Evidence

admissible in evidence an implied admission

EVIDENCE against the offeror. of guilt.

Neither is evidence of XPNs:
conduct nor 1. Those involving
GENERAL PRINCIPLES statements made in offenses (criminal
compromise negligence); and
negotiations 2. Criminal cases
CONCEPT OF EVIDENCE admissible. allowed by law to
be compromised.
Evidence is the means, sanctioned by the Rules of XPN: Evidence (Sec. 28, Rule 130)
Court, of ascertaining in a judicial proceeding the otherwise
truth respecting a matter of fact. (Sec. 1, Rule 128) discoverable or offered
for another purpose,
SCOPE OF THE RULES ON EVIDENCE such as proving bias or
prejudice of a witness,
Principle of Uniformity negativing a
contention of undue
The rules of evidence shall be the same in all courts delay, or proving an
and in all trials and hearings, except as otherwise effort to obstruct a
provided by law or the Rules of Court. criminal investigation
or prosecution. (Sec.
Applicability of the Rules on Evidence 28, Rule 130, 2019
Amendments to the
The rules of evidence, being part of the Rules of Revised Rules on
Court, apply only to judicial proceedings. (Sec. 1, Evidence)
Rule 128) The concept of The accused enjoys the
presumption of constitutional
The Rules of Court shall not apply to: innocence does not presumption of
apply and generally innocence.
1. Naturalization proceedings; there is no
2. Insolvency proceedings; presumption for or
3. Cadastral proceedings; against a party except
4. Other cases not provided in the Rules of in cases provided for
Court; by law.
5. Land registration proceedings; and The concept of Confession is a
6. Election cases (Sec. 4, Rule 1) confession does not declaration of an
apply. accused
However, the rules may apply to the acknowledging his
abovementioned proceedings and cases by analogy guilt.
or in a suppletory character and whenever
practicable and convenient. (Sec. 4, Rule 1) PROOF vs. EVIDENCE

EVIDENCE IN CIVIL CASES PROOF EVIDENCE
vs. EVIDENCE IN CRIMINAL CASES It is merely the It is the mode or
probative effect of manner of proving
EVIDENCE IN CIVIL EVIDENCE IN evidence and is the competent facts in
CASE CRIMINAL CASE conviction or judicial proceedings.
The party having the The guilt of the persuasion of the mind (Bustos v. Lucero, 81
burden of proof must accused, must be resulting from Phil. 640)
prove his claim by a proved beyond beyond consideration of the
preponderance of reasonable doubt. (Sec. evidence. Without evidence, there
evidence. (Sec. 1, Rule 2, Rule 133) is no proof.
133) Effect or result of Medium of proof.
GR: An offer of GR: An offer of evidence.
compromise is not an compromise by the
implied admission of accused may be FACTUM PROBANDUM vs. FACTUM PROBANS
any liability, and is not received in evidence as

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 REMEDIAL LAW
FACTUM PROBANDUM FACTUM PROBANS 3. Right to counsel, prohibition on torture,
The fact or proposition The facts or material force, violence, threat, intimidation or
to be established. evidencing the fact or other means which vitiate the free will;
proposition to be prohibition on secret detention places,
established. solitary, incommunicado (Sec. 12, Art.
The fact to be proved, The probative or III, 1987 Constitution)
the fact which is in issue evidentiary fact tending 4. Right against self-incrimination (Sec.
and to which the to prove the fact in 17, Art. III, 1987 Constitution)
evidence is directed. issue.
Ultimate Facts. Intermediate or B. Statutory exclusionary rules
evidentiary facts.
Hypothetical. Existent. 1. Lack of documentary stamp tax in
documents, instruments, or papers
Illustration: If P claims to have been injured by the required by law to be stamped makes
negligence of D, while D denies having been such documents inadmissible as
negligent, the negligence is the fact to be evidence in court until the requisite
established. It is the factum probandum. The stamp/s shall have been affixed
evidence offered by P constitutes the material to thereto and cancelled. (Sec. 201, NIRC)
prove the liability of D. The totality of the evidence 2. Any communication obtained by a
to prove the liability is the factum probans. (Riano, person, not being authorized by all the
2016) parties to any private communication,
by tapping any wire/cable or using
any other device/arrangement to
ADMISSIBILITY OF EVIDENCE secretly overhear/intercept/record
such information by using any device,
shall not be admissible in evidence in

any judicial/quasi-
REQUISITES FOR ADMISSIBILITY OF EVIDENCE
judicial/legislative/administrative

hearing or investigation. (Secs. 1 and 4,
1. The evidence is relevant to the issue; and
R.A. No. 4200 or Anti-Wire Tapping

Act)
NOTE: It is relevant if it has such a relation
3. Any confession, admission or
to the fact in issue as to induce belief in its
statement obtained as a result of
existence or non-existence. (Sec. 4, Rule
torture shall be inadmissible in
128)
evidence in any proceedings, except if

the same is used as evidence against a
2. The evidence is competent.
person or persons accused of

committing torture. (Section 8, RA
NOTE: The evidence is competent when it
9745 or Anti Torture Act of 2009)
is not excluded by the Constitution, the law

or these Rules (Sec. 3, Rule 128, 2019
C. Under the Rules of Court, Rule 130 is the
Amendments on the Revised Rules on
applicable rule in determining the
Evidence). Competency is determined by
admissibility of evidence.
the prevailing exclusionary rules of

evidence.
D. Court issuances, such as:


EXCLUSIONARY RULES
1. Rules on Electronic Evidence, e.g.

compliance with authentication
The rules of exclusion are rules of exception to the
requirements for electronic evidence;
general admissibility of all that is rational and
2. Rule on Examination of Child Witness,
probative.
e.g. sexual abuse shield rule; and

3. Judicial Affidavit Rule.
A. Constitutional exclusionary rules


Admissibility vs. Weight
1. Unreasonable searches and seizures

(Sec. 2, Art. III, 1987 Constitution)
ADMISSIBILITY WEIGHT
2. Privacy of communication and
(PROBATIVE VALUE)
correspondence (Sec. 3, Art. III, 1987
Constitution) Refers to the Refers to the question
questions whether or of whether or not the

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 Evidence
not the evidence is to evidence proves an Illustration: Motive of a person or his reputation
be considered at all. issue. is a matter that may be considered collateral to the
Depends on Pertains to tendency subject of controversy.
relevance and to convince or
competence. persuade. XPN: It is allowed when it tends in any reasonable
degree to establish the probability or improbability
Doctrine of the Fruit of the Poisonous Tree of fact in issue. (Sec. 4, Rule 128)

Illegally obtained evidence shall be insadmissible MULTIPLE ADMISSIBILITY (2005 BAR)
in evidence for any purpose in any proceeding
because they are the “fruit of the poisonous tree.” Where the evidence is relevant and competent for
two or more purposes, such evidence should be
E.g. Evidence obtained without a valid search admitted for any or all purposes for which it is
warrant subject to exceptions; issuance of general offered provided it satisfies all the requirements of
warrants that encourage law enforcers to go on law for its admissibility (Regalado, 2008).
fishing expeditions. (Section 3 [2], Article III of the
1987 Constitution) (2010 BAR) Illustration: Depending upon circumstances, the
declaration of a dying person may be admissible
Illegally seized evidence is obtained as a direct for two or more purposes. It may be offered as a
result of the illegal act, whereas the "fruit of the dying declaration under Sec. 38, Rule 130, as
poisonous tree" is the indirect result of the same amended, and as part of res gestae under Sec. 44,
illegal act. The "fruit of the poisonous tree" is at Rule 130, as amended. The statement by a bus
least once removed from the illegally seized driver immediately after the collision that he dozed
evidence, but it is equally inadmissible. The rule is off in the wheel while driving may be admissible as
based on the principle that evidence illegally an admission under Sec. 27, Rule 130, as amended
obtained by the State should not be used to gain and/or as part of res gestae pursuant to Sec. 44,
other evidence because the originally illegally Rule 130, as amended.
obtained evidence taints all evidence subsequently
obtained. (People v. Bintaib, G.R. No. 218805, April 2, CONDITIONAL ADMISSIBILITY (2011 BAR)
2018)
Where the evidence at the time of its offer appears
NOTE: This section could also be the answer to the to be immaterial or irrelevant unless it is
question on the “two kinds of objection” that is the connected with the other facts to be subsequently
objection that the evidence is not relevant to the proved, such evidence may be received on
issue and secondly that is excluded by the rules. condition that the other facts will be proved
(Sec. 3, Rule 128) thereafter, otherwise the evidence already given
will be stricken out. (Regalado, 2008)
RELEVANCE OF EVIDENCE
AND COLLATERAL MATTERS CURATIVE ADMISSIBILITY

Relevancy of Evidence It allows a party to introduce otherwise
inadmissible evidence to answer the opposing
Evidence must have such a relation to the fact in party’s previous introduction of inadmissible
issue as to induce belief in its existence or non- evidence. (Riano, 2016)
existence. (Sec. 4, Rule 128)
Illustration: In an action for damages arising from
The court will admit only evidence which is car accident, the plaintiff, despite objection by the
relevant to the issue. (Sec. 3, Rule 128, 2019 defendant, was allowed to introduce evidence to
Amendments to the Revised Rules on Evidence) show that, on several occasions, the defendant, in
the past, had injured pedestrians because of
Collateral matters negligence. (Riano, 2016)

Collateral matters refer to matters other than the Thus, a party who first introduces either irrelevant
fact in issue. or incompetent evidence into the trial cannot
complain of the subsequent admission of similar
GR: Evidence on collateral matters is not allowed. evidence from the adverse party relating to the
subject matter. (Commonwealth v. Alexander, K., 5
S.W. rd104, 105 [1999], citing Dunaway v.
Commonwealth, 239 Ky. 166, 39 S.W. 2d242, 243

521
 REMEDIAL LAW
[1931]; Smith v. Commonwealth, Ky., 904 S.W. 2d The difference involves a relationship of the fact
220, 222 [1995]) Conversely, the doctrine should inferred to the facts that constitute the offense.
not be invoked where evidence was properly Their difference does not relate to the probative
admitted. value of the evidence. Direct evidence proves a
challenged fact without drawing any inference.
Multiple, Conditional, and Curative Circumstantial evidence, on the other hand,
Admissibility indirectly proves a fact in issue, such that the fact-
finder must draw an inference or reason from
In gist, if relevant and competent, evidence may be circumstantial evidence. (Planteras v. People, G.R.
(1) conditional, which connotes tentative or No. 238889, October 3, 2018)
temporary evidence; (2) multiple, where it is
legally permissible for different aspects; or (3) Q: X and Y were charged with Robbery with
curative, when it is intended to receive Homicide. The prosecution established that on
inadmissible evidence from a party to neutralize a the day of the incident, J and L were having a
previously accepted inadmissible evidence from conversation in their house when two (2)
the other party. (Peralta & Peralta, 2020) persons asked them where the house of the
victim was located. They pointed to the house
DIRECT AND CIRCUMSTANTIAL EVIDENCE who was their neighbor. Later, J and L heard
someone shouting and moaning inside the
Direct Evidence house of the victim. J went out of the house and
saw somebody waving a flashlight inside the
That which proves a fact without the need to make victim's house, as if looking for something. This
an inference from another fact. (Riano, 2016) prompted him to call L and V. A few minutes
later, a man wearing a black t-shirt and
Circumstantial Evidence or Indirect Evidence carrying a backpack, followed by another man
wearing a green shirt and carrying a pair of
That which proves a fact in issue indirectly through shoes, came out of the house of the victim. J and
an inference which the fact finder draws from the L immediately ran after them unto the
evidence established. (People v. Matito, G.R. No. basketball court, and saw that the two were
144405, February 24, 2004) already on board a black Yamaha motorcycle.
Luckily, V arrived with the barangay tanod and
It may happen that no prosecution witness has immediately accosted the two men. J, L, and V
actually seen the commission of the crime. recognized the two as the same persons who
However, jurisprudence tells us that direct asked them earlier about the location of
evidence of the crime is not the only matrix from Laurora's house. The man wearing black shirt
which a trial court may draw its conclusion and was identified as the accused-appellant, while
finding of guilt. The rules on evidence allow a trial the one wearing green shirt was identified as Y.
court to rely on circumstantial evidence to support Recovered from their possession were personal
its conclusion of guilt. properties belonging to the victim. When
Accused-appellant was further frisked, a screw
Illustration: The prosecution presented driver was found in his possession. V then
corroborating evidence which constitute an asked the victim's laundrywoman to check on
unbroken chain leading to the inevitable the victim. When she returned, she told them
conclusion that accused is guilty of killing the that the victim was killed. The laundrywoman
victim. For instance, the presence of gunpowder also identified that the green shirt worn by Y
nitrates on accused after a paraffin test; the firearm belongs to the victim. Is the RTC correct in
used in the killing which could either be a .38 convicting the accused based on circumstantial
caliber or 9 mm pistol details with the testimony of evidence?
a witness that he saw accused carrying a .38 caliber
short firearm which was later found to have been A: YES. The lack or absence of direct evidence does
recently fired; and the absence of gunpowder not necessarily mean that the guilt of the accused
nitrates on the hands of the victim after a paraffin cannot be proved by evidence other than direct
test which belies accused’s claim that he was shot evidence. Direct evidence is not the sole means of
by the victim or that the latter exchanged fire with establishing guilt beyond reasonable doubt,
a police office. (People v. Alawig, G.R. No. 187731, because circumstantial evidence, if sufficient, can
September 13, 2013) supplant the absence of direct evidence. The crime
charged may also be proved by circumstantial
Difference between Direct Evidence and evidence, sometimes referred to as indirect or
Circumstancial Evidence presumptive evidence. Here in this case, the RTC,

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 Evidence
as affirmed by the CA, the circumstantial evidence witness. (People v. Mendoza, G.R. No. 146693-94,
proven by the prosecution sufficiently established July 31, 2003)
that appellant committed the offense charged.
(People v. Papillero, GR NO. 229087, June 17, 2020) The defense of denial is viewed with disfavor for
being inherently weak. To be worthy of
Cumulative evidence and corroborative consideration at all, denials should be
evidence substantiated by clear and convincing evidence.
(Riano, 2016)
Cumulative evidence refers to evidence of the
same kind and character as that already given and COMPETENT AND CREDIBLE EVIDENCE
that tends to prove the same proposition. (Wyne v.
Newman, 75 Va., 811, 817) Competent Evidence

Corroborative evidence is one that is One that is not excluded by law in a particular case.
supplementary to that already given tending to Competence, in relation to evidence in general,
strengthen or confirm it. It is additional evidence of refers to eligibility of an evidence to be received as
a different character to the same point. (Edwards v. such. The test of competence is the Constitution,
Edwards, Tenn. App., 501 S.W. 2d 283. 289) the laws or the rules.

An extrajudicial confession made by an accused Credibility
shall not be sufficient ground for conviction, unless
corroborated by evidence of corpus delicti. (Sec 3, The worthiness of belief, that quality which
Rule 133) renders a witness worthy of belief. (Black’s Law
Dictionary, 5th Ed., p.330)
NOTE: Corroborative testimony is not always
required. Witnesses are to be weighed, not NOTE: Admissible evidence is not necessarily
numbered. credible evidence. Admissibility does not
guarantee credibility. (Riano, 2016)
POSITIVE AND NEGATIVE EVIDENCE
Findings and conclusions of the trial court on the
Positive Evidence credibility of witnesses are entitled to great respect
because they have the advantage of observing the
Exists when the witness affirms in the stand that a demeanor of witnesses as they testify. (Riano,
certain state of facts does exist or that a certain 2016)
event happened.
When affirmed by the appellate court, it is
Negative Evidence accorded full weight and credit as well as great
respect, if not conclusive effect, except when facts
Exists when the witness states that an event did and circumstances of weight and influence were
not occur or that the state of facts alleged to exist overlooked or the significance of which was
does not actually exist. (Riano, 2016) misappreciated or misinterpreted.

Greater probative value is given to evidence that is
positive in nature than that which is accorded to BURDEN OF PROOF AND BURDEN OF EVIDENCE
evidence that is negative in character. (Republic v.
Bautista, G.R. No. 169801, September 11, 2007)
BURDEN OF PROOF BURDEN OF EVIDENCE
NOTE: When a witness declares of his personal It is the duty of a party It is the duty of a party
knowledge that a fact did not take place that is to present evidence on to present evidence
actually positive testimony since it is an the facts necessary to sufficient to establish or
affirmation of the truth of a negative fact. establish his or her rebut a fact in issue to
(Regalado, 2008) claim or defense by the establish prima facie
amount of evidence case. (Sec. 1, Rule 131,
Denial as negative evidence required by law. (Sec. 1, 2019 Amendments to the
Rule 131, 2019 Revised Rules on
Denial is considered by the Court to be a very weak Amendments to the Evidence)
form of defense and can never overcome an Revised Rules on
affirmative or positive testimony particularly when Evidence) Burden of evidence is
the latter comes from the mouth of a credible

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 REMEDIAL LAW
Burden of proof or that logical necessity A situation where the evidence of the parties is
“onus probandi” which rests upon a evenly balanced, or there is doubt on which side
traditionally refers to party at any particular the evidence preponderates (or weighs more
the obligation of a party time during the trial to heavily). (Rivera v. Court of Appeals, G.R. No.
to the litigation to create a prima facie case 115625, January 23, 1998)
persuade the court that in his favor or to
he is entitled to relief. overthrow one created Itis based on the principle that no one shall be
against him. deprived of his life, liberty or property without due
process of law. (Sec. 1, Art III, 1987 Constitution)

Duty of a party to Duty of the party to go In criminal cases, when the scale of justice is in
present evidence to forward with the equipoise, the scale of justice shall be towards the
establish his claim or evidence to overthrow accused. It leads to acquittal.
evidence by the amount the prima facie evidence
of evidence required by against him. (Bautista v. In civil cases, when the evidence of the parties is in
law, which is Sarmiento, G.R. No. L- equipoise, the party who has the burden of proof
preponderance of 45137, September, 23, loses.
evidence in civil cases. 1985)
(Supreme Transliner, Q: In a collection case, who has the burden of proof?
Inc. v. CA, G.R. No.
125356, November 21, A: The party who alleges a fact has the burden of
2001) proving it. In the course of trial in a civil case, once
Never shifts. (Sec. 1, May shift from one plaintiff makes out a prima facie case in his favor,
Rule 131, 2019 party to the other in the the duty or the burden of evidence shifts to
Amendments to the course of the defendant to controvert plaintiff’s prima facie case,
Revised Rules on proceedings, depending otherwise, a verdict must be returned in favor of
Evidence) on the exigencies of the plaintiff. Hence, the plaintiff must establish the
case. (Sec. 1, Rule 131, failure to pay on the part of the defendant, the
It remains throughout 2019 Amendments to the latter, on the other hand, has to prove their defense
the entire case exactly Revised Rules on that the obligation was extinguished.
where the pleadings Evidence)
originally placed it or In this case, BPI, as plaintiff, had to prove that
with the party upon spouses De Leon failed to pay their obligations
whim it is imposed. under the promissory note. The spouses, on the
(Republic v. Mupas, G.R. other hand, had to prove their defense that the
No. 181892, September obligation was extinguished by the loss of the
8, 2015)
mortgaged vehicle, which was insured. The mere
Generally determined Generally determined loss of the mortgaged vehicle does not
by the pleadings filed by by the developments of automatically relieve the spouses De Leon of their
the party. the trial, or by the obligation. As provided in the Promissory Note
provisions of with Chattel Mortgage, the mortgagor must notify
substantive law or and submit proof of loss to the mortgagee. (De Leon
procedural rules which v. BPI, G.R. No. 184565, November 20, 2013)
may relieve the party
from presenting
evidence of the facts PRESUMPTIONS
alleged.

Test for determining where the burden of proof Presumptions are inferences of the existence or
lies non-existence of a fact which courts are permitted
to draw from the proof of other facts. (In the matter
Ask which party to an action or suit will fail if he of the Intestate Estates of Delgado and Rustia, G.R.
offers no evidence competent to show the facts No. 175733, January 27, 2006)
averred as the basis for the relief he seeks to
obtain. NOTE: A presumption shifts the burden of going
forward with the evidence. It imposes on the party
Equipoise rule or equiponderance doctrine against whom it is directed the burden of going
forward with evidence to meet or rebut the

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 Evidence
presumption. (Bautista, 2004, citing Mueller and 1. Conclusive presumptions (presumptions
Kirkpatrick, §3.4.) juris et de jure); and
2. Disputable presumptions (presumptions
In a sense, a presumption is an inference which is juris tantum). (Rule 131; Regalado, 2008)
mandatory unless rebutted.
CONCLUSIVE PRESUMPTION
Presumption vs. Inference
A presumption which is irrebuttable and any
PRESUMPTION INFERENCE evidence tending to rebut the presumption is not
It is mandated by law It is a factual conclusion admissible. This presumption is in reality a rule of
and establishes a legal that can rationally be substantive law. (Riano, 2016)
relation between or drawn from other facts.
among the facts. (Riano, 2016) Classes of conclusive presumptions

It is a deduction It is a permissive 1. Estoppel in pais (Equitable Estoppel) –
directed by law. deduction. (Francisco, Whenever a party has, by his or her own
1996) declaration, act or omission, intentionally
and deliberately led another to believe a
Effect of presumption particular thing to be true, and to act upon
such belief, he cannot, in any litigation
A party in whose favor the legal presumption exists arising out of such declaration, act or
may rely on and invoke such legal presumption to omission, be permitted to falsify it (Sec.
establish a fact in issue. One need not introduce 2[a], Rule 131, 2019 Amendments to the
evidence to prove the fact for a presumption is Revised Rules on Evidence);
prima facie proof of the fact presumed. (Diesel
Construction, Inc v. UPSI Property Holdings, Inc., G.R. 2. Estoppel by deed – A party to a property
No. 154937, March 24, 2008) deed is precluded from asserting, as
against another party to the deed, any
Presumption of law vs. Presumption of fact right or title in derogation of the deed, or
from denying the truth of any material fact
PRESUMPTION OF LAW PRESUMPTION OF asserted in the deed
(PRAESUMPTIONES FACT
JURIS) (PRAESUMPTIONES E.g. The tenant is not permitted to deny
HOMINIS) the title of his or her landlord at the time
It is a deduction which It is a deduction which of the commencement of the relation of
the law expressly directs reason draws from the landlord and tenant between them (Sec.
to be made from facts proved without 2[b], Rule 131, 2019 Amendments to the
particular facts. an express direction Revised Rules on Evidence).
from law to that effect.
A certain inference must Discretion is vested in NOTE: Estoppel may attach even though the
be made whenever the the tribunal as to landlord does not have title at the commencement
facts appear which drawing the inference. of the relations. It may inure in favor of the
furnish the basis of the successor. (Golden Horizon Realty Corporation vs. St
inference. Chuan, G.R. No. 145416, September 21, 2001, citing
Reduced to fixed rules Derived wholly and Geminiano vs. CA, July 24, 1996)
and forms a part of the directly from the
system of jurisprudence circumstances of the The rule on estoppel against tenants is subject to a
particular case by qualification. It does not apply if:
means of the common
experience of mankind 1. The landlord’s title has expired;
Need not be pleaded or Has to be pleaded and 2. It has been conveyed to another; or
proved if the facts on proved 3. It has been defeated by a title paramount,
which they are based are subsequent to the commencement of
duly averred and lessor-lessee relationship.
established
In other words, if there was a change in the nature
Kinds of presumptions of law of the title of the landlord during the subsistence of
the lease, then the presumption does not apply.
Otherwise, if the nature of the landlord’s title

525
 REMEDIAL LAW
remains as it was during the commencement of the read or if the contract is in a language not
relation of landlord and tenant, then estoppel lies understood by him, and mistake or fraud is
against the tenant. (Santos v. NSO, G.R. No. 171129, alleged, the person enforcing the contract
April 6, 2011) must show that the terms thereof have
been fully explained to the former. (Art.
Distinguish estoppel from waiver 1332, NCC)

A waiver is a voluntary and intentional 5. Evidence willfully suppressed would be
abandonment or relinquishment of a known right. adverse if produced;
It must be supported by an agreement founded
upon a valid consideration. Requisites:

An equitable estoppel may arise however, in the a. The evidence is material;
absence of any intention on the part of the person b. The party had the reasonable
estopped to relinquish or change any existing right, opportunity to produce it; and
and it need not be supported by any consideration, c. The evidence is available only to
agreement, or legal obligation. (Francisco, 1996) the said party.

DISPUTABLE PRESUMPTION The presumption will NOT be applicable
when:
This refers to a presumption which is satisfactory if
uncontradicted, but may be contradicted and a. Suppression of evidence is not
overcome by other evidence. (Sec. 3, Rule 131) willful;
b. Evidence suppressed or withheld
Disputable presumptions under Section 3, Rule is merely corroborative or
131 cumulative;
c. Evidence is at the disposal of both
1. A person is innocent of a crime or wrong; parties; and
d. Suppression is by virtue of an
NOTE: It applies to both civil and criminal exercise of privilege.
cases. Presumption of innocence of the
accused accompanies him until the NOTE: Failure of the prosecution to
rendition of judgment and disappears after present a certain witness and to proffer a
conviction, such that upon appeal, the plausible explanation does not amount to
appellate court will then presume the guilt willful suppression of evidence since the
of the accused. The prosecution’s case prosecutor has the discretion/prerogative
must rise and fall on its own merits and to determine the witnesses he is going to
cannot draw strength from the weakness present. (People v. Jalbuena, G.R. No.
of the defense. (People v. Mingming, G.R. 171163, July 4, 2007)
No. 174195, Dec. 10, 2008)
6. Money paid by one to another was due to
2. Unlawful act is done with an unlawful the latter;
intent; 7. Thing delivered by one to another
3. Person intends the ordinary consequences belonged to the latter;
of his or her voluntary act; 8. Obligation delivered up to the debtor has
4. Person takes ordinary care of his been paid;
concerns; 9. Prior rents or installments had been paid
when a receipt for the later ones is
GR: All people are sane and normal and produced;
moved by substantially the same motives. 10. A person found in possession of a thing
When of age and sane, they must take care taken in the doing of a recent wrongful act
of themselves. Courts operate not because is the taker and doer of the whole act;
one person has been defeated or overcome otherwise, that things which a person
by another but because that person has possesses or exercises acts of ownership
been defeated or overcome illegally. There over, are owned by him or her;
must be a violation of the law. (Vales v.
Villa, G.R. No. 10028, December 16, 1916) NOTE: In order to raise the presumption,
the following must be proved:
XPN: When one of the parties is unable to

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 Evidence
a. That a crime was committed; 14. A court or judge acting as such, whether in
b. That it was committed recently; the Philippines or elsewhere, was acting in
c. That the stolen property was found in the lawful exercise of jurisdiction;
the possession of the defendant; and
d. That the defendant is unable to NOTE: Lawful exercise of jurisdiction is
explain his possession satisfactorily. presumed unless the record itself shows
(U.S. v. Espia 16, G.R. No. L-5813, that jurisdiction has not been acquired or
August 27, 1910) the record itself shows the absence of
jurisdiction.
11. A person in possession of an order on
himself or herself for the payment of the 15. All the matters within an issue raised in a
money, or the delivery of anything, has case were laid before the court and passed
paid the money or delivered the thing upon by it;
accordingly; 16. All matters within an issue raised in a
12. Person acting in public office was regularly dispute submitted for arbitration were laid
appointed or elected to it; before arbitrators and passed upon by
them;
Ratio: It would cause great inconvenience 17. Private transactions have been fair and
if in the first instance strict proof were regular;
required of appointment or election to 18. Ordinary course of business has been
office in all cases where it might be followed;
collaterally in issue. 19. There was a sufficient consideration for a
contract;
However, the presumption of a regular 20. Negotiable instrument was given or
appointment does not apply to a public indorsed for a sufficient consideration;
officer seeking to recover salary attached 21. An indorsement of negotiable instrument
to the office, or the benefits of a pension was made before the instrument was
system. overdue and at the place where the
instrument is dated;
13. Official duty has been regularly performed;
NOTE: Except where an endorsement
NOTE: All things are presumed to have bears date after the maturity of the
been done regularly and with due instrument, every negotiation is deemed
formality until the contrary is proved. This prima facie to have been effected before
presumption extends to persons who have the instrument was overdue. (Sec. 45, Act.
been appointed pursuant to a local or No. 2031)
special statute to act in quasi-public or
quasi-official capacities and to 22. A writing is truly dated;
professionals like lawyers and surgeons. 23. Letter duly directed and mailed was
received in the regular course of the mail;
GR: Presumption applies to both civil as
well as criminal cases. NOTE: For this presumption to arise, it
must be proved that the letter was
XPNs: properly addressed with postage pre-paid
and that it was actually mailed.
a. Petition for writ of amparo –
presumption may not be invoked by Bare denial of receipt of a mail cannot
the respondent public officer or prevail over the ccertification of the
employee (Rule on the Writ of Amparo, postmaster, whose official duty is to send
A.M. No. 17-9-12-SC); notices of registered mail. (Duarte v.
b. The presumption does not apply Duran, G.R. No. 173038)
during in-custody investigation
(People v. Camat, G.R. No. 112262, April 24. Presumption of Death;
2, 1996); or
c. When the official conduct in question a. Absence of 7 years – It being
is irregular on its face. (People v. unknown whether, the absentee still
Obmiranis, GR. No. 181492, December lives, he or she shall be presumed
16, 2008) dead for all purposes, except for those
of succession;

527
 REMEDIAL LAW
b. Absence of 10 years – The absentee and who live exclusively with each other
shall be considered dead for the as husband and wife without the benefit of
purpose of opening his succession marriage or under void marriage, has been
only after an absence of 10 years; and obtained by their joint efforts, work or
if he or she disappeared after the age industry;
of 75, absence of only 5 years is 30. In cases of cohabitation by a man and a
sufficient; woman who are not capacitated to marry
c. The following shall be considered each other and who have acquired
dead for all purposes including the properly through their actual joint
division of estate among the heirs: contribution of money, property or
industry, such contributions and their
i. Person on board a vessel lost corresponding shares including joint
during a sea voyage, or an deposits of money and evidences of credit
aircraft which is missing, who are equal;
has not been heard of for 4 years 31. If the marriage is terminated and the
since the loss of the vessel or mother contracted another marriage
aircraft; within 300 days after such termination of
ii. Member of the armed forces who the former marriage, these rules shall
has taken part in armed govern in the absence of proof to the
hostilities, and has been missing contrary;
for 4 years;
iii. Person who has been in danger a. A child born before 180 days after
of death under other the solemnization of the subsequent
circumstances and whose marriage is considered to have been
existence has not been known for conceived during the former
4 years; marriage, provided it be born within
iv. If a married person has been 300 days after the termination of
absent for 4 consecutive years, former marriage;
the spouse present may contract b. A child born after 180 days
a subsequent marriage if he or following the celebration of the
she has well-founded belief that subsequent marriage is considered
the absent spouse is already to have been conceived during such
dead; 2 years in case of marriage, even though it be born
disappearance where there is within the 300 days after the
danger of death under the termination of the former marriage.
circumstances hereinabove
provided. Before marrying again, 32. A thing once proved to exist continues as
the spouse present must institute long as is usual with things of that nature;
a summary proceeding as 33. The law has been obeyed;
provided in the Family Code and 34. A printed or published book, purporting to
in the rules for declaration of be printed or published by public
presumptive death of the authority, was so printed or published;
absentee, without prejudice to 35. A printed or published book, purporting to
the effect of re-appearance of the contain reports of cases adjudged in
absent spouse. tribunals of the country where the book is
published, contains correct reports of such
25. Acquiescence resulted from a belief that cases;
the thing acquiesced in was conformable 36. A trustee or other person whose duty it
to the law or fact; was to convey real property to a particular
26. Things have happened according to the person has actually conveyed it to him
ordinary course of nature and ordinary when such presumption is necessary to
habits of life; perfect the title of such person or his
27. Persons acting as co-partners have successor in interest;
entered into a contract of co-partnership; 37. Except for purposes of succession, when 2
28. A man and woman deporting themselves persons perish in the same calamity, and it
as husband and wife have entered into a is not shown who died first, and there are
lawful contract of marriage; no particular circumstances from which it
29. Property acquired by a man and a woman can be inferred, the survivorship is
who are capacitated to marry each other determined from the probabilities

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 Evidence
resulting from the strength and age of the
sexes, according to the following rules: CONSTRUCTION
OF THE RULES OF EVIDENCE
a. If both were under the age of 15
years, the older is deemed to have
been survived; The rules of evidence must be liberally construed.
b. If both were above the age of sixty, (Sec. 6, Rule 1)
the younger is deemed to have
survived; The Rules of Procedure are mere tools intended to
c. If one is under 15 and the other above facilitate rather than to frustrate the attainment of
60, the former is deemed to have justice. A strict and rigid application of the rules
survived; must always be avoided if it would subvert their
d. If both be over 15 and under 60, and primary objective of enhancing substantial justice.
the sex be different, the male is (Alcantara v. PCIB, G.R. No. 151349, October 20,
deemed to have survived; if the sex be 2010)
the same, the older;
e. If one be under 15 or over 60, and the However, to justify relaxation of the rules, a
other between those ages, the latter is satisfactory explanation and a subsequent
deemed to have survived. fulfillment of the requirements have always been
required. (Barcenas v. Tomas, G.R. No. 150321,
38. If there is a doubt, as between two or more March 31, 2005)
persons who are called to succeed each
other, as to which of them died first,
whoever alleges the death of one prior to QUANTUM OF EVIDENCE
the other, shall prove the same; in the (WEIGHT AND SUFFICIENCY OF EVIDENCE)
absence of proof, they shall be considered
to have died at the same time. (Sec. 3, Rule
131) Weight of evidence

Presumptions in civil actions and proceedings It is the probative value given by the court to
particular evidence admitted to prove a fact in
In all civil actions and proceedings not otherwise issue.
provided for by law or these Rules, a presumption
imposes on the party against whom it is directed Degree of evidence required to disprove the
the burden of going forward with evidence to rebut prima facie case established by the party
or meet the presumption. having the burden of proof

Inconsistent Presumptions A prima facie case need not be countered by a
preponderance of evidence nor by evidence of
If the presumptions are inconsistent, the greater weight. Defendant's evidence which
presumption that is founded upon weightier equalizes the weight of plaintiff's evidence or puts
considerations of policy shall apply. If the case in equipoise is sufficient. As a result,
considerations of policy are of equal weight, plaintiff will have to go forward with the proof.
neither presumption applies. (Sec. 5, Rule 131, 2019 Should it happen that at the trial the weight of
Amendments to the Revised Rules on Evidence) evidence is equally balanced or at equilibrium and
presumptions operate against plaintiff who has
Presumption against an accused in criminal burden of proof, he or she cannot prevail. (People v.
case Santiago, G.R. Nos. 137542-43, January 20, 2004)

If a presumed fact that establishes guilt, is an Guidelines in the assessment of credibility of a
element of the offense charged, or negates a witness
defense, the existence of the basic fact must be
proved beyond reasonable doubt and the 1. A witness who testified in clear, positive
presumed fact follows from the basic fact follows and convincing manner and remained
from the basic fact beyond reasonable doubt. (Sec. consistent in cross-examination is a
6, Rule 131, 2019 Amendments to the Revised Rules credible witness (People v. Comanda, G.R.
on Evidence) No. 175880, July 6, 2007); and

529
 REMEDIAL LAW
2. Findings of fact and assessment of
credibility of a witness are matters best It may suffice to convict his co-accused if it is given
left to the trial court that had the front-line in a straightforward manner and is full of details
opportunity to personally evaluate the which by their nature could not have been the
demeanor, conduct, and behavior of the result of deliberate afterthought, otherwise, it
witness while testifying. (Sps. Paragas v. needs corroboration, the presence or lack of which
Heirs of Balacano, G.R. No. 168220, August may ultimately decide the case of the prosecution
31, 2005) and the fate of the accused. (People v. Sunga, G.R.
No. 126029, March 27, 2003)
Hierarchy of quantum of evidence
Sufficiency of evidence

In determining the sufficiency of evidence, what
matters is not the number of witnesses but the
credibility and the nature and quality of their
testimonies. The testimony of a lone witness is
sufficient to support a conviction if found positive
and credible. (Ceniza-Manantan v. People, G.R. No.
156248, August 28, 2007)

Partial credibility of a witness

The testimony of a witness may be believed in part
and disbelieved in another part, depending on the
probabilities and improbabilities of the case.
(People v. Tan, G.R. No. 176526, August 8, 2007)

NOTE: If the testimony of the witness on a material
issue is willfully false and given with an intention
to deceive, the court may disregard all the witness’
testimony under the Falsus in uno, falsus in omnibus
rule. (Riano, 2016) This is not a mandatory rule of
evidence but is applied by the courts in its
discretion. The court may accept and reject
portions of the witness’ testimony depending on

the inherent credibility thereof. (Regalado, 2008)
NOTE: Evidence, to be worthy of credit, must not
only proceed from a credible source but must also Falsus in uno, falsus in omnibus (in relation to
be credible in itself. It must be natural, reasonable credibility of witness)
and probable as to make it easy to believe. (People
v. Peruelo, G.R. No. 50631, June 29, 1981) Literally, falsus in uno, falsus in omnibus means
“false in one thing, false in everything.”
Trial court’s findings as to the credibility of
witnesses, not disturbed on appeal If the testimony of a witness on a material issue is
willfully false and given with an intention to
The trial court’s findings of fact will not be deceive, the jury may disregard all the witness’
disturbed on appeal, unless there is a clear showing testimonies. (Hargrave v. Stockloss, 127 N.J.L. 262,
that it plainly overlooked matters of substance 21 A.2d 820, 823)
which, if considered, might affect the results of the
review. The credibility of witnesses is best The principle of falsus in uno, falsus in omnibus is
determined by the trial judge, who has the direct not strictly applied in this jurisdiction. It deals only
opportunity to observe and evaluate their with the weight of the evidence and is not a
demeanor on the witness stand. (People v. positive rule of law. Modern trend in jurisprudence
Pacuancuan, G.R. No. 144589, June 16, 2003) favors more flexibility when the testimony of a
witness may be partly believed and partly
Uncorroborated testimony of an accused who disbelieved depending on the corroborative
turned into a State witness sufficient to convict evidence presented at the trial. (People v. Negrosa,
his co-accused G.R. Nos. 142856-57, August 25, 2003)

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 Evidence
When the maxim falsus in uno, falsus in A: YES. The identity of the perpetrator of a crime
omnibus applies and a finding of guilt may rest solely on the
strength of circumstantial evidence. The
1. That the false testimony is as to one or commission of a crime, the identity of the
more material points; and perpetrator, and the finding of guilt may all be
2. That there should be conscious and established by circumstantial evidence. The
deliberate intention to falsify a material circumstances must be considered as a whole and
point. (People v. Pacapac, G.R. No. 90623, should create an unbroken chain leading to the
September 7, 1995) conclusion that the accused authored the crime.
The proven circumstances must be "consistent
Extrajudicial confession is NOT sufficient with each other, consistent with the hypothesis
ground for conviction that the accused is guilty, and at the same time
inconsistent with the hypothesis that he is
An extrajudicial confession made by an accused, innocent, and with every other rational hypothesis
shall not be sufficient ground for conviction, unless except that of guilt." In this case, no one saw
corroborated by evidence of corpus delicti. (Sec. 3, petitioner actually set fire to the nipa hut.
Rule 133) Nevertheless, the prosecution has established
multiple circumstances, which, after being
When circumstantial evidence is sufficient for considered in their entirety, support the conclusion
conviction (2017 BAR) that petitioner is guilty beyond reasonable doubt of
simple arson. (Marlon Bacerra vs. People of the
1. There are more than one circumstances; Philippines, G.R. No. 204544, July 3, 2017, as penned
2. The facts from which the inferences are by J. Leonen)
derived are proven; and
3. The combination of all the circumstances Weight to be given opinion of expert witness,
is such as to produce a conviction beyond how determined
reasonable doubt. (Sec. 4, Rule 133)
The court has wide latitude of discretion in
NOTE: Inferences cannot be based on other determining the weight to be given to such opinion,
inferences. (Sec. 4, Rule 133, 2019 Amendments to and for that purpose may consider the following:
the Revised Rules on Evidence)
a. Whether the opinion is based on sufficient
The corollary rule is that the circumstances proven facts or data;
must constitute an unbroken chain which leads to b. Whether it is the product of reliable
one fair and reasonable conclusion pointing to the principles and methods;
accused, to the exclusion of all others, as the guilty c. Whether the witness has applied the
person. (Trinidad v. People, G.R. No. 192241, June principles and methods to the reliability of
13, 2012) the facts of the case; and
d. Such other factors as the court may deem
Q: A criminal complaint for simple arson was helpful to make such determination. (Sec.
filed against Bacerra and he was convicted. 5, Rule 133, 2019 Amendments to the
Bacerra then appealed. He argued that none of Revised Rules on Evidence)
the prosecution’s witnesses had positively
identified him as the person who burned the Alibi
nipa hut. CA affirmed the Decision of the RTC in
toto. Bacerra moved for reconsideration but it It is a defense where an accused claims that he was
was denied. Thus, Bacerra filed a Petition for somewhere else at the time of the commission of
Review on Certiorari arguing that the CA erred the offense. It is one of the weakest defenses an
in upholding his conviction based on accused may avail because of the facility with
circumstantial evidence, which, being merely which it can be fabricated, just like a mere denial.
based on conjecture, falls short of proving his (People v. Esperanza, G.R. Nos. 139217-24, June 27,
guilt beyond reasonable doubt. No direct 2003) When this is the defense of the accused, it
evidence was presented to prove that he must be established by positive, clear and
actually set fire to Alfredo’s nipa hut. Moreover, satisfactory evidence.
there were two (2) incidents that occurred,
which should be taken and analyzed separately. NOTE: A categorical and positive identification of
Is Bacerra guilty of simple arson? an accused, without any showing of ill-motive on
the part of the eyewitness testifying on the matter,

531
 REMEDIAL LAW
prevails over an alibi. (People v. Gingos and a condition sine qua non to prove the
Margote, G.R. No. 176632, September 11, 2007) identity of an offender. If, on the basis of
the evidence on hand, police officers are
For the defense of alibi to prosper, the accused certain of the identity of the offender, they
must show that: need not require any police line-up
anymore. (Tapdasan, Jr. v. People, G.R. No.
1. He or she was somewhere else; and 141344, November 21, 2002)
2. It was physically impossible for him to be
at the scene of the crime at the time of its Admissibility of out-of-court identification
commission. (People v. Gerones, et al., G.R.
No. L-6595, October 29, 1954) It is admissible and reliable when it satisfies the
“totality of circumstances” test. Under the “totality
Alibi may serve as basis for acquittal if it can really of circumstances” test, the following factors are
be shown by clear and convincing evidence that it considered:
was indeed physically impossible for the accused
to be at the scene of the crime at the time of 1. Witness’ opportunity to view the criminal
commission. (People v. Cacayan, G.R. No. 180499, at the time of the crime;
July 9, 2008) 2. Witness’ degree of attention at that time;
3. Accuracy of any prior description given by
For the defense of alibi to prosper, the the witness;
requirements of time and place must be strictly 4. Level of certainty demonstrated by the
met. (Ibanez v. People, G.R. No. 190798, January 27. witness at the identification;
2016) 5. Length of time between the crime and the
identification; and
Out-of-court identification 6. Suggestiveness of the identification
procedure. (People v. Claudio Teehankee,
It is a means of identifying a suspect of a crime and Jr., G.R. Nos. 111206-08, October 6, 1995)
is done thru:
Frame-up
1. Show-ups: where the suspect alone is
brought face-to-face with the witness for Allegations of frame-up by police officers are
identification; common and standard defenses in most dangerous
drugs cases. For this claim to prosper, the defense
NOTE: Eyewitness identification is often must adduce clear and convincing evidence to
decisive of the conviction or acquittal of an overcome presumption that government officials
accused. Identification of an accused have performed their duties in a regular and
through mug shots is one of the proper manner. Thus, in the absence of proof of
established procedures in pinning down motive to falsely impute such a serious crime
criminals. However, to avoid charges of against the accused, the presumption of regularity
impermissible suggestion, there should be in the performance of official duty shall prevail.
nothing in the photograph that would (People v. Almodiel, G.R. No. 200951, September 5,
focus attention on a single person. (People 2012).
v. Villena, G.R. No. 140066, October 14,
2002) Corpus delicti

2. Mug shots: where photographs are shown It is the actual commission by someone of the
to the witness to identify the suspect; or particular crime charged. It refers to the fact of the
3. Line-ups: where a witness identifies the commission of the crime, not to the physical body
suspect from a group of persons lined up of the deceased or to the ashes of a burned
for the purpose. (People v. Claudio building. The corpus delicti may be proven by the
Teehankee, Jr., G.R. Nos. 111206-08, October credible testimony of a sole witness, not
6, 1995) necessarily by physical evidence. (Rimorin v.
People, G.R. No. 146481, April 30, 2003)
NOTE: A police line-up is merely a part of
the investigation process by police Elements of corpus delicti
investigators to ascertain the identity of
offenders or confirm their identification by 1. Proof of the occurrence of a certain event;
a witness to the crime. Police officers are and
not obliged to assemble a police line-up as

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 Evidence
2. A person’s criminal responsibility for the defendant, that the accident arose from or was
act. (People v. Corpuz, G.R. No. 148919, caused by the defendant's want of care. (Ramos v.
December 17, 2002) CA, G.R. No. 124354, December 29, 1999)

NOTE: The identity of the accused is not a Application of the doctrine does not dispense
necessary element of the corpus delicti. with the requirement of proof of negligence

Plea of guilty in open court sufficient without It is considered merely as evidentiary or in the
proof of corpus delicti nature of procedural rule. It is simply in the
process of such proof, permitting the plaintiff to
A plea of guilty at the arraignment in open court, present enough of the attending circumstances to
which is a confession of guilt by the defendant, is invoke the doctrine, creating an inference or
sufficient to support a conviction without necessity presumption of negligence and thereby place on
of proof aliunde of corpus delicti. In contrast, an the defendant the burden of going forward with the
extrajudicial confession made by defendant does proof to the contrary. (Ramos, et al. v. CA, G.R. No.
not warrant a conviction unless corroborated by 124354, December 29, 1999)
independent evidence of corpus delicti. (Francisco,
1996) PROOF BEYOND REASONABLE DOUBT

