Evidence Reviewer r128 to r130

Evidence Notes Atty. Tranquil Salvador III | LCP 2014A

Rule 128

What are the sources of evidence? Not limited to RoC. Include the constitutional provisions on searches

and seizure, decisions of the supreme court, special laws and Supreme Court circulars.

Most lifted from American jurisprudence SC currently revising rules of evidence Most Impt – R130-132 Rules of Evidence (R128, Sec 1) Constitutional provisions

What is the most common evidence used in the Philippines?Testimonial.

Can you just give evidence of character in any case? Must be relevant, direct to issue.

o Relevant: present proof of character witnesso Irrelevant: accused & offended party are GS classmates

Collateral facts/matters Reputation is a matter of evidence

Kinds of EvidencePositive Did or did not happen

Witness personal knowledge or perceptionGoes beyond identification (Salvador Note)Can include disavowal that something happened: witness claims act did not occur

Negative Did not see or know of the personal occurrence of a factNo personal knowledge

Direct Autopsy (one who did)Medico-legalDoctorTestimony of eye-witness

Circumstantial Need inference from fact, event or an actShould be 2 or more circumstances for you to arrive at a fact

Relevant Fact Evidence is having value, is never to prove any matter, in probable action

Material Fact Directed to prove fact in issue as determined by the

rules of substantive law and pleadingsPrimary Can be documentary or testimonial evidence

Witness need not be victim, can be bystander eyewitness, since law does not distinguish it as primary

Secondary Document (classic example)Cannot be presented, unless you lay basis for presentationCan only be presented WHEN original has beenLostDestroyedIn the hands of the other party

Rebuttal Given to explain, repel, counteract, or disprove factsOnly available for new matters brought up by opposing counsel during the case (trial)Presented after the other party has already presented evidenceNot mandatory, left to sound discretion of the courtIn ordinary presentation of evidence, you don’t have rebuttal unless it’s asked for (Salvador Note).

Surrebuttal Rebuttal to rebuttal evidence

Can circumstantial evidence be enough to convict?Yes. Case of Suerte-Felipe v. People.

Can there be positive identification based on circumstantial evidence?Yes. Case of Suerte-Felipe, supra.

If a fact is relevant should it be material? Vice versa?Yes to both questions.

But if a fact is irrelevant BUT material?Yes. That he owns a gun does not prove he shot a person, but proves

he had access to a weapon.

Is hearsay evidence admissible?NO. Hearsay evidence is excluded by the rules, inadmissible. UNLESS

it is an exception to the hearsay rule.

If exception, is it admissible? NO. It is secondary evidence. But this is not an ironclad rule.

Sources Riano, Regalado, Class Notes, Francisco, Fernando summary of Riano, Cases 1


In every case where you have a document, do you need to present the original?

No. Only in cases where the Best Evidence Rule is applicable, when the contents of the document is the subject of inquiry. See definition of original document, Sec. 4, Rule 130.

Section 1. Evidence defined. – Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceedings the truth respecting a matter of fact.

What is evidence? Evidence is the mode and manner of proving competent facts in a

judicial proceeding (Bustos v. Lucero, 81 Phil. 640). Illustration

o Prosecution in a case for homicide present witnesses.o witnesses, all 3 go through DEo Defense conduct Crosso Redirecto Re-cross

after formal offer of evidence you can file demurrer of evidence. Accused

o Theory: alibi present 4 evidence

If alibi is new matter, can conduct rebuttal Rebuttal is left to the sound discretion of the court

o In civil there is an answer so rebuttal is rare, in criminal case accused has right not to present theory so rebuttal is not so common. Rare for prosecution to want to know everything. However, rebuttal is not commonly used.

You can amend pleadings to conform with evidence, R110, Sec. 5

When do you mark the document? During the presentation of evidence. Markings [by practice]:

o Plaintiff – letterso defendant – numberso Establish

doc is original doc is authentic document should be identified by a witness

What is the degree of evidence [R133]? civil case – preponderance of evidence

criminal case – beyond reasonable doubt

Does R133 tell you the significance of a document? Does it refer to a document? What is it’s value?

No. Document on it’s own is of no value without a witness identifying it. Preliminary marking is to speed up proceedings. Stipulating mean you are accepting document on it's face. That’s why

lawyers avoid stipulation.

Is that considered evidence because it’s marked? No, there should be a formal offer of documentary and testimonial

evidence. QC: pilot testing procedure, no written offer of evidence

Do you file answer in criminal case?No. Pre-trial not part of records unless ordered by court.

What if court denies request for rebuttal? MR. If GAD then appeal on R45/R65

What is proof beyond reasonable doubt?Proof beyond reasonable doubt – moral certainty, or that degree of

proof which produces conviction in an unprejudiced mind.

Does it mean absolute certainty?No. Only moral certainty is required.

How can you say that a mind is unprejudiced? Judges have their own prejudices.

It’s very hard to determine.

Administrative cases

– substantial evidence, degree lower than preponderance of evidence; evidence sufficient to prove for any reasonable mind; Except dismissal of Judges – clear and convincing evidence;

Curative evidence – when one party is allowed to present evidence which is otherwise inadmissible, the other party is given the opportunity to cure the objectionable evidence;

Conditional evidence

– evidence relevance is not yet certain so it can be admitted conditionally; left to discretion of singular person;

Prima facie evidence

– that evidence which does not needs to be proved anymore, it establishes a preposition



ExamplesPublic documents – prima facie of what is contained therein

Conclusive presumption disputable presumptioncannot be refuted anymore can be controverted

Sec. 2. Scope. – The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or these rules.

What do you mean by “it shall be the same in all courts”?Rule 128 to 133 shall be applicable in any court.

What do you mean by that “it shall be the same in all courts”?Rule 128 to 133 shall be applicable in any court, in all courts. Uniform

procedure and differ only in the appreciation of evidence.

How about privileged communications, does it apply to all courts?Yes.

Do admin agencies follow the rules on evidence?Generally no, unless the rules of the agency are inadequate, it will

supply what is lacking (R1, Sec. 4). If there are no rules on evidence, the Rules on evidence will apply.

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

When is evidence admissible?Evidence must be

(1) relevant; and (2) not excluded by the rules.

What examples of evidence that is relevant but is excluded by the rules? confession in custodial investigation made without the assistance of

counsel confidential info even after dissolution of marriage surveillance of suspects in human security act those in violation of the best evidence rule witness does not have personal knowledge but it is excluded by the

rules, it is hearsay, unless it is independent relevant statement

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

Factum probans (evidentiary fact or the fact which the factum probandum is to be established) v factum probandum (ultimate fact or fact to be established, proposition)

Factum probandum Factum probansUltimate fact or fact to be established.Proposition.

Evidentiary fact or the fact by which the factum probandum is to be established.

Rule 129

SECTION 1. Judicial notice, when mandatory. – A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. (1a)

What is judicial notice?That the court will bring to its aid and consider, without proof of the

facts, its knowledge of those matters of public concern which are known by all well-informed persons (State v. Kelly).

What is the object of judicial notice?Convenience and expediency.

What is the direct effect of judicial notice?Relieves the parties from introducing evidence to prove the fact noticed.

Is the application of the judicial notice rule confined to courts?NO. May be applicable to boards and special tribunals which partake of

the nature of courts and whose findings partake of the nature of judgments, may take judicial notice of certain matters (Lim v. Collector of Customs, 36 Phil. 472).

What makes judicial notice reliable?Sec. 1, Rule 129.

What are the kinds of judicial notice?



1. Mandatory2. Discretionary without hearing3. Discretionary with hearing

What may the court take judicial notice of?Mandatory Discretionary without

hearingDiscretionary with hearing

Existence and territorial extent of States

Their political history

Forms of government [of governments recognized by the Philippines]

Symbols of nationality

Law of nations

Admiralty and maritime courts of the world and their seals

The political constitution and history of the Philippines

Official acts of the legislative, executive and judicial departments of the Philippines

Laws of

Matters of public knowledge

o Common and general knowledge;

o Existence and operation accepted by the public without qualification or contention;

o TEST: whether sufficient notoriety attaches to the fact involved as to make it proper to assume its existence without proof;

Capable of unquestionable demonstration

o statistical processes and methods

o Capable of immediate and accurate demonstration by resort to easily accessible sources of indisputed accuracy

o INCLUDE: areas of science, natural

Any matter during trial

Any matter decisive of the issue after trial and before judgment or on appeal

nature Measure of

time Geographic

al divisions

phenomena, chronology, technology, geography, statistical facts, other fields of professional and scientific knowledge

Ought to be known to judges because of their functions

o Ascertainable from the court records

o Laws and rules

All of these can be verified from source materials, like encyclopedia, almanac, dictionary, etc. and these are matters of judicial notice by the judges.

Judge has discretion and NO hearing is required.

Whose notice is this? Should this be personal to him?Judge. No. Should not be just knowledge of judge, it should be

knowledge of matters “commonly known.”

What if judge is from Cebu, what if he doesn’t know?It does not matter that the judge does not personally know. What

matters is the subject proper for judicial knowledge, the judge may, at his discretion, inform himself in any way which may seem best to him, and act accordingly (Hoyt v. Russel).

How should power to take JN be exercised?Should be exercised with caution and must ascertain that a certain

notoriety exists. Every reasonable doubt should be resolved in the negative.

What is the remedy if judge didn’t take JN of something he was suppose to?

Petition for certiorari is not remedy for loss of appeal. If appeal, ground is misappreciation of facts and evidence.



What is Mandatory JN?Corinthian Gardens case.

Can court take notice of case pending in another court? NO.

What about cases already concluded?ONLY IF SC decisions.

Can court take JN of Statute of Liberty?YES.

Why take JN?Facts are settled, established, not subject of dispute. Speeds up

litigation, more economical

Is judge supposed to remember every circular of every agency?If of lesser importance, not required, only required to know official acts.

What about circulars of the SC?Yes, by reason of what he ought to know by reason of his judicial

function.

Where can he derive information?Almanac and ecyclopedia.

Can he take JN of rivers?No standard of JN of rivers, but when tributary/become of less

importance and judge is not expected to know.

What about roads?Yes, but only if within jurisdiction of judge. Same rule for national

highways and provincial roads. If thus, can take JN under Sec. 2, it is discretionary.

SEC. 2. Judicial notice, when discretionary. – A court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. (1a)

SEC. 3. Judicial notice, when hearing necessary. – During the trial, the court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon.

After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case. (n)

What is the purpose of hearing?Procedural due process; to allow the parties to be heard on the propriety

of taking JN, since such pre-empts the normal fact-finding procedure.

Judicial Notice When Hearing is NecessaryDuring Trial After trialCovers any matter Only matters decisive of a

material issueThe court

a) motu propio, on request of a partyb) announces its intention to take judicial notice of any matter

The courta) before judgment or on appealb) motu propio, on request of a partyc) takes judicial notice of any matter, andd) if such matter is decisive of a material issue in the case

May court consult sources of information to determine propriety of taking JN?

YES. May consult appropriate and reliable sources of information, such as works on collateral arts and sciences.

How do you introduce JN while case is already on appeal?Call for hearing, R130, Sec. 3, file a motion to call court’s attention to

matter you want them to take attention to. If appeal from the RTC to CA, manifest intent in court.

What If judge ignores mandatory JN? Can he make parties prove it?If he ignores it, cite as assignment of error in appeal. Cannot make

parties prove it.

Tatad v. Yu (2011). Case touched on Napes ruling. Whether or not Napes ruling can apply

in criminal cases in 2005.



What is demonstrative evidence? Help court visualize. If court cannot visualize, can conduct ocular inspection.

Can status of a celebrity be of public knowledge?YES. May be discretionary, depending on facts.

SEC. 4. Judicial admissions. – An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. (2a)

Judicial Admission Extrajudicial AdmissionThose made in the pleadings or in the course of the trial.

Made out of court or in another judicial proceeding not under consideration by the present court.

Conclusive on party making them Are disputable as a rule, where the element of estoppel are not present

An judicial admission in another case is considered an extrajudicial admission.

Cuenco v. CAFor stipulation, parties would have to agree first before it becomes an

admission; only an offer to stipulate.

Would that amount to an admission to the party offering the same?No. Still have to prove it. If in complaint, then judicial admission, if

uncontested.

When do you have judicial admission?Any part of the proceedings could amount to a judicial admission

Complaint Trial Pre-trial Motion Mode of discovery (deposition; R2, Sec. 1 request for

admission, answer to written interrogatories in court) Actionable document submitted to court Admission by silence Admission by counsel of client

Amendments made in superseded pleadings. [Francisco: BUT must be offered as evidence to be JA]

Document attached to pleadings Motion to dismiss, since deemed to have hypothetically

admitted the material allegations => the pleading asserting the claim states no cause of action

Negative pregnant Arraignment, accused pleads guilty Stipulation of facts during trial [usually made during pre-

trial] During direct examination or cross-examination Confessions in open court Admissions by co-conspirators [only if extrajudicial made

and subsequently presented in court] In demurrer to evidence, if you file & granted in civil case,

& loss right to present evidence, it amounts to an admission

Admissions of a party [R130, Sec. 26]

Would admission made in superseded pleading be a JA? YES. R 10, Sec. 8.

Can you disown an admission?YES.

When do you deny?Any time during trial, claim

Admission made through palpable mistake No such admission was made

What is the effect of a judicial admission?The admission is conclusive against the party who makes it.

o UNLESS proven that it was made through mistake or it was not so made

THEN present rebuttal evidence contradicting statement

May an admission made in one pleading be superseded by another pleading filed in a different case?

NO. Salcedo v. Salcedo (CA) case. It is incongruous to maintain that a judicial admission may be deemed superseded at all.

Rule 130



A. OBJECT (REAL) EVIDENCESECTION 1. Object as evidence. – Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. (1a)

What is object evidence?That addressed to the senses of the tribunal (Jones on Evidence, Sec.

16) – sight, hearing, taste, touch, or smell.It is the real thing itself and appeals directly to the senses of the court. It

consists of tangible things a gun, broken piece of glass, piece of bloody clothing or the defective ladder. It is not the perception of a witness or recollection of that witness, neither is it a verbal description, replica or mere representation (Riano 143). It can have very persuasive effect.

Physical evidence is a mute but eloquent manifestation of truth, and it ranks high in our hierarchy of trustworthy evidence – where the physical evidence runs counter to the testimonial evidence, the physical evidence should prevail (BPI v Reyes, G.R. No. 157177, 2008).

Object evidence Object cannot be evidence without someone testifying, someone to

identify it and prove it was the object used in the commission of the offense (Salvador Note).

Usually object of a crime brought to court; But not all object evidence can be brought to court, they can conduct

ocular inspection. Evidence of highest order, speaking truth, furnishing perfect and

indubitable certainty of the existence of a certain fact MUST BE PRESENTED IN COURT

o NOTE, case of R. v. Hunt (US case) where court allowed the seditious banners to be proven by parol evidence. Court however qualified that it may be noted that the court could have furnished the infallible witness of the thing itself instead of the fallible testimony of the constable. Will not go to admissibility, instead, to weight given since an alternative evidence could have been introduced.

o PHIL. JURIS.: SAME. If you can must bring object to court. If cannot be, bring court to object, or establish through circumstantial evidence.

