCE
DIRECT CIRCUMSTANTIAL
It proves a fact without the It is that evidence which
need to make an inference indirectly proves a fact in
from another fact. issue through an inference
which the fact finder draws Judge is the fact finder
from the evidence
established.
NOTE: When the evidence is circumstantial, a fact is established by making
an inference from a previously established fact. The court, thus, uses a fact
from which an assumption is drawn.
Conviction by Circumstantial evidence, Requisites:
- There is more than one circumstance
- The facts from which the inference are derived are proven
- The combination of all the circumstances is such as to produce
conviction beyond reasonable doubt
NOTE: A conviction based on circumstantial evidence must exclude each and
every hypothesis consistent with innocence.
- Hence, if the totality of the circumstances eliminates beyond
reasonable doubt the possibility of innocence, conviction is proper.
People vs Bernal
- Circumstantial evidence may be a basis for conviction and such
conviction can be upheld provided the circumstances proven
constitute an unbroken chain which leads to one fair and reasonable
conclusion that points to the accused to the exclusion of all others as
the guilty person.
- Circumstantial evidence is not a weaker defense vis-à-vis direct
evidence.
- As to probative value, the Court considers circumstantial evidence
of a nature identical to direct evidence because no greater degree of
certainty is required when the evidence is circumstantial than when
it is direct.
- In both types of evidence what is required is proof beyond
reasonable doubt.
People vs Daliray
- direct evidence is not dispensable to prove a crime charged. It may
be proved by circumstantial evidence.
Bastian v. CA
- Direct evidence of the commission of a crime is not the only basis on
which a court draws its findings of guilt.
- Established facts that form a chain of circumstances can lead the
mind intuitively or impel a conscious process of reasoning towards a
conviction.
- If direct evidence is insisted on under all circumstances, the
prosecution of vicious felons who commit heinous crimes in secret or
secluded places will be impossible to prove (People v. Sevilleno).
People v. Corpuz
- When the prosecution’s evidence rests on circumstantial evidence
alone, it is imperative that the chain of circumstances establish the
guilt of the accused beyond reasonable doubt. Accordingly, where
the evidence admits 2 interpretations one of which is consistent with
guilt and the other with innocence, the accused must be acquitted.
Amora v. People
- Direct evidence is not the sole means of establishing guilt beyond
reasonable doubt. Established facts that form a chain of
circumstances can lead the mind intuitively or impel a conscious
process of reasoning towards a conviction.
CDR NOTES | 4
 - Indeed, rules on evidence and principles in jurisprudence have
long recognized that the accused may be convicted through
circumstantial evidence.
CUMULATIVE CORROBORATIVE
It refers to evidence of the It is one which is
same kind and character as supplementary to that
that already given which already given tending to
tend to prove the same strengthen or confirm it. It is
proposition. additional evidence of
Ex. Lahat testimonial evidence different character.
(same kind)
Corroborative testimony is not always required. There is no law which
requires that the testimony of a single witness has to be corroborated, except
where expressly mandated in determining the value and credibility of
evidence. Witnesses
are to be weighed, not numbered (People v. Pabalan).
- The testimony of a sole eyewitness is sufficient to support
conviction so long as it is clear, straightforward and worthy of
credence by the trial court (People v. Rama).
When is corroborative evidence necessary?
- It is only when there are reasons to suspect that the witness
falsified the truth or that his observations are inaccurate
(Mangangey v. Sandiganbayan).
Corroboration of the testimony of a child witness
- Under the Rule on Examination of a Child Witness, corroboration
shall not be required of a testimony of a child.
- His testimony if credible by itself, shall be sufficient to support a
finding of fact, conclusion, or judgment subject to the standard of
proof required in criminal and non-criminal cases (People v.
Rama).
POSITIVE NEGATIVE
Evidence is said to be It is negative when the
positive when a witness witness states that an event
affirms in the stand that a did not occur or that state of
certain state of facts does facts alleged to exist did not
exist or a certain event exist.
happened.
NOTE: These categories of evidence have been normally associated with
testimonial evidence but there is no rule which precludes their application to
other forms of evidence.
Positive and negative evidence may likewise refer to the presence or
absence of something.
- Thus, the presence of fingerprints of a person in a particular place
is positive evidence of his having been in said place although
absence of his fingerprints does not necessarily mean he was not
in the same place.
Weight of Positive and Negative
- The defense of denial is viewed with disfavor for being inherently
weak. It cannot prevail over the positive and credible testimony of
prosecution witnesses (People vs. Reyes, GR No. 194606, Feb.
18, 2015)
- Greater weight is given to positive identification of the accused by
the prosecution witnesses than the accused’s denial (People vs.
Solina, January 13, 2016)
Is a negative finding on a paraffin test a conclusive evidence that one
has not fires a gun?
- No, because it is possible for a person to fire a gun and yet bear
no traces of nitrates or gunpowder as when the culprit washes his
hands or wears gloves (People v. Cerilla, November 28, 2007).
C. MISCELLANEOUS DOCTRINES
FALSUS IN UNO, FALSUS IN OMNIBUS
- “False in one thing, false in everything”
- If the testimony of a witness on a material issue is willfully false
and given with an intention to deceive, the jury may disregard all
the witness’ testimony.
- This doctrine deals only with the weight of the evidence and not a
positive rule of law.
EVIDENCE PRELIMS | J. GITO
- Before this may be applied, the witness must be shown to have
willfully falsified the truth on one or more material points.
ALIBI; DENIAL
The defense of alibi is inherently weak and must be rejected when the identity
of the accused is satisfactorily and categorically established by eyewitness to
the offense, esp. when such eyewitnesses have no ill-motive to testify falsely.
- Alibi is not always false and without merit.
Denial is an inherently weak defense and must be buttressed by other
persuasive evidence of non-culpability to merit credibility.
- The defense of denial fails even more when the assailant was
positively identified by credible witnesses, against whom no ulterior
motive could be ascribed.
The well-established rule is that denial and alibi are self-serving negative
evidence; they cannot prevail over the spontaneous, positive, and credible
testimonies of the prosecution witnesses who pointed to and identified the
accused-appellant as the malefactor.
FRAME-UP
- For this claim to prosper, the defense must adduce clear and
convincing evidence to overcome the presumption.
- The defense is not looked upon with favor due to its being
conveniently concocted and is commonly used as a defense in most
prosecutions arising from the violations of Dangerous Drugs Act
DELAY AND INITIAL RELUCTANCE IN REPORTING A CRIME
- It does not render testimonies false or incredible, for the delay may
be explained by the natural reticence of most people and their
abhorrence to get involved in a criminal case.
- More than this, there is always the inherent fear of reprisal, which is
quite understandable, esp. if the accused is a man of power and
influence.
FLIGHT OF NON-FLIGHT OF THE ACCUSED
- Non-flight does not signify innocence; it is simple inaction, which
may be due to several factors.
- Flight is indicative of guilt, but its converse is not necessarily true;
flight per se is not synonymous with guilt and must not always be
attributed to one’s consciousness of guilt.
o HOWEVER, when flight is unexplained, it is a
circumstance from which an inference of guilt may be
drawn.
CHAPTER II
A. BURDEN OF PROOF AND BURDEN OF EVIDENCE
1. BURDEN OF PROOF
- Section 1, Rule 131
- Burden of proof is the duty of a party to present evidence on the facts
in issue necessary to establish his claim or defense by the amount
of evidence required by law.
- Onus probandi
Relevant Concepts
- In civil cases, it is a basic rule that the party making allegations has
the burden of proving them by preponderance of evidence.
- By preponderance of evidence is meant that evidence adduced by
one side is, as a whole, superior to that of the other side (NFF
Industrial Corporation vs. G& L Brokerage, January 12, 2015).
- In administrative cases, the complainant bears the burden in
proving the averments of his complaint by substantial evidence.
However, conjectures and suppositions are not sufficient to prove
accussations (Lorenzana vs. Austria, April 2, 2014).
- In termination cases, the burden rests upon the ER to show that the
dismissal is for a valid and just cause.
- The burden of proof that a debt was contracted lies with the creditor-
plaintiff. He who asserts, not who denies, must prove (Homeowners
Savings & Loan Bank vs. Dailo, 453 SCRA 283).
o However, he who pleads payment has the burden of
proving it. (Bognot vs. RRI Lending, September 24, 2014)
What is the test for determining where the burden of proof lies?
CDR NOTES | 5
 - which party to an action or suit will fail if he offers no evidence
competent to show the facts averred as basis for the relief he
seeks to obtain.
- If the defendant has affirmative defenses, he has the burden of
proving them. (Aznar Brothers Realty vs. Aying, 458 SCRA 496)
When BoP is Fixed
- Fixed by pleadings.
- The claim of the plaintiff is spelled out in his complaint.
- The defendant’s defenses are to be found in his answer in the
complaint.
- The burdens of proof of both parties do not shift during the course
of the trial.
2. BURDEN OF EVIDENCE
- It is the duty of a party to go forward with evidence to overthrow
the prima facie evidence against him (People vs. CA, February 25,
2015)
- If the accused admits the killing, the burden of evidence is shifted
to the accused to prove his defenses (Flores vs. People, February
27, 2013)
EQUIPOSE RULE
- Based on the principle that no one shall be deprived of life, liberty,
or property without due process of law.
- It refers to a situation where the evidence of the parties is evenly
balance, or there is doubt on which side the evidence
preponderates.
- In this case, the decision should be against the party with the
burden of proof.
- It is not applicable where the evidence presented is not equally
weighty, such as where the evidence of the prosecution is
overwhelming.
In criminal cases, the rule provides that where the evidence is evenly
balance, the constitutional presumption of innocence tilts the scales in favor
of the accused.
In labor cases, if doubt exists between evidence presented by the ER and
EE, the scales of justice must be tllted in favor of the EE.
B. PRESUMPTIONS
CONCEPT OF PRESUMPTIONS
- It is an assumption of fact resulting from the rule of law which
require such fact to be assumed from another fact or group of facts
found or otherwise established in an action (Black Law Dictionary)
- It is an inference of the existence or nonexistence of a fact which
courts are permitted to draw from proof of other facts (In the matter
of the Intestate of Delgado and Rustia, 480 SCRA 334)
- It is not an evidence. They merely affect the burden of offering
evidence.
Examples
- Prior rents or installments had been paid when a receipt for the
later installment is produced (Sec. 3(i), Rule 131; Art. 1177)
- Common Carrier is presumed to be liable (1756)
- Money paid by one to another was due to the latter (Sec. 3(f), Rule
131)
- Official duty has been regularly performed (Sec. 3(m), Rule 131)
EFFECT OF PRESUMPTION
- A party in whose favor the legal presumption exists may rely on
and invoke such legal presumption to establish a fact in issue.
- One need not introduced evidence to prove the fact for a
presumption is prima facie proof of the fact presumed (Diesel
Construction vs. UPSI Property, 549 SCRA 12)
INFERENCE PRESUMPTION
Factual conclusion that can A rule of law directing that
rationally be drawn from if a party proves certain
other facts facts at a trial or hearing,
the factfinder must also
One that is a result of the accept an additional fact as
reasoning process. It need proven unless sufficient
not have a legal effect evidence is introduced
EVIDENCE PRELIMS | J. GITO
because it is not mandated tending to rebut the
by law. presumed facts.
In a sense, a presumption
is an inference w/ is
mandatory unless rebutted
KINDS OF PRESUMPTION
- Presumptions are classified into of law and of fact
A. Presumptions of Law
A.1 Conclusive
- when the presumption becomes irrebuttable upon the presentation
of evidence and any evidence tending to rebut the presumption is not
admissible
Conclusive Presumptions under the Rules Section 2, Rule 131
- Whenever a party has, by his own declaration, act, or omission,
intentionally and deliberately led another to believe a particular thing
is true, and to act upon such belief, he cannot, in any litigation arising
out of such declaration, act or omission, be permitted to falsify it;
- The tenant is not permitted to deny the title of his landlord at the time
of the commencement of the relation of landlord and tenant between
them.
Estoppel
- Prevents persons from going back on their own acts and
representations, to the prejudice of others who have relied on them.
A.2 Disputable
- if it may be contradicted by other evidence.
Effect of Disputable Presumption
- The effect of a presumption upon a burden of prrof is to create the
need of presenting evidence to overcome the prima facie case
created by the presumption.
- If no contrary proof is offered, the presumption will prevail (Diaz vs.
People, GR No. 2018113, December 2, 2013)
Disputable Presumption Under the Rules
- Sec. 3(m), Rule 131
- That official duty has been regularly performed.
- The presumption of regularity in the performance of official functions
cannot, by itself, overcome the presumption of innocence.
- Evidence of guilt beyond reasonable doubt, is nothing else, is
required to erase all doubts as to the culpability of the accused (Zafra
vs. People, 671 SCRA 396).
- In the absence of satisfactory explanation, one found in possession
of and used a forged document is the forger and therefore guilty of
falsification. If a person had in his possession a falsified document
and made use of it, taking advantage of it and profiting from it, the
clear presumption is that he is the material author of the falsification
(Maliwat vs. CA, 256 SCRA 718)
Examples:
1. That a person is innocent of a crime or a wrong 

