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 witness
o Irrelevant: accused & offended party are GS classmates
Collateral facts/matters
Reputation is a matter of evidence

Kinds of Evidence
Positive
Negative
Direct
Circumstantial
Did or did not happen

Witness personal knowledge or perception
Goes beyond identification (Salvador Note)
Can include disavowal that something happened:
witness claims act did not occur
Did not see or know of the personal occurrence of a
fact
No personal knowledge
Autopsy (one who did)
Medico-legal
Doctor
Testimony of eye-witness
Need inference from fact, event or an act
Should be 2 or more circumstances for you to arrive at
Sources Riano, Regalado, Class Notes, Francisco, Fernando summary of Riano, Cases
Evidence Notes Atty. Tranquil Salvador III | LCP 2014A
Relevant Fact
Material Fact
Primary
Secondary
Rebuttal
Surrebuttal
a fact
Evidence is having value, is never to prove any matter,
in probable action
Directed to prove fact in issue as determined by the
rules of substantive law and pleadings
Can be documentary or testimonial evidence
Witness need not be victim, can be bystander
eyewitness, since law does not distinguish it as
primary
Document (classic example)
Cannot be presented, unless you lay basis for
presentation
Can only be presented WHEN original has been
Lost
Destroyed
In the hands of the other party
Given to explain, repel, counteract, or disprove facts
Only available for new matters brought up by
opposing counsel during the case (trial)
Presented after the other party has already presented
evidence
Not mandatory, left to sound discretion of the court
In ordinary presentation of evidence, you dont have
rebuttal unless its asked for (Salvador Note).
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.
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 DE
o Defense conduct Cross
o Redirect
o 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 letters
o defendant numbers
o 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 its value?
No. Document on its 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. Thats why lawyers avoid stipulation.
Is that considered evidence because its 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.
Its very hard to determine.
Administrative cases
Curative evidence
Conditional evidence
Prima facie evidence
substantial evidence, degree lower than preponderance of evidence;

evidence sufficient to prove for any reasonable mind; Except dismissal of
Judges clear and convincing 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;
evidence relevance is not yet certain so it can be admitted conditionally; left to
discretion of singular person;
that evidence which does not needs to be proved anymore, it establishes a
preposition
Examples
Public documents prima facie of what is contained therein
Conclusive presumption
cannot be refuted anymore
disputable presumption
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
Ultimate fact or fact to be established.
Proposition.
Factum probans
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. Mandatory
2. Discretionary without hearing
3. Discretionary with hearing
What may the court take judicial notice of?
Mandatory
Existence
and
territorial
extent
of
States
Their
political
history
Discretionary
hearing
without
Matters of public
knowledge
Common
and
general
knowledge;
Existence and
operation
accepted by the
Discretionary
hearing
with
Any
matter
during trial
Any
matter
decisive of the
issue after trial
and
before
judgment
or
on appeal
Forms
of
government
[of
government
s
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
department
s of the
Philippines
Laws
of
nature
Measure of
time
Geographic
al divisions
public without
qualification or
contention;
TEST: whether
sufficient
notoriety
attaches to the
fact involved as
to
make
it
proper
to
assume
its
existence
without proof;
Capable
of
unquestionable
demonstration
statistical
processes and
methods
Capable
of
immediate and
accurate
demonstration
by resort to
easily
accessible
sources
of
indisputed
accuracy
INCLUDE:
areas
of
science, natural
phenomena,
chronology,
technology,
geography,
statistical facts,
other fields of
professional
and
scientific
All of these can be

verified from source
materials,
like
encyclopedia,
almanac, dictionary,
etc. and these are
matters of judicial
notice by the judges.
knowledge
Ought to be
known to judges
because of their
functions
o
Ascertainable
from the court
records
o
Laws
and
rules
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 doesnt 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 didnt 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
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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 Necessary
During Trial
Covers any matter
The court
a) motu propio, on request of a
party
b) announces its intention to take
judicial notice of any matter
After trial
Only matters decisive of a material issue
The court
a) before judgment or on appeal
b) motu propio, on request of a
party
c) takes judicial notice of any
matter, and
d) 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 courts 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.
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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 Admission
Those 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.
Are disputable as a rule, where the element
of estoppel are not present
Conclusive on party making them
An judicial admission in another case is

considered an extrajudicial admission.
Cuenco v. CA
For 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
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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) EVIDENCE
SECTION 1. Object as evidence. Objects as evidence are those addressed to the senses of the court.
When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. (1a)
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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 EXCLUDED

o 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.;
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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
Cumulative
Different 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?
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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
It 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;
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.
Audio
Same procedure as video.
Xray
Same procedure as video.
How do you identify film?
They have identification at bottom,
with the name of patient and date
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 evidence
Tangible evidence played ROLE in the matter

giving rise to litigation
FOUNDATION: Prove object is the object
used in the event.
Tangible evidence illustrating matter of

importance in litigation
FOUNDATION: Show demonstrative object
fairly represents or illustrates what it is alleged
to illustrate
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Are these admissible?

