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DEAN RIANO EVIDENCE FINALS REVIEWER

1. Memorize Falsus in uno falsus in omnibus


Falsus in uno vs. Falsus in Omnibus means false in one thing, false in
everything
*interpretation is not strict
*While the witnesses may differ in their recollections of an incident, it does
not necessarily follow from their disagreements that all of them should be
disbelieved as liars and their testimonies completely discarded. It is not a
positive rule of law. The witness must have a conscious and deliberate
intention to falsify a material point.
2.

Distinguish Factum Probans vs. Factum Probandum


Factum Probandum
Factum Probans
Ultimate Facts
Material evidencing the proposition
Hypothetical
Existent.

a. Factum probandum is the fact or proposition to be established


b. Factum Probans the facts or material evidencing the fact or proposition to be
established
*Example: If P claims to have been injured by the negligence of D who denies
having been negligent, the negligence of D and the causal connection
between such negligence, and the injuries of P taken as a whole = Factum
Probandum
The evidence offered by P, whether it be object, documentary or testimonial,
constitute the materials to prove the liability of D. The totality of the evidence
to prove the liability refers to the Factum Probans
*If the defendant admits his negligence in his answer to the complaint, there
is no more need to prove negligence. Hence, negligence ceases to be a
factum probandum in this case.
*if the factum probandum signifies the fact or proposition to be established,
then matters of 1) judicial notice, 2)conclusive presumptions, 3)judicial
admissions cannot qualify as parts of the factum probandum of a particular
case, because such matters need not be established or proven.
*Factum probandum in civil case refers to the elements of a cause of action
from the point of view of the plaintiff and the elements of the defense from
the point of view of the defendant.
*In criminal cases factum probandum includes all matters that the
prosecution must prove beyond reasonable doubt in order to justify a
conviction.

3. Can Rules of Evidence be used in non-judicial proceedings?


The rules of evidence, being parts of the Rules of Court, apply only to judicial
proceedings (Sec. 1 Rule 128)
*Sec.4. In what cases not applicable. These Rules shall not apply to election
cases, land registration, cadastral, naturalization and insolvency proceeding,
and other cases not herein provided for, except by analogy or in a suppletory
character and whenever practicable and convenient.
Ex. Not applicable in Administrative bodies, CSC, Petition for naturalization,
labor cases
4. Best Evidence Rule (Original document rule) (primary evidence rule)
Concept: Original of the document must be produced; When the subject
matter of the
inquiry is the contents of a document , no evidence shall be
admissible other than the original document itself,
b. Exceptions to the rule:
i. When the original has been lost, or destroyed, or cannot be produced in
court, without bad faith on the part of the offeror;
ii. 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;
iii. 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
iv. When the original is a public record in the custody of a public officer or is
recorded in a public office.
*Involves only the contents of a writing. The rule cannot be invoked unless
the contents of a writing is the subject of judicial inquiry, in such case; the
best evidence is the original writing itself.
*Where the issue is the execution or existence of the document or the
circumstances surrounding its execution, the best evidence rule does not
apply and the testimonial evidence is admissible.
*Where the issue is only as to whether such document was actually executed,
or exists, or on the circumstance relevant to or surrounding its execution, the
best evidence rule does not apply and testimonial evidence is admissible.
*The best evidence rule applies only when the purpose is to establish the
terms of a writing. When the evidence introduced concerns some external
facet about a writing like its existence, execution or delivery without
reference to its terms, the rule cannot be invoked. The subject of inquiry
under the best evidence rule it the CONTENTS of a writing, NOT THE TRUTH
thereof. Where the truth is in issue, the hearsay rule will now be involved.