Q: Jose Mariposa was charged with violation of Proof beyond reasonable doubt does not mean
Sec. 4, Art. 2 of the Dangerous Drugs Act of such a degree of proof as, excluding possibility of
1972. He was apprehended thru a buy-bust error, produces absolute certainty. Moral certainty
operation. During trial the prosecution failed to only is required, or that degree of proof which
produce the marijuana sticks that Mariposa produces conviction in an unprejudiced mind. (Sec.
sold during the entrapment operation. Is there 2, Rule 133, 2019 Amendments to the Revised Rules
a need to produce the marijuana sticks to on Evidence)
convict the accused?
Moral certainty
A: YES. The elements necessary for a charge of
illegal sale of marijuana are: (1) the identity of the That degree of certainty which will justify the trial
buyer and the seller, the object, and consideration; judge in grounding on it his verdict. It is a certainty
and (2) the delivery of the thing sold and the that convinces and directs the understanding and
payment therefore. It is indispensable that the satisfies the reason and judgment of those who are
identity of the marijuana which constitutes the bound to act conscientiously upon it.
corpus delicti must be established before the court.
During the trial, the sticks of marijuana were never Identity of the accused must be proved beyond
presented as evidence to prove that appellant reasonable doubt
indeed sold the same during the entrapment
operation. It is indispensable in every prosecution When the identity of the accused is not established
for illegal sale of marijuana, a prohibited drug, is beyond reasonable doubt, acquittal necessarily
the submission of proof that the sale for the illicit follows. Conviction for a crime rests on the
drug took place between the poseur-buyer and the strength of the prosecution’s evidence, never on
seller thereof, and the presentation further of the the weakness of that of the defense. (People v. Jalon,
marijuana, the corpus delicti, as evidence in court. G.R. No. 93729, November 13, 1992)
(People v. Rigodon, G.R. No. 111888, November 8,
1994) NOTE: In every criminal prosecution, the
prosecution must prove two things:
Res ipsa loquitur
1. The commission of the crime; and
It literally means the “thing speaks for itself”. This 2. The identification of the accused as the
doctrine provides that the fact of the occurrence of perpetrator of the crime. What is needed is
an injury, taken with the surrounding positive identification made with moral
circumstances. Where the thing which caused the certainty as to the person of the offender.
injury complained of is shown to be under the (People v. Maguing, G.R. No. 144090, June
management of the defendant or his servants and 26, 2003)
the accident is such as in ordinary course of things
does not happen if those who have its management Q: Prosecution witnesses positively identified
or control use proper care, it affords reasonable Johnny as the assailant of Chris. Hence, he was
evidence, in the absence of participation by the convicted of Homicide. However, he contends

533
 REMEDIAL LAW
that the State failed to present sufficient of knowing the facts to which they are
evidence against him in court. He sufficed that testifying, the nature of the facts to which
should the knife he held during a fight against they testify, the probability or
his longtime enemies, brothers Chris and improbability of their testimony;
Michael, had been presented, it would show the 3. The witnesses’ interest or want of interest,
difference that Chris’ knife, although smaller and their personal credibility so far as the
than Johnny’s, had more blood stains but which same may legitimately appear upon the
size fits best on the mortal wound inflicted on trial; and
himself. It would thereby be ascertained that 4. The number of witnesses, though the
Chris accidentally stabbed himself upon losing preponderance is not necessarily with the
his balance during such aggressive fight. Is greater number. (Sec. 1, Rule 133)
Johnny’s contention meritorious?
NOTE: To persuade by the preponderance of
A: NO. The non-identification and non- evidence is not to take the evidence quantitatively
presentation of the weapon actually used in the but qualitatively. (Riano, 2016)
killing did not diminish the merit of the conviction
on the ground that other competent evidence and Related jurisprudence
the testimonies of witnesses had directly and
positively identified and incriminated Johnny as In civil cases, only a preponderance of evidence or
the assailant of Chris. The presentation of the "greater weight of the evidence" is required. While
weapon is not a prerequisite for conviction. the charge invoices are not actionable documents
Positive identification of the accused is sufficient per se, they provide details on the alleged
for the judgment of conviction despite the non- transactions. These documents need not be
presentation of the weapon used in the attached to or stated in the complaint as these are
commission of the offense. (Medina v. People, G.R. evidentiary in nature. In fact, the cause of action is
No. 161308, January 15, 2014) not based on these documents but on the contract
of sale between the parties. Here, the delivery of
PREPONDERANCE OF EVIDENCE the supplies and materials was duly proved by the
charge invoices and purchase orders indicating
Preponderance of evidence means that the that Asian Construction indeed ordered supplies
evidence adduced by one side is, as a whole, and materials from Highett and that these were
superior to or has greater weight than that of the delivered. (Asian Construction and Development
other. It means evidence which is more convincing Corporation v. Mendoza, G.R. No. 176949, June 27,
to the court as worthy of belief than that which is 2012)
offered in opposition thereto. (Ava v. De Guzman,
A.C. No. 7649, December 14, 2011) SUBSTANTIAL EVIDENCE

It is the weight, credit, and value of the aggregate Substantial evidence applies to cases filed before
evidence on either side and is usually considered to the administrative or quasi-judicial bodies and
be synonymous with the term “greater weight of which requires that in order to establish a fact, the
the evidence” or “greater weight of the credible evidence should constitute that amount of relevant
evidence.” It means probability of the truth, evidence which a reasonable mind might accept as
evidence which is more convincing to the court as adequate to justify a conclusion. (Sec. 6, Rule 133).
worthy of belief than that which is offered in Substantial evidence is more than mere scintilia.
opposition thereto. (Philippine Commercial
International Bank v. Balmaceda, G.R. No. 158143, The requirement is satisfied where there is
September 21, 2011) reasonable ground to believe that the petitioner is
guilty of the act or omission complained of, even if
NOTE: A judgment cannot be entered in the the evidence might not be overwhelming. (Office of
plaintiff’s favor if his or her evidence still does not the Deputy Ombudsman for Luzon v. Dionisio, G.R.
suffice to sustain his cause of action. No. 220700, July 10, 2017; CSC v. Andal, A.M. No. SB-
12-19-P, November 18, 2014)
Matters that the court may consider in
determining whether there is preponderance of NOTE: In a petition for a writ of amparo, the
evidence parties shall establish their claims by substantial
evidence. (Sec 17, The Rule on the Writ of Amparo)
1. All the facts and circumstances of the case;
2. The witnesses' manner of testifying, their Preponderance of Evidence vs. Substantial
intelligence, their means and opportunity Evidence (2003 BAR)

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 Evidence
PREPONDERANCE OF SUBSTANTIAL 9. When proving that the police officers did
EVIDENCE EVIDENCE not properly perform their duty or that
The evidence as a That amount of they were inspired by an improper motive
whole adduced by one relevant evidence (People v. Concepcion, G.R. No. 178876, June
side is superior to that which a reasonable 27, 2008); or
of the other. might mind accept as 10. When a person seeks confirmation of an
adequate to justify a imperfect or incomplete title to a piece of
conclusion land on the basis of possession by himself
Applicable in civil cases Applicable in and his predecessors-in-interest, he must
administrative cases or prove with clear and convincing evidence
quasi-judicial bodies compliance with the requirements of the
applicable law (Republic v. Imperial Credit
CLEAR AND CONVINCING EVIDENCE Corp., G.R. No. 173088, June 25, 2008; Riano,
2009); and
It is that degree of evidence that produces in the 11. In granting or denying bail in extradition
mind of the trier of fact a firm belief or conviction proceedings. (Government of Hongkong
as to allegations sought to be established. It is Special Administrative Region v. Olalia, G.R.
intermediate, being more than preponderance, but No. 153675, April 19, 2007)
not to the extent of such certainty as is required
beyond reasonable doubt as in criminal cases. NOTE: The list is NOT exclusive.
(Black’s Law Dictionary, 2004)

Instances when clear and convincing evidence JUDICIAL NOTICE AND JUDICIAL ADMISSIONS
is required

1. When proving forgery (Citibank, N.A. v. WHAT NEED NOT BE PROVED
Sabeniano, G.R. No. 156132, February 6,
2007); Facts that need not be proved
2. When proving ownership over a land in
annulment or reconveyance of title 1. Those of which the courts may take
(Manotok Realty, Inc. v. CLT Realty judicial notice (Rule 129);
Development Corp., G.R. No. 123346, 2. Those that are judicially admitted (Rule
December 14, 2007); 129);
3. When invoking self-defense, the onus is on 3. Those that are conclusively presumed
the accused-appellant to establish by clear (Rule 131);
and convincing evidence his justification 4. Those that are disputably presumed but
for the killing (People v. Tomolin, G.R. No. uncontradicted (Rule 131);
126650, July 28, 1999); 5. Immaterial allegations;
4. When proving the allegation of frame-up 6. Facts admitted or not denied provided
and extortion by police officers in most they have been sufficiently alleged (Sec. 1,
dangerous drug cases (People v. Boco, G.R. Rule 8);
No. 129676, June 23, 1999); 7. Res ipsa loquitur; and
5. When proving physical impossibility for 8. Admissions by adverse party (Rule 26)
the accused to be at the crime scene when
using alibi as a defense (People v. Cacayan, MATTERS OF JUDICIAL NOTICE
G.R. No. 180499, July 9, 2008);
6. When using denial as a defense like in Judicial notice
prosecution for violation of the Dangerous
Drugs Act (People v. Mustapa, G.R. No. It is the cognizance of certain facts which judges
141244, February 19, 2001); may properly take and act upon without proof
7. To overcome the presumption of due because they are supposed to be known to them. It
execution of notarized instruments (Viaje is based on considerations of expediency and
v. Pamintel, G.R. No. 147792, January 23, convenience. It displaces evidence, being
2006); equivalent to proof. (Regalado, 2008)
8. When proving bad faith to warrant an
award of moral damages (Resolution of the Function of judicial notice
SC in Cual v. Leonis Navigation, G.R. No.
167775, October 10, 2005);

535
 REMEDIAL LAW
It dispenses the presentation of evidence and Before judgment or on appeal, the court, motu
fulfills the purpose for which the evidence is proprio or upon motion, may take judicial notice of
designed to fulfill. Its function is to abbreviate any matter and shall hear the parties thereon if
litigation by admission of matters that needs no such matter is decisive of a material issue in the
evidence because judicial notice is a substitute for case. (Sec. 3, Rule 129, 2019 Revised Rules on
formal proof of a matter by evidence. (Riano, 2016) Evidence)

Kinds of judicial notice When judicial notice is discretionary (PDF)
(2005 BAR)
1. Mandatory – insofar as those matters
enumerated under Sec. 1, Rule 129; 1. Matters which are of public knowledge;
2. Discretionary – on matters which are
of public knowledge, or are capable of NOTE: Public knowledge are those matters
unquestionable demonstration, or coming to the knowledge of men generally
ought to be known to judges because of in the course of ordinary experiences of
their functions (Sec. 2, Rule 129, 2019 life, or they may be matters which are
Amendments to the Revised Rules on generally accepted by mankind as true and
Evidence) are capable of ready and unquestioned
demonstration.
MANDATORY
2. Capable of unquestionable demonstration;
When the matter is subject to a mandatory judicial or
notice, no motion or hearing is necessary for the
court may take judicial notice of a fact. NOTE: Matters which are capable of
unquestionable demonstration are facts,
When judicial notice is mandatory (EPOL-APOL- theories and conclusions which have come
MG) to be established and accepted by the
specialists in the areas of natural science,
1. Existence and territorial extent of states; natural phenomena, chronology,
2. Political history, forms of government and technology, geography, statistical facts and
symbols of nationality; other fields of professional and scientific
3. Law of nations; knowledge. (Francisco, 1996)
4. Admiralty and maritime courts of the
world and their seals; 3. Ought to be known to judges because of
5. Political constitution and history of the their judicial functions. (Sec. 2, Rule 129)
Philippines;
6. Official acts of legislative, executive and NOTE: Judicial notice is not judicial
judicial departments of the National knowledge. The mere personal knowledge
Government of the Philippines; of the judge is not the judicial knowledge
7. Laws of nature; of the court, and he is not authorized to
8. Measure of time; and make his individual knowledge of a fact,
9. Geographical divisions (Sec. 1, Rule 129, not generally or professionally known, the
2019 Amendments to the Revised Rules on basis of his action. Judicial cognizance is
Evidence) taken only of those matters which are
"commonly" known. (State Prosecutors v.
NOTE: The list here is EXCLUSIVE. Only the things Muro, A.M. No. RTJ-92-876, September 19,
listed here are the subject of mandatory judicial 1994)
notice.
NOTE: No hearing is required in the enumeration
DISCRETIONARY under Sec. 2, Rule 129.

When judicial notice of a fact may be taken Requisites for the application of the principle of
discretionary judicial notice
During the pre-trial and the trial, the court, motu
proprio or upon motion, shall hear the parties on 1. The matter must be one of common and
the propriety of taking judicial notice of any general knowledge;
matter. 2. It must be well and authoritatively settled
and not doubtful or uncertain; and

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 Evidence
3. It must be one which is not subject to a to take judicial notice of any matter and allow
reasonable dispute in that it is either: any matter and allow the parties to be heard
the parties to be heard thereon if such matter is
a. Generally known within the territorial thereon. (Sec. 3, Rule decisive of a material
jurisdiction of the trial court; or 129) issue in the case. (Sec. 3,
b. Capable of accurate and ready Rule 129)
determination by resorting to sources
whose accuracy cannot reasonably be NOTE: Hearing is necessary in the foregoing
questionable. (Expertravel & Tours, instances to afford the parties reasonable
Inc. v. CA, G.R. No. 152392, May 26, opportunity to present information relevant to the
2005) propriety of taking such judicial notice or the tenor
of the matter to be judicially noticed.
NOTE: The principal guide in determining what
facts may be assumed to be judicially known is that Instances when the Court takes judicial notice
of notoriety.
1. The existence and location within the
Test of notoriety territory over which they exercise
jurisdiction of great rivers and lakes, and
Whether the fact involved is so notoriously known their relation to provincial boundaries, of
as to make it proper to assume its existence navigability of streams, constituting
without proof. highway commerce and notorious facts
concerning the same. (Banatao v. Tuliao,
When judicial notice of a fact may be taken, G.R. No. 12264, September 23, 1918)
with necessity of hearing 2. The financial problem is a factor that beset
the sugar industry; that there is crisis in
During the pre-trial and the trial, the court, motu the sugar industry. (Hilado v. Leogardo, Jr.,
proprio or upon motion, shall hear the parties on G.R. No. L-65863, June 11, 1986)
the propriety of taking judicial notice of any matter. 3. The general increase in rentals of real
estate especially of business
Before judgment or on appeal, the court, motu establishments. (Commander Realty, Inc. v.
proprio or upon motion, may take judicial notice of CA, G.R. No. L-77227, November 29, 1988)
any matter and shall hear the parties thereon if 4. The reality that, especially in local
such matter is decisive of a material issue in the elections, political rivals or operators
case. (Sec. 3, Rule 129, 2019 Amendments to the benefited from the usually belated
Revised Rules on Evidence) decisions by COMELEC on petitions to
cancel or deny due course to CoCs of
Mandatory Judicial Notice vs. Discretionary potential nuisance candidates. (Casimira S.
Judicial Notice Dela Cruz v. Commission on Elections, G.R.
No. 192221, November 13, 2012)
MANDATORY DISCRETIONARY 5. How rapists are not deterred by the
JUDICIAL NOTICE JUDICIAL NOTICE presence of people nearby, such as the
Court is compelled to Court is not compelled members of their own family inside the
take judicial notice. to take judicial notice. same room, with the likelihood of being
discovered, since lust respects no time,
Takes place at court’s May be at court’s own
locale or circumstance. (People of the
initiative. initiative or on request
Philippines v. Neil B. Colorado, G.R. No.
of a party.
200792, November 14, 2012)
No motion or hearing. Needs hearing.
6. The government is and has for many years

been financially strapped, to the point that
Hearing in cases of discretionary judicial
even the most essential services have
notice
suffered serious curtailment. (La Bugal-
B’Laan Tribal Assoc. v. Ramos, G.R. No.
AFTER TRIAL BUT 127882, December 1, 2004)
DURING PRE-TRIAL
BEFORE JUDGMENT 7. The Oakwood standoff was widely known
AND TRIAL
OR ON APPEAL and was extensively covered by the media
The court on its own The proper court, on its made it a proper subject if judicial notice.
initiative, or on request own initiative or on (Magdalo Para sa Pagbabago v. COMELEC,
of a party, may request of a party, may G.R. No. 190793, June 19, 2012)
announce its intention take judicial notice of

537
 REMEDIAL LAW
8. Senate Report on the Maysilo Estate being 5. Administrative regulation or of a statute
an official act of the legislative department that is not yet effective.
of the National Government of the 6. No judicial notice is taken of whiplash
Philippines. (CLT Realty Development injury since it is not capable of
Corporation v. Hi-Grade Feeds Corporation, unquestionable demonstration and the
Republic of the Philippnes, Registry of Deeds courts lack the proper medical
of Metro Manila, District III, Caloocan City, knowledge to assume this fact. (Dela
and the Court f Appeals, G.R. No. 160684, Llana v. Biong, G.R. No. 182356, December
September 2, 2015) 4, 2013)
9. Moral damages and death indemnity
require neither pleading nor evidence NOTE: Judicial knowledge is different
simply because death through crime from judicial notice. Judicial knowledge is
always occasions moral sufferings on the knowledge of the judge. Judicial notice
part of the victim’s heirs. (Barut v. People must be knowledge of everyone or almost
of the Philippines, G.R. No. 167454, everyone such that there is no doubt, it is
September 24, 2014) certain, and that it is well-settled. (Sps.
Latip v. Chua, G.R. No. 177809, October 16,
Matters NOT proper subject of judicial notice 2009)

1. GR: Courts are not mandated to take 7. Criminal activities such as robbery and
judicial notice of the practice of banks in kidnappings are becoming daily fares in
conducting background checks on the society. (New Sun Valley Homeowner’s
borrowers and sureties. Association v. Sangguniang Barangay,
Barangay Sun Valley, Parañaque City, G.R.
XPN: They nevertheless may do so under No. 156686, September 16, 2020)
the rule on discretionary judicial notice. 8. Actual Damages. (Barut v. People of the
(Solidbank Corporation v. Mindanao Philippines, G.R. No. 167454, September
Ferroalloy Corp., G.R. No. 153535, July 28, 24, 2014)
2005)
JUDICIAL NOTICE OF FOREIGN LAWS,
2. That a registered letter when posted is LAW OF NATIONS AND MUNICIPAL ORDINANCE
immediately stamped with the date of its
receipt, indicating therein the number of Judicial notice of foreign laws (2005 BAR)
the registry, both on the covering envelope
itself and on the receipt delivered to the GR: Courts cannot take judicial notice of foreign
person who delivered the letter to the laws. They must be alleged and proved.
office.
XPN: When said laws are within the actual
GR: Courts are not authorized to take knowledge of the court and such laws are:
judicial notice of the contents of the
records of other cases even when said 1. Well and generally known; or
cases have been tried or are pending in the 2. Actually ruled upon in other cases before
same court or before the same judge. it; and none of the parties claim otherwise.
(PCIB v. Escolin, G.R. Nos. L-27860 L-
XPN: They may, however, take judicial 278896, March 29, 1974)
notice of a decision or the facts prevailing
in another case sitting in the same court if: Doctrine of Processual Presumption
(a) the parties present them in evidence,
absent any opposition from the other In international law, the party who wants to have a
party; or (b) the court, in its discretion, foreign law applied to a dispute or case has the
resolves to do so. (Land Bank v. Yatco burden of proving the foreign law. Where a foreign
Agricultural, G.R. No.172551, January 15, law is not pleaded or even if pleaded, is not proved,
2014) the presumption is that the foreign law is same as
ours. (ATCI Overseas Corporation v. Echin, G.R. No.
3. Proprietary acts of GOCCs, e.g. 178551, October 11, 2010)
management contract entered into by the
GOCC (Asian Terminals v. Malayan When foreign law is part of a published
Insurance, G.R. No. 171406, April 4, 2011). treatise, periodical or pamphlet
4. The assessed value of realty.

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 Evidence
When the foreign law is part of a published 1. When in the absence of any objection, with
treatise, periodical or pamphlet and the writer is the knowledge of the opposing party, the
recognized in his profession or calling as expert in contents of said other cases are clearly
the subject, the court, may take judicial notice of referred to by title and number in a
the treatise containing the foreign law. (Sec. 48, pending action and adopted or read into
Rule 130, 2019 Amendments to the Revised Rules on the record of the latter;
Evidence) 2. When the original record of the other case
or any part of it is actually withdrawn
When a foreign law refers to the law of nations from the archives at the court’s discretion
upon the request, or with the consent, of
The Philippines adopts the generally accepted the parties, and admitted as part of the
principles of international law as part of the law of record of the pending case (Jumamil v.
the land. (Sec. 2, Art. II, 1987 Constitution of the Cafe, G.R. No. 144570, September 21, 2005);
Philippines) 3. When the action is closely interrelated to
another case pending between the same
Being part of the law of the land, they are therefore, parties;
technically in the nature of local laws and hence, 4. Where the interest of the public in
are subject to mandatory judicial notice under Sec. ascertaining the truth are of paramount
1 of Rule 129. (Riano, 2016) importance;
5. In cases seeking to determine what is
Rules regarding judicial notice of municipal or reasonable exercise of discretion or
city ordinances whether the previous ruling is applicable
in a case under consideration; or
1. MTCs are required to take judicial notice 6. Where there is finality of a judgment in
of the ordinances of the municipality or another case that was previously pending
city wherein they sit. determination and therefore, res judicata.
2. RTCs must take judicial notice of (Herrera, 1999)
ordinances in force in the municipalities
within their jurisdiction only: Q: Anna and Badong were accused of killing
Cathy. However, only Anna was arrested since
a. When expressly authorized to do Badong went into hiding. After trial, Anna was
so by statute; or acquitted of the charge in a decision rendered
b. In case on appeal before them and by Judge Santos. Subsequently, Badong was
wherein the inferior court took arrested and brought to trial. After trial,
judicial notice of an ordinance Badong was found guilty of homicide in a
involved in the same case. decision rendered by Judge Yantok, the judge
who replaced Judge Santos after the latter
3. Appellate courts may also take judicial retired. On appeal, Badong argues that Judge
notice of ordinances not only because the Yantok should have taken judicial notice of the
lower courts took judicial notice thereof acquittal of Anna rendered by Judge Santos. Is
but because these are facts capable of Badong correct?
unquestionable demonstration. (Riano,
2016) A: NO. The appreciation of one judge of the
testimony of a certain witness is not binding on
Rules on judicial notice of records of another another judge who heard the testimony of the
case previously tried same witness on the same matter. Each magistrate
who hears the testimony of a witness is called upon
GR: Courts are not authorized to take judicial to make his own appreciation of the evidence.
notice of the contents of the records of other cases, (People v. Langit, G.R. Nos. 134757-58, August 4,
even when such cases have been tried or are 2000)
pending in the same court, and notwithstanding
the fact that both cases may have been heard or are JUDICIAL ADMISSIONS
actually pending before the same judge. (Calamba
Steel Center, Inc. v. CIR, G.R. No. 151857, April 28, These are admissions, oral or written, made by a
2005) party in the course of the proceedings in the same
case, which do not require proof. (Sec. 4, Rule 129,
XPNs: 2019 Amendments to the Revised Rules on Evidence)

Requisites of judicial admission

539
 REMEDIAL LAW
1. It must be made by a party to the case or Judicial admissions may be made in:
his counsel;
2. It must be made in the course of the 1. The pleadings filed by the parties;
proceedings in the same case; and 2. The course of the trial either by verbal or
3. It can be oral or written. (Sec. 4, Rule 129, written manifestations or stipulations,
2019 Amendments to the Revised Rules on including depositions, written
Evidence) interrogatories and requests for
admissions; or
Judicial admissions vs. Extrajudicial admissions 3. Other stages of the judicial proceedings, as
in pre-trial. (Binarao v. Plus Builders, Inc.,
JUDICIAL ADMISSIONS EXTRAJUDICIAL G.R. No. 154430, June 16, 2006)
ADMISSIONS
Those made in the Those made out of court Two ways in which admissions are made in
course of the proceeding or in a judicial pleadings
in the same case. proceeding other than
the one under 1. Actual Admission – When a party
consideration. categorically admits a material allegation
Do not require proof Regarded as evidence made by the adverse party.
and may be and must be offered as 2. Implied Admission – When the admission
contradicted only by such, otherwise the is inferred from the failure to specifically
showing that it was court will not consider it deny the material allegations in the other
made through palpable in deciding the case. party’s pleadings.
mistake or that the
imputed admission was EFFECT OF JUDICIAL ADMISSIONS
not, in fact, made. (Sec.
4, Rule 129, 2019 1. They do not require proof; and
Amendments to the 2. They cannot be contradicted because they
Revised Rules on are conclusive upon the party making it.
Evidence) (Solivio v. CA, G.R. No. 83484, February 12,
Judicial admissions need Requires formal offer 1990)
not be offered in for it to be considered.
evidence since it is not Admissions made in pleadings which were NOT
evidence. It is superior filed with the court
to evidence and shall be
considered by the court Admissions made therein are not judicial
as established. admissions:
Conclusive upon the Rebuttable.
admitter. 1. If signed by the party litigant himself or
Admissible even if self- Not admissible if self- herself – Considered as extrajudicial
serving. serving. admission.
Subject to cross- Not subject to cross- 2. If signed by the counsel – Not admissible
examination. examination. because a counsel only binds his or her
client with respect to admissions in open
Different forms of judicial admission: court and in pleadings actually filed with
the court. (Riano, 2016)
1. Oral – Verbal waiver of proof made in
open court, a withdrawal of contention, or Averments in pleadings which are not deemed
disclosure made before the court, or admissions
admission made by witness in his
testimony or deposition; 1. Immaterial allegations (Sec. 11, Rule 8);
2. Writing – Pleading, bill of particulars, 2. Conclusions, non-ultimate facts in the
stipulation of facts, request for admission, pleadings (Sec 1, Rule 8); and
or a judicial admission contained in an 3. Amount of unliquidated damages (Sec. 11,
affidavit used in the case (Programme Inc. Rule 8)
v. Province of Bataan, G.R. No. 144635, June
26, 2006) Effect of an invalid and ineffective denial of
actionable documents attached to the
How judicial admissions are made complaint

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 Evidence
When an action or defense is founded upon an 1. Upon showing that the admission was
actionable document, the genuineness and due made through palpable mistake; or
execution of the same instrument shall be deemed 2. When it is shown that the imputed
admitted unless it is specifically denied under oath. admission was not, in fact, made. (Sec. 4,
(Sec. 8, Rule 8) Rule 129)

Failure to deny the genuineness and due execution NOTE: This argument may be invoked when
of said document amounts to a judicial admission. the statement of a party is taken out of context
(PNB vs. Refrigeration Industries, Inc., GR No. or that his statement was made not in the
156178, January 20, 2006) sense it is made to appear by the other party.
(Riano, 2016)
NOTE: But the failure to deny the genuineness and
due execution of an actionable document does not Remedy of party who made a judicial admission
preclude a party from arguing against the
document by evidence of fraud, mistake, 1. In case of written admission – File a motion
compromise, payment, statute of limitations, to withdraw such pleading, or any other
estoppel and want of consideration. He or she is written instrument containing such
however, precluded from arguing that the admission; and
document is a forgery because the genuineness of 2. In case of oral admission – The counsel may
document is impliedly admitted. (Acabal v. Acabal, move for the exclusion of such admission.
G.R. 148376, March 31, 2005; PNB v. Refrigeration
Industries, Inc, supra) PRE-TRIAL ADMISSIONS

Admissions made in amended pleadings Admissions in the pre-trial of civil cases

Admissions in a pleading which had been A pre-trial is mandatory. One of the purposes of
withdrawn or superseded by an amended pleading, pre-trial in civil cases is for the court to consider
although filed in the same case, are considered as the possibility of obtaining stipulations or
extrajudicial admissions. admissions of facts. Admissions therefore, in the
pre-trial, as well as those made during depositions,
Pleadings that have been amended disappear from interrogatories or requests for admissions, are all
the record, lose their status as pleadings and cease deemed judicial admissions because they are made
to be judicial admissions, and to be utilized as in the course of the proceedings of the case. (Riano,
extrajudicial admission, they must, in order to have 2016)
such effect, be formally offered in evidence. (Ching
v. Court of Appeals, G.R. No. 110844, April 27, 2000) Admissions in the pre-trial of criminal cases

Rule regarding self-serving evidence Admission made by the accused in the pre-trial of a
criminal case is not necessarily admissible against
The self-serving rule is not applicable to judicial him or her. To be admissible, the conditions set
admissions. If the declaration is made in open forth by Sec. 2 of Rule 118 must be complied with.
court, it is admissible because the witness may be
cross-examined on that matter. All the agreements or admissions made or entered
during the pre-trial conference shall be:
Effect of a guilty plea made by the accused
during his arraignment later withdrawn 1. Reduced in writing; and
2. Signed by the accused and counsel.
A plea of guilty entered by the accused may be later
withdrawn at any time before the judgment of Otherwise, they cannot be used against the
conviction becomes final. Such plea is not accused. (Sec. 2, Rule 118)
admissible in evidence against the accused and is
not even considered as an extrajudicial admission.
OBJECT (REAL) EVIDENCE
HOW JUDICIAL ADMISSIONS
MAY BE CONTRADICTED
NATURE OF OBJECT EVIDENCE (2005 BAR)
Grounds for contradicting judicial admissions

541
 REMEDIAL LAW
Object as evidence are those addressed to the A test which can establish the presence or absence
senses of the court. When an object is relevant to of nitrates or nitrites on the hand but the test alone
the fact in issue, it may be exhibited to, examined cannot determine whether the source of the
or viewed by the court. (Sec. 1, Rule 130, 2019 nitrates or nitrites was discharge of a firearm.
Amendments to the Revised Rules on Evidence)
NOTE: The paraffin test is merely corroborative
It is not limited to the view of an object. It covers evidence, neither proving nor disproving that a
the entire range of human senses: hearing, taste, person did indeed fire a gun. The positive or
smell, and touch. (Riano, 2016) negative results of the test can be influenced by
certain factors such as the wearing of gloves by the
Physical evidence is a mute but eloquent subject, perspiration of the hands, wind direction,
manifestation of truth and it ranks high in our etc. (People v. Buduhan, G.R. No. 178196, August 6,
hierarchy of trustworthy evidence- where physical 2008) A person who tests positive may have
evidence runs counter to testimonial evidence, the handed one or more substances with the same
physical evidence should prevail. (Bank of the positive reaction for nitrates such as explosives,
Philippine Islands v. Reyes, G.R. No. 149840-41, fireworks, fertilizers, pharmaceuticals, tobacco and
March 31, 2006) leguminous plants. (People v. Cajumocan, G.R.
155023, May 28, 2004)
In criminal cases such as murder/homicide or rape,
in which the accused stand to lose their liberty if Polygraph test (Lie Detector Tests)
found guilty, the Supreme Court has, on many
occasions, relied principally upon physical It is an electromechanical instrument that
evidence in ascertaining the truth. Where the simultaneously measures and records certain
physical evidence on record runs counter to the physiological changes in the human body that are
testimonies of witnesses, the primacy of the believed to be involuntarily caused by an
physical evidence must be upheld. (PO1 Ocampo v. examinee’s conscious attempt to deceive the
People of the Philippines, G.R. No. 194129, June 15, questioner. (West’s Legal Thesaurus Dictionary,
2015) 1986)

NOTE: Documents are object (real) evidence if the A polygraph test operates on the principle that
purpose is to prove their existence or condition, or stress causes physiological changes in the body
the nature of the handwriting thereon, or to which can be measured to indicate whether the
determine the age of the paper used, or the subject examination is telling the truth. (Riano,
blemishes or alterations thereon, as where 2016)
falsification is alleged. (Regalado, 2008)
Q: Ron was charged with murder for shooting
Examples of object evidence Carlo. After trial, Ron was found guilty as
charged. On appeal, Ron argued that the trial
1. Any article or object which may be known court should have acquitted him as his guilt
or perceived using the senses; was not proved beyond reasonable doubt. He
2. Examination of the anatomy of a person or argues that the paraffin test conducted on him
of any substance taken therefrom; 2 days after he was arrested yielded a negative
3. Conduct of tests, demonstrations or result. Hence, he could not have shot Carlo. Is
experiments; Ron correct?
4. Examination of representative portrayals
of the object in question (e.g. maps, A: NO. While the paraffin test was negative, such
diagrams); fact alone did not ipso facto prove that Ron is
5. Documents, if the purpose is to prove their innocent. A negative paraffin result is not
existence or condition, or the nature of the conclusive proof that a person has not fired a gun.
handwriting thereon or to determine the It is possible to fire a gun and yet be negative for
age of the paper used, or the blemishes or nitrates, as when the culprit is wearing gloves or he
alterations (Regalado, 2008); and washes his hands afterwards. Here, since Ron
6. A person’s appearance, where relevant. submitted himself for paraffin testing only two
(People v. Rullepa, G.R. No. 131516, March days after the shooting, it was likely he had already
5, 2003) washed his hands thoroughly, thus removing all
traces of nitrates therefrom. (People v. Brecinio, G.R.
Paraffin test No. 138534, March 17, 2004)

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 Evidence
REQUISITES FOR ADMISSIBILITY showing the accused mauling the victim with
several of the latter’s companions. The person
1. It must be relevant and competent; who took the photograph was not presented as
2. It must be authenticated; a witness. Be that as it may, the prosecution
presented the companions of the victim who
NOTE: To authenticate the object, it must testified that they were the ones in the
be shown that the object is the very thing photographs. The defense objected to the
that is either the subject matter of the admissibility of the photographs because the
lawsuit or the very one involved to prove person who took the photographs was not
an issue in the case. presented as witness. Is the contention of the
defense tenable?
3. The authentication must be made by a
competent witness who should identify A: NO. Photographs, when presented in evidence,
the object to be the actual thing involved; must be identified by the photographer as to its
and production and testified as to the circumstances
4. The object must be formally offered in under which they were produced. The value of this
evidence. (Riano, 2016) kind of evidence lies in its being a correct
representation or reproduction of the original, and
Purposes of authentication of object evidence its admissibility is determined by its accuracy in
portraying the scene at the time of the crime.
1. Prevent the introduction of an object
different from the one testified about; and The photographer, however, is not the only witness
2. Ensure that there have been no significant who can identify the pictures he has taken. The
changes in the object’s condition. correctness of the photograph as a faithful
representation of the object portrayed can be
Circumstances when the court may refuse the proved prima facie, either by the testimony of the
introduction of object or real evidence and rely person who made it or by other competent
on testimonial evidence alone witnesses who can testify to its exactness and
accuracy, after which the court can admit it subject
1. Its exhibition is contrary to public morals to impeachment as to its accuracy. Here, the
or decency; photographs are admissible as evidence in as much
as the correctness thereof was testified to by the
NOTE: But if the exhibition of such object companions of the victim. (Sison v. People, G.R. Nos.
is necessary in the interest of justice, it 108280-83, November 16, 1995)
may still be exhibited, and the court may
exclude the public from such view. Such Q: Thor was charged with and convicted of the
exhibition may not be refused if the special complex crime of robbery with
indecent or immoral objects constitute the homicide by the trial court. On his appeal, he
very basis of the criminal or civil action. asseverates that the admission as evidence of
(Moran, 1980) victim's wallet together with its contents,
violates his right against self-incrimination.
2. To require its being viewed in court or in Likewise, Thor sought for their exclusion
ocular inspection would result in delays, because during the custodial investigation,
inconvenience, or unnecessary expenses wherein he pointed to the investigating
which are out of proportion to the policemen the place where he hid the victim's
evidentiary value of such object; wallet, he was not informed of his
3. Such object evidence would be confusing constitutional rights (Miranda rights). Decide
or misleading, as when the purpose is to the case.
prove the former condition of the object
and there is no preliminary showing that A: The right against self-incrimination does not
there has been no substantial change in apply to the instant case where the evidence
said condition; or sought to be excluded is not an incriminating
4. The testimonial or documentary evidence statement but an object evidence. Infractions on
already presented clearly portrays the the so-called “Miranda rights” render inadmissible
object in question as to render a view only the extrajudicial confession or admission
thereof unnecessary. (Regalado, 2008) made during custodial investigation. The
admissibility of other evidence is not affected even
Q: In a criminal case for murder, the if obtained or taken in the course of custodial
prosecution offered as evidence, photographs investigation. Concededly, Thor was not informed

543
 REMEDIAL LAW
of his rights during the custodial investigation. court. (People v. Gayoso, G.R. No. 206590,
Neither did he execute a written waiver of these March 27, 2017)
rights in accordance with the constitutional
prescriptions. Nevertheless, these constitutional Procedure to be followed in the custody and
shortcuts do not affect the admissibility of the handling of seized dangerous drugs (Sec. 21,
victim's wallet and its contents. (People v. Malimit, Art. II of R.A. 9165, as amended by R.A. 10640)
G.R. No. 109775, November 14, 1996)
Apprehending team shall, immediately after
CATEGORIES OF OBJECT EVIDENCE seizure and confiscation, make a physical
inventory and photograph of the same in the
Categories of object evidence for purposes of presence of:
authentication
1. Accused or the person/s from which such
1. Unique objects – Those that have readily items were confiscated and/or seized;
identifiable marks (e.g. a caliber 40 gun 2.His/her representative or counsel; WITH
with serial number XXX888); 3. A representative of the National
2. Objects made unique – Those that are Prosecution Service (NPS) OR the media;
made readily identifiable (e.g. a bolo knife AND
with identifying marks on it); and 4. Any elected public official who shall
3. Non-unique objects – Those which have berequired to sign the copies of the inventory
no identifying marks and cannot be and be given a copy. (Sec. 21[1], RA 9165, as
marked (e.g. drops of blood). (Riano, 2016) amended by RA 10640; People v. Santos, G.R.
No.243627, 27 November 2019)
NOTE: In case of non-unique objects, the
proponent of the evidence must establish a chain of
custody.
The objects seized must be submitted to PDEA
CHAIN OF CUSTODY IN RELATION TO SECTION for qualitative and quantitative examination
21 OF THE COMPREHENSIVE DANGEROUS within 24 hours from the confiscation/seizure.
DRUGS ACT OF 2002

Purpose
The forensic laboratory examiner is required to
To guaranty the integrity of the physical evidence issue within 24 hours after receipt of the drugs a
and to prevent the introduction of evidence which certification of the forensic laboratory
is not authentic. Where the exhibit is positively examination results which shall be done under
identified, the chain of custody of physical evidence oath.
is irrelevant.

Since it is called a chain, there must be links to the
chain. The links are the people who actually After filing of the criminal case, the court shall,
handled or had custody of the object. Each link within 72 hours, conduct an ocular inspection
must show how he received the object, how he and the PDEA shall within 24 hours proceed
handled it to prevent substitution and how it was with the destruction of the same.
transferred to another. Each must testify to make
the foundation complete.

Links in the chain of custody Dangerous Drugs Board shall then issue a sworn
certification as to the fact of destruction or
1. Seizure and marking, if practicable, of the burning to be submitted to the court. Also to be
illegal drug recovered from the accused; submitted are the representative samples (only
2. Turnover of the illegal drug by the minimum quantity) of the substances in the
apprehending officer to the investigating custody of PDEA.
officer;
3. Turnover by the investigating officer to the NOTE: The alleged offender or his/her
forensic chemist for laboratory representative or counsel shall be allowed to
examination; and personally observe all the above proceedings. His
4. Turnover and submission of the marked
illegal drug by the forensic chemist to to

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 Evidence
presence shall NOT constitute an admission of (People of the Philippines v. Banding, G.R. No.
guilt. 2333470, August 14, 2019, as penned by J. Leonen)

Strict compliance with Section 21 In the case of People of the Philippines v. Ramos, the
Supreme Court ruled that the witnesses' absence at
Q: Banding was arrested at Mercury Drug Store the time of seizure is not a justifiable ground for
Lagro branch in Quezon City for illegal sale of not immediately marking the items, since they
dangerous drugs (Section 5, RA 9165). The should have, at the onset, been present or near the
dangerous drugs sachets containing white place of seizure. Since the law requires the
crystalline substance were marked by PO2 apprehending team to conduct the inventory in
Inway with AB-20-09-10. To avoid the on-going front of the required witnesses and immediately
commotion in the area, the team proceeded to after seizure, this necessarily means that, in buy-
Camp Karingal which is 17 kilometers car ride bust operations, the required witnesses must be
away from the place of arrest. present at the time of seizure. (G.R. No. 225335,
August 28, 2019, as penned by J. Leonen)
There, physical inventory and photographing
required under Sec. 21 of RA 9165 was The phrase "immediately after seizure and
conducted in the presence of Banding, the buy- confiscation" means that the physical inventory and
bust team, and a media representative. After photographing of the drugs were intended by the
the inventory, PO3 Corona prepared the law to be made immediately after, or at the place of
inventory receipt for “a sachet containing apprehension. It is only when the same is not
marijuana fruiting tops.” This was submitted to practicable that the law allows the inventory and
the QCPD Crime Laboratory. Banding was later photographing to be done as soon as the buy-bust
on charged with violation of Section 5 of RA team reaches the nearest police station or the
9165. Banding argues that he cannot be nearest office of the apprehending team/officer.
convicted due to lapses in the chain of custody
of the drugs seized. Can Banding be held Well-entrenched in jurisprudence is the rule that
criminally liable under Section 5 of RA 9165? the conviction of the accused, must rest, not on the
weakness of the defense, but on the strength of the
A: Banding cannot be convicted under Section 5 of prosecution. Since, there is no showing that a roper
RA 9165 due to the lapses in the chain of custody inventory and taking of pictures was done byy the
procedure required under Section 21 of the same apprehending officers, the Court is left with
law. Section 21 requires strict compliance. The absolutely no guarantee of the integrity of the
accuracy it requires goes into the covertness of sachets other than the self-serving assurances of
buy-bust operation and the very nature of narcotic the police officers. (People of the Philippines v. Que,
substance. G.R. No. 212994, January 31, 2018, as penned byJ.
Leonen)
From the language of Section 21, the mandate to
conduct inventory and take photographs Citing People v. Que, what is critical in drug cases is
"immediately after seizure and confiscation" not the bare conduct of the inventory, marking, and
necessarily means that these shall be photographing. Instead, it is the certainty that the
accomplished at the place of arrest. When this is items allegedly taken from the accused retain their
impracticable, the Implementing Rules and integrity, even as they make their way from the
Regulations of Republic Act No. 9165 allows for accused to an officer effecting the seizure, to an
two (2) other options: at the nearest police station investigating officer to a forrensic chemist, and
or at the nearest office of the apprehending ultimately, to courts where they are introduced as
officer/team, whichever is practicable, in case of evidence. Sec. 21(1)’s requirements are designed to
warrantless seizures. To sanction non-compliance, make the first and second link foolproof.
the prosecution must prove that the inventory was Conducting the inventory and photographing
conducted in either practicable place. immediately after seizure, exactly where the
seizure was done, or at a location as practicably
The physical inventory and photographing of the close to it, minimizes, if not eliminates, room for
drugs seized was not done in the place of arrest, adulteration or planting of evidence. (People of the
but was done in Camp Karingal, which was Philippines v. Banding, supra.)
impractical since it was 17 kilometers car ride
away from the place of arrest. The clerical errors Integrity and evidentiary value of the seized
and discrepancies in the inventory receipt and the items
chemistry report cannot be dismissed since they
cast doubt as to the origin of the drug seized.