Polygraphs
Courts no longer rely on lie detector

tests
Fingerprints
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 courts 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 EVIDENCE
SEC. 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 RULE
SEC. 3. Original document must be produced; exceptions. When the subject of inquiry is the contents of a
document, no evidence shall be admissible other than the original document itself, except in the following
cases:
(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the
part of the offeror;
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(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?
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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;
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o
o
Prohibited because of R132, Sec. 26 irremovability of public record UNLESS subpoenaed by the court
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 EVIDENCE
SEC. 5. When original document is unavailable. When the original document has been lost or destroyed,
or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its
unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in
some authentic document, or by the testimony of witnesses in the order stated. (4a)
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;
20
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 its 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 its 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 partys 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 partys 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
21
(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 partys 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/RECORD
o Example of secondary evidence allowed: certified true copy
REASON
o It is quite risky, it might get lost
PRESUMPTION OF REGUALIRTY ON THE CERTIFICATION
o 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 RULE

SEC. 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.
22
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 Rule
No issue as to contents of writing

what party seeks is to amend, alter,
change, vary, modify, qualify or contradict
contents
Presupposes the original document is
available in court
CONTENTS of writing AT ISSUE

What party seeks is to introduce secondary
evidence to prove contents of writing
Prohibits the varying of the terms of the

written agreement
Original writing is not available and/or there

is a dispute as to whether the writing is
original
Prohibits the introduction of substitutionary
evidence in lieu of the original document
regardless whether or not it varies the
contents of the original
23
Except as for wills, only applies to

documents contractual in nature
Applies to all kinds of writings

[ANY WRITING]
[ONLY CONTRACTS, WILLS]

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

of whether or not such party participated in
writing the document
[ANY PERSON; NO PRIVITY]
[ONLY PARTIES; 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 documents
Patent (extrinsic)
The instrument is, on its face, unintelligible.
Latent (extrinsic)
The words of the instrument are clear, but their
application to the circumstances is doubtful.
May be explained by parol evidence.
May NOT 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 matter
Ambiguity may be helped by parol evidence
24
Intermediate
Patent
Ambiguity consists of the use of equivocal words designing the person or

subject matter
Parol 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
Perusal of the instrument shows plainly that something more must be added
before the reader can determine what of several things is meant
Parol 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?
25
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)
26
GROUND
VOID
fraud or duress
incapacity of the
party thereto to
make a contract
ILLEGAL
contrary to law,
morals, public
policy
MAY BE
ADMITTED
Writing
was
fraudulently
obtained.
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
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
MAY NOT BE
ADMITTED
-----------------------------If defense, want of
capacity must be
established
by
clear
and
convincing proof
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).
27
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.
28
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 its 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 thats 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 DOCUMENTS
SEC. 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
29
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)
30
ELECTRONIC EVIDENCE
Application of the Rules on Electronic Evidence
Provisions 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 Evidence
1.
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
31
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 Evidence
Under 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.
32
Ephemeral Electronic Communications

These 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 Evidence
1.
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 Evidence
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Privileged 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 Evidence
Testimonial 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 Witness
As 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:
Cant perceive
Not perceiving
Cant make known their perception to others
iv. Mental condition, at the time of their production
for examination, render them incapable of
intelligently making known their perception to others
v. Mental maturity is such as to render them
incapable of perceiving the facts respecting which
they are examined and relating them truthfully
vi. Marital disqualificationvii. Parental and filial
privilege
i. Dead mans statute

ii. Marital communication privilege
iii. Attorney-client privilege
iv. Attorney's secretary, stenographer, or clerk
concerning any fact the knowledge of which has
been acquired in such capacity
v. Physician-Patient Privilege vi. Priest-Penitent
Privilege
vii. State Secrets
1. QUALIFICATION OF WITNESSES
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SEC. 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 perceiving
b) 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 Affirmation
When 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.
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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 Others
1. 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 Credibility
1.
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.
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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 Witness
1.
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;
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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 Incapacity
Rule 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?
38
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 Immaturity
Rule 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 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; Meaning
A 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. 00407-SC).
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.
39
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 Witness
Every 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 childs capacity:
40
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 childs 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 latters direct
descendants or ascendants. (20a)
MARITAL DISQUALIFICATION
o Absolute/Total disqualification
o Only applies DURING THE MARRIAGE
MUST be a VALID marriage

