EVIDENCE BAR REVIEW
It is also
GENERAL PRINCIPLES
I. Concept of Evidence
*Evidence is the means of ascertaining in a judicial proceeding, the
truth respecting a matter of fact (Rule 128, Sec. 1).
*Evidence is adduced to address questions of facts.
 Questions of fact v. questions of law
• Questions of fact exist when the doubt
or difference arises as to the truth or falsehood of
alleged facts.
• On the other hand, questions of law
exist when the doubt or difference arises as to what
the law is on a certain set of facts.
Sources of Rules on Evidence
 Substantive
 Constitution (e.g. Art. III, Sec. 2 – unlawful
search and seizure; Sec. 3 – privacy of communication or
correspondence; Sec. 12 – rights of persons under
custodial investigation; Sec. 17 – rights of accused
against self-incrimination).
 General laws (e.g. New Civil Code, Art. 1735 –
presumption of negligence against common carrier
unless they show exercise of extraordinary diligence;
Labor Code, Art. 233 – parties’ statement during
conciliation proceedings are privileged
communications).
 Special laws (e.g. R.A. No. 7438 – rights of persons
detained or under custodial investigation; R.A. No. 8505,
Sec. 6. – Rape shield rule).
 Jurisprudence (e.g. doctrine of executive privilege, Neri v.
Senate, Akbayan v. Aquino)
 Procedural (e.g. Rules of Court, Rule on Examination of Child
Witness, Rule on DNA Evidence, Rule on Electronic Evidence,
etc.)
II. Scope of the Rules on Evidence
A. Uniform application in judicial proceedings
 Rules of evidence shall be the same in all courts and in all
trials and hearings, except as otherwise provided by law or
the Rules of Court.(Rule 128, Sec. 2).
• Evidentiary rules under the Rules of Court are
specifically applicable only in judicial proceedings.
• In quasi-judicial proceedings, the same
apply by analogy, or in a suppletory character, and
whenever practicable and convenient (Rule 1, Sec. 4).
B. Rules of evidence are procedural in nature.
 Thus, it must not diminish, increase, or modify substantive
rights (Article VIII, Section 5, par. 5, 1987 Constitution).
 New rules may be held applicable to cases pending at the
time of the change in rules as parties have no vested right
in the rules of evidence; except in criminal cases when the
new rule would permit reception of a lesser quantum of
evidence to convict. (See Article III, Section 2 of the 1987
Constitution prohibiting ex post facto laws and bill of
attainders).
C. Evidence in Civil Cases versus Evidence in Criminal Cases
Proof versus Evidence
• Proof is the effect of evidence. It is the probative effect of
evidence and is the conviction or persuasion of the mind
resulting from a consideration of the latter.
• Evidence is the cause necessary to establish proof.
the mode and manner of proving competent facts.
Factum Probans versus Factum Probandum
• Factum probans is the evidentiary fact or the fact by which
the factum probandum is to be established.
 Example: BBB’s admission that he is AAA’s father,
and/or the existence of AAA’s birth certificate
wherein BBB is indicated as AAA’s father.
• Factum probandum is the ultimate fact sought to be
established.
 Example: AAA’s uninterrupted possession of the
status of a natural child of BBB.
III. Admissibility of Evidence
A. Requisites for admissibility of evidence
1. Relevance
 Evidence is admissible when it is relevant to the issue
(Rule 128, Sec. 3).
 Evidence must have such a
relation to the fact in issue as to induce belief in its
existence or non-existence (Rule 128, Sec. 4).
 Relevance depends on the factum probandum, or the
ultimate fact sought to be proved.
 Relevance is determined by rules of logic and human
experience.
2. Competence
• The evidence must not be excluded by law or by the
Rules of Court (Rule 128, Sec. 3).
• All facts having rational probative value are admissible
unless some specific rule forbids their admission.
• Competence is an affair of logic and
law.
 Examples of exclusionary rules under the 1987
Constitution:
 The right against unreasonable searches and
seizures (Art. III, Sec. 2).
 The right to privacy of communication
and correspondence Art. III, Sec. 3).
 The rights of a person under custodial
investigation (Art. III, Sec. 12).
 The right against self-incrimination
(Art. III, Sec. 17).
 Examples of statutory exclusionary rules:
Section 201, NIRC - An instrument, document or paper which is
required by law to be stamped and which has been signed, issued,
accepted or transferred without being duly stamped, shall not be
recorded, nor shall it or any copy thereof or any record of transfer of
the same be admitted or used in evidence in any court until the
requisite stamp or stamps shall have been affixed thereto and
cancelled.
 Examples of statutory exclusionary rules:
R.A. No. 4200 (Anti-Wiretapping Act) - It shall be unlawful for any
person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using
any other device or arrangement, to secretly overhear, intercept, or
record such communication or spoken work by using a device
commonly known as a Dictaphone or dictograph or detectaphone or
walkie-talkie or tape recorder, or however otherwise described. x x x
(Section 1).
 Examples of statutory exclusionary rules:
R.A. No. 4200 (Anti-Wiretapping Act) – Any communication or
spoken word, or the existence, contents, substance, purport, effect,
or meaning of the same or any part thereof, or any information
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therein contained, obtained or secured by any person in violation of
R.A. No. 4200 shall not be admissible in evidence in any judicial,
quasi-judicial, legislative or administrative hearing or investigation
(R.A. No. 4200, Sec. 4).
 Examples of exclusionary rules under the Rules
of Court:
 Best Evidence Rule
 Parole Evidence Rule
 Hearsay Rule
B. Relevance of evidence and 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 (Rule 128, Sec. 4).
*Multiple admissibility
• When evidence is relevant and competent for two or more
purposes, such evidence should be admitted for any and all
the purposes for which it is offered provided it satisfies all
the requirements of law for its admissibility. (Regalado,
Remedial Law Compendium [Vol. II], pp. 694-695).
• Example: An extrajudicial confession may be inadmissible as
against a party who did not subscribe to it, yet such party
may use said document as evidence of lack of guilt.
*Conditional admissibility
 Where the evidence at the time it is offered appears to be
immaterial or irrelevant unless it is connected with the
other facts to be subsequently proved, such evidence may
be received on the condition that the other facts will be
proved thereafter, otherwise the evidence will be stricken
out.
 Example: AAA files an action for recovery of ownership of a
parcel of land against ZZZ. The complaint alleges that AAA is
the owner of the property. During the trial, AAA testifies
and adduces evidence that a certain XXX bought the
property from ZZZ. The testimony of XXX may be allowed if
it would be shown the chain of events that led to the
ownership of AAA of the land.