c. Illustrative applications
1994 Bar At the trial of ace for the violation of the Dangerous Drugs Act, the
prosecution offers in evidence a photocopy of the marked bills used in the
buy-bust operation. Ace objects to the introduction of the photocopy on the
ground that the Best Evidence Rule prohibits the introduction of secondary
evidence in lieu of the original is the photocopy admissible in evidence?
1. Yes, the photocopy of the bills being object evidence is admissible in evidence
without
violation of the best evidence rule. The rule applies only to
documentary evidence and not to object evidence.
a. *The reason for the best evidence rule is the prevention and detection of
fraud.
b. *The best evidence rule may be waived if not raised in the trial
c. *If the original be presented in evidence
1) Find a legal excuse for failure 2) present secondary evidence
d. If secondary evidence is to be offered in evidence, like a copy, the proponent
has to lay the basis for the admission of the copy of the document.
e. Excuses for not presenting the original
1. When the original has been lost or destroyed or cannot
be produced in court, without bad faith on the part of
the offeror;
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 cannot be examined in court without
great loss of time and the fact sought to be establish 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.
a. *How to lay the basis for presenting secondary evidence:
1. The offeror must prove the execution and existence
of the original document;
2. The offeror must show the cause of its
unavailability Loss, destruction, or unavailability
3. The offeror must show that the unavailability was
not due to his bad faith
b. Correct order of proof is as follows Existence, execution, loss, and contents.
c. Due execution and authenticity of the document must be proved either: a) by
anyone who saw the document executed or written, or by evidence of the
genuiness of the signature or handwriting of the maker.
d. When original is in the custody or control of the adverse party:
Laying the basis requires:
a. The original exists.

b. That the said document is under the custody or control of the adverse
party;
c. That the proponent of secondary evidence has given the adverse party
reasonable notice to produce the original document
d. That the adverse party failed to produce the original document despite
the reasonable notice.
e. *Waiver: Failure to object to the parole evidence presented by the adverse
party operates as a waiver of the protection of the rule.
The loan may be proved by the photocopy as long as A lays the
basis for the introduction of secondary evidence, to wit: a) the
existence and due execution of the original, and b) the loss of
the original without bad faith on his part. (Sec. 5, Rule 130)
Distinction between Best Evidence and parol Evidence
Best Evidence Rule
Parol Evidence Rule
1.
Establishes a preference for the Presupposes the original is available
original
document
over
secondary
evidence thereof.
2.
Precludes the admission of secondary Precludes the admission of other
evidence if the original document is evidence to prove the terms of a
available.
document other than the contents of the
document itself for the purpose of
varying the terms of the writing.
3.
Can be invoked by any litigant to an Can be invoked only by the parties to
action whether or not said litigant is a the document and their successors in
party to the document involved.
interest.
Applies only to written contracts and
wills.
4. Applies to all forms of writing
5. Define Parol Evidence
*Applies to agreements and will. Parol evidence means offering extrinsic
evidence that would modify, explain or add to the terms of the written
agreement. BUT it is allowed if any of the following are shown:
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;
c. The validity of the written agreement;
d. The existence of other terms agreed to by the parties or their successors in
interest after the execution of the written agreement.
And only if it is put in issue in the pleadings.
*The rule applies ONLY to contracts which the parties have decided to set
forth in writing. When n the terms of an agreement is merely oral, the parol
evidence rule should not be applied.
*Parol evidence does not apply in oral agreements, public writing, private
writing, express trust (although parol evidence applies to wills.

6. Testimonial Evidence Adverse party Read Sec. 6. Loss, Destroyed,


Unavailable Originals (Sec 5)
*Showing that the original document is in the custody or under the control of
the adverse party does not ipso facto authorize the introduction of secondary
evidence to prove its contents. The party who seeks to present secondary
evidence must lay a basis for its introduction.
Laying the basis:
1) That the original exists;
2) That the document is under the custody or control of the
adverse party;
3) That the proponent of secondary evidence has given the
adverse party reasonable notice to produce the original
document;
4) That the adverse party failed to produce the original document
despite the reasonable notice.
How to notify: motion for the production of the original or by subpoena duces
tecum, provided that the party in custody has sufficient time to produce it.
After the foundational requirement for the introduction of secondary evidence
have been complied with, secondarily evidence may now be presented as in
the case of loss. This mean that the contents of the document may now be
proven by
a copy of the document a recital of its contents in some authentic
document
By testimony of a witness in the order stated (Sec. 5 Rule 130)
7. Testimonial evidence topics not found in Rule 130
a. 132 (Sec. 3) Right of witnesses (Sec .6) Cross Exam and Sec. 11
Impeachment of
witnesses
i. Are the rights of the accused violated case of compulsory HIV testing? No.
There is no testimonial compulsion involved by extracting blood from the
accused for testing purposes. Thus, there is no violation of the right to
privacy and the right to be presumed innocent.
ii. Should DNA evidence be admitted? Yes. The right against self
incrimination applies only to testimonial evidence. Extracting blood samples
and cutting strands of hair do not involve testimonial compulsion but purely
mechanical acts which neither requires discretion or reasoning. (Tijing v.
Court of Appeals.
iii. The right against self incrimination does not apply to physical and
mechanical act. It applies only to testimonial compulsion which is not the
case under the facts.