o The other spouse is a party to the action
o Cant 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
REQUISITES
41
o
o
o
Valid marriage
Existing at the time when the spouse if called to testify
The spouse is a party to the case
EXCEPTION TO MARITAL DISQUALIFICATION

o CIVIL case by ONE against the other
o CRIMINAL case committed by one against the other OR latters 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 DISQUALIFICATION

o Avoid and prevent PERJURY
o Destroy the unity of the marriage
o Identity of interest
o Prevent spousal disunity
DURATION OF DISQUALIFICATION
o During the marriage/while the marriage exists
o Terminates when
Annulled
Death
Divorce
If marriage is void, NO disqualification

MARITAL DISQUALIFICATIONS
(R130, SEC. 23)
ANY MATTER regardless of source
APPLIES: during marriage
MARITAL COMMUNICATIONS
(R130, SEC. 24)
ONLY matters PRIVILEGED in nature
APPLIES: during and after marriage
during and after marriage

means in all cases except
DEATH of the H/W (U.S. v.
42
Spouse is litigant (party to case)

INVOKED BY/WAIVED: spouse-party
when spouse called to testify
Antipolo, 37 Phil. 729)

Spouse need not be litigant (need not be
party to case)
INVOKED
BY/WAIVED:
communicating
spouse
But see Montgomery case which said it may
be waived by either spouse
Exceptions
o
o
CIVIL case by ONE against the other

CRIMINAL case committed by one against the other OR latters
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 mans statute
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.
43
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
latters 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 attorneys 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 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?
44
APPLICATION: Oppose.
ISSUED: MTQ.

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 wifes 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. Its 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, its
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.
45
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 sisters 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.
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;
46
2.
3.
Communication by client to attorney;

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 clients 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
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What is the scope of doctor-patient privilege?

Include communications of the body, observation of symptoms, results of the doctors examination, the patients condition as found by the doctor, the name of the
ailment, the nature of any operation performed, whether the injuries caused death, the physicians 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 doesnt 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 doctors secretary. Secretary asks patient who father of the child of the patients 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.
48
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 doctors 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.
(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.
49
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.
(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 its 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;
50
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 newsmans 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
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
51
3) Order of a competent court in cases of

1 a) bribery
2 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) Informers 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 Parents
o Other direct ascendants
o Children
o Other direct descendants
What is a waiver?
When you relinquish the right.
52
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
o
CIVIL CASES
CRIMINAL CASES
Same policy in Art. 215, FC

o 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 CONFESSIONS

SEC. 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. Satorre
Accused 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
Castaares, 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.
53
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?
54
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 youre her to help [tulong]. Ask ano yung gusto nilang price.
People v. Erguiza
After 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.
55
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 desist
2. Accused should have been arraigned and entry of plea
3. 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 agents
2) conspirator
3) 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.
56
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
CONFESSION
Statement of fact which DOES NOT

INVOLVE an acknowledgment of guilt
May be made by third persons
Express OR Implied
Statement of facts which involves an

acknowledgment of guilt
Can be made ONLY by the party himself
ALWAYS express
When is confession judicial or extrajudicial?

Judicial
Extrajudicial
Plea of guilt to capital, noncapital, lesser offense at

ARRAIGNMENT
AND
PLEA;
o DOES NOT include
improvident
plea,
since
can
be
withdrawn any time
before judgment
May be oral or written

Before private person
During
investigation,
before public officer
Witness
protection
program: made before
DOJ
57
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?
NO.
May EC be the basis of conviction?

NO. UNLESS accompanied by other corroborating evidence of the corpus delicti.
4. PREVIOUS CONDUCT AS EVIDENCE
58
SEC. 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
59
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];
Lets 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.
Im 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
knowledge
or
Identity
Plan,
System,
Scheme
or
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).
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 Ds workshop.
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
60
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
The like
Habit or Custom
o
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.
Negligence
As tending to show the speed of the car at the time

of the accident, evidence of the customary speed of
defendants car at such place is competent (Lord vs.
61
Manchester);
Question is whether he knew or ought to have known
the extent of the dangerin 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
sustainedtestimony
[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 defendants 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
defendants 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.
62
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 creditors 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 KNOWLEDGE
SEC. 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 another
3. 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) Waiver
2) Independently relevant evidence
63
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 business
11) Entries in official records
12) Commercial lists and the like
13) Learned treatises
14) 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
Dying declaration
Declaration against interest
Pedigree
Res gestae
NO
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?
64
The declarant. BUT the person the declaration was conveyed to can testify under res gestae.
Why is it admissible?
o Necessity
o Trustworthiness
o 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 death
3. Declaration relates to facts which the victim is competent to testify to
4. Declaration is offered in a case wherein the declarants 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,
65
against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far
contrary to declarants 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 declarants 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; theres 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
Those made by a party to a litigation or by
one in privity with or identified in legal
interest with such party.
Declarations against interest