2. That an unlawful act was done with unlawful intent;

3. That a person intends the ordinary consequences of his 
voluntary
act 

4. That a person takes ordinary care of his business
5. The evidence willfully suppresses would be adverse if 
produced;
6. That money paid by one another was due to the latter;
7. That a thing delivered by one to another belonged to the latter;
8. That an obligation delivered up to the debtor has been paid
9. That prior rents or installments had been paid when a receipt for the
latter ones is produced;
10. That a person acting in a public office was regularly appointed or
elected to it;
11. That official duty has been regularly performed;
12. That a court, or judge, acting as such, whether in the Philippines or
elsewhere, was acting in the lawful 
exercise of jurisdiction;
13. That private transactions have been fair and regular;
14. That the ordinary course of business has been followed;
15. That there was a sufficient consideration for a contract
CDR NOTES | 6
 16. That a negotiable instrument was given or indorsed for a 
sufficient
consideration. 
 to which they testify, the probability or improbability of their
B. Presumptions of Fact
- When assumption or made from the facts without any direction or
positive requirement of law
- It arises because reason itself allows it.
o If A attacks B without provocation, the logical
presumption arises that A does not have tender feelings
towards B.
PRESUMPTIONS OF DEATH
1. Absence of 7 years
- If it is unknown whether or not the absentee is still alive, he
is considered dead for all purposes but not of succession
2. Absence of 10 years
- The absentee shall be considered dead for the purpose of
opening his succession only after an absence of 10 years.
- Before lapse of 10 years, he shall not be considered dead if
the purpose if the opening of his succession.
3. Absence of 5 years
- In relation to the immediately preceding number, if the
absentee disappeared after the age of 75 years, his absence
of 5 years is sufficient for the purpose of opening his
succession in which case, it is not necessary to wait for the
lapse of 10 years.
4. Absence of 4 years
- A person is deemed dead for all purposes even for the
purpose of the division of his estate among the heirs in any
of the ff cases:
o If the person is on board a vessel that was lost during
a sea voyage or an aircraft which is missing
o if the person is a member of the armed forces
o if the person has been in danger of death under other
circumstances and whose existence has not been
known for 4 years.
o If the person is married and has been absent for 4
consecutive years, the spouse present may contract a
subsq. Marriage if he or she has a well-founded belief
that the absent spouse is already dead.
PRESUMPTION OF INNOCENCE
- The presumption of innocence is founded upon the first principles
of justice. Its purpose is to balance the scales in what could
otherwise be an uneven contest between the lone individual pitted
against the People and all the sources at their command.
- The accused must be acquitted and set free if his guilt cannot be
proved beyond the whisper of a doubt.
- Accordingly, conflicts in evidence must be resolved upon the
theory of innocence rather than upon a theory of guilt when it is
possible to do so (People v. Alvario, G.R. No. 120437).
C. QUANTUM OF EVIDENCE
PROOF BEYOND REASONABLE DOUBT
- Rule 133, Section 2. Proof beyond reasonable doubt. - In a criminal
case, the accused is entitled to an acquittal, unless his guilt is
shown beyond reasonable doubt.
- Proof beyond reasonable doubt does not mean such a degree of
proof as, excluding possibility of error, produces absolute certainty.
- Moral certainty only is required, or that degree of proof which
produces conviction in an unprejudiced mind.
PREPONDERANCE OF EVIDENCE
- Rule 133, Section 1
- Preponderance of evidence, how determined. — In civil cases, the
party having the burden of proof must establish his case by a
preponderance of evidence.
- In determining where the preponderance or superior weight of
evidence on the issues involved lies, the court may consider all
the facts and circumstances of the case, the witnesses' manner
of testifying, their intelligence, their means and opportunity of
EVIDENCE PRELIMS | J. GITO
knowing the facts to which they are testifying, the nature of the facts
testimony, their interest or want of interest, and also their personal
credibility so far as the same may legitimately appear upon the trial.
- The court may also consider the number of witnesses, though the
preponderance is not necessarily with the greater number.
In civil cases, the party having the burden of proof must establish his case by
a preponderance of evidence.
- It is the weight, credit, and value of the aggregate evidence on either
side and usually considered to be synonymous with the term “greater
weight of the evidence”
It also means probability of the truth.
- It is the evidence which is more convincing to the court as worthier
of belief that which is offered in opposition thereto.
SUBSTANTIAL EVIDENCE
- Rule 133, Section 5
- In cases filed before administrative or quasi-judicial bodies, a fact
may be deemed established if it is supported by substantial
evidence, or that amount of relevant evidence which a reasonable
mind might accept as adequate to justify a conclusion.
- It refers to such relevant evidence which reasonable mind might
accept as adequate to support a conclusion (Montinola vs. PAL,
Sept. 14, 2014)
- This degree of evidence applies to administrative cases – those filed
before admin and quasi-judicial bodies.
Quantum of Evidence in a Petition for A Writ of Amparo
- The parties shall establish their claims by substantial evidence.
Will the acquittal an administrative result in the dismissal of the criminal
case?
- No. It will not follow.
- Administrative and criminal proceedings are two different
proceedings. They involve different procedure.
- Thus, the prosecution is not precluded from adducing evidence to
discharge the burden of proof required in criminal cases. (Paredes
vs. CA, 528 SCRA 577)
CLEAR AND CONVINCING EVIDENCE
- It is clear and convincing if it produces in the mind of the trier of fact
a firm belief or conviction as to the allegation sought to be
established.
- It is intermediate, being more than preponderance of evidence, but
not to the extent of such certainty as is required beyond reasonable
doubt in criminal cases. (Black Law Dictionary)
When is quantum of clear and convincing evidence applied?
- In extradition proceedings (Govt., of Hongkong vs. Olalia, 521 SCRA
470)
- In proving justifying circumstance (People vs. Fontanilla, 664 SCRA
150).
- Forgery
- Annulment or reconveyance of title.
- An allegation of frame-up and extortion by police officers.
- Alibi or denial.
- Claiming of moral damages.
- A person who seeks confirmation of an imperfect or incomplete title
to a piece of land on the basis of possession by himself and his
predecessors-in-interests.
CHAPTER III. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS
JUDICIAL NOTICE
There are matters in litigation which must be admitted without need for
evidence.
Examples:
1. That a place where the crime was committed, such as Quezon City
actually exists
2. There is no need to adduce evidence that the statute allegedly
violated exist because the court is charged with knowledge of the law
CDR NOTES | 7
 it being the product of an official act of the legislative department
of the Philippines
3. There is likewise no need to adduce evidence that there are 24
hours in a day and that the sun rises in the east and sets in the
west.
4. The fact the Cebu lies in the Visayan Region needs no further
evidence.
Q: What is the basis of judicial notice?
A: It is based on the maxim, “what is known need not be proved,” hence
when the rule is invoked, the court may dispense with the presentation of
evidence on judicially cognizable facts.
Functions of judicial notice.
To abbreviate litigation by the admission of matters that need no evidence
because judicial notice is a substitute for formal proof of a matter by evidence.
- It takes the place of proof and is of equal force.
- Evidence shall be dispensed with because the matter is so well
known and is of common knowledge not to be disputable.
NOTE: Judicial notice cannot be used to fill in the gaps in the party’s
evidence. It should not be used to deprive an adverse party of the opportunity
to prove a disputed fact.
KINDS OF JUDICIAL NOTICE
Q: What are the kinds of judicial notice?
A:
1. Mandatory – no motion or hearing is necessary for the court to take
judicial notice of a fact because this is a matter which a court ought
to take judicial notice of.
2. Discretionary – public knowledge, capable of unquestionable
demonstration, ought to be known by the judges because of their
judicial functions.
A. Judicial Notice, Mandatory
A court shall take judicial notice, without the introduction of evidence, of the
existence and territorial extent of states, their political history, forms of
government and symbols of nationality, the law of nations, the admiralty and
maritime courts of the world and their seals, the political constitution and
history of the Philippines, the official acts of the legislative, executive and
judicial departments of the Philippines, the laws of nature, the measure of
time, and the geographical divisions. (Sec. 1, Rule 129)
When mandatory.
1. The existence and territorial extent of states
2. The political history, forms of the government and symbols of
nationality of sates
3. The law of nations
4. The admiralty and maritime courts of the world and their
5. seals
6. The political constitution and the history of the Philippines
7. The official acts of the legislative, executive and judicial
departments of the Philippines
8. The law of nature
9. The measure of time
10. The geographical divisions
- When the matter is subject to a mandatory judicial notice, no motion or
hearing is necessary – a matter which a court ought to take judicial
notice of.
- It would be error for a court not to take a judicial notice of an amendment
of Rules of Court.
o Even if petitioners did not raise or allege the amendment of
the Rules of Court in their motion for reconsideration, the CA
should have taken mandatory judicial notice of the same.
Under Sec.1 of Rule 129, a court shall take judicial notice
among others, of the official acts not only of the legislative
and executive departments but also of the judicial
department. (Siena Realty Corp. v. Gal-lang)
- Every court must take judicial notice of decisions of the Supreme Court.
However, an affidavit attached to a pleading is not among the matters
which the rule mandatorily requires to be judicially notified. Hence, a
formal offer is necessary.
EVIDENCE PRELIMS | J. GITO
o A document, or any article for that matter, is not evidence
when it is simply marked for identification; it must be
formally offered, and the opposing counsel given an
opportunity to object to it or to cross-examine the witness called
upon to prove or identify it.
o A formal offer is necessary since judges are required to base
their findings of fact and judgment only and strictly upon the
evidence offered by the parties at the trial. Xxx
- The Court must have judicial notice of the declaration of the President as
an official act.
o In this case the Court took judicial notice of the declaration of
the President that the Philippine government had decided not
to continue with the ZTE-NBN Project due to several reasons
and constraints. They are official acts and thus, a matter of
mandatory judicial notice under Sec. 1 of Rule 129. (Suplico v.
NEDA)
- A court has the mandate to apply relevant statutes and jurisprudence in
determining whether the allegation in a complaint establish a cause of
action. A court cannot disregard decisions material to the proper
appreciation of the questions before it. (DENR v. DENR Region 12
employees)
Questions:
• Is it required to present evidence on the existence of the treaty of Paris?
• Is it required to present evidence on the existence of a country?
• Is it required to present evidence to prove the deliberation of Congress?
• Is it required to present evidence on the existence of a foreign law?
• What is processual presumption?
B. Judicial Notice, Discretionary
A court may take judicial notice of matters which are of 1) public knowledge,
or 2) are capable of unquestionable demonstration, or 3) ought to be known
to judges because of their judicial functions. (Sec. 2, Rule 129)
Q: What are the requisites for the principles of discretionary judicial notice to
apply?
A:
1. The matter must be one of common knowledge
2. The matter must be settled beyond reasonable doubt
3. The knowledge must exist within the jurisdiction of the court.
- The court cannot take judicial notice of any fact which, in part, is
dependent on the existence or non-existence of a fact which the court has
no constructive knowledge.
- Therefore, a court cannot take judicial notice of a factual matter in
controversy.
NOTE: The principal guide in determining what facts may be assumed to be
judicially known is that of notoriety. Judicially noticed fact must be one not
subject to a reasonable dispute that is either:
a. Generally known within the territorial jurisdiction of the trial court
b. Capable of accurate and ready determination by resorting to sources
whose accuracy cannot reasonably be questionable.
Facts which are universally known, and which may be found in encyclopedias,
dictionaries and other publications, are judicially noticed, provided they are of
such universal notoriety and so generally understood that they may be
regarded as forming part of common knowledge of every person.
- On the other hand, matters which are capable of unquestionable
demonstration pertain to fields of professional and scientific knowledge.
As to matters which ought to be known to judges because of their judicial
functions, an example would be facts which are ascertainable from the
record of the court proceedings, e.g., as to when the court notices were
received by a party (People v. Tundag, 342 SCRA 704).
Problem
There are two (2) civil cases pending between the same parties. One is
being heard by Branch 92. The other one is being heard by Branch 93. Can
Branch 92 take judicial notice of the case pending in Branch 93?
Suppose the two cases are pending in the same branch, which is Branch 92,
can the Judge take judicial notice of the other case between the same parties?
CDR NOTES | 8
Answer:
A court will take judicial notice of its own acts and records in the same case
(Republic vs. CA, 277 SCRA 633).
Courts are not authorized to take judicial notice of the contents of the records
of other cases, even such cases have been tried or pending in the same
court (LBP vs. Yatco Agricultural Enerprises, Jan. 15, 2014).
Q: Can a court take judicial notice of a factual matter in controversy?
A: No. Before taking such judicial notice, the court must “allow the parties to
be heard thereon” (Herrera v. Bollos, 374 SCRA 107).
Q: Where does the discretion lie?
A: Judicial notice rests on the wisdom and discretion of the court. The power
to take judicial notice must be exercised with caution and care must be taken
that the requisite notoriety exists.
Q: In case of doubt, how should the court resolve the same?
A: Any reasonable doubt on the matter sought to be judicially noticed must
be resolved against the taking of judicial notice (State Prosecutors v. Muro,
236 SCRA 505).
NOTE: To say that a court will take judicial notice of a fact is merely another
way of saying that the usual form of evidence will be dispensed with if
knowledge of the fact can be otherwise acquired. This is because the court
assumes that the matter is so notorious that it will not be disputed (Land Bank
of the Philippines v. Wycoco, 419 SCRA 67).
Sec. 3. Judicial notice, when hearing necessary. — During the trial, the court,
on its own initiative, or on request of a party, may announce its intention to
take judicial notice of any matter and allow the parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper court, on its own
initiative or on request of a party, may take judicial notice of any matter and
allow the parties to be heard thereon if such matter is decisive of a material
issue in the case. (n)
Q: Can market value be judicially noticed?
A: While the market value may be one of the bases in determining just
compensation, the same cannot be arbitrarily arrived at without considering
the factors to be appreciated in arriving at the FMV of the property. The court
should have allowed the parties to present evidence thereon instead of
practically assuming a valuation without the basis.
Judicial knowledge and knowledge of a Judge.
Judicial notice may be taken of a fact which judges ought to know because
of their judicial functions (Sec. 2, Rule 129).
Judicial notice is not the same with judicial knowledge.
The mere personal knowledge of the judge is not the judicial knowledge of
the court, and he is not authorized to make his individual knowledge of a fact,
not generally or professionally known, the basis of his action (Land Bank of
the Philippines v. Wycoco, 419 SCRA 67; State Prosecutors v. Muro, 236
SCRA 505).
Q: Is judicial notice limited by the actual knowledge of the individual judge or
court?
A: No. A judge must take judicial notice of a fact if it is one which is the proper
subject of judicial cognizance even if it is not within the personal knowledge.
A judge may not take judicial notice of a fact which he personally knows if it
is not part of evidence or not a fact generally known within its territorial
jurisdiction.
Q: What is the rule on foreign laws?
A: Courts of the forum will not take judicial notice of the law prevailing in
another country. Foreign laws must be alleged and proved.
Stage when judicial notice may be taken
The court can take judicial notice of a fact during or after trial:
1. Judicial notice may be taken during the trial of the case. The court,
during the trial, may announce its intention to take judicial notice
of any matter. It may do so on its own initiative or on the request
of any party and allow the parties to be heard.
Q: In the above rule, what is the purpose of the hearing?
EVIDENCE PRELIMS | J. GITO
A: Only for the purpose of determining the propriety of taking judicial notice of
a certain matter and not for the purpose of proving the issues in the case.
2. Judicial notice may also be taken by the proper court after the trial,
and before judgment. Judicial notice may also be taken on appeal.
The proper court, on its own initiative or on request of any party, may
take judicial notice of any matter and allow the parties to be heard
thereon if such matter is a decisive of a material issue in the case.
Judicial notice of foreign laws; Doctrine of Processual Presumption
Q: What is the rule on foreign laws?
A: It is well-settled that our courts cannot take judicial notice of foreign laws.
Like any other facts, they must be alleged and proved. Australian marital laws
for example, are not among those matters that judges are supposed to know
by reason of their juridical functions (Garcia v. Garcia-Recio, 366 SCRA 437).
Q: The rule is foreign laws must be alleged and proved. What is the effect of
the absence of proof?
A: Then, the foreign law will be presumed to be the same as the laws of the
jurisdiction hearing the case under the doctrine of processual presumption
(Northwest Orient Airlines v. CA, 241 SCRA 192).
Q: What if the foreign law is within the actual knowledge of the court such as
when the law is generally well known?
A: The court may take judicial notice of the foreign law (PCIB
v. Escolin, 56 SCRA 266).
NOTE: When the foreign law is part of a published treatise, periodical, or
pamphlet and the writer is recognized in his profession, or calling as expert in
the subject, the court may take judicial notice of the treatise containing the
foreign law. XPN to hearsay rule also
Judicial notice of the Law of Nations.
When the foreign law refers to the law of nations, said law is subject to a
mandatory judicial notice under Se. 1 of Rule
129. Under Sec. 2, Art. II of the Constitution, the Philippines adopts the
generally accepted principles of international law as part of the law of the land.
Judicial notice of Municipal Ordinances
- MTCs must take judicial notice of municipal ordinances in force in the
municipality in which they sit (U.S. v. Blanco, 37 Phil 126).
- An RTC must also take judicial notice of municipal ordinances in force in
the municipalities within their jurisdiction but only so required by law (City
of Manila v. Garcia, 19 SCRA 413).
- The CA may take judicial notice of municipal ordinances because nothing
in the Rules prohibits it from taking cognizance of an ordinance which is
capable of unquestionable demonstration (Gallego v. People, 8 SCRA
813).
Judicial notice of a Court’s Own acts and records
A court may take judicial notice of its own acts and records in the same case
(Republic v. CA, 277 SCRA 633).
- The court is not authorized to take judicial notice of the contents of the
records of other cases, even when such cases have been tried or are
pending in the same court, and notwithstanding the fact that both cases
may have been heard or are actually pending before the same judge
(Tabuena v. CA, 196 SCRA 650).
Q: What are the exceptions to this rule?
A:
1. When in the absence of any objection, with knowledge of the opposing
party, the contents if said other cases are clearly referred to by title
and number in a pending action and adopted or read into the record
of the latter
2. When the original record of the other case or any part of the other case
or any part of it is actually withdrawn from the archives at the court’s
discretion upon the request, or with the consent, of the parties, and
admitted as part of the record of the pending case (Tabuena v. CA,
196 SCRA 650).
Rule of Judicial Notice of Post office practices
- That a registered letter when posted is immediately stamped with the date
of its receipt, indicating therein the number of registry, both on the
covering envelope itself and on the receipt delivered the letter to the office
is not a proper subject of judicial notice.
CDR NOTES | 9
- This post office practice is not covered by any of the instances under
the Rules and is not of unquestionable demonstration (Republic v. CA,
107 SCRA 504)
Judicial notice of banking practices
Q: May judicial notice be taken of the practice of banks in conducting
background checks on borrowers and sureties?
A: Yes. It is noted that it is their uniform practice, before approving a loan, to
investigate, examine, and assess would- be borrowers’ credit standing or real
estate offered as security for the loan applied for (Solidbank Corp. v.
Mindanao Ferroalloy Corp., 464 SCRA 409).
Judicial notice of financial condition of the government
- Judicial notice could be taken of the fact that the government is and has
for many years been financially strapped, to the point that even the most
essential services have suffered serious curtailment (La Bugal-B’laan
Tribal Association v. Ramos, 445 SCRA).
NOTICE: The official acts of the legislative, executive and judicial
departments are proper subjects of mandatory judicial notice (DENR v.
DENR Region 12 Employees).
Judicial notice of other matters
1. The trial courts can take judicial notice of the general increase in
rentals of real estate especially of business establishments.
2. A court cannot take judicial notice of an administrative regulation
or of a statute that is not yet effective.
3. Judicial notice of the age of the victim is improper.
4. In this age of modern technology, the courts may take judicial
notice that business transactions may be made by individuals
through teleconferencing. (Expertravel and Tours v. CA, 459
SCRA 147).
5. It can be judicially noticed that the scene of the rape is not always
nor necessarily isolated or secluded, for lust is no respecter of time
or place (People v. Tundag, 342 SCRA 147).
6. The court has likewise taken judicial notice of the Filipina’s inbred
modesty and shyness and her antipathy in publicly airing acts
which blemish her honor and virtue.
7. The trial court properly took judicial notice that Talamban, Cebu
City is an urban area (Chiongbian-Oliva v. Republic, 2007).
8. It is of judicial notice that the judiciary is beset with the gargantuan
task in unclogging dockets, not to mention the shortage of judges
occupying positions in far flung areas (GSIS v. Vallrar, 2007).
9. Judicial notice can be taken of the fact that testimonies during the
trial are much more exact and elaborate than those stated in sworn
statements, usually being incomplete and inaccurate for a variety
of reasons.
10. Judicial notice can be had that drug abuse can damage the mental
faculties of the user.
11. The court cannot be expected to take judicial notice of the new
address of lawyer who has moved or to ascertain on its own
whether or not the counsel of record has been changed and who
the new counsel could possibly be or where he probably resides
or holds office.
JUDICIAL ADMISSIONS
Sec. 4.Judicial admissions. — An admission, verbal or written, made by the
party in the course of the proceedings in the same case, does not require
proof. The admission may be contradicted only by showing that it was made
through palpable mistake or that no such admission was made. (2a)
Q: What are the elements for a judicial admissions be considered?
A:
1. The same must be made by a party to the case.
2. The admission to be judicial must be made in the course of
proceedings in the same case. Otherwise, it will be considered as
an extra-judicial admission for purposes of the other proceeding
where such admission is offered.
3. Sec. 4 of Rule 129 does not require a particular form for an
admission. Such form is immaterial because the provision
recognized either a verbal or a written admission.
Q: Where can judicial admissions be made?
A: A part may make judicial admissions in:
1. Pleadings;
EVIDENCE PRELIMS | J. GITO
2. During trial, either verbal or written manifestations or stipulations; or
3. In other stages of the judicial proceedings.
The stipulation of facts at the pre-trial of a case constitutes judicial admissions.
They are binding and conclusive upon them. The veracity of judicial admissions
requires no further proof and may be controverted only upon a clear showing
that the admissions were made through palpable mistake or that no admissions
were made.
Admission in drafted documents
- An admission made in a document drafted for purposes of filling as a
pleading but never filed, is not a judicial admission. If signed by the party,
it is deemed an extrajudicial admission. If signed by the attorney, it is not
even an admission by the party. The authority of the attorney to make
statements for the client extend only to statements made in open courts
or in pleadings filed with the court (Jackson v. Schine Lexington).
Admissions made in pleadings and motions,
GR: Admissions made in the pleadings of a party are deemed judicial
admissions. This includes admissions made in the complaint. Thus, they
cannot be contradicted unless there is a showing that it was made through
palpable mistake or that no such admission was made.
- Admissions made in a motion are judicial admissions which are binding
on the party who made them. Such party is precluded from denying the
same unless there is a proof of palpable mistake (Herrera-Felix v. CA, 436
SCRA 87).
XPN: In those rare instances when the trial court, in the exercise of its discretion
and because of strong reasons to support its stand, may relive a party from the
consequences of his admission. It cannot be contradicted unless it can be
shown that the admission, the allegations, statements, or admissions contained
in a pleading are conclusive as against the pleader (Heirs of Pedro Clemeña v.
Heirs of Irene B. Bien, G.R. No. 155508).
- An answer is a mere statement of fact which the party filing it expects to
prove, but it is not evidence (Spouses Santos v. Spouses Lumbao, G.R.
No. 169129).
- An admission made in a pleading may be an actual admission as when a
party categorically admits a material allegation made by the adverse party.
An admission may also be inferred from the failure to specifically deny the
material allegations in the other party’s pleadings.
Averments in pleadings which are not deemed admissions
- There are averments in pleadings which are not deemed admitted even if
the adverse party fails to make a specific denial of the same like
immaterial allegations, conclusions, non-ultimate facts in the pleading as
well as the amount of unliquidated damages.
Implied admissions of allegations of usury
- Under sec. 11 of Rule 8, if the complaint makes an allegation of usury to
recover usurious interest, the defendant must not only specifically deny
the same but must also do so under oath. Otherwise, there is an implied
admission of the allegation of usury.
Implied admission of actionable documents
- When an action or defense is founded upon a written instrument, the
genuineness and due execution of the same instrument shall be deemed
admitted unless the adverse party, under oath, specifically denies them
and set forth what he claims to be the facts. Otherwise, there is a judicial
admission pursuant to sec. 8, Rule 9.
- Failure to deny the genuineness and due execution of an actionable
document does not preclude a party from arguing against the document
by evidence of fraud, mistake, compromise, payment, statute of
limitations, estoppels, and want of consideration. He is however precluded
from arguing that the document is a forgery because the genuineness of
the document has been impliedly admitted by his failure to deny the same
under oath.
Q: Does the failure of A to file a reply and deny the dacion and the confirmation
statement under oath constituted a judicial admission of the genuineness and
due execution of the said documents?
A: Yes. Also, in resolving a demurrer, the court should not only consider the
plaintiff’s evidence. It should also include judicial admissions, matters of judicial
notice, stipulations made during the pre-trial, admissions, and presumptions
(Casent Realty Development Corporation v. PhilBanking Corporation, G.R. No.
150731).
CDR NOTES | 10
Admissions in the Pre-trial of civil cases
- Admissions in the pre-trial, as well as those made during the
depositions, interrogatories or requests for admission, are all deemed
judicial admissions because they are made in the course of the
proceedings of the case.
- Admissions in pre-trial briefs are judicial admissions and well- settled is
the rule that an admission, verbal or written, made by a party in the
course of the proceedings in the same case, does not require proof.
- The parties are bound by the representations and statements in their
respective pre-trial briefs submission of which being mandatory in a pre-
trial of a civil case.
GR: The admissions of the parties during pre-trial as embodied in the pre-
trial order are binding and conclusive on them.
XPN: Unless there is a clear showing that the admission was entered
through palpable mistake.
Admissions in the pre-trial of criminal cases (Rule 118)
- An admission made by the accused in the pre-trial of a criminal case is
not necessarily admissible against him. To be admissible, the conditions
under Sec. 2 of Rule 118 must be complied with:
Sec. 2. Pre-trial agreement- All agreements or admissions made or entered during the
pre-trial conference shall be reduced in writing and signed by the accused and counsel,
otherwise they cannot be used against the accused.
Q: Does the rule requiring an admission made or entered into during the trial
conference to be reduced in writing and signed by the accused and his
counsel before the same may be used in evidence against the accused,
equally apply to stipulation of facts made during the trial?
A: No, a stipulation of facts entered into by the prosecution and defense
counsel during trial in open court is automatically reduced in writing and
contained in the official transcript of proceedings had in court. The conformity
of the accused in the form of his signature affixed thereto is unnecessary in
view of the fact than an attorney who is employed to manage a party’s
conduct of a lawsuit has a prima facie authority to make relevant admissions
by pleadings, by oral or written stipulation which unless allowed to be
withdrawn are conclusive. (People v. Hernandez, 206 SCRA 25; Silot vs.
Dela Rosa, 543 SCRA 533)
Q: During pre-trial Bimby personally offered to settle the case for 1M to the
private prosecutor, who immediately put the offer on record. Is Bimby’s offer
a judicial admission of his guilt?
A: Yes. A judicial admission is one that is verbal or written, made by a party
in the course of the proceedings in the same case.
Under Sec. 27 of Rule 130, the judicial admission could be considered as an
implied admission of guilt.
Implied admissions in the modes of discovery
- Admissions obtained through depositions, written interrogatories or
requests for admission are also considered judicial admissions.
- Under Sec.3 of Rule 26, any admission made pursuant to the request
for admission is for the purpose of the pending action only. The
admission shall not be considered as one for any other purpose nor may
the same be used against him in any other proceeding.
- Sec. 2 of Rule 26 requires the other party to file and serve a sworn
statement either denying specifically the matter of which an admission
or requested or setting forth in detail the reasons why he cannot
truthfully either admit or deny those matters.
o The failure to do so will result into an implied admission
of each of the matters of which an admission is
requested. Since the defendant failed to comply with the
requirements of the Rules, he is deemed to have made
an implied admission of the matters subject of the
request for admission.
Admission in amended pleadings
- When a pleading is amended, the amended pleading supersedes the
pleading that it amends and the admissions in the superseded pleading
may be received in evidence against the pleader.
- But the admission will be treated as extra- judicial admission
(Torres vs. CA, 131 SCRA 24; Ching vs. CA, 331 SCRA 16)
Nature of admissions in superseded pleadings
- Admissions in a superseded pleading are to be considered as
extrajudicial admissions which must be proven. Pleadings that have
been amended disappear from the record, lose their status as pleadings
EVIDENCE PRELIMS | J. GITO
and cease to be judicial admissions, and to be utilized as extrajudicial
admissions, they must, in order to have such effect, be formally offered in
evidence.
Admissions in dismissed pleadings
- Admissions made in pleadings that have been dismissed are merely
extrajudicial admissions.
Q: How about admission of a proposed state witness?
A: If the motion to discharge an accused as a state witness is denied, his sworn
statement, submitted to support the motion, shall be inadmissible in evidence
(Sec. 17, Rule 119)
Hypothetical admissions in a motion to dismiss
- A motion to dismiss hypothetically admits the truth of the allegations of the
complaint (Magno v. CA, 107 SCRA 285). However, the admission
extends only to such matters of fact that have been sufficiently pleaded
and not to mere epithets charging fraud, allegations of legal conclusions,
or erroneous statements of law, inferences from facts not stated, matters
of evidence or irrelevant matters (De Dios v. Bristol Laboratories, 55
SCRA 349).
Admissions by counsel
Q: What is the effect of admissions by counsel?
A: They are generally conclusive upon a client (De Garcia v. CA, 37 SCRA
129). Even the negligence of counsel binds the client.
Q: What is the exception to the rule?
A: In case where reckless or gross negligence of counsel deprives the client of
due process of law, or when its application will result in outright deprivation of
the client’s liberty, or property, or when the interests of justice so require
(Salazar v. CA, 376 SCRA 459).
NOTE: Admissions made for the purpose of dispensing with proof of some facts
are in the nature of judicial admissions. Such admissions are frequently those
of counsel, or of the attorney of record, who is, for the purpose of the trial, the
agent of his client. When such admissions are made for the purpose of
dispensing with proof of some fact, they bind the client, whether made during
or even after the trial.
Consequences of judicial admissions
Q: What is the consequence of judicial admissions?
A: A party who judicially admits a fact cannot later challenge that fact, as judicial
admissions are waiver of proof; production of evidence is dispensed with.
- No evidence is needed to prove judicial admission and it cannot be
contradicted unless it is shown to have been made through palpable
mistake or that no such admission was made but despite the presence of
judicial admissions in a party’s pleading, the trial court is still given leeway
to consider other evidence presented because admissions may not
necessarily prevail over documentary evidence.
Judicial admission are legally binding on the party making the admission. It is
an established principle that judicial admission cannot be contradicted by the
admitter who is the party himself and binds the person who makes the same,
absent any showing that this was made through palpable mistake, no amount
of rationalization can offset it (PCIC vs. Central Colleges of the Phil. 666
SCRA 540).
Q: Under Sec. 4, Rule 129, what are the effects of judicial admissions?
A:
1. They do not require proof
2. They cannot be contradicted because they are conclusive upon the
party making it
Q: What are the exceptions to this?
A:
1. Upon showing that the admission was made throughpalpable
mistake
2. When it is shown that no such admission was made.
Q: What do you mean by palpable mistake?
A: The mistake that would relieve the party from the effects of his admission is
not any mistake. It must be one that is palpable, a mistake that is clear to the
mind or plain to see. It is a mistake that is readily perceived by the senses or
the mind.
CDR NOTES | 11
Q: When can a party use the admission that there is no such admission?