MAY NOT BE EXCLUDEDo UNLESS

indecent or improper object EXCEPT WHEN same is necessary for

ascertainment of the truth

Repulsive objects, offensive to sensibilities, not absolutely necessary for the administration of justice

Production of the evidence would be inconvenient, impracticable or unjust for other reasons (Billard v. State)

Are introduced to assist the court in understanding a situation, an act, or to comprehend objective symptoms arising from an injury

o NOT to arouse prejudicial feelings

Evidence must be… Relevant Authentic [you have to authenticate]

o MUST ALSO be competent [not excluded by the rules]o Establish chain of custody in handling the object evidence:

every person who handled the object or possessed the object since it was first recognized as being relevant to the case must explain what he did with it;

Witness may be asked the condition of the object, how the object was handled, where it was stored, who else had access to the object, if the object has been turned over who had responsibility to turn it over, etc.;

Why does it need to be competent?YES. Must be:

Not hearsay; Not privileged; Not subject to any other additional requirements.

How can you contest the relevance and competency of the bloody shirt when presented in evidence?

Establish it was not the shirt. Would bloodstains match dna sample of victim; Is that your shirt?, etc;

Can the fact of killing be established if object used in commission of offense can no longer be presented in court?

YES. You present secondary evidence.

Corroborative CumulativeDifferent kind and character;Intent to establish a fact.

Same kind and character.

How does judge know if testimonies are overlapped (5 or more are the same)?



Before you present, have to state purpose. Offer of testimony, Rule 132, Sec. 34 (Judge knows content of testimony). Judge can order, according to Rule 133, Sec. 6.

Is autopsy required for every case?Only deaths subject of violence or crimes are subject to autopsy,

otherwise family must want to have an autopsy conducted.

What is physical evidence? Manifestation of truth; Not testimonial, documentary; Not defined by the law; Tangible, subject to senses of the court; Will still have to be identified by a witness and authenticated.

What is a self-serving testimony?Made by a party out of court and in his favor, does not include testimony

made in in court (People v. Singko).

How do you present photographs in court?Corroborate testimony by person who took it or someone else who can

attest authenticity of photograph – person who took it, someone present in picture, witnessed picture taken. Then prove it was accurate, the equipment used was capable of capturing, how it was developed. [OMCC: Operator, Machine, Chain of Custody, Changes]

Photographs of persons, things, and places, when duly verified and shown by extrinsic evidence to be faithful representations of the subjects as of the time in question, are, in the discretion of the trial court, admissible in evidence as aids to it in arriving at an understanding of the evidence, the situation or condition of objects or premises, the circumstances of an accident, or the condition or identity of a person when any such matter is relevant to the issues being litigated.

How do you lay foundation for presentation of…Video Audio XrayIt is generally harder to authenticate a video, but in the same manner of photographs, you have to prove/state:

1. content of video and fact you want to prove;

2. testimony, identify & authenticate video;

3. accuracy of video;

Same procedure as video.

Same procedure as video.

How do you identify film?They have identification at bottom, with the name of patient and date

4. qualifications of witness, whether he can operate the equipment;

5. ability of equipment to capture video;

6. conditions against which video was taken;

7. description of equiptment;

8. where it was stored.

taken stated.Careful with lab results, technician has no authority to interpret results, only to identify.

What is demonstrative evidence? It is tangible evidence which tends to illustrate a certain fact;

o Not object used in commission of offense, not fruit of offense; Evidence that depicts how fact you have to prove may have come about Made for visualization purposes:

o EXAMPLE: diagram, sketch, map, chart, graph.

Object evidence Demonstrative evidenceTangible evidence played ROLE in the matter giving rise to litigation

Tangible evidence illustrating matter of importance in litigation

FOUNDATION: Prove object is the object used in the event.

FOUNDATION: Show demonstrative object fairly represents or illustrates what it is alleged to illustrate

Are these admissible?Polygraphs Fingerprints

Courts no longer rely on lie detector tests

YES, they are CONCLUSIVE. Cannot have identical fingerprints with someone else.

May accused be compelled to submit to physical examination?YES. If for the purposed of identification and comparison. Right against

self-incrimination extents only to testimonial compulsion and not when the body of the accused is proposed to be examined in a case (Stonehill v. Diokno). Failure to obey court’s order will subject expose to contempt of court (People v. Gamboa).



However, according to Wharton, this right against self-incrimination extends to inculpatory documents and to the witness’ agent, if accused entrusted him with the papers.

May he take dictation?NO. Jurisprudence states that would require the application of attention

and intelligence, and would not merely be a mechanical act.

May an accused who denied while testifying that a certain signature of writing was his be compelled to write in open court to provide sample of comparison?

YES. But this is qualified, IF witness is:o ACCUSED: volunteered to testify on matter, could have

refused, already waived right (Beltran v. Samson & Jose);o WITNESS: witness compelled by court process to testify, did

not waive right (Bermudez v. Castillo);

B. DOCUMENTARY EVIDENCESEC. 2. Documentary evidence. – Documents as evidence consists of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents. (n)

1. BEST EVIDENCE RULESEC. 3. Original document must be produced; exceptions. – When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases:

(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;

(b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice;

(c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and

(d) When the original is a public record in the custody of a public officer or is recorded in a public office. (2a)

SEC. 4. Original of document. –

(a) The original of a document is one the contents of which are the subject of

inquiry.

(b) When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals.

(c) When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. (3a)

What is a document?A deed, instrument or other duly authorized paper by which something

is proved, evidenced or set forth (Bermejo v. Bermejo, 31 SCRA 764).

What is documentary evidence?A deed, instrument or other duly authorized paper by which something

is proved, evidenced or set forth offered as proof of their contents.

When is a document an original document?According to Rule 130, Sec. 4, a document is an original when

Contents are the subject of inquiry document is in two or more copies executed at or

about the same time, with identical contents, all such copies are equally regarded as originals

entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals

o Receipts in convenience stores, store records

o Did not say industry practice, but some industries like importers, follow same practice

by agreement of the parties, documents signed in counterparts [one party signs in U.S., FedEx to Phil., other party signed here]

What is a duplicate original?Is a copy of the original executed at or about the same time as the

original that is signed by the parties. In court, is the document typewritten with carbon paper copy produced on onion paper (Salvador Note). Normally, duplicate original if signed at or about the same time. PRACTICE NOTE: If not originally signed but stamped “originally stamped” just a copy, should have it certified as true copy. To check, see the last page and see if it was originally signed by the judge. If not, have it certified by the court.



In certifying, the position of the certifying officer, his name and signature must be legible. Otherwise appellant court may dismiss if the document is otherwise.

See Mahilum et al. v. C.A., L-17970, 30 June 1966: “exhibit is itself a signed carbon copy or duplicate executed at the same time as the original . This is what is known as duplicate original, and it may be introduced in evidence without accounting for the non-production of the other copies.”

When may you produce a copy instead of an original?According to Rule 130, Sec. 3, you may produce a copy instead of the

original when:

Original is lost or destroyed;o REQUISITES

Cannot be found with reasonable diligence Prove document destroyed or the acts of destruction

Present witness: “I present Ms. Cimatu to establish that the document has been lost or destroyed through no fault of the party”

If you do not lay the basis, other party may object on the basis of the best evidence rule

If any other original copy of the document exists, present that

Diligent search for the document must have been made. Tan v. CA: reasonable search shall be made for it in the place where it was last known to have been and if such search does not yield fruit, then inquiry should be made of persons most likely to have its custody or know its whereabouts;

NOT NECESSARY to prove loss beyond all possibility of mistake. SUFFICIENT if prove reasonable probability of loss.

IF document executed in duplicate, both copies must be proven to have been lost

Fair preponderance of loss SUFFICIENT. Original is in the hands of the other party and they failed to produce it with

reasonable notice;o REQUISITES

In possession of other party; Execution exists; Notice given to adverse party; Reasonable time to produce;

o Consequence if failed to produce is he is estopped from later producing the document. HOWEVER, practice note: in practice judge will allow and only require counsel to explain why he initially failed to produce it.

Numerous or voluminous accounts; Public record;

o records in a public office or kept by a public officer;o Prohibited because of R132, Sec. 26 – irremovability of public

record UNLESS subpoenaed by the courto File motion to produce, R27

What do you mean by a copy?It is a faithful reproduction of the original, what was lost.

What presumption arises if you fail to produce the original?The presumption arises that you are suppressing evidence, unless you

fall under one of the exceptions in Rule 130, Sec. 3 (Vallarta v. C.A.).

What about messages in text? Is it object or documentary?Message. Any writing, for as long as the subject of the inquiry is the

message written, it is documentary evidence (Salvador note).

When does the best evidence rule apply?When the contents of the document/s is in issue.

What are the exceptions to the best evidence rule?1. When the original document has been lost, destroyed or cannot be

produced;2. When the original is in the custody or under the control of the party

against whom the evidence is offered, and the latter fails to produce it after reasonable notice;

3. When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and

4. When the original is a public record in the custody of a public officer or is recorded in a public office

2. SECONDARY EVIDENCESEC. 5. When original document is unavailable. – When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated.



(4a)

What is secondary evidence?That which shows that better or primary evidence exists as to the proof

of the fact in question.

What are the requisites to present secondary evidence? Execution or existence of the original; Loss or destruction of the original or its nonproduction in court; Unavailability of the original is not due to bad faith on the part of the

offerer;

What do you mean by execution? How do you prove?It means accomplishment of the thing, that the contract was executed and signed by the parties. May be proved by testimony of person who executed, witness to execution, notary public who notarized it, person who saw the document and recognized parties’ signature, person to whom the parties confessed the execution of the document or Sec. 20, R132.

How is secondary evidence availed of?In the order indicated by the Rules:

copy of the document; certified copy made before loss any other writing, authenticated by person who had

chance to compare the original and the copy. recital of it’s contents in an authenticated document;

authentic = genuine documents; need not be public document;

recollection of witnesses; Witness MUST BE any person who signed the

document, read it, hear it read knowing, or it being proved from other sources that the document so read was the one in question;

Enough if witness read the document and can substantially state it’s contents and import with reasonable accuracy.

Is the above a strict rule?No. Where the law specifically provides for the class and quantum of

secondary evidence to establish the contents of the document or bars secondary evidence of a lost document, such requirement is controlling (Regalado, 726).

How are lost or destroyed documents proved in court?Governed by provisions of Act No. 3110.

SEC. 6. When original document is in adverse party’s custody or control. – If the document is in the custody of under the control of the adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss. (5a)

What are the requisites?(1) document in adverse party’s custody or control;(2) reasonable notice given to them to produce it;

notice must enable adverse party to identify document referred to

still required even if document covered by right against self-incrimination

court determines what period of time is reasonable in giving notice

(3) proof of existence or execution of document;(4) failure or refusal of adverse party to produce it;

What do you mean by in the possession of the adverse party?Sufficient to prove, not actual possession, but circumstances indicate

that document is in his possession or control. In case of control, that document is in the possession of a third party and there exists privity between the third party and the adverse party.

What is the effect of adverse party’s failure to produce?Secondary evidence may be introduced.

SEC. 7. Evidence admissible when original document is a public record. – When the original of a document is in the custody of a public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. (2a)

PUBLIC DOCUMENT/RECORDo Example of secondary evidence allowed: certified true copy

REASON o It is quite risky, it might get lost

PRESUMPTION OF REGUALIRTY ON THE CERTIFICATIONo However if the party against whom the evidence is offered

questions the VERACITY of the SECONDARY EVIDENCE then the ORIGINAL MUST be PRESENTED

o If secondary evidence is lost File petition



o If the original title which is in the custody of the public official is LOST

Then the proper process is RECONSTITUTION

SEC. 8. Party who calls for document not bound to offer it. – A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence. (6a)

3. PAROL EVIDENCE RULESEC. 9. Evidence of written agreements. – When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement.

However, a party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleading:

(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;

(b) The failure of the written agreement to express the true intent and agreement of the parties thereto;

(c) The validity of the written agreement; or

(d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.

The term “agreement” includes wills. (7a)

What is the parol evidence rule (Francisco 85)?1. When an agreement has been reduced to writing, the parties cannot be

permitted to adduce evidence to prove alleged practices which to all purposes would alter the terms of the written agreement. Whatever is not found in the writing must be understood to have been waived and abandoned.

2. The parol evidence rule forbids any addition to or contradiction of the terms of a written instrument by testimony purporting to show that, at or before the signing of the document, other or different terms have been orally agreed upon by the parties.

3. It forbids any addition to or contradiction of the terms of a written instrument by testimony purporting to show that, at or before signing, of the document, other or different terms were orally agreed upon by the parties.

Parol Evidence Rule Best Evidence RuleNo issue as to contents of writing CONTENTS of writing AT ISSUEwhat party seeks is to amend, alter, change, vary, modify, qualify or contradict contents

What party seeks is to introduce secondary evidence to prove contents of writing

Presupposes the original document is available in court

Original writing is not available and/or there is a dispute as to whether the writing is original

Prohibits the varying of the terms of the written agreement

Prohibits the introduction of substitutionary evidence in lieu of the original document regardless whether or not it varies the contents of the original

Except as for wills, only applies to documents contractual in nature

[ONLY CONTRACTS, WILLS]

Applies to all kinds of writings

[ANY WRITING]

Invoked only when the controversy is between the parties to the written agreement, their privies or any party directly affected thereby

[ONLY PARTIES; PRIVITY]

Invoked by any party to an action regardless of whether or not such party participated in writing the document

[ANY PERSON; NO PRIVITY]

What are the exceptions to the Parol Evidence rule?(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;(b) The failure of the written agreement to express the true intent and agreement of the parties thereto;(c) The validity of the written agreement; or(d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.

May the parol evidence rule be waived?YES. It is waived by the failure to invoke the benefits of the rule, that is

failure to object upon introduction of the evidence in court.

(A) AN INTRINSIC AMBIGUITY, MISTAKE OR IMPERFECTION IN THE WRITTEN AGREEMENT;Kinds of ambiguities in documentsPatent (extrinsic) Latent (extrinsic)The instrument is, on its face, unintelligible.

The words of the instrument are clear, but their application to the



circumstances is doubtful.May NOT be explained by parol evidence.

May be explained by parol evidence.

REASON for difference:“if the language be too doubtful for any settled construction, by the admission of parol evidence you create and do not merely construe the contract” (Peisch v. Dickson, Fed. Cas. No. 100, 911, 1 Mason 9).Parol evidence is not permitted to supply a description, but only to apply it (Francisco 93).

Rules governing the admissibility of parol evidence to explain ambiguity (Palmer v. Albee, 50 Ia. 429, 432)Latent Instrument itself is clear and certain on its face

Ambiguity arises from some extrinsic or collateral matterAmbiguity may be helped by parol evidence

Intermediate Ambiguity consists of the use of equivocal words designing the person or subject matterParol evidence of collateral or extrinsic matter may be introduced for the purpose of aiding the court in arriving at the meaning of the language used

Patent Perusal of the instrument shows plainly that something more must be added before the reader can determine what of several things is meantParol evidence cannot be admitted to supply the deficiency

What must be present in order for an instrument to be reformed on the ground of mistake?

the mistake should be of fact; the mistake should be mutual or common to both parties to the

instrument; the mistake should be alleged and proved through clear and convincing

evidence.

When is mistake considered mutual? When the parties entered into a valid oral contract but the attempt to

reduce the contract into writing failed because of the mistake. Both parties must be mistaken.