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.
[PARTY OR PRIVITY]
[NOT PARTY OR NO PRIVITY]
Admissible whether or not the declarant is

available as witness.
Not necessarily a declaration against
interest
Person who testifies is the person making
such an admission
Admissible only when the declarant is

unavailable as witness.
Always against ones interest.
The person who made the declaration is
deceased or unable to testify; therefore,
66
Primary evidence
Used only against admitter and those who
have legal interest arising therefrom
another person or a recipient will have to

testify.
Secondary evidence
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
One of 3 exceptions to res inter alios acta
Evidence against the successor in interest
of the admitter
Admitter need not be dead or unable to
testify
Relates to title to property
Admission need not be against the
admitters interest
Admission against interest

Exception to hearsay
Evidence against even the declarant, his
successor in interest, or 3rd persons
Declarant is dead or unable to testify
Relates to any 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.
Made out-of-court and is generally not
admissible
To make it admissible is to promote
perjury and fraud.
Declaration against Interest

The person is dead or unable to testify
and it is admissible in its entirety; including
the points not against interest
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?
67
Three things:
1.
2.
3.
Declarant is dead or unable to testify

Declaration must on a fact cognizable by the declarant
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
68
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 question
o PROVEN BY: family genealogy (family history, family tree); NOT limited to oral, includes written
o 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 pedigrees source is in a sense, making an admission
Witness should be competent on his own to testify on the relationship.

BUT the declarants relationship to his family must be legitimate, and NOT his relationship to X (person whose pedigree is in question).
o It is declarants 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 (declarants 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. Declarants 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.
69
(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 persons 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
70
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 ones 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
The declarant must be dead or unable
to testify.
Witness to declaration testifies
In family reputation or tradition

There is not even a declarant to
speak of, just a witness who was
aware of an exiting family reputation
or tradition.
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?
71
NOTE:
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
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 theres no room to fabricate, no bias and interest (i.e. If Im mad at O, theres
already bias and interest.
o Chances are I might not be telling the truth; theres 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;
72
2.
3.
Monuments and inscriptions in public places;

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 reputation
2) 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 its fact of public or common knowledge, the law requires more than 30 years so
that it will have a certain level of reliability. Otherwise, its 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.
73
What are examples of evidence of common reputation?

Facts of public or general
interest more than 30 years old
Marriage
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 controversy

o
the law understands that theres 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)
Legal marriage NOT required; only a perception

o
NO requirement of 30 years; only for purposes of testimony
o
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 license
o
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 them
74
o
o
o
o
o
o
Moral character
PDA
May anak
Live together
Go to church together
Wedding ring
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 conversant
o
Spontaneous information
o
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
75
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 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.
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.
Witness is recipient of the statement
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 subsequent
thereto
relate to the circumstances of the

starling occurrence
TWO PERSONS
1) one hears the statement (res
gestae)
2) one sees the occurrence of the
equivocal
act
(personal
knowledge)
Statement must be a verbal act made at

the time the equivocal act was being
performed.
Such statements are the verbal parts of
the equivocal act, they constitute part of
the res gestae.
76
Examples
Examples
Sir stands in front of a house
When are you startled?

Startled
Excited
Res gestae in homicidal act
Dying declaration
Admissible in both civil and criminal cases.

Made by the victim
Made by:
o The victim
o The killer himself after or during the
killing (People v. Reyes, et al., 82
Phil. 563);
o A third person
Statement may precede, accompany or be
made after the act was committed
Trustworthy because of the spontaneity of
the statement
Made after the homicidal attack has been

committed
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.
77
People v. Cortezano, G.R. No. 140732, Jan. 29, 2002: The same declaration may even be considered as part of the res gestae. Rodericks 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 accusedappellant 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
78
(4) It is generally used and relied upon by persons in the same occupation.
What are commercial lists?
YES
Mortality tables such as Carlisle or Wigglesworth Tables, accepted actuarial and annuity
tables (Regalado 795);
NEDA reports
part of the newspaper which reports the prices
of shares
Forbes Top 100
SCRA
NO
Price quotations
Newspaper 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 RULE
SEC. 48. General rule. The opinion of a witness is not admissible, except as indicated in the following
sections. (42)
79
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]
80
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 its this case, its supposedly within the knowledge of the court.
Galian v. State Assurance Co., Ltd., 29 Phil. 413