A: This may be invoked when the statement of a party is taken out of context
or that his statement was made not in the sense it is made to appear by the
other party. Here, what he denies is the meaning attached to his statement,
a meaning made to appear by the adverse party as an admission.
CHAPTER IV: OBJECT AND DOCUMENTARY EVIDENCE
OBJECT EVIDENCE
SECTION 1.Object as evidence. — Objects as evidence are those
addressed to the senses of the court. When an object is relevant to the fact
in issue, it may be exhibited to, examined or viewed by the court. (1a)
Q: What is object evidence?
A: It is the real thing itself consists of tangible things like gun, a broken glass,
a piece of bloody clothing or the defective ladder that caused the fall of the
plaintiff.
- It does not refer to the perception of the witness and recollection of that
perception. It is not a reconstruction of past events as related by a
witness on the stand. It is not a verbal description of something. It is not
a replica or a mere representation of something.
NOTE: It appeals directly to the senses of the court. Instead of relying on
the recollection of the witnesses, an object evidence will enable the court to
have its own first-hand perception of the evidence.
Q: What is the effect of object evidence?
A: It could have a very persuasive effect on the part of the court.
Q: May a human being be a form of real evidence?
A: Yes. Where the racial characteristics of a party is at issue, the court
may, at its discretion, view the person concerned.
- The court may likewise allow the exhibition of the weapon allegedly
used in attacking the victim, the bloody garment of the victim or the
personal effect, like the glove, left by the supposed assailant in the
scene of the crime.
Q: Is object evidence limited to visual alone?
A: No, it covers the entire range of human senses: hearing, taste, smell,
and touch.
- In a case where the issue is infringement of a musical composition, the
court may listen to the composition involved. The court may not only
look at but also touch the blade of knife to know whether or not it could
have produced the incision characteristic of sharp blades.
Q: In case of conflict between testimonial and physical evidence, which
should prevail?
A: Where the physical evidence runs counter to the testimonial evidence, the
physical evidence should prevail (BPI v. Reyes, 2008).
- Physical evidence is a mute but eloquent manifestation of truth, and it
ranks high in our hierarchy of trustworthy evidence.
Requisites for admissibility of object evidence
1. The admissibility of object or real evidence like any other evidence
requires that the object be both relevant and competent. To be
relevant, the evidence must have a relationship to the fact in issue.
To be competent, it must not be excluded by the rules or by law.
2. For the object not to be excluded by the Rules, the same must
pass the test of authentication. The threshold foundation for real
evidence is its being authenticated. To authenticate the object, it
must be shown that the object is the very thing that is either the
subject matter of the lawsuit or the very one involved to prove an
issue in the case. Also, there must be someone who should identify
the object to be the actual thing involved in the litigation. This
someone is the witness.
3. It must be emphasized that every evidence, whether it be a
document or an object, needs a witness. Even object evidence
requires statements from witness to make its way into the realm of
admissible evidence. In short, testimonial evidence provides the
foundation for all types of evidence. The witness should have
actual and personal knowledge of the exhibit he is presenting for
admission.
Sec. 36.Testimony generally confined to personal knowledge; hearsay excluded. — A
witness can testify only to those facts which he knows of his personal knowledge; that
EVIDENCE PRELIMS | J. GITO
is, which are derived from his own perception, except as otherwise provided in these rules.
(30a)
Thus, the following are the basic requisites for the admissibility of an
object or real evidence:
a. The evidence must be relevant
b. The evidence must be authenticated
c. The authentication must be made by a competent witness
d. The object must be formally offered in evidence.
NOTE: After its authentication, the object needs to be offered in evidence
at the appropriate time. The formal offer of evidence is particularly a vital act
before the admission of evidence because the court shall consider no evidence
which has not been formally offered (Sec. 34, Rule 132).
Object evidence and the Right against Self-Incrimination
Q: May the right against self-incrimination be invoked against object evidence?
A: No. In People v. Malimit (264 SCRA 167), the court held that the right against
self-incrimination finds no application in the case because no testimonial
compulsion was involved.
- Accordingly, such right is a prohibition of the use of physical or moral
compulsion, to extort communication from him. It is a prohibition against
legal process to extract from the accused’s own lips, against his will,
admission of guilt. It does not apply in this case where the evidence sought
to be excluded is not an incriminating statement but an object evidence.
Categories of Object Evidence
1. Objects that have readily identifiable marks (unique object)
2. Object that are made identifiable (object made unique)
3. Object with no identifying mark
Demonstrative Evidence
Q: What is demonstrative evidence?
A: It is not the actual/real thing but it is referred to as demonstrative because
it represents or demonstrates the real thing. It is not strictly real evidence
because it is not the very thing involved in the case. Examples: map, diagram,
photograph, model, motion pictures
NOTE: It is not separately defined in the Rules of Court and appears to have
been incorporated under the general term “object” evidence.
Q: Where does the admissibility of demonstrative evidence depend?
A: It depends on laying the proper foundation for the evidence. The rule
boils down to one question: Does the evidence sufficiently and accurately
represent the object it seeks to demonstrate or represent? If it does, the
evidence would be admissible.
Q: For a photograph to be admissible, what is the rule?
A: The same must be relevant and competent. It is competent when it is
properly authenticated by a witness who is familiar with the scene or person
portrayed and who testifies that the photograph faithfully represents what it
depicts.
Q: Should the photographer testify?
A: Some courts insist the photographer to testify but this view has been eroded
by the tendency of modern courts to admit as witness one who has familiarity
with the scene portrayed (Sison v. People, 250 SCRA 58).
Q: What are the requirements for photographic evidence of events, acts, or
transactions shall be admissible?
A:
1. It shall be presented, displayed, and shown to the court
2. It shall be identified, explained or authenticated by either:
a. The person who made the recording,
b. Some other person competent to testify on the accuracy thereof
(Sec. 1, Rule 11, Electronic Rules of Evidence)
NOTE: The admissibility of photographic evidence is within the discretion
of the trial court, and its ruling in this respect will not be interfered with except
upon a clear showing of an abuse of discretion.
Q: What is the rule regarding motion pictures and recordings?
A: The rules that apply to photographs generally apply motion pictures and
recordings. Because of the possibility of tampering and distortion, courts
have traditionally required a stricter standard for laying the foundation for
motion pictures and tape recordings.
CDR NOTES | 12
- Courts then would require detailed testimony as to the qualifications of
the operator, a detailed description of the equipment used, the
conditions under which the photograph and the recordings were taken.
Modern courts however have taken judicial notice of how motion
cameras and tape recorders work and their general reliability and their
prevalent use.
NOTE: The person present when the activities of taking the pictures and
recordings should testify that the motion picture accurately, faithfully,
represents the place or person it purports to identify.
Q: Does the authentication process need to involve the person who actually
made them?
A: No, it can be done by some other person as long as he is one who can
testify as to its accuracy.
NOTE: There is also a requirement that the recording be shown, presented,
or displayed to the court (Sec. 1, Rule 11, Rules on Electronic Evidence).
Q: What are the rules regarding diagrams, maps, and models?
A: These types of evidence are presented to indicate the relative locations,
positions of objects and persons. Aside from the requirement of
relevance, a diagram, map, and model must be identified by a witness who
is familiar with what the evidence depicts, and that the same is an accurate
representation of the scene it portrays.
NOTE: The question as to the sufficiency of the authentication is a matter
of judicial discretion.
Q: What is the rule regarding x-ray pictures?
A: Also known as the skiagraphs or radiographs, x-ray pictures are
admissible when shown to have been made under circumstances as to
assure their accuracy and where relevant to a material issue in the case.
- Authenticated x-rays are normally involved in personal injury cases to
show the location and the extent of the unjury.
Q: Is the testimony of the person who took the x-ray required?
A: Because the science of x-ray pictures is now well-founded and generally
recognized, almost all courts no longer require testimony as to the reliability
of an x-ray machine.
NOTE: In-court reenactment of material events by the witness has been held
permissible to help illustrate the testimony of a witness.
View of an object or scene Yung court ang titingin sa “object”
- Courts have recognized that there are times when a party cannot bring
an object to the court for viewing in the courtroom. In such a
situation, the court may take a view of an object. The court may take an
ocular inspection of a contested land to resolve questions of fact raised
by the parties.
NOTE: The court has an inherent power to order a view when there is a need
to do so.
Q: Is this mandatory?
A: A view disrupts the usual trial process and is time- consuming. Hence, in
almost all jurisdictions, trial judge is granted discretion to grant or refuse a
request for a view.
NOTE: The inspection may be made inside or outside the courtroom. An
inspection or view outside the courtroom should be made in the presence of
the parties or at least with previous notice to them.
Chain of custody
The third category of object evidence includes drop of blood or oil, drugs in
powder form, fiber, grains of sand and similar objects. In this case, the
proponent of the evidence must establish a chain of custody.
- The purpose is to guaranty the integrity of the physical evidence and to
prevent the introduction of evidence which is not authentic but where
the exhibit is positively identified the chain of custody of physical
evidence is irrelevant.
Since it is called a chain, there must be links to the chain. The links are the
people who actually handled or had custody of the object. Each link must
show how he received the object, how he handled it to prevent substitution
and how it was transferred to another. Each must testify to make the
EVIDENCE PRELIMS | J. GITO
foundation complete. This is the ideal way (though this is not absolutely
required.
- There is a view that the prosecution is not required to elicit testimony from
every custodian or from every person who had an opportunity to come in
contact with the evidence sought to be admitted. As long as one of the
chains testifies and his testimony negates the possibility of tampering and
that the integrity of the evidence is preserved, his testimony alone is
adequate to prove the chain of custody.
In Lopez v. People, as a method of authenticating evidence, the chain of
custody rule requires that the admission of an exhibit be preceded by
evidence sufficient to support a finding that the matter in question is what
the proponent claims it to be.
- It would include the testimony about every link in the chain, in such a
way that every person who touched the exhibit would describe how and
from whom it was received, where it was and what happened to it while in
the witness’ possession, the condition in which it was received and the
condition in which it was delivered to the next link in the chain.
- The witness would describe the precautions taken to ensure that there
had been no change in the condition of the item and no opportunity for
someone not in the chain to have possession of the same.
The chain of custody rule is indispensable and essential when the item of
real evidence is not distinctive and is not readily identifiable, or when its
condition at the time of testing or trial is critical, or when a witness has failed to
observe its uniqueness.
- The rule also applies in case the evidence is susceptible to alteration,
tampering, contamination and even substitution and exchange. Such
dictates the level of strictness in the application of the chain of custody
rule.
A unique characteristic of narcotic substance is that they are not readily
identifiable hence a more stringent standard than that applied to readily
identifiable object is necessary.
- This standard entails a chain of custody of the item with sufficient
completeness to render it improbable for the original item to be exchanged
with another, contaminated or tampered with.
- More than just the fact of possession, the fact that the substance said to
be illegally possessed is the very same substance offered in court as
exhibit.
If the object is not readily identifiable, a chain of custody must be shown. To
avoid gaps in the chain of custody and prevent further evidentiary objections,
ideally all the persons who handled the object should be called to the stand
although courts no longer require this rigid process.
Unless a specific provision of law or rule provides otherwise, the investigator
need not testify that the process of sealing the evidence and the submission to
the chemist were done in the presence of the accused or his representative.
This is because of the presumption that official duty has been regularly
performed (Sec. 3 (m), Rule 131).
Chain of custody in drug cases
Q: What is chain of custody?
A: It means the duly recorded authorized movements and custody of
seized drugs or controlled chemicals or plant sources of dangerous drugs or
laboratory equipment of each stage, from the time of confiscation or seizure to
receipt in the forensic laboratory to safekeeping to presentation in court for
destruction.
- It shall also include the identity and signature of the person who held
temporary custody of the seized item, the date and time when such
transfer of custody were made in the course of safekeeping and use in
court as evidence, and the final disposition (People v. Obmiranis, G.R.
No. 181492).
Article II of R.A. No. 9165
The apprehending team having initial custody and control of the drugs shall, immediately
after seizure and confiscation, physically inventory and photograph the same in the
presence of the accused or the person/s from which such items were confiscated and/or
seized, or his/her representative or counsel, a representative from the media and the DOJ,
and any elected public official who shall be required to sign the copies of the inventory and
be given a copy thereof (Sec. 1, par.1).
Links in the Chain of Custody
• First, the seizure and marking of the confiscated drugs recovered from
the accused presence of the accused or the person/s from which such items were confiscated/
representative or counsel/ media and DOJ/ elected public official
CDR NOTES | 13
• Second, the turnover of the illegal drug seized by the apprehending
officer to the investigating officer
• Third, the turnover by the investigating officer of the illegal drug to the
forensic chemist for laboratory examination
• Fourth, the turnover and submission of the marked illegal drug by the
forensic chemist to the court (People vs. Kamad, 610 SCRA 295)
Note: A mere statement that the integrity and evidentiary value of the
evidence is not enough. It must be accompanied by proof.
Q: When will the non-compliance with the procedure shall not render void
and invalid the seizure of and custody of drugs?
A:
1. When such compliance was under justifiable grounds; and
2. Integrity and the evidentiary value of the seized are properly preserved by
apprehending team.
- What is important is the preservation of the integrity and evidentiary
value of the seized items, as the same may be utilized in the
determination of the guilt or innocence of the accused. This is to remove
unnecessary doubts as to the identity of the evidence. The dangerous
drugs itself constitutes the very corpus delicti of the crime and the fact
of its existence is vital to a judgment of conviction.
In People v. Del Monte (G.R. No. 179940), the issue if there is non-
compliance with the law is not admissibility, but weight—evidentiary merit or
probative value.
DNA Evidence
Q: What is the rule regarding DNA evidence?
A: In Augustin v. CA (460 SCRA 315), the Court briefly sketched its past
decisions on DNA testing which the Court initially considered as not as
accurate and authoritative as the scientific forms of identification evidence
such as fingerprints.
- However, in 2001, the SC showed signs of opening up to DNA evidence
in Tijing v. CA (G.R. No. 125901), when it recognized the existence
of facility and expertise in using DNA test for identification and
parentage testing, in Tijing case, the SC held that eventually, courts
should not hesitate to rule on the admissibility of DNA evidence.
- In the case People v. Vallejo (382 SCRA 192, 2002), the Court made
a landmark decision. It is considered as the first real breakthrough of
DNA as admissible and authoritative evidence in Philippine
jurisprudence. Vallejo moved towards an open use of DNA evidence in
deciding cases.
Q: What are the rules or guidelines to be used by courts in assessing the
probative value of DNA evidence?
A:
1. How the samples were collected
2. How they were handled
3. The possibility of combination of the samples
4. The procedure followed in analyzing the samples
5. Whether the proper standards and procedure were followed in
conducting the tests
6. The qualification of the analyst who conducted the test.
Rule on DNA evidence (RDE)
Rule on DNA Evidence (RDE) was issued by the Court in A.M. No. 06-11-5-
SC.
Q: In what situations do RDE apply?
A:
1. Criminal actions
2. Civil actions
3. Special proceedings
Q: What is DNA?
A: It refers to deoxyribonucleic acid which is the chain of molecules found in
every nucleated cell of the body
Q: What is DNA profile?
A: It is the genetic information derived from DNA testing of biological samples
obtained from a person where such biological sample is clearly identifiable
as originating from that person.
Q: What is DNA evidence?
EVIDENCE PRELIMS | J. GITO
A: The totality of the DNA profiles, results and other genetic information
directly generated from the DNA testing of biological samples.
NOTE: It is a scientific fact that the totality of an individual’s DNA is unique for
the individual, except for identical twins.
Q: How may an order for a DNA testing be obtained?
A: A person who has legal interest in the litigation may file an application before
the appropriate court, at any time.
Q: What are the requisites for the order?
A:
1. A biological sample exists that has relevance to the case
2. The biological sample:
a. Was not previously subjected to the DNA testing requested
b. If it was previously subjected to DNA testing, the results may
require confirmation for good reasons.
3. The DNA testing uses a scientifically valid technique
4. The DNA testing has the scientific potential to produce new
information that is relevant to the proper resolution of the case
5. The existence of other factors, if any, which the court may consider
as potentially affecting the accuracy and integrity of the DNA testing.
Q: What may an order contain?
A:
1. Take biological samples from any person or crime scene evidence
2. Impose reasonable conditions on the testing to protect the integrity
of the biological sample and the liability of the test results.
NOTE: The court may motu propio order a DNA testing.
Q: Is a court order always required before undertaking a DNA testing?
A: No. RDE allows a testing without a prior court if done before a suit or
proceeding is commenced at the behest of any party including law enforcement
agencies.
Q: Is the order of the court granting a DNA testing appealable?
A: No, it is immediately executor as provided by Sec. 5 of the RDE.
Q: Is there an automatic admission of the DNA evidence obtained in the
testing?
A: None. The grant of the DNA testing application shall not be construed as an
automatic admission into evidence of any competent of the DNA evidence that
may be obtained as a result of the testing. This means that the court will still
have to evaluate the probative value of the proposed evidence before its
admission.
Q: What are the matters to be considered for the determination of the probative
value of the DNA evidence?
A:
1. The chain of custody, including how the biological samples were
collected, how they were handled, and the possibility of
contamination of the samples.
2. The DNA testing methodology, including the procedure followed in
analyzing the samples, the advantages and disadvantages of the
procedure, and the compliance with the scientifically valid standards
in conducting the tests.
3. The forensic DNA laboratory, including its accreditation and the
qualification of the analyst who conducted the test; if the laboratory
is not accredited, the court shall consider the relevant experience of
the laboratory in forensic casework and its credibility shall be
properly established
4. The reliability of the testing result.
Q: If a person has already been convicted under a final and executor judgment,
may he still avail of DNA testing?
A: Yes. The test after his conviction is termed a “post- conviction.” It may be
available to:
a. The prosecution
b. To the person conviction by final and executory judgment provided
that the ff. requisites are present:
1. A biological sample exists
2. Such example is relevant to the case
3. The testing would probably result in the rehearsal of the judgment of
conviction.
Q: Is a court order required for a post DNA testing?
CDR NOTES | 14
A: No. It may be available without need of prior court order.
Q: What remedy is available to the convict if the results of the post DNA
testing are favorable to him?
A: He may file a petition for a writ of habeas data in the court of origin. The
court shall then conduct a hearing and in case the court finds that the petition
is meritorious, it shall reverse or modify the judgment of conviction and order
the release of the convict, unless his detention is justified for a lawful cause.
The rule also allows the petition to be filed either in the CA or the SC, or with
any member of said courts.
Q: Are the DNA profiles of a person open to public scrutiny?
A: No, they are confidential.
Q: To whom they may be released?
A:
1. The person from whom the sample was taken
2. Lawyers representing parties in the case or action where the DNA
evidence is offered and presented or sought to be offered and
presented
3. Lawyers of private complainants in a criminal action
4. Duly authorized law enforcement agencies
Other persons as determined by the Court.
Q: May the person from whom the biological sample was taken request that
the result be disclosed to the person designated in his request?
A: Yes, but such request must be in writing and verified and filed with the
court that allowed the DNA testing.
Q: What is the duty of the Trial courts?
A: They are mandated to preserve the DNA evidence in its totality, including
all biological samples, DNA profiles and results or other genetic information
obtained from DNA testing in accordance with the RDE.
Paraffin tests
Paraffin tests generally have been considered as inconclusive by the court
because scientific experts occur in the view that paraffin tests have
proved extremely unreliable in use.
- The test can only establish the presence or absence of nitrates or
nitrites on the hand but the test alone cannot determine whether the
source of the nitrates or nitrites was the discharge of the firearm.
presence lang pero hindi niya ma-identify kung san galing
Effect of a negative result
- The argument that the absence or negative result of gunpowder nitrates
from the paraffin test conducted shows an absence of physical evidence
that one fired a gun, is untenable as it is possible for one to fire a gun
and yet be negative as when the hands are washed before the test
(People v. Cajumocan, 430 SCRA 311).
Positive result
- The presence should be taken only as an indication of a possibility
or even a probability but not of infallibility that a person has fired a gun,
since nitrates are also found in substances other than gunpowder such
as in explosives, fireworks, fertilizers and pharmaceuticals, tobacco and
leguminous plants.
Probative value of paraffin tests
- They are merely corroborative, neither proving nor disproving that a
person did indeed fire a gun.
Q: What factors may affect the results?
A: Factors such as the wearing of gloves, perspiration of hands, wind
direction, wind velocity, humidity, climate conditions, the length of the barrel
of the firearm, the open or closed trigger guard of the firearm (People v.
Buduhan, 2008).
Polygraph tests (Lie detector tests)
Polygraph test operates on the principle that stress causes physiological
changes in the body which can be measured to indicate whether the subject
of the examination is telling the truth. Sensors are attached to the subject so
that the polygraph can mechanically record the subject’s physiological
responses to a series of questions.
Q: What is the probative value of polygraph tests?
A: Courts uniformly reject the results of polygraph tests when offered in
evidence for the purpose of establishing the guilt or innocence of the accused
EVIDENCE PRELIMS | J. GITO
of a crime because it has not yet attained scientific acceptance as reliable and
accurate means of ascertaining truth or deception.
DOCUMENTARY EVIDENCE Parol evidence if
agreement is
written.
Q: What is the scope of documentary evidence?
A: Documents as evidence do not necessarily refer to writings. They may refer
to any other material like objects as long as the material contains letters, words
or numbers, figures, symbols or other modes of written expression and offered
as proof of their contents.
Q: What are the categories of documents as evidence?
A:
1. Writings
2. Any other materials containing modes of written expressions
Rule 130 Sec. 2.Documentary evidence. — Documents as evidence consist of writing or
any material containing letters, words, numbers, figures, symbols or other modes of written
expression offered as proof of their contents. (n)
Q: What are the examples under the first category?
A: Written contracts and wills
Q: What are the examples under the second category?
A: Those which are not traditionally considered as writings but are actually
objects but which contain modes of written expressions.
NOTE: Being writings or materials containing modes of written expressions do
not ipso facto make such materials documentary evidence. For such writings
be deemed documentary, the same must be offered as proof of their contents.
If offered for some other purpose, the writings or materials would not be
deemed documentary evidence but merely object evidence.
Q: What if a contract is presented in court to show that it exists or simply to
establish its condition?
A: It is not offered to prove its contents, therefore, it is not considered a
documentary evidence but an object or real evidence.
Q: Is the photocopy real (object) evidence or documentary evidence?
A: It is a real (object) evidence. Although it is conceded that the bills contain
letters, words or numbers and other modes of written expression, these facts
alone do not make the bills documentary evidences.
- To be documentary evidence, the same must be offered as proof of their
contents. The bills are obviously presented to show that money
exchanged hands in the buy-bust operations and not prove what is written
on the bills.
Q: May a private document be offered and admitted in evidence both as
documentary evidence and as object evidence?
A: It depends on the purpose for which the document is offered. If offered to
prove its existence, condition or for any other purpose other than the contents
of a document, the same is considered as an object evidence. When it is offered
as proof of its contents, the same is considered as a documentary evidence.
The document may be offered for both purposes under the principle of multiple
admissibility.
BEST EVIDENCE RULE issue: content of the documents
- Despite the word “best”, the rule does not proclaim itself as the highest
and most reliable evidence in the hierarchy of evidence. The word best
has nothing to do with the degree of its probative value in relation to other
types of evidentiary rules. It does not mean “most superior” evidence.
More accurately, it is the original document, or the primary evidence
rule.
- It is not intended to mean that a weaker evidence be substituted by a
stronger evidence.
- The only actual rule that such term denotes is the rule requiring that the
original of a writing must, as a general rule, be produced.
Rationale: The copy of the original is not as reliable as the latter because of
possible
Rule 130. Sec. 3. Original document must be produced; exceptions. — When the subject
of inquiry is the contents of a document, no evidence shall be admissible other than the
original document itself, except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;
CDR NOTES | 15
 (b) When the original is in the custody or under the control of the party against
whom the evidence is offered, and the latter fails to produce it after
reasonable notice;
(c) When the original consists of numerous accounts or other documents which
cannot be examined in court without great loss of time and the fact sought
to be established from them is only the general result of the whole; and
(d) When the original is a public record in the custody of a public officer or is
recorded in a public office. (2a)
- There is no reason to apply this rule when the issue does not
involve the contents of a writing. The rule will come into play only
when the subject of inquiry is the contents of a document.
- The rule cannot be invoked unless the contents of a writing is the subject
of judicial inquiry, in which case, the best evidence is the original writing
itself.
Problem:
At the trial for violation of RA 9165, the prosecution presented as evidence
of selling drugs, the xerox copy of the marked money used in buying shabu.
The defense objected to the presentation of the xerox copy of the marked
money for violation of the best evidence rule. If you were the judge, how
would you rule on the objection?
A: I will overrule the objection. Best evidence rule applies when a document
is offered to prove the contents thereof. Here the the marked money is not
offered as documentary evidence but as an object evidence. It was offered
to prove that selling of drugs occurred. Thus, best evidence rule does not
apply.
Illustrative applications of the best evidence rule:
The rule finds no application to a case where a party never disputed the
terms and conditions of the promissory note, leaving the court to
conclude that as far as the parties are concerned,
- the wordings or the contents of the note are clear enough and leave
no room for disagreement. The defense of lack of consideration and
that the signature in the note was made in the personal capacity of the
respondent are defenses which do not question the precise wordings of
the promissory note which should have paved the way for the
application of the “best evidence rule.” The Consolidated Bank and
Trust Corporation v. Del Monte Motor Works, Inc. (465 SCRA 117)
personal capacity lang, not the contents or terms
NOTE: Where the issue is the execution or existence of the document or
other circumstances surrounding its execution, the best evidence rule does
not apply and testimonial evidence is admissible.
- When the subject of the inquiry is the contents of the document, no
evidence shall be admissible other than the original thereof (Magdayao
v. People, 463 SCRA 677).
- Any substitutionary evidence likewise admissible without need to
account for the original (Chua Gaw v. Chua, 2008).
Reason for the adoption of the best evidence rule
- It is to prevent fraud or mistake in the proof of the contents of a writing.
Q: What are the 2 requisites for this rule to apply?
A:
1. The subject matter must involve a document; and
2. The subject of the inquiry is the contents of the document.
- Thus, where the content of a document is not the issue, the rule
cannot be invoked and more so when the evidence does not involve a
document.
The best evidence rule applies only when the subject inquiry is the contents
of a document. It applies only when the purpose is to establish the terms of
a writing.
- When the evidence introduced concerns some external fact about a
writing like its existence, execution or delivery without reference to its
terms, the rule cannot be invoked.
Where the subject inquiry is to prove some fact like its existence, or the size
of the matter on which it is written, the writing is not a documentary evidence
but a mere object evidence.
- The best evidence rule does not apply to an object evidence. Thus, the
original need not be presented. The existence or condition of that writing
may be proved by any other evidence like oral testimony.
NOTE: The subject of inquiry is the contents of a writing, not the truth thereof.
Where the truth is in issue, the hearsay rule will now be invoked.
EVIDENCE PRELIMS | J. GITO
Q: Is the photocopy admissible in evidence?
A: The photocopy of the bills being object evidence, is admissible in evidence
without violation of the best evidence rule. The rule applies only to
documentary evidence and not to object evidence.
When document is merely collaterally in issue
A document is collaterally in issue when the purpose of introducing the
document is not to establish its terms but to show facts that have no
reference to its contents like its existence, condition, execution or delivery.
- If a witness testifies that the victim was writing a letter when he was shot
by the accused, the judge will rule against the party who insists on the
presentation of the letter because the letter is not the subject of an
important issue in the case and thus is merely collateral.
Reason for the Best Evidence Rule para hindi ma-out of context
- Primarily, it is the need to present to the court the exact words of a writing
where a slight variation of words may mean a great difference in rights.
- Secondly, it is the prevention and detection of fraud. It is to avoid
unintentional or intentional mistaken transmissions of the contents of a
document through the introduction of selected portions of a writing to
which the adverse party has no full access.
- It is also to prevent erroneous interpretations or distortions of a writing, an
objection based on this rule prevents a party from proving the contents
of a writing by a copy thereof or by oral testimony if the original writing
itself is available.
- As long as the original evidence can be had, the court should not
receive in evidence that which is substitutionary in nature,
o such as photocopies, in the absence of any clear showing that
the original writing has been lost or destroyed or cannot be
produced in court.
o Such photocopies must be disregarded, being inadmissible
evidence and barren of probative weight.
Waiver of the Rule
Although the marriage certificate, license, and other pieces of documentary
evidence were only photocopies, the fact that these have been examined and
admitted by the trial court, with no objections having been made a to their
authenticity and due execution, means that these documents are deemed
sufficient proof of the facts contained therein. Sy v. CA (330 SCRA 550)
How to apply the Best evidence rule.
- First, determine the matter inquired into. The procedural compliance of
the rule requires the presentation of the original document, and not a copy
of that document. So long as the original document is available, no other
evidence can be substituted for the original.
Q: What if the original cannot be presented in evidence?
A: The second step will now come into play. First, find an adequate legal
excuse for the failure to present the original; and second, present a secondary
evidence sanctioned by the Rules of Court.
- Present the original, except when you can justify its unavailability in the
manner provided for by the Rules of Court.
Excuses for not presenting the original document/ Exceptions to best
evidence rule
These instances are those mentioned in Sec. 3, Rule 30.
(a) When the original has been lost or destroyed, or cannot be produced
in court, without bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party
against whom the evidence is offered, and the latter fails to produce
it after reasonable notice;
(c) When the original consists of numerous accounts or other
documents which cannot be examined in court without great loss of
time and the fact sought to be established from them is only the
general result of the whole; and
(d) When the original is a public record in the custody of a public officer
or is recorded in a public office.
Loss, destruction or unavailability of the original
- This exception does not only cover loss or destruction but also other
reasons for the failure to produce the original in court even if the original
is not lost or destroyed, as when the original is beyond the territorial
jurisdiction of the court.
- The exception also applies where the original consists of inscriptions on
immovable objects and monuments such as tombstones because they
cannot be produced in court.
CDR NOTES | 16