iv. Degrading questions although degrading a witness must answer the


question if the degrading answer a) is the very fact in issue; or b) refers to a
fact from which the fact in issue would be presumed. (Rule 132)
8. What are the elements of a dying declaration? #3 exam
2. *Must comply with the following foundational elements
1. That the declaration is one made by a dying person;
2. That the declaration was made by said dying person under the
consciousness of impending death
3. That the declaration refers to the cause and circumstances
surrounding the death of the declarant and not of anyone else;
4. That the declaration is offered in a case where the declarants
death is the subject of inquiry;
5. The declarant is competent as a witness had he survived;
6. The declarant should have died.
Note: must refer to the death of the declarant, not merely injuries.
*If the declarant survives HIS DECLARATION MAY BE ADMISSIBLE AS PART OF
THE RES GESTAE.
*The former rule embodied in Supreme Court decisions, which declared that a
dying declaration is offered in a criminal case for homicide, murder, or
parricide wherein the declarant is the victim, no longer holds true. As
amended
Parts of the Res Gestae
Literally means things done. Res Gestae is the startling event of which the
spontaneous statement is only a part of.
The use of res Gestae in the Philippines is limited to two matters:
1) Spontaneous statements
a. That there is a startling occurrence taking place;
b. That statements were made while the event is taking place or
immediately prior to
or subsequent thereto;
c. The statements were made before the declarant had the time to contrive
or devise
a falsehood
d. That the statement relates to the circumstances of the startling even or
occurrence, or that the statements must concern the occurrence in
question and
its immediate attending circumstance.
2) Verbal acts Statement accompanying an equivocal act material to the
issue, and giving it a legal significance a conduct that is equivocal or
ambiguous, one which in itself does not signify anything when taken
separately (legal significance) To be admissible, the following requisites must
be present:

a. The principal act to be characterized must be equivocal (clear need not


be explained);
b. The equivocal act must be material to the issue;
c. The statement must accompany the equivocal act;
d. The statement gives a legal significance to the equivocal act

9. Exceptions to the hearsay rule, are all hearsay, but are admissible
Sec. 36 of Rule 130 ex. Which of the following is hearsay?
Hearsay
vs.
Opinion
Hearsay evidence is one that is not based on ones An opinion evidence is
personal knowledge of others to prove the truth of the based on the personal
matter asserted in an out-or-court
knowledge or personal
conclusion of the witness
based
on
his
skill,
training, or experience.
Examples of Non-hearsay evidence
a. A statement having probative worth simply by virtue of the fact that it was
uttered, if relevant to a material fact inissue is not hearsay and is
generally admissible. Where a statement is not offered for the truth of the
contents of the conversation, but only to show that it was made, then the
statement is not hearsay. For example, a statement that is offered to show
its patent falsity, so as to suggest the defendants consciousness of guilt,
is NOT hearsay.
b. A statement relating to the state of mind of the declarant and statement
relating to the state of mind of the listener, these are not hearsay, but
merely constitute circumstantial evidence of an assertion. Ex. To prove by
inference the testators state of mind, I am Stalin, Roosevelt, Saddam
Hussein, rolled into one
c. A threat against a witness may be offered in evidence to show its impact
on the witness and where the reasonableness of a persons conduct is an
issue, and out of court declaration may be offered to explain the person's
reactions to the declaration.
d. Words offered to prove hearers reaction are admissible when they are
offered to show their effect on one whose conduct is at issue.
Independent relevant statement: The newspaper clipping is admissible as
non-hearsay if offered for the purpose of showing that the statement of X was
made to a reporter regardless of the truth or falsityof the statement. If it is
relevant, it is admissible as an independent relevant statement (non hearsay)
It would be hearsay if offered to prove the truth that x was the robber.
a. Exception to the Hearsay Rule:
1.
Dying Declarations
2.
Declaration against interest
3.
Act or declaration about pedigree
4.
Family reputation or tradition regarding pedigree

5.
6.
7.
8.
9.
10.
11.