What is the remedy of the parties?To allege such mistake in the pleadings filed in court, seeking

reformation of the contract.

What is the degree of proof necessary?More than mere preponderance of evidence (Francisco 95).

What is imperfection in the writing? The writing embodies an agreement, though it is manifestly incomplete

and is not intended by the parties to exhibit the whole agreement, but only to define some of its terms.

It includes an inaccurate statement in the agreement, or incompleteness in the writing, or the presence of inconsistent provisions therein (Regalado 732).

It is usually the fault of the lawyer drafting the contract; Example, the TCT No. is different from that of the land intended to be

sold; dollar sign instead of peso sign put in contract;

(B) THE FAILURE OF THE WRITTEN AGREEMENT TO EXPRESS THE TRUE INTENT AND AGREEMENT OF THE PARTIES THERETO;

What is the purpose of the second exception?To enable the court to ascertain the true intentions of the parties

(Tolentino, et al., v. Gonzales Sy Chiam).

When does the written agreement not express the true intent of the parties?If the written contract is so ambiguous or obscure in terms that all

contractual intention of the parties cannot be understood from a mere inspection of the instrument, extrinsic evidence of the subject matter of the contract, of the relations of the parties to each other, and of the facts and circumstances surrounding them when they entered into the contract may be received to enable the court to make a proper interpretation of the instrument. Prior conversation and negotiation may be referred to .

Art. 1364, CC: When through the ignorance, lack of skill, negligence or bad faith on the part of the person drafting the instrument or of the clerk or typist, the instrument does not express the true intention of the parties, the courts may order that the instrument be reformed (Francisco 96).

What does the court do in this instance?“The court does not reform the instrument. It remains as it was written.

However, the court receives evidence to find out how the parties really bound themselves. The second exception to the parol evidence rule enables the court to ascertain the intent of the parties (Premier Insurance & Surety Corporation v. IAC, 141 SCRA 423).”

What are examples of contracts/instruments falling under this exception? Sales contract does not express the true agreement of the parties

because certain important conditions were not included therein; Allegation that conveyance made by plaintiff was given merely to

evidence a loan and serve as security for the same. Equitable mortgage;



Donate land to father, but execute deed of sale; Contract of lease, intention is usufruct;

(C) THE VALIDITY OF THE WRITTEN AGREEMENT; OR

What is the purpose of the third exception? To show the true consideration of a contract, or the want of illegality

thereof, or the incapacity of the parties, or the fact that the contract was fictitious or absolutely simulated, or that there was fraud in the inducement (Regalado 733).

An illegal or void contract cannot be validated by parol evidence. Parol evidence presented to establish the, NOT validate the agreement There must be inducement, incapacity, fraud, illegality or

misrepresentation

Is parol evidence admissible to show that the contract never existed on the ground of fraud, illegality, or incapacity of one of the parties (Francisco 102)?

YES. The prohibition does not apply where the purpose of the parol evidence is to show that no written contract ever existed, that the minds of the parties never met on the terms of such contract and that there never existed any consideration upon which such agreement can be founded.

o [VOID CONTRACT] Show that particular document never had legal existence. Allege, as a ground, that (1) fraud or duress accompanied the inception of the contract, nevermind that all the solemn formalities are observed; or (2) the incapacity of the party thereto to make a contract due to a physical, mental incapacity, or due to a lack of authority or other legal impediment. BOTH refer to lack of CONSENT. The rule which prefers written to unwritten evidence does

not so apply as to exclude the latter when its object is to prove that the writing was fraudulently obtained, and thereby to avoid the contract evidenced by it, or to secure indemnity to the party injured.

o [ILLEGAL CONTRACT] No instrument is so sacred when tainted with illegality as to place it beyond the scrutiny of extrinsic testimony.

Is parol evidence admissible? (3 Jones on Evidence)GROUND MAY BE

ADMITTEDMAY NOT BE ADMITTED

VOID fraud or duress Writing was fraudulently obtained.

-------------------------------

incapacity of the party thereto to make a contract

To show contracting party was intoxicated, insane or otherwise mentally incompetent, or that some legal impediment such as infancy or coverture prevented the making of a binding contract

If defense, want of capacity must be established by clear and convincing proof

ILLEGAL contrary to law, morals, public policy

Though written contract is fair and lawful on its face, parol evidence may be admitted to prove contract is contrary to law, morals, public policy

Where the writing is plain and unambiguous and by its terms illegal, parol evidence may not be admitted to purge the contract of its illegality

What are examples? Contract entered into by a minor; Contract to pay gambling debt;

(D) THE EXISTENCE OF OTHER TERMS AGREED TO BY THE PARTIES OR THEIR SUCCESSORS IN INTEREST AFTER THE EXECUTION OF THE WRITTEN AGREEMENT.

Is parol evidence applicable to subsequent agreement?YES. Admission of parol evidence does not deny the original

agreement, only shows that the parties have exercised their right to change or abrogate the agreement, or to enter into a new and independent contract (32 C.J.S. 1008-1009).

What is the reason for the rule?The parties cannot be presumed to have intended the written instrument

to cover all their possible subsequent agreements which for that reason may be considered as separate transactions.

May collateral stipulations in the contract be established by parol evidence?

YES. Rule has reference to a contract whose existence us admitted. The rule does not prevent the introduction of extrinsic evidence to show that a



supposed contract never became effective by reason of the failure of some collateral condition or stipulation prerequisite to liability.

A separate or collateral stipulation is admissible in evidence, though it relates to the same subject matter as the written contract, provided it does not contradict or vary the terms of such contract.

The rule is concerned with evidence which, if admitted, would contradict the obligation expressed in a contract the existence of which is admitted or proved. It has no application to conditions or stipulations which are antecedent to the existence of the contract and in the faith of which the supposed contract is executed.

May a condition precedent be established by parol evidence?YES, when the operation of the contract is made to depend upon the

occurrence of an event. Does not vary the terms of the written agreement or contract by extrinsic agreement since until the happening or occurrence of the event there is no contract in existence, thus there is nothing to which the excluding rule can apply to (LSDC v. Garcia Plantation Company, 7 SCRA 750).

The rule excluding parol evidence to vary or contradict a writing, does not extend so far as to preclude the admission of extrinsic evidence, to show prior or contemporaneous collateral parol agreement between the parties, but such evidence may be received, regardless whether or not the written agreement contains reference to such collateral agreement (Robles v. Lizarrage Hnos, 50 Phil. 387).

May the due execution of a writing be proved by parol evidence?YES. What the rule prohibits is the varying of the terms of the written

agreement by parol evidence.

May parol evidence be introduced to prove inducements and representations which led to the execution of an agreement?

YES. Where a parol contemporaneous agreement was the inducing and moving cause of the written contract, or where the parol agreement forms part of the consideration for a written contract, and it appears that the written contract was executed on the faith of the parol contract or representations, such evidence is admissible (3 Jones on Evidence, Sec. 1492).

Proof is admissible to establish any collateral parol agreement that is not inconsistent with the terms of a written contract though it relates to the same subject matter (22 C.J. 1245; Francisco 100).

May parol evidence be introduced to prove oral stipulation prior to or contemporaneous with, such agreement, which may in any way affect the writing?

Generally no. When the parties have reduced their agreements into writing they are presumed to have intended the writing to be the only evidence of their agreement. HOWEVER, a party to a contract may prove “the existence of

any separate oral agreement as to any matter on which the document is silent, and which is not inconsistent with its terms, if, from the circumstances of the case, the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them.” Such oral agreement must relate to a subject distinct from that to which the oral contract applies.

What is the test for determining whether or no a contemporaneous oral agreement is separate and distinct from the written agreement?

If oral negotiation, the following steps must first be taken:1. Determine the whole subject intended by the parties to be

covered by the writing or instrument, by looking at the subject matter and the circumstances attending it’s execution;

2. Determine the subject of the oral agreement offered to be proved, by provisionally admitting the oral evidence;

3. Make a comparison to see whether or not the subject of the writing is separate and distinct from that of the oral negotiation. If the subject of the oral negotiation is not so closely connected with the subject of the writing as to form part and parcel of it, then parol evidence is admissible (Francisco 101).

What if oral negotiation and written transaction cover one general subject but under separable transactions?

Careful view: whether or not the particular element of the alleged negotiation is covered, mentioned, or dealt with at all in the writing. If yes, then writing was intended to represent all of the transactions on that element; If no, then writing was not probably intended to embody that element of the negotiation.

Looser view: whether the alleged extrinsic negotiation contradicts the terms of the writing.

What are other examples? Lease agreement but with option to purchase made by oral discussion; Supply agreement;

QUERENDUM: Mr witness, why do you know the plaintiff in this case? He was the seller of my property are you referring to. Property in Marikina. When you say it was sold to you, could you please tell us what doc was executed? Deed of absolute sale. Can you please tell us the true consideration of the sale? Is that objectionable? [sale in contrace P1.5 million, true consideration P2.5million] how will you know lay the basis to allow the witnesses to present parole evidence?

Is this the only agreement entered into between the parties? How are you related to the parties? How are you familiar with the

agreement?



In your capacity as the one who handles the plaintiffs documents, what duties are you assigned?

Are you familiar/privy with all cases or just this case? TNote: If that’s your witness, bawal leadings questions. Person

presented in court, lawyer may have briefed him. ONE WAY: present the receipt evidencing payment of P2.5M, not

P1.5M.

4. INTERPRETATION OF DOCUMENTSSEC. 10. Interpretation of a writing according to its legal meaning. – The language of a writing is to be interpreted according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise. (8)

SEC. 11. Instrument construed so as to give effect to all provisions. – In the construction of an instrument where there are several provisions or particulars, such a constructions is, if possible, to be adopted as will give effect to all. (9)

SEC. 12. Interpretation according to intention; general and particular provisions. – In the construction if an instrument, the intention of the parties is to be pursued; and when a general and a particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it. (10)

SEC. 13. Interpretation according to circumstances. – For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be placed in the position of those whose language he is to interpret. (11)

SEC. 14. Peculiar signification of terms. – The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is admissible to show that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly. (12)

SEC. 15. Written words control printed. – When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter. (13)

SEC. 16. Experts and interpreters to be used in explaining certain writings. – When the characters in which an instrument is written are difficult to be deciphered or the language is not understood by the court the evidence of persons skilled in deciphering the characters or who understand the language is admissible to declare the characters or the meaning of the language. (14)

SEC. 17. Of two constructions, which preferred. – When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either partly in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the provision was made. (15)

SEC. 18. Construction in favor of natural right. – When an instrument is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted. (16)

SEC. 19. Interpretation according to usage. – An instrument may be construed according to usage, in order to determine its true character. (17)

ELECTRONIC EVIDENCE

Application of the Rules on Electronic EvidenceProvisions of the Rules on Electronic Evidence apply to civil action and

proceedings, as well as quasi-judicial and administrative cases. Sec. 2 Rule 1 of the Rules on Electronic Evidence provides, these Rules shall apply to all civil actions and proceedings, as well as quasi-judicial and administrative cases.

Competence of Electronic Evidence Electronic evidence is competent evidence and is admissible if it

complies with the rules on admissibility prescribed by the Rules and is authenticated in the manner prescribed (Sec. 2, Rule 3, Rules on Electronic Evidence)

Documents under the Rules on Electronic Evidence1. Section 1(h) of the Rules on Electronic Evidence defines an electronic document refers to information or the representation of information, data, figures, symbols or other modes of written expressions, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processes, retrieved or produced electronically. It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic documents. For purposes of these Rules, the term electronic document may be used interchangeably with electronic data message.

2. An electronic document does not only refer to the information itself. It also refers to the representation of that information. For a document to be deemed electronic, it is important that it be retrieved, recorded, transmitted,



stored, processed, retrieved or produced electronically. It is submitted that the rule does not absolutely require that the electronic documents be initially generated or produced electronically. A contract may be converted to an electronic document if transmitted or received or later recorded electronically. An electronic document is one that may be used for any of the following purposes: a) establish a right, b) extinguish an obligation, c) prove or affirm a fact.

3. Electronic documents are the functional equivalents of paper-based documents. Since an electronic document is the functional equivalent of a paper-based document, whenever a rule of evidence makes reference to the terms of a writing, a document, a record, an instrument, a memorandum or any other form of writing, such terms are deemed to include electronic documents (Sec. 1 Rule 3 Rules on Electronic Evidence). It is therefore but logical to consider the rules of evidence in the Rules, including statutes containing rules of evidence, to be suppletory application to the Rules on Electronic evidence in all matters not specifically covered by the latter.

4. Under Sec. 1 Rule 5 of the Rules on Electronic Evidence, the person offering the document has the burden to prove its authenticity. Thus, the person seeking to introduce the electronic document in any legal proceeding has the burden of proving its authenticity in the manner provided for by the rule.

5. Rule 5 Section 2. Manner of authentication--Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means: a) by evidence that it had been digitally signed by the person purported to have been signed by the person purported to have signed the same, b) by evidence that the appropriate security procedures or devices as may be authorized by the Supreme Court or by law for the authentication of electronic documents were applied to the document, or c) by other evidence showing its integrity and reliability to the satisfaction of the judge. Notice that the aforementioned rigorous requirements for the authentication of an electronic do not apply only when the document is a private document. Sec. 2 Rule 5 will obviously apply only when the document is a private document and when the same is offered as an authentic document. If the electronic document is offered simply for what it is or for what it is claimed to be without regard to whether or not it is authentic, Sec. 2 Rule 5 finds no relevance. The electronic document has only to be identified pursuant to the suppletory application of Sec. 20 Rule 132.

6. When a document is electronically notarized, the manner of authentication under Sec. 2 Rule 5 will not likewise apply. When so notarized, it is so transformed into a public document and is to be proved not in accordance with the Rules on Electronic Evidence but in accordance with the Rules of Court. Sec. 30 Rule 132 provides for the manner of proving notarial documents. In distinct terms, the provision categorically states that every instrument duly

acknowledged or proved and certified as provided by law, may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved.

Originals Under the Rules on Electronic EvidenceUnder Section 1 Rule 4 Rules on Electronic Evidence, the original of the

electronic document is its printout or output readable by sight or other means, provided is shown to reflect the data accurately. Rule 4 Section 1. Original of an electronic document-- An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the date accurately.

The copies of the printout or output readable by sight referred to in the immediately preceding paragraph are also deemed originals where the copies were executed at or about the same time with identical contents or is a counterpart produced by the same impression as the original or from the same matrix, or by other means and which accurately reproduces the original. Sec. 2 Rule 4.Copies as equivalent of the true originals-- When a document is in 2 or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original.

For the court not to consider the copies mentioned in the immediately preceding paragraph as having the same effect as originals, a genuine question as to the authenticity of the original must be raised, or that the circumstances would make it unjust or inequitable to admit the copy in lieu of the original. Sec. 2 Rule 4. Copies as equivalent of the originals. xxx Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if: a) a genuine question is raised as to the authenticity of the original, b) in circumstances it would be unjust or inequitable to admit a copy in lieu of the original.

Original Printout of Fascimile Transmissions [FAX]A printout of a facsimile transmission is not an electronic date message

or electronic document. To determine whether photocopies of facsimile transmissions are admissible in nature, we apply the ordinary Rules on Evidence, since the Electronic Commerce Act of 2000 and the Rules on Electronic Evidence cannot be applied to facsimile transactions.