Rule 130, Sec. 5. When original document is unavailable. — When the original
document has been lost or destroyed, or cannot be produced in court, the offeror, upon
proof of its execution or existence and the cause of its unavailability without bad faith on
his part, may prove its contents by a copy, or by a recital of its contents in some authentic
document, or by the testimony of witnesses in the order stated. (4a)
How to introduce secondary evidence if the original is lost.
1. The offeror must prove the execution and existence of the original
document;
2. The offeror must show cause of its unavailability; and
3. The offeror must show that the unavailability was not due to its bad faith.
The correct order of proof
1. Existence;
2. Execution;
3. Loss; and
4. Contents
- The due execution and authenticity of the document may be proved by
anyone who saw the document executed or written; or by evidence of
the genuineness of the signature or handwriting of the maker.
- The burden of proof in establishing loss or destruction of the original is
on the proponent of the secondary evidence. The loss of the original
need not be shown to be beyond all possibility of mistake. A reasonable
probability of its loss is sufficient like by showing that there was a bona
fide and diligent but fruitless search for the document (Paylago v. Jarabe
(22 SCRA 1247).
Order of the presentation of secondary evidence by the prosecution.
1. A copy of the original
2. A recital of the contents of the contents of the document in some authentic
document
3. By the testimony of witnesses
NOTE: The hierarchy of preferred secondary evidence must be strictly
followed.
Secondary evidence
- It refers to evidence other than the original instrument or document itself
(EDSA Shangri-La Hotel v. BF Corp., 2008).
- The presentation or the offer of the original be waived if the party against
whom the secondary evidence is offered does not object thereto
when the same is offered in evidence, the secondary evidence
becomes primary evidence. But even if admitted as primary evidence,
its probative value must still meet the various tests by which its reliability
is to be determined.
Original is in the Custody or control of the adverse party
How to introduce secondary evidence when the original is in the
custody of the adverse party.
1. That the original exists
2. That said document is under the custody or control of the adverse party
3. That the proponent of secondary evidence has given the adverse party
reasonable notice to produce the original document
4. That the adverse party failed to produce the original document despite the
reasonable notice.
- The notice may be in the form of a motion for the production of the
original, or made in open court in the presence of the adverse party, or
via a subpoena duces tecum, provided that the party in custody of the
original has sufficient time to produce the same.
When the original consists of numerous accounts
How to introduce secondary evidence when the original consists or
numerous accounts.
1. If the original consists of numerous accounts or other documents
2. They cannot be examined in court without great loss of time
3. The fact sough to be established from them is only the general result of
the whole.
Q: What is the reason for the exceptions?
A: The reason lies in the determination by the court that production of the
original writings and their examination in court would result in great loss of
time considering that the evidence desired from the voluminous accounts is
only the general result of the whole like a summary of accounts.
EVIDENCE PRELIMS | J. GITO
NOTE: The voluminous records must be made accessible to the adverse party
so that the correctness of the summary of the voluminous records may be
tested on cross-examination (Compania Maritima v. Allied Free Workers Union,
77 SCRA 24).
Original document is a public record
How to introduce secondary evidence when the original is a public
record. RD (CTC of TCT)
- Public records are generally not to be removed from the places where
they are recorded and kept. Thus, the proof of the contents may be done
by secondary evidence. This evidence is a certified true copy of the
original. This certified copy is to be issued by the public officer in custody
of the public records.
Q: What is the effect of not offering a document in evidence after calling for its
production and inspection?
A: No unfavorable inference may be drawn from such failure. This is because
under the law, a party who calls for the production of a document is not required
to offer it.
Rule 130. Sec. 8. Party who calls for document not bound to offer it. — A party who calls
for the production of a document and inspects the same is not obliged to offer it as
evidence. (6a)
Meaning of original (Rule 130)
Sec. 4.Original of document. —
(a) The original of the document is one the contents of which are the subject
of inquiry.
(b) When a document is in two or more copies executed at or about the same
time, with identical contents, all such copies are equally regarded as originals.
(c) When an entry is repeated in the regular course of business, one being
copied from another at or near the time of the transaction, all the entries are
likewise equally regarded as originals. (3a)
NOTE: An original, under the layman’s concept, is the first one written and from
which mere copies are made, transcribed, or imitated. Thus, there can only be
one original. This is not however so. When an entry is repeated in the regular
course of business, one being copied from another at or near time of
transaction, all the entries are equally regarded as originals.
Requisites to be considered as originals basta signed by the parties
1. There must be entries made and repeated in the course of business
2. The entries must be at or near the time of the transaction.
- Thus, when a lawyer writes a pleading in two or more copies which are
executed at the same time, with identical contents, each document is an
original.
- So are writings with identical contents made by printing, mimeographing,
lithography and other similar methods executed at the same time. Thus,
each newspaper sold in the stand is an original in itself.
Q: What if carbon sheets are inserted between two or more sheets of paper,
and the signature on the first sheet being reproduced in the sheets beneath by
the same stroke of the pen or writing medium?
A: All sheets are deemed as originals.
NOTE: Where a document is executed in duplicate or multiplicate form, each
one of the parts is primary evidence of the contents of the document, and the
other need not to be produced. In such case, each is deemed an original.
- If several copies of a document are made at the same time by inserting in
each page a carbon paper and only one of them is signed, the signed copy
is the original and the others are only copies.
Q: Which is the original in case of telegraph company who failed to transmit
a message?
A: The original is the message submitted to the company for transmission. But
if the suit is for damages by sender against the company because of delay, the
original would be the message as received by the recipient.
- In an action to collect the promissory note, the original is one typed and
signed by both parties and which was lost.
Q: Can the photocopies in the hands of the parties be considered as duplicate
originals?
A: No. They cannot be deemed as having been made at the same time with
the original because they were not signed unlike the original.
PAROL EVIDENCE RULE
CDR NOTES | 17
 evidence in wrting (agreements)
Among the various evidentiary rules, it is the parol evidence rule that has not pay. Carla sued Lito. Lito argued that that Carla extended the
direct application to the law on contracts. maturity date of the loan to Jan. 4, 2019. So the loan has not yet
- It applies only to contracts which the parties have decided to set forth in matured. sold the land to Carla for 1M. Carla objected citing parol
writing, i.e. as Sec. 9 of Rule 130 provides: evidence rule.