*Curative admissibility
• There is curative admissibility when a party offers an
inadmissible fact which is received because there is no
objection by the other party. The other party does not
acquire the right to introduce in reply to the same kind of
evidence, except whenever it is needed for removing an
unfair prejudice which might otherwise have ensued from
the original evidence.
• Example: In an action for damages arising from a car
accident, the plaintiff introduced evidence to show that on
several occasions the defendant in the past had injured
pedestrians because of his negligence. (This is inadmissible
under Rule 130, Section 34-Prior acts as evidence). Under
the concept of curative admissibility the court must give the
party against whom the evidence was admitted the chance
to contradict or explain the alleged past acts he committed
to counteract the prejudice which the improperly admitted
evidence may have caused.
*Direct and Circumstantial Evidence
• Direct evidence – refers to evidence that directly proves a
fact without need to make inference from another fact.
 Example: The testimony of the prosecution
witness claiming that he saw that it was actually the
deceased who attacked the accused without the latter’s
provocation is direct evidence.
• Circumstantial evidence – refers to proof of the fact or
facts from which, taken either singly or collectively, the
existence of a particular fact in dispute may be inferred as
a necessary or probable consequence.
 Example: The testimony of the victim that he dreads the
mere presence of the accused is direct evidence that the
statement was made. It is likewise circumstantial evidence
to show that this fear prevented the victim from attacking
the accused without provocation.
*Positive and negative evidence
 Positive evidence - when a witness affirms that a fact did
or did not occur. Entitled to greater weight since witness
relates matters within his personal knowledge.
 Negative evidence - a witness states that an event did not
occur or that the facts alleged to exist did not actually
exist.
*Competent and credible evidence
 Competent evidence – refers to evidence which is not
excluded by law in a particular case.
 Credibility – refers to worthiness of belief, that quality
which renders a witness worthy of belief (Black’s Law
Dictionary, 5th ed., 330). Whether or not a witness or
evidence is credible is an issue addressed to the judgment
of the trial court (People v. Castro, G.R. No. 172874, 17
December 2008).
IV. Burden of Proof and Burden of Evidence
• Burden of proof is the duty of a party to present evidence
on the facts in issue necessary to establish his claim or
defense by the amount of evidence required by law. (Rule
131, Sec. 1).
• Examples: (a) conviction in a criminal case -- proof beyond
reasonable doubt; (b) issuance of warrant after preliminary
investigation – probable cause; reasonable ground that an
offense has been committed; (b) filing of criminal
information – probable cause; prima facie evidence; (c)
civil cases – preponderance of evidence; (d) administrative
cases – substantial evidence.
• Burden of evidence is the duty resting upon a party, by
means of evidence, to create or meet a prima facie case.
• Burden of proof never shifts, while burden of evidence is
transferred from one litigant to another depending on the
progress of trial.
• Negative allegations
 Note that a negative allegation does not have to be
proven unless the same is an essential part of the cause
of action or defense.
 However, in civil cases, even if a negative allegation is an
essential part of the defense, such does not have to be
proven if it is only for the purpose of denying the
existence of a document which would properly be in the
custody of the adverse party.
 If the criminal charge is predicated on a negative
allegation or that a negative averment is an essential
element of the crime - the prosecution has the burden
of proving the charge.
 Where the negative of an issue does not permit of direct
proof, or where the facts are more immediately within
the knowledge of the accused, the onus probandi rests
on him.
• Equipoise or Equiponderance Doctrine.
• Where the evidence on an issue of fact is in equipoise or
there is doubt on which side the evidence
preponderates, the party having the burden of proof
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 fails upon that issue (Rivera v. Court of Appeals, et al.,
G.R. No. 115625, January 23, 1998).
• Therefore, as neither party was able to make out a case,
neither side could establish its cause of action and
prevail with the evidence it had. They are thus no better
off than before they proceeded to litigate, and, as a
consequence thereof, the courts can only leave them as
they are (Rivera, supra citing Municipality of Candijay,
Bohol v. Court of Appeals, 251 SCRA 530).
• The equipoise rule finds application if the inculpatory
facts and circumstances are capable of two or more
explanations, one of which is consistent with the
innocence of the accused and the other consistent with
his guilt, for then the evidence does not fulfil the test of
moral certainty, and does not suffice to produce a
conviction. (Bernardino v. People, G.R. Nos. 170453 and
170518, 30 October 2006, 506 SCRA 237, 25).
V. Presumptions
• Presumption – is an inference of an existence or non-
existence of a fact which courts are permitted to draw
from the proof of other facts.
A. Presumption compared with judicial notice and admissions:
• In presumption, proponent still has to introduce
evidence of the basis of the presumption.
• In judicial notice and judicial admission, as a rule,
proponent does not have to introduce evidence.
• Presumptions
B. Classification of Presumptions
1. Conclusive presumptions
Conclusive presumptions are not permitted to be overcome by any
proof to the contrary
Conclusive presumptions:
 Whenever a party has, by his own declaration, act, or omission,
intentionally and deliberately led another to believe a particular
thing true, and to act upon such belief, he cannot, in any
litigation arising out of such declaration, act or omission, be
permitted to falsify it (Rule 131, Sec. 2 [a]).
 The tenant is not permitted to deny the title of his landlord at
the time of the commencement of the relation of landlord and
tenant between them. (Rule 131, Sec. 2 [b]).
2. Disputable presumptions
Disputable presumptions are those which the law permits to be
overcome or contradicted.
Disputable presumptions (under Rule 131, Section 3):
(a) That a person is innocent of crime or wrong;
(b) That an unlawful act was done with an unlawful intent;
(c) That a person intends the ordinary consequences of his voluntary
act;
(d) That a person takes ordinary care of his concerns;
(e) That evidence wilfully suppressed would be adverse if produced;
(f) That money paid by one to another was due to the latter;
(g) That a thing delivered by one to another belonged to the latter;
(h) That an obligation delivered up to the debtor has been paid;
(i)That prior rents or instalments had been paid when a receipt for
the later ones is produced;
(j)That a person found in possession of a thing taken in the doing of
a recent wrongful act is the taker and the doer of the whole act;
otherwise, that things which a person possesses, or exercises acts of
ownership over, are owned by him;
(k) That a person in possession of an order on himself for the
payment of the money, or the delivery of anything, has paid the
money or delivered the thing accordingly;
(l)That a person acting in a public office was regularly appointed or
elected to it;
(m) That official duty has been regularly performed;
(n) That a court, or judge acting as such, whether in the Philippines
or elsewhere, was acting in the lawful exercise of jurisdiction;
(o) That all the matters within an issue raised in a case were laid
before the court and passed upon by it; and in like manner that all
matters within an issue raised in a dispute submitted for arbitration
were laid before the arbitrators and passed upon by them;
(p) That private transactions have been fair and regular;
(q) That the ordinary course of business has been followed;
(r) That there was a sufficient consideration for a contract;
(s) That a negotiable instrument was given or indorsed for a
sufficient consideration;
(t)That an indorsement of a negotiable instrument was made before
the instrument was overdue and at the place where the instrument
is dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was received in the regular
course of the mail;
(w) That after an absence of seven years, it being unknown whether
or not the absentee still lives, he is considered dead for all purposes,
except for those of succession. The absentee shall not be considered
dead for the purpose of opening his succession till after an absence
of ten years. If he disappeared after the age of seventy-five years, an
absence of five years shall be sufficient in order that his succession
may be opened.