A facsimile or fax transmission is a process involving the transmission and reproduction of printed and graphic matter by scanning an original copy, one elemental area at a time, and representing the shade or tone of each area by a specified amount of electric current. A facsimile is not a genuine and authentic



pleading. It is, at best, an exact copy preserving all the marks of an original. Without the original, there is no way of determining on its face whether the facsimile pleading is genuine and authentic and was originally signed by the party and his counsel. It may, in fact, be a sham pleading.

Ephemeral Electronic CommunicationsThese forms of communications refer to telephone conversations, text

messages, chatroom sessions, streaming audio, and other forms of electronic communication, the evidence of which is not recorded or retained.

Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or by one who has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted. If the ephemeral electronic communication or a telephone conversation is recorded, it now is no longer ephemeral hence, it shall be proven following the procedure as provided for under Sec. 1 of Rule 11 of the Electronic Rules of Evidence. It means that the recording a) shall be shown, presented or displayed to the court, and b) shall be identified, explained or authenticated by either: 1) the person who made the recording, or 11) by some other person competent to testify on the accuracy thereof.

Under the Rules on Electronic Evidence, the admissibility of audio, photographic and video evidence of events, acts or transactions rests on a) their being shown, presented or displayed in court, and b) their being identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof (Sec. 1 Rule 11, Rules on Electronic Evidence). Under these rules, the identification and authentication need not be made by the recorder himself but by some other person who can testify as the accuracy of the recording.

Under the electronic evidence rules, photographic evidence of events, acts or transaction shall be admissible in evidence provided: a) it shall be presented, displayed and shown to the court; and b) it shall be identified, explained, or authenticated by either 1) the person who made the recording, or by 2) some other person competent to testify on the accuracy thereof. The admissibility of photographs is within the discretion of the court, and its ruling in this respect will not be interfered with except upon a clear showing of an abuse of discretion. In determining whether photographs should be admitted, a trial judge must determine whether they are relevant, and whether a proper foundation has been laid.

Authentication under the Rules on Electronic Evidence1. The person seeking to introduce an electronic document in any legal proceeding has the burden of proving its authenticity (Sec. 1 Rule 5 Rules on Electronic Evidence).

2. As previously mentioned, the authentication of electronic document requires any of the following means [DS + SP + IR]:

a) by evidence that it had been digitally signed by the person purported to have signed the same, b) by evidence that other appropriate security procedures or devices as may be authorized by the Court or by law for authentication of electronic documents were applied to the document, or c) by other evidence showing its integrity and reliability to the satisfaction of the judge (Sec. 2 Rule 5 Rules on Electronic Evidence)

3. Under the Rules on Electronic Evidence, the authentication process need not involve the person who took the audio or video recording or photograph as long as there is one who can testify as to its accuracy. There is also a requirement that the recording be shown, presented or displayed to the court. (Sec. 1 Rule 11 Rules on Electronic Evidence)

Privileged Communications under the Rules on Electronic EvidencePrivileged communications apply even to electronic evidence. Under

Section 3 Rule 3 on the Rules on Electronic Evidence, the confidential character of a privileged communication is not lost solely on the ground that it is in the form of an electronic document.

C. TESTIMONIAL EVIDENCE

Nature of Testimonial or Oral EvidenceTestimonial or oral evidence elicited from the mouth of a witness as

distinguished from real and documentary evidence. It is sometimes called viva voce evidence (living voice evidence) or by word of mouth. Here, a human being is called to the stand, is asked questions, and answers the questions asked of him. The person who gives a testimony is a witness.

Competence when applied to a witness means that the witness is qualified to take the stand and testify. It means that he is fit or that he is eligible to testify on a particular matter in a judicial proceeding. If a witness cannot perceive or even if he can perceive he cannot remember what he has perceived, he is incompetent to testify. If he has no personal knowledge of an event the truth of which he wants to prove, he is also incompetent to testify. Competence of a witness refers to his personal qualifications to testify. It also includes the absence of any factor that would disqualify him from being a witness.

Presumption in Favor of Competence of a WitnessAs a general rule, a person who takes the stand as a witness, is

presumed to be qualified to testify. A party who desires to question the



competence of a witness must do so by making an objection as soon as the facts tending to show incompetency are apparent.

ABSOLUTELY DISQUALIFIED WITNESSES: RELATIVE DISQUALIFICATIONS:

i. Can’t perceiveii. Not perceivingiii. Can’t make known their perception

to othersiv. Mental condition, at the time of their production for examination, render them incapable of intelligently making known their perception to othersv. Mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and relating them truthfullyvi. Marital disqualificationvii. Parental and filial privilege

i. Dead man’s statuteii. Marital communication privilegeiii. Attorney-client privilegeiv. Attorney's secretary, stenographer, or clerk concerning any fact the knowledge of which has been acquired in such capacityv. Physician-Patient Privilege vi. Priest-Penitent Privilegevii. State Secrets

1. QUALIFICATION OF WITNESSESSEC. 20. Witnesses; their qualifications. – Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses.

Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be a ground for disqualification. (18a)

What does Sec. 20, Rule 130 provide? The above provision supplies the basic qualifications of a witness,

namely: a) he can perceive; and in perceivingb) he can make known his perception to others.

To these, we may add the following:a) he must take either an oath or affirmation (Sec. 1 Rule 132

Rules of Court) b) he must not possess the disqualification imposed by law or

the rules

Who determines the competency of the witness?The trial judge who sees the witness, notices his manner, intelligence,

and may resort to any examination to determine his capacity, intelligence, and

understanding of certain oaths. His judgment may not be disturbed on appeal unless the error is clear.

When must objections to competency be made?If objecting party

KNEW BEFORE: before testimony DID NOT KNOW BEFORE: at time incapacity becomes

apparent during trial

Oath or AffirmationWhen the taking of an oath or of an affirmation is either rarely

mentioned and is merely glossed over by commentators in discussing the qualifications of a witness to take the witness stand, the rule clearly requires that the examination of a witness in a trial or hearing shall be done under oath or affirmation (Sec. 1 Rule 132). The willingness to take an oath or affirmation is an essential qualification of a witness. No court would and should allow the testimony of someone who desires to testify but who refuses to swear to make an affirmation.

A person is not qualified to be a witness if he is incapable of understanding the duty to tell the truth. An oath or affirmation is necessary for the witness to recognize the duty to tell the truth.

3. The issue which a judge must resolve before a witness is allowed to take the stand is whether the witness understands the nature of an oath, realizes the moral duty to tell the truth, and understands the prospects of being punished for a falsehood. This understanding is not necessarily inferred from the age of the witness.

4. Any objection to the competency of a witness raises an issue of fact: whether or not the witness is capable of understanding the duty to tell the truth. The issue is addressed to judicial determination and in the absence of a clear abuse of discretion, the trial court's findings will not be reversed.

Ability to Perceive A witness must be able to perceive an event. Corollary to this capacity

to perceive is the requirement that the witness must have personal knowledge of the facts surrounding the subject matter of his testimony. Section 36 Rule 130 explicitly requires that a witness can testify only to those facts which he knows of his personal knowledge. When the witness takes an oath or an affirmation to tell the truth, he cannot live up to that oath or affirmation without his ability to show that his testimony is based on his personal knowledge. Without personal knowledge, the witness lacks the competence to justify.BUT CANNOT NARRATE. Should be Q&A FORM.



Ability to Make Known the Perception to Others1. The ability to make known the perception of the witness to the court involves 2 factors:

a) the ability to remember what has been perceived, and b) the ability to communicate the remembered perception.

2. Deaf-mutes are not necessarily incompetent as witnesses. They are competent where they:

a) can understand and appreciate the sanctity of an oath, b) can comprehend facts they are going to testify, and c) can communicate their ideas through a qualified interpreter.

Competency and Credibility1. Competence is a matter of law or in this jurisdiction, also a matter of rule. Credibility of the witness has nothing to do with the law or the rules. It refers to the weight and the trustworthiness or reliability of the testimony. In deciding the competence of a witness, the court will not inquire into the trustworthiness of the witness.

2. A prevaricating witness or one who has given contradicting testimony is still a competent witness. Although he may be competent as a witness, his testimony may not be given much weight by the court or no weight at all if the court deems him not worthy of belief. The competence of the witness must be sharply distinguished from his credibility.

3. Bias is not even a basis for declaring a witness incompetent to testify.

4. Under the Rules, persons covered by the Survivorship Disqualification Rule cannot testify as to any matter of fact occurring before the death or insanity of the adverse party. This rule is one which is directed to the issue of competency of a witness, not to his credibility.

5. Questions concerning the credibility of a witness are best addressed to the sound discretion of the trial court as it is in the best position to observe his demeanor and bodily movements. The Court generally defers to the trial court's assessment because it has the singular opportunity to observe the demeanor of witnesses and their manner of testifying.

6. The findings of trial courts on the credibility of witnesses deserve a high degree of respect and will not be disturbed on appeal absent a clear showing that the trial court had overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which could reverse a judgment of conviction.

Other Factors that do not affect the Competency of a Witness1. Under Section 20 Rule 130, except as provided by the law and the rules, the following factors do not, as a general rule, constitute a disqualification of a witness:

a) religious belief, b) political belief, c) interest in the outcome of the case, d) conviction of a crime, unless otherwise provided by law.

2. The relationship of a witness with a party does not ipso facto render him a biased witness in criminal cases where the quantum of evidence is proof beyond reasonable doubt. There is no reason why the same principle should not apply to a civil case where the quantum of evidence is only preponderance of evidence.

May judges and lawyers, for his client, be witnesses?NO. Generally they cannot. EXCEPT:

o Lawyers Formal matters Essential to the ends of justice

o Judges Formal or preliminary matters about which there is no

dispute

What is the effect of failure to object?Objection deemed waived by court and witness’ testimony cannot be

excluded on ground of incompetency. [WAIVER].

How do you witness? Communication [verbal]; sign language; demonstration [how did you slap the other party; but must be in addition

to oral testimony]; [not really considered] written [written]; section 10, R132;

When should the witness convey? Deposition; When placed on witness stand;

SEC. 21. Disqualification by reason of mental incapacity or immaturity. – The following persons cannot be witnesses:

(a) Those whose mental condition, at the time of their production for



examination, is such that they are incapable of intelligently making known their perception to others;

(b) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. (19a)

Disqualification by Reason of Mental IncapacityRule 130 Section 21. Disqualification by reason of mental incapacity-- The following persons cannot be witnesses:

a) Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others. xxx

1. To be disqualified as a witness by reason of mental incapacity, the following must concur:

a) the person must be incapable of intelligently making known his perception to others, and b) his incapability must exist at the time of his production for examination.

2. Section 21(a) Rule 130 establishes the rule that the mental incapacity of the witness at the time of his perception of the events subject of the testimony does not affect his competency as long as he is competent at the time he is produced for examination to make known his perception to others. His incapacity at the time of perception although without legal effect on his competency to testify, would however, concededly have an adverse effect on his credibility.

The test supplied by the Rules is a simple test: Is the mental condition of the proposed witness at the time he is to testify such that he is incapable of intelligently making known his perception to others? (Section 21[a] Rule 130).

May you present an insane person as witness?YES. Presumption of competency still applies. UNLESS he is committed

in an insane asylum or other institution (Torres v. Lopez).

How is the competency of an insane person determined?The test is whether the individual has sufficient understanding to

appreciate the nature and obligation of an oath and sufficient capacity to observe and correctly describe the facts in which he is called to testify (People v. Tolentino).

What is the presumption as to the mental condition of the witness?Presumption is witness is sane. Unless he is placed in a mental

institution, presumption of law is he is sane.

May a retardate witness?YES. In exceptional circumstances, as long as the witness can

comprehend the nature of the acts/facts and communicate them.1 Jurisprudence, if only slight mental retardation, then can testify.How does the judge determine or identify credibility?

Use services of a psychiatrist.

Disqualification by Reason of ImmaturityRule 130 Section 21. Disqualification by reason of immaturity-- The

following persons cannot be witnesses:a) xxxb) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully.

To be disqualified as a witness by reason of immaturity, the following must concur: a) the mental maturity of the witnesses must render him incapable of perceiving the facts respecting which he is examined, and b) he is incapable of relating his perception truthfully (Section 21[b] Rule 130.

Note that in a disqualification by reason of mental incapacity under Section 21(a) Rule 130, the incompetence of the witness must exist not at the time of his perception of the facts but at the time he is produced for examination, and consists in his inability to intelligently make known what he has perceived. In

1 See the three rape cases where the courts ruled that a mental retardate who was raped is

a competent witness to testify as to her rape;

People v. Palma (1986) “As regards Imelda's credibility as a witness, we have held that a feebleminded complainant is a competent witness as long as she can convey her Ideas by words or signs and give sufficiently intelligent answers to the questions propounded by the court and the counsels.”;

People v. Gerones (1991): “Moreover, while the psychiatry report states that the victim cannot be expected to be a capable witness, at the same time it admitted that Liliosa can comprehend the nature of her acts under a limited extent . The same report concludes that she is verbally productive although she talks in incomplete sentences at times. What is required by the rules merely is that the witness is able to make her perception known to others. Thus, Rule 130, Sec. 20 of the Rules of Court states: "Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. . . .”;

People v. De Jesus, L-39087, April 27, 1984 “That the complainant was feeble-minded and had displayed difficulty in comprehending the questions propounded on her is an undisputed fact. However, there is no showing that she could not convey her Ideas by words or signs. It appears in the records that complainant gave sufficiently intelligent answers to the questions propounded by the court and the counsels. The court is satisfied that the complainant can perceive and transmit in her own way her own perceptions to others. She is a competent witness.”



disqualification by reason of immaturity, the incompetence of the witness perceived the event including his incapability to relate his perceptions truthfully. The rule on disqualification by reason of immaturity must however, be construed in relation to the Rule on the Examination of a Child Witness (AM No. 004-07-SC, December 15, 2000).

CHILD WITNESS EXAMINATION RULE

Child Witness; MeaningA child witness is any person who at the time of giving testimony is

below the age of 18 years (Section 4[a] Rule on Examination of a Child Witness, AM No. 004-07-SC).

In child abuse cases, a child includes one over 18 but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition.

Applies to both plaintiff, witness or accused.

Competency of a Child WitnessEvery child is presumed qualified to be a witness. This is the

presumption established by the Rules on Examination of a Child Witness and to rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence (Section 6[b], Rule on Examination of Child Witness).

When the court finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court, the court shall conduct a competency examination of the child. The court may do so motu proprio or on motion of a party. A party who seeks a competency examination must present proof of necessity of a competency examination. Proof of such necessity must be grounded on reasons other than age of the child because such age in itself is not a sufficient basis for a competency examination (Section 6[a], Rule on Examination of a Child Witness.

The competency examination of a child witness is not open to the public. Only the following are allowed to attend the examination: a) the judge and necessary court personnel, b) the counsel for the parties, c) the guardian ad litem, d) one or more support persons for the child, e) defendant, unless the court determines that competence can be fully evaluated in his absence (Section 6[c], Rule on Examination of a Child Witness).

The competency examination of the child shall be conducted only by the judge. If the counsels of the parties desire to ask questions, they cannot do so directly. Instead, they are allowed to submit questions to the judge which he may ask the child in his discretion (SEction 6[d], Rule on Examination of a Child Witness).