545
 REMEDIAL LAW
The prosecution is not required to elicit testimony amount of dangerous drugs are alleged to have
from every custodian or from every person who been seized from the accused.
had an opportunity to come in contact with the
evidence sought to be admitted. As long as one of In this case, only 0.0496 grams and 0.0487 grams
the chains testifies and his testimony negates the or a total of 0.0983 grams of shabu were allegedly
possibility of tampering and that the integrity of taken from accused-appellant. Such a miniscule
the evidence is preserved, his testimony alone is amount of drugs is highly susceptible to tampering
adequate to prove the chain of custody. and contamination. A careful review of the factual
findings of the lower courts shows that the
Failure to strictly comply with rules of procedure, prosecution failed to discharge its burden of
however, does not ipso facto invalidate or render preserving the identity and integrity of the
void the seizure and custody over the items. Minor dangerous drugs allegedly seized from accused-
deviations from the chain of custody rule are appellant. The prosecution failed to establish who
justified when the prosecution is able to show that: held the seized items from the moment they were
taken from accused-appellant until they were
1. There is justifiable ground for non- brought to the police station. The designated
compliance; and poseur-buyer, PO2 Montales, did not mention who
2. The integrity and evidentiary value of took custody of the seized items for safekeeping.
the seized items are properly preserved (People v. Saunar, G.R. No. 207396, August 9, 2017,
(People v. Dumagay, G.R. No. 216753, as penned by J. Leonen)
February 7, 2018).
Marking after seizure is the starting point in the
Q: A buy-bust operation was conducted custodial link, thus it is vital that the seized
wherein PO2 Montales was designated as the contrabands are immediately marked because
poseur-buyer. The buy-bust team proceeded to succeeding handlers of the specimen will use the
Saunar's residence. PO2 Montales introduced markings as reference. (People v. Salim, G.R. No.
herself as a buyer of shabu and handed Saunar 208093, February 20, 2017)
the marked money. After a brief conversation,
Saunar went inside the house. She returned Q: A buy-bust operation was conducted by the
moments later "with two (2) transparent police where PO1 Aure, as the poseur-buyer,
plastic sachets containing white crystalline was accompanied by the informant. The team
substance." PO2 Montales examined the plastic proceeded to the whereabouts of Holgado. PO1
sachets and gave the pre-arranged signal by Aure handed Holgado two marked Php 100
removing her sunglasses. This indicated the bills. Holgado called Misarez. Misarez stepped
consummation of the transaction to the other out of the restroom and handed a plastic sachet
members of the buy-bust team. PO2 Montales containing a white crystalline substance to PO1
brought the seized items to the crime Aure. PO1 Aure examined the sachet’s contents
laboratory for scientific examination. The and took out his cellphone signalling that the
contents of the two (2) plastic sachets weighed sale of drugs had been consummated. The
0.0496 grams and 0.0487 grams. They tested police operatives then approached PO1 Aure
positive for shabu. Is Saunar liable even if only and apprehended Holgado and Misarez. PO3
a miniscule amount is alleged to have been Abuyme prepared an inventory of the seized
seized from him? items. PO1 Aure supposedly marked the plastic
sachet handed to him by Misarez at the site of
A: NO. The prosecution must prove beyond the buy-bust operation.
reasonable doubt that the transaction actually took
place by establishing the following elements: "(1) Following their arrest, Holgado and Misarez
the identity of the buyer and the seller, the object were charged with violating Secs. 5 (Sale of
and the consideration; and (2) the delivery of the dangerous drugs), 11 (Possession of dangerous
thing sold and the payment." Aside from this, the drugs), and 12 (Possession of drug
corpus delicti must be presented as evidence in paraphernalia) of RA No. 9165.
court. In cases involving dangerous drugs, "the
corpus delicti is the dangerous drug itself." RTC found Holgado and Misarez guilty of illegal
Although strict compliance with the chain of sale of dangerous drugs and acquitted them of
custody rule may be excused provided that the the charges pertaining to Sec. 11 as the drugs
integrity and evidentiary value of the seized items supposedly seized were not introduced in
are preserved, a more exacting standard is evidence. Holgado, was also acquitted of the
required of law enforcers when only a miniscule charges relating to Sec. 12 of as the
paraphernalia to which PO2 Castulo testified to

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 Evidence
in court were different from those indicated in 2. It is not possible to be sure, based on the
the inventory supposedly made. CA affirmed results of the test, whether the samples
the conviction. Is the presumption of regularity have similar DNA types (inconclusive).
in the performance of duties applicable in this This might occur for a variety of reasons
case? including degradation, contamination, or
failure of some aspect of the protocol.
A: The presumption of regularity in the Various parts of the analysis might then be
performance of duties cannot be applied in this repeated with the same or a different
case. Given the flagrant procedural lapses the sample, to obtain a more conclusive result;
police committed in handling the seized shabu and or
the obvious evidentiary gaps in the chain of its 3. The samples are similar, and could have
custody, a presumption of regularity in the originated from the same source
performance of duties cannot be made in this case. (inclusion). In such a case, the samples are
The presumption applies when nothing in the found to be similar, the analyst proceeds
record suggests that the law enforcers deviated to determine the statistical significance of
from the standard conduct of official duty required the Similarity. (People v. Vallejo, G.R. No.
by law; where the official act is irregular on its face, 144656, May 9, 2002)
the presumption cannot arise. (People of the
Philippines v. Holgado, G.R. No. 207992, August 11, Rule on DNA Evidence (A.M. No. 06-11-5-SC)
2014, as penned by J. Leonen)
It shall apply whenever DNA evidence is offered,
DNA EVIDENCE used, or proposed to be offered or used as evidence
in all criminal and civil actions as well as special
Meaning of DNA proceedings. (Sec. 1, AM No. 06-11-5-SC)

DNA is the fundamental building block of a Application for DNA Testing Order
person’s entire genetic make-up. A person’s DNA
profile can determine his identity. The DNA profile DNA testing order may be done motu proprio or on
is unique for each person, except for identical application of any person having legal interest in
twins. Everyone is born with a distinct and genetic the matter in litigation.
blueprint called DNA.
DNA testing order shall issue after due hearing and
When a crime is committed, material is collected notice to the parties upon showing that:
from the scene of the crime or from the victim's
body for the suspect's DNA. This is the evidence 1. A biological sample exists that is relevant
sample. The evidence sample is then matched with to the case;
the reference sample taken from the suspect and 2. The biological sample:
the victim.
(i) was not previously subjected to the
DNA analysis type of DNA testing now requested; or
(ii) was previously subjected to DNA
A procedure in which DNA extracted fro a testing, but the results may require
biological sample obtained from an individual is confirmation for good reasons;
examined. (Herrera v. Alba, G.R. No. 148220, June
15, 2000) 3. The DNA testing uses a scientifically valid
technique;
The purpose of DNA testing is to ascertain whether 4. The DNA testing has the scientific
an association exists between the evidence sample potential to produce new information that
and the reference sample. The samples collected is relevant to the proper resolution of the
are subjected to various chemical processes to case; and
establish their profile. The test may yield three 5. The existence of other factors, if any,
possible results: which the court may consider as
potentially affecting the accuracy of
1. The samples are different and therefore integrity of the DNA testing.
must have originated from different
sources (exclusion). This conclusion is NOTE: This Rule shall not preclude a DNA testing,
absolute and requires no further analysis without need of a prior court order, at the behest of
or discussion; any party, including law enforcement agencies,

547
 REMEDIAL LAW
before a suit or proceeding is commenced. (Sec. 4, laboratory is not accredited, the relevant
A.M. No. 06-11-5-SC) experience of the laboratory in forensic
casework and credibility shall be properly
Post-Conviction DNA Testing established; and
d. The reliability of the testing result, as
Post-conviction DNA testing may be available, hereinafter provided. (Sec. 7 [a], Rule on
without need of prior court order, to the DNA Evidence)
prosecution or any person convicted by final and
executory judgment provided that: DNA is admissible evidence of paternity

1. A biological sample exists; DNA analysis that excludes the putative father
2. Such sample is relevant to the case; and from paternity should be conclusive proof of non-
3. The testing would probably result in the paternity. If the minimum value of the Probability
reversal or modification of the judgment of of Paternity is less than 99.9%, the results of the
conviction. (Sec. 5, A.M. No. 06-11-5-SC) DNA analysis should be considered as
(2012 BAR) corroborative evidence. If the value of minimum
value of the Probability of Paternity is 99.9% or
Assessment of probative value of DNA evidence higher, then there is refutable presumption of
and admissibility paternity. (Herrera v. Alba, G.R. No. 148220, June
15, 2005)
The courts must consider the following standards,
known as the Vallejo Standards, in assessing the DEMONSTRATIVE EVIDENCE
probative value of DNA evidence: (2009, 2010
BAR) Real evidence vs. Demonstrative evidence

a. How the samples were collected; REAL EVIDENCE DEMONSTRATIVE
b. How they were handled; EVIDENCE
c. The possibility of contamination of the Tangible object that Tangible evidence that
samples; played some actual merely illustrates a
d. The procedure followed in analyzing the role in the matter that matter of importance
samples; gave rise to the in the litigation
e. Whether the proper standards and litigation
procedures were followed in conducting Intends to prove that Intends to show that
the tests; and the object is used in the the demonstrative
f. The qualification of the analyst who underlying event object fairly represents
conducted the tests. (People v. Vallejo, G.R. or illustrates a real
No. 144656, May 9, 2002) evidence

Rules on evaluation of reliablility of DNA Illustration: Where a
testing methodology drawing is presented to
illustrate the relative
In assessing the probative value of the DNA positions of the
evidence presented, the court shall consider the protagonists and
following: witnesses to the killing,
the foundation for
a. The chain of custody, including how the demonstrative
biological samples were collected, how evidence will normally
they were handled, and the possibility of consist of the testimony
contamination of the samples; of an eyewitness or
b. The DNA testing methodology, including investigator stating that
the procedure followed in analyzing the the drawing was indeed
samples, the advantages and fairly represents the
disadvantages of the procedure, and position of those
compliance with the scientifically valid present in the event.
standards in conducting the tests; (Francisco, 1996)
c. The forensic DNA laboratory, including
accreditation by any reputable standards- VIEW OF AN OBJECT OR SCENE
setting institution and the qualification of
the analyst who conducted the tests. If the

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 Evidence
When an object is relevant to the fact in issue, it If a tape recording is played to show that particular
may be exhibited to, examined or viewed by the words were uttered, it will constitute a
court. (Sec 1, Rule 130) documentary evidence. However, if it is played to
simply show that words were uttered in a
Where the object in question cannot be produced particular accent, then it is an object evidence.
in court because it is immovable or inconvenient to (Francisco, 1996)
remove, it is proper for the tribunal to go to the
object in its place and there observe it (Francisco, Q: May a private document be offered and
1996). admitted in evidence both as documentary
evidence and object evidence? (2005 BAR)
An ocular inspection conducted by the judge
without the presence of the parties or due notice is A: YES. A private document may be offered and
not valid, as an ocular inspection is part of the trial admitted in evidence both as documentary
(Regalado, 2008, citing Adan vs. Abucejo-Luzano, et evidence and as object evidence depending on the
al., A.M. No. MTJ-00-1298, August 3, 2000). purpose for which the document is offered. If
offered to prove its existence, conditions or for any
purpose other than the contents of a document, the
DOCUMENTARY EVIDENCE same is considered as an object evidence. When the
private document is offered as proof of its contents,
the same is considered as documentary evidence.

The document may be offered for both purposes
MEANING OF DOCUMENTARY EVIDENCE
under the principle of multiple admissibility.
Documents as evidence consist of writings, (Riano, 2016)

recording, photographs or any material containing
letters, words, sounds, numbers, figures, symbols, REQUISITES FOR ADMISSIBILITY
or their equivalent, or other modes of written
expressions, offered as proof of their contents. The requisites for admissibility of documentary
Photographs include still pictures, drawings, stored evidence are: (RAMO)
images, x-ray films, motion picture or videos. (Sec.
1. The document should be relevant;
2, Rule 130, 2019 Amendments to the Revised Rules
2. The documents should be authenticated
on Evidence)
and proved in the manner provided in the

Rules of Court. Such authentication must
NOTE: Being writing or materials containing
be done by a competent witness;
modes of written expressions do no ipso facto
make such materials documentary evidence. For 3. The documents should be identified and
such writings or materials to be deemed marked; and
documentary evidence, the same must be offered 4. They should be formally offered to the
court and shown to the opposing party so
as proof of their contents. (Riano, 2019)
that the latter may have the opportunity to

Categories of documentary evidence object thereto. (Ramcar, Inc. v. Hi-Power
Marketing, G.R. No. 157075, July 17, 2006)
1. Writings;
Q: When Linda died, her common-law husband,
2. Recordings;
Lito and their alleged daughter, Nes, executed
3. Photographs;
an extrajudicial partition of Linda’s estate.
4. Any other material containing letters,
words, sounds, numbers, figures, symbols Thereafter, the siblings of Linda filed an action
or their equivalent; for partition of Linda’s estate and annulment of
titles and damages with the RTC. The RTC
5. Other modes of written expression offered
as a proof of their contents. dismissed the complaint and ruled that Nes was
the illegitimate daughter of the decedent and

NOTE: Photographs include still pictures, Lito based solely on her birth certificate, which
drawings, stored images, x-ray films, motion on closer examination, reveals that Nes was
pictures or videos. (Sec. 2, Rule 130, 2019 listed as “adopted” by both Linda and Lito. Is
Amendments to the Revised Rules on Evidence) the trial court correct?

Tape-recording as documentary evidence A: NO. A record of birth is merely a prima facie
evidence of the facts contained therein. It is not
conclusive evidence of the truthfulness of the
statements made therein by the interested parties.

549
 REMEDIAL LAW
Nes should have adduced evidence of her adoption, 3. When the original consists of numerous
in view of the contents of her birth certificate. The accounts or other documents which
mere registration of a child in his or her birth cannot be examined in court without great
certificate as the child of the supposed parents is loss of time and the fact sought to be
not a valid adoption, does not confer upon the child established from them is only the general
the status of an adopted child and the legal rights result of the whole;
of such child, and even amounts to simulation of 4. When the original is a public record in the
the child's birth or falsification of his or her birth custody of a public officer or is recorded in
certificate, which is a public document. (Rivera v. a public office; and
Heirs of Villanueva, G.R. No. 141501, July 21, 2006) 5. When the original is not closely-related to
a controlling issue. (Sec. 3, Rule 130, 2019
Theory of indivisibility (Rule on Completeness) Amendments to the Revised Rules on
Evidence)
When part of an act, declaration, conversation,
writing or record is given in evidence by one party, NOTE: Where the issue is only as to whether such a
the whole of the same subject may be inquired into document was actually executed, or exists, or on
by the other; and when a detached act, declaration, the circumstances relevant to or surrounding its
conversation, writing, or record is given in execution or delivery (external facts), the best
evidence, any other act, declaration, conversation, evidence rule (now, original document rule), does
writing or record necessary to its understanding not apply, and testimonial evidence is admissible.
may also be given in evidence. (Sec. 17, Rule 132) (Moran, 1980)

ORIGINAL DOCUMENT RULE The Best Evidence Rule (now original document
(PREVIOUSLY KNOWN AS THE BEST EVIDENCE rule), applied to documentary evidence, operates
RULE) as a rule of exclusion, that is, secondary evidence
cannot be inceptively introduced as the original
The erstwhile “Best Evidence Rule” is now known writing itself must be produced in court, except in
as the “Original Document Rule” in order to avoid the instances mentioned in Sec. 3. (Regalado, 2008)
confusion.
Q: What is the reason underlying the adoption
The “Best Evidence Rule” is a misnomer because it of the best evidence rule (now the original
misleadingly suggests that the doctrine applies to document rule)? (1998 BAR)
all types of evidence. The Best Evidence Rule only
applies to documents or writings; there is no A: There is a need to present to the court the exact
requirement that parties introduce the best words of a writing where a slight variation of
evidence bearing on other matters they seek to words may mean a great difference in rights. It is
prove in court. Thus, the more accurate or apt label also for the prevention of fraud or mistake in the
for the doctrine is the “Original Document proof of the contents of a writing.
Rule.”(Rules Committee Notes, as cited in Peralta &
Peralta, 2020) Q: Police officers arrested Mr. Druggie in a buy-
bust operation and confiscated from him 10
MEANING OF THE RULE sachets of shabu and several marked genuine
peso bills worth P5,000.00 used as the buy-bust
GR: It provides that when the subject of the inquiry money during the buy-bust operation. At the
is the contents of the document, writing, recording, trial of Mr. Druggie for violation of R.A. No.
photograph or other record, no evidence shall be 9165, the Prosecution offered in evidence,
admissible other than the original document itself. among others, photocopies of the confiscated
marked genuine peso bills. The photocopies
XPNs: (LoCus-JuN-PuC) were offered to prove that Mr. Druggie had
engaged at the time of his arrest in the illegal
1. When the original is lost, or destroyed, or selling of dangerous drugs. Invoking the Best
cannot be produced in court, without bad Evidence Rule Atty. Maya Bang, the defense
faith on the part of the offeror; counsel, objected to the admissibility of the
2. When the original is in the custody or photocopies of the confiscated marked genuine
under the control of the party against peso bills. Should the trial judge sustain the
whom the evidence is offered, and the objection of the defense counsel? Briefly
latter fails to produce it after reasonable explain your answer. (2017 BAR)
notice, or the original cannot be obtained
by local judicial processes or procedures;

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 Evidence
A: NO. The best evidence rule (now the original NOTE: An original of a photograph includes
document rule) applies only to documentary the negative or any print therefrom.
evidence, not to object or testimonial
evidence. The presentation at the trial of the "buy- NOTE: If data is stored in a computer or
bust money" is not indispensable to the conviction similar device, any printout or other output
of the accused especially if the sale of dangerous readable by sight or other means, shown to
drugs had been adequately proved by the reflect the data accurately, is an “original.” This
testimony of the police officers. So long as the drug is considered as the “Functional Equivalent” of
actually sold by the accused had been submitted as the original under the Rules on Electronic
an exhibit, the failure to produce the marked Evidence
money itself would not constitute a fatal omission.
A “duplicate” is a counterpart produced by the
WHEN APPLICABLE same impression as the original, or from the same
matrix, or by means of photography, including
1. The original document of the writing is the enlargements and miniatures, or by mechanical or
writing itself; electronic re-recording, or by chemical
2. The contents of which is the subject of the reproduction, or by other equivalent techniques
inquiry; and which accurately reproduce the original.
3. The original document must be produced if the
purpose is to prove its contents. (Tan, 2019) GR: A duplicate is admissible to the same extent as
an original.
NOTE: When the truth of the document is in issue
and not the contents thereof, the original document XPN:
rule is not applicable. In such case, it is the hearsay
rule that will apply. (Riano, 2016) Where the issue 1. A genuine question is raised as to the
is the execution or existence of the document or authenticity of the original; or
the circumstances surrounding its execution, the 2. In the circumstances, it is unjust or
original document rule does not apply and inequitable to admit the duplicate in lieu of
testimonial evidence is admissible. (Arceo, Jr. v. the original. (Sec. 4, Rule 130, 2019
People, G.R. No. 142641, July 17, 2006) Amendments to the Revised Rules on
Evidence)
Subject of inquiry
NOTE: Writings with identical contents made
When the original document rule comes into by printing, mimeographing, lithography and
operation, it is presumed that the subject of the other similar methods executed at the same
inquiry is the contents of the document, thus the time are considered as original document.
party offering the document must present the Thus, each newspaper sold in the stand is an
original thereof and not any other secondary original. (Riano, 2016)
evidence.
Production of the original may be dispensed with
Collateral Facts Rule if, in the trial court’s discretion, the opponent (1)
does not dispute the contents of such document
A document or writing which is merely “collateral” and (2) no other useful purpose will be served by
to the issue involved in the case on trial need not the production. Secondary evidence of the contents
be proved. Where the purpose of presenting a of the writing would be received in evidence if no
document is not to prove its contents, but merely objection was made to its reception. (Estrada v.
to give coherence to, or to make intelligible the Desierto, G.R. No. 146710-15, March 2, 2001)
testimony of a witness regarding a fact
contemporaneous to the writing, the original of the SECONDARY EVIDENCE; SUMMARIES
document need not be presented.
Secondary evidence
MEANING OF ORIGINAL DOCUMENT AND
DUPLICATE Evidence other than the original instrument or
document itself. It is the class of evidence that is
An “original” of a document is either: relevant to the fact in issue, it being first shown
that the primary evidence of the fact is not
1. the document itself; or obtainable. It performs the same functions as that
2. any counterpart intended to have the same of primary evidence. (EDSA Shangri-La Hotel and
effect by a person executive or issuing it.

551
 REMEDIAL LAW
Resort, Inc. v. BF Corporation, G.R. Nos. 145842 & Intentional destruction of the originals by a party
145873, June 27, 2008; Francisco, 1992) who acted in good faith does not preclude the
introduction of secondary evidence of the contents
NOTE: A party must first present to the court proof thereof. (Regalado, 2008)
of loss or other satisfactory explanation for the
non-production of the original instrument. When Proof of loss or destruction
more than one original copy exists, it must appear
that all of them have been lost, destroyed or cannot It may be proved by:
be produced in court before secondary evidence 1. Any person who knew of such fact;
can be given. (Country Bankers Insurance Corp. v. 2. Anyone who, in the judgment of the court,
Lagman, G.R. No. 165487, July 13, 2011) had made sufficient examination in the
places where the document or papers of
The non-production of the original document, similar character are usually kept by the
unless it falls under any of the exceptions in Sec. 3, person in whose custody the document
Rule 130, gives rise to the presumption of was and has been unable to find it; or
suppression of evidence. (De Vera, et al. v. Aguilar, 3. Any person who has made any other
et al. G.R. No. 83377, February 9, 1993) investigation which is sufficient to satisfy
the court that the document is indeed lost.
Requisites before the contents of the original
document may be proved by secondary NOTE: A reasonable probability of its loss is
evidence (laying the basis/laying the predicate) sufficient, and this may be shown by a bona fide
(2000 BAR) and diligent search, fruitlessly made, in places
where it is likely to be found. (Paylago v. Jarabe,
The offeror must prove the following: G.R. No. L-20046, March 27, 1968)

1. The execution or existence of the original All duplicates or counterparts of a lost or destroyed
document; document must be accounted for before using
2. The cause of its unavailability; and copies thereof since all duplicates are parts of the
3. The unavailability of the original is not due writing to be proved. (De Vera, et al. v. Aguilar, et
to bad faith on his or her part. (Sec. 5, Rule al., G.R. No. 83377, February 9, 1993)
130, 2019 Amendments to the Revised Rules
on Evidence) While a marriage certificate is considered the
primary evidence of a marital union, it is not
NOTE: Accordingly, the correct order of proof is as regarded as the sole and exclusive evidence of
follows: existence, execution, loss, and contents. marriage. Jurisprudence teaches that the fact of
This order may be changed if necessary, at the marriage may be proven by relevant evidence
sound discretion of the court. (Citibank, N.A. other than the marriage certificate. Hence, even a
MasterCard v. Teodoro, G.R. No. 150905, September person’s birth certificate may be recognized as
23, 2003) competent evidence of marriage between parents.
(Vda. De Avenido v. Avenido, G.R. No. 173540,
Due execution of the document January 22, 2014)

It may be proved by any of the following means: Order of presentation of secondary evidence

1. By anyone who saw the document Upon proof of its execution and loss of the original
executed or written; document, its contents may be proved by the
2. By evidence of the genuineness of the following, in the order stated:
signature or handwriting of the maker; or
3. By other evidence showing its due 1. By a copy of the original;
execution and authenticity. (Sec. 20, Rule 2. By recital of the contents of the document
132, 2019 Amendments to the Revised Rules in some authentic document; or
on Evidence) 3. By the testimony of witnesses (Sec. 5, Rule
130, 2019 Amendments to the Revised Rules
NOTE: Any other private document need only be on Evidence)
identified as that which it is claimed to be.
Definite Evidentiary Rule
Intentional destruction of original document
Where the law specifically provides for the class
and quantum of secondary evidence to establish

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 Evidence
the contents of a document, or bars secondary The notice may be in the form of a motion
evidence of a lost document, such requirement is for the production of the original, or made
controlling, in an open court in the presence of the
adverse party, or via a subpoena duces
E.g. evidence of a lost notarial will should consist of tecum, provided that the party in custody
a testimony of at least two credible witnesses who of the original has sufficient time to
can clearly and distinctly establish its contents. produce the same. When such party has
(Sec. 6, Rule 76; Regalado, 2008) the original of the writing and does not
voluntarily offer to produce it, secondary
Waiver of the presentation or offer of the evidence may be admitted. (Magdayao v.
original People G.R. No. 162308, November 7, 1994)

The presentation or offer of the original may be 4. That the adverse party failed to produce
waived upon failure to object by the party against the original document despite the
whom the secondary evidence is offered when the reasonable notice. (Sec. 6, Rule 130, 2019
same was presented, as the secondary evidence Amendments to the Revised Rules on
becomes primary evidence. But even if admitted as Evidence)
primary evidence, admissibility of evidence should
not be confused with its probative value. (Heirs of NOTE: A justified refusal or failure of the
Teodoro De la Cruz v. CA, G.R. No. 117384, October adverse party to produce the original
21, 1998) document will not give rise to the
presumption of suppression of evidence,
When original document is in adverse party’s or create an unfavorable inference against
custody or control him. It only authorizes the presentation of
secondary evidence. (Regalado, 2008)
If the document is in the custody or under the
control of adverse party, he or she must have The mere fact that the original of the writing is in
reasonable notice to produce it. If after such notice the custody or control of the party against whom it
and after satisfactory proof of its existence, he fails is offered does not warrant the admission of
to produce the document, secondary evidence may secondary evidence. The offeror must prove that
be presented as in the case of its loss. (Sec. 6, Rule he has done all in his power to secure the best
130, 2019 Amendments to the Revised Rules on evidence by giving notice to the said party to
Evidence) produce the document. (Magdayao v. People G.R.
No. 162308, November 7, 1994; EDSA Shangri-La
Requisites for admissibility of secondary Hotel and Resort, Inc. v. BF Corporation, G.R. Nos.
evidence when the original document is in the 145842 & 145873, June 27, 2008)
custody or control of the adverse party
Q: Paula filed a complaint against Lynette for
1. That the original exists; the recovery of a sum of money based on a
2. That said document is under the custody promissory note executed by the latter. During
or control of the adverse party; the hearing, Paula testified that the original
3. That the proponent of secondary evidence note was with Lynette and the latter would not
has given the adverse party reasonable surrender to Paula the original note which
notice to produce the original document; Lynette kept in a place about one day's trip
and from where she received the notice to produce
the note and despite such notice to produce the
NOTE: No particular form of notice is same within 6 hours from receipt of such
required, to be given to the adverse party, notice, Lynette failed to do so. Paula presented
as long as it fairly appraises the other a copy of the note which was executed at the
party as to what papers are desired. Even same time as the original and with identical
an oral demand in open court for such contents. Over the objection of Lynette, can
production at a reasonable time thereafter Paula present a copy of the promissory note
will suffice. Such notice must, however, be and have it admitted as valid evidence in her
given to the adverse party, or his attorney, favor? Why? (2001 BAR)
even if the document is in the actual
possession of a third person. (Regalado, A: YES. Although the failure of Lynette to produce
2008) the original of the note is excusable since she was
not given reasonable notice, a requirement under
the Rules before secondary evidence may be

553
 REMEDIAL LAW
presented, the copy in possession of Paula is not a are also admissible if presented in court. In
secondary evidence but a duplicate original concrete terms, the source mmust be
because it was executed at the same time as the shown to be original, and not secondary.
original and with identical contents. Hence, being (Ibid.)
an original, the rule on secondary evidence need
not be complied with. (Sec. 6, Rule 130, 2019 3. The fact sought to be established from
Amendments to the Revised Rules on Evidence) them is only the general result of the
whole. (Sec. 7, Rule 130, 2019 Amendments
When the original consists of numerous to the Revised Rules on Evidence)
accounts
NOTE: Voluminous records must be made
When the contents of documents, records, accessible to the adverse party so that the
photographs, or numerous accounts are correctness of the summary of the voluminous
voluminous and cannot be examined in court records may be tested on cross-examination.
without great loss of time, and the fact sought to be (Compaña Maritima v. Allied Free Workers Union, et
established is only the general result of the whole, al., G.R. No. L-28999, May 24, 1977)
the contents of such evidence may be presented in
the form of a chart, summary, or calculation. (Sec. 7, When original document is a public record
Rule 130, 2019 Amendments to the Revised Rules on (2000 BAR)
Evidence)
When the original of document is in the custody of
NOTE: A witness may be allowed to offer a public officer or is recorded in a public office, its
summary of a number of documents, or summary contents may be proved by a certified copy issued
of the contents may be admitted if documents are by the public officer in custody thereof. (Sec. 8, Rule
so voluminous and intricate as to make an 130, 2019 Amendments to the Revised Rules on
examination of all of them impracticable. They may Evidence)
also be presented in the form of charts or
calculations. (Riano, 2019) Proof of the contents if the original document is
a public record
Requisites for the admissibility of secondary
evidence when the original consists of The contents may be proved by:
numerous accounts
1. A certified copy issued by the public officer
1. The original must consist of numerous in custody thereof (Sec. 8, 2019
accounts or other documents; Amendments to the Revised Rules on
2. They cannot be examined in court without Evidence); and
great loss of time or inconvenient 2. Official publication. (Herrera, 1999)
(Riguera, 2020 citing Republic v. Mupas,
G.R. No. 181892, September 8, 2015); NOTE: Public records are generally not to be
removed from the places where they are recorded
NOTE: The court may admit a summary of and kept. Hence, proof of the contents of a
voluminous original documents, in lieu of document which forms part of a public record may
the original documents, if the party has be done by secondary evidence.
shown that the underlying writings are
numerous and that an in-court When a document produced is not offered in
examination of these documents would be evidence
inconvenient. The rule does away with
item-by-item court identification and If the party who calls for the production of a
authentication of voluminous exhibits document does not offer the same in evidence, no
which would only be burdensome and unfavorable inference may be drawn from such
tedious for the parties and the court. failure. This is because a party who calls for the
production of a document is not required to offer it.
However, as a condition precedent to the (Sec. 9, Rule 130, 2019 Amendments to the Revised
admission of a summary of numerous Rules on Evidence)
documents, the proponent must lay a
proper foundation for the admission of the Production of documents under Sec. 9, Rule 130
original documents on which the summary v. Rule 27 (Modes of Discovery)
is based. The proponent must prove that
the source documents being summarized

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 Evidence
SEC. 9, RULE 130 RULE 27 Information generated, sent, received, or stored by
Procured by mere The production of electronic, optical or similar means. (Sec. 1[f], Rule
notice to the adverse document is in the 2, A.M. No. 01-07-01-SC)
party, which is a nature of a mode of
condition precedent for discovery and can be Electronic documents as functional equivalent
the subsequent sought only by proper of paper-based documents
introduction of motion in the trial court
secondary evidence by and is permitted only Whenever a rule of evidence refers to the term of
the proponent. upon good cause shown. writing, document, record, instrument,
memorandum or any other form of writing, such
Presupposes that the Contemplates a term shall be deemed to include an electronic
document to be situation wherein the document. (Sec. 1, Rule 3, A.M. No. 01-07-01-SC)
produced is intended as document is either
evidence for the assumed to be favorable Admissibility
proponent who is to the party in
presumed to have possession thereof or 1. It must comply with the rules on
knowledge of its that the party seeking admissibility prescribed by the Rules of
contents. its production is not Court and related laws; and
sufficiently informed of 2. If must be authenticated in the manner
the contents of the prescribed by these Rules.
same.
Privileged communication
RULES ON ELECTRONIC EVIDENCE
(A.M. No. 01-7-01 SC) The confidential character of a privileged
Effectivity Date: August 1, 2001 communication is not denied solely on the ground
that it is in the form of an electronic document.
ELECTRONIC DOCUMENT (2012 BAR) AND
ELECTRONIC DATA MESSAGE Electronic Data Message vs. Electronic
Document
Electronic document
ELECTRONIC DATA ELECTRONIC
1. Information or the representation of MESSAGE DOCUMENT
information, data, figures, symbols or Information Information or the
other modes of written expression, generated, sent, representation of
described or however represented, by received or stored by information, data,
which a right is established, or an electronic, optical or figures, symbols or
obligation extinguished, or by which a fact similar means. other modes of written
may be proved and affirmed, which is expression, described
received, recorded, transmitted, stored or however
processed, retrieved or produced represented, by which
electronically; and a right is established
2. It includes digitally signed documents and or an obligation
any print-out or output, readable by sight extinguished, or by
or other means, which accurately reflects which a fact may be
the electronic data message or electronic proved and affirmed,
document. (Sec. 1[h], Rule 2, A.M. No. 01- which is received,
07-01-SC) recorded, transmitted,
stored, processed,
For the document to be deemed electronic, it is retrieved or produced
important that it be received, recorded, electronically.
transmitted, stored, processed, retrieved, or It includes digitally
produced electronically. The Rule does not signed documents.
absolutely require that that the electronic
document be initially generated or produced While "data message" has reference to information
electronically. (Riano, 2016) electronically sent, stored or transmitted, it does not
necessarily mean that it will give rise to a right or
Electronic data message extinguish an obligation, unlike an electronic
document. Evident from the law, however, is the
legislative intent to give the two terms the same

555
 REMEDIAL LAW
construction. (MCC Industrial Sales Corporation v. 1. A genuine question is raised as to the
Ssangyong Corporation, G.R. No. 170633, October 17, authenticity of the original; or
2007) 2. In the circumstances, it would be unjust or
inequitable to admit a copy in lieu of the
Related Jurisprudence original. (Sec. 2, Rule 4, A.M. No.01-07-01-
SC)
The terms "electronic data message" and
"electronic document," as defined under the In Maliksi v. COMELEC, G.R. No. 203302, April 11,
Electronic Commerce Act of 2000, do not include 2013, the Supreme Court ruled that the picture
a facsimile transmission. Accordingly, a facsimile images of the ballots are electronic documents that
transmission cannot be considered as electronic are regarded as the equivalents of the original
evidence. It is not the functional equivalent of an official ballots themselves. Citing Vinzons-Chato v.
original under the Best Evidence Rule and is not House of Representatives Electoral Tribunal, the
admissible as electronic evidence. (Torres v. Court held that "the picture images of the ballots,
PAGCOR, G.R. No. 193531, December 14, 2011) as scanned and recorded by the PCOS, are likewise
‘official ballots’ that faithfully capture in electronic
What differentiates an electronic document from a form the votes cast by the voter, as defined by
paper-based document is the manner by which the Section 2(3) of R.A. No. 9369. As such, the printouts
information is processed. By no stretch of the thereof are the functional equivalent of the paper
imagination can a person’s signature affixed ballots filled out by the voters and, thus, may be
manually be considered as information used for purposes of revision of votes in an
electronically received, recorded, transmitted, electoral protest."
stored, processed, retrieved or produced. Hence,
the argument that since the paper printouts were That the two documents—the official ballot and its
produced through an electronic process, then these picture image—are considered "original
photocopies are electronic documents as defined in documents" simply means that both of them are
the Rules on Electronic Evidence is obviously an given equal probative weight. In short, when either
erroneous, if not preposterous, interpretation of is presented as evidence, one is not considered as
the law. (NPC v. Codilla, G.R. No. 170491, April 4, weightier than the other.
2007)
PROBATIVE VALUE OF ELECTRONIC
Original of an electronic document DOCUMENTS OR EVDENTIARY WEIGHT;
METHOD OF PROOF
An electronic document shall be regarded as the
equivalent of an original document under the Best Burden of proving authenticity
Evidence Rule if it is a printout or output readable
by sight or other means, shown to reflect the data The person offering the document has the burden
accurately. (Sec. 1, Rule 4, A.M. No.01-07-01-SC) to prove its authenticity. (Sec. 1, Rule 5, A.M. No.01-
07-01-SC)
Copies as equivalents of the originals
Evidentiary weight of electronic documents;
GR: Copies or duplicates shall be regarded as the Factors for assessing evidentiary weight
equivalent of the original when:
1. The reliability of the manner or method in
1. A document is in two or more copies which it was generated, stored or
executed at or about the same time with communicated, including but not limited
identical contents; or to input and output procedures, controls,
2. It is a counterpart produced by the same tests and checks for accuracy and
impression as the original, or from the reliability of the electronic data message
same matrix, or by mechanical or or document, in the light of all the
electronic re-recording, or by chemical circumstances as well as any relevant
reproduction, or by other equivalent agreement;
techniques which are accurately 2. The reliability of the manner in which its
reproduces the original. (Sec. 2, Rule 4, A.M. originator was identified;
No.01-07-01-SC) 3. The integrity of the information and
communication system in which it is
XPNs: recorded or stored, including but not
limited to the hardware and computer

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 Evidence
programs or software used as well as Manner of authentication of electronic
programming errors; documents
4. The familiarity of the witness or the
person who made the entry with the 1. By evidence that it had been digitally
communication and information system; signed by the person purported to have
5. The nature and quality of the information signed the same;
which went into the communication and 2. By evidence that other appropriate
information system upon which the security procedures or devices as may be
electronic data message or electronic authorized by the Supreme Court or by
document was based; or law for authentication of electronic
6. Other factors which the court may documents were applied to the document;
consider as affecting the accuracy or or
integrity of the electronic document or 3. By other evidence showing its integrity
electronic data message. (Sec. 1, Rule 7, and reliability to the satisfaction of the
A.M. No.01-07-01-SC) judge. (Sec. 2, Rule 5, A.M. No.01-07-01-SC)

Affidavit of evidence NOTE: The above-mentioned requirements will
only apply when the document is a private
All matters relating to the admissibility and document and the same is offered as an authentic
evidentiary weight of an electronic document may document. (Riano, 2016)
be established by an affidavit stating facts of direct
personal knowledge of the affiant or based on Manner of authentication of electronic
authentic records. The affidavit must affirmatively signatures
show the competence of the affiant to testify on the
matters contained therein. (Sec. 1, Rule 9, A.M. 1. By evidence that a method or process was
No.01-07-01-SC) utilized to establish a digital signature and
verify the same;
NOTE: Cross-examination of the deponent is 2. By any other means provided by law; or
allowed as a matter of right by the adverse party. 3. By any other means satisfactory to the
(Sec. 2, Rule 9, A.M. No.01-07-01-SC) judge as establishing the genuineness of
the electronic signature. (Sec. 2, Rule 6,
ELECTONIC DOCCUMENTS AND THE HEARSAY A.M. No.01-07-01-SC)
RULE
AUDIO, PHOTOGRAPHIC, VIDEO AND
Inapplicability of the hearsay rule EPHEMERAL EVIDENCE

A memorandum, report, record or data compilation Audio, video, and similar evidence
of acts, events, conditions, opinions, or diagnoses,
made by electronic, optical or other similar means Audio, photographic and video evidence of events,
at or near the time of or from transmission or acts or transactions shall be admissible provided it
supply of information by a person with knowledge shall be shown, presented or displayed to the court
thereof, and kept in the regular course or conduct and shall be identified, explained or authenticated
of a business activity, and such was the regular by the person who made the recording or by some
practice to make the memorandum, report, record, other person competent to testify on its accuracy.
or data compilation by electronic, optical or similar (Sec. 1, Rule 11, A.M. No.01-07-01-SC)
means, all of which are shown by the testimony of
the custodian or other qualified witnesses, is Ephemeral electronic communication
excepted from the rule on hearsay evidence. (Sec. 1,
Rule 8, A.M. No.01-07-01-SC) Telephone conversations, text messages, chatroom
sessions, streaming audio, streaming video, and
NOTE; The presumption provided for in Sec. 1, other electronic forms of communication the
Rule 8 may be overcome by evidence of the evidence of which is not recorded or retained. (Sec.
untrustworthiness of the source of information or 1[k], Rule 2, A.M. No.01-07-01-SC)
the method or circumstances of the preparation,
transmission or storage. (Sec. 2, Rule 8, A.M. No.01- Under Section 2, Rule 11 of the Rules on Electronic
07-01-SC) Evidence, ephemeral electronic communications
shall be proven by the testimony of a person who
AUTHENTICATION OF ELECTRONIC was a party to the same or who has personal
DOCUMENTS AND ELECTRONIC SIGNATURES knowledge thereof. In this case, complainant who

557
 REMEDIAL LAW
was the recipient of said messages and therefore When the parties have reduced their agreement in
had personal knowledge thereof testified on their writing it is presumed that they made such writing
contents and import. Respondent herself admitted as the repository of all terms of the agreement, and
that the cellphone number reflected in whatever is not found in the said writing must be
complainant’s cellphone from which the messages considered as waived and abandoned. (Tan, 2010)
originated was hers. Moreover, any doubt
respondent may have had as to the admissibility of Condition precedent and a condition
the text messages had been laid to rest when she subsequent established by parol evidence
and her counsel signed and attested to the veracity
of the text messages between her and complainant. Condition precedent may be established by parol
It is also well to remember that in administrative evidence because there is no varying of the terms
cases, technical rules of procedure and evidence of the written contract by extrinsic agreement
are not strictly applied. There is no doubt as to the because there is no contract in existence. There is
probative value of the text messages as evidence in nothing in which to apply the excluding rule.
determining the guilt or lack thereof of respondent. Conditions subsequent may not be established by
(Nuez v. Cruz-Apao, A.M. No. CA-05-18-P, April 12, parol evidence since a written contract already
2005; Vidallon-Magtolis v. Salud, A.M. No. CA-05-20- exists.
P, Septembeer 9, 2005)
NOTE: The present rule now requires that the
By analogy, a deleted Facebook post may be admissibility of subsequent agreements be
admitted as an ephemeral electronic conditioned upon its being put in issue. (Sec. 10,
communication subject to the exclusionary rule of Rule 130, 2019 Amendments to the Revised Rules on
whether it was illegally obtained or not. Evidence)

PAROL EVIDENCE RULE APPLICATION OF THE PAROL EVIDENCE RULE

MEANING OF THE RULE Requisites for the application of the rule

When the terms of an agreement have been 1. There must be a valid contract;
reduced to writing, it is considered as containing 2. The terms of the agreement must be
all the terms agreed upon and there can be, as reduced to writing. The term “agreement”
between the parties and their successors-in- includes wills;
interest, no evidence of such terms other than the 3. The dispute is between the parties or their
contents of the written agreement. (Sec. 10, Rule successors-in-interest; and
130, 2019 Amendments to the Revised Rules on 4. There is dispute as to the terms of the
Evidence) agreement.

NOTE: Among the evidentiary rules, it is the parol Parties should be privies to the contract
evidence rule that has direct application to the law
on contracts. The rule applies only to contracts The parol evidence rule does not apply, and may
which the parties have decided to set forth in not be properly invoked, by either party to the
writing. Hence, parol evidence does not apply to litigation against the other, where at least one
oral contracts. (Riano, 2016) party to the suit is not a party or privy of a party to
the written instrument in question and does not
Parol evidence base a claim or assert a right originating in the
instrument of the relation established thereby.
It is any evidence aliunde (extrinsic evidence) Thus, if one of the parties to the case is a complete
which is intended or tends to vary or contradict a stranger to the contract involved therein, he is not
complete and enforceable agreement embodied in bound by this rule and can introduce extrinsic
a document (Regalado, 2008). It may refer to evidence against the efficacy of the writing.
testimonial, real or documentary evidence. (Lechugas v. CA, et al., G.R. Nos. L-39972 & L-40300,
August 6, 1986)
NOTE: Parol evidence is evidence outside of the
agreement of the parties while the parol evidence Application of the rule to wills
rule prevents the presentation of such parol
evidence. The parol evidence rule applies to agreements, i.e.,
contractual obligations. However, the term
Rationale for the adoption of the parol evidence “agreement” includes wills. Therefore, there can be
rule (2009 BAR) no evidence of the terms of the will other than the

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 Evidence
contents of the will itself. (Riano, 2016) meaning
uncertain.
NOTE: While parol evidence applies to wills, an
express trust concerning an immovable or any
interest therein may not be proved by parol Curable by Cannot be Curable by
evidence. (Art. 1443, Civil Code of the Philippines) evidence cured by evidence
aliunde. evidence aliunde.
WHEN PAROL EVIDENCE CAN BE INTRODUCED aliunde
because it is
Exceptions to Parol Evidence Rule only intrinsic
ambiguity not
A party may present evidence to modify, explain or extrinsic
add to the terms of the written agreement if he or ambiguity
she puts in issue in a verified pleading the which serves
following: (FIVE) as an
exception to
1. Failure of the written agreement to the parol
express the true intent of the parties evidence rule.
thereto (2001 BAR); Where the Where the Use of terms
2. Intrinsic ambiguity, mistake or document contract such as “dollars”
imperfection in the written agreement; refers to a refers to an “tons” and
3. Validity of the written agreement; or particular unidentified “ounces.”
4. Existence of other terms agreed to by the person or grantee or
parties or their successors in interest after thing but does not
the execution of the written agreement. there are two particularly
(Sec. 10, Rule 130, 2019 Amendments to the or more identify the
Revised Rules on Evidence) persons subject matter
having the thereof such
Mistake same name or that, in either
two or more case the text
The mistake contemplated is one which is a things to does not
mistake of fact mutual to both parties. (Bernardo, which the disclose who
2008, citing Gurango vs. IAC, G.R. No. 75290, description in are or what is
November 4, 1992) the writing referred to.
may apply.
Even when a document appears on its face to be a
sale, the owner of the property may prove that the Failure of the written agreement to express
contract is really a loan with mortgage by raising as true intent of the parties
an issue the fact that the document does not
express the true intent of the parties. In this case, Parol evidence may be admitted to show the true
parol evidence then becomes competent and consideration of the contract, or the want or
admissible to prove that the instrument was in illegality thereof, or the incapacity of the parties, or
truth and in fact given merely as a security for the the fact that the contract was fictitious or
repayment of a loan. (Madrigal v. CA, G.R. No. absolutely simulated, or that there was fraud in
142944. April 15, 2005) inducement (Regalado, 2008). Despite the meeting
of the minds, the true agreement of the parties is
Kinds of ambiguities not reflected in the instrument. (Riano, 2016)

INTRINSIC EXTRINSIC INTERMEDIATE NOTE: In an action for reformation of instrument
OR LATENT OR PATENT under Art. 1359 of the Civil Code of the Philippines,
On its face, the Ambiguity is Ambiguity the plaintiff may introduce parol evidence to show
writing apparent on consists in the the real intention of the parties. An action for
appears clear the face of the use of equivocal reformation presupposes that a meeting of the
and writing and words minds exists between the parties, i.e., there is a
unambiguous requires that susceptible of contract between them although the instrument
but there are something be two or more that evidences the contract does not reflect the
collateral added to make interpretation. true agreement of the parties by reason of, for
matters which the meaning instance, fraud or mistake. (Riano, 2016)
make the certain.