*The following shall be considered dead for all purposes including
the division of the estate among the heirs:
(1)A person on board a vessel lost during a sea voyage, or an aircraf
which is missing, who has not been heard of for four years since the
loss of the vessel or aircraf;
(2)A member of the armed forces who has taken part in armed
hostilities, and has been missing for four years;
(3)A person who has been in danger of death under other
circumstances and whose existence has not been known for four
years;
(4)If a married person has been absent for four consecutive years,
the spouse present may contract a subsequent marriage if he or she
has a well-founded belief that the absent spouse is already dead. In
case of disappearance, where there is danger of death under the
circumstances hereinabove provided, an absence of only two years
shall be sufficient for the purpose of contracting a subsequent
marriage. However, in any case, before marrying again, the spouse
present must institute a summary proceeding as provided in the
Family Code and in the rules for a declaration of presumptive death
of the absentee, without prejudice to the effect of reappearance of
the absent spouse.
(x) That acquiescence resulted from a belief that the thing
acquiesced in was conformable to the law or fact;
(y) That things have happened according to the ordinary course of
nature and the ordinary habits of life;
(z) That persons acting as co-partners have entered into a contract of
co-partnership;
(aa) That a man and woman deporting themselves as husband and
wife have entered into a lawful contract of marriage;
(bb) That property acquired by a man and a woman who are
capacitated to marry each other and who live exclusively with
each other as husband and wife without the benefit of marriage
or under a void marriage, has been obtained by their joint efforts,
work or industry.
(cc) That in cases of cohabitation by a man and a woman who are
not capacitated to marry each other and who have acquired
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 property through their actual joint contribution of money,
property or industry, such contributions and their corresponding
shares including joint deposits of money and evidences of credit
are equal.
(dd) That if the marriage is terminated and the mother contracted
another marriage within three hundred days after such
termination of the former marriage, these rules shall govern in the
absence of proof to the contrary:
(1) A child born before one hundred eighty days after the
solemnization of the subsequent marriage is considered to
have been conceived during the former marriage, provided it
be born within three hundred days after the termination of
the former marriage;
(2) A child born after one hundred eighty days following the
celebration of the subsequent marriage is considered to have
been conceived during such marriage, even though it be born
within the three hundred days after the termination of the
former marriage.
(ee) That a thing once proved to exist continues as long as is usual
with things of that nature;
(ff) That the law has been obeyed;
(gg) That a printed or published book, purporting to be printed or
published by public authority, was so printed or published;
(hh) That a printed or published book, purporting to contain reports
of cases adjudged in tribunals of the country where the book is
published, contains correct reports of such cases;
(ii) That a trustee or other person whose duty it was to convey real
property to a particular person has actually conveyed it to him when
such presumption is necessary to perfect the title of such person or
his successor in interest;
(jj) That except for purposes of succession, when two persons perish
in the same calamity, such as wreck, battle, or conflagration, and it is
not shown who died first, and there are no particular circumstances
from which it can be inferred, the survivorship is determined from
the probabilities resulting from the strength and age of the sexes,
according to the following rules:
1. If both were under the age of fifteen years, the older is
deemed to have survived;
2. If both were above the age of sixty, the younger is deemed to
have survived;
3. If one is under fifteen and the other above sixty, the former is
deemed to have survived;
4. If both be over fifteen and under sixty, and the sex be
different, the male is deemed to have survived; if the sex be the
same, the older;
5. If one be under fifteen or over sixty, and the other between
those ages, the latter is deemed to have survived.
(kk) That if there is a doubt, as between two or more persons who
are called to succeed each other, as to which of them died first,
whoever alleges the death of one prior to the other, shall prove the
same; in the absence of proof, they shall be considered to have died
at the same time.
C. Some notes on disputable presumptions under Rule 131, Section
3 a conviction beyond reasonable doubt. (Rule 133, Sec. 4).
Wilful suppression of evidence (par. e)
• Requisites:
• The evidence is material.
• Party had the opportunity to produce
the same.
• Said evidence is available only to said
party.
• Presumption does not apply:
• If the evidence is at the disposal of both parties.
(People v. Ducay, 225 SCRA 1).
• The suppression was not wilful.
• The suppressed evidence is merely corroborative or
cumulative.
• The suppression is an exercise of a privilege (People v.
Navaja, 220 SCRA 624).
Presumption of authorship of a recent lawful act (par. j)
The rationale for this presumption is similar to the rationale for the
presumption of authorship of falsification, which states that in the
absence of satisfactory explanation, one found in possession of and
who used a forged document is the forger of said document. If a
person had in his possession a falsified document and he made use
of it, taking advantage of it and profiting thereby, the clear
presumption is that he is the material author of the falsification.
(Lastrilla v. Granada, G.R. No. 160257, 31 January 2006).
• Liberal Construction of the Rules of Evidence
• Rule 1, Section 6 of the Rules of Court states that the
“[r]ules shall be liberally construed in order to promote
their objective of securing a just, speedy and inexpensive
disposition of every action and proceeding.”
• Liberal Construction of the Rules of Evidence
• Clarification:
Procedural rules are tools designed to facilitate the adjudication of
cases. Courts and litigants alike are thus enjoined to abide strictly by
the rules. And while the Court, in some instances, allows a relaxation
in the application of the rules, this…was never intended to forge a
bastion for erring litigants to violate the rules with impunity. The
liberality in the interpretation and application of the rules applies
only to proper cases and under justifiable causes and circumstances.
While it is true that litigation is not a game of technicalities, it is
equally true that every case must be prosecuted in accordance with
the prescribed procedure to insure an orderly and speedy
administration of justice (Alamayari v. Pabale, G.R. No. 182924, 24
December 2008).