The questions asked at the competency examination shall be appropriate to the age and developmental level of the child. The questions shall not be related to the issues at the trial but shall focus on the ability of the child to remember, to communicate, to distinguish between truth and falsehood and to appreciate the duty to testify truthfully (Section 6[e], Rule on Examination of a Child Witness)6. The assessment is designed to be a continuing one. The court has the duty of continuously assessing the competence of the child throughout his testimony (Section 6[f], Rule on Examination of a Child).Corroboration of the Testimony of a Child Witness

Under the Rule on Examination of the Testimony of a Child Witness, corroboration shall not be required of a testimony of a child. His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion or judgment subject to the required standard of proof required

Why did the law did not put a minimum?Age does not determine maturity. It is the intelligence, not the age which

matters. That the child was able to receive accurate impressions of the facts he is to relate, and able to convey them is sufficient.

How does the court determine the capacity of a child witness?The court considers the child’s capacity:

at the time the fact to be testified occurred such that he could receive correct impressions thereof;

to comprehend the obligation of an oath; to relate those facts truly at the time he is offered as a witness.

In short, determine his capacity for observation, recollection and communication.

Unless a child’s testimony is punctured with serious inconsistencies as to lead one to believe that he was coached, if he can perceive and make known those perceptions, he is considered a competent witness (People v. Cidro; People v. Gacho 1983).

What are the rights of a child under the child witness rule? Live link Guardian ad litem Support persons



Support object May ask leading questions Deposition Etc;

SEC. 22. Disqualification by reason of marriage. – During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants. (20a)

MARITAL DISQUALIFICATIONo Absolute/Total disqualificationo Only applies DURING THE MARRIAGE

MUST be a VALID marriageo The other spouse is a party to the actiono Can’t testify against the other WITHOUT consent of the other

CAN BE WAIVED Who can waive?

o The spouse against whom the testimony will be directed

There must be an objection for this rule to apply

REQUISITESo Valid marriageo Existing at the time when the spouse if called to testifyo The spouse is a party to the case

EXCEPTION TO MARITAL DISQUALIFICATIONo CIVIL case by ONE against the othero CRIMINAL case committed by one against the other OR

latter’s direct descendant and ascendant Mainly children and parents ONLY

o Marital relations are so strained that the conjugal harmony sought to be protected NO LONGER EXISTS

When reason for protection is NOT OBTAINABLE then the Disqualification will NOT APPLY

REASON FOR DISQUALIFICATIONo Avoid and prevent PERJURYo Destroy the unity of the marriage

o Identity of interesto Prevent spousal disunity

DURATION OF DISQUALIFICATIONo During the marriage/while the marriage existso Terminates when

Annulled Death Divorce

If marriage is void, NO disqualification

MARITAL DISQUALIFICATIONS

(R130, SEC. 23)MARITAL COMMUNICATIONS

(R130, SEC. 24)ANY MATTER regardless of source

ONLY matters PRIVILEGED in nature

APPLIES: during marriage APPLIES: during and after marriage “during and after

marriage” means in all cases except DEATH of the H/W (U.S. v. Antipolo, 37 Phil. 729)

Spouse is litigant (party to case)

Spouse need not be litigant (need not be party to case)

INVOKED BY/WAIVED: spouse-party when spouse called to testify

INVOKED BY/WAIVED: communicating spouse

But see Montgomery case which said it may be waived by either spouse

Exceptionso CIVIL case by ONE against the othero CRIMINAL case committed by one against the other

OR latter’s direct descendant and ascendant Mainly children and parents ONLY

SEC. 23. Disqualification by reason of death or insanity of adverse party. – Parties or assignors of parties to a case, or persons in whose behalf a case if prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. (20a)



May he witness on a negative fact?YES. Testimony that denies the occurrence of a transaction is admitted

since it does not testify “occurring before the death of the decedent” but on the contrary, that such fact has not occurred (Mendezona v. Goitia, 54 Phil. 557).2

Is this prohibition absolute?NO. The rule is given liberal construction to promote justice and it has

been held that it was never intended to serve as a shield for fraud. The party-plaintiff is not rendered incompetent to testify to fraudulent transactions of the deceased, as the rule is not intended to shield wrongdoers. But before admitting the testimony, the court should compel the parties to clearly establish the alleged fraudulent acts (Ong Chua v. Carr, 53 Phil. 980, 981).

Dead man’s statute Very narrow application Limited to claim against estate This is a disqualification Claim against administrator for acts of negligence committed resulting to

damage to the deceased during his lifetime. NOT covered. SEC. 24. Disqualification by reason of privileged communication. – The following persons cannot testify as to matters learned in confidence in the following cases:

The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants;

An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney’s secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity;

A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was

2 “The plaintiffs-appellees did not testify to a fact which took place before their

representative's death, but on the contrary denied that it had taken place at all, i.e. they denied that a liquidation had been made or any money remitted on account of their shares in the "Tren de Aguadas" which is the ground of their claim.”

necessary to enable him to act in that capacity, and which would blacken the reputation of the patient;

A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs;

A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. (21a)

What is a privileged communication?They are confidential communication.

(A) MARITAL PRIVILEGE

If other spouse was called to witness by other party, application for subpoena, what should you do?

APPLICATION: Oppose. ISSUED: MTQ.

What are the requisites?1. There is a valid marriage; [Valid and subsisting.]2. Communication made during marriage, and communication is by it s

nature privileged or confidential.

How about if a man and woman believed and perceived to be H&W?NO. Cannot be invoked. Only a valid marriage, an existing and

subsisting marriage. Belief of the parties that their marriage was valid when in fact it was not is irrelevant.

What kinds of communications are privileged? Any form of confident disclosure. MAY BE:

o Verbal;o Conduct, acts or silent communications [exhibition of

disease or hidden deformities];o Written [such as letters];

Any fact which came to the wife’s knowledge by reason of the confidential relationship of H&W if covered by the privilege.

o Dying declarations are not covered by the privilege.

There is a phone communication between the spouses. Wife is in manila, H in GenSan. “Mukhang nahuli na kami.” On the other line is the sister/friend



of spouse, since W is very loud in asking question, the sister/friend figured it out. Is this covered by the privilege?

NO.

What is extension line, party line. Overheard by other person in house. Is this covered? Can tenant testify?

Covered by privilege, but tenant can testify.

Does judge have merit to determine whether marriage entered to invoke the privilege?

Law did not contemplate that. If you could prove that circumstance, maybe. It’s always a question of fact. No square rule.

Is there agency in marital privilege, because this is said in Regalado and other authorities?

According to sir, NO. You have to understand how a Filipino judge thinks. They think in a very simple manner. No express law on marital privilege and agency, it’s up to the judge to determine.

May W witness to facts learned before the marriage?NO. Although theoretically he can, according to sir and to Francisco, the

W may not witness as the attorney has no right to call the W as witness or attempt to draw from her statements that the accused had married her for the purpose of suppressing evidence. Francisco cited as basis More v. State, 45 Tex. Crim., 234, 12 S.W. 497.

MARITAL COMMUNICATION PRIVILEGE

U.S. v. Montgomery (2004) The wife had testified against husband in mail fraud case. Prosecution presented in evidence a letter written by the wife to the husband telling him of his sister’s scheme to defraud their clients in Sun Valley Realty, a vacation home rental service. The issue is whether the letter was confidential, and whether the husband can invoke the privilege since the wife made the communication. The court held YES, to both questions. That the letter implored Montgomery to communicate the substance of her letter to his sister does not make the letter non-confidential. Either spouse may invoke this marital communication privilege, since allowing one spouse to disclose one side of a conversation would defeat the privilege.

But see People v. Carlos (47 Phil. 626, 632), which held that a letter written by wife to the defendant husband is admissible when it came into the hands of a third party without collusion and voluntary disclosure on the part of either of the spouses, the privilege thereby already being extinguished.

(B) ATTORNEY-CLIENT

What is the nature of the communications? They are confidential and intended to be confidential MAY BE

Verbal Written Other means of conveyance [covers all other information

obtained because of professional relationship]

Is there agency?YES.

Why is this so? By the nature of Filipinos, and the culture that we have, the first line

here is the secretary. The secretary here is the extension of the lawyer. Secretary initially receives calls from clients and passes it on to the

lawyer. Takes dictation from the lawyer. Secretary handles notes, receives notes from client.

Can legal interns or couriers or messengers be considered clerks?Well he briefs interns na confidential. Interns, pwede. Messengers, it

depends on the extent of knowledge of messengers.

What are the requisites?1. Attorney-client relationship;

According to People v. Barker, need not be atty, as long as he held himself out as such, for privilege to apply;

2. Communication by client to attorney;3. Communication made with a view to (courtship stage) or in the course of

professional employment/assistance or advice; MUST have sought legal advice or opinion on subject

matter of communication;

What if they decided not to pursue relationship?Covered. Communication may be made “in the course of” or “with a

view to” professional employment. NOT COVERED if made after lawyer already refused employment.

What if he hands me documents related to case without formal engagement? Bound by the privilege?

YES.

What if start representing him without formal engagement? Bound by the privilege?



YES.

What do you mean by “in the course of professional engagement”?Covers all incidental matters, from the time you are engaged as lawyer

or consulted. It presupposes a preexisting engagement.

What if law student consults with lawyer, but lawyer knows student does not intent to hire lawyer?

Not covered. But professional responsibility to keep that in confidence.

What if, Mr. Y is lawyer of Mr. X. Then client engaged lawyer as administrator (tagapamahala) of property, then there was a case pertaining to business of the properties, he was engaged as a lawyer? Can the lawyer testify?

[Not answered.]

What if lawyer leased unit of the client, because of this there was a problem, lawyer failed to pay. If suit against lawyer, can client invoke the privilege?

NO. Limited to “in the course of professional engagement.” Lawyer was not acting as client’s lawyer.

What if client says “attorney, ipaligpit na natin yan, mahirap kausapin.”Any offer or suggestion to commit a crime is not covered by the

privilege.

May the privilege be waived as to the stenographer?Yes, but both must waive it.

DOCTOR-PATIENT

What is the scope of doctor-patient privilege?Include communications of the body, observation of symptoms, results

of the doctor’s examination, the patient’s condition as found by the doctor, the name of the ailment, the nature of any operation performed, whether the injuries caused death, the physician’s records, statements of facts or opinions given the patient, instructions given the patient, whether patient obeyed the instructions, whether physician gave patient intoxicants, whether the patient was intoxicated (Francisco 161). Includes x-ray plates and radiographs (Francisco 162).

There is NO AGENCY under this privilege.

What is a doctor-patient privilege and give me the requisites?1. Physician is AUTHORIZED to practice medicine, surgery or obstetrics;

2. Information was acquired or the advice or treatment was given by him in his PROFESSIONAL CAPACITY for the PURPOSE of treating and curing the patient;

3. Information, advice or treatment, if revealed, would BLACKEN the reputation of the patient;

4. Privilege is invoked in a civil case, whether the patient is a party OR not.

What if Kris Aquino had tuberculosis? Can you share? What if Kris Aquino had a criminal case and there is a question whether she had sexual intercourse with the deceased. Is her doctor bound by the privilege?

NO. Privilege covers only civil cases.

Is an iridologist (eye doctor) covered by the privileged?NO. He doesn’t practice medicine. In case of doubt, ask “Is he a doctor

of medicine?”

What if a doctor of alternative medicine?NO.

What about an optometrist?NO. A doctor would be an ophthalmologist, or one who first gets a

medical decree then studies opthalmology. An optometrist is not a doctor of medicine.

What about a midwife?NOT COVERED.

Who are covered by the privileged? Those who obtain a license. IN medicine, obstectrics and surgery.

What about doctor’s secretary. Secretary asks patient who father of the child of the patient’s child. Is that covered by the privileged?

NO. There is no agency. Information should have been taken necessary for him to give treatment or advice. Any other peripheral information not necessary to give treatment or advice is not covered.

Are laboratory exams covered by privileged?YES. Because it is the doctor and not the lab technician who will explain

the results. Also the records in doctor’s custody and necessary to give treatment or advice to patient.

Will death of patient extinguish privilege?NO.



QUERENDUM: What about the death of doctor? Should privilege still apply to nurse, if nurse had acted as agent of doctor in conducting tests and dealing with patient, since death extinguished the agency.

PRIEST-PENITENT

Who is covered by this rule?Only Catholic religion enjoins you to confess, so only Catholics are

enjoined. But you can look at the discipline, if they enjoin you to confess, and the confidential nature of the confession, then maybe privilege can be invoked.

What are the requisites?(1) Witness is minister or priest;(2) Confession made to the minister or priest in his professional

character, and in the course of the discipline enjoined by the rules of practice of the denomination to which the priest or minister belongs;

(3) The confession must be penitential in character; Confessions of sins with a view to obtaining pardon and

spiritual advice or assistance.

What about public confessions, is that covered?NO. Communication was not intended to be private and not enjoined by

religious institution.

Is the privilege waivable?Yes, confessor may waive.

PUBLIC OFFICER

What is the scope of the privilege?Communications made to a public officer in official confidence are

privileged when the court finds that the disclosure would adversely affect the public interest. Hence, the disclosure or non-disclosure is not dependent on the will of the officer but on the determination by a competent court. This privilege may be invoked not only during the term of office of the public officer but also after.

Who determines whether disclosure would be prejudicial to public interest?The State. The State has to be the one to waive.

Who waives it?Can only be waived upon the order of the court.

What are the requisites?(1) Communication made to a public officer;(2) Communication made in official confidence;(3) Public interest would suffer by the disclosure of the communication;

Are there any exceptions to this rule?YES. According to Francisco (171), it can be disregarded in cases

where Useful to vindicate innocence of accused Lessen risk of false testimony Essential to proper disposition of the case Benefit to be gained is greater than any injury to be done

by disclosure

What is public interest?Something in which the public at large has some pecuniary interest in by

way of legal right or liabilities are affected.

What is executive privilege, presidential communication privilege? It is “the power of government to withhold information from the

public, the courts and congress (Senate v. Ermita).” The privilege covers the president and those who assist him

(Almonte v. Vasquez), Presidential conversations, correspondences, and discussions in

closed-door cabinet meetings (Chavez v. PEA).o In invoking it, Senate v. Ermita held that the privilege

extends to certain categories of information and NOT people, so when the government seeks to exclude someone other than the President from being witness in it’s in aid of legislation hearings, the government must provide the basis for the claim of privilege, based on the traditional exceptions.

o Inter-government exchanges prior to conclusion of treaties are privileged, this applies to the offers and exchanges and not the FINAL TEXT of the treaty (AKBAYAN v. Aquino). Further, these offers and exchanges may not be revealed even after the treaty is concluded.

Related to the U.S. deliberate process privilege: covers documents reflecting advisory opinions, recommendations, and deliberations comprising part of the process by which government decisions are formulated (AKBAYAN v. Aquino).

In Neri v. Senate, the SC provided the elements of presidential communications privilege:

1. Communications relate to quintessential and non-delegable presidential power;



2. Communication is authored, solicited and received by a close advisor of the president himself; [Operational proximity];

3. Qualified privilege that may be overcome by a showing of adequate need;

J. Puno, in his dissent, stated that the government failed to show the specific need for withdrawing disclosure, and the court cannot engage in guesswork in resolving an important issue.

What is covered by the governmental communication privilege (Chavez v. PCGG)?