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 REMEDIAL LAW
Q: Paula filed a complaint against Lynette for Can be invoked by any Can be invoked only
the recovery of a sum of money based on a party to an action when the controversy is
promissory note executed by the latter. Paula whether he has between the parties to
alleged in her complaint that although the participated in the the written agreement,
promissory note says that it is payable within writing involved their privies, or any
120 days, the truth is that the note is payable party affected thereby
immediately after 90 days but that if Paula is like a cestui que trust
willing, she may, upon request of Lynette give
the latter up to 120 days to pay the note. During Waiver of the parol evidence rule
the hearing, Paula testified that the truth is that
the agreement between her and Lynette is for Failure to invoke the benefits of the rule
the latter to pay immediately after 90 days constitutes as waiver of the rule. Inadmissible
time. Also, since the original note was with evidence may be rendered admissible by failure to
Lynette and the latter would not surrender to object. (Riano, 2016)
Paula the original note which Lynette kept in a
place about one day's trip from where she Probative value
received the notice to produce the note and in
spite of such notice to produce the same within Even if the parol evidence is admitted, it does not
6 hours from receipt of such notice, Lynette mean that the court would give probative value to
failed to do so. Paula presented a copy of the the parol evidence. Admissibility is not the
note which was executed at the same time as equivalent of probative value or credibility. (Riano,
the original and with identical contents. Over 2016)
the objection of Lynette, will Paula be allowed
to testify as to the true agreement or contents Considering the agreement’s mistake, imperfection
of the promissory note? Why? (2001 BAR) or supposed failure to express the parties’ true
intent was successfully put in issue in the
A: YES. As an exception to the parol evidence rule, complaint, this case falls under the exceptions
a party may present evidence to modify, explain or provided by Sec 9, Rule 130. Accordingly, the
add to the terms of the written agreement if he testimonial and documentary parol evidence
puts in issue in his pleading the failure of the sought to be introduced, which attest to these
written agreement to express the true intent and supposed flaws and what they aver to have been
agreement of the parties thereto. Here, Paula has the parties’ true intent, may be admitted and
alleged in her complaint that the promissory note considered. However, this admission and
does not express the true intent and agreement of availability for consideration is no guarantee of
the parties. The parol evidence rule may be how exactly the parol evidence adduced shall be
admitted to show the true consideration of the appreciated by the court. They do not guarantee
contract. (Sec. 10, Rule 130, 2019 Amendments to the probative value, if any, that shall be attached to
the Revised Rules on Evidence) them. (Paras v. Kimwa Construction and
Development Corp., G.R. No. 171601, April 8, 2015)
DISTINCTIONS BETWEEN
THE ORIGINAL DOCUMENT RULE AND AUTHENTICATION AND PROOF OF DOCUMENTS
THE PAROL EVIDENCE RULE
MEANING OF AUTHENTICATION
ORIGINAL DOCUMENT PAROL EVIDENCE
RULE RULE It is the process of proving the due execution and
The original document is Presupposes that the genuineness of a document.
not available or there is original document is
a dispute as to whether available in court NOTE: Not only objects but also documents
said writing is original introduced in evidence need to be authenticated. It
Prohibits the Prohibits the varying of is a preliminary step in showing the admissibility
introduction of the terms of a written of an evidence. (Riano, 2016)
secondary evidence in agreement
lieu of the original When authentication is NOT required
document regardless of
whether it varies the 1. The writing is an ancient document (Sec.
contents of the original 21, Rule 132);
Applies to all kinds of Applies only to written 2. The writing is a public document or record
writings agreements (contracts) (Sec. 19, Rule 132);
and wills

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 Evidence
NOTE: A private document required by law to 3. Documents that are
be recorded, while it is transformed into a considered public
public document by the “public record” documents under
thereof, is not included in this enumeration. treaties and
Such recording does not make the private conventions which
writing itself a public document so as to make are in force
it admissible without authentication, e,g. birth between the
certificate recorded in the NSO is a public Philippines and the
record, but it is still a private document. country of source;
(Peralta & Peralta, 2020, citing Herrera) and
4. Public records, kept
3. The writing is a notarial document in the Philippines, of
acknowledged, proved or certified (Sec. 30, private documents
Rule 132); required by law to
4. The genuineness and authenticity of an be entered therein.
actionable document have not been (Sec. 19, Rule 132,
specifically denied under oath by an 2019 Amendments
adverse party (Sec 8, Rule 8, 2019 to the Revised Rules
Amendments to the Revised Rules on on Evidence)
Evidence); As to authenticity and admissibility as evidence
5. When such genuineness and due execution Admissible as evidence Before any private
are immaterial to the issue; without need of further document offered as
6. The genuineness and authenticity of the proof of its genuineness authentic is received in
document have been admitted (Sec 4, Rule and due execution evidence, its due
129, 2019 Amendments to the Revised Rules execution and
on Evidence); and authenticity must first
7. The document is not being offered as be proved.
genuine. (Sec. 20, Rule 132, 2019
Amendments to the Revised Rules on As to persons bound
Evidence) Evidence even against Binds only the parties
third persons, of the fact who executed them or
CLASSES OF DOCUMENTS which gave rise to its their privies, insofar as
due execution and to due execution and date
For purposes of their presentation in evidence, the date of the latter of the document are
documents are either public or private. (Sec. 19, concerned
Rule 132, 2019 Amendments to the Revised Rules on As to validity of certain transactions
Evidence) Certain transactions
must be contained in a
Public document vs. Private document public document;
otherwise they will not
PUBLIC DOCUMENT PRIVATE DOCUMENT be given any validity.
What comprises it
1. The written official All other writings are NOTE: Church registries of births, marriages and
acts, or records of private. (Sec. 19, Rule deaths are no longer public writings nor are they
the official acts of 132, 2019 Amendments kept by duly authorized public officials. They are
the sovereign to the Revised Rules on private writings and their authenticity must
authority, official Evidence) therefore be proved, as are all other private
bodies and writings in accordance with the rules. (Llemos v.
tribunals, and Llemos, G.R. No. 150162, January 26, 2007)
public officers,
whether of the WHEN A PRIVATE WRITING REQUIRES
Philippines, or of a AUTHENTICATION; PROOF OF A PRIVATE
foreign country; WRITING
2. Documents
acknowledged How to prove the due execution and
before a notary authenticity of a private document
public except last
wills and Before any private document offered as authentic
testaments;

561
 REMEDIAL LAW
is received in evidence, its due execution and NOTE: Ancient documents are considered
authenticity must be proved by any of the from proper custody if they come from a
following means: place from which they might reasonably
be expected to be found. Custody is proper
1. By anyone who saw the document if it is proved to have had a legitimate
executed or written; origin or if the circumstances of the
2. By evidence of the genuineness of the particular case are such as to render such
signature or handwriting of the maker; or an origin probable. If a document is found
3. By other evidence showing its due where it would not properly and natural
execution and authenticity, be, its absence from the proper place must
be satisfactorly accounted for.
Any other private document need only be
identified as that which it is claimed to be. (Sec. 20, The requirement of proper custody was
Rule 132, 2019 Amendments to the Revised Rules on met when the ancient document in
Evidence) question was presented in court by the
proper custodian thereof who is an heir or
Related jurisprudence the person who woul naturally keep it.
(Cerado-Siga v. Cerado, Jr., G.R. No. 185374,
In addition to the modes of authenticating a private March 11, 2015)
document under Sec. 20, Rule 132 of the 2019
Amendments to the Revised Rules on Evidence, 3. That it is unblemished by any alteration or
American jurisprudence also recognizes the circumstances of suspicion. (Sec. 21, Rule
doctrine of self-authentication – where the facts 132, 2019 Amendments to the Revised Rules
in writing could only have been known by the on Evidence)
writer; and the rule of authentication by the
adverse party – where the reply of the adverse NOTE: This rule applies only if there are no other
party refers to and affirms the sending to him and witnesses to determine authenticity.
his receipt of the letter in question, a copy of which
the proponent is offering as evidence. (Regalado, GENUINENESS OF HANDWRITING
2008)
Handwriting may be proved by:
WHEN EVIDENCE OF AUTHENTICITY OF A
PRIVATE WRITING IS NOT REQUIRED 1. A witness who actually saw the person
writing the instrument;
1. When the private document is more than 2. A person who is familiar or has acquired
thirty (30) years old (ancient knowledge of the handwriting of such
document/authentic document rule) person, his opinion as to the handwriting
(Sec. 21, Rule 132, 2019 Amendments to the being an exception to the opinion rule;
Revised Rules on Evidence); 3. A comparison by the court of the
2. When the genuineness and authenticity of questioned handwriting from the admitted
an actionable document have not been genuine specimens thereof; or
specifically denied under oath by the 4. An expert witness. (Secs. 20 & 22, Rule 132;
adverse party; Sec. 52, Rule 130, 2019 Amendments to the
3. When the genuineness and authenticity of Revised Rules on Evidence)
the document have been admitted; and
4. When the document is not offered as NOTE: The law makes no preference, much less
authentic as implied. (Patula v. People, G.R. distinction among and between the different
No. 164457, April 11, 2012) means stated above in proving the handwriting of a
person. Courts are not bound to give probative
Requisites of ancient document/authentic value or evidentiary value to the opinions of
document rule (2011 BAR) handwriting experts, as resort to handwriting
experts is not mandatory. (Heirs of Salud v. Rural
1. That the private document be more than Bank of Salinas, G.R. No. 202756, April 6, 2016)
30 years old;
2. That it be produced from a custody in Comparison as a mode of authentication
which it would naturally be found if
genuine; and Use of comparison technique to establish
authenticity actually involves two (2) levels of
authentication, i.e., authentication of the specimen

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 Evidence
and authentication of the offered exhibit. In order NOTE: Public or official records of entries made in
to establish the requisite connective relevance, the excess of official duty are not admissible in
item or document in question must be compared evidence. As to matters which the officer is not
with an item the authenticity of which has been bound to record, his certificate, being extrajudicial,
demonstrated. Authenticity of the specimen, then, is merely the statement of a private person.
is a logical prerequisite to the procedure. (Peralta
& Peralta, 2020) Related jurisprudence

The testimony of a handwriting expert is not The CENRO and Regional Technical Director, FMS-
indispensable to the examination or the DENR, certifications do not fall within the class of
comparison of handwritings in cases of forgery. public documents contemplated in the first
The judge must conduct an examination of the sentence of Section 23 of Rule 132. The
questioned signature in order to arrive at a certifications do not reflect entries in public
reasonable conclusion as to its authenticity. The records made in the performance of a duty by a
opinions of handwriting experts are not binding public officer, such as entries made by the Civil
upon courts, especially when the question involved Registrar in the books of registries, or by a ship
is mere handwriting similarity or dissimilarity, captain in the ships logbook. The certifications are
which can be determined by a visual comparison of conclusions unsupported by adequate proof, and
specimens of the questioned signatures with those thus have no probative value. Certainly, the
of the currently existing ones. (Pontaoe v. Pontaoe, certifications cannot be considered prima facie
G.R. Nos. 159585 & 165318, April 22, 2008) evidence of the facts stated therein. (Republic v.
T.A.N. Properties Inc., G.R. No. 154953, June 26,
It is also hornbook doctrine that the opinions of 2008)
handwriting experts, even those from the NBI and
the PC, are not binding upon courts. This principle Q: G&S Transportation submits that the USAID
holds true especially when the question involved is Certification being a private document cannot
mere handwriting similarity or dissimilarity, which be admitted as evidence since it is inadmissible
can be determined by a visual comparison of and was not properly authenticated nor
specimens of the questioned signatures with those identified in court by the signatory thereof. The
of the currently existing ones. (Multi-International opposing party contends that the USAID
Business Data System, Inc. v. Martinez, G.R. No. Certification is a public document and was
175378, November 11, 2015) properly admitted in evidence, because Jose
Marcial’s widow, witness Ruby Bueno Ochoa,
Handwriting experts are usually helpful in the was able to competently testify as to the
examination of forged documents because of the authenticity and due execution of the said
technical procedure involved in analyzing them. Certification and that the signatory Jonas Cruz
But resort to these experts is not mandatory or personally issued and handed the same to her.
indispensable to the examination or the The court ruled that the USAID Certification is a
comparison of handwriting. A finding of forgery public document. Is the court’s ruling correct?
does not depend entirely on the testimonies of
handwriting experts, because the judge must A: YES. The USAID Certification is a public
conduct an independent examination of the document, hence, does not require authentication.
questioned signature in order to arrive at a Sec. 19 (a), Rule 132 of the Rules of Court provides
reasonable conclusion as to its authenticity. (Ibid.) that public documents are the written official acts,
or records of the official acts of the sovereign
PUBLIC DOCUMENTS AS EVIDENCE authority, official bodies and tribunals, and public
officers, whether of the Philippines, or of a foreign
Public documents as evidence country.

When a public officer in the performance of his or Here, USAID is an official government agency of a
her duty makes an entry in the public record, the foreign country, the United States. The authenticity
document of such entry is deemed prima facie and due execution of said Certification are already
evidence of the facts stated in the entry. (Sec. 24, presumed. The USAID Certification could very well
Rule 132, 2019 Amendments to the Revised Rules on be used as basis for the award for loss of income to
Evidence) Its probative value may either be the heirs. (Heirs of Jose Marcial Ochoa v. G & S
substantiated or nullified by other competent Transport Corporation, G.R. No. 170071, July 16,
evidence. 2012)

PROOF OF OFFICIAL RECORD

563
 REMEDIAL LAW
Official records are written official acts, or records equivalent being prima facie evidence of the due
of the official acts of the sovereign authority, execution and genuineness of the document
official bodies and tribunals, and public officers, involved. The certificate shall not be required when
e.g. a written foreign law. Official records may be or convention between a foreign country and the
evidenced by: Philippines has abolished the requirement or has
exempted the document itself from this formality.
1. If it is within the Philippines:
NOTE: Upon failure to comply with the above-
a. An official publication thereof; or mentioned requirements, courts will apply the
b. By a copy attested by the officer doctrine of processual presumption.
having the legal custody of the record,
or by his deputy. (Sec. 24, Rule 132, Q: Ellen Harper and her son, Jonathan Harper
2019 Amendments to the Revised Rules filed a case for damages against Shangri-La
on Evidence) Hotel and Resort, Inc. for the death of Christian
Harper. To prove heirship of the plaintiffs-
2. If the office in which the record is kept is in appellees, they presented several documents
a foreign country, (Birth Certificates, Marriage Certificate, and
Certificate from the Oslo Probate Court) which
a. An official publication thereof; or were all kept in Norway. The documents had
b. By a copy attested by the officer been authenticated by the Royal Norwegian
having the legal custody of the record, Ministry of Foreign Affairs and bore the official
or by his deputy AND a certificate that seal of the Ministry and signature of one Tanja
such officer has the custody. (Apostille Sorlie. The documents were also accompanied
Certificate or its equivalent) (Sec. 24, by an Authentication by the Consul, Embassy of
Rule 132, 2019 Amendments to the the Republic of the Philippines in Stockholm,
Revised Rules on Evidence) Sweden to the effect that, Tanja Sorlie was duly
authorized to legalize official documents for the
NOTE: If the office in which the record Ministry. Shangri-La Hotel however, questioned
is kept is in a foreign country, which is their filiation with the deceased assailing that
a contracting party to a treaty or the documents presented were incompetent for
convention to which the Philippines is failing to comply with the requirement of
also a party, or considered a public authentication. Is the contention correct?
document under such treaty or
convention pursuant to paragraph (c) A: NO. Although the documents were not attested
of Section 19, the certificate or its by the officer having the legal custody of the record
equivalent shall be in the form or by his deputy in the manner required in Section
prescribed by such treaty or 25 of Rule 132, and said documents did not comply
convention subject to reciprocity with the requirement under Section 24 of Rule 132
granted to public documents to the effect that if the record was not kept in the
originating from the Philippines. Philippines a certificate of the person having
custody must accompany the copy of the document
For documents originating from a that was duly attested stating that such person had
foreign country which is not a custody of the documents, the deviation was not
contracting party to a treaty or enough reason to reject the utility of the
convention, the certificate may be documents for the purposes they were intended to
made by a secretary of the embassy or serve.
legation, consul general, consul, vice-
consul, or consular agent or by any That rules of procedure may be mandatory in form
officer in the foreign service of the and application does not forbid a showing of
Philippines stationed in the foreign substantial compliance under justifiable
country in which the record is kept, circumstances, because substantial compliance
and authenticated by the seal of his or does not equate to a disregard of basic rules. For
her office. (Sec. 24, Rule 132, 2019 sure, substantial compliance and strict adherence
Amendments to the Revised Rules on are not always incompatible and do not always
Evidence) clash in discord. (Makati Shangri-La Hotel and
Resort, Inc. v. Harper, G.R. No. 189998, August 29,
A document that is accompanied by a certificate or 2012)
its equivalent may be presented in evidence
without further proof, the certificate or its

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 Evidence
Special power of attorney executed abroad written statement must contain the following
(2011 BAR) matters:

A special power of attorney (SPA) executed before 1. There has been a diligent search of the
a city judge-public notary in a foreign country, record; and
without the certification or authentication required 2. That despite the diligent search, no record
under Section 25, Rule 132 of the Rules of Court, is of entry of a specified tenor is found to
not admissible in evidence in Philippine courts. exist in the records of his office.
The failure to have the SPA authenticated is not a
mere technicality but a question of jurisdiction. NOTE: The written statement must be
(Riano, 2016 citing Lopez v. CA, G.R. No. 77008, accompanied by a certificate that such officer has
December 29, 1987) the custody of official records. (Sec. 28, Rule 132,
2019 Amendments to the Revised Rules on Evidence)
Irremovability of public records (2003 BAR)

GR: Any public record must not be removed from The certification to be issued by the Local Cvil
the office in which it is kept. Registrar must ctegorically state that the document
does not exist in his or her office or the particular
XPN: Upon order of a court where the inspection of entry could not be found in the register despite
the record is essential to the just determination of diligent search. (Sevilla v. Cardenas, G.R. No.
a pending case. (Sec. 26, Rule 132, 2019 167684, July 31, 2006)
Amendments to the Revised Rules on Evidence)
HOW A JUDICIAL RECORD IS IMPEACHED
REASON: They have a common repository, from
where they ought not to be removed. Besides, these Impeachment of a judicial record (2009 BAR)
records by being daily removed would be in great
danger of being lost. Any judicial record may be impeached by: (WCF)

ATTESTATION OF A COPY 1. Want of jurisdiction in the court or judicial
officer;
The attestation must state, in substance: 2. Collusion between the parties (e.g. legal
separation, annulment cases); or
1. That the copy is a correct copy of the 3. Fraud in the party offering the record, in
original, or a specific part thereof, as the respect to the proceedings. (Sec. 29, Rule
case may be; and 132, 2019 Amendments to the Revised Rules
2. It must be under the official seal of the on Evidence)
attesting officer, if there be any, or if he be
the clerk of a court having a seal, under the NOTE: Fraud refers to extrinsic fraud, which is a
seal of such court. (Sec. 25, Rule 132, 2019 ground for annulment of judgment.
Amendments to the Revised Rules on
Evidence) Q: Lino was charged with illegal possession of
firearm. During trial, the prosecution
PUBLIC RECORD OF A PRIVATE DOCUMENT presented in evidence a certification of the PNP
Firearms and Explosives Office attesting that
Proof of public record of a private document the accused had no license to carry any firearm.
The certifying officer, however, was not
1. By the original record; or presented as a witness. Is the certification of
2. By a copy thereof, attested by the legal the PNP Firearm and Explosives Office without
custodian of the record, with an the certifying officer testifying on it admissible
appropriate certificate that such officer in evidence against Lino? (2003 BAR)
has the custody. (Sec. 27, Rule 132, 2019
Amendments to the Revised Rules on A: YES. Section 28, Rule 130 provides that “a
Evidence) written statement signed by an officer having the
custody of an official record or by his deputy that
PROOF OF LACK OF RECORD after diligent search, no record or entry of a
specified tenor is found to exist in the records of
Proof of lack of record of a document consists of his office, accompanied by a certificate as above
written statement signed by an officer having provided, is admissible as evidence that the
custody of an official record or by his deputy. The

565
 REMEDIAL LAW
records of his office contain no such record or what they referred as salary above the minimum
entry.” required by law. The employer’s mere reliance on
the foregoing affidavit is misplaced because the
The records of the PNP Firearm and Explosives requirement of established jurisprudence is for the
Office are a public record. Hence, notwithstanding employer to prove payment, and not merely deny
that the certifying officer was not presented as a the employee’s accusation of nonpayment on the
witness for the prosecution, the certification he basis of the latter’s own declaration (Etom Jr. v.
made is admissible in evidence against Lino. (Sec. Aroma Lodging House, G.R. No. 192955. November 9,
28, Rule 130; Mallari v. Court of Appeals, G.R. No. 2015).
110569, December 9, 1996; Valeroso v. People, G.R.
No. 164815, February 22, 2008) ALTERATIONS IN A DOCUMENT

PROOF OF NOTARIAL DOCUMENTS A party producing a document as genuine which
has been altered and appears to have been altered
Notarial documents after its execution must account for the alteration.
He or she may show that the alteration: (ACID)
Documents acknowledged before a notary public is
considered a public document and enjoy the 1. Was made by another, without his
presumption of regularity. A notarized document is concurrence;
entitled to full faith and credit upon its face. 2. Was made with the consent of the parties
affected by it;
The document may be presented in evidence 3. Was otherwise properly or innocently
without further proof, the certificate of made; or
acknowledgment being prima facie evidence of the 4. Did not change the meaning or language of
execution of the instrument or document involved. the instrument.
(Sec. 30, Rule 132, 2019 Amendments to the Revised
Rules on Evidence) NOTE: Failure to do at least one of the above will
make the document inadmissible in evidence. (Sec.
Evidentiary weight of a notarial document 31, Rule 132)

A notarial document celebrated with all the legal DOCUMENTARY EVIDENCE
requisites under a notarial certificate is evidence of IN AN UNOFFICIAL LANGUAGE
a high character, and to overcome its recitals, it is
incumbent upon the party challenging it to prove Documents written in an unofficial language shall
his claim with clear and convincing evidence. not be admitted as evidence unless accompanied
with a translation into English or Filipino. (Sec. 33,
Q: Etom, Jr. filed a case for illegal dismissal and Rule 132, 2019 Amendments to the Revised Rules on
money claims against his employer Aroma Evidence)
Lodging House. The Labor Arbiter and NLRC
found him to have been legally dismissed but The requirement that documents written in an
ordered the employer to pay punitive damages, unofficial language must be accompanied with a
salary differential, holiday pay and 13th month translation in English or Filipino as a prerequisite
pay. CA reversed the ruling stating that for for its admission in evidence must be insisted upon
having executed an earlier notarized affidavit by the parties at the trial to enable the court, where
stating that he received wages above the a translation has been impugned as incorrect, to
required minimum salary, Etom, Jr. could not decide the issue. Where such document, not so
subsequently claim that he was underpaid by accompanied with a translation in English or
his employer. Is the presumption of regularity Filipino, is offered in evidence and not objected to,
of notarized documents disputable? either by the parties or the court, it must be
presumed that the language in which the document
A: YES. While a notarized document is presumed to is written is understood by all, and the document is
be regular, such presumption is not absolute and admissible in evidence. (Heirs of Doronio v. Heirs of
may be overcome by clear and convincing evidence Doronio, G.R. No. 169454, December 27, 2007)
to the contrary. The fact that a document is
notarized is not a guarantee of the validity of its INTERPRETATION OF DOCUMENTS
contents. Here, Etom, Jr. is an unlettered employee
who may not have understood the full import of his How interpreted
statements in the affidavit. Notably, he, along with
a co-worker did not state the specific amount of

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 Evidence
The language of a writing is to be interpreted Rule 130, 2019 Amendments to the Revised
according to the legal meaning it bears in the place Rules on Evidence)
of its execution, unless the parties intended
otherwise. (Sec. 11, Rule 130, 2019 Amendments to Conflict between written and printed
the Revised Rules on Evidence)
When an instrument consists partly of written
When there are several provisions or words and partly of a printed form, and the two are
particulars inconsistent, the written controls the printed form.
(Sec. 16, Rule 130, 2019 Amendments to the Revised
In the construction of an instrument, where there Rules on Evidence)
are several provisions or particulars, such a
construction is, if possible, to be adopted as will When the character of writing is difficult to
give effect to all. (Sec. 12, Rule 130, 2019 decipher
Amendments to the Revised Rules on Evidence)
When the characters in which an instrument is
Conflict between general and particular written are difficult to be deciphered, or the
provision language is not understood by the court, it can be
proved by evidence of:
When a general and a particular provision are
inconsistent, the following rules shall be followed: 1. Persons skilled in deciphering the
characters; or
1. The particular provision is paramount to 2. Those who understand the language, is
the general; admissible to declare the characters or the
2. A particular intent will control a general meaning of the language. (Sec. 17, Rule 130,
one that is inconsistent with it. (Sec. 13, 2019 Amendments to the Revised Rules on
Rule 130, 2019 Amendments to the Revised Evidence)
Rules on Evidence)
Q: What is the rule in case the terms of an
Interpretation according to circumstances agreement admit of two (2) interpretations?

The proper construction of an instrument A: When the terms of an agreement have been
according to the circumstances shall be as follows: intended in a different sense by the different
parties to it, it shall be construed as follows, to wit:
1. The circumstances under which it was
made, including the situation of the subject 1. That sense is to prevail against either party
thereof and of the parties to it, may be in which he supposed the other understood it;
shown; and
2. Such circumstances must be shown so that 2. When different constructions of a provision
the judge may be placed in the position of are otherwise equally proper, that is to be
those who language he or she is to taken which is the most favorable to the party
interpret. (Sec. 14, Rule 130, 2019 in whose favor the provision was made. (Sec.
Amendments to the Revised Rules on 17, Rule 130, 2019 Amendments to the Revised
Evidence) Rules on Evidence; Tan, 2014)

Presumption on terms of writing
TESTIMONIAL EVIDENCE
The terms of a writing shall be interpreted as
follows:
Testimonial or oral evidence is an evidence elicited
1. It shall be presumed to have been used in from the mouth of a witness. It is sometimes called
their primary and general acceptation; viva voce evidence which literally means “living
2. Evidence is admissible to show that they voice” or by word of mouth. In this kind of
have a local, technical, or otherwise evidence, a human being (witness) is called to the
peculiar signification; and stand, is asked questions, and answers the question
3. Evidence is admissible to show that it was asked of him. (Riano, 2016)
so used and understood in the particular
instance, in which case the agreement QUALIFICATION OF A WITNESS
must be construed accordingly. (Sec. 15,

567
 REMEDIAL LAW
Who may be a witness substantiated with clear and convincing evidence;
otherwise, same cannot prevail over the positive
A person may be a witness if he or she: and credible testimonies of the prosecution
witnesses. (Aurelio v. People, G.R. No. 174980,
1. Can perceive; August 31, 2011)
2. Can make known his perceptions to others
(Sec. 21, Rule 130, 2019 Amendments to the Presumption of competency of a witness
Revised Rules on Evidence);
3. Must take either an oath or an affirmation; GR: A person who takes the witness stand, is
and presumed to be qualified to testify. A party who
4. Must not possess any of the desires to question the competence of a witness
disqualifications imposed by law or the must do so by making an objection as soon as the
rules. (Riano, 2016) facts tending to show incompetency are apparent.
(Jones on Evidence, Vol. 3, Sec. 796)
Factors that do not afftect the competency of a
witness A prospective witness must show that he has the
following abilities:
1. Religious belief;
2. Political belief; 1. To observe – The testimonial quality of
3. Interest in the outcome of the case; or perception;
4. Conviction of a crime, unless otherwise 2. To remember – The testimonial quality of
provided by law. (Sec. 21, Rule 130, 2019 memory;
Revised Rules on Evidence) 3. To relate – The testimonial quality of
narration; and
Related jurisprudence 4. To recognize a duty to tell the truth – The
testimonial quality of sincerity. (Herrera,
There is no provision of the Rules disqualifying 1999)
parties declared in default from taking the witness
stand for non-disqualified parties. (Cavili v. XPNs: There is prima facie evidence of
Florendo, G.R. No. 73039, October 9, 1987) incompetency in the following:

It is axiomatic that truth is established not by the 1. The fact that a person has been recently
number of witnesses but by the quality of their found of unsound mind by a court of
testimonies. The testimony of a single witness, if competent jurisdiction; or
positive and credible, is sufficient to support a 2. That one is an inmate of an asylum. (Torres
conviction even in a charge of murder. v. Lopez, 48 Phil. 772)

The number of witnesses does not determine the Time when the witness must possess the
outcome of the case. A positive identification will qualifications
prevail over the defense of alibi, the latter being
considered as a weaker defense since it can be The qualifications and disqualifications of
easily fabricated. (People v. Gani, G.R. No. 195523, witnesses are determined as of the time said
June 5, 2013) witnesses are produced for examination in court or
at the taking of their depositions. (Regalado, 2008)
Drug abuse will not render a person incompetent
to testify. Drug abuse becomes relevant only if the Burden of proof
witness was under the influence of drugs at the
time he is testifying. (Riano, 2016) (2011 BAR) The burden is upon the party objecting to the
competency of a witness to establish the ground of
The relationship of a witness with a party does not incompetency.
ipso facto render him a biased witness in a criminal
case and likewise in a civil case. (Northwest Airlines COMPETENCY vs. CREDIBILITY OF A WITNESS
v. Chiong, G.R. No. 155550, January 31, 2008)
COMPETENCY CREDIBILITY
Inconsistencies in the testimonies of prosecution OF WITNESS OF WITNESS
witnesses that do not relate to the elements of the Refers to the basic Refers to the
offense are too inconsequential to warrant a qualifications of a believability of a
reversal of the trial court’s judgment of conviction. witness. witness.
Also, the defenses of denial and frame-up must be

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 Evidence
It is a matter of law or a Refers to the weight and in the best position to observe their demeanor and
matter of rule. trustworthiness or bodily movements. The findings of the trial court
reliability of the with respect to the credibility of witnesses and
It also includes the testimony. their testimonies are entitled to great respect, and
absence of any of the even finality. (Llanto v. Alzona, G.R. No. 150730,
disqualifications January 31, 2005)
imposed upon a
witness. XPNs:

GR: Discrepancies between the statements of the 1. The lower court has reached conclusions
affiant in his affidavit and those made by him or that are clearly unsupported by evidence;
her on the witness stand do not necessarily or
discredit him or her because it is a matter of 2. It has overlooked some facts or
judicial experience that an affidavit, being taken ex circumstances of weight and influence
parte, is almost always incomplete and often which, if considered, would affect the
inaccurate. result of the case. (People v. Dalag, G.R. No.
129895, April 30, 2003)
XPN: The credibility of witnesses will be impaired
if: NOTE: It is a jurisprudentially conceded rule that it
is against human nature for a young girl to
1. The omission in the affidavit refers to a fabricate a story that would expose herself as well
very important detail of the incident that as her family to a lifetime of shame, especially
one relating the incident as an eyewitness when her charge could mean the death or lifetime
would not be expected to fail to mention; imprisonment of her own father. "AAA" was
or without doubt telling the truth when she declared
2. When the narration in the sworn that her father raped her on three separate
statement substantially contradicts the occasions. The attempt to discredit the testimony
testimony in court. of "AAA" by the accused deserves no merit. When
credibility is in issue, the Court generally defers to
The point of inquiry is whether the the findings of the trial court considering that it
omission is important or substantial. was in a better position to decide the question,
(People v. Calegan, G.R. No. 93846, June 30, having heard the witnesses themselves and
1994) observed their deportment during trial. Here, there
is nothing from the records that would impel this
Credibility of a witness Court to deviate from the findings and conclusions
of the trial court as affirmed by the CA. (People v.
A testimony must not only come from a credible Ending G.R. No. 183827, November 12, 2012)
witness, but must be credible in itself, tested by
human experience, observation, common DISQUALIFICATIONS OF WITNESSES
knowledge and accepted conduct that has evolved
through the years. (People v. Mirandilla Jr., G.R. No. 1. Disqualification by reason of marriage or
186417, July 27, 2011) the Marital Disqualification Rule (Sec. 23,
Rule 130, 2019 Amendments to the Revised
NOTE: Mental unsoundness of the witness which Rules on Evidence);
occurred at the time of taking his testimony, affects 2. Disqualification by reason of privileged
only his credibility. Nevertheless, as long as the communication:
witness can convey ideas by words or signs and
give sufficiently intelligent answers to questions a. Marital privilege;
propounded, she is a competent witness even if she b. Attorney-client privilege;
is feeble-minded or is a mental retardate or is a c. Doctor-patient privilege;
schizophrenic. (People v. De Jesus, G.R. No. L-39087, d. Minister-penitent privilege; or
Apr. 27, 1984; People v. Gerones, G.R. No. 91116, Jan. e. Public officer as regards
24, 1991; People v. Baid, G.R. No. 129667, July 31, communications made in official
2000) confidence. (Sec. 24, Rule 130, 2019
Amendments to the Revised Rules on
Findings on the credibility of a witness Evidence)

GR: The determination of credibility of witnesses is NOTE: The qualifications and disqualifications of
properly within the domain of the trial court as it is witnesses are determined as of the time they are

569
 REMEDIAL LAW
produced for examination in court or at the taking 1. There is identity of interests between
of the depositions. Blood relationship does not husband and wife;
disqualify a witness. (Bernardo, 2008, citing Angelo 2. There is a consequent danger of perjury if
v. CA, G.R. No. 83392, June 26, 1992) one were to testify for or against the other;
3. The policy of the law is to guard the
Absolute disqualification vs. Relative security and confidences of private life,
disqualification even at the risk of an occasional failure of
justice, and to prevent domestic disunion
ABSOLUTE RELATIVE and unhappiness; and
DISQUALIFICATION DISQUALIFICATION 4. Where there is want of domestic
The proposed witness is The proposed witness is tranquility, there is danger of punishing
prohibited to take the prohibited to testify one spouse through the hostile testimony
witness stand. only on certain matters of the other. (Alvarez v. Ramirez, G.R. No.
(Herrera, 1999) specified under Secs. 23 143439, October 14, 2005)
and 24 (now only Sec.
24), Rule 130 due to Requisites for the applicability of spousal
interest or relationship, immunity
or to privileges of other
parties. (Ibid.) 1. That the spouse for or against whom the
Disqualification by Disqualification by testimony of the other is offered is a party
reason of marriage. reason of privileged to the case;
(Sec. 23, Rule 130) communication. (Sec. 2. That the spouses are legally married (valid
24, Rule 130) until annulled);
3. That the testimony is offered during the
Conviction of a crime as a ground for existence of the marriage; and
disqualification 4. That the case is not by one against the
other. (Herrera, 1999)
GR: Conviction of a crime is not a ground for
disqualification as a witness. (Sec. 21, Rule 130, Exceptions to spousal immunity
2019 Amendments to the Revised Rules on Evidence)
1. Consent is given by the party-spouse;
XPNs: Otherwise provided by law, such as the 2. In a civil case filed by one against the
following: other;
3. In a criminal case for a crime committed by
1. Those who have been convicted of one against the other or the latter’s direct
falsification of a document, perjury or false descendants or ascendants (Sec. 23, Rule
testimony are prohibited from being 130);
witnesses to a will (Art. 821, NCC); 4. Where the testimony was made after the
2. Those who have been convicted of an dissolution of the marriage (Riano, 2016);
offense involving moral turpitude cannot or
be discharged to become a State witness 5. Where the spouse-party fails to raise the
(Sec. 17, Rule 119; Sec. 10, R.A. 6981); and disqualification, it is deemed a waiver.
3. Those who fall under the disqualification
provided under Secs. 23 and 24, Rule 130. Waiver of spousal immunity

DISQUALIFICATION BY REASON OF MARRIAGE Objections to the competency of a husband or wife
(MARITAL DISQUALIFICATION/SPOUSAL to testify in a criminal prosecution against the
IMMUNITY RULE) other may be waived as in the case of the other
witnesses generally. Thus, the accused waives his
During their marriage, the husband or the wife or her privilege by calling the other spouse as a
cannot testify against the other without the witness for him or her. It is also true that objection
consent of the affected spouse, except in a civil case to the spouse's competency must be made when he
by one against the other, or in a criminal case for a or she is first offered as witness, and that the
crime committed by one against the other or the incompetency may be waived by the failure of the
latter’s direct descendants or ascendants. (Sec. 23, accused to make timely objection to the admission
Rule 130, 2019 Amendments to the Revised Rules on of the spouse's testimony, although knowing of
Evidence) such incompetency, and the testimony admitted.
(People v. Francisco, 78 Phil. 694, citing 3 Wharton's
Rationale for the Disqualification

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 Evidence
Criminal Evidence, 11th Ed., Section 1205, pp. 2060- the objection of her husband on the ground of
2061) marital privilege? (2006, 2013 BAR)

Extent of prohibition A: YES. The marital disqualification rule is aimed at
protecting the harmony and confidences of marital
The prohibition extends not only to a testimony relations. Hence, where the marital and domestic
adverse to the spouse but also to a testimony in relations are so strained that there is no more
favor of the spouse. It also extends to both criminal harmony to be preserved nor peace and tranquility
and civil cases (Riano, 2016), and not only consists which may be disturbed, the marital
of utterances but also the production of documents. disqualification no longer applies.
(Riano, 2016, citing State v. Bramlet, 114 S. C. 389,
103 S.E. 755) The act of Bob in setting fire to the house of his
sister-in-law, knowing fully well that his wife was
Who can claim spousal immunity there, is an act totally alien to the harmony and
confidences of marital relation which the
The privilege to object may be claimed only by the disqualification primarily seeks to protect. The
spouse-party and not the other spouse who is criminal act complained of had the effect of directly
offered as a witness. (Herrera, 1999, citing Ortiz vs. and vitally impairing the conjugal relation. (Alvarez
Arambulo, 8 Phil. 98) v. Ramirez, G.R. No. 143439, October 14, 2005)

Testimony where spouse is accused with others Q: Alex and Bianca are legally married. Alex is
charged in court with the crime of serious
The spouse could testify in a murder case against physical injuries committed against Carding,
the other co-accused who were jointly tried with son of Bianca and step-son of Alex. Bianca
the accused-spouse. This testimony cannot, witnessed the infliction of the injuries on
however, be used against accused-spouse directly Carding by Alex. The public prosecutor called
or through the guise of taking judicial notice of the Bianca to the witness stand and offered her
proceedings in the murder case without violating testimony as an eyewitness. Counsel for Alex
the marital disqualification rule, if the testimony is objected on the ground of the marital
properly objected. (People v. Quidato, Jr., G.R. No. disqualification rule under the Rules of Court.
117401, October 1, 1998)
1. Is the objection valid?
Marrying the witness 2. Will your answer be the same if Bianca’s
testimony is offered in a civil case for
An accused can effectively “seal the lips” of a recovery of personal property filed by
witness by marrying the witness. As long as a valid Carding against Alex? (2000, 2004 BAR)
marriage is in existence at the time of the trial, the
witness-spouse cannot be compelled to testify – A:
even where the crime charged is against the 1. NO. While neither the husband nor the wife
witness’ person, and even though the marriage was may testify against each other without the
entered into for the express purpose of consent of the affected spouse, one exception is
suppressing the testimony. (Herrera, 1999, citing if the testimony of the spouse is in a criminal
[I] A.L.R. 2d 649) case for a crime committed by one against the
other or the latter’s direct descendants or
Testimony by the estranged spouse ascendants. (Sec. 23, Rule 130) Here, Carding is
the direct descendant of Bianca, the wife of
Q: Ivy was estranged from her husband Bob for Alex. Hence, the testimony of Bianca falls
more than a year due to Bob’s suspicion that under the exception to the marital
she was having an affair with Jeff, their disqualification rule.
neighbor. Ivy was temporarily living with her
sister in Pasig City. For unknown reasons, the 2. NO. The marital disqualification rule applies
house of Ivy’s sister was burned, killing the this time. One of the exceptions to the marital
latter. Ivy survived. Ivy saw her husband in the disqualification rule is when the testimony is
vicinity during the incident. Later, Bob was given in a civil case by one spouse against the
charged with arson in an Information filed with other. Here, the case involves a case by Carding
the RTC, Pasig City. During the trial, the for the recovery of personal property against
prosecutor called Ivy to the witness stand and Bianca’s spouse Alex.
offered her testimony to prove that her
husband committed arson. Can Ivy testify over

571
 REMEDIAL LAW
DISQUALIFICATION BY REASON OF 1. There must be a valid marriage between
PRIVILEGED COMMUNICATIONS the husband and wife;
2. There is a communication received in
Scope of disqualification by reason of confidence by one from the other;
privileged communication 3. The confidential communication was
received during the marriage (Riano,
The disqualification by reason of privileged 2016); and
communication applies to both civil and criminal 4. The spouse against whom such evidence is
cases except doctor-patient privilege, which is being offered has not given his or her
applicable only in civil cases. Unless waived, the consent to such testimony. (Regalado,
disqualification under Sec. 24, Rule 130 remains 2008)
even after the various relationships therein have
ceased to exist. Cases when marital privilege is NOT applicable

Who may assert the privilege 1. In a civil case by one against the other;
2. In a criminal case for a crime committed
The holder of the privilege, authorized persons and by one against the other or the latter’s
persons to whom privileged communication were direct descendants or ascendants (Sec.
made may assert the privilege. (Herrera, 1999) 24[a], Rule 130); or
3. Information acquired by a spouse before
Rule on third parties the marriage even if received
confidentially will not fall squarely within
The communication shall remain privileged, even the privilege. (Riano, 2016)
in the hands of a third person who may have
obtained the information, provided that the Marital Disqualification vs. Marital Privilege
original parties to the communication took
reasonable precaution to protect its confidentiality. DISQUALIFICATION DISQUALIFICATION
(Sec. 24, Rule 130, 2019 Amendments to the Revised BY REASON OF BY REASON OF
Rules on Evidence) MARRIAGE MARITAL
(SEC. 23) PRIVILEGE
HUSBAND AND WIFE (SEC. 24[A])
(SEC. 24[A], RULE 130) When can be invoked
Can be invoked only if Can be claimed
Marital/Spousal privilege one of the spouses is a whether the other
party to the action. spouse is a party to the
The husband or the wife, during or after the action.
marriage, cannot be examined without the consent Coverage
of the other as to any communication received in Includes facts, Only to confidential
confidence by one from the other during the occurrences or information received
marriage except in a civil case by one against the information even prior during the marriage.
other, or in a criminal case for a crime committed to the marriage.
by one against the other or the latter's direct Duration
descendants or ascendants. (Sec. 24[a], Rule 130) Applies only if the Can be claimed even
marriage is existing at after the marriage has
Purpose of marital privilege the time the testimony been dissolved.
is offered.
The society has a deeply rooted interest in the Limitations
preservation of peace in families and in the
Constitutes a total Applies only to
maintenance of the sacred institution of marriage,
prohibition against confidential
and its strongest safeguard is to preserve with
any testimony for or communications
zealous care any violation of those hallowed
against the spouse of between the spouses.
confidences inherent in, and inseparable from, the
the witness. (Regalado, 2008)
marital status. (Herrera, 1999, citing Mercer v.
Can no longer be The spouse affected by
State, 40 Fla. 216, 24 50154)
invoked once the the disclosure of the

marriage is dissolved. information or
Requisites for the application of marital
testimony may object
privilege
even after the

dissolution of the

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 Evidence
marriage. (Riano, 2016) even after the dissolution of marriage
provided that the communication was
NOTE: It is not affected made confidentially to B during their
by the death of the marriage.
other spouse.
In both cases, it is essential that the marriage be Q: James, an alien, was criminally charged of
valid in order to claim such privilege. promoting and facilitating child prostitution
and other sexual abuses under R.A. 7610. The
Other items of communication overheard or in principal witness against him was his Filipina
presence of third parties wife, Conching. Earlier, she had complained
that James’ hotel was being used as a center for
GR: Third persons who, without the knowledge of sex tourism and child trafficking. The defense
the spouses, overhear the communication are not counsel for James objected to the testimony of
disqualified to testify. Conching at the trial of the child prostitution
case and the introduction of the affidavits she
XPN: When there is collusion and voluntary executed against her husband as a violation of
disclosure to a third party, that third party spousal confidentiality and marital privilege
becomes an agent and cannot testify. (Francisco, rule. It turned out that Patring, the minor
1993) daughter of Conching by her first husband who
was a Filipino, was molested by James earlier.
Q: In June 1998, A told B that he killed C. After a Thus, Conching had filed for legal separation
year, A married B. Upon the offer of testimony from James since last year. May the court admit
of B for the alleged killing of C. the testimony and affidavits of the wife,
Conching, against her husband, James, in the
a. Can A validly make an objection? criminal case involving child prostitution?
b. Suppose the testimony was offered at Reason. (2004 BAR)
the time the marriage between A and B
was already terminated, can A still A: YES. If the testimony and affidavit of the wife are
validly object, this time on the ground evidence used in the case against her husband for
of marital privilege rule under Sec. 24, child prostitution involving her daughter, the
Rule 130? evidence are admissible. The marital privileged
c. Suppose the information received by B communication rule under Sec. 24 of Rule 130, as
was communicated to A during their well as the marital disqualification rule under Sec.
marriage, can A validly object to the 23 of the same rule, do not apply to and cannot be
testimony of B if it was offered after the invoked in a criminal case committed by a spouse
dissolution of their marriage on the against the direct descendants of the other.
ground of marital disqualification rule
under Sec. 23 Rule 130? A crime committed by the husband against the
daughter of his wife is considered a crime
A: committed against the wife and directly attacks or
a. YES. Irrespective of the fact that B was vitally impairs the marital relations. (Riano, 2016,
informed of the killing before her citing Ordoño v. Daquigan, G.R. No. L-39012, January
marriage to A, still, the testimony was 31, 1975)
offered during their marriage, which
brings it into the ambit of the marital Q: John filed a petition for declaration of nullity
disqualification rule under Sec. 23, Rule of his marriage to Anne on the ground of
130. psychological incapacity under Article 36 of the
b. NO. The testimony even if confidential Family Code. He obtained a copy of the
was not communicated to B during the confidential psychiatric evaluation report on
time of marriage, but before the his wife from the secretary of the psychiatrist.
marriage. Can he testify on the said report without
c. NO. He can only object based on the offending the rule on privileged
marital disqualification rule if the communication? (2016 BAR)
testimony was offered during their
marriage and not to testimony offered A: YES. Under the rule on privileged
after the dissolution of the marriage. The communication, the husband or the wife, during or
proper objection must be based on after the marriage, cannot be examined without the
marital privilege rule under Sec. 24, Rule consent of the other as to any communication
130 because such defense is applicable received in confidence by one from the other

573
 REMEDIAL LAW
during the marriage except in a civil case filed by advice be “with a view to” professional
one against the other, or in a criminal case for a employment. (Riano, 2016)
crime committed by one agaisnst the other or the
latter’s direct descendants or ascendants. (Sec. Further, the scope of this privilege is extended not
24[a], Rule 130)In this case, Anne cannot prevent only to the Attorney but also to those persons
John from testifying against her since the petition reasonably believed by the client to be licensed to
for declaration of nullity is a civil case filed by one engage in the practice of law. (Section 24[b], Rule
spouse against the other; hence, the rule on 130, 2019 Amendments to the Revised Rules on
privileged communication between the spouses Evidence)
does not apply. John could testify on the
confidential psychiatric evaluation report of his Confidential communication
wife that he obtained from the secretary of the
psychiatrist, without offending the rule on It refers to information transmitted by voluntary
privileged communication. act of disclosure between attorney and client in
confidence and by means which, so far as the client
ATTORNEY AND CLIENT is aware, discloses the information to no third
[SEC. 24(B), RULE 130] person other than one reasonably necessary for the
transmission of the information or the
Requisites for the privilege accomplishment of the purpose for which it was
given. (Mercado v. Vitriolo, A.C. No. 5108, May 26,
1. There must be a communication made by 2005)
the client to the attorney, or and advice
given by the attorney to his client; Waiver of Attorney-Client Privilege
2. The communication or advice must be
given in confidence; and The privilege belongs to the client and if he waives
3. The communication or advice must be the privilege, no one else, including the attorney,
given either in the course of the can invoke it. (Riano, 2016, citing In Re: Young’s
professional employment or with a view of Estate, 33 Utah 382, 94 P 731, 732)
professional employment. (Riano, 2016)
Doctrine of Absolute Privilege
NOTE: The Rules safeguarding privileged
communications between attorney and client shall A communication is absolutely privilege when it
apply to similar communications made to or is not actionable, even if the author has acted in
received by the law student, acting for the legal bad faith. This class includes allegations or
clinic (Sec. 3, Rule 138-A). The privilege does not statements made by parties or their counsel in
extend to communications where the client’s pleadings or motions or during the hearing of
purpose is the furtherance of a future intended judicial and administrative proceedings, as well as
crime or fraud, or for the purpose of committing a answers given by the witness in reply to questions
crime or a tort, or those made in furtherance of an propounded to them in the course of said
illicit activity (Riano, 2016). proceedings, prvided that said allegations or
statements are relevant to the issues, and the
Purpose of Attorney-Client Privilege answers are responsive to the questions
propounded to said witnesses. (Belen v. People, G.R.
To encourage full disclosure by client to her No. 211120, February 13, 2017)
attorney of all pertinent matters, so as to further
the administration of justice. (Herrera, 1999) The absolute privilege remains regardless of the
defamatory tenor and the presence of malice, if the
Test in applying the attorney-client privilege sae are relevant, pertinent or material to the cause
in and or subject of the inquiry. (Ibid.)
The test is whether the communications are made
to an attorney with a view of obtaining from him Cases when the privilege is applicable
professional assistance or advice regardless of
whether there is a pending or merely impending 1. Privilege is not confined to
litigation or any litigation. (Herrera, 1999) communications regarding actual pending
cases. It may also refer to anticipated
NOTE: The present rules do not require a perfected litigations;
attorney-client relationship for the privilege to 2. Communication may be oral or written but
exist. It is enough that the communication or it is deemed to extend to other forms of
conduct, like physical demonstration;

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 Evidence
3. The statement of the client need not be seeks advice to aid him in carrying out an
made to the attorney in person. Those illegal fraudulent scheme. This would be
made to the attorney’s secretary, clerk or tantamount to participating in a
stenographer for purpose of the conspiracy. (Explanatory Notes, 2019
professional relationship, or those Amendments to the Revised Rules on
knowledge acquired by such employees in Evidence, citing McCormick on Evidence, 3rd
such capacity; and ed., p. 229 [1984])
4. In an action filed for payment of attorney’s
fees or for damages against the negligence 2. Claimants through some deceased client. As
of the attorney. to communication relevant to an issue
between parties who claim through the
Communications not covered by the privilege same deceased client, regardless of
whether the claims are by testate or
If the communication is: intestate or by inter vivos transaction;

1. Intended to be made public; NOTE: While the attorney-client privilege
2. Intended to be communicated to others; survives the death of the client, there is no
3. Intended for an unlawful purpose; privilege in a will contest or other case
between parties who both claim through
NOTE: The privilege does not extend to that very client. This is because his
communications where the client’s communications may be essential to an
purpose is the furtherance of a future accurate resolution of competing claims of
intended crime or fraud, or for the purpose succession, and the testator would
of committing a crime or a tort,or those presumably favor disclosure in order to
made in furtherance of an illicit activity dispose of his estate accordingly.
(Riano, 2016). (Explanatory Notes, 2019 Amendments to
the Revised Rules on Evidence, citing
4. Received from third persons not acting in Mueller & Kirkpatrick, Modern Evidence,
behalf or as agents of the client; or Sec. 5.24 [1995])
5. Made in the presence of third parties who
are strangers to the attorney-client 3. Breach of duty by lawyer or client/Self-
relationship. (Regalado, 2008) defense exception. As to communication
relevant to an issue of breach of duty by
Cases when the privilege is NOT applicable the lawyer to his or her client, or by the
client to his or her lawyer;
1. Furtherance of crime or fraud/”Future
crime-fraud exception”. If the services or NOTE: If the lawyer and client become
advice of the lawyer were sought or involved in a dispute between themselves
obtained to enable or aid anyone to concerning the services provided by the
commit or plan to commit what the client lawyer, the privilege does not apply to
knew or reasonably should have known to their dispute. Thus, where a client alleges
be a crime or fraud; breach of duty on the part of the lawyer,
i.e. professional malpractice,
NOTE: The rationale for this exception is incompetence, or ethical violations – or
that clients are not entitled to use lawyers where the lawyer sues a client for his fee,
to help them in pursuing unlawful or either the lawyer or client may testify as to
fraudulent objectives. If the prvivilege communications between them.
were to cloak such activity, the result (Explanatory Notes, 2019 Amendments to
would be loss o public confidence and the Revised Rules on Evidence, citing
corruption of profession. (Explanatory Mueller & Kirkpatrick, Modern Evidence,
Notes, 2019 Amendments to the Revised Sec. 5.23 [1995])
Rules on Evidence, citing Mueller &
Kirkpatrick, Modern Evidence, Sec. 5.22 In theory, the client has impliedly waived
[1995]) the privilege by making allegations of
breach of duty against the lawyer. (Ibid.)
The policy o the privilege is that of
promoting the administration of justice 4. Document attested by the lawyer. As to a
and it would be a perversion of the communication relevant to an issue
privilege to extend it to the client who

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concerning an attested document to which second August 16, 2008; and that both visits
the lawyer is an attesting witness; concerned the swindling of Edgardo.