Common reputation
Parts of the res Gestae
Entries in the course of business
Entries in official records
Commercial lists
Learned treatises
Testimony or deposition at a former trial

Dying Declarations
*must be impending, near, and certain.
Declaration about pedigree
*The declaration about pedigree may be received in evidence if the
relationship is shown by evidence other than the declaration. The word
pedigree includes relationship, family genealogy, birth, marriage, death, the
dates when and the places where these facts occurred, and the names of the
relatives. It also embraces facts of family history intimately connected with
pedigree.
Entries in the course of business.
Elements:
Entries were made at, or near the time of the
transactions
Such entries were made in the regular course of
business
The person making the entries was in a position to
know the facts stated in the entries.
The person making the entries did so in a position
to know the facts stated in the entries
The person making the entries did so in his
professional capacity, or in the performance of duty
and in the regular course of business
The person making the entry is now dead or unable
to testify.
Declarations against Interest
Ex. A statement by the debtor before he died that he owes the creditor a sum
of money, or an oral acknowledgment by the principal that he received the
money previously entrusted to his agent, are clear declarations against the
interest of the person making it. Note that declaration against interest made
by the deceased, or by one unable to testify, is admissible even against the
declarants successors in interest or even against third person.
Common reputation
While common reputation in the community may establish a matter of public
or general interest, marriage or moral character, it CANNOT establish
pedigree. This is established by reputation in the family and not in the
community.

Commercial Lists and the Like


Must be made by persons engaged in that occupation and are generally used
and relied upon by them and those lists and reports are published.
Learned Treaties.
History books, published finding of scientists fall within this exception IF the
subject testifies to the expertise of the writer of if the court takes judicial
notice of such fact.
Testimony or Deposition at a Former Proceeding.
The testimony is one given in a former case or proceeding or administrative,
involving the same parties and the same subject matter. The testimony was
given by one who is now dead or unable to testify. Said testimony may be
given in evidence against the adverse party provided the latter had the
opportunity to cross-examine the witness who gave the previous testimony.
Waiver
The rules of evidence may be waived. The rules are established for the
protection of the parties. Except if the rule waived by the parties has been
established by law on grounds of public policy.
Matters need NOT be proved (ISA-JP)
1)
Immaterial allegations
2)
Facts admitted or not denied provided they have
been sufficiently alleged (Rule 8)
3)
Agreed and Admitted facts
4)
Facts subject to Judicial Notice
5)
Facts legally Presumed
Section 4. JUDICIAL ADMISSION is and admission, verbal or written, made by
a party in the course of the proceedings.
1. Elements
1)
The same must be made by a party to the case
2)
The admission must be made in the course of the proceedings
in the same case, and
3)
There is no particular form for an admission, it may either be
written or verbal.
2. Judicial Admissions may be made in
1)
Pleadings filed by the parties,
2)
In the course of trial either verbal or written manifestations or
stipulations
3)
In other stages of judicial proceedings as in the pre trial of
the case
4)
Admissions
obtained
through
depositions,
written
interrogatories or requests for admissions.

Judicial admissions can be made by either a party or counsel.

Judicial admission may be contradicted only when it is shown that


1. It was made through palpable mistake or
2. That no such admission was made.

Remedy of a party who gave a judicial admission:


In case of written judicial admission motion to withdraw the pleadings,
motion, or other written instrument containing such admission.
Judicial admissions are always conclusive upon the admitter and do not
require formal offer as evidence, unlike in the case of extra-judicial
admissions.
Rule on dismissed pleadings
Admissions made in pleadings that have been dismissed are merely
extrajudicial admission.
Admissions in civil cases
Admissions in a pleading which had been
withdrawn or superseded by and
amended pleading are considered extra
judicial admission

Disqualification
by
Marriage (sec. 22)

reason

Admissions in criminal cases


Admissions during arraignment may be
withdrawn at any time before the
judgment of conviction becomes final,
but such plea of guilty later withdrawn is
not admissible in evidence againt the
accused who made the plea.
It is not even considered an extra judicial
admission

of

Disqualification by reason of Marital


privilege (sec. 24 (a)

Can be invoke only if one of the


spouses is a party to the action

Can be claimed whether or not the


other spouse is a party to the action

Applies only if the marriage is


existing at the time the testimony is
offered
Constitutes a total prohibition for or
against the spouse of the witness

Can be claimed even after the


marriage is dissolved

The objection would be raisedon the


ground of marriage. The married
witness would not be allowed to
take the stand at all because of the
disqualification.
Even
if
the
testimony is for or against the
objecting spouse, the
spousewitness cannot testify.

Applies
only
to
confidential
communications
between
the
spouses
The married person is on the stand
but the objection of privilege is
raised when confidential marital
communication is inquired into.