Rule 130. Sec. 9.Evidence of written agreements. — When the terms of an agreement Lito may introduced terms agreed upon by the parties or successor
have been reduced to writing, it is considered as containing all the terms agreed upon in interest after the execution of the written agreement.
and there can be, between the parties and their successors in interest, no evidence of
such terms other than the contents of the written agreement.
TAKE NOTE! A party must put them as ISSUE in his pleading
However, a party may present evidence to modify, explain or add to the terms
Problem:
of written agreement if he puts in issue in his pleading:
A sells his house to B for 1M. They executed a DOS. A refused to vacate
(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;
thereafter. B filed a recovery of possession of real property. A contended that
(b) The failure of the written agreement to express the true intent and
B agreed to lease out the same property to A. B objects to the presentation of
agreement of the parties thereto;
evidence to prove lease contract on the ground of parol evidence rule?
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their successors
Rule on the objection.
in interest after the execution of the written agreement.
A: Objection overruled. Parol evidence is not applicable. What is sought to
prove here is the oral contract of lease.
The term "agreement" includes wills. (7a)
Q: What if the agreement is oral?
A: It does not apply.
Purpose of the parol evidence rule
- It forbids any addition to, or contradiction of, the terms of
Applicability:
a written agreement by testimony or other evidence purporting to
1. Applies only when there is a written contract
show that different terms were agreed upon by the parties, varying the
2. Applies only to parties and their successor-in-interest
purport of the written contract. Whatever is not found in the writing is
3. It also applies to will
understood to have been waived and abandoned (SeaOil Petroleum Corp.
v. Autocorp Group, 2008; Estrada v. Ramos, 468 SCRA 597).
NOTE: The contract does not define a contract as a document, a deed or an
- In general, the parol evidence rule is designed to give certainty to
instrument. The document or the deed or instrument are merely the tangible
written transactions, to preserve the reliability and to protect the sanctity
evidences of a contract. It is the meeting of the minds between the parties
of written agreements.
that constitutes the contract.
NOTE: Not all writings will trigger the application of the parol evidence rule.
Application of the parol evidence
That writing must embody an agreement.
Q: When a written agreement is entered, any extraneous or parol evidence
will be inadmissible for what purposes?
Q: Should the writing that embodies the agreement of the parties be in a
A:
particular form?
1. To modify
A: No, it only makes reference to writing, not a public writing or private writing.
2. To explain
3. To add to the terms of the written agreement.
Application of the Rule only to parties and their successors- in-interest
- Only the parties and successors-in-interest are bound by the parol
Illustration:
evidence rule. The rule that the terms of an agreement are to be proven
1. Lito executed a will wherein he bequeathed the amount of 1 million
only by the contents of the writing itself refers to suits between parties to
pesos to Carla Rubio. Lito died. When his will was probated and
the contract and their successors in interest. The rule does not bind suits
later on about to be executed, it turned out that there were three
involving strangers to the contract.
(3) Carla Rubios’ who are all friends of Lito.
Application of the Rule to Wills
Assuming that this fact was put as an issue, may parol evidence
- The parol evidence rule applies to contractual obligations. But, it also
be allowed to clarify the ambuguit? Yes. Because there is intrinsic
includes wills. There can therefore, be no evidence of the terms of the will
ambiguity in the will. Under the rules, will is included in the word
other than the contents of the will itself.
“agreement”
- An express trust concerning immovable or any interest therein may not be
proved by parol evidence.
2. Lito sold the land to Carla for the amount of 200,000. The value of
the land is 20M pesos. But, what the parties actually agreed was
When and how to introduce parol evidence
Lito would borrow from Carla the amount of 200,000 and use the
XPNs:
land as security.
A party may present evidence to modify, explain, or add to the terms of the
written agreement:
In an action to recover the parcel of land, may Lito introduce
1. An intrinsic ambiguity, mistake, or imperfection in the written agreement
evidence of the true agreement of the parties.
2. The failure of the written agreement to express the true intent and agreement
of the parties thereto.
YES. Because of the failure of the written agreement to express
3. The validity of the written agreement
the true intent of the parties thereto.
4. The existence of other terms agreed to by the parties or their successors-in-
interest after the execution of the written agreement.
3. Lito sold the land to Carla for 1M. They executed a deed of sale.
They both signed the same. However, Carla has no cash of 1M.
Q: What do you mean by introducing parol evidence?
So she told Lito that she would just go to the bank to withdraw.
A: It means offering extrinsic or extraneous evidence that would modify, explain
Carla left Lito together with the DOS and the title to the land.
or add to the terms of the written agreement but parol evidence may only be
Unknown to Lito, Carla went to the RD to have the sale
allowed of any of the matters mentioned above is put in issue in the pleadings.
registered.
Otherwise, parol evidence cannot be introduced.
In an action for cancellation of sale, can Lito introduce evidence
Issues which should be put before the amendments can be introduced.
to prove that there is no consideration.
1. Mistake or imperfection in the writing
2. The failure to express the true agreement of the parties and the validity of
YES. Because the issue is the validity of the instrument.
the agreement.
- It is not the province of the courts to amend a contract by construction, or
4. Lito borrowed money from Carla evidenced by PN which is due
to make a new contract for the parties by interjecting material stipulations,
and demandable on Jan. 4, 2017. Come Jan. 4, 2017, Lito did
EVIDENCE PRELIMS | J. GITO CDR NOTES | 18
 Evidence aliunde - another source outside
or even to read into the contract words which it does not contain. It is - The admission of evidence aliunde may be justified where there is a
only where a party puts in issue in the pleadings the failure of the written mistake or imperfection in the written agreement. This mistake or
agreement to express the true intent of the parties thereto said party may imperfection must be put in issue in the pleading by the party who wants
present evidence to modify, explain or add to the terms of the written to prove the defect in the writing.
agreement. - Failure of the writing to express the true agreement of the parties is
- To justify the introduction of parol evidence a party must establish that another ground for admitting parol evidence as long as the issue is raised
an alleged agreement failed to express the true intent of the parties. in the pleadings.
Until and unless this has been successfully carried out, there is no right
in esse to speak of. Mistake or imperfection in writing
- Accordingly, parol evidence cannot serve the purpose of incorporating - This only means that despite the meeting of the minds, the true agreement
into the contract additional contemporaneous conditions which are not of the parties is not reflected in the instrument.
mentioned at all in writing unless there has been fraud or mistake.
Q: What are the other reasons which made the instrument unable to express
For parol evidence to be admissible to vary the terms of the written the true intention of the parties?
agreement, the mistake or imperfection thereof or its failure to express the A:
true agreement of the parties should be put in issue by the pleadings. 1. Fraud
Accordingly, when the terms of an agreement have been reduced to writing, 2. Inequitable conduct
it is considered a containing all the terms agreed upon and there can be, 3. Accident
between the parties and their successors-in-interest, no evidence of such 4. Ignorance
other terms other than the contents of the written agreement. Pilipinas Bank 5. lack of skill
v. CA (G.R. No. 141060) 6. negligence
Prior, contemporaneous and subsequent agreements 7. bad faith on the part of the person drafting the instrument (Arts. 1359 and
- Traditional rules limit the inadmissibility of parol evidence or 1364 of the NCC)
extrinsic evidence to prior or contemporaneous stipulations.
o Hence, if a written agreement was executed by the parties on Q: What is the remedy if there is a meeting of minds of the
Dec.22, 2008, agreements before that date or even on the same parties but their true intention is not expressed in the instrument because of the
date which modify, alter, or contradict the stipulations written into above-mentioned causes?
the Dec.22 agreement are not admissible since these constitute A: One of the parties may ask for the reformation of the instrument (Art. 1359,
parol evidence. On the other hand, a January 5 the agreement NCC).
would be admissible because subsequent agreements were not
barred by parol evidence rule. Q: What if there is no meeting of minds?
- The parties to a written agreement may show written agreement, they A: The proper remedy is not reformation of the instrument but an action for
have entered into an oral contract tending to waive, dissolve, or annul annulment (Art. 1359, NCC).
the former agreement, or in any manner to add to, or subtract from or
vary or qualify the term thereof. Q: What is an action for reformation?
- The rule prohibiting the admission of evidence aliunde or extrinsic A: It presupposes that there is nothing wrong with the contract itself because
evidence did not prohibit proof of an agreement entered into after the there is a meeting of minds of the parties. Art. 1359 does not in fact refer to a
written instrument was executed, notwithstanding that such agreement reformation of the contract but of the instrument.
may have the effect of adding to, changing or modifying the written
agreement of the parties. Thus, parol evidence on subsequent Examples:
agreements may be admitted. 1. The parties have agreed on the size of the land subject of the sale.
By an act of fraud, a smaller area is indicated in the deed.
Intrinsic ambiguity in the writing 2. An instrument may be reformed if the instrument does not express
- An instance when evidence aliunde or parol evidence may be allowed the true intention of the parties because of lack of skill of the person
to modify, explain or even add to the written agreement is when an drafting the instrument
intrinsic ambiguity exists in the written agreement. 3. If the parties agree upon mortgage or pledge of property, but the
- Yet, mere existence of an intrinsic ambiguity will not authorize the instrument states that the property is sold absolutely or with the right
admission of parol evidence. It is important that the intrinsic ambiguity to repurchase, reformation is proper
be put in issue in the party’s pleading. It is the raising of the issue of
intrinsic ambiguity which will authorize the introduction of parol Reformation of the instrument cannot be brought to reform certain things.
evidence. Examples:
1. Simple donations inter vivos wherein no condition is imposed
Intrinsic or latent ambiguity. 2. Wills
- It is one which is not apparent on the face of the document but which 3. When the agreement is void
lies in the person or thing that is the subject of the document or deed.
Ambiguity is intrinsic or latent when the language of the writing is clear Best Evidence Rule vs. Parol Evidence Rule.
and intelligible and suggests but a single meaning but some matter
extraneous to the writing creates the ambiguity. BEST EVIDENCE RULE PAROL EVIDENCE RULE
- In this type of ambiguity, the document is clear on its face but matters Establishes a preference for the Not concerned with the primacy of
extraneous to the agreement create the ambiguity. original document over a evidence but presupposes that the
secondary evidence thereof original
NOTE: Where the ambiguity is patent or extrinsic, parol evidence will not be is available
admitted even if the same is put in issue in the pleading.
Precludes the admission of Precludes the admission of other
Extrinsic or patent ambiguity secondary evidence if the original evidence to prove the terms of a
- It is that which appears on the very face of the instrument, and arises document is available document other than the contents
from the defective, obscure, or insensible language used. Parol of the document itself for the
evidence is not admissible to explain the ambiguity otherwise the court purpose of varying the terms
would be creating instead of construing a contract. of the writing