5. Joint clients. As to a communication During the trial, the RTC issued a subpoena ad
relevant to a matter of common interest testificandum to Edgardo’s lawyer for him to
between two or more clients if the testify the conversations during their first and
communication was made by any of them second meetings. May the subpoena be quashed
to a lawyer retained or consulted in on the ground of privileged communication?
common, when offered in action between Explain fully. (2008 BAR)
any of the clients, unless they have
expressly agreed otherwise. (Sec. 24[b], A: NO. The subpoena may not be simply quashed
Rule 130, 2019 Amendments to the Revised on the allegation that the testimony to be elicited
Rules on Evidence) constitutes privileged communication. It may be
noted that the accused committed the crime
NOTE: The rationale for the exception is swindling on August 15, 2008, whereas he first
that joint clients do not intend their visited his lawyer on August 14, 2008 or before he
communications to be confidential from committed the swindling.
each other, and typically their
communications are made in each other’s Clearly, the conversations the accused had with his
presence. Agreeing to joint representation lawyer before he committed the swindling cannot
means that each joint client accepts the be protected by the privilege between attorney and
risk that another joint client may later use client because the crime had not been committed
what he or she has said to the lawyer. yet and it is no part of a lawyer’s professional duty
(Explanatory Notes, 2019 Amendments to to assist or aid in the commission of a crime; hence
the Revised Rules on Evidence, citing not in the course of professional employment.
Mueller & Kirkpatrick, Modern Evidence,
Sec. 5.14 [1995]) The second visit by accused Edgardo to his lawyer
on the next day (August 16, 2008) after the
Applicability of the rule regarding the identity swindling was committed may also suffer from the
of the client same infirmity as the conversations had during
their first meeting inasmuch as there could not be a
GR: A lawyer may NOT invoke the privilege and complaint made immediately after the estafa was
refuse to divulge the name or identity of his client. committed. The privilege covering a lawyer-client
relation under Sec. 24(b), Rule 130, may not be
XPNs: invoked, as it is not a ground for quashal of a
subpoena ad testificandum under Sec. 4, Rule 21 of
1. Where a strong possibility exists that the Rules of Court.
revealing the client’s name would
implicate the client in the very activity for Q: A tugboat owned by SPS sank in Manila Bay
which he sought the lawyer’s advice; while helping to tow another vessel, drowning
2. Where disclosure would open the client to five (5) of the crew in the resulting shipwreck.
civil liability; or At the maritime board inquiry, the four (4)
3. Last Link Doctrine – Where the survivors testified. SPS engaged Atty. Ely to
government’s lawyers have no case defend against potential claims and to sue the
against an attorney’s client unless, by company owning the other vessel for damages
revealing the client’s name, the said name to the tug. Ely obtained signed statements from
would furnish the only link that would the survivors. He also interviewed other
form the chain of testimony necessary to persons, in some instances making
convict an individual for a crime. (Regala v. memoranda. The heirs of the five (5) victims
Sandiganbayan, G.R. No. 105938, September filed an action for damages against SPS.
20, 1996)
Plaintiff’s counsel sent written interrogatories
Q: On August 15, 2008, Edgardo committed to Ely, asking whether statements of witnesses
estafa against Petronilo in the amount of 3 were obtained; if written, copies were to be
million pesos. Petronilo brought his complaint furnished; if oral, the exact provisions were to
to the National Bureau of Investigation, which be set forth in detail. Ely refused to comply,
found that Edgardo had visited his lawyer arguing that the documents and information
twice, the first time on August 14, 2008 and the asked are privileged communication. Is the
contention tenable? Explain. (2008 BAR)

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 Evidence

A: NO. The documents and information sought to NOTE: For one to be considered a
be disclosed are not privileged. They are “psychotheraphist,” a medical doctor need only be
evidentiary matters which will eventually be “licensed” to practice mmedicine and need not be a
disclosed during the trials. psychiatrist, whereas a psychologist must be
“licensed” by the government. (Explanatory Notes,
Under Sec. 24(b) of Rule 130, the privileged matters 2019 Amendments to the Revised Rules on Evidence)
are:
Purpose of the privilege
a. The communication made by the client to
the attorney; or The privilege is intended to facilitate and make
b. The advice given by the attorney, in the safe, full and confidential disclosure by patient to
course of, or with the view to professional doctor of all facts, circumstances, and symptoms,
employment. unrestricted by apprehension of their subsequent
and enforced disclosure and publication on the
The information sought is neither a communication witness stand, to the end that the physician may
by the client to the attorney nor an advice by the form a correct opinion, and be enabled safely and
attorney to his client (Riano, 2016). efficaciously to treat his patient. (Herrera, 1999)

PHYSICIAN AND PATIENT This rule is intended to encourage the patient to
[SEC. 24(C), RULE 130] open up to the physician, relate to him the history
of his ailment, and give him access to his body,
Requisites for the applicability of the privilege enabling the physician to make a correct diagnosis
of that ailment and provide the appropriate cure.
1. The privilege is claimed in a civil case; Any fear that a physician could be compelled in the
future to come to court and narrate all that had
NOTE: This privilege cannot be claimed in transpired between him and the patient might
a criminal case presumably because the prompt the latter to clam up, thus putting his own
interest of the public in criminal health at great risk. (Chan v. Chan, G.R. No. 179786,
prosecution should be deemed more July 24, 2013)
important than the secrecy of the
communication. (Riano, 2016) NOTE: This privilege does not apply to autopsy.
There is no patient or treatment involved in
2. The person against whom the privilege is autopsies, the autopsy having been conducted on a
claimed is a physician, psychotherapist or dead person. (Riguera, 2020)
a person reasonably believed by the
patient to be authorized to practice This privilege is not limited to testimonial evidence
medicine or psychology; and because to compel physician to disclose records or
3. It refers to any confidential such documents would be in effect to compel him
communication made for the purpose of to testify against the patient. (Ibid.)
diagnosis or treatment of the patient’s
physical, mental or emotional condition, Attending physician may testify as an expert
including alcohol or drug addiction. provided that his opinion is strictly based on
hypothetical facts, excluding and disregarding any
NOTE: This privilege also applies to persons, personal knowledge of the information on the
including members of the patient’s family, who patient acquired to the physican-patient
have participated in the diagnosis or treatment of relationship. (Ibid.)
the patient under the direction of the physician or
psychotherapist. Information which CANNOT be disclosed

Psychotherapist 1. Any confidential communication made for
the purpose of diagnosis or treatment of
a. A person licensed to practice medicine the patient’s physical, mental or emotional
engaged in the diagnosis or treatment of a condition, including alcohol or drug
mental or emotional condition; or addiction; and
b. A person licensed as a psychologist by the 2. Any information acquired by persons,
government while similarly engaged. (Sec including members of the patient’s family,
24 (c), Rule 130, 2019 Amendments to the who have participated in the diagnosis or
Revised Rules on Evidence) treatment of the patient under the

577
 REMEDIAL LAW
direction of the physician or or any advice given by him or her in his or her
psychotherapist. (Sec. 24[c], Rule 130, 2019 professional character in the course of discipline
Amendments to the Revised Rules on enjoined by the church to which the minister or
Evidence) priest belongs. (Sec. 24[d], Rule 130, 2019
Amendments to the Revised Rules on Evidence)
Waiver of Privilege by the patient; Express or
Implied Purpose of the priest-penitent privilege

1. By a contract, as in medical or life Allow and encourage individuals to fulfill their
insurance; religious, emotional or other needs by protecting
2. Disclosure by the patient of the confidential disclosures to religious practitioners.
information; (Peralta, Jr., 2005, citing Evidence, Oregon State Bar
3. When the patient answers questions on Committee on Continuing Legal Education)
matters which are supposedly privileged
on cross-examination (Riano, 2016); or Requisites for the applicability of the priest-
4. By operation of law. (Sec. 4, Rule 28) penitent privilege

Cases when the privilege is NOT applicable 1. The communication, confession, or advice
must have been made to the priest in his
1. The communication was not given in or her professional character in the course
confidence; of discipline enjoined by the church to
2. The communication is irrelevant to the which the minister or priest belongs. (Sec.
professional employment; 24[d], Rule 130, 2019 Amendments to the
3. The communication was made for an Revised Rules on Evidence); and
unlawful purpose; 2. Communications made must be
4. The information was intended to be made confidential and must be penitential in
public; or character, e.g., under the seal of the
5. There was a waiver of the privilege either confessional. (Regalado, 2008)
by provisions of contract or law (Regalado,
2008); and NOTE: The privilege also extends not only to a
6. Dentists, pharmacists or nurses are confession made by the penitent but also to any
disqualified. advice given by the minister or priest.

XPN: If the third person is acting as an Extent of the priest-penitent privilege
agent of the doctor in a professional
capacity. The communication must be made pursuant to
confession of sins. Where the penitent discussed
NOTE: It is essential that at the time the business arrangements with the priest, the
communication was made, the professional privilege does not apply. (Riano, 2016)
relationship is existing when the doctor was
attending to the patient for curative, preventive or A third person who overheard the confession is not
palliative treatment. The treatment may have been disqualified. (Herrera, 1999)
given at the behest of another, the patient being in
extremis. (Regalado, 2008) Who holds the privilege

The rule does not require that the relationship The person making the confession holds the
between the physician and the patient be a result privilege. The priest or minister hearing the
of a contractual relationship. It could be the result confession in his professional capacity is
of a quasi-contractual relationship as when the prohibited from making a disclosure of the
patient is seriously ill and the physician treats him confession without the consent.
even if he is not in a condition to give his consent.
(Riano, 2016) Q: For over a year, Nenita had been estranged
from her husband Walter because of the latter’s
PRIEST AND PENITENT suspicion that she was having an affair with
[SEC. 24(D), RULE] Vladimir, a barangay kagawad who lived in
nearby Mandaluyong. Nenita lived in the
A minister, priest or person reasonably believed to meantime with her sister in Makati. One day,
be so cannot, without the consent of the affected the house of Nenita’s sister inexplicably burned
person, be examined as to any confession made to almost to the ground. Nenita and her sister

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 Evidence
were caught inside the house but Nenita Psychiatrist. Moreover, the privileged
survived as she fled in time, while her sister communication applies only in civil cases
was caught insidewhen the house collapsed. As and not in a criminal case for arson.
she was running away from the burning house, Besides, the subject of the testimony of Dr.
Nenita was surprised to see her husband also Carlos was not in connection with the
running away from the scene. Dr. Carlos, advice or treatment given by him to
Walter’s psychiatrist who lived near the burned Walter, or any information he acquired in
house and whom Walter medically consulted attending to Walter in a professional
after the fire, also saw Walter in the vicinity capacity. The testimony of Dr. Carlos is
some minutes before the fire. Coincidentally, limited only to what he perceived at the
Fr. Platino, the parish priest who regularly vicinity of the fire and at about the time of
hears Walter’s confession and who heard it the fire.
after the fire, also encountered him not too far
away from the burned house. Walter was c. YES. The priest can testify over the
charged with arson and at his trial, the objection of Walter. The disqualification
prosecution moved to introduce the requires that the same were made
testimonies of Nenita, the doctor and the priest pursuant to a religious duty enjoined in
confessor, who all saw Walter at the vicinity of the course of discipline of the sect or
the fire at about the time of the fire. (2006, denomination to which they belong and
2013 BAR) must be confidential and penitential in
character, e.g., under the seal of
a. May the testimony of Nenita be allowed confession. (Sec. 24[d], Rule 130)Here, the
over the objection of Walter? testimony of Fr. Platino was not previously
b. May the testimony of Dr. Carlos, subject of a confession of Walter or an
Walter’s psychiatrist, be allowed over advice given by him to Walter in his
Walter’s objection? professional character. The testimony was
c. May the testimony of Fr. Platino, the merely limited to what Fr. Platino
priest confessor, be allowed over perceived “at the vicinity of the fire and at
Walter’s objection? about the time of the fire.”

A: PUBLIC OFFICERS
a. NO. Nenita may not be allowed to testify [SEC. 24 (E), RULE 130]
against Walter. Under the Marital
Disqualification Rule, neither the husband A public officer cannot be examined during or after
nor the wife, during their marriage, may his or her tenure as to communications made to
testify for or against the other without the him or her in official confidence, when the court
consent of the affected spouse, except in a finds that the public interest would suffer by the
civil case by one against the other, or in a disclosure.
criminal case for a crime committed by
one against the other or the latter's direct Rationale
descendants or ascendants. (Sec. 23, Rule
130, 2019 Amendments to the Revised Rules General grounds of public policy.
on Evidence)
The right of the people to information on matters
The foregoing exceptions cannot apply of public concern shall be recognized. Access to
since it only extends to a criminal case of official records, and to documents and papers
one spouse against the other or the latter’s pertaining to official acts, transactions, or
direct ascendants or descendants. Clearly, decisions, as well as to government research data
Nenita is not the offended party and her used as basis for policy development, shall be
sister is not her direct ascendant or afforded the citizen, subject to such limitations as
descendant for her to fall within the maybe provided by law. (Sec. 7, Article III, 1987
exception. Constitution)

b. YES. The testimony of Walter’s Requisites for its application
psychiatrist may be allowed. The
privileged communication contemplated 1. The holder of the privilege is the
under Sec. 24(c) Rule involves only government, acting through a public
persons authorized to practice medicine, officer;
surgery or obstetrics. It does not include a

579
 REMEDIAL LAW
2. The communication was given to the prosecution of the accused before the prosecution
public officer in official confidence; of the accused were exempted from the right to
3. The communication was given during or information. (Chavez v. Public Estates Authority.
after his or her tenure; and G.R. No. 133250, July 9, 2002; Riano 2016)
4. The public interest would suffer by the
disclosure of the communication. (Herrera, It is a privilege which protects the confidentiality of
1999) conversations that take place in the President’s
performance of his official duties. The privilege may
Cases when the privilege is inapplicable and be invoked not only by the President, but also by his
disclosure will be compelled close advisors under the “operational proximity
test.” (Neri v. Senate Committee on Accountability of
1. The disclosure is useful to vindicate the Public Officers and Investigations, G.R. No. 180643,
innocence of an accused person; March 25, 2008)
2. To lessen risk of false testimony;
3. The disclosure is essential to the proper Requisites of Presidential Communications
disposition of the case; or Privilege
4. The benefit to be gained by a correct
disposition of the litigation was greater 1. The protected communication must relate
than any injury which could inure to the to a “quintessential and non-delegable
relation by a disclosure of information. presidential power;”
(Francisco, 1996) 2. The commmuication must be authored or
“solicited and received” by a close advisor
NOTE: To invoke this rule, it must first be establish of the president or the president himself.
that public interest would suffer by the disclosure. The judicial test is that an advisor must be
In the case of closed bank, any disclosure of tapes in operational proximity with the
and transcripts would not pose danger or peril to president;
the economy. (Riguera, 2020) 3. The presidential communication privilege
remains a qualified privilege that may be
The disclosure or non-disclosure is not dependent overcome by a showing of adequate need,
on the will of the officer but on the determination such that the information sought “likely
by a competent court. (Riano, 2016) contains important evidence” and by the
unavailability of the information
Executive privilege elsewhere by an appropriate investigating
authority. (Neri v. Senate Committee on
The power of the President and other high-ranking Accountability of Public Officers and
executive officers to withhold information from the Investigations, G.R. No. 180643, March 25,
public, the courts, and the Congress. 2008)

This privilege, based on the constitutional doctrine Q: The Senate sought to question Mr. Romulo
of separation of powers, exempts the executive Neri, a member of President Arroyo’s cabinet,
from disclosure requirements applicable to the on whether President Arroyo followed up the
ordinary citizen or organization where such National Broadband Network project financed
exemption is necessary to the discharge of highly by Chinese loans, whether she directed him to
important executive responsibilities involved in prioritize it, and whether she directed him to
maintaining governmental operations, and extends approve it. Mr. Neri invoked executive privilege
not only to military and diplomatic secrets but also stating that his conversations with the
to documents integral to an appropriate exercise of president dealt with delicate and sensitive
the executive’ domestic decisional and policy national security and diplomatic matters
making functions, that is, those documents relating to the impact of scandal on high
reflecting the frank expression necessary in intra- government officials and the possible loss of
governmental advisory and deliberative confidence by foreign investors and lenders.
communications. (Senate v. Ermita, G.R. No. 169777, May Mr. Neri’s invocation of executive privilege
April 20, 2006) be upheld?

There are types of information which the A: YES. The Supreme Court upheld Mr. Neir’s
government may withhold from the public like invocation of executive privilege (more specifically
secrets involving military, diplomatic, and national the presidential communications privilege) stating
security matters, and information on investigations that the disclosure might impair our diplomatic as
of crimes by law enforcement agencies before the well as economic relations with China. (Neri v.

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 Evidence
Senate Committee on Accountability of Public 2. Filial privilege rule – a child may not be
Officers and Investigations, G.R. No. 180643, March compelled to testify against his parents, or
25, 2008) other direct descendants.

Deliberative Process Privilege NOTE: The filial privilege rule applies only
to “direct” ascendants and descendants, a
The privilege protects from disclosure advisory family tie connected by a common
opinions, recommendations, and deliberations ancestry – a stepdaughter has no common
comprising part of a process by which ancestry by her stepmother. (Lee v. Court
governmental decisions and polices are of Appeals, G.R. No. 177891, July 13, 2010)
formulated. (Riguera, 2020, citing Departent f
Foreign Affairs v. BCA International Corp., G.R. No. NOTE: An adopted child is covered by the
210858, June 29, 2016) rule.

Written advice from variety of individuals is an Criminal Cases
important element of the government’s decision-
making process and the interchange of advice GR: No descendant shall be compelled, in a
could be stifled iff courts forced the government to criminal case, to testify against his parents and
disclose those recommendations; thus the privilege grandparents.
is intended to prevent the “chilling” of deliberative
communications. (Ibid.) XPNs: The descendant may be compelled to give
his testimony in the following instances:
The deliberative process privilege applies if its
purpose is served, that is, to protect the frank 1. When such testimony is indispensable in a
exchange of ideas and opinions critical to the crime committed against said descendant;
government’s decision-making process where or
disclosure would discourage such discussion in the 2. In a crime committed by one parent
future. (Ibid.) against the other. (Art. 215 of the Family
Code)
PARENTAL AND FILIAL PRIVILEGE RULE
(SEC. 25, RULE 130) Q: A was convicted of raping his own daughter.
His son, an 8-year-old boy, testified against him.
No person shall be compelled to testify against his Can he object to the testimony on the ground of
or her parents, other direct ascendants, children or filial privilege and invoke the incompetence of
other direct descendants, except when such the child?
testimony is indispensable in a crime against that
person or by one parent against the other. A: NO. The competency of his son is not affected by
the filial privilege rule. The Rule is not strictly
NOTE: It is a privilege which consist of exempting speaking a disqualification but refers to a privilege
the witness, having attended the court where his not to testify, which can be invoked and waived
testimony is desired, from disclosing a certain part like other privileges. The son was not compelled to
of his knowledge. (Fit for a Queen Agency, Inc. v. testify against his father but chose to waive that
Ramirez, SP-06510, November 15, 1977) filial privilege when he voluntarily testified against
the accused. (People v. Invencion, G.R. No. 131636,
Two types of privileges under Sec. 25, Rule 130 March 5, 2003)

1. Parental privilege rule - a parent cannot Q: A, married to B, killed the latter. One of the
be compelled to testify against his child or witnesses was C, the mother of B, who was
other direct descendants. being compelled to testify against A. Can A
object on the ground of parental privilege?
NOTE: A person, however, may testify
against his parents or children voluntarily A: NO. C is not a direct ascendant of A but that of B,
but if he refuses to do so, the rule protects being the mother of the latter. Thus, the privilege
him from any compulsion. Said rule does not belong to A.
applies to both criminal and civil cases
since the rule makes no distinction. (Sec. NOTE: The Child Witness Rule provides that every
25, Rule 130, 2019 Amendments to the child is presumed qualified to be a witness. (Sec. 6,
Revised Rules on Evidence; Riano, 2016) A.M. NO. 004-07-SC or the Rule on Examination of a
Child Witness, November 21, 2000)

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 REMEDIAL LAW
Trade secrets should receive greater protection
Q: C is the child of the spouses H and W. H sued from discovery, because they derive economic
his wife W for judicial declaration of nullity of value from being generally unknown and not
marriage under Article 36 of the Family Code. readily ascertainable by the public. (Air Philippines
In the trial, the following testified over the Corporation v. Pennswell, Inc., G.R. No. 1723835,
objection of W: C, H and D, a doctor of medicine December 13, 2007)
who used to treat W. Rule on W's objections
which are the following: Exception to the application of the privilege

1. H cannot testify against her because of The privilege is not absolute; the court may compel
the rule on marital privilege; disclosure where it is indispensable for doing
2. C cannot testify against her because of justice. (Ibid.)
the doctrine on parental privilege; and
3. D cannot testify against her because of Other privileged matters (GEV-STB-CAP)
the doctrine of privileged
communication between patient and 1. The guardian ad litem shall not testify in
physician. (1998 BAR) any proceeding concerning any
information, statement, or opinion
A: received from the child in the course of
serving as guardian ad litem, unless the
1. The rule of marital privilege cannot be court finds it necessary to promote the
invoked in the annulment case under best interests of the child (Sec. 5[e], Rule on
Article 36 of the Family Code because it is Examination of a Child Witnes);
a civil case filed by one against the other. 2. Editorial Privilege – Editors may not be
(Sec. 23, Rule 130) compelled to disclose the source of
2. W cannot invoke the privilege which published news (R.A. 53, as amended by
belongs to the child. C may testify if he R.A. 1477);
wants to although he may not be 3. Voters may not be compelled to disclose
compelled to do so. (Sec. 25, Rule 130) for whom they voted;
3. D, as a doctor who used to treat W, is 4. Information contained in tax census
disqualified to testify against W over her returns (Ibid.);
objection as to any advice or treatment 5. Bank deposits, except in certain cases
given by him or any information which he provided for by law (Sec. 2, R.A. 1405);
may have acquired in his professional 6. Information and statements made at
capacity. (Sec. 24[c], Rule 130) conciliation proceedings (Art. 233, Labor
Code);
TRADE SECRETS 7. Institutions covered by the law and its
[SEC. 26, RULE 130] officers and employees who communicate
a suspicious transaction to the Anti-Money
Trade secret Laundering Council (Sec. 6 of R.A. 9194
amending Sec. 9 of R.A. 9160); and
A secret formula or process not patented, but 8. Informer’s Privilege - The prosecutor
known only to certain individuals using it in may not be compelled to present an
compounding some article of trade having a informer to protect his identity and when
commercial value. Trade secrets are privilege his testimony would be merely
matters whose disclosure is proscribed and corroborative and cumulative. (Herrera,
penalized under the Securities and Exchange 1999)
Commission and the Revised Penal Code.
NOTE: Human Security Act provides that the
A person cannot be compelled to testify about any name and identity of the informant of on a
trade secret, unless the non-disclosure will conceal suspect in the crime of terrorism shall be
fraud or otherwise work injustice. When disclosure considered confidential and shall not be
is directed, the court shall take such protective unnecessarily revealed until after the
measure as the interest of the owner of the trade proceedings against the suspect shall have
secret and of the parties and the furtherance of been terminated.
justice may require. (Sec. 26, Rule 130, 2019
Amendments to the Revised Rules on Evidence) 9. Media Practitioner’s Privilege

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 Evidence
GR: Without prejudice to his liability under the Secs. 12-15, Rule 119, and Sec. 1, Rule 123,
civil and criminal law, any publisher, owner, or by the records of the preliminary
duly registered or accredited journalist, investigation, under the circumstances of
writer, reporter, contributor, opinion writer, Sec. 1(f) of Rule 115 (Regalado, 2008);
editor, columnist manager, media practitioner 3. In criminal cases covered by the Rule on
involved in the writing, editing, production, Summary Procedure, the affidavits of the
and dissemination of news for mass circulation parties shall constitute the direct
of any print, broadcast, wire service testimonies of the witnesses who executed
organization, or electronic mass media cannot the same (Riano, 2016, citing Sec. 15, Rule
be compelled to reveal the source of any news on Summary Procedure);
item, report or information appearing or being 4. In civil cases covered by the Rules on
reported or disseminated through said media Summary Procedure, the parties are
which was related in confidence to the merely required to submit the affidavits of
abovementioned media practitioners. their witnesses and other pieces of
evidence on the factual issues, together
XPN: Revelation can be compelled if the court with their position papers, setting forth
or the Congress of any of its committee finds the law and the facts relied upon (Riano,
that such revelation is demanded by the 2016, citing Sec. 9, Rule on Summary
security of the State. Procedure);
5. Under the Judicial Affidavit Rule, the
NOTE: On the ground of public policy, the rules judicial affidavit shall take the place of
providing for production and inspection of books direct testimonies of witnesses (Sec. 2,
and papers do not authorize the production or Judicial Affidavit Rule);
inspection of privileged matter; that is, books and 6. Matters regarding the admissibility and
papers which, because of their confidential and evidentiary weight of electronic
privileged character, could not be received in documents may be proved by affidavits
evidence. Such a condition is in addition to the subject to cross by the adverse party (Sec.
requisite that the items be specifically described, 1, Rule 9, Rules on Electronic Evidence);
and must constitute or contain evidence material 7. If the witness is incapacitated to speak;
to any matter involved in the action and which are and
in the party’s possession, custody or control. (Air 8. The question calls for a different mode of
Philippines Corporation v. Pennswell Inc., G.R. No. answer.
172835, December 13, 2007)
Oath vs. Affirmation
EXAMINATION OF A WITNESS
OATH AFFIRMATION
GR: The examination of witnesses presented in a It is an outward pledge An affirmation is a
trial or hearing shall be done in open court, and made under an substitute for an oath
under oath or affirmation. Unless the witness is immediate sense of and is solemn and
incapacitated to speak, or the question calls for a responsibility to God or formal declaration that
different mode of answer, the answers of the a solemn appeal to the the witness will tell the
witness shall be given orally. (Sec. 1, Rule 132, 2019 Supreme Being in truth.
Amendments to the Revised Rules on Evidence) attestation of the truth
of some statement.
RATIO: Open court examination allows the court
the opportunity to observe the demeanor of the NOTE: The object of the
witness and allows the adverse party to cross- rule is to affect the
examine the witness. (Riano, 2016) conscience of the
witness to compel him
XPNs: to speak the truth, and
to lay him open to
The testimony of the witness may not be given in punishment for perjury
open court in the following cases: if he testifies falsely.

1. In civil cases, by depositions pursuant to NOTE: The option to take either an oath or
and under the limitations of Rules 23 and affirmation is given to the witness and not to the
24 (Regalado, 2008); court. (Riano, 2016)
2. In criminal cases, by depositions or
conditional examinations, pursuant to

583
 REMEDIAL LAW
In order that one may be competent as a witness, it 1. An accused in a criminal case as it is his
is not necessary that he has a definite knowledge of constitutional right to be present at all
the difference between his duty to tell the truth stages of the proceedings;
after being sworn and before, or that he is able to 2. Parties to the litigation will generally not
state it, but it is necessary that he be conscious that be excluded, their presence usually being
there is a difference. (People v. Bisda, G.R. No. necessary to a proper management of the
140895, July 17, 2003) case;
3. Party in interest though not a party to the
Waiver of the right to have the witness sworn record and an agent of such party, if the
presence of such agent is necessary;
The right may be waived. If a party admits proof to 4. Officers and complaining witnesses are
be taken in a case without an oath, after the customarily excepted from the rule unless
testimony has been acted upon by the court, and the circumstances warrant otherwise; and
made the basis of a judgment, such party can no 5. Expert witnesses are not excluded until
longer object to the admissibility of the testimony. production of evidence bearing upon the
He will be deemed to have waived the objection. question or subject as to which they have
(People v. Bisda, G.R. No. 140895, July 17, 2003) been called or unless liable to be
influenced by the testimony of the other
Matters to be recorded during trial witnesses. (Herrera, 1999)

The entire proceedings of a trial or hearing, Recantation of a witness
including:
Courts must not automatically exclude the original
1. Questions propounded to a witness and statement based solely on the recantation. It
his answers thereto; and should determine which statement should be given
2. The statements made by the judge or any credence through a comparison of the original and
of the parties, counsel, or witnesses with the new statements, applying the general rules of
reference to the case. (Sec. 2, Rule 132) evidence. (PLDT v. Bolso, G.R. No. 159701, August
17, 2007)
NOTE: These shall be recorded by means of
shorthand or stenotype or by other means of RIGHTS AND OBLIGATIONS OF A WITNESS
recording found suitable by the court. (Ibid.)
Rights of a witness (PDEA-R)
Exclusion and separation of witnesses
1. To be protected from irrelevant, improper,
The court, motu proprio or upon motion, shall or insulting questions, and from harsh or
order witnesses excluded so that they cannot hear insulting demeanor;
the testimony of other witnesses. This rule does
not authorize the exclusion of: NOTE: The trial court’s duty is to protect
every witness against oppressive behavior
a. A party who is a natural person; of an examiner and this is especially true
b. A duly designated representative of a where the witness is of advanced age. (Lee
juridical entity which is not a party to the v. CA, G.R. No. 177861, July, 13, 2010)
case;
c. A person whose presence is essential to 2. Not to be detained longer than the
the presentation of the party’s cause; or interests of justice require;
d. A person authorized by a statute to be 3. Not to be examined except only as to
present. matters pertinent to the issue;
4. Not to give an answer which will tend to
The court may also cause witnesses to be kept subject him or her to a penalty for an
separate and to be prevented from conversing with offense unless otherwise provided by law
one another, directly through intermediaries, until (right against self-incrimination);
all shall have been examined. (Sec. 15, Rule 132,
2019 Amendments to the Revised Rules on Evidence) NOTE: This refers to immunity statutes
wherein the witness is granted immunity
XPNs: from criminal prosecution for offenses
admitted in his testimony, e.g. under Sec.
8, R.A. 1379, the law providing for the
forfeiture of unlawfully acquired property;

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 Evidence
and under P.D. 749, in prosecutions for moral compulsion to extort
bribery and graft. (Regalado, 2008) communications from the accused. It is
simply a prohibition against legal process
5. Not to give an answer, which will tend to to extract from the accused’s own lips,
degrade his or her reputation, unless it be against his will, admission of his guilt. (Ong
to the very fact at issue or to a fact from v. Sandiganbayan & Office of the
which the fact in issue would be presumed. Ombudsman, G.R. No. 126858, September
But a witness must answer to the fact of 16, 2005) Hence, a purely mechanical act
his or her previous final conviction for an required to be done or produced from the
offense. (Sec. 3, Rule 132, 2019 accused is not covered by the right against
Amendments to the Revised Rules on self-incrimination. (Beltran vs Samson, G.R.
Evidence) No. 32025, September 23, 1929)

Classifications of Immunity Statutes The privilege against self-incrimination
must be invoked at the proper time, and
USE IMMUNITY TRANSACTIONAL the proper time to invoke it is when a
IMMUNITY question calling for an incriminating
Prohibits the use of the Grants immunity to the answer is propounded. Also, a person who
witness' compelled witness from has been summoned to testify cannot
testimony and its fruits prosecution for an decline to appear, nor can he decline to be
in any manner in offense to which his sworn as a witness and no claim of
connection with the compelled testimony privilege can be made until a question
criminal prosecution of relates. calling for an incriminating answer is
the witness. asked. (Gonzales vs. Secretary of Labor, G.R.
It is immunity from No. L-6409, February 5, 1954).
It is immunity from use prosecution by reason
of any statement given or on the basis of the 2. Right against self-degradation – If his
by the witness. testimony. answer will have a direct tendency to
By the grant of use-and- Transactional immunity degrade his character.
derivative-use is broader in the scope
immunity, a witness is of its protection. By its XPNs to the XPN: A witness may not
only assured that his or grant, a witness can no invoke the right against self-degradation
her particular testimony longer be prosecuted if:
and evidence derived for any offense 1. Such question is directed to the very
from it will not be used whatsoever arising out fact at issue or to a fact from which the
against him or her in of the act or transaction fact at issue would be presumed; or
subsequent to which the testimony 2. If it refers to his previous final
prosecution. relates. conviction for an offense. (Regalado,
2008)
Obligation of a witness in open court
NOTE: A witness invited by the Senate who refused
GR: A witness must answer questions, although his to testify and arrested for contempt, cannot invoke
or her answer may tend to establish a claim against the right against self-incrimination in a petition for
him or her. (Sec. 3, Rule 132, 2019 Amendments to certiorari and prohibition. The said right may be
the Revised Rules on Evidence) Refusal to answer as invoked only when the incriminating question is
a witness constitutes drect contempt. (Sec. 1, Rule being asked, since he has no way of knowing in
71, 2019 Amendents to the Revised Rules on Civil advance the nature or effect of the questions to be
Procedure) asked of him. That this right may possibly be
violated or abused is no ground for denying the
XPNs: A witness may validly refuse to answer on Senate Committees their power of inquiry. (In Re:
the basis of the following: Sabio, G.R. Nos. 174340, 174318 & 174177, October
17, 2006)
1. Right against self-incrimination – If his
answer will tend to subject him to Prohibition on narrative form testimony
punishment for an offense; or
A witness’’s testimony should be elicted by way of
NOTE: The constitutional assurance of the questions and answers (Secs. 1 and 2, Rule 132).
right against self-incrimination is a Thus, if the witness does a narration instead of
prohibition against the use of physical or answering the question, the answer may be

585
 REMEDIAL LAW
stricken out upon objection (Sec. 39, Rule 132). The 1. The offense in which his testimony will be
reason is that if a witness testifies in narrative used is a grave felony as defined under the
form, the adverse party is deprived of the Revised Penal Code, or its equivalent
opportunity to object to thee testimony under special laws;
beforehand. (Riguera, 2020) 2. His testimony can be substantially
corroborated in its material points;
XPN; The court may allow a child witness to testify 3. He or any member of his family within the
in a narrative form. (Sec. 19, Rule on Examination of second civil degree of consanguinity or
Child Witness) affinity is subjected to threats to life or
bodily injury or there is a likelihood that
Refusal of a witness to take the witness stand he will be killed, forced, intimidated,
harassed or corrupted to prevent him from
GR: A witness may not refuse to take the witness testifying, or to testify falsely, or evasively,
stand. because or on account of his testimony;
and
XPNs: 4. He is not a law enforcement officer, even if
he would be testifying against the other
1. An accused in a criminal case; or law enforcement officers. In such a case,
2. A party who is not an accused in a criminal only the immediate members of his family
case is allowed not to take the witness may avail themselves of the protection
stand – in administrative provided for under the Act. (Sec. 3, R.A.
cases/proceedings that partook of the 6981)
nature of a criminal proceeding or
analogous to a criminal proceeding. As Q: As counsel of an accused charged with
long as the suit is criminal in nature, the homicide, you are convinced that he can be
party thereto can altogether decline to utilized as a state witness. What procedure will
take the witness stand. It is not the you take? (2006 BAR)
character of the suit involved but the
nature of the proceedings that controls. A: As counsel of an accused charged with homicide,
(Rosete, et. al. v. Lim, et. al., G.R. No. 136051, I would ask the prosecutor to recommend that the
June 8, 2006) accused be made a state witness. It is the
prosecutor who must recommend and move for
Right against self-incrimination not available the acceptance of the accused as a state witness.
under the Witness Protection Program The accused may also apply under the Witness
Protection Program.
Any witness admitted into the program of the
Witness Protection, Security and Benefit Act cannot State witness may be liable for contempt or
refuse to testify or give evidence or produce books, criminal prosecution
documents, records or writings necessary for the
prosecution of the offense or offenses for which he If he fails or refuses to testify or to continue to
has been admitted into the Program on the ground testify without just cause when lawfully obliged to
of the constitutional right against self- do so or if he testifies falsely or evasively, he shall
incrimination but he shall enjoy immunity from be liable to prosecution for perjury. If a State
criminal prosecution and cannot be subjected to witness fails or refuses to testify, or testifies falsely
any penalty or forfeiture for any transaction, or evasively, or violates any condition
matter or thing concerning his compelled accompanying such immunity without just cause,
testimony or books, documents, records and as determined in a hearing by the proper court, his
writings produced. (Sec. 14, R.A. 6981) immunity shall be removed and he shall be subject
to contempt or criminal prosecution. Moreover, the
Persons eligible to the Witness Protection, enjoyment of all rights and benefits under R.A.
Security and Benefit Program 6981 shall be deemed terminated. The witness
may, however, purge himself of the contumacious
Any person who has witnessed or has knowledge acts by testifying at any appropriate stage of the
or information on the commission of a crime and proceedings. (Sec. 13, R.A. 6981)
has testified or is testifying or about to testify
before any judicial or quasi-judicial body, or before ORDER IN THE EXAMINATION
any investigating authority may be admitted OF AN INDIVIDUAL WITNESS
provided that:
Purposes of each stage of the examination

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 Evidence
1. Direct examination – To elicit facts about immediately thereafter, or at any other time when
the client’s cause of action or defense. the fact was fresh in his memory and he knew that
(Riano, 2016) the same was correctly written or recorded. (Sec.
16, Rule 132, 2019 Amendments to the Revised Rules
2. Cross examination on Evidence) But in this case, Tony has never seen
a. To bring out facts favorable to the writing before.
counsel’s client not established by the
direct testimony; and CROSS EXAMINATION
b. To enable counsel to impeach or to
impair the credibility of the witness. Upon the termination of the direct examination, the
(Ibid.) witness may be cross-examined by the adverse
party on any relevant matter, with sufficient
3. Re-direct examination fullness and freedom to his or her accuracy and
a. To afford opportunity to the witness truthfulness and freedom from interest or bias, or
to explain or supplement his answers the reverse, and to elicit all important facts bearing
given during the cross-examination; upon the issue. (Sec 6, Rule 132, 2019 Amendments
and to the Revised Rules on Evidence)
b. To rehabilitate a witness whose
credibility has been damaged. (Ibid.) Scope of a cross-examination

4. Re-cross examination 1. American rule – restricts cross-
a. To overcome the proponent’s attempt examination to facts and circumstances
to rehabilitate the witness; and which are connected with the matters that
b. To rebut damaging evidence brought have been stated in the direct examination
out during redirect examination. of the witness.
2. English rule – where a witness is called to
Order of Examination testify to a particular fact, he becomes a
witness for all purposes and may be fully
The order in which an individiual witness may be cross-examined upon all matters material
examined iis as follows; to the issue, the examination not being
confined to the matters inquired about in
1. Direct examination by the proponent. the direct examination.
2. Cross-examination by the opponent.
3. Re-direct examination by the propnent. NOTE: Both rules are followed under
4. Re-cross examination b the opponent. Philippine jurisdiction. In general, the
English Rule is being followed, which
DIRECT EXAMINATION allows the cross-examination to elicit all
important facts bearing upon the issue
The examination-in-chief of a witness by the party (Sec. 6, Rule 132), but this does not mean
presenting him or her on the facts relevant to the that a party by doing so is making the
issue. (Sec 5, Rule 132, 2019 Amendments to the witness his own in accordance with Sec. 5
Revised Rules on Evidence) of Rule 132. Coversely, the American Rule
is being followed as to the accused or a
In light of the Judicial Affidavit Rule, most direct hostile witness, who may only be cross-
examinations are now in the form of a judicial examined on matters covered by direct
affidavit. (Riguera, 2020) examination. (Herrera, 1999)

Q: Tony states on direct examination that he Doctrine of Incomplete Testimony
once knew the facts being asked but he cannot
recall them now. When handed a written record GR: When cross-examination cannot be done or
of the facts, he testifies that the facts are completed due to causes attributable to the party
correctly stated, but that he has never seen the who offered the witness, the incomplete testimony
writing before. Is the writing admissible as past is rendered incompetent and should be stricken
recollection recorded? Explain. (1996 BAR) from the record. (Bachrach Motor Co., Inc. v. CIR,
G.R. No. L-26136, October 30, 1978; Ortigas, Jr. v.
A: NO, because for the written record to be Lufthansa German Airlines, G.R. No. L-28773, June
admissible as past recollection recorded, it must 30, 1975)
have been written or recorded by Tony or under
his direction at the time when the fact occurred, or

587
 REMEDIAL LAW
XPN: Where the prosecution witness was cross-examination. (Sec 7, Rule 132, 2019
extensively cross-examined on the material points Amendments to the Revised Rules on Evidence)
and thereafter failed to appear and cannot be
produced despite a warrant of his arrest, the Q: On re-direct examination, may questions on
striking out is not warranted. (People v. Gorospe, matters not dealt with during the cross-
G.R. No. 51513, May 15, 1984) examination be allowed?