Governmental privilege against public disclosure with respect to state secrets regarding:

Military Diplomatic Other national security matters [Chavez v. PEA: includes

investigations on crimes by law enforcement agencies before prosecution of accused]

What is judicial privilege?[per curiam case]

Can the judge waive the privileges?Same ruling, waiver still from SC.

WHAT ARE THE OTHER KINDS OF PRIVILEGED COMMUNICATIONS?

(1) R.A. 53, as amended: publisher, editor or duly accredited reporter CANNOT be compelled to REVEAL the SOURCE of any NEWS REPORT or INFORMATION

o Requisites of newsman’s privilege:1) Publisher, editor, columnist or duly accredited reporter 2) Of any newspaper, magazine or periodical of general circulation 3) CANNOT be compelled to reveal 4) As to the source of any news report or information appearing in said publication 5) Related in confidence

o Exception: Court, a House or committee of Congress finds that such revelation is demanded by the security of the

State.

(2) ART. 233 of the LABOR CODE: all information and statements made at CONCILIATION PROCEEDINGS shall be treated as privileged communication [TNOTE: Note treated as privilege but cannot be treated as admissions](3) VOTERS cannot reveal the candidate they voted for(4) TRADE SECRETS(5) BANK DEPOSITS

Exceptions:1) Written permission of the depositor 2) Impeachment 3) Order of a competent court in cases of

a) bribery b) dereliction of duty of public officials

4) Where the money deposited or invested is the SM of the litigation

The privilege applies only to bank deposits. As to other property being held by a bank, bank personnel may be examined upon order of a court. (RA 8791)

(6) Information contained in TAX CENSUS RETURNS (Air Philippines v. Pennswell Inc.)

(PALMONTE vs. VASQUEZ) Income tax returns case Informers were considered privileged

(9) Disclosures made to the AMLA by persons or institutions(10) Informer’s privilege(11) Foreign Currency Deposit Act, Bank Secrecy Law

o EXCEPT: Waiver by depositor Court order

2. TESTIMONIAL PRIVILEGE

SEC. 25. Parental and filial privilege. – No person may be compelled to testify against his parents other direct ascendants children or other direct descendants. (20a).

What is the scope of the rules? There are two rules

o Parental privilege rule [parent cannot be compelled to testify against child or other direct descendants]

o Filial privilege rule [child may not be compelled to testify against parent or other direct ascendants]

No person may be compelled to testify against



o Parentso Other direct ascendantso Childreno Other direct descendants

What is a waiver?When you relinquish the right.

What is the reason for the rules?To preserve family cohesion.

Who may and when may privilege be invoked?TRANQUIL NOTE: THE FATHER (contrary to People v. Invencion); the person against whom the testimony is offered.

REGALADO: By the person called to be a witness in:

o CIVIL CASESo CRIMINAL CASES

Same policy in Art. 215, FCo EXCEPTIONS

1. Testimony is indispensable in crime committed against said descendant [person called to witness];

2. Crime committed by one parent against the other;

3. ADMISSIONS AND CONFESSIONSSEC. 26. Admissions of a party. – The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. (22)

People v. SatorreAccused confessed to murder in front of the barangay captain, but failed to reduce the same to writing. During trial, accused reversed, and claimed he did not do it. RTC & CA convicted, but SC reversed. SC stated that he did not kill the victim.

Accordingly, the basic test for the validity of a confession is – was it voluntarily and freely made.

On the question of whether a confession is made voluntarily, the age, character, and circumstances prevailing at the time it was made must be considered. Much depends upon the situation and surroundings of the accused. This is the position taken by the courts, whatever the theory of exclusion of incriminating statements

may be. The intelligence of the accused or want of it must also be taken into account. It must be shown that the defendant realized the import of his act.In the case at bar, appellant was a 19-year old farmer who did not even finish first grade. Granting that he made the confession in the presence of Barangay Captain Castañares, he may not have realized the full import of his confession and its consequences.

In the case at bar, however, there was no circumstantial evidence to corroborate the extrajudicial confession of appellant. More importantly, the said confession does not contain details which could have only been known to appellant.

Furthermore, the events alleged in the confession a re inconsistent with the physical evidence.

SEC. 27. Offer of compromise not admissible. – In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offerror.

In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt.

A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to a lesser offense, is not admissible in evidence against the accused who made the plea or offer.

An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury. (24a)

CIVIL CASES

Can admissions during conciliation/mediation be admissible as compromise?

NO. If outside of these proceedings not confidential.

What about private meetings outside C/M meetings?Sir says that there is no rule on that.

Offer of compromise v. discussions to come to terms and conditions of compromise?

Not answered.

CRIMINAL CASES

An offer of compromise of the accused is an admission of guilt.



U.S. Jurisprudence: A plea in crim cases, def, decline to admit or deny, will not be taken in another case. NOT applicable in Phils.

What if offended party offers to compromise?NO. Not covered by rules, not an admission. An offended party is only a

witness of the State, cannot bind the case.

OFFER TO PAY MEDICAL, HOSPITAL BILLS In U.S., Good Samaritan rule.

What offers not considered admissions? In crim, quasi-offenses or those allowed to be compromised; plea of guilty later withdrawn; unaccepted plea of guilty later withdrawn; tax cases; those cases under JDR Rule [cases w/c are money matters: BP 22,

theft, quasi-delict, etc.]

How do you compromise a criminal case?Wag ka mayabang, say you’re her to help [“tulong”]. Ask ano yung gusto nilang price.

People v. ErguizaAfter a judicious examination of the records of the case, the Court finds that there is testimonial evidence that contradicts the findings of the RTC and CA on the basis of which no conviction beyond reasonable doubt could arise. It is the unrebutted testimony of a credible defense witness. The testimony of Joy Agbuya (Joy) casts doubt as to the possibility of rape having taken place as narrated by complainant. In addition, the testimony of a disinterested defense witness, Juanita Angeles (Juanita) corroborated the alibi of appellant.

Dr. Sison testified that his findings were not conclusive, but were rather suggestive that complainant was raped.

In sum, with the exception of the claim of AAA that she was raped by appellant, other evidence presented by the prosecution did not identify appellant as the perpetrator of the crime.

Moreover, the testimonies of the witnesses for both the prosecution and the defense conflict on certain points, more notably the claim by BBB and CCC that the family of appellant offered to settle the case. This, however, was denied by Albina, who claimed that it was BBB and CCC who demanded P1,000,000.00.

The offer of compromise allegedly made by Albina is critical to the case at bar in light of law and jurisprudence that an offer of compromise in a criminal case may be received in evidence as an implied admission of guilt.

The alleged offer of the parents of appellant to settle the case cannot be used against appellant as evidence of his guilt. Appellant testified that he did not ask his parents to settle the case. Moreover, appellant was not present when the offer to settle was allegedly made.

An offer of compromise from an unauthorized person cannot amount to an admission of the party himself. Although the Court has held in some cases that an attempt of the parents of the accused to settle the case is an implied admission of guilt, we believe that the better rule is that for a compromise to amount to an implied admission of guilt, the accused should have been present or at least authorized the proposed compromise. Moreover, it has been held that where the accused was not present at the time the offer for monetary consideration was made, such offer of compromise would not save the day for the prosecution.

In addition, the Court, in weighing the evidence presented, may give less weight to the testimonies of Albina, on the one hand, and BBB and CCC, on the other, as they are related to the appellant and the victim, respectively Their testimonies relating to the offer of settlement simply contradict each other. As a matter of fact, even the lower courts did not consider the alleged offer of settlement in resolving the case.

Is case still active even after you sign compromise [during JDR]?NO. Cannot compromise criminal aspect. AFTER file affidavit of

desistance prepared by offended party. MUST INFORM public prosecutor.

What about the heavier cases, such as rape, murder, parricide, can you compromise? Not covered by JDR case. Should not be a highly publicized case or controversial. Court cannot know that.

How do you make double –jeopardy attach?1. Prosecution moved to desist2. Accused should have been arraigned and entry of plea3. Only after then, can you move to dismiss.

SEC. 28. Admission by third party. – The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. (25a)

What is the res inter alios acta rule?



*TNOTE: Read with Section 6.

What are the two branches?Sec. 28 & Sec. 34

What is the general rule under Sec. 28?

What are the exceptions? [memorize requisites]1) co-partners or agents2) conspirator3) privies

SEC. 29. Admission by co-partner or agent. – The act or declaration of a partner or agent of the party within the scope of his authority and during the existence of the partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. (26a)

SEC. 30. Admission by conspirator. – The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration. (27)

SEC. 31. Admission by privies. – Where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former. (28)

SEC. 32. Admission by silence. – An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him. (23a)

SEC. 33. Confession. – The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him. (29a)

ADMISSION CONFESSIONStatement of fact which DOES NOT

INVOLVE an acknowledgment of guiltStatement of facts which involves an

acknowledgment of guiltMay be made by third persons Can be made ONLY by the party

himselfExpress OR Implied ALWAYS express

When is confession judicial or extrajudicial?Judicial Extrajudicial

Plea of guilt to capital, non-capital, lesser offense at ARRAIGNMENT AND PLEA;o DOES NOT include

improvident plea, since can be withdrawn any time before judgment

Discharge as state witness; While on witness stand

[person on cross examination, because of conduct of examination witness admits];o What should judge

do in this case? What is confessant is witness?

Judge should ask accused if witness/accused wants to change his plea.

If witness who is not an accused, NO Phil rules on this. Judge will most likely asked him to be charged.

o Can the Judge, on the basis of the testimony/confession of the witness who is not the accused which necessarily acquits the accused, acquit the accused?

May be oral or written Before private person During investigation,

before public officer Witness protection

program: made before DOJ



NO.

May EC be the basis of conviction?NO. UNLESS accompanied by other corroborating evidence of the

corpus delicti.

4. PREVIOUS CONDUCT AS EVIDENCESEC. 34. Similar acts as evidence. – Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or a similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like. (48a)

NOTES

Take note that the law says that although it would not be used to establish the existence of the thing or a fact, it would be used to establish specific intent, knowledge, scheme or plan;

Due process (you can only be convicted of offense charged or that necessarily included therein) evidence admissible to establish modus operandi but this is only to show manner of committing offense (pattern) and NOT to convict;

This is available to both the accused and prosecution. [“did/did NOT do”];

Rule is applicable to BOTH civil and criminal cases; Resorted to when due to the nature of the inquiry or failure of direct

proof; Evidence is admissible in criminal action, which tends to show motive,

although it tends to prove the commission of another offense by the defendant (U.S. v. Pineda, 37 Phil. 456, 459; People v. Daan, 36 Off. Gaz. 2300; BOTH quoting Moore v. U.S. (1893), 150 U.S. 57).

May similar acts of the accused be admitted as evidence against him?NO. Evidence that one did or did not do a certain thing at one time is not

admissible to prove that he did or did not do the same or a similar thing at another time.

Why are these not admissible?Irrelevant to present case, facts not in issue.

Does this admit of any exceptions?YES. It may be received to prove a specific:

1) intent;

2) knowledge;

3) identity;

4) plan;

5) system;

6) scheme;

7) habit;

8) custom; or

9) usage; and

10) the like.

What are examples of similar acts admissible as evidence [Tnotes]? Similar acts are used as some sort of a guide to establish intent,

knowledge, negligence, plan or scheme. [Modus operandi]; Let’s say that my caha de jero was opened and previously it was

established that Mr. Ong was trying to open my vault. Therefore it will establish some knowledge that he knows the combination of the vault.

Another example is the Rizal Day Bombing. There were items or fragment taken at the scene of the crime. In the QC house of Mr. Ong, it was discovered that he was keeping fragments or bombs of similar nature. It would show some intent on his part.

I’m uttering or using a counterfeit P200 bill. I am being charged with using a counterfeit bill. The fact that I have been uttering that to Fornier, Aquitania or Sandoval at a previous time may not be enough to convict me on my uttering to Ong but those particular acts could be established to show that there is a pattern as to how I intend to commit such

Martilyo gang incidents

When are similar acts admissible as evidence?Specific intent or knowledge

Court admitted evidence that accused previously took out a life insurance on his late wife in an earlier marriage, and she had died of strychnine poisoning six months into the marriage. Accused committed the same acts in present case. Court ruled it was admissible: “Where the evidence of another offense is admissible and relevant for the purpose of showing knowledge as an essential element of criminal intent, the remoteness in point of time of such other offense may go to the weight but not to its admissibility” (People v. Gosden).

Identity Robbery charge. The window was opened using a knife, leaving blade fragments on the windows. Accused later found with knife, and question of the identity of the knife with the blade fragments arises.

P received a package containing a bomb, which exploded killing him and injuring his wife. Fragments



of the bomb, box, wrapper, ink used to write the addressed, lead tubing, and lathe marks on the wooden box were compared and found to be identical or fitted the articles found in D’s workshop.

Plan, System, or Scheme

Evidence that a plan, design or scheme has been put into execution is relevant if it tends by reasonable inference to establish the commission of the crime charged.

Action to recover on the insurance policy by the wife of M. M had fallen off the roof on August 31, where he had been inspecting shingles recently done by carpenters. M was insolvent and the house was mortgaged. Insurer resisted claim and alleged suicide and presented a memorandum [“Bought 2 oz. of morphine, to take on August 31, to deaden the pain”] and a half-empty bottle of morphine.

A, B, C and D, are beneficiaries in an insurance policy. D charged with murder of C, and evidence was admitted that D had poisoned A and B in order to become the sole beneficiary of the policy

Habit, Custom, or usage Habit or Customo Malig v. Sandiganbayan, 160 SCRA 623

(1988): While it may be that pursuant to Section 48, Rule 130 of the Rules of Court "evidence that one did or omitted to do a certain thing at one time is not admissible to prove that he did or omitted to do the same or similar thing at another time," the same Rule also provides that "it may be received to prove a specific intent or knowledge, Identity, plan, system, scheme, habit, custom or usage and the like." Emiliana Gerona's credible testimony regarding the amounts petitioners received from the Matictic project sufficiently establishes petitioners "intent" and/or "habit" of demanding and receiving money from the contractor-complainant , such that the latter, in exasperation, felt that enough was enough, to the prejudice of his future contracts.

Custom may be shown when their existence will increase or diminish the probability of an act having been done or not done.

The like Negligence As tending to show the speed of the car at the time

of the accident, evidence of the customary speed of defendant’s car at such place is competent (Lord vs. Manchester);

Question is whether he knew or ought to have known the extent of the danger…in a suit for damage for negligently keeping a ferocious animal, it is relevant to show that others were attacked, and that they had complained to the party of the injuries so sustained…testimony [to show] dangerous conditions on the part of the defendant, notice of a previous, continuous, defective condition, or knowledge of the dangerous character of a thing or act.

Plaintiff bought potassium chlorate from defendant’s pharmacy to administer to his two sick horses. The two horses died soon after being given the medicines. Plaintiff had the samples tested and found they were barium chlorate, a poison. Plaintiff hired two chemists who bought potassium chlorate from defendant, which when tested, turned out to be the same type of poison. Held: Admissible. The purpose if to ascertain defendant’s knowledge and intent, and to fix his negligence. If the defendant has on more than one occasion performed similar acts, accident in good faith is possibly excluded, negligence is intensified, and fraudulent intent may even be established. It has been said that there is no better evidence of negligence than the frequency of accidents.