NOTE: The rule only allows parol evidence in the case of an intrinsic or latent Can be invoked by any litigant to
ambiguity. an action whether or not said
litigant is party to
Mistake or imperfection in the writing and failure to express the true the document involved
agreement of the parties Applies to all forms of writing
Can be invoked only by the parties
to the document and their
successors-in-interest
Applies to written
agreements (contracts)

EVIDENCE PRELIMS | J. GITO CDR NOTES | 19


Waiver of Parol Evidence Rule
1. by failure to invoke the benefits of the rule
2. by failure to object to the introduction of evidence aliunde.
Probative value
- Admissibility is not the equivalent of probative value or credibility.
CHAPTER 5
TESTIMONIAL EVIDENCE
• Evidence is elicited from the mouth of the witness
• Sometimes called as “viva voce” evidence which literally means “living
voice” or by “word of mouth”
• The person who gives the testimony is called a witness
Presumption in favor of competence of a witness
• A person who takes the stand as a witness is presumed to be qualified
to testify.
• A party who desires to question the competence of a witness must do
so by making an objection as soon as the facts tending to show
incompetency are apparent.
A. QUALIFICATION OF A WITNESS
Section 20. Witnesses; their qualifications. —
Except as provided in the next succeeding section,
All persons
- who can perceive
- and perceiving,
- can make their known perception to others,
may be witnesses.
Ex.
• Absurd to ask blind man what he saw or a deaf man what he heard
FACTORS NOT AFFECTING THE COMPETENCY OF A WITNESS
1) Religious or political belie
2) Interest in the outcome of the case
3) Conviction of a crime unless otherwise provided by law
- shall not be ground for disqualification
Ex. “Conviction of a crime unless otherwise provided by law”
• Those who have been convicted of falsification of a document, perjury
or false testimony are disqualified from being witnesses at a will (Art.
821, NCC).
- As a consequence, these persons may not also testify as
witnesses in the probate of a will where the subject of the testimony
is the very fact of execution of the will in their presence.
HE MUST TAKE AN OATH OR AFFIRMATION.
• An oath or affirmation is necessary for the witness to recognize the duty
to tell the truth
REQUIREMENT:
• Must have personal knowledge of the facts surrounding the subject
matter of his testimony
- If cannot perceive or even if he can perceive he cannot remember
what he has perceived, he is incompetent to testify.
FACTORS INVOLVING THE ABILITY TO MAKE KNOWN THE
PERCEPTION OF THE WITNESS TO THE COURT?
1) Ability to remember what has been perceived; and
2) The ability to communicate the remembered perception.
B. DISQUALIFICATION OF A WITNESS
SEC. 21 – DISQUALIFICATION BY REASON OF MENTAL INCAPACITY
OR IMMATURITY
The following persons cannot be witnesses:
EVIDENCE PRELIMS | J. GITO
a) Those whose mental condition, at the time of their production for
examination, is such
- that they are incapable of intelligently making known their perception
to others;
b) Children whose mental maturity is such
- as to render them incapable of perceiving the facts respecting which
they are examined and of relating them truthfully.
REQUISITES – to disqualify a witness by reason of mental incapacity
1) The person must be incapable of intelligently making known their
perception to others
2) His incapacity must exist at the time of his production for
examination.
RULE ON EXAMINATION OF CHILD WITNESS
WHO IS A CHILD WITNESS?
• Person below 18 years of age
• A child includes one over 18 years but is found by the court as unable to
fully take care of himself or protect himself from abuse, neglect, cruelty,
exploitation, or discrimination because of physical or mental disability or
condition (Sec. 4 (a), RECW, A.M. 004-07-SC).
PRESUMPTION OF COMPETENCY
• Every child is presumed qualified to testify.
• To rebut the presumption, the burden of proof lies on the party challenging
his competence.
• If the court finds substantial doubt exist regarding the ability of the child to
perceive, remember, communicate, distinguish truth from falsehood, the
court shall conduct a competency examination.
WHEN MAY THE COURT ORDER THAT THE TESTIMONY OF A CHILD
BE TAKEN BY LIVE-LINK TELEVISION?
• If there is a likelihood that the child would suffer trauma from testifying in
the presence of the accused, his counsel or the prosecutor as the case
may be.
During marriage, bawal magtestify. After pwede na. Then dapat valid marriage.
Kahit kelan mo pa nakuha ung info.
SEC. 22 – DISQUALIFICATION BY MARRIAGE
aka Marital Disqualification Rule
During their marriage, neither the husband nor the wife may testify for or
against the other
• without the consent of the affected spouse,
EXCEPT
• in a civil case by one against the other, or
• in a criminal case for a crime committed by one against the other or the
latter's direct descendants or ascendants.
NOTE: The prohibition extends not only to a testimony adverse to the spouse
but also in favor. It also extends both criminal and civil cases because the rule
does not distinguish.
What is the important requisite to claim this privilege?
• It is essential that they be validly married. It requires not only a valid
marriage but the existence of that valid marriage at the moment the
witness-spouse gives the testimony.
Does not apply to illicit cohabitation? – No.
• The prohibited testimony is one that is given or offerd during the existence
of the marriage. Thus, it no longer
applies after the marriage is dissolved.
Should the facts subject of the testimony occurred or came to the
knowledge of the witness before the marriage?
• It does not matter if the facts subject of the testimony occurred or came to
the knowledge of the witness before the marriage. The affected spouse
may still invoke the rule by objecting to the testimony as long as the
testimony is offered during the marriage.
Q: May a spouse testify in a trial where the other spouse is a co- accused?
CDR NOTES | 20
ANSWER: Yes, except as against her husband.
May a spouse testify in a trial against her estranged husband?
ANSWER: Yes.
• When the marital and domestic relations are so strained that there is no
more harmony to be preserved nor peace and tranquility which may be
disturbed, the reason based on such harmony and tranquility fails.
• In such case, identity of interests disappears and the consequent
danger of perjury based on the identity is non-existent
ILLUSTRATIONS:
Q: Before the marriage of H and W, W witnessed H killing Y. W did not
report the incident to the police. Later, H and W got married. They had
falling out. Consequently, W reported the incident she witnessed when
they were still sweethearts.
• May the prosecution present W as a witness in a murder case filed
against H?
• Supposed W was called to testify after their marriage had been
annulled, would your answer be the same?
ANSWER:
1) Over the objection of H, the prosecution may not call W to testify against
H. To call W to testify against H while their marriage is still would violate
the marital disqualification rule.
2) My answer would not be the same. Since the marriage is not anymore
existing, the marital disqualification rule would not apply.
Q: W filed a collection suit against the father of H. The father of the H
called H to testify against the W. W objected. Rule on the objection.
ANSWER:
• The husband is barred to testify against wife if the latter objects. It is
not a case by one spouse against the other but between a spouse and
the parent of the other.
SEC. 23 – DISQUALIFICATION BY REASON OF DEATH OR INSANITY
OF ADVERSE PARTY
aka
Dead Man’s Statute or Survivorship Disqualification Rule
WHO: (PLAINTIFF) *Persons prohibited to testify
• Parties or assignors of parties to a case, or
• persons in whose behalf a case is prosecuted,
AGAINST WHOM: (DEFENDANT)
• Against an executor or administrator or other representative of a
deceased person, or
• Against a person of unsound mind,
WHEN:
• upon a claim or demand against the estate of such deceased person or
against such person of unsound mind,
cannot testify as to any matter of fact occurring before
• the death of such deceased person or before such person became
of unsound mind.
ONLY APPLIES TO:
• civil case or
• special proceeding over the estate of the deceased or insane person.
WHO ENTITLED TO INVOKE DEAD MAN’S STATUTE?
• DEFENDANT
• The executor, administrator and any other representative of a deceased
person
• By a person of unsound mind in claim against him
NOT APPLICABLE TO INVOKE
• If executor or administrator/ person of unsound mind is the PLAINTIFF
ELEMENTS FOR APPLICABILITY
EVIDENCE PRELIMS | J. GITO
1) The suit is upon a claim by the plaintiff against the estate of a deceased
or person of unsound mind.
2) The defendant in the case is the executor or administrator or
representative of the deceased or person of unsound mind
3) The witness is the plaintiff, or an assignor of the plaintiff, or person in
whose behalf, the case is prosecuted.
4) The subject of testimony is as to any matter of fact occurring before the
death of such deceased person or before such person became of
unsound mind.
Ex.
A borrowed from B. A died. B claims against the executor. Executor says: “I
cannot pay. I am not calling you a liar but I cannot verify the truth of your
claim since B is dead.”
What is the effect of death of B?
• A is rendered incompetent to testify as to the transaction that he had with
the dead man.
• Because of the possibility that his claim is fraudulent.
WHO ARE PROHIBITED TO TESTIFY?
• The plaintiff who has a claim against the estate of the deceased:
- parties,
- assignor of parties,
- person in whose behalf the case is prosecuted.
• Thus, if the administrator is the plaintiff, the rule does not apply.
NOTE: A disinterested witness may be allowed to testify since not within
the prohibition (Ex. Secretary testifies the transaction)
WHAT IS THE NATURE OF THE CASE?
• “Upon a claim or demand against the estate of the deceased person or
unsound mind”
HOW WILL THE RULE BE APPLIED?
1) Determine first who the defendant is.
- He is the executor or administrator or
- other representative of a deceased person,
- or against a person of unsound mind.
2) The rule will not apply if the abovementioned is of unsound mind
3) The rule contemplates a suit against the estate, its executor or
administrator
- not a suit filed by the administrator or executor of the estate.
4) When a counterclaim set up by the executor or administrator of the
estate,
- the case is removed from the operation of the dead man’s statute.
5) The case should be one upon a claim or demand against the estate of
such deceased person or against such person of unsound mind
- The rule does not apply when the action brought is not against the
estate or not upon a claim or demand against the estate.
WHO ARE THESE PERSONS ENUMERATED BY THE LAW?
• These are the persons who had previous dealings with the deceased or
the person of unsound mind.
• It does not prohibit a testimony by a mere witness to the transaction.
- Thus, offering a disinterested witness is not a transgression of the
rule since the prohibition extends only to the party or his assignor or
the person in whose behalf the case is prosecuted.
TO WHAT MATTER DOES THE INCOMPETENCY IS IMPOSED UPON THE
WITNESS?
• On any matter of fact occurring before the death of such deceased person
or before such person became of unsound mind.
• Hence, if the subject of the testimony is on some other matter, the witness
may testify on such matter as when the subject of the testimony is on a
fact which transpired after the death of such person.
• Thus, a testimony favorable to the estate or to the insane person is not
barred since the rule is designed to protect the interest of the estate or to
the insane person.
ILLUSTRATIONS:
CDR NOTES | 21
Bawal lang naman siya magtestify, pero kung may ibang witness. Okay lang.
Q: A borrowed 2M pesos from B. 2 weeks thereafter A died. In the ILLUSTRATIONS:
settlement of estate proceeding of the estate of A, B is claiming the
amount of 2M from the estate of A through the latter’s administrator. Q: H and W were sweethearts. H confided something to W and told the
• During the presentation of evidence, B was called to testify on latter not to tell the same to anyone. Later, they got married.
their supposed agreement. The executor objected to the • After several years, their Marriage got annulled.
presentation of B. Will the objection prosper? • It turned out that what was told by H to W was that he was the one
who bombed the hotel.
ANSWER: • In the prosecution for terrorism against, the prosecution called W to
• Yes, the objection will prosper. the witness stand. H objection on the ground of “marital privilege
• All the elements of Dead Man Statute are present. The suit is upon a communication”. Rule on the objection.
claim against the estate of the deceased. The defendant is the
administrator. The witness is the plaintiff. The testimony is on any ANSWER:
matter occurring during the lifetime of the deceased. • Objection should be denied.
• The confidential information was not received during
Q: Supposing in the given problem, B executed an SPA in favor of D marriage.
to file a claim against the estate of A through the latter’s
administrator. D was called to testify to substantiate the claim. The Q: Supposing the information was received by W from H during their
administrator of A objected to the presentation of D. Will the marriage, but W was called to testify after their marriage was annulled.
objection prosper? Will W be allowed to testify over the objection of H?