VI. Quantum of Evidence
a) Proof beyond reasonable doubt
 Proof beyond reasonable doubt is that degree of proof which
produces conviction in an unprejudiced mind.
 Proof beyond reasonable doubt is required in criminal cases.
 Absolute certainty is not required, only moral certainty.
• N.B. An extrajudicial confession made by an accused, is not a
sufficient ground for conviction UNLESS corroborated by
evidence of corpus delicti. (Rule 133, Sec. 3).
• Requisites for circumstantial evidence to be sufficient for
conviction:
 There is more than 1 circumstance;
 The facts from which the inferences are derived are proven;
and
 The combination of all the circumstances is such as to produce
b) Preponderance of evidence
 Preponderance of evidence is required in civil cases
 In determining preponderance of evidence, the court may
consider:
• All the facts and circumstances of the case;
• The witnesses’ manner of testifying;
• Their intelligence;
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 • Their means and opportunity of knowing the facts to
which they testify;
• The probability or improbability of their testimony;
• Their interest or want of interest;
• Personal credibility so far as the same may legitimately
appear upon the trial;
• Number of witnesses (note preponderance is not
necessarily equivalent with the no. of witnesses).
c) Substantial evidence
Substantial evidence is that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a conclusion.
In cases filed before administrative or quasi-judicial bodies, a fact
may be deemed established if it is supported by substantial
evidence, or that amount of relevant evidence which a reasonable
mind might accept as adequate to justify a conclusion.
d) Clear and convincing evidence
Evidence is clear and convincing if it produces in the mind of the trier
of fact a firm belief or conviction as to allegations sought to be
established. It is intermediate, being more than preponderance, but
not to the extent of such certainty as required beyond reasonable
doubt in criminal cases (Black’s Law Dictionary, 5th ed., 227).
Power of the court to stop further evidence
The court may stop the introduction of further testimony upon any
particular point when the evidence upon it is already so full that
more witnesses to the same point cannot be reasonably expected to
be additionally persuasive. But this power should be exercised with
caution. (Rule 133, Sec. 6)
Evidence on motion
When a motion is based on facts not appearing of record the court
may hear the matter on affidavits or depositions presented by the
respective parties, but the court may direct that the matter be heard
wholly or partly on oral testimony or depositions. (Rule 133, Sec. 7).
Examples of motions which require presentation of evidence:
 Motion for bail;
 Application for TRO/injunction;
 Motion to dismiss.
VII. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS
A. What Need Not Be Proved
• The following need not be proved:
1. Facts which a court shall or may take judicial notice of
(Rule 129, Secs. 1 and 2);
2. Judicial admissions (Rule 129, Sec. 4);
3. Conclusive presumptions;
4. Disputable presumptions not disputed;
5. Res Ipsa Loquitur (Latin for “the thing or the transaction
speaks for itself.”)
• Matters of Judicial Notice
a) Mandatory
• Court is compelled to take judicial notice; takes place at
the court's own initiative.
• The court shall take mandatory judicial notice of the
following (Rule 129, Sec. 1):
 Existence and territorial extent of states;
 Their political history;
 Forms of government;
 Symbols of nationality;
 Law of nations;
• Matters of Judicial Notice
a) Mandatory
• The court shall take mandatory judicial notice of the
following (Rule 129, Sec. 1):
 Admiralty and maritime courts of the world and
their seals;
 Political constitution and history of the
Philippines.
 Official acts of the legislative, executive, and
judicial departments of the Philippines;
 Laws of nature;
 Measure of time;
 Geographical divisions.
• Matters of Judicial Notice
b) Discretionary
• Court may take place at the court's initiative, or on request
of a party; requires a hearing and presentation of
evidence.
• Judicial notice is discretionary in the following:
 Matters of public knowledge;
 Matters capable of unquestionable
demonstration;
 Matters which ought to be known to judges
because of their judicial functions.
• Matters of Judicial Notice
b) Discretionary
• When hearing is necessary (Rule 129, Sec. 3)
During the trial, the court, on its own initiative, or on request of a
party, may announce its intention to take judicial notice of any
matter and allow the parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper court,
on its own initiative or on request of a party, may take judicial notice
of any matter and allow the parties to be heard thereon if such
matter is decisive of a material issue in the case.
• Matters of Judicial Notice
b) Discretionary
• Examples of matters of public knowledge:
 Giving of tips, especially in a first rate hotel, is an
accepted practice which the Court can take
judicial notice of (PAL v. CA, 257 SCRA 33, 1997).
 The current practice among major
establishments to accept payment by means of
credit cards in lieu of cash (Mandarin Villa v. CA,
257 SCRA 538).
 Scientific findings that drug abuse can damage
the mental faculties of the use. (Bughaw, Jr. v.
Treasure Isle Industrial Corporation, G.R. No.
169606, November 27, 2009).
 Filipina’s inbred modesty and antipathy in airing
publicly things which affect her honor. (People v.
Alfeche, 294 SCRA 352).
• Judicial Admissions
• Judicial admission is an admission, verbal or written, made
by a party in the course of the proceedings in the same
case, does not require proof. (Rule 129, Sec. 4).
• The admission may be contradicted only by showing that it
was made through palpable mistake or that no such
admission was made. (Rule 129, Sec. 4).
• Judicial Admissions
• Judicial admissions may be made in:
 Pleadings filed by the parties; or
 During the course of the trial, either by verbal or
written manifestations or stipulations.
• A judicial admission must be made in the same case in
which it is offered. If made in another case or in another
court, it must be proven as in any other fact, but entitled
greater weight. This is admissible unless:
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  Made only for purposes of the first case;
 Withdrawn with the permission of the court; and
 Court deems it proper to relieve the party.
• Judicial Admissions
• Examples/Forms of Judicial Admissions
 Implied admissions of allegations of usury and in
actionable documents if not specifically denied
under oath (Rule 8, Secs. 8 and 11).
 Admissions during pre-trial in civil and criminal
cases. (N.B.: In criminal cases the admission must
be reduced in writing and signed by accused and
counsel [Rule 118, Sec. 4]).
 Admissions in superseded pleadings may be
received in evidence against the pleader. (Rule
10, Sec. 8). These are treated as extrajudicial
admissions which must be proven as fact.
• Judicial Admissions
 Examples/Forms of Judicial Admissions
 Implied admissions in the modes of discovery
(Depositions; Interrogatories – Rule 23; Failure to
specifically deny under oath within 15 days a
Request for Admission in a pending case – Rule
26).
 Plea of guilt in criminal case (N.B.: A withdrawn
plea of guilt is inadmissible, unlike in civil cases
where a withdrawn judicial admission is
considered an extrajudicial admission).