Effect of death or absence of a witness after the A: YES. Questions on matters not dealt with during
direct examination by the proponent the cross-examination, ay be allowed by the court
in its discretion.
1. If the witness was not cross-examined
because of causes attributable to the cross- RE-CROSS EXAMINATION
examining party and the witness had
always made himself available for cross- Upon the conclusion o the re-direct examination,
examination, the direct testimony of the the adverse party ay re-cross examine the witness
witness shall remain on record and cannot on matters stated in his or her re-direct
be stricken off because the cross-examiner examination, and also on such other matters as
is deemed to have waived his right to may be allowed by the court in its discretion. (Sec 8,
cross-examine. (Dela Paz v. IAC, G.R. No. Rule 132, 2019 Amendments to the Revised Rules on
71537, September 17, 1987) Evidence)
2. If the witness was partially cross-
examined but died before the completion RECALLING THE WITNESS
of his cross-examination, his testimony on
direct may be stricken out but only with GR: After the examination of a witness by both
respect to the testimony not covered by sides has been concluded, the witness cannot be
the cross-examination. (People v. Señeris, recalled without leave of court. Recalling a witness
G.R. No. L-48883, August 6, 1980) is a matter of judicial discretion and it shall be
3. The absence of a witness is not sufficient guided by the interests of justice. (Sec. 9, Rule 132,
to warrant the striking out of his 2019 Amendments to the Revised Rules on Evidence)
testimony for failure to appear for further
cross-examination where the witness has XPNs:
already been sufficiently cross-examined,
and the matter on which cross- 1. The examination has not been concluded;
examination is sought is not in or
controversy. (Ibid.) 2. If the recall of the witness was expressly
reserved by a party with the approval of
GR: The party who offered the testimony of a the court. In these two cases the recall of a
witness is bound by such testimony. witness is a matter of right. (Regalado,
2008)
XPNs:
NOTE: Something more than the bare assertion of
1. In the case of a hostile witness; the need to propound additional questions is
2. Where the witness is the adverse party or essential before the court's discretion may
the representative of a juridical person rightfully be exercised to grant or deny recall.
which is the adverse party; and There must be a satisfactory showing of some
3. When the witness is not voluntarily concrete, substantial ground for instance, that
offered but is required by law to be particularly identified material points were not
presented by the proponent, as in the case covered in the cross-examination, or that
of subscribing witnesses to a will. particularly described vital documents were not
(Regalado, 2008, citing Fernandez v. presented to the witness whose recall is prayed for,
Tantoco, 49 Phil. 380, and Sec. 11, Rule 76) or that the cross-examination was conducted in so
inept a manner as to result in a virtual absence
RE-DIRECT EXAMINATION thereof. Absent such particulars, to repeat, there
would be no foundation for a trial court to
After the cross-examination of the witness has authorize the recall of any witness. (People v.
been concluded, e or she may be re-examined by Rivera, G.R. No. 98376, August 16, 1991)
the party calling him or her, to explain or
supplement his or he answers given during the LEADING AND MISLEADING QUESTIONS

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 Evidence
Leading question It is a technique employed usually as part of cross-
examination to discredit a witness by attacking his
It is one which suggests to the witness the answer credibility. (Riano, 2016)
which the examining party desires. A leading
question is generally not allowed. (Sec. 10, Rule 132, IMPEACHMENT OF THE ADVERSE PARTY’S
2019 Amendments to the Revised Rules on Evidence) WITNESS

The test whether a question is leading or not is the Ways of impeaching an adverse party’s witness
suggestiveness of the conduct.
1. By contradictory evidence;
When a leading question is allowed (CUPDAJ) 2. By evidence that his or her general
reputation for truth, honesty or integrity is
A leading question is allowed: bad; or
3. By evidence that he or she has made at
1. On cross-examination; other times statements inconsistemt with
2. Of an unwilling witness or hostile witness; his or her present testimony. (Sec. 11, Rule
3. On preliminary matters; 132, 2019 Amendments to the Revised Rules
4. When there is difficulty in getting direct on Evidence)
and intelligible answers from a witness
who is ignorant, or a child of tender years, NOTE: An adverse party’s witness may not be
or is of feeble mind, or a deaf-mute; impeached by evidence of particular wrongful
acts, except that it may be shown by the
NOTE: A witness may be considered as examination of the witness, or record of the
unwilling or hostile only if so declared by judgment, that he or she has been convicted of
the court upon adequate showing of his or an offense. (Ibid.)
her adverse interest, unjustified reluctance
to testify or his or her having misled the The other modes of impeaching a witness are:
party into calling him or her to the witness
stand. (Sec. 13, Rule 132, 2019 Amendments 1. By involving him during cross-
to the Revised Rules on Evidence) examination in contradiction;
2. By showing the impossibility or
5. Of a witness who is an adverse party or an improbability of his testimony;
officer, director, or managing agent of a 3. By proving action or conduct of the
public or private corporation or of a witness inconsistent with his testimony;
partnership or association which is an and
adverse party (Sec. 10, Rule 132, 2019 4. By showing bias, interest or hostile feeling
Amendments to the Revised Rules on against the adverse party. (Herrera, 1999)
Evidence);
6. A child of tender years may be asked IMPEACHMENT BY EVIDENCE OF CONVICTION
leading questions (People v. Ilogon, G.R. No. OF CRIME
206294, June 29, 2016; People v. Perez, G.R.
No. 182924, December 24, 2008; Sec. 10[c], GR: For the purpose of impeaching a witness,
Rule on Examination of a Child Witness, evidence that he or she has been convicted by final
A.M. No.004-07-SC) judgment of a crime shall be admitted if:
7. In all stages of examination of a child if the
same will further the interests of justice. 1. The crime was punishable by a penalty in
(Sec. 20, Rule on Examination of a Child excess of one (1) year; or
Witness, A.M. No.004-07-SC) 2. The crime involved moral turpitude,
regardless of the penalty.
Misleading question
XON: Evidence of a conviction is not admissible if
A misleading question is one which assumes as the conviction has been the subject of an amnesty
true a fact not yet testified to by the witness, or or annulment of the conviction. (Sec. 13, Rule 132,
contrary to that which he or she has previously 2019 Amendments to the Revised Rules on Evidence)
stated. It is NOT allowed. (Sec. 10, Rule 132, 2019
Amendments to the Revised Rules on Evidence) Impeachment of a witness by evidence of
particular wrongful acts
IMPEACHMENT OF WITNESS

589
 REMEDIAL LAW
GR: A witness may NOT be impeached by evidence if it is not contradicted or remains unrebutted.
of particular wrongful acts. (Gaw v. Chua, G.R. No. 160855, April 16, 2008)

XPN: If it may be shown by the examination of the HOW THE WITNESS IS IMPEACHED BY
witness, or the record of the judgment, that he or EVIDENCE OF INCONSISTENT STATEMENTS
she has been convicted of an offense. (Sec. 11, Rule (LAYING THE PREDICATE)
132, 2019 Amendments to the Revised Rules on
Evidence) Laying the predicate

IMPEACHMENT BY A PARTY OF HIS OR HER It is the duty of a party trying to impugn the
OWN WITNESS testimony of a witness by means of prior or
subsequent inconsistent statements, whether oral
GR: The party presenting the witness is not or in writing, to give the witness a chance to
allowed to impeach the credibility of such witness. reconcile his conflicting declarations, such that it is
only when no reasonable explanation is given by
XPN: The witness is an: him that he should be deemed impeached. (People
v. Sambahon, G.R. No. 182789, August 3, 2010)
1. Unwilling or hostile;
Laying the predicate in impeaching a witness
NOTE: A witness may be considered as by evidence of prior inconsistent statements
unwilling or hostile only if so declared by
the court upon showing adequate showing 1. The prior inconsistent statements must be
of his or adverse interest, unjustified related to him or her, with the
reluctance to testify, or his or her having circumstances of the times and places and
misled the party into calling him or her to the persons present;
the witness stand. 2. The witness must be asked whether he or
she made such statements, and if so, be
2. Adverse party; or allowed to explain them; and
3. Officer, director, or managing agent of a 3. If the statements be in writing it must be
public or private corporation or of a shown to the witness before any question
partnership or association which is an is put to him or her concerning them. (Sec.
adverse party. (Sec. 13, Rule 132, 2019 14, Rule 132, 2019 Amendments to the
Amendments to the Revised Rules on Revised Rules on Evidence) (1996 BAR)
Evidence)
NOTE: Contradicting testimony given subsequently
NOTE: In these instances, such witnesses may be does not necessarily contradict the prevous
impeached by the party presenting him or her in all testimony if the contradiction is satisfactorily
respects as if he had been called by the adverse explained. There is no rule which states that a
party, except by evidence of his or her bad previous testimony is presumed to be false merely
character. (Ibid.) because a witness now says that the same is not
true. A testimony solemnly given in court should
Impeachment of the adverse party as a witness not be lightly set aside. Before this can be dne both
the previous testimony and the subsequent ne
That the witness is the adverse party does not should be carefullu scrutinized – in other words, all
necessarily mean that the calling party will not be the expedients devised by man to determine the
bound by the former’s testimony. The fact remains credibility of witnesses should be utilized to
that it was at his instance that his adversary was determine which of the two contradicting
put on the witness stand. He is not bound only in testimonies represents the truth. (OCA v. Morante,
the sense that he may contradict him by A.M. No. P-02-1555, April 16, 2004)
introducing other evidence to prove a statement of
facts contrary to what the witness testifies. Unlike As between statements made during the
an ordinary witness, the calling party may impeach preliminary investigation of the case and the
an adverse witness in all respects as if he had been testimony of a witness in open court, the latter
called by the adverse party, except by evidence of deserves more credence. Preliminary
his bad character. Under a rule permitting the investigations are commonly fairly summary or
impeachment of an adverse witness, although the truncated in nature, being designed simply for the
calling party does not vouch for the witness’ determination, not of guilt beyond reasonable
veracity, he is nonetheless bound by his testimony doubt, but of probable cause prior to the filing of an

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 Evidence
information in court. (People v. Buduhan, G.R. No.
1178196, August 6, 2008) 1. Evidence of the moral character of a
party in a civil case is admissible only
Inapplicability of the rule when pertinent to the issue of
character involved in the case. (Sec.
If the prior inconsistent statement appears in a 54, Rule 130)
deposition of the adverse party, and not a mere
witness, that adverse party who testifies may be iii. In Criminal and Civil cases
impeached without laying the predicate, as such
prior statements are in the nature of admissions of 1. Evidence of the good moral
said adverse party. (Regalado, 2008) character of a witness is not
admissible until such character has
The reasons for laying the predicate are: been impeached. (Sec. 54, Rule 130)

1. To avoid unfair surprise to the adversary; NOTE: in all cases in which evidence of character
2. To save time, as an admission by the or a trait of character of a person is admissible,
witness may make the extrinsic proof proof may be made by testimony as to reputation
necessary; and or by testimony in the form of an opinion.
3. To give the witness, in fairness to him, a
chance to explain the discrepancy. In cases in whch character or a trait of character of
(Herrera, 1999) a person is an essential element of a charge, claim
or defense, proof may also be made of specific
CONTRADICTORY PRIOR INCONSISTENT instances of that person’s conduct. (Sec. 54, Rule
EVIDENCE STATEMENTS 130)
Refers to other Refer to statements,
testimony of the same oral or documentary, REFERRAL OF WITNESS TO MEMORANDUM
witness, or other made by the witness
evidence presented by sought to be impeached When the witness may refer to memorandum
him in the same case, on occasions other than
but not the testimony of the trial in which he is A witness may be allowed to refresh his or her
another witness. testifying. memory respecting a fact by anything written or
recorded by himself or herself, or under his or her
EVIDENCE OF THE GOOD CHARACTER OF A direction, at the time when the fact occurred, or
WITNESS immediately thereafter, or at any other time when
the fact was fresh in his or her memory and he or
GR: Evidence of the good character of a witness is she knew that the same was correctly written or
not admissible for the purpose of proving action recorded. (Sec. 16, Rule 132, 2019 Amendments to
in conformity therewith on a particular occassion. the Revised Rules on Evidence)
(Sec. 54, Rule 130, 2019 Amendments to the Revised
Rules on Evidence) NOTE: The writing or record must be produced
and may be inspected by the adverse party, who
XPNs: may, if he or she chooses, cross-examine the
witness upon it and may read it in evidence. (Ibid.)
i. In Criminal cases:
NOTE: A witness may also testify from such a
1. The character of the offended party writing or record, though he or she retains
may be proved if it tends to establish norecollection of the particular facts, if he or she is
in any reasonable degree the able to swear that the writing or recording
probability or improbability of the correctly stated the transaction when made. Such
offense charged. evidence must be received with caution. (Ibid.)
2. The accused may prove his or her
good moral character, pertinent to the PRESENT PAST RECOLLECTION
moral trait involved in the off ense RECOLLECTION RECORDED
charged. However, the prosecution REVIVED
may not prove his or her bad moral Applies if the witness Applies where the
character unless on rebuttal. (Sec. 54, remembers the facts witness does not recall
Rule 130) regarding his entries. the facts involved.

ii. In Civil cases:

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Requisites: Requisites: Child witness
1. Memorandum has 1. Witness retains no
been written by him recollection of the 1. Any person who at the time of giving
or under his particular facts; and testimony is below the age of 18 years old;
direction; and 2. But he is able to or
2. Written by him: swear that the 2. A person over 18 years of age, if he/she is
a. When the fact record or writing found by the court as unable to fully take
occurred or correctly stated the care of himself or protect himself from
immediately transaction when abuse, neglect, cruelty, exploitation or
thereafter; or made. discrimination because of physical or
b. At any other mental disability or condition. (Sec. 4[a],
time when the A.M. No. 004-07-SC)
fact was fresh
in his memory Presumption of competency
and he knew
that the same GR: Every child is presumed qualified to be a
was correctly witness. The burden of proof to rebut such
recorded. presumption lies in the party challenging his
Entitled to greater Entitled to lesser competence.
weight. weight.
Evidence is the Evidence is the writing XPN: When the court finds that substantial doubt
testimony. or record (the exists regarding the ability of the child to perceive,
memorandum). remember, communicate, distinguish from
Rule of evidence Rule of evidence falsehood, or appreciate the duty to tell the truth in
affected is competency affected is the best court, the judge shall conduct a competency
of witness, examination evidence rule. examination of a child. (Sec. 6, A.M. No. 004-07-SC)
of witness (laying the
predicate). Examination of a child witness
The witness simply Witness must swear
testifies that he knows that the writing The examination of a child witness presented in a
that the memorandum correctly states the hearing or any proceeding shall be done in open
is correctly written by transaction. (Regalado, court. Unless the witness is incapacitated to speak,
him or under his 2008) or the question calls for a different mode of
direction. There is no answer, the answers of the witness shall be given
need to swear that the orally. (Sec. 8, A.M. No. 004-07-SC)
writing correctly states
the transaction. Videotaped deposition

Right of the adverse party when a writing is The prosecutor, counsel, or guardian ad litem may
shown to a witness apply for an order that a deposition be taken of the
testimony of the child and that it be recorded and
Whenever a writing or record is shown to a preserved on videotape. If the court finds that the
witness, it must be produced and may be inspected child will not be able to testify in open court at
by the adverse party, who may, if he or she trial, it shall issue an order that the deposition of
chooses, cross-examine the witness upon it and the child be taken and preserved by videotape.
may read it in evidence. (Sec. 18, Rule 132) (Sec. 27, A.M. No. 004-07-SC)

RULE ON EXAMINATION OF CHILD WITNESS Live-link TV testimony
(A.M. No. 004-07-SC)
Effectivity Date: December 15, 2000 The court may order by an application may be
made by the prosecutor, counsel or guardian ad
The rule shall govern the examination of a child litem for the testimony of the child to be taken in a
witness in all criminal and non-criminal room outside the courtroom and be televised to the
proceedings of a child who is: (VAW) courtroom by live-link television, if there is a
likelihood that the child would suffer trauma from
1. Victims; testifying in the presence of the accused, his
2. Accused; and counsel or the prosecutor as the case may be. (Sec.
3. Witnesses to a crime. 25, A.M. No. 004-07-SC; Riano, 2016)

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The kind of trauma contemplated is trauma that 1. Tapes may be viewed only by parties,
would impair the completeness or truthfulness of their counsel, their expert witness, and
the testimony of the child. the guardian ad litem.
2. No tape, or any portion thereof, shall be
Hearsay exception in child abuse cases divulged by any member of the court staff,
the prosecuting attorney, the defense
A statement made by a child describing any act or counsel, the guardian ad litem, agents of
attempted act of child abuse, not otherwise investigating law enforcement agencies,
admissible under the hearsay rule, may be and other persons as determined by the
admitted in evidence in any criminal or non- court to any other person, except as
criminal proceeding. In ruling on the admissibility necessary for the trial.
of such hearsay statement, the court shall consider 3. No person shall be granted access to the
the time, content and circumstances thereof which tape, its transcription or any part thereof
provide sufficient indicia of reliability. It shall unless he signs a written affirmation that
consider the following factors: he has received and read a copy of the
protective order; that he submits to the
a. Whether there is a motive to lie; jurisdiction of the court with respect to
b. The general character of the declarant the protective order; and that in case of
child; violation thereof, he will be subject to the
c. Whether more than one person heard the contempt power of the court.
statement; 4. Each of the tape cassettes and transcripts
d. Whether the statement was spontaneous; thereof made available to the parties,
e. The timing of the statement and the their counsel, and respective agents shall
relationship between the declarant child bear the following cautionary notice:
and witness;
f. Cross-examination could not show the lack "This object or document and the
of knowledge of the declarant child; contents thereof are subject to a
g. The possibility of faulty recollection of the protective order issued by the court in
declarant child is remote; and (case title), (case number). They shall not
h. The circumstances surrounding the be examined, inspected, read, viewed, or
statement are such that there is no reason copied by any person, or disclosed to any
to suppose the declarant child person, except as provided in the
misrepresented the involvement of the protective order. No additional copies of
accused. (Sec. 28, A.M. No. 004-07-SC) the tape or any of its portion shall be
made, given, sold, or shown to any person
Sexual abuse shield rule without prior court order. Any person
violating such protective order is subject
GR: The following evidence is not admissible in any to the contempt power of the court and
criminal proceeding involving alleged child sexual other penalties prescribed by law."
abuse:
5. No tape shall be given, loaned, sold, or
a. Evidence offered to prove that the alleged shown to any person except as ordered by
victim engaged in other sexual behavior; the court.
and 6. Within thirty (30) days from receipt, all
b. Evidence offered to prove the sexual copies of the tape and any transcripts
predisposition of the alleged victim. thereof shall be returned to the clerk of
court for safekeeping unless the period is
XPN: Evidence of specific instances of sexual extended by the court on motion of a
behavior by the alleged victim to prove that a party.
person other than the accused was the source of 7. This protective order shall remain in full
semen, injury, or other physical evidence shall be force and effect until further order of the
admissible. (Sec. 30, A.M. No. 004-07-SC) court. (Sec. 31, A.M. No. 004-07-SC)

Protective order Q: AA, a twelve-year-old girl, while walking
alone met BB, a teenage boy who befriended
Any videotape or audiotape of a child that is part of her. Later, BB brought AA to a nearby shanty
the court record shall be under a protective order where he raped her. The Information for rape
that provides as follows: filed against BB states: “On or about October 30,
2015, in the City of S.P. and within the

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jurisdiction of this Honorable Court, the than the one under
accused, a minor, 15 years old with lewd design consideration.
and by means of force, violence, and
intimidation, did then and there, willfully, Adoptive It is a party’s reaction to a
unlawfully and feloniously had sexual statement or action by another
intercourse with AA, a minor, 12 years old, person when it is reasonable to
against the latter’s will and consent.” At the treat the party’s reaction as an
trial, the prosecutor called to the witness stand admission of something stated
AA as his first witness and manifested that he or implied by the other person.
be allowed to ask leading questions in A third person’s statement
conducting his direct examination pursuant to becomes the admission of the
the Rule on the Examination of a Child Witness. party embracing or espousing
BB’s counsel objected on the ground that the it. Adoptive admission may
prosecutor has not conducted a competency occur when a party:
examination on the witness, a requirement
before the rule cited can be applied in the case. 1. Expressly agrees to or
Is BB’s counsel correct? (2015 BAR) concurs in an oral
statement made by
A: NO. BB’s counsel is not correct. Every child is another;
presumed qualified to be a witness. (Sec. 6, Rule on 2. Hears a statement and
Examination of a Child Witness) To rebut the later on essentially
presumption of competence enjoyed by a child, the repeats it;
burden of proof lies on the party challenging his 3. Utters an acceptance or
competence. Here, AA, a 12-year old child witness builds upon the assertion
who is presumed to be competent, may be asked of another;
leading questions by the prosecutor in conducting 4. Replies by way of rebuttal
his direct examination pursuant to the RECW and to some specific points
the Revised Rules on Criminal Procedure. (People v. raised by another but
Santos, G.R. No. 171452, October 17, 2008) In order ignores further points
to obviate the counsel’s argument on the which he or she has heard
competency of AA as prosecution witness, the the other make; or
judge motu proprio conducted his voir dire 5. Reads and signs a written
examination of AA. statement made by
another. (Republic v.
ADMISSIONS AND CONFESSIONS Kendrick Development
Corp., G.R. No. 149576,
Admission August 8, 2006)

Any statement of fact made by a party against his Judicial admission vs. Extrajudicial admission
interest or unfavorable to the conclusion for which
he contends or is inconsistent with the facts alleged JUDICIAL ADMISSIONS EXTRAJUDICIAL
by him. ADMISSIONS
Those made in the Those made out of court
CLASSIFICATIONS OF ADMISSIONS course of the or in a judicial
Express It is a positive statement or act. proceeding in the same proceeding other than
Those made in definite, certain case. the one under
and unequivocal language. consideration.
Implied It is one which may be inferred Do not require proof Regarded as evidence
from the declarations or acts of and may be and must be offered as
a person. Therefore, an contradicted only by such, otherwise the
admission may be implied showing that it was court will not consider
from conduct, statement of made through palpable it in deciding the case.
silence of a party. mistake or that the
Judicial When made in the course of a imputed admission was
judicial proceeding. not, in fact, made. (Sec.
4, Rule 129)
Extrajudicial When made out of court or Judicial admissions Require formal offer for
even in a proceeding other need not be offered in it to be considered.

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 Evidence
evidence since it is not 1. The act, declaration or omission must have
evidence. It is superior been made by a party or by one by whom
to evidence and shall be he is legally bound;
considered by the court 2. The admission must be as to a relevant
as established. fact; and
Conclusive upon the Rebuttable. 3. The admission may only be given in
person admitting. evidence against him. (Herrera, 1999)
Subject to cross- Not subject to cross-
examination. examination. Self-serving declaration

Requisites for admissions to be admissible It is one which has been made extra-judicially by
the party to favor his interest. It is not admissible
1. They must involve matters of fact and not in evidence because they are inherently
of law; untrustworthy, and would open the door to fraud
2. They must be categorical and definite; and fabrication of testimony. (Lichauco v. Atlantic
3. They must be knowingly and voluntarily Gulf and Pacific Co. of Manila, 84 Phil. 330; People v.
made; and Demiar, 108 Phil. 651)
4. They must be adverse to the admitter’s
interests, otherwise it would be self- NOTE: Self-serving evidence are inadmissible
serving and inadmissible. (Regalado, 2008) because the adverse party is not given the
opportunity for cross-examination, and their
Admissions vs. Confessions admission would encourage fabrication of
testimony. (Hernandez v. CA, G.R. No. 104874,
ADMISSION CONFESSION December 14, 1993)
A statement of fact A statement of fact
which does not involve which involves an Statements in affidavits are not sufficient to prove
an acknowledgment of acknowledgment of the existence of agricultural tenancy. It is self-
guilt or liability. guilt or liability. serving. It will not suffice to prove consent of the
May be made by third Can be made only by the owner. Independent evidence is necessary.
persons and in certain party himself and, in (Rodriguez v. Salvador, G.R. No. 171972, June 8,
cases, are admissible some instances, are 2011)
against a party. admissible against his
co-accused. An admission against interest is the best evidence
Applies to both criminal Applies only to criminal which affords the greatest certainty of the facts in
and civil cases. cases. dispute since no man would declare anything
May be express or tacit. Must be express. against himself unless such declaration is true.
(Regalado, 2008) Thus, an admission against interest binds the
person who makes the same, and absent any
NOTE: An admission, in general sense, includes showing that this was made thru palpable mistake,
confessions, the former being a broader term no amount of rationalization can offset it. (Stanley
because, accordingly, a confession is also an Fine Furnitures, Elena and Carlos Wang v. Gallano,
“admission… by the accused of the fact charged G.R. No. 190486, November 26, 2014, as penned by
against him or of some fact essential to the charge.” J. Leonen)
(4 Wigmore, Sec. 1050) A confession is a specific
type of admission which refers only to an Q: After working as a laborer for 43 years, A
acknowledgement of guilt. (Riano, 2016) resigned from Rufina Patis Factory. Thereafter,
he availed of his pension from the SSS and
ADMISSION BY A PARTY executed an affidavit stating that he was never
re-employed. However, when he filed a claim
The act, declaration or omission of a party as to a for retirement benefits from his employer
relevant fact may be given in evidence against him before the NLRC, he alleged that he continued
or her. (Sec. 27, Rule 130, 2019 Amendments to the working for Rufina Patis Factory for 4 more
Revised Rules on Evidence) years. Can Rufina Patis Factory use A’s affidavit
executed before the SSS as an admission against
Requisites for the admissibility of an admission his interest?

A: YES. The document is the best evidence which
affords greater certainty of the facts in dispute.
While the affidavit may have facilitated the release

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of the retirement benefits from SSS, hence, testimony and not subject of the res inter alios acta
beneficial to him at that time, it may still be rule since such testimony is subject to cross
considered as admission against interest since the examination.
disserving quality of the admission is judged as of
the time it is used or offered in evidence and not Q: Mau sued Kenstar Travel Corporation for
when such admission was made. Thus, it matters breach of contract on the ground that when she
not that the admission was self-serving at the time went on a European tour, there was no
it was made, so long as it is against A’s present European tour manager, the Filipino guide was
claim. (Rufina Patis Factory v. Alusitain, G.R. No. a first timer, and the hotels where they were
146202, July 14, 2004) billeted were not first class. Kenstar contended
that the tour was satisfactory because out of 18
RES INTER ALIOS ACTA RULE participants, only Mau actually complained. Can
the fact that the other participants in the tour
Res inter alios acta alteri nocere non debet filed no case against Kenstar be used as
evidence to show that B has no cause of action?
This principle literally means “things done
between strangers ought not to injure those who A: NO. Sec. 28, Rule 130 of the Rules of Court
are not parties to them.” (Black’s Law Dictionary, provides that the rights of a party cannot be
5th Ed.; Dynamic Signmaker Outdoor Advertising prejudiced by an act, declaration or omission of
Services, Inc. v. Potongan, G.R. No. 156589, June 27, another. The failure of the other participants to file
2005) and action should not prejudice Mau. (Geraldez v.
Court of Appeals, G.R. No. 108253, February 23,
Reason for the rule on res inter alios acta 1994)

On principle of good faith and mutual convenience, ADMISSION BY A THIRD PARTY
a man’s own acts are binding upon himself and are
evidence against him. So are his conduct and The rights of a party cannot be prejudiced by an
declarations. It would not only be rightly act, declaration, or omission of another. (Sec. 28,
inconvenient but also manifestly unjust, that a man Rule 130, 2019 Amendments to the Revised Rules on
should be bound by the acts of mere unauthorized Evidence)
strangers; and if a party ought not to be bound by
the acts of strangers, neither ought their acts or GR: The act, declaration or omission made out of
conduct be used as evidence against him. (People v. court of a party as to a relevant fact may be given in
Guittap, G.R. No. 144621, May 9, 2003) evidence against him but may not be given in
evidence against another person.
Two branches of res inter alios acta rule
XPN: The act or omission of one party made out of
1. Admission by third party. The rights of a court may be used as evidence against another
party cannot be prejudiced by an act, when its admission is made by:
declaration, or omission of another (Sec.
29, Rule 130, 2019 Amendments to the 1. A partner, during the existence of the
Revised Rules on Evidence) (2003 BAR); partnership (Sec. 30, Rule 130, 2019
and Amendments to the Revised Rules on
2. Similar Acts Rule. Evidence that one did Evidence);
or did not do a certain thing at one time is 2. An agent authorized by the party to make
not admissible to prove that he did or did a statement concerning the subject or
not do the same or similar thing at another within the scope of his or her authority,
time. (Sec. 35, Rule 130, 2019 Amendments during the existence of the agency (Ibid.);
to the Revised Rules on Evidence) 3. A joint owner;
4. A joint debtor;
NOTE: The rule has reference to extrajudicial 5. A person jointly interested with the party;
declarations. Hence, statements made in open 6. A conspirator; or
court by a witness implicating persons aside from 7. A privy or successor in interest (Suarez
him are admissible as declarations from one who and De la Banda, 2006)
has personal knowledge of the facts testified to.
(Riano, 2016) Q: Francisco was charged with violating PD No.
1612 or the Anti Fencing Decree. Among the
The testimony of the accused against his co- evidence submitted against him was the
accused in open court is considered as admissible testimony of Jovita in a previous criminal case

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 Evidence
wherein the accused therein, Pacita, was The same rule applies to an act or declaration of a
convicted of theft and where she stated that joint owner, joint debtor or other person jointly
Francisco bought stolen jewelries from her. Can interested with the party (Sec. 29, Rule 130).
the admission in the previous case be used
against Francisco? Dissolved Partnership

A: NO. Francisco was not a party to the previous GR: Admissions made after a partnership has been
criminal case where Pacita was the accused. The dissolved do not fall within the exception because
acts or declarations of a person are not admissible such are made when the partnership ceased to
against a third party. Only parties to a case are exist.
bound by a judgment of the trial court. (Francisco v.
People, G.R. No. 146584, July 12, 2004) Without XPN: Where the admissions are made in
presenting Jovita to testify on her admission during connection with the winding up of the partnership
the previous criminal case, even if made in a affairs, said admissions are still admissible as the
previous judicial proceeding, it remains an partner is acting as an agent of his co-partner in
extrajudicial admission without any effect, insofar said winding up. (Regalado, 2008)
as the present action against Francisco is
concerned. Q: The Republic of the Philippines filed a
forfeiture case against the heirs of the late
ADMISSION BY A CO-PARTNER OR AGENT former President Marcos. In one of her
manifestations before the Sandiganbayan,
The act or declaration of a partner or agent Imelda Marcos admitted that she owned 90% of
authorized by the party to make a statement the Swiss bank deposits and only 10% belongs
concerning the subject, or within the scope of his to the estate of the late President Marcos. The
or her authority and during the existence of the other heirs also made separate admissions in
partnership or agency, may be given in evidence their pleadings. What is the value of these
against such party after the partnership or agency admissions?
is shown by evidence other than such act or
declaration. The same rule applies to the act or A: The individual and separate admissions of each
declaration of a joint owner, joint debtor, or other respondent bind all of them pursuant to Sec. 29
person jointly interested with the party. (Sec. 30, (now Sec. 30), Rule 130 of the Rules of Court. The
Rule 130, 2019 Amendments to the Revised Rules on declaration of a party is admissible against a party
Evidence) whenever a “privity of estate” exists between the
declarant and the party. It generally denotes a
Requisites for an admission of a partner to bind succession of rights. Without doubt, privity exists
his co-partners or for an agent to bind his among the respondents in this case. Where several
principal co-parties exist, who are jointly interested in the
subject matter of the controversy, the admission of
1. The act or declaration of a partner or agent one is competent against all. (Republic v.
of the party must be within the scope of Sandiganbayan, G.R. No. 152154, July 15, 2003)
his authority;
2. The admission was made during the ADMISSION BY A CONSPIRATOR
existence of the partnership or agency;
and The act or declaration of a conspirator in
3. The existence of the partnership or agency furtherance of the conspiracy and during its
is proven by independent evidence other existence may be given in evidence aginst the co-
than such act or declaration. The Articles conspirator after the conspiracy is shown by
of Incorporation or a Special Power of evidence other than such act or declaration. (Sec.
Attorney may be presented for such 31, Rule 130, 2019 Revised Rules on Evidence)
purpose. (Suarez and De la Banda, 2000)
Conspiracy
NOTE: Any declaration made before the
partnership or agency existed, or those made after, A conspiracy exists when two or more persons
are not admissible against the other partners or come to an agreement concerning the commission
principal but remains admissible as against the of a felony and decide to commit it. (Herrera, 1999)
partner or agent making the declaration. (Riano,
2019) NOTE: Once conspiracy is proven, the act of one is
the act of all. The statement therefore of one may
be admitted against the other co-conspirators as an

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 REMEDIAL LAW
exception to the rule of res inter alios acta. (Riano, participation in the offense. (Regalado,
2016) 2008)

Requisites of an admission by a conspirator When extrajudicial admission becomes a
judicial admission
1. The declaration or act be made or done
during the existence of the conspiracy; While it is true that statements made by a
2. The declaration or act must be in conspirator against a co-conspirator are admissible
furtherance of the purpose and object of only when made during the existence of the
the conspiracy; and conspiracy, if the declarant repeats the statement
3. The conspiracy must be shown by in court, his extrajudicial confession becomes a
evidence other than the declaration or act judicial admission, making the testimony
(evidence aliunde). (Sec. 31, Rule 130, 2019 admissible as to both conspirators. (People v.
Amendments to the Revised Rules on Baharan, G.R. No. 188314, January 10, 2011)
Evidence)
ADMISSION BY PRIVIES
NOTE: This rule applies only to extrajudicial acts
or admission and not to testimony at trial where Where one derives title to property from another,
the party adversely affected has the opportunity to the latter’s act, declaration, or omission of the
cross-examine the witness. (People v. Baharan, G.R. latter, while holding the title, in relation to the
No. L-188314, January 10, 2011) property, is evidence against the former if done
while the latter was holding the title. (Sec. 32, Rule
Q: A was convicted of robbery with homicide. 130, 2019 Amendments to the Revised Rules on
Among the evidence used to convict her was the Evidence)
extrajudicial confession of her co-accused, an
alleged co-conspirator, which confession was Privies
made with the assistance of counsel. Can such
admission be used against A? Persons who are partakers or have an interest in
any action or thing, or any relation to another.
A: NO. In order for such admission to be admissible (Black’s Law Dictionary, 5th Ed.)
in evidence, there must be independent evidence
aside from the extrajudicial confession to prove The declarations of a person are admissible against
conspiracy. There being no independent evidence a party whenever a "privity of estate" exists
to prove conspiracy, A’s culpability was not between the declarant and the party, the term
sufficiently established. (People v. Guittap, G.R. No. "privity of estate" generally denoting a succession
144621, May 9, 2003) in rights. Consequently, an admission of one in
privity with a party to the record is
Extrajudicial admissions made after the competent. Without doubt, privity exists among
conspiracy had terminated the respondents in this case. And where several co-
parties to the record are jointly interested in the
GR: Extrajudicial admissions made by a subject matter of the controversy, the admission of
conspirator after the conspiracy had terminated one is competent against all. (Republic v.
and even before trial are not admissible against the Sandiganbayan, Ferdinand E. Marcos, and Imelda
co-conspirator. Romualdez Marcos, G.R. No. 152154, July 15, 2003)

XPNs: Requisites of an admission by privies

1. If made in the presence of the co- 1. There must be an act, declaration, or
conspirator who expressly or impliedly omission by a predecessor-in-interest;
agreed therein; 2. The act, declaration, or omission of the
2. Where the facts in said admission are predecessor must have occurred while he
confirmed in the individual extrajudicial was holding (not after) the title to the
confessions made by the co-conspirator property; and
after their apprehension; 3. The act, declaration, or omission must be
3. As a circumstance to determine the in relation to the property. (Sec. 32, Rule
credibility of the witness; or 130, 2019 Amendments to the Revised Rules
4. As circumstantial evidence to show the on Evidence; Riano 2016)
probability of the co-conspirator’s

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 Evidence
Q: Del Monte Development Corporation filed a of them. (People v. Garcia, Jr., G.R. No. 138470, April
case to be adjudged owner of a piece of land 1, 2003)
against Ababa claiming that it acquired a lot
from Lucero in 1964. As a defense, Ababa Q: Pogi was brought to the police station fr
presented a document executed by Lucero in investigation on the alleged rape of Ganda.
1968 to settle the controversy. Can the While in the police station, Ganda pointed to
document bind Del Monte as successor in Pogi and said, “He’s the one who raped me.”
interest of Lucero? Pogi remained silent. May Pogi’s silence be
offered in evidence as an implied admission of
A: NO. The admission of a former owner of a guilt?
property must have been made while he was the
owner thereof in order that such admission may be A: NO. The rule on admission by silence does nt
binding upon the present owner. Hence, Lucero’s apply since Pogi had a right to remain silent while
act of executing the 1968 document have no under custodial investigation. (Riguera, 2020)
binding effect on Del Monte, the ownership of the
land having passed to it in 1964. (Gevero v. IAC, G.R. Principle of adoptive admission
No. 77029, August 30, 1990)
It is a party’s reaction to a statement or action by
ADMISSION BY SILENCE another person when it is reasonable to treat the
party’s reaction as an admission of something
There is admission by silence when a party does or stated or implied by the other person. The basis for
says nothing when he hears or observes an act or admissibility of admissions made vicariously is that
declaration made in his presence when such act or arising from the ratification or adoption by the
declaration is such as naturally to call for action or party of the statements which the other person had
comment if not true, and when proper and possible made. (Estrada v. Desierto, G.R. Nos. 146710-15,
for him or her to do so. Such may be given in April 3, 2001)
evidence against him or her. (Sec. 33, Rule 130,
2019 Amendments to the Revised Rules on Evidence) Illustration: The alleged admissions made by
President Estrada when his options had dwindled
Requisites of an admission by silence when, according to the Angara Diary, the Armed
Forces withdrew its support from him as President
1. The party heard and understood the and Commander-in-Chief. Thus, Angara had to
statement; allegedly ask Senate President Pimentel to advise
2. He or she was at a liberty to make a denial; Estrada to consider the option of “dignified exit or
3. The statement was about a matter resignation.” Estrada did not object to the
affecting his or her rights or in which he or suggested option but simply said he could never
she was interested and which naturally leave the country. According to the court, his
calls for a response; silence on this and other related suggestions can be
4. The facts were within his or her taken as adoptive admissions by him. (Ibid.)
knowledge; and
5. The fact admitted from his or her silence is CONFESSIONS
material to the issue. (People v. Paragsa,
G.R. No. L-44060, July 20, 1978; Sec. 33, Rule The declaration of an accused acknowledging his
130; Riano 2016) guilt of the offense charged, or of any offense
necessarily included therein, may be given in
NOTE: The silence of a person under investigation evidence against him or her. (Sec. 34, Rule 130,
for the commission of an offense should not be 2019 Amendments to the Revised Rules on Evidence)
construed as an admission by silence because a
person has the right to remain silent and to be Requisites for the admissibility of a confession
informed of that right. (Sec. 12, Art. III, 1987
Constitution; Riano, 2016) 1. It must involve an express and categorical
acknowledgement of guilt (U.S. v. Corrales,
However, if it is not the police investigators who 28 Phil. 362);
confronted the accused but the owner of a 2. Facts admitted must be constitutive of a
carnapped vehicle, the silence of one after being criminal offense (U.S. v. Flores, 26 Phil.
implicated by the other accused serves as an 262);
admission by silence as he did not refute the 3. It must have been given voluntarily
statements of his co-accused despite having heard (People v. Nishishima, 57 Phil. 26);

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 REMEDIAL LAW
4. It must have been intelligently made Admissibility of extrajudicial confessions
(Bilaan v. Cusi, G.R. No. L-18179, June 29,
1962), the accused realizing the GR: An extrajudicial confession is not admissible
importance or legal significance of his act against the confessor’s co-accused. Said confession
(U.S. v. Agatea, 40 Phil. 596); is hearsay evidence and violative of the res inter
5. There must have been no violation of Sec. alios acta rule.
12, Art. III, 1987 Constitution (Regalado,
2008); and XPN: It may be admitted in evidence against his co-
accused in the following cases:
NOTE: A confession to a person, who is not
a police officer, is admissible in evidence. 1. In case of implied acquiescence of the co-
The declaration acknowledging his guilt of accused to the extrajudicial confession;
the offense charged, or of any offense 2. In case of interlocking confessions;
necessarily included therein, may be given 3. Where the accused admitted the facts
in evidence against the declarant. Such stated by the confessant after being
admissions are not covered by Secs. 12 (1) apprised of such confession;
and (3), Article III, 1987 Constitution, 4. If they are charged as co-conspirators of
because they were not extracted while he the crime which was confessed by one of
or she was under custodial investigation. the accused and said confession is used
(People v. Davao, et al., G.R. No. 174660, only as corroborating evidence;
May 30, 2011) 5. Where the confession is used as
circumstantial evidence to show the
6. It must be in writing and signed by such probability of participation by the co-
person in the presence of his counsel or in conspirator;
the latter’s absence, upon a valid waiver 6. When the confessant testified for his co-
and in the presence of any of the parents, defendant; and
elder brothers and sisters, his spouse, the 7. Where the co-conspirator’s extrajudicial
municipal mayor, the municipal judge, confession is corroborated by other
district school supervisor or priest or evidence on record. (Regalado, 2008)
minister of the gospel as chosen by him or
her. (Sec. 2[d], R.A. 7438) Q: The mutilated cadaver of a woman was
discovered near a creek. Due to witnesses
CLASSIFICATION OF CONFESSIONS attesting that he was the last person seen with
Judicial One made by the accused before the woman when she was still alive, Carlito was
confession an open court in which the case is arrested within 5 hours after the discovery of
pending and in the course of legal the cadaver and brought to the police station.
proceedings therein and, by itself, The crime laboratory determined that the
can sustain conviction and is woman had been raped. While in police
admissible against one’s co- custody, Carlito broke down in the presence of
accused. It is governed by Secs. 1, an assisting counsel and orally confessed to the
3 & 4 of Rule 116. investigator that he had raped and killed the
Extrajudicial One made in any other place or woman, detailing the acts he had performed up
confession occasion other than the court to his dumping of the body near the creek. He
where the case is pending and was genuinely remorseful. During the trial, the
cannot sustain a conviction State presented the investigator to testify the
unless corroborated by evidence oral confession of Carlito. Is the oral confession
of corpus delicti. It is generally admissible as evidence of guilt? (2008 Bar)
binding only upon the confessant
and is not admissible against his A: NO. The oral confession is not admissible as
co-accused. It is governed by Sec. evidence of guilt. The confession is in the nature of
33 of Rule 130. (Regalado, 2008) an extrajudicial confession before an investigator
while under custodial investigation. Hence, the
NOTE: If the accused admits statutory provisions under R.A. 7438 (Sec. 2[d])
having committed the act in will have to be complied with.
question but alleges a
justification therefor, such as Under said law, any extrajudicial confession made
absence of criminal intent, the by a person arrested, detained, or under custodial
same is merely an admission. investigation shall be in writing and signed by such
(Ibid.) person in the presence of his counsel. An oral

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 Evidence
confession does not comply with the mandatory 3. Identity;
provisions of the law. Under R.A. 7438, the 4. Plan;
confession is inadmissible in evidence in any 5. System;
proceeding. (Sec. 2[d], R.A. 7438; Riano, 2016) 6. Scheme;
7. Custom;
Requirements for an admission of guilt of an 8. Habit;
accused during a custodial investigation to be 9. Usage; and
admitted in evidence 10. The like (Ibid.)

1. The admission must be voluntary (Sec. Purpose of the rule
12(1), 1987 Constitution);
2. The admission must be in writing (R.A. Evidence of similar acts or occurrences compels
7438); the defendant to meet allegations that are not
3. The admission must be made with the mentioned in the complaint, confuses him in his
assistance of competent, independent defense, raises a variety of relevant issues, and
counsel (Sec. 12, 1987 Constitution); diverts the attention of the court from the issues
4. The admission must be express (People v. immediately before it. Hence, the evidentiary rule
Prinsipe, G.R. No. 135862, May 2, 2002); and guards the practical inconvenience of trying
5. In case the accused waives his rights to collateral issues and protracting the trial, and
silence and to counsel, such waiver must prevents surprise or other mischief prejudicial to
be in writing, executed with the assistance litigants. (Cruz v. CA, G.R. No. 126713, July 27, 1998)
of competent, independent counsel. (R.A.
7438) Q: The defendants argued that Xavierville
Estate Inc. (XEI) had allowed them to pay the
Doctrine of Interlocking Confessions balance of the purchase of a subdivision lot in
120 monthly installments. The defendants
It states that extrajudicial confessions introduced three contracts to sell in which XEI
independently made without collusion which are granted two lot buyers a 120-month term of
identical with each other in their essential details payment and a third one a 180-month term.
and corroborated by other evidence against the May these three contracts tto sell prove a habit
persons implicated, are admissible to show the or custom on the part of XEI to grant 120-
probability of the latter’s actual participation in the month terms of payments to it buyers?
commission of the crime. (People v. Mulit, G.R. No.
181043, October 8, 2008) A: NO. Under Sec. 35, Rule 130, evidence that one
did or did not do a certain thing at one time is not
Q: May an extrajudicial confession made by an admissible to prove that he did or did not do the
accused be sufficient ground for conviction same or a similar thing at another time; but it may
be received to prove usage, habit or custom.
A: NO, unless it is corroborated by evidence of
corpus delicti. (Riguera, 2020) Courts must contend with the caveat that before
they admit evidence of usage, habit or pattern or
SIMILAR ACTS AS EVIDENCE conduct, the offering party must establish the
degree of specificity and frequency of uniform
GR: Evidence that one did or did not do a certain response that ensures more than a mere tendency
thing at one time is not admissible to prove that he to act in a given manner but rather conduct that is
or she did or did not do the same or similar thing at semi-automatic in nature. In determining whether
another time.(Sec. 35, Rule 130, 2019 Amendments the examples are numerous enough and
to the Revised Rules on Evidence) This is also sufficiently regular, the key criteria are adequacy of
referred to as the “Propensity Rule.” (2002 Bar) sampling and uniformity of response.

NOTE: This provision constitutes as the second Here the defendants did not introduce an evidence
branch of the res inter alios acta rule as previously that XEI and all the lot buyers in the subdivision
mentioned. had executed contracts of sale containing uniform
terms and conditions. Moreover even in the 3
XPNs: Evidence of similar or previous acts may be contracts adduced by the defendants, there was no
received to prove the following: (SKIPS-SCHUL) uniformity as two referred to 120-month terms
while the third mentioned a 180-month term.
1. Specific intent; (Boston Bank v. Manalo, G.R. No. 158149, February
2. Knowledge; 9, 2006).