ANSWER: ANSWER:
• No. the objection will not prosper. • No. W should not be allowed to testify against H, if the latter objects.
• Because in this case, D is not prohibited to testify. He is not the plaintiff, • The wife who received the information in confidence may not be called
nor assignor of the plaintiff or a person in whose behalf the case is to testify thereon even after marriage.
prosecuted. He is just agent of the plaintiff.
B ang defendant dito. MARITAL DISQUALIFICATION RULE vs MARITAL PRIVILEGED
Q: Suppose that B is indebted to A in the amount of 3M. The COMMUNICATION RULE
administrator of A filed a collection suit against B. B denied the claim
saying that no such transaction occurred. B presented himself as a Either spouse
witness? His presentation was objected. Rule on the objection. Sec. 22 Sec. 24(a)
Marital Disqualification Marital Privilege
ANSWER: Rule Communication Rule
• Objection overruled. Sec. 22 includes facts, Sec. 24(a) applies only to
• The suit is not a claim against the estate of deceased person. Further, occurrences or information testimonies of a
the suit was filed by the administrator against B (Sunga-Chan vs. Chua, even prior to the marriage confidential nature
363 SCRA 249). unlike Sec.24(a) which received by 1 spouse from
applies only to confidential the other during the
Q: Suppose that B is indebted to A in the amount of 3M. The information during the marriage and obviously
administrator of A filed a collection suit against B. B filed a marriage. does not include acts
counterclaim claiming that A borrowed the amount of 2M from B merely observed by 1
during A’s lifetime. B presented himself as a witness to prove the The Sec 24(a) is broader spouse unless such acts
counterclaim? His presentation was objected. Rule on the objection. because it prevents are intended as a means of
testimony for or against the conveying communication
ANSWER: spouse on any fact and not by one to the other.
• Objection sustained. A counterclaim is a claim against the estate of the merely disclosure of
deceased as represented by the Administrator. confidential information.
Rule 22 on the other hand, When sec. 24(a) applies,
DISQUALIFICATION BY REASON OF PRIVILEGE COMMUNICATION can no longer be invoked the spouse affected by the
once marriage is dissolved. disclosure of the
MARITAL PRIVILEGE COMMUNICATION It may be asserted only information or testimony
during the marriage. may object even after the
The husband or the wife, during or after the marriage, cannot be examined dissolution of the marriage.
without the consent of the other as to any communication received in The privilege does not
confidence by one from the other during the marriage except in a civil case cease just because the
by one against the other, or in a criminal case for a crime committed by marriage has ended.
one against the other or the latter's direct descendants or ascendants. Sec. 22 requires that the This is not required Sec.
(Sec. 24(a), Rule 130) spouse for or against 24(a) and applies
whom regardless of whether the
ELEMENTS FOR APPLICABILITY the testimony is offered is spouses are parties or not.
1) There must be a valid marriage between the husband and wife a
party to the action.
2) There is a communication received in confidence by one from the Under Sec. 22, the Sec. 24(a) prohibits the
other. prohibition is a testimony examination of a spouse
for or against the other. as to matters received in
3) The confidential information was received during marriage. confidence by one from the
other during the marriage.
When is information considered confidential?
GR: is that communications between spouses is presumed confidential ATTORNEY- CLIENT PRIVILEGE
unless shown otherwise.
Dito ung attorney lang
• Communications made in the presence of third person are not An attorney cannot, without the consent of his client, be examined as to any
confidential unless the third person may be considered as agent of the communication made by the client to him, or his advice given thereon in the
spouses. course of, or with a view to, professional employment, nor can an attorney's
secretary, stenographer, or clerk be examined, without the consent of the
Who is covered by the disqualification? client and his employer, concerning any fact the knowledge of which has
• Only spouses are covered. Third person are not. been acquired in such capacity (Sec. 24(b), Rule 130)
EVIDENCE PRELIMS | J. GITO CDR NOTES | 22
 decisions and to do so in a way many would be unwilling to express except
ELEMENTS FOR APPLICABILITY privately.
1) There must be communication made by client to the attorney, or
advice given by the lawyer to his client WHAT ARE THE MATTERS INVOLVING STATE SECRETS?
1) Military
2) The communication and advice must be given in confidence 2) Diplomatic
3) Other national security matters
3) The communication or advice must be in the course of the
professional employment or with the view to professional Testimonial Privilege
employment
PARENTAL AND FILIAL PRIVILEGE
Is it necessary that there should be lawyer-client relationship before Section 25, Rule 130
the rule may be applied? • Parental and filial privilege. — No person may be compelled to testify
• NO. The rules provides that “communications or advice given with the against his parents, other direct ascendants, children or other direct
view to professional employment descendants.

Does the disqualification apply only to lawyer? Parental privilege – A parent cannot be compelled to testify against his
• NO. child or direct descendants
• The rule also applies to an
- attorney's secretary, Filial privilege – A child may not be compelled to testify against his parent
- stenographer, or or direct ascendants
- clerk who received the information in their capacity as such.

Will the death of the client extinguish the privilege? ADMISSION

• The protection of the privilege will generally survive the death of the
client. Yet, where there is an attack on the validity of the will, Section 26, Rule 130. Admission of a party. —
communications made to the attorney on the drawing of the will, while The act, declaration or omission of a party as to a relevant fact may be given
confidential during the lifetime of the client are not intended to require in evidence against him.
secrecy after his death.
CONFESSION
PHYSICIAN – PATIENT PRIVILEGE Section 33. Confession. —
The declaration of an accused acknowledging his guilt of the offense
A person authorized to practice medicine, surgery or obstetrics cannot in a charged, or of any offense necessarily included therein, may be given in
civil case, without the consent of the patient, be examined as to any evidence against him.
advice or treatment given by him or any information which he may have
acquired in attending such patient in a professional capacity, which ADMISSION CONFESSION
information was necessary to enable him to act in that capacity, and which It is a voluntary Confession is an
would blacken the reputation of the patient (Sec. 24(c), Rule 130) acknowledgment made by acknowledgment of guilt.
a party of the existence of
What are the information that may not be disclosed? truth of a certain facts.
• Any advice given to the client
• Any treatment given to the client It includes confession It is a specific type of
• Any information acquired in attending such patient provided that the admission.
advice, treatment or information was made or acquired in a
professional capacity May be express or Always express
• The information sought to be disclosed would tend to blacken the implied.
reputation of patient

PRIEST- PENITENT PRIVILEGE EFFECT

A minister or priest cannot, without the consent of the person making the
confession, be examined as to any confession made to or any advice
given by him in his professional character in the course of discipline
enjoined by the church to which the minister or priest belongs. (Sec. 24(d),
Rule 130)
PRIVILEGED COMMUNICATION TO PUBLIC OFFICERS
A public officer cannot be examined during his term of office or afterwards,
as to communications made to him in official confidence, when the court
finds that the public interest would suffer by the disclosure.(Sec. 24(e),
Rule 130)
EXECUTIVE PRIVILEGE; PRESIDENTIAL COMMUNICATIONS
PRIVILEGE
It is the power of the government to withhold information from the public,
the courts, and the Congress.
NOTE:
The court acknowledged that there are certain types of
information which the government may withhold from the
public like military, diplomatic, and national security secrets.
WHAT IS THE BASIS OF THE PRIVILEGE?
• It is rules that the President and those who assist him must be free to
explore alternatives in the process of shaping policies and making
The act, declaration or omission of a party as to a relevant fact may be given
in evidence against him
Classification of Admission
• Express or Implied
• Judicial or Extra-Judicial
• Adoptive Admission – this admission occurs when a person manifests
his assent to the statements of another person. The admission may be
received in evidence if it can be shown that a party adopted the
statements his own.
Adoptive admission
• Adoptive admission may occur in the following:
• Expressly agrees to or concurs in an oral statement made by another
• Hears a statement and later on essentially repeats it
• Utter an acceptance or builds upon the assertion of another
• Replies by way of rebuttal to some specific points raised by another but
ignores further points which he or she has heard the other make;
• Reads and subsequently signs a written statement made by another
Effect of extrajudicial confession
• Rule 133, Section 3. Extrajudicial confession, not sufficient ground
for conviction. — An extrajudicial confession made by an accused, shall
not be sufficient ground for conviction, unless corroborated by evidence
of corpus delicti.
• Corpus delicti is the “body of the crime” or the offense. It means the actual
commission of the crime and someone is criminally responsible therefor.

EVIDENCE PRELIMS | J. GITO CDR NOTES | 23

 • Elements:
1) proof of occurrence of a certain event;
2) some person’s criminal responsibility for the act
Corpus Delicti in certain crimes
• In the prosecution for illegal drugs, the corpus delicti is the drug itself
• In theft, corpus delicti has two elements:
1) property was lost by the owner;
2) that it was lost by felonious taking
• In illegal possession of firearm, the accused lack of license or authority
to possess or carry firearm is the corpus delicti
ADMISSION BY SILENCE
SECTION 32. Admission by silence. —
An act or declaration made in the presence and within the hearing or
observation of a party who does or says nothing when the act or
declaration is such as naturally to call for action or comment if not true,
and when proper and possible for him to do so, may be given in evidence
against him.
OFFER OF COMPROMISE
Section 27. Offer of compromise not admissible. —
• IN CIVIL CASES,
- an offer of compromise is not an admission of any liability, and
is not admissible in evidence against the offeror. (Sec. 27, Rule
130)
• IN CRIMINAL CASES,
- except those involving quasi-offenses (criminal negligence) or
- those allowed by law to be compromised,
- an offer of compromise by the accused may be received in
evidence as an implied admission of guilt.
• A PLEA OF GUILTY LATER WITHDRAWN, or an UNACCEPTED
OFFER of a plea of guilty to a lesser offense,
- is not admissible in evidence against the accused who made the
plea or offer.
• An OFFER TO PAY OR THE PAYMENT OF MEDICAL, HOSPITAL
OR OTHER EXPENSES occasioned by an injury is not admissible in
evidence as proof of civil or criminal liability for the injury.
RES INTER ALIOS ACTA
“Things done between strangers ought not to injure those who are not
parties to them.”
TWO BRANCHES OF RES INTER ALIOS ACTA
• First Branch - The rights of a party cannot be prejudiced by an act,
declaration or omission of another (Sec. 28, Rule 130)
• Second Branch - The evidence of previous conduct or similar acts at
one time is not admissible to prove that one did or did not do the same
at another time (Sec. 34, Rule 130)
FIRST BRANCH
ADMISSION BY THIRD PARTY
The rights of a party cannot be prejudiced by an act, declaration or
omission of another (Sec. 28, Rule 130)
Is this applicable to judicial admission?
• No. because res inter alios acta is applicable only to extra-judicial admission
but it does not cover judicial admission because of the other accused has
the opportunity to cross-examine.
EXCEPTION TO SEC. 28, RULE 130:
SECTION 29. Admission by co-partner or agent. —
The act or declaration of a partner or agent of the party within the scope of
his authority and during the existence of the partnership or agency, may
EVIDENCE PRELIMS | J. GITO
be given in evidence against such party after the partnership or agency is
shown by evidence other than such act or declaration. The same rule applies
to the act or declaration of a joint owner, joint debtor, or other person jointly
interested with the party.
ELEMENTS FOR APPLICABILITY
1) The declaration or act of the partner or agent must have been made or
done
- within the scope of his authority
2) The declaration or act must have been done
- during the existence of the partnership or agency
3) The existence of partnership or agency is
- proven by evidence other than the declaration or act of the
partner or agent.
ILLUSTRATIONS:
Q: A, B, and C are partners. A, the managing partner sold the land owned by
the partnership to D, claiming that that B, and C consented to the sale. Will
the act of A bind, B and C?
ANSWER:
• Yes. Provided that the existence of the partnership is show by evidence
other than such declaration or act.
Q: A, B, and C are partners. Later, they dissolved their partnership. While the
BIR was investigating the dissolved partnership for tax liabilities, A admitted
that they falsified receipts to evade tax liabilities.
• Is the statement of A admissible against B, and C?
ANSWER:
• No. Because it was done outside the existence of the partnership.
SECTION 30. Admission by conspirator. –
The act or declaration of a conspirator relating to the conspiracy and during
its existence, may be given in evidence against the co- conspirator after the
conspiracy is shown by evidence other than such act or declaration.
Rationale
• A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it (Art. 8,
RPC).
• One the conspiracy is proven, the act of one is the act of all.
- Thus, the statement therefore of one may be admitted against the
other co-conspirators as an exception to the rule of res inter alios
acta.
ELEMENTS FOR APPLICABILITY
1) The declaration or act be made or done
- during the existence of the conspiracy;
2) The declaration or act
- must relate to the conspiracy;
3) The conspiracy must be
- shown by evidence other than such declaration
ILLUSTRATIONS:
Q: A was arrested as a direct participant in the crime. During a television
interview, he admitted his participation in the robbery. He also implicated B
and C as his other companions in planning and executing the robber. Is his
statement admissible against B and C?
ANSWER:
• No, because the statement was done outside the existence of conspiracy
Q: A, who was staying the a room adjacent to the room of B, C and D –
overheard B, instructing C and D how to assassinate E.
A peaked at the hole and saw A. But he was not able to see C and D. Later E
was killed. Is the statement of A admissible against C and D?
ANSWER:
CDR NOTES | 24
• Yes. Provided that conspiracy must be shown by evidence other than An offer in writing to pay a particular sum of money or to deliver a written
such declaration or act. instrument or specific personal property is, if rejected without valid cause,
equivalent to the actual production and tender of the money, instrument, or
Q: A, B and C was prosecuted for conspiring to kill D. The evidence for the property
prosecution is the extra-judicial confession of A and B executed in
accordance with and the constitution. In the state extra-judicial confession,
A and B implicated C as the mastermind. Is the extra-judicial statement CHAPTER 6
of A and B admissible against C?
HEARSAY RULE
ANSWER:
• No. the confession was made after the conspiracy had ended and after TESTIMONIAL KNOWLEDGE
the consummation of the crime. Hence, it cannot be said that the
execution of the affidavits were acts or declaration made during the SECTION 36. Testimony generally confined to personal knowledge;
existence of conspiracy hearsay excluded. –
A witness can testify only to hose facts which he knows of his personal
SECTION 31. Admission by privies. — knowledge; that is, which are derived from his own perception, except as
Where one derives title to property from another, the act, declaration, or otherwise provided in these rules.
omission of the latter, while holding the title, in relation to the property, is
evidence against the former. ELEMENTS OF HEARSAY:
1) There must be an out of court statement which was not made by the
“Privies” – persons who are partakers or have an interest in any action or declarant in the hearing or trial
thing, or any relation to another 2) The statement is offered by the witness in court to prove the truth of
the matters asserted by the statement
Requisites for the exception to apply:
1) There must be Ex.
- an act, declaration or omission by a predecessor-in-interest; • Affidavit offered as evidence without presenting the affiant is hearsay
• Newspaper articles amount to “hearsay evidence twice removed and are
2) The act, declaration, or omission of the predecessor-in-interest must therefore not only inadmissible but without any probative value at all
have whether objected to or not, unless offered for a purpose other than proving
- occurred while he was holding the title to the property the truth of the matter asserted. In this case, the news article is admissible
only as evidence that such publication does exist with the tenor of the
3) The act, declaration or omission must news therein stated
- be in relation to the property
The purpose for which the evidence is offered is offered is vital to
Q: Z inherited a house and lot from his father X. While X was alive he determine whether the evidence is hearsay or not
mortgaged this land to B. He openly told to everyone that the land was
mortgaged to B. Is the declaration X admissible against Z? What is the basis for excluding hearsay evidence?
• It rests mainly on the ground that there is no opportunity to cross-examine
ANSWER: the outside declarant.
• Yes. The requisites are complied with.
What will be violated in case such is admitted?
SECOND BRANCH • It will violate the constitutional right of the accused to confront the
witnesses testifying against him and cross-examine them
Previous Conduct as Evidence

Section 34, Rule 130: Similar acts as evidence. — OUT-OF-COURT STATEMENT TO PROVE MENTAL STATE
Evidence that one did or did not do a certain thing at one time is NOT
ADMISSIBLE to prove that he did or did not do the same or a similar thing Ex.
at another time; but it may be received to prove a specific intent or Q. How long have you known the testator?
knowledge, identity, plan, system, scheme, habit, custom or usage, and A. For 20 years by the time he died.
the like. Q. How did you come to know him?
A. I was his nurse for 20 years
EVIDENCE OF SIMILAR CONDUCT Q. On March 16, 2015, what did you hear the testator say, if any?
GR: is that the law will not consider evidence that a person has done a
certain act at a particular time as probative of a contention that he has done Objection, your honor, hearsay!
a similar act at another time.
• This is the rule of res inter alios acta found in Section 34, Rule 130 of A. In the morning of March 16, 2015, the testator said he is Piolo Pascual.
the Rules. On April 5, 2015, the testator said, he is Enrique Gil. On May 15, 2015, he
• A similar conduct which does not even sufficiently establish a plan or said is Judge Gito.
scheme is not admissible
OUT-OF-COURT STATEMENT TO PROVE ITS EFFECT ON THE
When is similar acts or previous act admissible? LISTENER/ HEARER

It may be received to prove: (SKIPS2-HCU) Ex.