 Judicial Admissions
 Examples/Forms of Judicial Admissions
 Admissions by counsel are generally conclusive
upon a client absent any gross negligence which
deprives counsel of due process of law or there
is outright deprivation of property or liberty
(Cuenco v. Talisay Tourist Sports Complex, G.R.
No. 174154, 17 October 2008).
 Judicial Admissions
a) Effect of judicial admissions
Judicial admissions have the following effects:
 A matter admitted need no longer be proved;
 The matter admitted cannot be contradicted
because they are conclusive upon the party
making it.
• Judicial Admissions
b) How judicial admissions may be contradicted
Judicial admissions may be contradicted in the following instances:
 Upon a showing that the admission was made through
palpable mistake; and
 When it is shown that no such admission was made.
• Judicial Notice of Foreign Laws, Law of Nations and
Municipal Ordinance
Foreign laws
• Foreign laws may be taken judicial notice in the following
instances:
 When the foreign law refers to the law of
nations. (Rule 129, Sec. 1).
 When the court takes judicial notice of a
published treatise, periodical or pamphlet on a
subject of law as a learned treatise. (Rule 130,
Sec. 46).
• Judicial Notice of Foreign Laws, Law of Nations and
Municipal Ordinance
Foreign laws
• Foreign laws may be taken judicial notice in the following
instances:
 When the foreign statute is accepted by the
Philippine government (Republic v. Guanzon, 61
SCRA 360).
 When a foreign judgment containing foreign law
is recognized for enforcement. (Rule 39, Sec.
48).
 If the foreign law refers to common law doctrines
and rules from which many of our laws were
derived. (Alzua v. Johnson, 21 Phil. 308).
• Judicial Notice of Foreign Laws, Law of Nations and
Municipal Ordinance
Foreign laws
 Doctrine of Processual Presumption – Under this
doctrine, the foreign law is considered the same
as the law of the forum. It arises if the foreign
law, though properly applicable is either not
alleged or if alleged is not duly proved before a
competent court.
• Judicial Notice of Foreign Laws, Law of Nations and
Municipal Ordinance
Foreign laws
To prove foreign law, the party invoking it must present a copy
thereof and comply with Rules 132, Sections 24 and 25 of the Rules
of Court which states:
SEC. 24. Proof of official record. — The record of public
documents referred to in paragraph (a) of Section 19, when
admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having the
legal custody of the record, or by his deputy, and accompanied, if the
record is not kept in the Philippines, with a certificate that such
officer has the custody. If the office in which the record is kept is in
a foreign country, the certificate may be made by a secretary of the
embassy or legation, consul general, consul, vice consul, or
consular agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the record is
kept, and authenticated by the seal of his office.
• Judicial Notice of Foreign Laws, Law of Nations and
Municipal Ordinance
Foreign laws
To prove foreign law, the party invoking it must present a copy
thereof and comply with Rules 132, Sections 24 and 25 of the Rules
of Court which states:
SEC. 25. What attestation of copy must state. — Whenever a copy
of a document or record is attested for the purpose of the evidence,
the attestation must state, in substance, that the copy is a correct
copy of the original, or a specific part thereof, as the case may be.
The attestation must be under the official seal of the attesting officer,
if there be any, or if he be the clerk of a court having a seal, under
the seal of such court.
• Judicial Notice of Foreign Laws, Law of Nations and
Municipal Ordinance
Law of Nations
• Under the 1987 Constitution, the Philippines adopts the
generally accepted principles of international law as part of
the law of the land. Being part of the law of the land, they
are therefore technically in the nature of local laws and
thus subject to mandatory judicial notice (cf. Section 2, Art.
II of the 1987 Constitution)
• Judicial Notice of Foreign Laws, Law of Nations and
Municipal Ordinance
Municipal ordinances
6
  Generally, courts are required to take judicial
notice of laws. However, courts are not
mandated to take judicial notice of municipal
ordinances unless the charter of the concerned
city provides for such judicial notice. (City of
Manila v. Garcia, 1967). But inferior courts sitting
in the respective municipalities or cities are
mandated to take judicial notice thereof. The
reason is that violations of the ordinances are
usually vested to the inferior courts exclusively in
the exercise of their original jurisdiction.
 If an inferior court took judicial notice of a fact
and there was an appeal, such court taking the
appeal should likewise take judicial notice. (U.S.
v. Blanco, 37 Phil. 126).
• Judicial Notice of Foreign Laws, Law of Nations and
Municipal Ordinance
Court Orders
 Courts are required to take judicial notice of the
decisions of appellate courts but not of the
decisions of coordinate courts.
 In fact, a court may not take judicial notice of the
decision or the facts involved in another case
tried by the same court itself unless the parties
introduce the same in evidence or doing so is
convenient.
• OBJECT (REAL) EVIDENCE
• Object (Real) Evidence
Objects as evidence are those addressed to the senses of the court
(Rule 130, Sec. 1).
• Nature of Object Evidence
 Object evidence includes any article or object
which may be known or perceived by the use of
any of the senses – sight (visual), hearing
(auditory), touch (tactile), taste (gustatory), or
smell (olfactory).
• Nature of Object Evidence
• Object Evidence includes:
 Examination of the anatomy of a person or of
any substance taken therefrom;
 Conduct of tests, demonstrations, or
experiments;
 Examination of representative portrayals of the
object in question;
 Documents – only if the same are presented for
the ff. purposes:
• To prove their existence or condition or
the nature of the handwritings
thereon;
• To determine the age of the paper
used or the blemishes or alterations
thereon.
• Requisites for Admissibility
• When an object is relevant to the fact in issue, it may be
exhibited to, examined or viewed by the court (Rule 130,
Sec. 1).
• Court may refuse introduction of object evidence and rely
on testimonial evidence alone if:
 Exhibition of such object is contrary to public policy,
morals or decency.
• But if viewing is necessary in the interest
of justice, the evidence may still be exhibited
but the court may exclude the public from
such view
• Viewing may not be refused if the indecent or
immoral object constitutes the very basis for
the criminal or civil action.
Requisites for Admissibility
• To require its being viewed in court or in an ocular inspection
would result in delays, inconvenience and expenses out of
proportion to the evidentiary value of such object;
• Such object evidence would be confusing or misleading;
• Testimonial or documentary evidence already presented
clearly portrays the object in question as to render viewing
unnecessary.
Categories of Object Evidence
• The following are categories of object evidence:
 Unique Objects or objects that have readily
identifiable marks
• Example: caliber revolver with serial
number
 Objects made unique or objects that are made
readily identifiable
• Example: knife with the name of the
owner
 Non-unique objects or objects with no
identifying marks and cannot be marked.