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 REMEDIAL LAW
ADMISSIBILITY OF OFFERS OF COMPROMISE Q: What is the underlying reason for the
adoption of the rule against the admission of an
CIVIL CASE CRIMINAL CASE offer of compromise in civil cases? (1997 Bar)
GR: It is NOT an GR: It may be received in
admission of any evidence as an implied A: It is for the reason that parties are encouraged
liability and is NOT admission of guilt. to enter into compromises. Courts should endeavor
admissible against to persuade the litigants in a civil case to agree
the offeror. XPNs: upon some fair compromise. (Art. 2029, NCC)
1. In quasi-offenses During pre-trial, courts should direct the parties to
Neither is evidence where there is no consider the possibility of an amicable settlement.
of conduct nor criminal intent (Sec. 2[a], Rule 18, 2019 Amendments to the Revised
statements made in (negligence), such as Rules on Evidence)
compromise reckless imprudence;
negotiations 2. In criminal cases Q: Berting was accused of having raped Lisa.
admissible. allowed by law to be Rule on the admissibility of an offer of Berting
compromised such to marry Lisa. (1998 Bar)
XPN: Evidence as:
otherwise a. Sec. 7(c), National A: Berting’s offer to marry Lisa is admissible in
discoverable or Internal Revenue evidence as an implied admission of guilt because
offered for another Code – The CIR rape cases are not allowed to be compromised.
purpose, such as has the power to (Sec. 28, Rule 130, 2019 Amendments to the Revised
proving bias or compromise Rules on Evidence)
prejudice of a minor criminal
witness, negativing a violations as may Q: Lloydie, while driving his car, ran over Bea.
contention of undue be determined by Lloydie visited Bea at the hospital and offered
delay, or proving an the Secretary of to pay for her hospitalization expenses. After
effort to obstruct a Finance; the filing of the criminal case against Lloydie
criminal b. Sec. 408, Local for serious physical injuries through reckless
investigation or Government Code imprudence, Lloydie’s insurance carrier offered
prosecution. – Allowed in to pay for the injuries and damages suffered by
(Sec. 28, Rule 130, minor offenses Bea. The offer was rejected because Bea
2019 Amendments to whose penalties considered the amount offered as inadequate.
the Revised Rules on do not exceed one
Evidence) year; 1. Is the offer by Lloydie to pay the
c. Art. 266-C, Revised hospitalization expenses of Bea
Penal Code – In admissible in evidence?
cases of marital 2. Is the offer by Lloydie’s insurance
rape, where carrier to pay for the injuries and
subsequent damages of Bea admissible in evidence?
forgiveness by the (1997 Bar)
wife extinguishes
the criminal A:
action or penalty. 1. NO. It is not admissible in evidence to
(Suarez and De la prove his guilt in both the civil and
Banda, 2006) criminal cases. (Sec. 28, Rule 130, 2019
Amendments to the Revised Rules on
Evidence)
NOTE: No compromise is valid in the following 2. NO. It is irrelevant. The obligation of the
cases: insurance company is based on the
contract of insurance and is not admissible
1. Civil status of persons; in evidence against the accused because it
2. Validity of a marriage or legal separation; was not offered by the accused but by the
3. Any ground for legal separation; insurance company which is not his agent.
4. Future support;
5. Jurisdiction of courts; Admissibility of plea or offer (2008 Bar)
6. Future legitime;
7. Habeas corpus; and OFFER OR PLEA ADMISSIBILITY
8. Election cases (Herrera, 1999) Plea of guilty later Not admissible in
withdrawn by the evidence against the

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 Evidence
accused. accused who made the Q: In a police lineup, victim from behind a one-
plea way mirror points to the acused as the one who
Offer by the accused to Not admissible in assaulted him. The victim dies before trial.
plead guilty to a lesser evidence against the During the trial, the police officer conducting
offense but unaccepted accused who made the the lineup is asked who the victim pointed to as
by prosecution offer the culprit. May the defense object and if so, on
Offer to pay or payment Not admissible in what grounds?
of medical, hospital or evidence as proof of
other expenses civil or criminal liability A: YES, the defense may object on the ground of
occasioned by injury for the injury. (Suarez hearsay. An out-of-court statement includes not
(Good Samaritan Rule) and De la Banda, only oral or written assertions but also non-verbal
Evidence: A Lawyer’s conduct intended as an assertion. The victim’s act
Companion, 2006 ed.) of pointing out a person in the lineup is a
Statement made in the Not admissible against nonverbal assertion. It is as if the victim was
course of plea the accused who made saying, “He’s the one who assaulted me.” The
bargaining with the the statement (Sec. 28, proponent may try to t the identification under the
prosecution, which does Rule 130, 2019 excited-utterance exception. (Riguera, 2020)
not result in a plea of Amendments to the
guilty or which results Revised Rules on When a statement is NOT considered as
in a plea of guilty later Evidence) hearsay
withdrawn
A statement is not hearsay if the declarant testifies
Good Samaritan Rule at the trial or hearing and is subject to cross-
examination concerning the statement, and the
An offer to pay or the payment of medical, hospital statement is:
and other expenses occasioned by an injury is not
admissible in evidence as proof of civil and a. Prior inconsistent statement under
criminal liability for the injury. oath - Inconsistent with the declarant’s
testimony, and was given under oath
RATIO: Humanitarian acts or charitable responses subject to the penalty of perjury at a trial,
should be encouraged and rewarded instead of hearing, or other proceeding, or in a
being discouraged or penalized. (Regalado, 2008) deposition;
b. Prior consistent statement - Consistent
Unaccepted offer with the declarant’s testimony and is
offered to rebut an express or implied
An offer in writing to pay a particular sum of charge against the declarant of recent
money or to deliver a written instrument or fabrication or improper influence or motive;
specific personal property is, if rejected without or
valid cause, equivalent to the actual production and c. Prior statement of identification - One of
tender of the money, instrument, or property. (Sec. identification of a person made after
36, Rule 130, 2019 Amendments to the Revised Rules perceiving him or her. (Par. 2, Sec. 37, Rule
on Evidence) 130, 2019 Amendments to the Revised Rules
on Evidence)
HEARSAY RULE
Elements of hearsay evidence
MEANING OF HEARSAY
1. There must be an out-of-court statement;
Hearsay is a statement other than one made by the and
declarant while testifying at a trial or hearing, 2. The statement made out-of-court, is
offered to prove the truth of the facts asserted repeated and offered by the witness in
therein. (Sec. 37, Rule 130, 2019 Amendments to the court to prove the truth of the matters
Revised Rules on Evidence) asserted by the statement. (Riano, 2016)

The hearsay statement may be: NOTE: Newspaper clippings are hearsay and of no
evidentiary value at all whether objected to or not,
1. An oral or written assertion; or unless offered for a purpose other than proving the
2. A non-verbal conduct of a person if it is truth of the matter asserted. (Feria v. CA, G.R. No.
intended by him or her as an assertion. 122954, February 15, 2000)
(ibid)

603
 REMEDIAL LAW
Medical certificates cannot be admitted in the A witness can testify only to those facts which he or
absence of the testimony of the physician who she knows of his or her personal knowledge; that
examined the complaint for alleged torture is, which are derived from his or her own
wounds. perception. (Sec. 22, Rule 130, 2019 Amendments to
the Revised Rules on Evidence)
Affidavits are inadmissible unless the affiants
themselves are placed in the witness stand to If it can be shown from the surrounding
testify therefrom. circumstances that a hearsay declarant lacked
firsthand knowledge of the subject of his
Statements made through an interpreter declaration, evidence of that declaration will
ordinarily be excluded even if it would otherwise
GR: Statements made through an interpreter are come within some exception to the hearsay rule.
considered hearsay if a witness is offered to testify (Rules Committee Notes, citing Lempert & Saltzbur)
to the statements of another person, spoken in a
language not understood by him, but translated for HEARSAY RULE LACK OF FIRST-HAND
him by an interpreter, such witness is not qualified, KNOWLEDGE RULE
because he does not speak from personal A statement other than Consists of testimony
knowledge. All that he can know as to the one made by the that is not based on
testimony is from the interpretation thereof which declarant while personal knowledge of
is in fact given by another person. testifying at a trial or the person testifying.
hearing, offered to
XPNs: In cases where the interpreter had been prove the truth of the
selected: facts asserted therein.
The witness purports to The witness purports to
1. By common consent of the parties give an account of what give the facts directly
endeavoring to converse; or another has told him upon his own credit
2. By a party against whom the statements of and this is offered to (though it may appear
the interpreter where offered in evidence evidence the truth of later that he was
(Principal-Agent Rule). the other’s report. speaking only on the
faith of report from
REASON FOR EXCLUSION others. (Rules
OF HEARSAY EVIDENCE Committee Notes, citing
McCormick)
a. The lack of opportunity in the part of the Subject to certain Has no formal
oarty against which it is offered to cross- exceptions exceptions. exceptions. (Rules
examine the declarant, that is, the person Committee Notes, citing
who made the statement. Lempert & Saltzbur)
b. The statement or declaration under oath.
c. The court does not have the opportunity to Q: Romeo is sued for damages for injuries
observe the demeanor of the declarant. suffered by the plaintiff in a vehicular accident.
(Riguera, 2020, citing Estrada v. Desierto, Julieta, a witness in court, testifies that Romeo
G.R. Nos. 146710-15, April 3, 2001) told her that he heard Antonio, a witness to the
accident, gives an excited account of the
In criminal cases, its admission would be a accident immediately after its occurrence. Is
violation of the constitutional provision that the Julieta’s testimony admissible against Romeo
accused shall enjoy the right of being confronted over proper and timely objection? Why? (2002
with the witnesses testifying against him and to Bar)
cross-examine them. Moreover, the court is
without opportunity to test the credibility of A: NO, because the testimony is hearsay. In her
hearsay statements by observing the demeanor of testimony, Julieta purports to give an account of
the person who made them. (People v. Pruna, G.R. what Romeo had told her. In effect, she is testifying
No. 138471, October 10, 2002) to nothing more than her statement, and not the
truth of the facts asserted therein.
EVIDENCE NOT BASED ON PERSONAL
KNOWLEDGE vs. HEARSAY EVIDENCE EXCEPTIONS TO THE HEARSAY RULE
(1999 BAR)
Evidence not based on personal knowledge
(Lack of first-hand knowledge rule) 1. Dying declaration (Sec. 38, Rule 130);

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 Evidence
2. Statement of decedent or person of Requisites for the admissibility of a dying
unsound mind (Sec. 39, Rule 130) declaration
3. Declaration against interest (Sec. 40, Rule
130); 1. The declaration concerns the cause and
4. Act or declaration about pedigree (Sec. 41, the surrounding circumstances of the
Rule 130); declarant’s death;
5. Family reputation or tradition regarding 2. It is made when death appears to be
pedigree (Sec. 42, Rule 130); imminent and the declarant is under
6. Common reputation (Sec. 43, Rule 130); consciousness of an impending death;
7. Part of res gestae (Sec. 44, Rule 130); 3. The declarant would have been competent
8. Records of regularly conducted business to testify had he or she survived; and
activity (Sec. 45, Rule 130); 4. The dying declaration is offered in a case
9. Entries in official records (Sec. 46, Rule in which the subject inquiry involves the
130); declarant’s death. (People of the Philippines
10. Commercial lists and the like (Sec. 47, Rule v. Gatarin, G.R. No. 198022, April 7, 2014)
130);
11. Learned treatises. (Sec. 48, Rule 130); NOTE: In order to ake a dying declaration
12. Testimony or deposition at a former admissible, a fixed belief in inevitable and imminent
proceeding (Sec. 49, Rule 130); and death must be entered by the declarant. It is the
13. Residual exception (Sec. 50, Rule 130, 2019 belief in impending death and not the rapid
Amendments to the Revised Rules on succession of death in point of fact that renders a
Evidence) dying declaration admissible. (People of the
Philippines v. Quiasayas, G.R. No. 198022, April 7,
NOTE: The exceptions are hearsay but they are 2014)
deemed admissible by reason of necessity and
trustworthiness (Riano, 2016). Test to determine the application of the rule on
dying declaration
Reason for admissibility
Whether the declarant has abandoned all hopes of
They are admissible by reason of relevancy, survival and looked on death as certainly
necessity and trustworthiness. (Estrada v. Desierto, impending. (Ibid.)
supra)
Time interval
DYING DECLARATION
(Sec. 38, Rule 130) GR: The intervening time from the making of a
dying declaration up to the time of death is
The declaration of a dying person, made under the immaterial in its admissibility, as long as it was
consciousness of an impending death, may be made under the consciousness of impending death.
received in any case wherein his death is the
subject of inquiry, as evidence of the cause and XPNs:
surrounding circumstances of such death. (Sec. 38,
Rule 130, 2019 Amendments to the Revised Rules on 1. If there is retraction made by the declarant
Evidence) (1991, 1992, 1993, 1996, 1998, 1999, before he died; or
2007, 2010, 2017 BAR) 2. His declaration is ambiguous as to
whether he believed that his death was
These are ante mortem statements made by a imminent when he made such declaration.
person after the mortal wound has been inflicted (Regalado, 2008)
under the belief that the death is certain, stating
the fact concerning the cause of and the It is of no moment that the victim died seven days
circumstances surrounding the attack. (Herrera, from the stabbing incident and after receiving
1999) adequate care and treatment, because the apparent
proximate cause of his death was a consequence of
NOTE: Where the elements of both a dying the stabbing. (People of the Philippines v. Rarugal,
declaration and a statement as part of the res G.R. No. 188603, January 16, 2013)
gestae are present, the statement may be admitted
as a dying declaration and at the same time as part Factors in determining whether the declarant is
of res gestae. (People v. Gado, G.R. No. 129556, conscious of his impending death
November 11, 1998)

605
 REMEDIAL LAW
1. The words or statements of the declarant statement was repeated to Borre’s wife,
on the same occasion; Resurreccion, who followed him at the hospital.
2. His conduct at the time the declaration For his part, Palanas interposed the defense of
was made; and denial and alibi. He claimed that on the day
3. The serious nature of his wounds as would before the incident, he was in Parañaque City
necessarily engender a belief on his part attending to the needs of his sick father. On the
that he would not survive therefrom. next day, he went to Tondo, Manila for a
(Regalado, 2008) baptism and stayed there from morning until
9:00 p.m., after which he returned to his father
NOTE: The dying declaration of the deceased is not in Parañaque City. He maintained that he was
admissible as an ante-mortem declaration when not aware of the death of Borre until he was
the deceased was in doubt as to whether he would informed by a neighbor that Resurreccion was
die or not. It may, however, be admitted as part of accusing him of killing her husband.
res gestae when it is made immediate after a
startling occurrence. (People of the Philippines v. Can Borre’s statements on his way to the
Laquinon, G.R. No. L-45470, February 28, 1985) hospital be considered a dying declaration and
part of the res gestae?
Q: Sam was charged with robbery and
homicide. Kitchie, the victim, suffered several A: YES. Borre’s statements constitute a dying
stab wounds. It appears that 11 hours after the declaration as they pertained to the cause and
crime, while Kitchie was being brought to the circumstances of his death. Moreover, taking into
hospital in a jeep, with his brother and a consideration the number and severity of his
policeman as companions, Kitchie was asked wounds, it may be reasonably presumed that he
certain questions which she answered, pointing uttered the same under a fixed belief that his own
to Sam as her assailant. Her answers were put death was already imminent.
down in writing, but since she was in a critical
condition, her brother and the policeman In the same vein, Borre’s statements may likewise
signed the statement. Is the statement be deemed to form part of the res gestae as they
admissible as a dying declaration? Explain. refer to a startling occurrence, i.e., him being shot.
(1999 BAR) While on his way to the hospital, Borre had no time
to contrive the identification of his assailants, thus,
A: YES. The statement is admissible as a dying his utterance was made in spontaneity and only in
declaration if the victim subsequently died and her reaction to the startling occurrence. (People v.
answers were made under the consciousness of an Palanas, G.R. No. 214453, June 17, 2015)
impending death. The fact that she did not sign the
statement pointing to the accused as her assailant Assailing a dying declaration
because she was in a critical condition does not
affect its admissibility as a dying declaration. The declaration may be attacked in the same
(People v. Viovicente, G.R. No. 118707, February 2, manner as one would do a testimony in open court.
1998) The declarant himself may be impeached through
the normal methods provided for under the rules.
NOTE: A dying declaration may be oral or written. A dying declaration, as an exception to the hearsay
If oral, the witness who heard it may testify thereto rule, is not meant to confer competency on an
without the necessity of reproducing the word of otherwise incompetent witness.
the decedent, if he is able to give the substance
thereof. An unsigned dying declaration may be STATEMENT OF DECEDENT OR A PERSON OF
used as a memorandum by the witness who took it UNSOUND MIND
down. (People v. Boller, G.R. Nos. 144222-24, April 3, (Sec. 39, Rule 130)
2002)
Requisites:
Q: Zapanta, while watching television, heard 4
successive gunshots. When Zapanta looked 1. There is an action against an executor or
through the open door, he saw 2 men armed administrator or other representative of a
with .38 caliber revolvers standing a meter deceased person, or against a person of
away from Borre. He saw Palanas deliver the unsound mind;
fourth shot but he could not identify the other 2. The action is upon a claim or demand
shooter. On the way to the hospital, Borre told against the estate of such deceased person
Zapanta that it was "Abe", "Aspog" or "Abe or against such person of unsound mind;
Palanas", his neighbor, who shot him. This

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 Evidence
3. A party or assignor of a party or a person These are ante litem motam statements made by a
in whose behalf a case is prosecuted person who is neither a party nor in privity with a
testifies on a matter of fact occurring party to the suit. Such are considered secondary
before the death of the deceased person or evidence and admissible only when the declarant is
before the person became of unsound already dead or unavailable to testify as a witness
mind.; and may be admitted against himself or
4. There was a statement made by the successors-in-interest and against third persons.
deceased or the person of unsound mind;
5. Such statement was made upon the Reason for the admissibility of declaration
personal knowledge of the deceased or against interest
the person of unsound mind at a time
when: 1. Necessity - as such declaration, act, or
omission is frequently the only mode of
a. the matter had been recently proof available; and
perceived by him or her; and 2. Trustworthiness - presumed that men
b. while his or her recollection will neither falsify nor commit mistakes
was clear. when such falsehood or mistake would be
prejudicial to their own pecuniary interest,
If all the requisites are met the statement of the and because of the fact that any fraudulent
decedent or the person of unsound mind may be motive for making the statement may be
received in evidence as an exception to the hearsay shown.
rule.
Requisites of declaration against interest
NOTE: Such statement, however, is INADMISSIBLE
if made under circumstances indicating its lack of 1. The declarant is dead or unable to testify;
trustworthiness.
NOTE: The inability to testify must be
NOTE: The rule proscribes the admission of serious.
testimonia evidence upon a claim which arose
before the death of the accused. It does not aply to 2. The declaration relates to a fact against the
documentar evidence. (Sanson v. CA, G.R. No. interest of the declarant;
127745, April 22, 2003) 3. At the time he made said declaration, he
was aware that the same was contrary to
DECLARATION AGAINST INTEREST his interest; and
(Sec. 40, Rule 130) 4. The declarant had no motive to falsify and
believed such declaration to be true.
The declaration made by a person deceased or
unable to tesify against the interest of the Q: Alejandro Cuenca was charged with the
declarant, if the fact asserted in the declaration was crime of kidnapping Hector Ocampo. One of the
at the time it was made so far contrary to the testimonies presented by the prosecution was
declarant’s own interest that a reasonable person that of Maribelle Magdayao, who testified that
in his or her position would not have made the Hector confided to her that he and Alejandro’s
declaration unless he or she believed it to be true wife Rubi were having an affair. Undoubtedly,
may be received in evidence against himself or his wife’s infidelity was ample reason for
herself or his or her successors in interest and Alejandro to contemplate revenge.
against third persons. A statement tending to Consequently, the trial court convicted
expose the declarant to criminal liability and Alejandro based on the testimonies of the
offered t exculpate the accused is not admissible witnesses. Was the testimony of Maribelle
unless corroborating circumstances clearly admissible as evidence?
indicate the trustworthiness of the statement. (Sec.
40, Rule 130, 2019 Amendments to the Revised Rules A: YES. Hector’s revelation to Maribelle regarding
on Evidence) his illicit relationship with Alejandro’s wife is
admissible in evidence, pursuant to Section 38,
NOTE: A statement against interest tending to Rule 130. With the deletion of the phrase
expose the declarant to criminal liability and “pecuniary or moral interest” from the present
offered to exculpate the accused (which is provision, it is safe to assume that “declaration
presumably different from the declarant) is not against interest” has been expanded to include all
admissible unless corroborating circumstances kinds of interest, that is, pecuniary, proprietary,
clearly indicate trustworthiness of the statement. moral or even penal. Hector having been missing

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since his abduction, cannot be called upon to Pedigree
testify. His confession to Maribelle, definitely a
declaration against his own interest, since his affair It includes:
with Rubi was a crime, is admissible in evidence
because no sane person will be presumed to tell a 1. Relationship;
falsehood to his own detriment. (People v. Bernal, 2. Family genealogy;
G.R. No. 113685, June 19, 1997) 3. Birth;
4. Marriage;
Declaration against interest vs. Admission 5. Death;
against interest 6. The dates when and the places where the
facts occurred;
DECLARATION ADMISSION AGAINST 7. Names of the relatives; and
AGAINST INTEREST INTEREST 8. Facts of family history intimately
Made by a non-party. Made by a party to a connected with pedigree. (Ibid.)
litigation or by one in
privity with or NOTE: The relationship between the declarant and
identified in legal the person subject of the inquiry must be
interest with such party. legitimate unless the issue is the legitimacy itself.
Must be against the Need not be against the
declarant’s interest. admitter’s interest. There is no provision as to the extent of degree of
relationship.
Secondary evidence is Primary evidence is
admissible only when admissible whether the Rationale for admissibility
the declarant is already declarant is available as
dead or unavailable to a witness. 1. Necessity- since the facts about pedigree
testify as a witness. are usually those which occurred many
Hearsay, but admissible Not hearsay, thus years before the trial and known only to a
as an exception to the admissible. few persons; and
hearsay rule. 2. Trustworthiness- since these are matters
Must have been made May be made at any which members of a family are presumed
ante litem motam, i.e. time, before or during to be interested in ascertaining the truth.
before the controversy the trial.
The declarant must be No requirement that the Requisites for the admissibility of acts or
dead or unable to admitter is dead or declarations about pedigree
testify. unable to testify.
Admissible against the Admissible only against 1. The declarant is dead or unable to testify;
declarant and third the admitter. 2. The pedigree should be in issue;
persons. 3. The declarant must be a relative of the
person whose pedigree is in question,
ACT OR DECLARATION ABOUT PEDIGREE either by birth or marriage or adoption
(Sec. 41, Rule 130) (Sec. 4, Rule 130) or in the absence thereof,
by person whose family he or she was so
The act or declaration of a person deceased or intimately associated as to be likely to
unable to tesitify, in respect to the pedigree of have accurate information concerning his
another person related to him or her by birth, or her pedigree;
adoption or marriage, or in the absence thereof, 4. The declaration must be made ante litem
with whose family he or she was so intimately motam or before the controversy
associated as to be likely to have accurate occurred; and
information concerning his or her pedigree, may be 5. The relationship between the declarant
received in evidence where it occurred before the and the person whose pedigree is in
controversy, and the relationship between the two question must be shown by evidence other
persons is shown by evidence other than such act than such act or declaration. (Tecson v.
or declaration. The word “pedigree” includes COMELEC, G.R. No. 161434, March 3, 2004)
relationship, family genealogy, birth, marriage,
death, the dates when and the places where these NOTE: Such declarations are natural expressions of
facts occurred, and the names of the relatives. It persons who must know the truth. Although
embraces also facts of family history intimately hearsay, it is best that the nature of the case admits
connected with pedigree. (Sec. 4, Rule 130, 2019 and because greater evil might arise from the
Amendments to the Revised Rules on Evidence) rejection of such proof than from its admission.

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FAMILY REPUTATION OR TRADITION Act or declaration about pedigree (Sec. 41, Rule
REGARDING PEDIGREE 130) vs. Family reputation regarding pedigree
(Sec. 42, Rule 130) Sec. 42, Rule 130)

The declarant is the witness himself and a member ACT OR DECLARATION FAMILY REPUTATION
of the family. The witness is the one to whom the ABOUT PEDIGREE OR TRADITION
fact relates, it is not necessary for him to establish REGARDING
by independent evidence his relationship to the PEDIGREE
family. Witness need not be a Witness is a member of
member of the family. the family.
The reputation or tradition existing in a family Relation of the The witness is the one
previous to the controversy in respect to the declarant and the to whom the fact
pedigree of any one of its members, may be person subject of the relates, it is not
received in evidence if the witness testifying inquiry must be necessary for him to
thereon be also a member of the family, either by established by establish by
consanguinity, affinity or adoption. Entries in independent evidence. independent evidence
family bibles or other family books or charts, his relationship to the
engraving on rings, family portraits and the like, family. (Francisco, 1992)
may be received as evidence of pedigree. (Sec 42, Testimony is about Testimony is about
Rule 130, 2019 Amendments to the Revised Rules on what the declarant has family reputation or
Evidence) said concerning the tradition covering
pedigree of the family. matters of pedigree.
Reason for admissibility
COMMON REPUTATION
These are admissible by reason of necessity since (Sec. 43, Rule 130)
tradition is often the sole method by which proof of
matters of pedigree can be obtained. Common reputation existing previous to the
controversy, as to boundaries of or customs
Requisites for the admissibility of family affecting lands in the community and reputation as
reputation or tradition regarding pedigree to events of general history important to the
community, or respecting marriage or moral
1. There is controversy in respect to the character, may be given in evidence. Monuments
pedigree of any member of the family; and inscriptions in public places may be received
2. The reputation or tradition of the pedigree as evidence of common reputation. (Sec 43, Rule
of the person concerned existed previous 130, 2019 Amendments to the Revised Rules on
to the controversy; Evidence)
3. The statement is about the reputation or
tradition of the family in respect to the It is the definite opinion of the community in which
pedigree of any member of the family; and the fact to be proved is known or exists. It means
4. The witness testifying to the reputation or the general or substantially undivided reputation,
tradition regarding pedigree of the person as distinguished from a partial or qualified one,
concerned must be a member of the family although it need not be unanimous. (Regalado,
of said person either by consanguinity, 2008)
affinity or adoption.
NOTE: As a general rule, the reputation of a person
How to establish family reputation or tradition should be that existing in the place of his residence;
with respect to one’s pedigree it may also be that existing in the place where he is
best known. (Ibid.) Character is what a man is, and
1. Through testimony in open court of a reputation is what he is supposed to be in what
witness who must be a member of the people say he is. (Lim v. CA, G.R. No. 91114,
family either by consanguinity, affinity, or September 25, 1992)
adoption; or
2. Through entries in: Reasons for admissibility

a. Family bible; 1. Necessity arising from the inherent
b. Family books or charts; difficulty of obtaining any other evidence
c. Engravings on rings; or than that in the nature of common
d. Family portraits and the like. reputation; and

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 REMEDIAL LAW
2. Trustworthiness of the evidence arising considerable number of persons forming part of
from: the community.
a. The supposition that the public is
conversant with the subject to be PART OF THE RES GESTAE
proved because of their general (Sec. 44, Rule 130)
interest therein; and
b. The fact that the falsity or error of Res Gestae (2005, 2007, 2014 BAR)
such evidence could be exposed or
corrected by other testimony since the It is a Latin phrase which literally means “things
public are interested in the same. done.”
(Francisco, 1992)
Statements made by a person while a startling
Matters that may be established by common occurrence is taking place or immediately prior or
reputation subsequent thereto, under the stress of excitement
caused by the occurrence with respect to the
1. Matters of public and general interest circumstances thereof, may be given in evidence as
more than 30 years old; part of the res gestae. So, also, statements
2. Matters respecting marriage or moral accompanying an equivocal act material to the
character and related facts; and issue, and giving it a legal significance may be
3. Individual moral character. received as part of the res gestae.

NOTE: Marriage, if not proven through an act or As an exception to the hearsay rule, it refers to
declaration about pedigree may be proven through those exclamations and statements by either the
common reputation. (Trinidad v. CA, G.R. 118904, participants, victims, or spectators to a crime
April 20, 1998) immediately before, during or immediately after
the commission of the crime, when the
Q: In an attempt to discredit and impeach a circumstances are such that the statements were
prosecution witness in a homicide case, the made as spontaneous reactions or utterances
defense counsel called to the stand a person inspired by the excitement of the occasion, and
who had been the boyhood friend and next- there was no opportunity for the declarant to
door neighbor of the the said witness for 30 deliberate and fabricate a false statement. (Capila v.
years. One question that the defense counsel People, G.R. No. 146161, July 17, 2006)
asked of the impeaching witness was: "Can you
tell this Honorable Court about the general Res gestae refers to the circumstances, facts, and
reputation of the prosecution witness in your declarations that grow out of the main fact and
community for aggressiveness and violent serve to illustrate its character and ar so
tendencies?" As the trial prosecutor, would you spontaneous and contemporaneous with the main
interpose your objection to the question of the act as to exclude the idea o deliberation and
defense counsel? Explain your answer. fabrication. (People of the Philippines v. Quiasayas,
G.R. No. 198022, April 7, 2014)
A: YES. Under the Rules, an adverse party’s witness
may be properly impeached by reputation Test of Admissibility
evidence provided that it is to the effect that the
witness’ general reputation for honesty, truth, or The test is whether the act, declaration,
integrity was bad. The reputation must only be on exclamation is so intimately interwoven or
character for truthfulness or untruthfulness. connected with the principal fact or even that it
(Cordial v. People, G.R. No. L-75880, September 25, characterizes as to be regarded as a part of the
1992) transaction itself, and also whether it clearly
negates any premeditation or purpose to
Difference between matters of public interest manufacture testimony. (Ibid.)
and matters of general interest
Reason for admissibility
Matters of public interest involve those which are
common to all citizen of the state or to the entire The reason for the rule is human experience. It has
people. been shown that under certain external
circumstances of physical or mental shock, the
Matters of general interest involve those which state of nervous excitement which occurs in a
are common only to a single community or to a spectator may produce a spontaneous and sincere

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 Evidence
response to the actual sensations and perceptions 1. The principal act to be characterized must
produced by the external shock. be equivocal;
2. The equivocal act must be material to the
The spontaneity of the declaration is such that the issue;
declaration itself may be regarded as the event 3. The statement must accompany the
speaking through the declarant rather than the equivocal act; and
declarant speaking for himself. 4. The statement gives a legal significance to
the equivocal act.
Requisites for the admissibility of res gestae
NOTE: The reason for the admissibility of verbal
1. That the principal act, the res gestae, be a acts is that the motive, character and object of an
startling occurrence; act are frequently indicated by what was said by
2. The statements were made before the the person engaged in the act.
declarant had te time to contrive or devise
a alsehood; and Part of res gestae vs. Dying Declaration
3. That the statements must concern the
occurrence in questions and its immediate PART OF RES GESTAE DYING DECLARATION
attending circumstances. (People of the It is the event itself A sense of impending
Philippines v. Estibal, G.R. No. 208749, which speaks. death takes the place of
November 26, 2014) an oath and the law
regards the declarant as
Factors to determine spontaneity of declaration testifying.
May be made by the Can be made by the
1. The time that has lapsed between the killer after or during the victim only.
occurrence of the act or transaction and killing or that of a third
the making of the statement; person.
2. The place where the statement is made; May precede, or Confined to matters
3. The condition of the declarant when the accompany or follow occurring after the
utterance is given; the principal act. homicidal act.
4. The presence or absence of intervening
events between the occurrence and the Justification is the Justification is the
statement relative; and spontaneity of the trustworthiness, being
5. The nature and the circumstances of the statement. given by the person
statement itself. (Francisco, 1992) who was aware of his
impending death.
Q: Edgardo Lupac was convicted of the crime of
rape. One of the evidence adduced was AAA’s Q: Gilberto Villarico, Sr., Gilberto Villarico, Jr.,
spontaneous, unhesitating and immediate Jerry Ramentos, and Ricky Villarico were
denunciation of the rape to her Tita Terry and convicted of the crime of murder for the killing
her mother (hindot and inano ako ni Kuya Ega of Haide Cagatan. One of the pieces of evidence
being the term she used). Is the statement adduced was a statement of Haide to his
made by AAA part of the res gestae under mother saying that Berting shot him in the
Section 42, Rule 130 of the Rules of Court? immediate aftermath of the shooting where he
was the victim. Is the statement made by Haide
A: YES. AAA’s denunciation was part of the res admissible?
gestae. AAA went to Tita Terry’s house
immediately after fleeing from Lupac and A: YES. Haide’s statement was part of the res gestae
spontaneously, unhesitatingly and immediately and was admissible. The requisites concurred
declared to Tita Terry that Lupac had sexually herein. Firstly, the principal act of shooting Haide
abused her. Such manner of denunciation of him as was a startling occurrence. Secondly, his statement
her rapist was confirmed by Tita Terry’s testimony to his mother about being shot by the group of
about AAA’s panic-stricken demeanor that Berting was made before Haide had time to
rendered it difficult to quickly comprehend what contrive or to devise considering that it was
the victim was then saying. Of course, AAA’s use of uttered immediately after the shooting. And,
the words “hindot and inano ako ni Kuya Ega” said thirdly, the statement directly concerned the
enough about her being raped. (People v. Lupac, startling occurrence itself and its attending
G.R. No. 182230, September 19, 2012) circumstance: that is, the identities of the
assailants. (People v. Villarico, et. al., G.R. No.
Verbal Acts 158362, April 4, 2011)

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 REMEDIAL LAW
Q: While passing by a dark uninhabited part of In the case, the statements made by PO2 Asintado
their barangay, PO2 Asintado observed constitutes part of res gestae since the same were
shadows and heard screams from a distance. made without any opportunity to fabricate and
PO2 Asintado hid himself behind the bushes while a startling occurrence was actually taking
and saw a man beating a woman whom he place. In addition, the statement of PO2 Asintado
recognized as his neighbour, Kulasa. When may fall within the purview of the doctrine of
Kulasa was already in agony the man stabbed independent relevant statement, where only the
her and she fell on the ground. The man fact that such statements were made is relevant,
hurriedly left thereafter. PO2 Asintado and the truth and falsity thereof is immaterial.
immediately went to Kulasa’s rescue. Kulasa (People v. Malibiran, G.R. No. 178301, April 24,
who was then in a state of hysteria, kept 2009) On the other hand, Kulasa’s statements are
mentioning to PO2 Asintado “Si Rene, gusto also admissible as part of res gestae since the same
akong patayin! Sinaksak niya ako!” When PO2 were made under the influence of a startling event
Asintado was about to carry her, Kulasa refused and without any opportunity to concoct or devise a
and said “Kaya ko. Mababaw lang to. Habulin falsehood.
mo si Rene.” The following day, Rene learned of
Kulasa’s death and, bothered by his conscience, RECORDS OF REGULARLY CONDUCTED
surrendered to the authorities with his counsel. BUSINESS ACTIVITY
As his surrender was broadcasted all over (Sec. 45, Rule 130)
media, Rene opted to release his statement to
the press which goes: A memorandum, report, record or data compilation
of acts, events conditions, opinions or diagnoses
“I believe that I am entitled to the made by writing, typing, electronic, optical or other
presumption of innocence until my guilt similar means at or near the time of or from
is proven beyond reasonable doubt. transmission or supply of information by a person
Although I admit that I performed acts with knowledge thereof, and kept in the regular
that may take one’s life away, I hope course or conduct of a business activity, and such
and pray that justice will be served in was the regular pracrice to make the
the right way. God bless us all. memorandum, report, record, or data compilation
(Sgd.) by electronic, optical or similar means, all of which
Rene” are shown by the testimony of the custodian or
other qualified witnesses is excepted from the rule
The trial court convicted Rene of homicide on in hearsay evidence. (Sec. 45, Rule 130, 2019
the basis of PO2 Asintado’s testimony, Kulasa’s Amendments to the Revised Rules on Evidence)
statements, and Rene’s statement to the press.
On appeal, Rene raises the following error: NOTE: Reliability is furnished by the fact that
regularly kept records typically have a high degree
The trial court erred in giving weight to PO2 of accuracy. The law does not fix any precise
Asintado’s testimony, as the latter did not have moment when the entries should be made. It is
personal knowledge of the facts in issue, and sufficient if the entry was made within a
violated Rene’s right to due process when it reasonable period of time so that it may appear to
considered Kulasa’s statements despite lack of have taken place while the memory of the facts was
opportunity for her cross-examination. unimpaired.
Resolve. (2014 Bar)
Availability or unavailability of the entrant
A: The trial court did not err in giving weight to
PO2 Asintado’s testimony. While a witness can only A significant change or innovation under Sec. 45 is
testify as to those facts which he has personal that the availability or unavailability of the entrant
knowledge, the Rules provide that a statement is no longer material. Under the old rule on
made under the influence of a startling event business entries, it was required that the entrant
witnessed by the person who made the declaration be dead or unavailable to tesify. (Riguera, 2020)
before he had time to think and make up a story, or
to concoct or contrive a falsehood, or to fabricate Requisites for the admission of a business
an account, and without any undue influence in record as an exception to the hearsay rule
obtaining it, aside from referring to the event in
question or its immediate attending circumstances, 1. There is a memorandum, report or data
is an exception being part of res gestae. (Belbis, Jr., compilation of acts, events, conditions,
v. People, G.R. No. 181052, November 14, 2012) opinions, made by writing, typing,
electronic, optical or other similar means;

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 Evidence
2. The memorandum etc. is made at or near 1. Entrant had personal knowledge of the
the tme of the act, event, etc.; facts stated by him or such facts were
3. The memorandum etc, is made by, or from acquired by him from reports made by
transmission or supply of information by, persons under a legal duty to submit the
a person with knowledge of the act, event, same.
etc.; 2. Entries were made by a public officer in
4. The memorandum, etc. is kept in the the performance of his duties or by a
regular course or conduct of a business person in the performance of a duty
activity; especially enjoined by law; and
5. It was the regular practice of the business 3. Entries must have been made in official
activity to make the memorandum, report, records. (Ibid.)
record or data compilation by writing,
typing, electronic, optical or similar Entries in official record vs. Entries in the
means; course of business
6. All of the foregoing conditions are shown
by the testimony of the custodian or other ENTRIES IN ENTRIES IN THE
qualidfied witnesses. (Riguera, 2020) OFFICIAL RECORD COURSE OF BUSINESS
The entrant, if a private It is sufficient that the
Q: Are business records prima facie evidence of individual, must have entrant made the
the facts stated therein? acted pursuant to a entries pursuant to a
specific legal duty duty be it legal,
A: No longer under the 2019 Amendments to the specially enjoined by contractual, moral or
Revised Rules on Evidence. (Riguera, 2020) law. religious.
Entrant need not be Entrant must be dead or
ENTRIES IN OFFICIAL RECORDS dead or unable to unable to testify.
(Sec. 46, Rule 130) testify.

Entries in official records made in the performance Need not be Needs authentication.
of his or her duty by a public officer of the authenticated.
Philippines, or by a person in the performance of a
duty specially enjoined by law, are prima facie
evidence of the facts therein stated. (Sec. 46, Rule Q: Should entries in the police blotter be given
130, 2019 Amendments to the Revised Rules on probative value?
Evidence)
A: NO, as they are not conclusive evidence of the
Official record truth of the contents but merely of the fact that
they were recorded. (People v. Cabrera, Jr., G.R. No.
The original document that is legally recognized 138266, April 30, 2003)
and thus ensuring the quality of a fact when it is
established. It may be a: COMMERCIAL LISTS AND THE LIKE
(Sec. 47, Rule 130)
1. Register;
2. Cash book; or Evidence of statements of matters of interest to
3. An official return or certificate (Regalado, persons engaged in an occupation contained in a
2008) list, register, periodical, or other published
compilation is admissible as tending to prove the
Reason for admissibility truth of any relevant matter so stated if that
compilation is published for use by persons
1. Necessity – due to the impossibility of engaged in that occupation and is generally used
requiring the official’s attendance as a and relied upon by them therein. (Sec. 47, Rule 130,
witness to testify to the innumerable 2019 Amendments to the Revised Rules on Evidence)
transactions occurring in the course of his
duty; and Reason for admissibility of commercial lists
2. Trustworthiness – there is a presumption
of regularity in the performance of official 1. Necessity - because of the usual
duty. inaccessibility of the persons responsible
for the compilation of matters contained in
Requisites for the admissibility of entries in such lists, it would cause the court
official records (KPOP)

613
 REMEDIAL LAW
inconvenience if it would issue summons 3. Abstracts of title compiled by reputable
to these numerous individuals; and title examining institutions or individuals;
2. Trustworthiness - persons responsible for or
such lists have no motive to deceive and 4. Business directories, animal pedigree
they further realize that unless the list, registers, and the like. (Francisco, 1992)
register or periodical or other published
compilation are prepared with care and LEARNED TREATISES
accuracy, their work will have no (Sec. 48, Rule 130)
commercial or probative value.
A published treatise, periodical or pamphlet on a
Requisites for the admissibility of commercial subject of history, law, science, or art is admissible
lists and the like as tending to prove the truth of a matter stated
therein if the court takes judicial notice, or a
1. Statements of matters of interest to witness expert in the subject testifies, that the
persons engaged in an occupation; writer of the statement in the treatise, periodical or
2. Statements must be contained in a list, pamphlet is recognized in his or her profession or
register, periodical, or other published calling as expert in the subject. (Sec. 48, Rule 130,
compilation; 2019 Amendments to the Revised Rules on Evidence)
3. Compilation is published for use by
persons engaged in that occupation; and Reason for admissibility
4. Such is generally relied upon by them.
The learned writers have no motive to
Q: In a compulsory arbitration case between misrepresent due to the awareness that his work
Mercalco and its union, may the Secretary of will be carefully scrutinized by the learned
Labor take into account a newspaper report members of the profession and that he shall be
citing an All Asia Capital finance analyst’s subject to criticisms and be ultimately rejected as
estimate o Meralco’s 1996 net operating an authority on the subject matter if his
income at P5.6 billion and upon which the conclusions are found to be invalid.
union relied upon in order to support its
position on the wage issue? Requisites for the admissibility of learned
treatises
A: NO. Under Sec. 47, Rule 130, statement of
matters contained in a periodical may be admitted 1. When the court can take judicial notice of
only “if that compilation is published for use by them; or
persons engaged in that occupation and is 2. When an expert witness testifies that the
generally used and relied upon by them therein.” author of such is recognized as expert in
The cited report is a mere newspaper account and that profession. (Sec. 48, Rule 130, 2019
not even a commercial list. At most, it is but an Amendments to the Revised Rules on
analysis or opinion which carries no persuasive Evidence)
weight as no sufficient figures to support it were
presented. Neither did anybody testify to its TESTIMONY OR DEPOSITION AT A FORMER
accuracy. It cannot be said that businessmen PROCEEDING
generally rely on news items such as this in their (Sec. 49, Rule 130)
occupation. Besides, no evidence was presented
that the publication was regularly prepared by a The testimony or deposition of a witness deceased
person in touch with the market and that it is or out of the Philipiines or who cannot, with due
generally regarded as trustworthy or reliable. diligence, be found therein, or is unavailable or
Absent extrinsic proof of the accuracy, these otherwise unable to testify, given in a former case
reports are not admissible. (Riguera, 2020, citing or proceeding, judicial or administrative, involcing
Manila Electric Co. v. Quisumbing, G.R. No. 127598, the same parties and subject matter, may be given
February 22, 2000) in evidence against the adverse party whi had the
opportunity to cross examine him or her. (Sec. 49,
Examples of commercial lists Rule 130, 2019 Amendments to the Revised Rules on
Evidence)
1. Trade journals reporting current prices
and other market data; Requisites for the rule on former testimony to
2. Mortality tables compiled for life apply
insurance;
1. The witness is dead or unable to testify;

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 Evidence
2. His testimony or deposition was given in a Grounds which make a witness unable to testify
former case or proceeding, judicial or in a subsequent case
administrative, between the same parties
or those representing the same interests; 1. Death;
3. The former case involved the same subject 2. Insanity or mental incapacity or the
as that in the present case, although on former witness’ loss of memory through
different causes of action; old age or disease;
3. Physical disability by reason of sickness or
NOTE: Section 47 (now Sec. 49), Rule 130 advanced age;
requires that the issues involved in both 4. The fact that the witness has been kept
cases must, at least, be substantially the away by contrivance of the opposite party;
same; otherwise, there is no basis in or
saying that the former statement was - or 5. The fact that after diligent search the
would have been - sufficiently tested by former witness cannot be found.
cross-examination or by an opportunity to (Francisco, 1992)
do so. The requirement of similarity
though does not mean that all the issues in Proof of former testimony
the two proceedings should be the
same. Although some issues may not be 1. If reduced to writing, such writing is the
the same in the two actions, the primary evidence thereof and should be
admissibility of a former testimony on an used; or
issue which is similar in both actions 2. The stenographic notes or a copy thereof.
cannot be questioned.
NOTE: The judge’s notes are not evidence of what
These considerations, among others, make the witness said, and, as a rule, they can be used
Section 47, Rule 130 a distinct rule on only to refresh the memory of a witness.
evidence and therefore should not be
confused with the general provisions on RESIDUAL EXCEPTION
deposition under Rule 23 of the Rules of (Sec. 50, Rule 130)
Court. In other words, even if the
petitioner complies with Rule 23 of the A statement not specifically covered by any of the
Rules of Court on the use of depositions, exceptions, having circumstantial guarantees of
the observance of Section 47, Rule 130 of trustworthiness, is admissible provided the
the Rules of Court cannot simply be conditions under Sec. 50, Rule 130 are present.
avoided or disregarded. (Republic v.
Sandiganbayan, G.R. No. 152375, December Requisites for admissibility
13, 2011)
1. The statement, having equivalent
4. The issue testified to by the witness in the circumstantial guarantees of
former trial is the same issue involved in trustworthiness, must not be covered by
the present case; and any of the foregoing exceptions;
5. The adverse party had an opportunity to 2. The statement is offered as evidence of a
cross-examine the witness in the former material fact;
case. (Ambray v. Tsuorous, G.R. No. 209264, 3. The statement is more probative on the
July 5, 2016) point for which it is offered than any other
evidence which the proponent can procure
Reason for admissibility through reasonable efforts; and
4. The general purposes of these rules and
The reasons for the admissibility of testimony the interests of justice will be best served
taken at a former trial or proceeding are the by admission of the statement of evidence.
necessity for the testimony and its trustworthiness. (Sec. 50, Rule 130, 2019 Amendments to the
However, before the former testimony can be Revised Rules on Evidence)
introduced in evidence, the proponent must first
lay the proper predicate therefor, i.e., the party NOTE: A statement may not be admitted under this
must establish the basis for the admission of exception unless the proponent makes known to
testimony in the realm of admissible evidence. the adverse party, sufficiently in advance of the
(Ibid.) hearing, or by the pre-trial stage in the case of a
tral of the main case, to provide the adverse party
with a fair opportunity to meet it, the proponent’s

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 REMEDIAL LAW
intention to offer the statement and the particulars A: YES. The testimony of Annie is admissible in
of it, including the name and address of the evidence as an independently relevant statement.
declarant. (Ibid.) It is offered in evidence only to prove the tenor
thereof, not to prove the truth of the facts asserted
INDEPENDENTLY RELEVANT STATEMENTS therein. Independently relevant statements include
statements which are on the very facts in issue or
These are statements which are relevant those which are circumstantial evidence thereof.
independently of whether they are true or not. The hearsay rule does not apply. (People v. Gaddi,
They are neither hearsay nor an exception to the G.R. No. 74065, February 27, 1989)
hearsay rule as the purpose thereof is not to prove
the truth of the declaration or document. (Estrada Q: A foreign dog trained to sniff dangerous
v. Desierto, supra) It merely proves the fact that a drugs from packages, was hired by FDP
statement was made and not the truth of the fact Corporation, a door to door forwarder
asserted in the statement. (1999, 2005, 2009, company, to sniff packages in their depot at the
2010 BAR) international airport. In one of the routinary
inspections of packages waiting to be sent to
An out-of-court statement which is relevant not for the USA, the dog sat beside one of the packages,
the truth off a matter asserted therein, but for a signal that the package contained dangerous
something else, e.g., state of mind, intent, belief, the drugs. Thereafter, the guards opened the
mere fact of utterance, or legal effect. It is a package and found 2 kilograms of cocaine.
statement relevant ffor something else ther than its During the trial, the prosecution, through the
truth. Not being hearsay, an independently trainer who was present during the incident
relevant evidence is admissible. (Riguera, 2020) and an expert in this kind of field, testified that
the dog was highly trained to sniff packages to
Classification of independently relevant determine if the contents were dangerous
statements drugs and the sniffing technique of their highly
trained dogs was accepted worldwide and had
1. Those statements which are the very facts been successful in dangerous drugs operations.
in issue; and The prosecution moved to admit this evidence
2. Those statements which are circumstantial to justify the opening of the package. The
evidence of the fact in issue. It includes the accused objected on the grounds that: (i) the
following: guards had no personal knowledge of the
contents of the package before it was opened;
a. Statements of a person showing his (ii) the testimony of the trainer of the dog is
state of mind, that is, his mental hearsay; and (iii) the accused could not cross-
condition, knowledge, belief, intention, examine the dog. Decide. (2014 Bar)
ill-will and other emotions;
b. Statements of a person which show his A: The objections of the accused should be
physical condition, as illness and the overruled. An evidence is admissible when it is
like; relevant to the issue and is not excluded by the law
c. Statements of a person from which an or the rules. (Section 3, Rule 128, 2020 Revised Rules
inference may be made as to the state on Evidence) Under Section 22, Rules 130 of the
of mind of another, i.e., the knowledge, Rules of Court, a witness can testify only to those
belief, motive, good or bad faith, etc. of which he knows of his personal knowledge and
the latter derived from his own perception.
d. Statements which may identify the
date, place and person in question; The contention that the guards had no personal
and knowledge of the contents of the package before it
e. Statements showing the lack of was opened is without merit. The guards can
credibility of a witness. testify as to the facts surrounding the opening of
the package since they have personal knowledge of
Q: Annie overheard Billy call Rocky a thief. In the circumstances thereof, being physically present
an action for defamation filed by Rocky against at thetime of its discovery.
Billy, is the testimony of Annie offered to prove
the fact of utterance i.e., that Billy called Rocky On the other hand, the testimony of the trainer of
a thief, admissible in evidence? Explain. (1999 the dog is not hearsay on the basis of the following
Bar) grounds:

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 Evidence
a. He has personal knowledge of the facts in which an inference may be made as to the state of
issue, having witnessed the same; mind of another.
b. Hearsay merely contemplates an out-of-
court declaration of a person which is The Angara Diary contains statements of Estrada
being offered to prove the truthfulness and which reflect his state of mind and are
veracity of the facts asserted therein; circumstantial evidence of his intent to resign. It
c. He is an expert witness; hence, his also contains statements which one can reasonably
testimony may constitute an exception to infer Estrada’s intent to resign. Such statements
the hearsay rule; are independently relevant and are excluded from
d. The accused has the opportunity to cross- the hearsay. (Riguera, 2020)
examine him; and
e. Testimony of a witness as to statements OPINION RULE
made by nonhuman declarants does not
violate the rule against hearsay. Opinion

The law permits the so-called “non-human A person’s thought belief, or inference, especially a
evidence” on the ground that machines and witness’s view about facts in dispute, as opposed to
animals, unlike humans, lack a conscious personal knowledge of the facts themselves.
motivation to tell falsehoods, and because the (Black’s Law Dictionary, 2004)
workings of machines can be explained by human
witnesses who are then subject to cross- GR: The opinion of a witness is not admissible.
examination by opposing counsel. (City of Webster (Sec. 51, Rule 130, 2019 Amendments to the Revised
Groves v. Quick. 323 S.W. 2d 386 [Mo. 1959]; Buck v. Rules on Evidence) A witness testifies only with
State, 138 P. 2d 115 [Okla. 1943]; Herrera, 1999). respect to facts personally observed by him and it
is for the court to draw conclusions from the facts
Conversely, the accused may not argue that he testified to. (2011 Bar)
cannot cross examine the dog as the Constitutional
right to confrontation refers only to witnesses. As XPNs:
alluded, the human witnesses who have explained
the workings of the non-humanevidence is the one 1. Opinion of expert witness; and
that should be cross-examined. There is no doubt 2. Opinion of ordinary witnesses.
that the evidence of the prosecution is admissible
for being relevant and competent. NOTE: Opinion testimony involving questions of
law or the ultimate fact in issue is not admissible.
Q: In Estrada v. Desierto, supra., at issue was
whether President Estrada resigned from his Evidence not based on personal knowledge vs.
position. Submitted to prove Estrada’s intent to Opinion evidence (2002, 2004 BAR)
resign was the Angara Diary in which Executive
Secretary Edgardo Angara recorded Estrada’s EVIDENCE NOT BASED OPINION EVIDENCE
statements in which he said, “Pagod na pagod ON PERSONAL
na ako. Ayoko na, masyado nang masakit. Pagd KNOWLEDGE
na ako sa red tape, bureaucracy, intriga. I just Consists of testimony Expert evidence based
want to clear my name, then I will go.” Angara that is not based on on the personal
himself did not testify in court. Estrada’s personal knowledge of knowledge, skill,
lawyers argued that these statements were the person testifying. experience or training
hearsay. Were they? of the person testifying
and evidence of an
A: NO. The statements are independently relevant, ordinary witness on
that is, relevant independently of whether they are limited matters.
true or not. Independently relevant statements are
of two classes: (1) those statements which are the OPINION OF EXPERT WITNESS
very facts in issue, and (2) those statements which
are circumstancial evidence of the acts in issue. The opinion of a witness on a matter requiring
special knowledge, skill, experience or training
The second includes statements of a person which he shown to possess may be received in
showing his state of mind (i.e., his mental evidence. (Sec. 52, Rule 130, 2019 Amendments to
condition, knowledge, belief, intention, ill will, and the Revised Rules on Evidence)
other emotions) and statements of a person from

617
 REMEDIAL LAW
NOTE: The use of the word “may”, signifies that the NOTE: The competence of an expert witness is a
use of opinion of expert witness is permissive and matter for the trial court to decide upon in thhe
not mandatory on the part of the courts. It only exercise of its discretion. The test of qualification is
assists the court in the determination of the issue necessarily a relative one, depending upon the
before it, and is for the court to adopt or not to subject matter of the investigation, and the fitness
adopt depending on its appreciation of the of the expert witness. In our jurisdiction, the
attendant facts and the applicable law. (Tabao v. criterion remains to be the expert witness’ special
People, G.R. No. 187246, July 20, 2011) knowledge, experience, and practical training that
qualify him or her to explain highly technical
Expert Witness medical matters to the court. (Casumpang v.
Cortejo, G.R. No. 171127, 171217, 171228, March 11,
He is one who belongs to the profession or calling 2015)
to which the subject matter of the inquiry relates
and who possesses special knowledge on questions Weight to be given opinion of expert witness
on which he proposes special knowledge to
express an opinion. (Regalado, 2008) In any case where the opinion of an expert witness
is received in evidence, the court has a wide
Before one may be allowed to testify as an expert latitude of discretion in determining the weight to
witness, his qualification must first be established be given to such opinion, and for that purpose may
by the party presenting him. (People vs. Fundano, consider the following:
G.R. No. 124737, June 26, 1998)
1. Whether the opinion is based upon
NOTE: Expert testimony is not admissible as to a sufficient facts or data;
matter not in issue. 2. Whether it is the product of reliable
principles and methods;
NOTE: Expert witness is not necessary when the 3. Whether the witness has applied the
doctrine of res ipsa loquitur is applicable. (Rosit v. principles and methods reliably to the
Davao Doctor’s Hopital, G.R. No. 210445, December facts of the case; and
5, 2015) 4. Such other factors as the court may deem
helpful to make such determination. (Sec.
Degree of skill or knowledge 5, Rule 133, 2019 Amendments to the
Revised Rules on Evidence)
There is no definite standard in determining the
degree of skill or knowledge that a witness must Discretion of the court in giving weight to the
possess in order to testify as an expert as long as testimony
the following are present:
Although courts are not ordinarily bound by expert
1. Training and education; testimonies, they may place whatever weight they
2. Particularity, first-hand familiarity with may choose upon such testimonies in accordance
the facts of the case; and with the facts of the case. The relative weight and
3. Presentation of authorities or standards sufficiency of expert testimony is peculiarly within
upon which his opinion is based. (People v. the province of the trial court to decide,
Abriol, G.R. No. 123137, October 17, 2001) considering the ability and character of the
witness, his actions upon the witness stand, the
NOTE: An expert witness may base his opinion weight and process of the reasoning by which he
either on the first-hand knowledge of the facts or has supported his opinion, his possible bias in
on the basis of hypothetical questions where the favor of the side for whom he testifies, the fact that
facts are presented to him hypothetically and on he is a paid witness, the relative opportunities for
the assumption that they are true, formulates his study and observation of the matters about which
opinion on such hypothesis. he testifies, and any other matters which deserve
to illuminate his statements.
The probative force of the testimony of an expert
does not lie in a mere statement of his theory or The opinion of the expert may not be arbitrarily
opinion, but rather in the aid that he can render to rejected; it is to be considered by the court in view
the courts in showing the facts which serve as a of all the facts and circumstances in the case and
basis for his criterion and the reasons upon which when common knowledge utterly fails, the expert
the logic of his conclusion is founded. (Dizon v. opinion may be given controlling effect. The
Tuazon, G.R. No. 172167, July 9, 2008) problem of the credibility of the expert witness and
the evaluation of his testimony is left to the

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 Evidence
discretion of the trial court whose ruling thereupon OPINION OF ORDINARY WITNESS
is not reviewable in the absence of abuse of
discretion. (Tabao v. People, supra.) That which is given by a witness who is of ordinary
capacity and who has by opportunity acquired a
NOTE: The testimony of a qualified medical doctor particular knowledge which is outside the limits of
cannot be excluded simply because he is not a common observation and which may be of value in
specialist. The matter of training and specialization elucidating a matter under consideration.
of the witness goes to the weight rather than
admissibility. (Casumpang v. Cortejo, supra.) The opinion of a witness for which proper basis is
given, may be received in evidence regarding:
Test in determining the need to resort to expert
evidence 1. The identity of a person about whom
he or she has adequate knowledge;
Whether the opinion called for will aid the court in 2. A handwriting with which he or she
resolving an issue. has sufficient familiarity;
3. The mental sanity of a person with
Handwriting expert whom he or she is sufficiently
acquainted (People v. Castillo, G.R. No.
The opinion of handwriting experts are not 1865333, August 9, 2010);
necessarily binding upon the court, the expert’s
function being to place before the court data upon NOTE: Where the sanity of a person is
which the court can form its own opinion. This at issue, expert opinion is not
principle holds true especially when the question necessary, the observation of the trial
involved is mere handwriting similarity or judge coupled with evidence
dissimilarity, which can be determined by a visual establishing the person’s state of
comparison of specimens of the questioned mental sanity will suffice. (Hernandez
signatures with those of the currently existing v. San Juan-Santos, G.R. No. 166470 &
ones. A finding of forgery does not depend entirely 169217, August 7, 2009)
on the testimonies of handwriting experts, because
the judge must conduct an independent 4. The witness’ impressions of the
examination of the questioned signature in order emotion, behavior, condition or
to arrive at a reasonable conclusion as to its appearance of a person. (Sec. 53, Rule
authenticity. (Gepulle-Garpo v. Spouses Garabato, 130, 2019 Amendments to the Revised
G.R. No. 200013, January 14, 2015.) Rules on Evidence) (2005 Bar)

Q: In a case where the issue involves forgery, CHARACTER EVIDENCE
two expert witnesses were presented by the
plaintiff, the NBI official and a handwriting Character
expert from the PNP. The NBI official testified
that the signatures in the deed of sale and the The aggregate of the moral qualities which belong
other sample signatures are the same. to and distinguish an individual person; the general
However, the PNP handwriting expert declared result of one’s distinguishing attributes. (Black’s
that the person who signed are not the same Law Dictionary, 2004)
person. The lower court gave credit and based
the ruling on the testimony of the PNP Admissibility of Character Evidence
handwriting expert on the fact that the said
witness has better credentials than the NBI GR: Evidence of a person’s character or a trait of
witness. Is the ruling valid, because of the fact character is INADMISSIBLE for the purpose of
that the court based the ruling on the proving action in conformity therewith on a
credentials? particular occasion, except as provided in the rules.

A: NO. While credentials of an expert witness play NOTE: The reason for this is that the evidence of a
a factor in the evidentiary and persuasive weight of person’s character does not prove that such person
his testimony, the same cannot be the sole factor in acted in conformity with such character or trait in
determining its value. The judge must conduct his a particular occasion.
own independent examination of the signatures
under scrutiny. (Tamani, et al. v. Salvador and XPNs:
Bravo, G.R. No. 171497, April 4, 2011)
CRIMINAL CASES

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 REMEDIAL LAW
AS TO THE AS TO THE AS TO THE Is Dovie's testimony admissible as to the
ACCUSED PROSECUTION OFFENDED character of Dave? (2018 BAR)
PARTY
1. The They may not His good or A: NO. Dovie’s testimony on Dave’s previous
character prove the bad bad moral conviction for homicide as evidence of his bad
of the moral character may character does not refer to a moral trait involved in
offended character of be proved as the offense charged which is sexual assault.
party may the accused long as it tends
be proved which is to establish in CIVIL CASES
if it tends pertinent to any reasonable
to the moral trait degree the Evidence of the moral character of a party in a civil
establish involved in the probability or case is admissible only when pertinent to the issue
in any offense improbability of character involved in the case. (Sec. 54[b], Rule
reasonable charged, unless of the offense 130, 2019 Amendments to the Revised Rules on
degree the in rebuttal charged. Evidence)
probability when the (2002, 2010
or accused opens Bar) Proof of bad character
improbabil the issue by
ity of the introducing 1. Cross-examination; or
offense evidence of his 2. Independent evidence of bad character.
charged. good moral
2. The character. NOTE: It is permitted only when pertinent to the
accused issue of character involved in the case like in a civil
may prove action for damages emanating from the offense of
his or her libel, slander, or seduction. (Peralta, 2020)
good moral
character Personal opinion as to the moral character of the
pertinent accused and the specific conduct of the part
to the exhibiting character is excluded as evidence.
moral trait However, reputation in the community is
involved in admissible.
the offense
charged. Q: Don was prosecuted for homicide for
allegedly beating up Vilma to death with an
NOTE: In criminal cases, character evidence is iron pipe. May the prosecution introduce
inadmissible under the following situations: evidence that Vilma had a good reputation for
peacefulness and non-violence? Why? (2002
1. In rebuttal, proof of the bad character of Bar)
the victim is not admissible if the crime
was committed through treachery and A: NO. The prosecution may introduce evidence of
premeditation; and the good or even bad moral character of the victim
2. In rape cases, the evidence of if it tends to establish in any reasonable degree the
complainant’s past sexual conduct, or probability or improbability of the offense charged.
reputation or opinion thereof shall not be In this case, the evidence is not relevant.
admitted unless and only to the extent that
the court finds that such evidence is CRIMINAL AND CIVIL CASES
material and relevant to the case. (Sec. 6,
R.A. 8505) Evidence of the good character of a witness is not
admissible until such character has been
Q: Dave is on trial for sexual assault of Delly, a impeached.
law student who sidelines as a call center agent.
Dave offers the testimony of Danny, who says In all cases in which evidence of character or a trait
that Dave is known in the community as a of character of a person is admissible, proof may be
decent and discerning person. The prosecution made by testimony as to reputation or by
presents a rebuttal witness, Dovie, who testifies testimony in the form of an opinion. On cross
that, if Dave was reputed to be a good person, examination, inquiry is allowable into relevant
that reputation was a misperception because specific instances of conduct.
Dave had been previously convicted of
homicide.

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 Evidence
In cases in which character or a trait of a character Notable changes by the JAR
of a person is an essential element of a charge,
claim or defense, proof may also be made of 1. Testimonies are now allowed to be taken
specific instances of that person’s conduct. (Sec. and kept in the dialect of the place
54[c], Rule 130, 2019 Amendments to the Revised provided they are subsequently translated
Rules on Evidence) into English or Filipino. These will be
quoted in pleadings in their original
JUDICIAL AFFIDAVIT RULE version with the English or Filipino
A.M. No. 12-8-8-SC translation in parenthesis provided by the
Effectivity Date: January 1, 2013 party, subject to counter translation by
, opposing side.
SCOPE AND WHERE APPLICABLE 2. In civil actions, the judicial affidavit rule
requires the parties to lay their cards on
This Rule shall apply to all actions, proceedings, the table before pre-trial by submitting the
and incidents requiring the reception of evidence judicial affidavits and documents of the
before: parties and their witnesses and serving
copies on the adverse party at least 5 days
1. The MeTC, MTC in Cities, MTC, and the before the pre-trial. No further stipulations
MCTC, and the Shari‘a Circuit courts; of facts are needed at the pre-trial since, by
comparing the judicial affidavits of the
NOTE: It shall not apply to small claims opposing sides, the court will already see
cases under A.M. No. 08-8-7-SC; what matters they agree and on what
matters they dispute.
2. The RTC and the Shari‘a District Courts; 3. The court will already take active part in
3. The Sandiganbayan, CTA, CA and the examining the witnesses. The judge will no
Shari‘a Appellate Courts; longer be limited to asking clarificatory
4. The investigating officers and bodies questions; he can also ask questions that
authorized by the Supreme Court to will determine the credibility of the
receive evidence, including the IBP; and witness, ascertain the truth of his
5. The special courts and quasi-judicial testimony and elicit the answers that the
bodies, whose rules of procedure are judge needs for resolving issues. (Associate
subject to disapproval of the Supreme Justice Roberto Abad, supra)
Court, insofar as their existing rules of
procedure contravene the provisions of SUBMISSION IN LIEU OF DIRECT TESTIMONY
this Rule. (Sec. 1, JAR)
Requirements of the JAR which the parties are
NOTE: In civil cases (with the exception of small bound to follow
claims), the application of the JAR is mandatory
regardless of the amount of money claimed. The parties shall file with the court and serve on
the adverse party, personally or by licensed courier
Effect of the Judicial Affidavit Rule (JAR) in the service, not later than 5 days before pre-trial or
Philippine judicial system preliminary conference or the scheduled hearing
with respect to motions and incidents, the
It signals a dramatic shift from a dominantly following:
adversarial system to a mix adversarial and
inquisitorial system. (Associate Justice Roberto 1. The judicial affidavits of their witnesses,
Abad, UST Law Review Chief Justice Andres Narvasa which shall take the place of such
Honorary Lecture, February 15, 2013) witnesses' direct testimonies; and
2. The parties' documentary or object
Purpose of JAR evidence, if any, which shall be attached to
the judicial affidavits and marked as
To decongest the courts of cases and to reduce Exhibits A, B, C, and so on in the case of the
delays in the disposition of cases. complainant or the plaintiff, and as
Exhibits 1, 2, 3, and so on in the case of the
Significance of the use of a judicial affidavit respondent or the defendant. (Sec. 2, JAR)

The judicial affidavit shall take the place of direct NOTE: Every pleading stating a party’s claims or
testimonies of witnesses. defenses shall state, among others the summary of
the witnesses’ intended testimonies, provided that

621
 REMEDIAL LAW
the judicial affidavits of said witnesses shall be their authenticity in accordance with
attached to the pleading and form an integral part the Rules of Court;
thereof. Only witnesses whose judicial affidavits
are attached to the pleading shall be presented by 5. The signature of the witness over his
the parties during trial. Except if a party presents printed name;
meritorious reasons as basis for the admission of 6. A jurat with the signature of the notary
additional witnesses, no other witnesses or public who administers the oath or an
affidavit shall be heard or admitted by the court. officer who is authorized by law to
(Sec. 6, Rule 7, 2019 Proposed Amendments to the administer the same. (Sec. 3, JAR); and
1997 Rules on Civil Procedure) 7. A sworn attestation by the lawyer who
conducted or supervised the examination
Attachment of the original document as of the witness attesting to the following:
documentary evidence
a. He faithfully recorded or caused to be
A party or a witness may keep the original recorded the questions he asked and
document or object evidence in his possession the corresponding answers that the
after the same has been identified, marked as witness gave; and
exhibit, and authenticated, but he must warrant in b. Neither he nor any other person
his judicial affidavit that the copy or reproduction present or assisting him coached the
attached to such affidavit is a faithful copy or witness regarding the latter's answers.
reproduction of that original. In addition, the party (Sec. 4, JAR)
or witness shall bring the original document or
object evidence for comparison during the NOTE: A false attestation shall subject the lawyer
preliminary conference with the attached copy, to disciplinary action, including disbarment. (Sec.
reproduction, or pictures, failing which the latter 4[b], JAR)
shall not be admitted. (Ibid.)
Effect of non-compliance with the content and
CONTENTS AND PROCEDURE attestation requirements

Contents of a Judicial Affidavit (2016 Bar) The judicial affidavit shall not be admitted by the
court in evidence. (Sec. 10[c], JAR)
A judicial affidavit shall be prepared in a language
known to the witness and, if not in English or NOTE: The above provision, however, does not
Filipino, accompanied by a translation in English or absolutely bar the submission of a complaint
Filipino, and shall contain the following: replacement judicial affidavit as long as the
replacement shall be submitted before the hearing
1. The name, age, residence or business or trial and provided further that the following
address, and occupation of the witness; requisites are met:
2. The name and address of the lawyer who
conducts or supervises the examination of 1. The submission shall be allowed only
the witness and the place where the once;
examination is being held; 2. The delay is for a valid cause;
3. A statement that the witness is answering 3. The delay would not unduly prejudice the
the questions asked of him, fully conscious opposing party; and
that he does so under oath, and that he 4. The public or private counsel responsible
may face criminal liability for false for the preparation and submission of the
testimony or perjury; affidavit pays a fine of not less than
4. Questions asked of the witness and his ₱1,000.00 nor more than ₱5,000.00, at the
corresponding answers, consecutively discretion of the court.
numbered, that:
Subpoena
a. Show the circumstances under which
the witness acquired the facts upon The requesting party may avail himself of the
which he testifies; issuance of a subpoenaad testificandum or duces
b. Elicit from him those facts which are tecum under Rule 21 of the Rules of Court if the (a)
relevant to the issues that the case government official or employee, or the (b)
presents; and requested witness, who is neither the witness of
c. Identify the attached documentary the adverse party nor a hostile witness:
and object evidence and establish

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 Evidence
1. Unjustifiably declines to execute a judicial affidavit and on the exhibits attached to
affidavit; or the same (Sec. 7, JAR);
2. Refuses without just cause to make the 4. The party who presents the witness may
relevant books, documents, or other things examine him on re-direct;
under his control available for copying,
authentication, and eventual production in NOTE: In every case, the court shall take
court. (Sec. 5, JAR) active part in examining the witness to
determine his credibility as well as the
NOTE: Regardless of whether the requested truth of his testimony and to elicit the
witness, who is the adverse party’s witness, answers that it needs for resolving the
unjustifiably declines to execute a judicial affidavit issues.
or refuses without just cause to present the
documents, Section 5 cannot be made to apply to 5. Upon the termination of the testimony of
him for the reason that he is included in a group of his last witness, a party shall immediately
individuals expressly exempt from the provision’s make an oral offer of documentary
application. (Ng Meng Tamv. China Banking evidence, piece by piece, in their
Corporation, G.R. No. 214054, August 5, 2015) chronological order, stating the purpose or
purposes for which he offers the particular
Submission by the prosecution of the judicial exhibit (Sec. 8, JAR);
affidavit 6. After each piece of exhibit is offered, the
adverse party shall state the legal ground
The prosecution shall submit the judicial affidavits for his objection, if any, to its admission,
of its witnesses not later than five days before the and the court shall immediately make its
pre-trial, serving copies of the same upon the ruling respecting that exhibit.
accused. The complainant or public prosecutor
shall attach to the affidavits such documentary or NOTE: Since the documentary or object
object evidence as he may have, marking them as exhibits form part of the judicial affidavits
Exhibits A, B, C, and so on. No further judicial that describe and authenticate them, it is
affidavit, documentary, or object evidence shall be sufficient that such exhibits are simply
admitted at the trial. cited by their markings during the offers,
the objections, and the rulings, dispensing
OFFER AND OBJECTION with the description of each exhibit.

Trial APPLICATION TO CRIMINAL ACTIONS

After submitting to the court and serving the The judicial affidavit rule shall apply to all criminal
adverse party a copy of the judicial affidavits, trial actions:
shall commence as follows:
1. Where the maximum of the imposable
1. The party presenting the judicial affidavit penalty does not exceed six years;
of his witness in place of direct testimony 2. Where the accused agrees to the use of
shall state the purpose of such testimony judicial affidavits, irrespective of the
at the start of the presentation of the penalty involved; or
witness (Sec. 6, JAR); 3. With respect to the civil aspect of the
2. The adverse party may move to disqualify actions, whatever the penalties involved
the witness or to strike out his affidavit or are. (Sec. 9, JAR)
any of the answers found in it on ground of
inadmissibility; Q: Can a party filing a criminal action
cognizable by the Regional Trial Court be
NOTE: The court shall promptly rule on mandated to follow the JAR?
the motion and, if granted, shall cause the
marking of any excluded answer by A: NO. The jurisdiction of the RTC in criminal cases
placing it in brackets under the initials of includes offenses where the imposable penalty
an authorized court personnel, without exceeds 6 years, thus, as a rule the JAR has no
prejudice to the tender of excluded application except when the accused agrees to its
evidence under Sec. 40, Rule 132. use.

3. The adverse party shall have the right to Q: Is it mandatory on the part of the accused to
cross-examine the witness on his judicial submit a judicial affidavit?

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 REMEDIAL LAW
A: NO. Since the accused is already aware of the Appearance of the witness at the scheduled
evidence of the prosecution, he has the option to hearing
submit or not to submit his judicial affidavits. If the
accused desires to be heard, he may submit his The submission of the judicial affidavit of the
judicial affidavit as well as those of his witnesses witness does not exempt such witness from
within ten days from receipt of the affidavits of the appearing at the scheduled hearing. His
prosecution with service upon the public and appearance is necessary as the adverse party has
private prosecutor. (Sec. 9 [c], JAR) the right to cross-examine him on his judicial
affidavit and the attached exhibits.
Q: The JAR took effect last January 1, 2013, but
with some modification as to its applicability to NOTE: The court shall not consider the affidavit of
criminal cases. What are these modifications? any witness who does not appear in the scheduled
hearing of the case as required. As for the counsel,
A: The JAR was modified only with respect to his failure to appear without a valid cause despite
actions filed by public prosecutors, subject to the notice shall be deemed to have waived his client’s
following conditions: right to confront by cross-examination, the
witnesses present.
1. For the purpose of complying with the
Judicial Affidavit Rule, public prosecutors EFFECT ON OTHER RULES
in the first and second level courts shall
use the sworn statements that the As to Rules of Court and Rules of Procedure
complainant and his or her witnesses governing investigating officers and bodies
submit during the initiation of the criminal authorized by the Supreme Court to receive
action before the office of the public evidence
prosecutor or directly before the trial
court; They are repealed or modified insofar as they are
inconsistent with the provisions of the Judicial
2. Upon presenting the witness, the attending Affidavit Rule. (Sec. 11, JAR)
public prosecutor shall require the witness
to affirm what the sworn statement As to Rules of procedure governing quasi-
contains and may only ask the witness judicial bodies which are inconsistent with it
additional direct examination questions
that have not been amply covered by the They are thereby disapproved. (Ibid.)
sworn statement;
Q: Pedro was charged with theft for stealing
3. This modified compliance does not apply Juan's cellphone worth P20, 000.00. Prosecutor
to criminal cases where the complainant is Marilag at the pre-trial submitted the judicial
represented by a duly empowered private affidavit of Juan attaching the receipt for the
prosecutor. The private prosecutor shall purchase of the cellphone to prove civil
be charged in the applicable cases the duty liability. She also submitted the judicial
to prepare the required judicial affidavits affidavit of Mario, an eyewitness who narrated
of the complainant and his or her therein how Pedro stole Juan's cellphone. At the
witnesses and cause the service of the trial, Pedro's lawyer objected to the
copies of the same upon the accused. prosecution's use of judicial affidavits of her
witnesses considering the imposable penalty
EFFECT OF NON-COMPLIANCE on the offense with which his client was
charged. (2015)
GR: A party who fails to submit the required
judicial affidavits and exhibits on time shall be a. Is Pedro's lawyer correct in objecting to the
deemed to have waived their submission. (Sec. judicial affidavit of Mario?
10, JAR)
A: YES, Pedro’s lawyer is correct in objecting to the
XPN: The court may, however, allow only once judicial affidavit of Mario. The Judicial Affidavit
the late submission of the same provided, the Rules shall apply only to criminal actions where
delay is for a valid reason, would not unduly the maximum of the imposable penalty does not
prejudice the opposing party, and the defaulting exceed six years. [Sec. 9(a)(1), A.M. No. 12-8-9-SC]
party pays a fine of not less than ₱1,000.00 nor Here, the maximum imposable penalty for the
more than ₱5,000.00, at the discretion of the crime of theft of a cellphone worth ₱20,000 is
court. (Ibid.)

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 Evidence
prison mayor in its minimum to medium periods, or
six years and one day to eight years and one day. OFFER AND OBJECTION

b. Is Pedro's lawyer correct in objecting to the
judicial affidavit of Juan? GR: The court shall consider only the evidence

which has been formally offered. The purpose for
A: NO. Pedro’s lawyer is not correct in objecting to which the evidence is offered must be specified.
the judicial affidavit of Juan because the Judicial (Sec. 34, Rule 132, 2019 Amendments to the Revised
Affidavit Rules apply with respect to the civil Rules on Evidence) (2007 BAR)
aspect of the actions, regardless of the penalties
involved. (Sec. 9, A.M. No. 12-8-8-SC) Here the XPNs:
judicial affidavit of Juan was offered to prove the
civil liability of Pedro. 1. Marked exhibits not formally offered may

be admitted provided it complies with the
c. At the conclusion of the prosecution's following requisites:
presentation of evidence, Prosecutor Marilag
orally offered the receipt attached to Juan's a. Must be duly identified by testimony
judicial affidavit, which the court admitted over
duly recorded; and
the objection of Pedro's lawyer.
b. Must have been incorporated in the

records of the case (Ramos v. Dizon,
After Pedro's presentation of his evidence, the
G.R. No. 137247, August 6, 2006);
court rendered judgment finding him guilty as
charged and holding him civilly liable for 2. Under the Rule on Summary Procedure,
₱20,000.00. Pedro's lawyer seasonably filed a
where no full-blown trial is held in the
motion for reconsideration of the decision interest of speedy administration of
asserting that the court erred in awarding the justice;
civil liability on the basis of Juan's judicial 3. In summary judgments under Rule 35
affidavit, documentary evidence which where the judge based his decisions on the
Prosecutor Marilag failed to orally offer. Is the pleadings, depositions, admissions,
motion for reconsideration meritorious? (2015
affidavits and documents filed with the
Bar)
court;

4. Documents whose contents are taken
A: NO. The motion for reconsideration is not
judicial notice of by the court;
meritorious. The judicial affidavit is not required to
5. Documents whose contents are judicially
be orally offered as separate documentary admitted;
evidence, because it is filed in lieu of the direct 6. Object evidence which could not be
testimony of the witness. It is offered, at the time formally offered because they have
the witness is called to testify, and any objection to
disappeared or have become lost after
it should have been made at the time the witness
they have been marked, identified and
was presented. (Secs. 6 and 8, A.M. No. 12-8-8-SC) testified on and described in the record
Since the receipt attached to the judicial affidavit and became the subject of cross-
was orally offered, there was enough basis for the examination of the witness who testified
court to award civil liability.
on them during the trial (Tabuena v. CA,

G.R. No. 85423, May 6, 1991; People v.
Recent jurisprudence on JAR
Napat-a, G.R. No. 84951, November 14,
1989); or
Regardless of whether the requested witness, who 7. Documents and affidavits used in deciding
is the adverse party’s witness, unjustifiably
quasi-judicial or administrative cases.
declines to execute a judicial affidavit or refuses (Bantolino v. Coca-Cola Bottlers Inc., G.R.
without just cause to present the documents,
No. 153660, June 10, 2003)
Section 5 cannot be made to apply to him for the
reason that he is included in a group of individuals OFFER OF EVIDENCE
expressly exempt from the provision’s application.
(Ng Meng Tamv. China Banking Corporation, G.R. Purposes of offer of evidence
No. 214054, August 5, 2015)
1. To notify the party of possible objection,
and for the offeror to make necessary

625
 REMEDIAL LAW
correction at the trial level to meet the Q: Gizel filed a complaint for recovery of
objection; possession and damages against Fara. In the
2. To allow the trial judge to rule properly; course of the trial, Gizel marked his evidence
and but his counsel failed to file a formal offer of
3. To lay basis for appeal so that the evidence. Fara then presented in evidence tax
appellate court can decide intelligently. declarations in the name of his father to
(Regalado, 2008) establish that his father is a co-owner of the
property. The court ruled in favor of Fara,
NOTE: A formal offer is necessary, since judges are saying that Gizel failed to prove sole ownership
required to base their findings of fact and their of the property in the face of Fara’s evidence.
judgment solely and strictly upon the evidence Was the court correct? Explain briefly. (2007
offered by the parties at the trial. (Aludos v. Suerte, BAR)
G.R. No. 165285, June 18, 2012)
A: YES. The court shall consider no evidence which
To allow parties to attach any documents to their has not been formally offered. The trial court
pleadings and then expect the court to consider it rendered judgment considering only the evidence
as evidence, even without formal offer and offered by Fara. The offer is necessary because it is
admission, may draw unwarranted consequences. the duty of the judge to rest his findings of fact and
Opposing parties will be deprived of their chance his judgment only and strictly upon the evidence
to examine the document and to object to its offered by the parties at the trial. (People v.
admissibility. On the other hand, the appellate Pecardal, G.R. No. 71381, November 24, 1986)
court will have difficulty reviewing the documents
not previously scrutinized by the court below. Q: Aiza and Matet were charged with murder.
(Candido v. Court of Appeals, G.R. No. 107493, Upon application of the prosecution, Matet was
February 1, 1996) discharged from the Information to be utilized
as a State witness. The prosecutor presented
NOTE: An offer of evidence is important because Matet as witness but forgot to state the purpose
the court shall consider no evidence which has not of his testimony much less offer it in evidence.
been formally offered. (Riguera, 2020) Matet testified that she and Aiza conspired to
kill the victim but it was Aiza who actually shot
Reasons for stating purposes of offer of the victim.
evidence
The testimony of Matet was the only material
1. For the court to determine whether that evidence establishing the guilt of Aiza. Matet
piece of evidence should be was thoroughly cross-examined by the defense
admitted/considdered or not; and counsel. After the prosecution rested its case,
2. For the adverse party to interpose the the defense filed a motion for demurrer to
proper objection. evidence based on the following grounds:

NOTE: It is basic in the law of evidence that the 1. The testimony of Matet should be
court shall consider evidence solely for the excluded because its purpose was not
purpose for which it was offered. (Ragudo v. initially stated and it was not formally
Fabella Estate Tenants Assoc. Inc., G.R. No. 146823, offered in evidence; and
August 9, 2005) 2. Matet's testimony is not admissible
against Aiza pursuant to the rule on
Identification of a Documentary Evidence vs. "res inter alios acta." (2003 Bar)
Formal Offer as an Exhibit
Rule on the motion for demurrer to evidence on
IDENTIFICATION OF FORMAL OFFER AS
the above grounds.
A DOCUMENTARY AN EXHIBIT

EVIDENCE
A:
Done in the course of Done only when the 1. The demurrer to evidence should be
the trial and party rests its case.
denied because the defense counsel did
accompanied by the (Dizon v. Court of Tax not object to her testimony despite the fact
marking of the Appeals, G.R. No. that the prosecutor forgot to state its
evidence as an exhibit. 140944, April 30, 2008) purpose and offer it in evidence. Moreover,
the defense counsel thoroughly cross-
examined Matet and thus waived the
objection.

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 Evidence
2. The res inter alios acta rule does not apply Stages in the presentation of documentary
because Matet testified in open court and evidence
was subjected to cross-examination.

WHEN TO MAKE AN OFFER

TESTIMONIAL DOCUMENTARY AND
EVIDENCE OBJECT EVIDENCE
The offer of the The offer of
testimony of a witness documentary and object
in evidence must be evidence shall be made
made at the time the after the presentation
witness is called to of a party’s testimonial
testify. (Sec. 35, Rule evidence. (Sec. 35, Rule
132) (2009 BAR) 132)

Every time a new The evidence is only
witness is called to offered once, after all
testify, there must be an the testimonial
offer of evidence. evidence are offered
and prior to the resting
of the case for a party.

NOTE: The presentation
of a documentary or
object evidence for
marking and
identification during
trial is not the offer
contemplated in the
rules. (Riano, 2016)

NOTE: All evidence must be made orally. (Sec. 35,
Rule 132, 2019 Amendments to the Revised Rules on
Evidence)



OBJECTION

Ways of impeaching the evidence of the
proponent

1. By objection to offer of evidence(Sec. 36,
Rule 132); or
2. By motion to strike out answer. (Sec. 39,
Rule 132)

Purposes of objections

1. To keep out inadmissible evidence that
would cause harm to a client’s cause;
2. To protect the record, i.e. to present the
issue of inadmissibility of the offered
evidence in a way that if the trial court
rules erroneously, the error can be relied
upon as a ground for a future appeal;

627
 REMEDIAL LAW
3. To protect a witness from being the damages suffered by the victim in a
embarrassed on the stand or from being homicide case);
harassed by the adverse counsel; 2. Incompetent – The evidence is excluded
4. To expose the adversary’s unfair tactics by law or rules (Sec. 3, Rule 128) (e.g.
like his consistently asking obviously evidence obtained in violation of the
leading questions; Constitutional prohibition against
5. To give the trial court an opportunity to unreasonable searches and seizures);
correct its own errors and at the same 3. Specific objections– e.g. parol evidence
time warn the court that a ruling adverse and best evidence rule;
to the objector may supply a reason to 4. General objections– e.g. continuing
invoke a higher court’s appellate objections (Sec. 37, Rule 132)
jurisdiction; and a. objection to a question propounded in
6. To avoid a waiver of the inadmissibility of the course of the oral examination of
an otherwise inadmissible evidence. the witness; and
(Riano, 2016) b. objection to an offer of evidence in
writing;
Time when objection should be made
5. Formal– One directed against the alleged
Objection to evidence offered orally must be made defect in the formulation of the question
immediately after the offer is made. (e.g. ambiguous questions, leading and
misleading questions, repetitious
1. Objection to the testimony of a witness questions, multiple questions,
for lack of a formal offer – as soon as the argumentative questions) (Riano, 2016);
witness begins to testify. and
2. Objection to a question propounded in 6. Substantive– One made and directed
the course of the oral examination of a against the very nature of evidence (e.g.
witness - as soon as the grounds shall parol, not the best evidence hearsay,
become reasonably apparent. (Sec. 36, Rule privileged communication, not
132, 2019 Amendments to the Revised Rules authenticated, opinion, res inter alios acta).
on Evidence) (Ibid.)

NOTE: As a rule, failure to specify the grounds for NOTE: Objections to admissibility of evidence
the objection is in effect a waiver of the objection, cannot be raised for the first time on appeal. When
except where the evidence could not have been a party desires the court to reject the evidence
legally admitted for any purpose whatsoever. offered he must so state in the form of objection.
(People v. Singh, 45 Phil. 676) Without objection, he cannot raise the question for
the first time on appeal. (People v. Salak, G.R. No.
The objection must be specific enough to 181249, March 14, 2011)
adequately inform the court the rule of evidence or
of substantive law that authorizes the exclusion of REPETITION OF AN OBJECTION
evidence. (Riano, 2016)
Rules on continuing objections
Contemporaneous Objection Rule
GR: When it becomes reasonably apparent in the
It requires that a specific and timely objection be course of the examination that the questions asked
made to the admission of evidence. Objections to are of the same class as those to which objection
the admission of evidence must be made has been made (whether sustained or overruled), it
seasonably, at the time it is introduced or offered, shall not be necessary to repeat the objection, it
otherwise they are deemed waived, and will not be being sufficient for the adverse party to record his
entertained for the first time on appeal. (People v. continuing objection to such class of questions.
Bañares, G.R. No. 68298, November 25, 1986) (Sec. 37, Rule 132)

Kinds of objections XPNs:

1. Irrelevant– The evidence being presented 1. Where the question has not been
is not relevant to the issue (e.g. when the answered, it is necessary to repeat the
prosecution offers as evidence the alleged objection when the evidence is again
offer of an insurance company to pay for offered or the question is again asked;
2. Incompetency is shown later;

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 Evidence
3. Where objection refers to preliminary NOTE: Objections may be waived because the
question, objection must be repeated right to object is merely a privilege which the
when the same question is again asked party may waive. (People v. Martin, G.R. No.
during the introduction of actual evidence; 172069, January 30, 2008) However, such
4. Objection to evidence was sustained but waiver only extends to the admissibility of the
reoffered at a later stage of the trial; evidence. It does not involve an admission that
5. Evidence is admitted on condition that its the evidence possesses the weight attributed
competency or relevancy be shown by to it by the offering party. (Riano, 2016)
further evidence and the condition is not
fulfilled, the objection formerly interposed 2. Motion to strike out or expunge:
must be repeated or a motion to strike out
the evidence must be made; and a. When the witness answers prematurely
6. Where the court reserves the ruling on before there is reasonable opportunity for
objection, the objecting party must request the adverse party to object, and such
a ruling or repeat the objection. objection is found to be meritorious;
b. When a question is not objectionable but
RULING the answer is not responsive;
c. When a witness testifies without a
The ruling on the objection must be given question being posed or testifies beyond
immediately after the objection is made, unless the limits set by the court;
court desires to take a reasonable time to inform d. When the witness does a narration instead
itself on the question presented; but the ruling of answering the question;
shall always be made during the trial and at such e. When the answers are incompetent,
time as will give the party against whom it is made irrelevant, or improper (Sec. 39, Rule 132,
an opportunity to meet the situation presented by 2019 Amendments to the Revised Rules on
the ruling. (Sec. 38, Rule 132) Evidence);
f. When the witness becomes unavailable for
However, if the objection is based on two or more cross-examination through no fault of the
grounds, a ruling sustaining the objection on one or cross-examining party;
some of the must specify the ground or grounds g. When the testimony was allowed
relied upon. (Ibid.) conditionally and the condition for its
admissibility was not fulfilled (Riano,
NOTE: The rulings of the trial court during the 2016);
course of the trial are interlocutory in nature and h. When a witness has volunteered
may not be the subject of separate appeals or statements in such a way that the party
review on certiorari but are assigned as errors and has not been able to object thereto; or
reviewed on appeal properly taken from the i. Uncompleted testimonies where there is
decision rendered by the trial court. (Gatdula v. no opportunity for the other party to
People, G.R. No. 140688, January 26, 2001) cross-examination. (Ibid.)

Q: Counsel Oliva objected to a question posed NOTE: A direct testimony given and allowed
by opposing Counsel Diesta on the grounds that without a prior formal offer may not be expunged
it was hearsay and it assumed a fact not yet from the record. When such testimony is allowed
established. The judge banged his gavel and without any objection from the adverse party, the
ruled by saying “Objection Sustained”. Can latter is estopped from questioning the non-
Counsel Diesta ask for a reconsideration of the compliance with the requirement.
ruling? (2012 BAR)
TENDER OF EXCLUDED EVIDENCE (2017 Bar)
A: YES, Counsel Diesta may ask the Judge to specify
the ground/s relied upon for sustaining the When an attorney is not allowed by the court to
objection and thereafter move its reconsideration present testimony which he thinks is competent,
thereof. (Sec. 38, Rule 132) material and necessary to prove his case, he must
make an offer of proof. This is the method properly
STRIKING OUT OF AN ANSWER preserving the record to the end that the question
may be saved for purposes of review. (Caraig,
Modes of excluding inadmissible evidence 2004)

1. Objection – when the evidence is offered; NOTE: This rule is in preparation in the filing of an
appeal. Moreover, the rule is that the offeror must

629
 REMEDIAL LAW
preserve such excluded evidence on his record and 40, Rule 132)
stating the purpose of such preservation, e.g.
knowing that it is relevant and must be admitted. How offer of evidence is made

Purposes of tender of excluded evidence 1. Before the court has ruled on the
objection, in which case its function is to
1. To allow the court to know the nature of persuade the court to overrule the
the testimony or the documentary objection or deny the privilege invoked;
evidence and convince the trial judge to 2. After the court has sustained the objection,
permit the evidence or testimony; and in which case its function is to preserve for
2. To create and preserve a record for appeal, the appeal the evidence excluded by the
should the judge be not persuaded to privilege invoked; or
reverse his earlier ruling. (Riano, 2016) 3. Where the offer of proof includes the
introduction of documents, or any of the
Even assuming that the trial court erroneously physical evidence, the same should be
rejected the introduction as evidence of the CA marked for identification so that they may
Decision, petitioner is not left without legal become part of the record. (Herrera, 1999)
recourse. Petitioner could have availed of the
remedy provided in Section 40, Rule 132 where he When offer of proof is NOT required
could have included the same in his offer of
exhibits. If an exhibit sought to be presented in 1. When the question to which an objection
evidence is rejected, the party producing it should has been sustained clearly reveals on its
ask the courts permission to have the exhibit face the substance, purpose and relevancy
attached to the record. (Catacutan v. People, G.R. of the excluded evidence;
No. 175991, August 31, 2011) 2. When the substance, purpose and
relevancy of the excluded evidence were
Offer of Proof vs. Offer of Evidence made known to the court either in the
court proceedings and such parts appear
OFFER OF PROOF / on record; and
TENDER OF OFFER OF EVIDENCE 3. Where evidence is inadmissible when
EXCLUDED EVIDENCE offered and excluded, but thereafter
The process by which a Refers to testimonial, becomes admissible, it must be re-offered,
proponent of an documentary or object unless the court indicates that a second
excluded evidence evidence that are offer would be useless. (Herrera, 1999)
tenders the same. presented or offered in
Only resorted to if court by a party so that English Exchequer Rule vs. Harmless Error Rule
admission is refused by the court can consider
the court for purposes his evidence when it ENGLISH EXCHEQUER HARMLESS ERROR
of review on appeal. comes to the RULE RULE
preparation of the It provides that a trial The appellate court will
decision. court's error as to the disregard an error
admission of evidence committed by the trial
How tender of excluded evidence is made was presumed to have court in the admission
caused prejudice and of evidence unless in its
1. As to documentary or object evidence: It therefore, almost opinion, some
may have the same attached to or made automatically required substantial wrong or
part of the record. (Sec. 40, Rule 132) new trial. miscarriage of justice
(1991, 1996 Bar) has been occasioned.

NOTE: The party should ask that evidence NOTE: We follow the harmless error rule, for in
ruled out at the trial be attached to the dealing with evidence improperly admitted in the
record of case in order that same may be trial, courts examine its damaging quality and its
considered on appeal. (Bañez v. CA, G.R. No. impact to the substantive rights of the litigant. If
L-30351, September 11, 1974) the impact is slight and insignificant, appellate
courts disregard the error as it will not overcome
2. As to oral evidence: It may state for the the weight of the properly admitted evidence
record the name and other personal against the prejudiced part. (People v. Teehankee
circumstances of the witness and the Jr., G.R. Nos. 111206-08, October 6, 1995)
substance of the proposed testimony. (Sec.

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