Case 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 EVIDENCE
81
SEC. 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
case
of
CRIMINAL
Prosecution
/offended
party
Cannot
initially
attack the
character of
the
defendant.
Can
only
attack
as
rebuttal, if
defendant
introduces
Defense/def
endant
Witness
Defense
Bad moral character
initially
MAY be proved
introduces
By either party
evidence of
By the party
good moral
against who he
character of
was called to
the
witness
(Sec.
defendant in
11,
R132);
establishing
PROOF may be
his defense.
o Contradictor
y evidence
82
evidence of
his
good
moral
character
Offended partys 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.
CIVIL
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);
Moral character of either
Evidence
that general
reputation
for
truth,
honor
or
integrity
is
bad;
Evidence of
prior
inconsistent
statements
to testimony;
Evidence
shown
by
examination
of
witness
OR record of
judgment
that he has
been
convicted of
an offense
OTHERWIS
E evidence
of
prior
wrongful
acts are not
admissible.
Good
moral
character MAY NOT
be proven
o UNLESS
it
has
been
impeached
(Sec.
14,
83
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/administrat
or/guardian
Breach of promise
to marry
R132).
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?
84
PART OF
Carnapping
Anti-alias
VAWC
Banking Law
AMLA
Plunder the crime is mala in se
Anti-Graft
Anti-Child Pornography
Anti-Photo and Video Voyeurism
Anti-Trafficking
Electricity Pilferage act
Anti-Hazing
Arson
Detention of Patients for reason of unpaid
hospital bills
NOT PART
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-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 -
85

Evidence Reviewer r128 To r130

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Evidence Reviewer r128 To r130

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Evidence Notes Atty.

Tranquil Salvador III | LCP 2014A

Most lifted from American jurisprudence

SC currently revising rules of evidence

Most Impt R130-132

Rules of Evidence (R128, Sec 1)

Must be relevant, direct to issue.

Reputation is a matter of evidence

Did or did not happen

Evidence Notes Atty. Tranquil Salvador III | LCP 2014A

Can circumstantial evidence be enough to convict?

Evidence Notes Atty. Tranquil Salvador III | LCP 2014A

But if a fact is irrelevant BUT material?

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

If alibi is new matter, can conduct rebuttal

Rebuttal is left to the sound discretion of the court

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

Evidence Notes Atty. Tranquil Salvador III | LCP 2014A

When do you mark the document?

civil case preponderance of evidence

criminal case beyond reasonable doubt

No. Document on its own is of no value without a witness identifying it.

Preliminary marking is to speed up proceedings.

No, there should be a formal offer of documentary and testimonial evidence.

QC: pilot testing procedure, no written offer of evidence

If GAD then appeal on R45/R65

Evidence Notes Atty. Tranquil Salvador III | LCP 2014A

substantial evidence, degree lower than preponderance of evidence;

Evidence Notes Atty. Tranquil Salvador III | LCP 2014A

Do admin agencies follow the rules on evidence?

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

Evidence Notes Atty. Tranquil Salvador III | LCP 2014A

Evidence Notes Atty. Tranquil Salvador III | LCP 2014A

Evidence Notes Atty. Tranquil Salvador III | LCP 2014A

All of these can be

Judge has discretion and

Whose notice is this? Should this be personal to him?

Can court take notice of case pending in another court?

Evidence Notes Atty. Tranquil Salvador III | LCP 2014A

Evidence Notes Atty. Tranquil Salvador III | LCP 2014A

decisive of a material issue in the case. (n)

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

Help court visualize.

If court cannot visualize, can conduct ocular inspection.

Evidence Notes Atty. Tranquil Salvador III | LCP 2014A

Can status of a celebrity be of public knowledge?

Those made in the pleadings or in the

Made out of court or in another judicial

Conclusive on party making them

An judicial admission in another case is

Actionable document submitted to court

Admission by counsel of client

Document attached to pleadings

Evidence Notes Atty. Tranquil Salvador III | LCP 2014A

Would admission made in superseded pleading be a JA?

THEN present rebuttal evidence contradicting statement

Evidence Notes Atty. Tranquil Salvador III | LCP 2014A

What is object evidence?

Usually object of a crime brought to court;

MUST BE PRESENTED IN COURT