• Example: drugs in powder form
Demonstrative Evidence
• Demonstrative evidence is evidence in the form of a
representation of an object. This is, as opposed to, real
evidence, testimony, or other forms of evidence used at
trial.
• Examples: photos, x-rays, videotapes, movies, sound
recordings, diagrams, forensic animation, maps, drawings,
graphs, animation, simulations, and models.
• Demonstrative evidence is useful in assisting a finder of
fact (fact-finder) in establishing context among the facts
presented in a case.
View of an Object or Scene
• Autoptic proference, in legal parlance, simply means a
tribunal's self-perception, or autopsy, of the thing itself.
(Balingit v. COMELEC, G.R. No. 170300, 9 February 2007).
• It is referred to as the evidential datum which decision-
makers will perceive using their five senses (Anderson,
Schum, and Twining, Analysis of Evidence, 2nd Ed.).
Chain of custody, in relation to Section 21 of the Comprehensive
Dangerous Drugs Act of 2002
The Chain of Custody Rule
• As a method of authenticating evidence, the chain of
custody rule requires that the admission of an exhibit be
preceded by evidence sufficient to support a finding that
the matter in question is what the proponent claims it to
be.
• It would include testimony about every link in the chain,
from the moment the item was picked up to the time it is
offered into evidence, in such a way that every person who
touched the exhibit would describe how and from whom it
was received, where it was and what happened to it while
in the witnesses' possession, the condition in which it was
received and the condition in which it was delivered to the
next link in the chain.
• These witnesses would then describe the precautions
taken to ensure that there had been no change in the
7
 condition of the item and no opportunity for someone not
in the chain to have possession of the same. (People v.
Kamad, G.R. No. 174198, 19 January 2010).
Essential links in the chain of custody of seized illegal drugs
– The following are the links that must be established in the
chain of custody of seized illegal drugs: first, the seizure and
marking, if practicable, of the illegal drug recovered from
the accused by the apprehending officer; second, the
turnover of the illegal drug seized by the apprehending
officer to the investigating officer; third, the turnover by the
investigating officer of the illegal drug to the forensic
chemist for laboratory examination; and fourth, the
turnover and submission of the marked illegal drug seized
from the forensic chemist to the court. (People v. Fermin
and Madayag, Jr., G.R. No. 179344, 3 August 2011).
– As provided by the implementing rules and jurisprudence,
strict compliance of the requisites under Section 21 of
Republic Act No. 9165 can be disregarded as long as the
evidentiary value and integrity of the illegal drug are
properly preserved; and its preservation can be well
established if the chain of custody of illegal drug was
unbroken. (People v. Fermin and Madayag, Jr., G.R. No.
179344, 3 August 2011).
Testimony on perfect chain not required
• The Supreme Court held that, “undeniably, a testimony
about a perfect chain is not always the standard as it is
almost always impossible to obtain an unbroken
chain...what is of utmost importance is the preservation
of the integrity and the evidentiary value of the seized
items.”
• An astute perusal of Section 21of the IRR of RA 9165
readily reveals that the custodial chain rule is not to be
rigorously applied, provided "the integrity and
evidentiary value of the seized items are properly
preserved by the apprehending officer/team." Thus, the
supposed procedural infirmities alleged by Quiamanlon
with regard to the custody, photographing, inventory, and
marking of the seized items do not, in any manner, affect
the prosecution of the instant case and do not render her
arrest illegal or the items seized from her inadmissible
(People v. Quiamanlon, G.R. No. 191198, 26 January 2011).
Presentation of confidential informant not indispensable
• The non-presentation of the confidential informant is not
fatal to the prosecution’s case. The presentation of an
informant is not a requisite in the prosecution of drug
cases. The failure to present the informant does not vitiate
the prosecution’s cause as his testimony is not
indispensable to a successful prosecution for drug-pushing
since it would be merely corroborative of, and cumulative
with, that of the poseur-buyer who was presented in court
and testified on the facts and circumstances of the sale
and delivery of the prohibited drug. (People v. Andres, G.R.
No. 193184, 7 February 2011).
Failure to immediately mark seized drugs
• The failure to immediately mark seized drugs will not
automatically impair the integrity of chain of custody as
long as the integrity and the evidentiary value of the
seized items have been preserved, as these would be
utilized in the determination of the guilt or innocence of
the accused. What is essential is that the police officers
account for the crucial links in the chain of custody of
seized illegal drugs. (People v. Morales, G.R. No. 188608, 9
February 2011).
Failure to take photographs and inventory the same is not fatal as
long as the integrity and evidentiary value of seized illegal drugs
were preserved
• In People v. Presas (G.R. No. 182525, 2 March 2011), the
Supreme Court noted that the failure of the prosecution to
show that the police officers conducted the required
physical inventory and photograph of the evidence
confiscated pursuant to said guidelines, does not
automatically render accused’s arrest illegal or the items
seized from him inadmissible.
• Notably, the implementing rules of the IRR provide that
"non-compliance with these requirements under justifiable
grounds, as long as the integrity and the evidentiary value
of the seized items are properly preserved by the
apprehending officer/team, shall not render void and
invalid such seizures of and custody over said items." The
same provision also states that it must still be shown that
there exists justifiable grounds and proof that the integrity
and evidentiary value of the evidence have been
preserved.
Presumption of regularity, standing alone, cannot defeat the
presumption of innocence
• The presumption that the police officers regularly
performed their duty cannot, standing alone, defeat the
presumption of innocence of the accused. Generally, law
enforcers are presumed to have regularly performed their
duty, but this is a mere procedural presumption which
cannot overturn the constitutionally recognized
presumption of innocence of the accused where lapses in
the buy bust operation are shown. An effect of this lapse,
as held in Lopez v. People, is to negate the presumption
that official duties have been regularly performed by the
police officers. Any taint of irregularity affects the whole
performance and should make the presumption
unavailable. (People v. Martin, G.R. No. 193234, 19
October 2011)
VII.RULE ON DNA EVIDENCE (A.M. NO. 06-11-5-SC)
a) Meaning of DNA
– “DNA” means deoxyribonucleic acid, which is the chain of
molecules found in every nucleated cell of the body. The totality
of an individual's DNA is unique for the individual, except
identical twin. (Sec. 3 [b], A.M. No. 06-11-5-SC).
b) Applicable for DNA testing order
– Who may issue a DNA Testing Order?