SEC. 35. Unaccepted offer. – An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production and tender of the money, instrument, or property. (49a)

What is an accepted offer? That there is an offer in writing TO PAY money or delivery of written

instrument or specific personal property.

If the same was rejected what is the effect? The effect is production or tender of money, or delivery of personal

property or instrument.

Is any other act required from the person who offers to pay?YES. Tender of payment must be followed by consignation of the

amount, instrument or property in court in order to produce the effects of valid payment.

What kind of property is involved?Personal property.

What kind of tender must be made? It must be full and just tender. There must be no delay or violations. For

example, under Rule 67, tender of compensation must be just



compensation and the same must be manifested and tendered in court. In order to release consignor from liability, Art. 1256 of the NCC

provides: “If the creditor to whom the tender of payment has been made refuses without just cause to accept it, the debtor shall be released from the responsibility by the consignation of the thing or sum due.”

Tender of payment MUST PRECEDE the consignation, and must be refused without just cause.

o When is it without just cause? Kapisanan v. DeJarme, 55 Phil. 338: Creditor who,

without legal justification, informs a debtor that payment of a debt will not be accepted thereby waives payment on the date the money will be due.

o Must the court determine whether the creditor’s reason for refusing payment was just or unjust before accepting the consignation?

NO. Refusal of the tender of payment is enough, regardless of the reason for refusal. The reasons for refusal will be only be taken into account to resolve whether the consignation made will be efficacious against his opposition – during the proceedings of the case (8 Manresa 326).

5. TESTIMONIAL KNOWLEDGESEC. 36. Testimony generally confined to personal knowledge; hearsay excluded. – A witnesses can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules. (30a)

NOTES Personal knowledge is derived from witness’ perception; perceived thru

senses – he actually witnessed it within the sphere of his perception. If you are to put somebody on the witness stand, note 3 requirements:

1. competent (sec. 20)2. perceiving and perceiving can make known perception to another3. personal knowledge – experienced, saw, heard, felt the happening of event, thing or circumstance.

What is an Independent Relevant Statement?It is in a sense, an admission; personal knowledge.

6. EXCEPTIONS TO THE HEARSAY RULE

What are the exceptions to the hearsay rule?

1) Waiver2) Independently relevant evidence 3) Dying declaration 4) Declaration against interest 5) Act or declaration about pedigree 6) Family reputation or tradition regarding pedigree 7) Common reputation 8) Part of the res gestae 9) Verbal acts 10) Entries in the course of business11) Entries in official records12) Commercial lists and the like13) Learned treatises14) Testimony or deposition at a former proceeding

Are these exceptions absolute?NO. All such exceptions are NOT absolute, they are still subject to cross

examination. They are only testimonies, so they may NOT be credible.

Is there an identifiable declarant?YES NO

Dying declaration Declaration against interest Pedigree Res gestae

Family Reputation Common Reputation Entries in the course of

business Entries in official records

SEC. 37. Dying declaration. – The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. (31a)

What is a dying declaration? It is a statement made by the victim referring to material facts which

concern the cause and circumstances of the killing, and uttered with the belief of his impending death.

Who testifies?The person who receives the declaration.

If declarant survives who testifies?The declarant. BUT the person the declaration was conveyed to can

testify under res gestae.



Why is it admissible?o Necessityo Trustworthinesso A man on his death bed would not lie.

What are the requisites of a dying declaration?1. Death is IMMINENT and the declarant is CONSCIOUS OF THE

FACT. 2. Declaration refers to the CAUSE AND SURROUNDING

CIRCUMSTANCES of such death3. Declaration relates to facts which the victim is competent to testify

to4. Declaration is offered in a case wherein the declarant’s death is the

SUBJECT OF INQUIRY

What circumstances would allow you to determine that the person is about to die/is dying?

Person is pale; Nahihirapan huminga; WORDS or STATEMENTS of the declarant on the SAME

occasion; CONDUCT at the time the declaration was made; SERIOUS NATURE OF HIS WONDS as would

necessarily engender a belief on his part that he would not survive therefrom;

Is this limited to criminal cases of homicide, parricide?NO. The law states as long as the case concerns circumstances

surrounding the death of the victim. This applies to both (a) CIVIL [e.g. R39 S47 probate of a will/granting of letters of administration only prima facie evidence of the death of the testator/intestate] and (b) CRIMINAL CASES.

How do you lay the basis for presenting the dying declaration?o Show witness that declarant knew he was dying;o Ask whether the declarant was competent; [kamusta clarity, state of

mind of victim]o Ask who was the stabber was; [sinong sumaksak?]

How do you destroy a dying declaration?DESTROY THE REQUISITES:

How do you know he was dying? Was his voice really low? Was he really having trouble

breathing? Was he really pale?

How do you know his death was not caused by the negligence of the hospital?

SEC. 38. Declaration against interest. – The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarant’s own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons. (32a)

What is declaration against interest?The declaration made by a person deceased, or unable to testify,

against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarant’s own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons.

Why is it hearsay?A third person will testify since the declarant is unable to testify or is

dead.

Why is it reliable? A human being will not make a declaration unfavorable to him unless it

is true. [Human Experience]; This is against human nature; could be considered by the court This is secondary evidence, unlike an admission which is primary.

o Because declarant is dead or unable to testify; there’s a certain degree of reliability

The primary evidence is the witness who testifies. But if declarant is still alive, his declaration may be

used to impeach him under R132 S13. (Inconsistent with his interest)

Admissions against interest Declarations against interestThose made by a party to a litigation or by one in privity with or identified in legal interest with such party.

[PARTY OR PRIVITY]

Made by a person who is neither a party nor in privity with the party to the suit, are secondary evidence but constitute an exception to the hearsay rule.

[NOT PARTY OR NO PRIVITY]



Admissible whether or not the declarant is available as witness.

Admissible only when the declarant is unavailable as witness.

Not necessarily a declaration against interest

Always against one’s interest.

Person who testifies is the person making such an admission

The person who made the declaration is deceased or unable to testify; therefore, another person or a recipient will have to testify.

Primary evidence Secondary evidenceUsed only against admitter and those who have legal interest arising therefrom

Could be used even as against 3rd persons.

What are the requisites in order for a statement to be admissible as a declaration against interest (Ong v. CA, et al., L-47674, 30 Oct. 1980)?

1. Declarant is dead or unable to testify;2. It relates to a fact against the interest of the declarant;3. At the time he made such declaration the declarant was aware that the

same was contrary to his aforesaid interest;4. The declarant had no motive to falsify [his statement] and believed such

declaration to be true.

Admission by privies Admission against interestOne of 3 exceptions to res inter alios acta

Exception to hearsay

Evidence against the successor in interest of the admitter

Evidence against even the declarant, his successor in interest, or 3rd persons

Admitter need not be dead or unable to testify

Declarant is dead or unable to testify

Relates to title to property Relates to any interestAdmission need not be against the admitter’s interest

Declaration must be against the interest of the declarant

What form must these admissions take?Admissions may be express or implied. (Judicial under R8 S11 wherein

allegations NOT specifically denied are deemed admitted; or extrajudicial under S32 – admission by silence).

Self-serving declaration vs. Declaration against InterestMade out-of-court and is The person is dead or unable to

generally not admissible testify and it is admissible in its entirety; including the points not against interest

To make it admissible is to promote perjury and fraud.

Anything that was stated that is in connection with the declaration against interest is likewise admissible.

What must be taken note of in declaration against interest? Three things:

1. Declarant is dead or unable to testify 2. Declaration must on a fact cognizable by the declarant 3. No motive to falsify.

o If it is established later on that there is a motive to falsify, the declaration against interest cannot be admitted.

These exceptions to the hearsay rule are not absolute and they could be contested and objected to. The person being presented to narrate a declaration of a dying man or to narrate the declaration of person who admitted an interest against himself could be subjected to cross-examination.

o Such cross-examination may touch on these matters: What was your condition at the time you met the

person? Was he able to speak or could he hardly speak? How did he know that he was dying? Was he surely dying at that point in time?

(3) ACT OR DECLARATION ABOUT PEDIGREE

SEC. 39. Act or declaration about pedigree. – The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word “pedigree” includes relationship, family genealogy, birth, marriage, death, the dates when the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. (33a)

What are the requisites to be admissible under this section?1) Act or declaration of a person deceased, or unable to testify 2) In respect to the pedigree of another person 3) Related to him by birth or marriage 4) Where it occurred before the controversy



5) The relationship between the declarant and the person whose pedigree is in question is shown by evidence other than such act or declaration.

What is pedigree?Pedigree is the history of family descent that is transmitted from a

generation to another generation by oral or written declaration and by tradition. It includes: relationship, family, genealogy, birth, marriage, death and dates and places where these facts occurred.

What does pedigree include?a) relationship b) family genealogy c) birth d) marriage e) death f) dates when and the places where these facts occurred g) names of the relatives h) facts of family history intimately connected with pedigree.

What is contemplated by this section? That there is an act or declaration about pedigree; Declarant is related by birth/marriage to the person whose pedigree is in

questiono PROVEN BY: family genealogy (family history, family tree);

NOT limited to oral, includes writteno NO need to establish relationship between witness and

declarant; witness is merely a recipient of declaration e.g. Declarant relays information to Witness

relating to a Person whose pedigree is in question

o involves 3 persons; D as pedigree’s source is in a sense, making an admission

Witness should be competent on his own to testify on the relationship.

BUT the declarant’s relationship to his family must be legitimate, and NOT his relationship to X (person whose pedigree is in question).

o It is declarant’s relationship to claimed family which should be genuine because otherwise, the relationship would be questionable/spurious.

o But what is to be established need NOT be genuine (declarant’s relationship with X).

o This should be before controversy, otherwise, it may not be reliable as there may be reason to falsify.

Relationship cannot be established by other evidence (birth certificate, public instrument, private document)

o Done ONLY IF no other superior evidence available IN SUMMARY

1. Person is dead or unable to testify 2. Pedigree of another person, not the declarant, is in

question 3. Recipient testifies 4. Witness need not be a relative 5. Declarant should be related, by birth or marriage, to

the person whose pedigree is in issue and the relationship does not need to be legitimate because the law makes no distinction

6. Declarant’s relationship to the family to which he claims to be related to should be legitimate in character

Can you establish an illegitimate filiation after death?NO.

Should there be a relationship between the declarant and the witness?NO.

(4) FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE

SEC. 40. Family reputation or tradition regarding pedigree. – The reputation of tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree. (34a)

How may pedigree be proven? Act or declaration of a relative (Sec. 39); Reputation or tradition of existing in his family (Sec. 40); Entries in family bibles or other family books or charts, engravings on

rings, family portraits and the like (Sec. 40); With respect to marriage, common reputation in the community (Sec.

41); Other species of direct primary evidence (Regalado);

How may pedigree be proven by acts or declarations of relatives under Sec. 39 (Regalado 785)?

Actor or declarant is dead or unable to testify;



The act or declaration is made by a person related to the subject by birth or marriage;

The relationship between the declarant or the actor and the subject is shown by evidence other than such act or declaration;

The act or declaration was made ante litem motam, or prior to the controversy;

Must the declarant/witness be a close relative, within a specified number of degrees?

NO. The rules do not require any specific degree of relationship, but the weight to which such act or declaration is entitled may be affected by the degree of relationship. What is primarily required is that the relationship must be preliminarily proved by direct or circumstantial evidence (Regalado 785).

How may pedigree be proven by acts or declarations of relatives under Sec. 40 (Regalado 785)?

(1) The witness testifying thereto must be a member, by consanguinity or affinity, of the same family as the subject;

(2) Such reputation or tradition must have existed in the family ante litem motam.

Is a person’s statement as to his date of birth and age a statement ante litem motam?

YES, if he learned of these from his parents or relatives, such is a declaration of family tradition (Gravador v. Mamigo, et al., L-24989, July 21, 1967). Such statement prevails over the opinion of the trial judge (U.S. v. Agadas, et al., 36 Phil. 246), but cannot generally prevail over the secondary statement of the father (U.S. v. Evangelista, et al., 32 Phil. 321).

What are the requisites in order for reputation to be admissible (Sec. 40)?1) Reputation or tradition existing in a family 2) Previous to the controversy 3) In respect to the pedigree of any one of its members 4) Witness testifying thereon be also a member of the family, either by consanguinity or affinity

What is reputation? Reputation is others’ perception of who you are, which may be

inaccurate. It is how other people perceive us to be. It is how the community

perceives us to be. Reputation, as defined, is declaration and statements passed down from

generation to generation coming from deceased relatives though it cannot be identified as to who they tell;

This could be regarded as family history.

o What is the reason for this? Necessity and trustworthiness. Reputation is only as against one’s ancestors who only we know

because of declarations and statements that has been passed on from generation to generation.

o Examples: “yung lolo ko gobernador heneral ‘yan dito”, “’yung lolo ko provincial auditor ‘yon.” That is family reputation or tradition regarding pedigree.

Why is it reliable?It is reliable in family reputation; passed on from generation to

generation.o oral transmission of information; NO need to identify the

source; family history is created o why not include non-family members? Filipinos are

clannish; there is a certain level of indifference o Witness who is a family member testifies so it is reliable.

(i.e. tradition: reunions, confirmation); prior to the controversy (NO BIAS)

In family tradition In family reputation or traditionThe declarant must be dead or unable to testify.

There is not even a declarant to speak of, just a witness who was aware of an exiting family reputation or tradition.

Witness to declaration testifies Witness who is a family member testifies

What are examples of evidence of common reputation? BEFORE Family pictures& Family Bibles

o Common in Royalties who have family historians; far back to see the line and becomes relevant in cases of succession to the throne; not so much in the Philippines; only family members are placed in the bible but now, this is no longer true;

o Now unreliable Entries in family bibles or other family books or charts, engravings on

rings, family portraits and the like, may be received as evidence of pedigree.

o What is a family bible? Bible, where on a page where the names of the whole

family listed Oral history

o May be backed up by photos or other evidence, such as the person was present at family reunions, birthdays, Christmas, New Year, or other important family events



Jewelry given to members of the family Family crest Tatoo Tomb or inscriptions on headstones

NOTE: There should be a controversy with respect to the pedigree of a member

of the family so what is in issue here is the pedigree of a member of the family.

A member of the same family testifies because only members of the same family would know the acts or declarations of their ancestors although they cannot really pinpoint as to who among their ancestors made such acts or declaration.

Reputation or tradition of the person concerned existed before the controversy so there’s no room to fabricate, no bias and interest (i.e. If I’m mad at O, there’s already bias and interest.

o Chances are I might not be telling the truth; there’s room to fabricate.)

(5) COMMON REPUTATION

SEC. 41. Common reputation. – Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty years old, or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public places may be received as evidence of common reputation. (35)

NOTES: Common reputation must have existed ante litem motam– before the

controversy. Reputation may refer to that of the person or of a place (e.g. a place is

known to be an opium den in the community, as held in U.S. v. Choa Chiok, 36 Phil. 831).

If it is a matter of public or general interest, such must be more than 30 years old. The reputation must likewise be more than 30 years old (Regalado 787).

Common reputation of marriage or moral character is not required to be more than 30 years old (Regalado 787).

What is common reputation (Regalado 786-787)?It means general reputation. It is the definite opinion of the community in

which the fact to be proved is known or exists. It is the general or substantially undivided reputation; as distinguished from a partial or qualified one, although it need not be unanimous.