1) Specific intent Q. Sir, what were you doing on such and such a date?
2) Knowledge, A. I was on routine patrol
3) Identity Q. What happened on such and such a date?
4) Plan A. I saw people milling around something in the corner of Rector Street.
5) System Q. What did you do if any?
6) Schem A. I got out of my patrol car to see what was happening.
7) Habit Q. What did you see, if any?
8) Custo A. I saw a man lying face downward on the side of the street with blood over
9) Usage, and the like his neck
Q. What happened next
Section 35. Unaccepted offer. — A. A man whispered to me: “this happened barely two minutes ago and that
guy sitting there pretending to be an on looker is the culprit”

EVIDENCE PRELIMS | J. GITO CDR NOTES | 25

This is offered to prove the effect of the statement on the police IS DYING DECLARATION CONFINED TO CRIMINAL CASES ONLY?
officer which prompted the latter to arrest the accused
Sec. 31 of the former rule.
INDEPENDENT RELEVANT STATEMENT • The declaration of a dying person, made under the consciousness
of an impending death, may be received in a criminal case wherein
The relevance of independent relevant statement is not dependent on the his death is the subject of inquiry, as evidence of the cause and
truth or falsity thereof, but on the fact that they were said. surrounding circumstances of such death.

The law, provides for specific exceptions to the hearsay rule.
• One is the doctrine of independently relevant statements, where only
the fact that such statements were made is relevant, and the truth
or falsity thereof is immaterial.
- The hearsay rule does not apply; hence, the statements are
admissible as evidence.
• Evidence as to the making of such statement is not secondary
but primary, for the statement itself may constitute a fact in issue or
be circumstantially relevant as to the existence of such a fact.
- The witness who testifies thereto is competent because he heard
the same, as this is a matter of fact derived from his own
perception, and the purpose is to prove either that the statement
was made or the tenor thereof.
Ex.
A testified that he actually saw the killing of C by B because he claimed he
was there. D heard him testify. The defense offered D as witness.
Q. Were you here when A testified?
A. Yes, sir
Q. What can you say about his testimony?
A. That was not what he told me.
Q. What did he tell you?
Objection your honor, hearsay.
Section 37, Rule 130
• The declaration of a dying person, made under the consciousness
of an impending death, may be received in any case wherein his
death is the subject of inquiry, as evidence of the cause and
surrounding circumstances of such death.
IS DYING DECLARATION ADMISSIBLE TO PROVE THE INNOCENCE OF
THE ACCUSED? – YES.
(2) DECLARATION AGAINST INTEREST
SECTION 38. Declaration against interest. —
The declaration made by a person deceased, or unable to testify,
• against the interest of the declarant,
• if the fact asserted in the declaration
- was at the time it was made so far contrary to declarant's own
interest,
- that a reasonable man in his position would not have made the
declaration unless he believed it to be true,
may be received in evidence
• against himself or
• his successors in interest and
• against third persons.

What is being asked here is the statement that was told by A to D. Ex.
Independent relevant statement. • A statement made by the debtor before he died that he owes the creditor
a sum of money, or an oral acknowledgement by the principal that he
EXCEPTIONS TO HEARSAY received the money previously entrusted to his agent, are clear
declarations against the interest of the person making the statement.
1) Dying declarations (Sec. 37, Rule 130
2) Declaration against interest (Sec. 38, Rule 130 (3) ACT OR DECLARATION ABOUT PEDIGREE
3) Act or declaration about pedigree (Sec. 39, Rule 130
4) Family reputation or tradition regarding pedigree (Sec. 40, Rule 130 SECTION 39. Act or declaration about pedigree. —
5) Common reputation (Sec. 41, Rule 130 The act or declaration of a person deceased, or unable to testify,
6) Part of res gestae (Sec. 42, Rule 130 • in respect to the pedigree of another person related to him by birth or
7) Entries in the course of buisiness (Sec. 43, Rule 130 marriage,
8) Entries in the official records (Sec. 44, Rule 130
9) Commercial Lists and the like (Sec. 45, Rule 130) may be received in evidence
10) Learned treatise (Sec. 46, Rule 130) • where it occurred before the controversy, and
11) Testimony or deposition at the former proceeding (Sec. 47, Rule 130) • the relationship between the two persons is shown by evidence other
than such act or declaration.
(1) DYING DECLARATION
The word "pedigree" includes
SECTION 37. Dying declaration. —
• relationship,
The declaration of a dying person,
• family genealogy,
• made under the consciousness of an impending death,
• birth,
may be received in any case • marriage,
• wherein his death is the subject of inquiry, • death,
• as evidence of the cause and surrounding circumstances of such death. • the dates when and the places where these facts occurred, and
• the names of the relatives.
RATIONALE • It embraces also facts of family history intimately connected with
• At the brink of death, all thoughts on concocting lies disappear pedigree.

ELEMENTS REQUISITES
1) The declaration concerns the cause and the surrounding 1) The declarant is dead or unable to testify;
circumstances of the declarant’s impending death
2) The declarant is related by birth or marriage to the person whose
2) It is made when the death appears to be imminent and the declarant pedigree is in issue;
is under a consciousness of an impending death
3) The declaration was made before the controversy;
3) The declarant would have competent to testify had he or she
survived. 4) The relationship between the two persons is shown by evidence other
than such declaration.
4) The dying declaration is offered in case which the subject of the inquiry
involves the declarant’s death Ex.

EVIDENCE PRELIMS | J. GITO CDR NOTES | 26

• The declaration of A who is dead already, prior to his death and prior
to any controversy, that B is his illegitimate son, is a declaration about
pedigree.
• Similarly, a statement from a mother while living, that her daughters, C
and D, were sired by the same father is admissible.
(4) FAMILY REPUTATION/ TRADITION
SECTION 40. Family reputation or tradition regarding pedigree. –
The reputation or tradition existing in a family
• previous to the controversy,
• in respect to the pedigree of any one of its members,
assailant. His utterance about the accused having stabbed his was made
in spontaneity and only in reaction to a startling occurrence
MANNER OF ANALYZING RES GESTAE
1) Analyze whether there is a starling occurrence.
2) When is the utterance made in relation of startling occurrence. There
should be an element of immediacy
3) What is the tenor of the statement uttered? It should be related to the
circumstances of the event.
ELEMENTS OF VERBAL ACTS
1) The principal act to be categorized must be equivocal

may be received in evidence 2) The equivocal act must be material to the issue
• if the witness testifying thereon be also a member of the family, either
by consanguinity or affinity. 3) The statement must accompany the equivocal act

Entries in 4) The statement gives a legal significance to equivocal act

• family bibles or other family books or charts,
• engravings on rings, (7) ENTRIES IN THE COURSE OF BUSINESS
• family portraits and the like,
SECTION 43. Entries in the course of business. —
may be received as evidence of pedigree.
Entries
(5) COMMON REPUTATION • made at, or near the time of transactions to which they refer,
• by a person deceased, or unable to testify, who was in position to know
SECTION 41. Common reputation. — the facts therein state,
Common reputation
• existing previous to the controversy, may be received as prima facie evidence,
- respecting facts of public or general interest more than 30 years • if such person made the entries in his professional capacity or in the
old, or performance of duty and
- respecting marriage or moral character, • in the ordinary or regular course of business or duty.

may be given in evidence. REQUISITES

Monuments and inscriptions in public places may be received as evidence
of common reputation.
(6) RES GESTAE
SECTION 42. Part of the res gestae. —
Statements made by a person while a startling occurrence is taking place
or immediately prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence as part of the res gestae.
So, also, statements accompanying an equivocal act material to the issue,
and giving it a legal significance, may be received as part of the res
gestae.
KINDS OF RES GESTAE
1) Spontaneous statements
2) Verbal acts
ELEMENTS OF SPONTANEOUS STATEMENT
1) There is a startling occurrence.
2) A statement was made while the event is taking place, or
immediately prior or subsequent thereto.
3) The statement was made before the declarant had time to contrive
or devise falsehood.
4) The statement relates to the circumstances of the startling event
or occurrence.
Ex.
• The requisites were meet in one case where the victim went to her
aunt’s house immediately after escaping from the crime scene and
spontaneously, unhesitatingly and immediately declared to her that the
accused had sexually abused her. Such manner of denunciation of him
as rapist was confirmed by the aunt’s testimony about the victim’s
panic-stricken demeanor and her use of words sufficiently indicating her
being raped.
• When the deceased gave the identity of his assailant to another, he was
referring to a startling occurrence, i.e., his stabbing by the accused. The
victim was then on board the taxicab that would bring him to the hospital
and, had no time to contrive his identification of the accused as the
EVIDENCE PRELIMS | J. GITO
1) The person who made the entry must be dead or unable to testify
• The entries were made at or near the time of the transaction to which
they refer
• The entrant was in a position to know the facts stated in the entries
• The entries were made in his professional capacity or in the
performance of a duty, whether legal contractual, moral or religious
• The entries were made in the ordinary or regular course of business
or duty
Ex.
In a collection suit filed by A against B where the loan is not evidence
by a written document.
Q. Mr. witness, did you testify that you saw the plaintiff give money to the
defendant?
A. I did, sir.
Q. What, if any, did anybody say at the time the money was
handed over by the plaintiff to the defendant?
A. As the plaintiff handed the money, he said to the defendant
“This is the P10,000 you told me you were borrowing from me.”
Q. What did the defendant say, if any?
A. The defendant said, “Thank you. I will pay you after a year.
The exception is commonly encountered in breach of contract suits
and suits for collection of sum of money
(8) ENTRIES IN OFFICIAL RECORDS
SECTION 44. Entries in official records. —
Entries in official records
• made in the performance of his duty by a public officer of the Philippines,
or
• by a person in the performance of a duty specially enjoined by law,
are prima facie evidence of the facts therein stated.
REQUISITES
1) The entry was made by a public officer or by another person
specifically enjoined by law to do so.
CDR NOTES | 27
2) It was made by the public officer, or by such other person in the
performance of a duty specifically enjoined by law
3) The public officer had sufficient knowledge of the facts he stated
which must have been acquired by the public officer person personally
or through official information
(9) COMMERCIAL LISTS
SECTION 45. Commercial lists and the like. —
Evidence of statements
• of matters of interest to persons engaged in an occupation
• contained in a list, register, periodical, or other published compilation
• experience or
• training which he is shown to possess,
may be received in evidence.
The Court is not bound by an opinion of an expert such as for example
a handwriting expert.
• Expert opinion evidence is to be considered or weighed by the court, like
any other testimony, in the light of its own general knowledge and
experience upon the subject of inquiry.
• The probative force of testimony of an expert does not lie in a mere
statement of his theory or opinion, but rather in the aid that he can render
to the courts in showing the facts which serve as a basis for his criterion
and the reasons upon which the logic of his conclusions is founded

is admissible as tending to prove the truth of any relevant matter so stated
• if that compilation is published for use by persons engaged in that
occupation and
• is generally used and relied upon by them therein.
(10) LEARNED TREATISES
SECTION 46. Learned treatises. —
A published treatise, periodical or pamphlet
• on a subject of history, law, science or art
SECTION 50. Opinion of ordinary witnesses.—
The opinion of a witness for which proper basis is given, may be received in
evidence regarding —
a) the identity of a person about whom he has adequate knowledge;
b) A handwriting with which he has sufficient familiarity; and
c) The mental sanity of a person with whom he is sufficiently acquainted.
d) The witness may also testify on his impressions of the emotion,
behavior, condition or appearance of a person.
CHARACTER EVIDENCE

is admissible as tending to prove the truth of a matter stated therein
• if the court takes judicial notice, or
• a witness expert in the subject testifies,
- that the writer of the statement in the treatise, periodical or
pamphlet is
- recognized in his profession or
- calling as expert in the subject.
(11) TESTIMONY OR DEPOSITION AT FORMER PROCEEDING
SECTION 47. Testimony or deposition at a former proceeding. —
The testimony or deposition of a witness deceased or unable to testify,
• given in a former case or proceeding, judicial or administrative,
• involving the same parties and subject matter,
Section 51. Character evidence not generally admissible; exceptions: —
a) In Criminal Cases:
1. The accused may prove his good moral character which is pertinent
to the moral trait involved in the offense charged.
2. Unless in rebuttal, the prosecution may not prove his bad moral
character which is pertinent to the moral trait involved in the offense
charged
3. The good or bad moral character of the offended party may be
proved if it tends to establish in any reasonable degree the probability
or improbability of the offense charged.
b) In Civil Cases:
Evidence of the moral character of a party in civil case is admissible
only when pertinent to the issue of character involved in the case.

may be given in evidence c) In the case provided for in Rule 132, Section 14. –
• against the adverse party who had the opportunity to cross-examine “Evidence of good character of witness. — Evidence of the good character
him. of a witness is not admissible until such character has been impeached.”

REQUISITES What is “character”?

1) The witness is dead or unable to testify
2) His testimony or deposition was given in a former case or
proceeding, judicial or administrative, between the same parties
or those representing the same parties
3) The former case involved the same subject as that in the present
case, although on different cause of action
• It is the aggregate of the moral qualities which belong to and distinguish
an individual person; the general results of one’s distinguishing attributes.
It refers to what a man is and depends on the attributes he possesses.
Is it the same as reputation?
• No. The reputation depends on the attributes which others believe one to
possess. Character signifies reality while reputation signifies what is
accepted to be reality at present.

4) The issue testified to by the witness in the former trial is the same issue CHARACTER REPUTATION
involved in the present case What the person really is What he is supposed to be
in accordance with what
5) The adverse party had the opportunity to cross-examine the witness people say he is, and is
in the former case dependent on how people
perceive a person to be

OPINION RULE ACTER REPUTATION

Is character of the accused admissible?
SECTION 48. General rule. — • No. The rule is that the character or reputation of a party is regarded as
The opinion of a witness is NOT ADMISSIBLE, legally irrelevant in determining a controversy, so that evidence relating
• except as indicated in the following sections. thereto is not admissible

This rule applies to an ordinary witness. Can the prosecution prove the bad character of the
• If you are not an expert, you have no right to give an opinion. accused?
• Only expert does. • In a criminal case, the prosecution cannot prove the bad moral character
of the accused in its evidence-in-chief. It can only do so in rebuttal.
SECTION 49. Opinion of an expert. — • This means that the prosecution may not offer evidence of the character
The opinion of a witness requiring a of the accused unless the accused himself has offered evidence of his
• special knowledge, good character.
• skill,

EVIDENCE PRELIMS | J. GITO CDR NOTES | 28