• The appropriate court, at any time, either motu proprio or
on application of any person who has a legal interest in the
matter in litigation. (Sec. 4)
• The Rule on DNA Evidence does not preclude the conduct of
DNA testing, without need of a prior court order, at the
behest of any party, including law enforcement agencies,
before a suit or proceeding is commenced.
o Conditions of issuance:
 (1) Due notice and hearing; and
 (2) a showing that:
(a) A biological sample exists that is relevant to the case;
(b) The biological sample: (i) was not previously subjected to
the type of DNA testing now requested; or (ii) was previously
subjected to DNA testing, but the results may require
confirmation for good reasons;
(c) The DNA testing uses a scientifically valid technique;
8
 (d) The DNA testing has the scientific potential to produce new
information that is relevant to the proper resolution of the case;
and
(e) The existence of other factors, if any, which the court may
consider as potentially affecting the accuracy or integrity of the
DNA testing.
– Contents of DNA Testing Order
• If the court finds that the requirements in Section 4 have been
complied with, the court shall –
(a) Order that biological samples be taken from any person or crime
scene evidence;
(b) Impose reasonable conditions on DNA testing designed to
protect the integrity of the biological sample, the testing process and
the reliability of the test results, and
(c) Issue an order requiring all parties to the case or proceedings to
witness the DNA testing to be conducted if there not enough
samples for confirmatory testing of the other party (Section 5).
– The court my order that the result of the DNA testing be
simultaneously released to the parties. (Section 5).
– N.B.: An order granting the DNA testing shall be immediately
executory and shall not be appealable.
– Any petition for certiorari initiated therefrom shall not, in any
way, stay the implementation thereof, unless a higher court
issues an injunctive order (Section 5).
– The grant of a DNA testing application shall not be construed
as an automatic admission into evidence of any component of
the DNA evidence that may be obtained as a result thereof.
c) Post-conviction DNA testing; remedy
– Court order is not required.
– This remedy is available to the prosecution or any person
convicted by final and executory judgment provided that:
(a) a biological sample exists;
(b) such sample is relevant to the case; and
(c) the testing would probably result in the reversal or modification
of the judgment of conviction (Section 6)
– Remedy if the results are favorable to the
convict
• File a petition for a writ of habeas corpus in the court of origin. A
similar petition may be filed either in the Court of Appeals or the
Supreme Court, or with any member of said courts, which may
conduct a hearing thereon or remand the petition to the court of
origin and issue the appropriate orders.
• In case the court, after due hearing, finds the petition to be
meritorious, it shall reverse or modify the judgment of conviction
and order the release of the convict, unless continued detention
is justified for a lawful cause. (Section 10).
d) Assessment of probative value of DNA evidence and
admissibility
– Factors considered in the assessment of probative value of DNA
evidence:
(a) The chain of custody (i.e., handling and collection biological
samples; possibility of contamination of the samples)
(b) The DNA testing methodology, including the procedure followed
in analyzing the samples, the advantages and disadvantages of the
procedure, and compliance with the scientifically valid standards in
conducting the tests;
(c) The forensic DNA laboratory, including accreditation by any
reputable standards-setting institution and the qualification of the
analyst who conducted the tests.
(d) The reliability of the testing results
– Factors considered in the assessment of probative value of DNA
evidence:
• N.B.: If the laboratory is not accredited, the relevant experience
of the laboratory in forensic casework and credibility must be
properly established (Section 7[b])
• The provisions of the Rules of Court concerning the appreciation
of evidence shall apply suppletorily in assessing the probative
value of DNA evidence (Section 7, par. 2).
• Evaluation of DNA Testing Results; Factors
(a) The evaluation of the weight of matching DNA evidence or the
relevance of mismatching DNA evidence;
(b) The results of the DNA testing in the light of the totality of the
other evidence presented in the case; and
(c) DNA results that exclude the putative parent from paternity shall
be conclusive proof of non-paternity (Section 9).
– If the value of the Probability of Paternity <
99.9%, the results of the DNA testing = corroborative
evidence.
– If the value of the Probability of Paternity >
99.9% or higher = there shall be a disputable presumption of
paternity (Section 9[c]).
DNA Testing Orders in paternity and filiation suits
– Is a prima facie showing of possible paternity necessary
before a court can issue a DNA testing order? Yes.
– In Lucas v. Lucas (G.R. No. 190710, 6 June 2011), the
Supreme Court felt the need to supplement Section 4 of the
Rule on DNA Evidence and ruled that since a DNA Testing
Order could indeed be likened to a “search,” it is proper that
during hearings on motions for DNA testing, the movant must
present prima facie evidence or establish a reasonable
possibility of paternity.
e) Rules on evaluation of reliability of the DNA testing
methodology
Evaluation of the Reliability of DNA Testing Methodology; Factors
(a) The falsifiability of the principles or methods used, that is,
whether the theory or technique can be and has been tested;
(b) The subjection to peer review and publication of the principles
or methods;
(c) The general acceptance of the principles or methods by the
relevant scientific community;
(d) The existence and maintenance of standards and controls to
ensure the correctness of data generated;
(e) The existence of an appropriate reference population database;
and
(f) The general degree of confidence attributed to mathematical
calculations used in comparing DNA profiles and the significance and
limitation of statistical calculations used in comparing DNA profiles
(Section 8).
VIII. DOCUMENTARY EVIDENCE
• Meaning of Documentary Evidence
• Documents as evidence consist of writings or any material
containing letters, words, numbers, figures, symbols or
other modes of written expression offered as proof of their
contents (Rule 130, Sec.2).
• A document is a deed, instrument or other duly authorized
paper by which something is proved, evidenced or set
forth (U.S. v. Orera, 11 Phil 596).
• Documentary evidence is that which is furnished by written
instruments, inscriptions and documents of all kinds (32
CJS 475).
• Requisites for Admissibility
• The following are the requisites for admissibility of
documentary evidence:
9

1. The document must be relevant;
2. The evidence must be authenticated;
3. The document must be authenticated by a
competent witness; and
4. The document must be formally offered in
evidence.
• Best Evidence Rule
a) Meaning of the rule
• When the subject of inquiry is the contents of a document,
no evidence shall be admissible other than the original
document itself (Rule 130, Sec. 3).
• Best Evidence Rule
b) When applicable
• The rule is applicable when the subject of inquiry is the
contents of a document (Rule 130, Sec. 3).
• The Best Evidence Rule does NOT apply:
(a) to proof of facts collateral to the issues, such as the nature,
appearance or condition of physical objects or to evidence relating
to a matter which does not come from the foundation of the cause
of action or defense; or
(b) when a party uses a document to prove the existence of an
independent fact, as to which the writing is merely collateral or
incidental (Lee v. People G.R. No. 159288, 19 October 1 2004).