How may common reputation be established?1. Testimony of competent witness;2. Monuments and inscriptions in public places;3. Documents containing statements of reputation.

Does it refer to reputation at place of residence (Regalado 787)?Not necessarily. While as a rule the reputation of a person should be

that existing at his place of residence, it may also be that existing at the place where he is best known.

What are matters of public interest?They are matters of national interest (Regalado 786).

What may be established by common reputation?It is admissible to prove:

Marriage; Moral character; Facts of public or general interest more than 30 years old;

What are the requisites for admissibility of hearsay evidence as to Common reputation?

1) Common reputation2) Existing previous to the controversy 3) Respecting either

facts of public or general interest more than 30 years old;

marriage; or moral character.

What are those which will fall under common reputation? Public or general interest for more than 30 years. Documents existing

for more than 30 years which have been unblemished by alterations and beyond suspicion and is in possession of the person who should be in custody of the same are called ancient documents.

Facts, common knowledge of more than 30 years fall under common reputation. It will also include marriage and related facts and individual moral character.

Why is it trustworthy?The reason for this is that it is very difficult to obtain evidence.

What is the trustworthiness of this evidence? Most of the time, the public is conversant of what the true facts are.

Note that if it’s fact of public or common knowledge, the law requires more than 30 years so that it will have a certain level of reliability. Otherwise, it’s famous as



“rumor,” “chismis,” “haka-haka.” But because it has been existing for more than 30 years, it has reached a certain level of reliability.

What are examples of evidence of common reputation?Facts of public or general interest more than 30 years old

Facts must be of public or general interest for more than 30 years

Common reputation must be ancient Reputation has been formed among

persons who have some sort of information and could intelligently make an opinion of such information

See R132, Sec. 21, if unblemished document;

Common reputation exists previous to the controversyo the law understands that there’s room

to fabricate so common reputation should have existed prior to the controversy.

EXAMPLES There is a right of way on a private tract of

land Capiz is populated by aswangs Batangas is bayan of matatapang Manila Film Center collapsed

o IF already recorded court takes judicial notice instead

1945 Philippine history as to independence is subject to judicial notice and NOT common reputatione.g.

Student activities went to the mountains because they were disgruntled, but 1st Quarter Storm is history!

Farmers joined Hukbalahap Fact: Josons of Nueva Ecija (lolo was a

guerilla) Culture of the Tausugs (cooking, weapons,

weaving, dress)

Marriage Legal marriage NOT required; only a perceptiono NO requirement of 30 years; only for

purposes of testimonyo NOT conclusive; NOT including 5 years

under the Family Code as to the absence of legal impediment to marry

o NO need to have a marriage licenseo NO declarant

Why is this needed?

o To dispense with marriage license requirement

o As additional evidence, defense that woman did not know that man was already married when she married him, for prosecution of the crime of bigamy

What proof? Community sees themo PDAo May anako Live togethero Go to church togethero Wedding ringo

Moral character Moral character – social norms; NOT accurate Character – person himself; reliable because it is

difficult to obtain evidence; NO document; trustworthy because the public is

presumed to be conversanto Spontaneous informationo From class of persons within that circle

(6) RES GESTAE

SEC. 42. Part of the res gestae. – Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. (36a)

US Rules, in hearsay Present sense statement, Excited statement Present sense impression Physical mental Emotional statement as to condition

What is res gestae?(a) Spontaneous statements in connection with a startling occurrence relating to that fact and in effect forming part thereof;(b) Statements accompanying an equivocal act, otherwise known as verbal acts, on the theory that they are the verbal parts of the act to be explained.

What are the two kinds of res gestae? Distinguish.First kind “startling occurrence” Second kind “equivocal act”



Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof.

Statements accompanying an equivocal act material to the issue, and giving it a legal significance.

What is an Equivocal Act open to more than one

interpretation uncertain or

questionable in nature Examples: clenched fist,

holding hands, nakaakbay, raised eyebrows, nguso, person is standing in front of the house of a person you know,

Requisites:1. The principal act, the res

gestae, is a startling occurrence;

2. The statements forming part thereof were made before the declarant has the opportunity to contrive;

3. The statements refer to the occurrence in question and its attending circumstances.

Requisites:1. The res gestae or

principal act to be characterized must be equivocal;

2. Such act must be material to the issue;

3. The statements must accompany the equivocal act;

4. The statements give a legal significance to the equivocal act.

Witness is recipient of the statement

TWO PERSONS1) one hears the statement

(res gestae)2) one sees the

occurrence of the equivocal act (personal knowledge)

See People v. Siscar, G.R. No. 55649, Dec. 3, 1985.Statement must be:

spontaneous be made while a startling

occurrence is taking place or immediately prior or

Statement must be a “verbal act” made at the time the equivocal act was being performed.

Such statements are the verbal

subsequent thereto relate to the circumstances

of the starling occurrence

parts of the equivocal act, they constitute part of the res gestae.

Examples ExamplesSir stands in front of a house…

When are you startled?

Startled Excited

Res gestae in homicidal act Dying declarationAdmissible in both civil and criminal cases.

Made by:o The victimo The killer himself after or

during the killing (People v. Reyes, et al., 82 Phil. 563);

o A third person

Made by the victim

Statement may precede, accompany or be made after the act was committed

Made after the homicidal attack has been committed

Trustworthy because of the spontaneity of the statement

Trustworthy because it was given under an awareness of impending death, and a man on his deathbed would not lie

As to the first kind, must the statement be made immediately after the occurrence of the starting occurrence?

NO. The interval of time between the startling occurrence and the statement depends on the circumstance. What is necessary is that the declarant was still under the immediate influence of the startling occurrence, hence it is generally required that the statement be made immediately prior to or subsequent to the event (Regalado 790). Or if declarant was rendered unconscious during occurrence, that he makes the statement upon regaining consciousness.

May the statement be admitted both as a dying declaration and as part of the res gestae?

YES, if the elements of both are present.

People v. Balbas, L-47686, June 24, 1983: “In the case at bar, the deceased Florencio Yamongan made the statements while he was still under the stress of nervous excitement, if not almost at the point of death. In fact the statement was



uttered few hours before he expired. His statement therefore, may be considered as a dying declaration or as part of the res gestae and, as such is admissible in evidence. The victim s statement immediately after receiving the wounds naming his assailant is legal evidence, a dying declaration or as part of the res gestae.”

People v. Cortezano, G.R. No. 140732, Jan. 29, 2002: “The same declaration may even be considered as part of the res gestae. Roderick’s declaration was made spontaneously after a startling occurrence; his statements were made before he had time to contrive or devise; and his statement concerned his attacker and the immediately attending circumstances of the attack. Thus, the statements of Roderick, uttered shortly after he was shot and hours before his death identifying the accused-appellant as the gunman qualifies both as a dying declaration and as part of the res gestae.”

Example: Poon and Panganiban fought. After the fight, Panganiban made a statement to Villar that he only fought Poon because Poon instigated the fight. Statement to Villar was an independent relevant statement.

What are examples of instances when res gestae was admitted? To establish the identity of victim; Prove complicity of another person in the crime; Establish an admission of liability on the part of the accused;

SEC. 43. Entries in the course of business. – Entries made at, or near the time of the transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. (37a)

SEC. 44. Entries in official records. – Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. (38)

SEC. 45. Commercial lists and the like. – Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein. (39)

Why is it hearsay?Person to testify, need not be the person who compiled.

What are the requisites of a commercial list (PNOC vs.CA, G.R. No. 107518 October 8, 1998)?

Under Section 45 of the aforesaid Rule, a document is a commercial list if:

(1) It is a statement of matters of interest to persons engaged in an occupation; (2) Such statement is contained in a list, register, periodical or other published compilation; (3) Said compilation is published for the use of persons engaged in that occupation, and (4) It is generally used and relied upon by persons in the same occupation.

What are commercial lists?YES NO

Mortality tables such as Carlisle or Wiggles-worth Tables, accepted actuarial and annuity tables (Regalado 795);

NEDA reports part of the newspaper which

reports the prices of shares Forbes Top 100 SCRA

Price quotationsNewspaper report

SEC. 46. Learned treatises. – A published treatise, periodical or pamphlet on a subject of history, law, science or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject. (40a)

What are examples? Historical treatises Scientific treatises Law

o Useful to prove unwritten law learned treatises on unwritten law which the court has

taken judicial notice: Manresa, Sanchez-Roman. e.g. of writers of treatises acknowledged as experts: Corpus juris, Corpus juris secundum, LRA

SEC. 47. Testimony or deposition at a former proceeding. – The Testimony or deposition of a witnesses deceased or unable to testify, given in a former case or



proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him. (41a)

7. OPINION RULESEC. 48. General rule. – The opinion of a witness is not admissible, except as indicated in the following sections. (42)

SEC. 49. Opinion of expert witness. – The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence. (43a)

May the lawyer sit on the stand as an expert witness?NO.

Who is an expert? Examples. Mechanic Medico-legal Engineer Doctor BSP Officer – to determine counterfeit money Psychiatrist Fingerprints and ballistic experts Chemist – in drug cases Collectors, if special items, such as coins, antiques

SEC. 50. Opinion of ordinary witnesses. – The opinion of a witness for which proper basis is given, may be received in evidence regarding–

(a) The identity of a person about whom he has adequate knowledge;

(b) A handwriting with which he has sufficient familiarity; and

(c) The mental sanity of a person with whom he is sufficiently acquainted.

The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person. (44a)

Are the opinions of a witness admissible as evidence?NO. The opinion of a witness is not admissible (Sec. 48, Rule 130).

Are there any exceptions (Regalado 801)?

YES. The opinion of a witness is admissible as evidence in the following instances:

On the matter requiring special knowledge, skill, experience or training which he possesses [EXPERT WITNESS]; [Sec. 49, R130]

Regarding the identity or the handwriting of a person, when he has knowledge of the person or handwriting, whether he is an ordinary or an expert witness; [Sec. 50 a & b, R130; Sec. 22, R 132]

On the mental sanity of a person, if the witness is sufficiently acquainted with the former or if the latter is an expert witness; [Sec. 50(c), R 130]

On the emotion, behavior, condition or appearance of a person which he has observed; [Sec. 50 last paragraph, R130]

On ordinary matters known to all men of common perception, such as the value of ordinary household articles; [Galian v. State Assurance Co., Ltd., 29 Phil. 413] *BUT note that the notes and Riano does not list this as an exception. Ask sir if this may still be considered as an exception. *RESOLVED: Regalado states if it’s this case, it’s supposedly within the knowledge of the court.

Galian v. State Assurance Co., Ltd., 29 Phil. 413Case stemmed from a claim on an open policy of fire insurance for household effects. The insurance company interposed the defense that the claim was fraudulent and the claimants overstated the value of the items inventoried and reported as lost. The trial court held that the plaintiff and his brother were not qualified to appraise the value of the household items. The Supreme Court disagreed.

The court ruled that the items in the inventory were, except for the jewelry, all household effects within the realm of matters familiar to ordinary persons:

“Such articles are on sale in retail shops everywhere and the prices are readily available to anyone seeking the information. Not only this, but most of them are articles which persons with a reasonably fair income purchase for their own convenience and comfort. Hence, information as to their value must necessarily be acquired by all such individuals.”

“The knowledge of values in most cases does not depend upon professional or other special skill; and witnesses without having any special experience or training as would entitle them to be called experts, may yet have gained such knowledge of the land, or other subject under inquiry, as to aid the court or jury in arriving at a conclusion. . . . Persons by their common experience and observation necessarily gain some common use by all or nearly all; and their



evidence as to such values is not excluded by the fact that experts may have more accurate knowledge as to such values. Obviously the witness must have some means of knowledge as to the nature and quality of the articles in question before he is qualified to express an opinion as to values. It would be an idle ceremony to allow witnesses to give their opinions in evidence, unless they had better means of knowledge as to the subject matter of their testimony than the jury might possess in common with all other persons. The qualification of the witness is, of course, a question for the court. (Jones on Ev., sec. 363.)”

The plaintiff was intimately acquainted with the articles described by him. He, no doubt, had purchased most of them. One could hardly expected to be in much better position to estimate the value of the articles than this.

8. CHARACTER EVIDENCESEC. 51. Character evidence not generally admissible; exceptions: -

In Criminal Cases:

The accused may prove his hood moral character which is pertinent to the moral trait involved in the offense charged.

Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved in the offense charged.

The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged.

In Civil Cases:

Evidence of the moral character of a party in a civil case is admissible only when pertinent to the issue of character involved in the case.

In the case provided for in Rule 132, Section 14. (46a, 47a)

Kind of case

Prosecution/offended party

Defense/defendant

Witness

CRIMINAL Cannot initially attack the character of the defendant.

Defense initially introduces evidence of good moral character of

Bad moral character MAY be proved By either party By the party

against who he

Can only attack as rebuttal, if defendant introduces evidence of his good moral character

the defendant in establishing his defense.

was called to witness (Sec. 11, R132); PROOF may beo Contradictor

y evidenceo Evidence

that general reputation for truth, honor or integrity is bad;

o Evidence of prior inconsistent statements to testimony;

o Evidence shown by examination of witness OR record of judgment that he has been convicted of an offense

o OTHERWISE evidence of prior wrongful acts are not admissible.

Good moral character MAY NOT be proveno UNLESS it

has been impeached (Sec. 14, R132).

Offended party’s good or bad moral character may be proven as long as evidence tends to establish the probability or improbability of the offense charged.

ACCUSED: evidence must be “pertinent to the moral trait involved in the offense charged”, e.g. honesty – estafa, perjury or false testimony.

OFFENDED PARTY: it is sufficient if evidence “may establish in any reasonable degree the probability or improbability of the offense charged” e.g.

chastity – rape or consented abduction;

homicide – pugnacious, quarrelsome or trouble-seeking character of victim is proper subject of testimony (“naghahanap ng away, basagulero”);

CIVIL Moral character of either party cannot be proven UNLESS it is pertinent to the issue of the character



involved in the case.

Character evidence of a party not admissible UNLESS issue involved is character, e.g.

civil case for damages arising from libel, slander or seduction.

Damages arising from tort; One party was negligent, for example, the driver was negligent, reckless.

Forcible entry, other party

Forgery Abuse of right, (Art.

19, 20, 21, NCC) [would depend on the facts of the case]

Appointment of executor/administrator/guardian

Breach of promise to marry

Character evidence refers to “general reputation for truth, honesty or integrity”, that which affects CREDIBILITTY.

What SPL have moral character as a pertinent trait of the offense charged?PART OF NOT PART

Carnapping Anti-alias VAWC Banking Law AMLA Plunder –the crime is mala in

se Anti-Graft Anti-Child Pornography Anti-Photo and Video

Voyeurism

BP 22 Anti-Fencing Forfeiture Wiretapping Possession of firearms AMLA Comprehensive Drugs Act

[possession of drugs of a certain amount, or possession of implements to manufacture drugs]

Anti-Trafficking Electricity Pilferage act Anti-Hazing Arson Detention of Patients for

reason of unpaid hospital bills

Anti-Graft – deposit of amount in amount of P50M; such amount exceeds your salary;

Gambling law, PD 1602 as amended by RA 9287- acting as personnel staff of a gambling den and possession of gambling paraphernalia

Obstruction of justice – failing to report and possession of stolen goods;

Anti-graft -


Evidence Reviewer r128 to r130

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Transcript of Evidence Reviewer r128 to r130