• Best Evidence Rule
b) When applicable
• Simply put, the Best Evidence Rule applies only when the
terms of a writing are in issue. When the evidence sought
to be introduced concerns external facts, such as the
existence, execution or delivery of the writing, without
reference to its terms, the Best Evidence Rule cannot be
invoked (Heirs of Prodon v. Heirs of Alvarez and Clave, G.R.
No. 170604, 2 September 2013).
• Best Evidence Rule
c) Meaning of original
• The following are considered originals of a document:
1. The original of the document is one the contents
of which are the subject of inquiry (Rule 130,
Sec. 4).
2. 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 (Rule 130, Sec. 4).
3. 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 (Rule
130, Sec. 4).
• Best Evidence Rule
c) Meaning of original
• The following are considered originals of a document:
4. 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 data accurately. (Rules on Electronic
Evidence, Sec. 1)
5. Best Evidence Rule
c) Meaning of original
• The following are considered originals of a document:
4. ..
5. Copies as equivalent of the originals – When a
document is in two 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 accurately
reproduces the original. (Rules on Electronic
Evidence, Sec. 2)
6. Best Evidence Rule
c) Meaning of original
• N.B.: Under the Rules on Electronic Evidence, copies or
duplicates shall not be admissible to the same extent as
the original if:
– a genuine question is raised as to the
authenticity of the original; or
– in the circumstances it would be unjust or
inequitable to admit the copy in lieu of the
original. (Rules on Electronic Evidence, Sec. 2)
• Best Evidence Rule
d) Requisites for introduction of secondary evidence
• Secondary evidence is allowed in the following instances:
1. When original is unavailable (Rule 130, Sec. 5)
– There must be proof by satisfactory evidence of:
• Due execution of the original
• Loss, destruction or unavailability of all
such originals; and
• Reasonable diligence and good faith in
the search for or attempt to produce
the original.
• Best Evidence Rule
d) Requisites for introduction of secondary evidence
• Secondary evidence is allowed in the following instances:
1. When original is unavailable (Rule 130, Sec. 5)
– How to Prove Due Execution:
1. Testimony of person/s who executed document;
2. Testimony of the person before whom its execution was
acknowledged; or
3. Any person who was present and saw it executed and
delivered or who thereafter saw it and recognized the signatures, or
one to whom the parties thereto had previously confessed the
execution thereof
d) Requisites for introduction of secondary evidence
• Secondary evidence is allowed in the following instances:
1. When original is unavailable (Rule 130, Sec. 5)
– Secondary evidence which could be introduced
after proving unavailability of the original (in
the order stated):
1. Copy of said document;
2. Recital of its contents in an authentic document; or
3. Recollection of witnesses.
• Best Evidence Rule
d) Requisites for introduction of secondary evidence
• Secondary evidence is allowed in the following instances:
1. When original is unavailable (Rule 130, Sec. 5)
• Nevertheless, where the law specifically provides for the
class and quantum of secondary evidence to establish the
contents of a document, or bars secondary evidence of a
lost document, such requirement is controlling.
– Example: lost notarial will requires the testimony of at
least 2 credible witnesses.
d) Requisites for introduction of secondary evidence
• Secondary evidence is allowed in the following instances:
10
2. When original is in adverse party's custody or control (Rule 130,
Sec. 6)
– Requisites
1. Document is in the custody or under the control of adverse party;
2. He must have reasonable notice to produce it;
3. 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.
• Best Evidence Rule
d) Requisites for introduction of secondary evidence
• Secondary evidence is allowed in the following instances:
2. When original is in adverse party's custody or control (Rule 130,
Sec. 6)
Where the nature of the action is in itself a notice, as where it is for
the recovery or annulment of documents wrongfully obtained or
withheld by the other party, no notice to produce said documents is
required. (Warner, Barnes & Co., Ltd. v. Buenaflor, 36 OG 3290)
• Best Evidence Rule
d) Requisites for introduction of secondary evidence
• Secondary evidence is allowed in the following instances:
2. When original is in adverse party's custody or control (Rule 130,
Sec. 6)
• A party who calls for the production of
a document and inspects the same is
not obliged to offer it as evidence (Rule
130, Sec. 8).
• Best Evidence Rule
d) Requisites for introduction of secondary evidence
• Secondary evidence is allowed in the following instances:
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. (Rule 130, Sec. 3[c]).
• Best Evidence Rule
d) Requisites for introduction of secondary evidence
• Secondary evidence is allowed in the following instances:
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. (Rule 130, Sec. 3[c]).
– Requisites
1. The voluminous character of the records must be
established; and
2. Such records must be made accessible to the adverse party
so that their correctness may be tested on cross-examination
• Best Evidence Rule
d) Requisites for introduction of secondary evidence
• Secondary evidence is allowed in the following instances:
4. When the original is a public record (Rule 130, Sec. 7)
When the original of document is in the custody of 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.
• Rules on Electronic Evidence
(A.M. No. 01-7-01-SC)
a) Scope; coverage; meaning of electronic evidence; electronic data
message
• Scope
– The Rules on Electronic Evidence (“REE”) apply
whenever an electronic document or electronic
data message is offered or used in evidence (REE,
Sec. 1).
IX. RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC)
a) Scope; coverage; meaning of electronic evidence; electronic data
message
*Meaning of “electronic document”
– “Electronic document” refers to information or
the representation of information, data, figures, symbols
or other modes of written expression, 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,
processed, 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
document. Under the REE, the term “electronic
document” is interchangeably with “electronic data
message.” (REE, Rule 2, Sec. 1[h]).
*Meaning of “electronic data message.”
– “Electronic data message” refers to information generated,
sent, received or stored by electronic, optical or similar
means. (REE, Rule 2, Sec. 1[g]).
*Meaning of “electronic signature.”
– “Electronic signature” refers to any distinctive mark,
characteristic and/or sound in electronic form,
representing the identity of a person and attached to or
logically associated with the electronic data message or
electronic document or any methodology or procedure
employed or adopted by a person and executed or
adopted by such person with the intention of
authenticating, signing or approving an electronic data
message or electronic document. An electronic signature
includes digital signatures.. (REE, Rule 2, Sec. 1[j]).
b) Probative value of electronic documents or evidentiary weight;
method of proof
• Evidentiary weight of electronic documents
– Electronic evidence is considered as the
functional equivalent of paper-based documents.
Whenever a rule of evidence refers to the term
of writing, document, record, instrument,
memorandum or any other form of writing, such
term shall include an electronic document (REE,
Rule 3, Sec. 1)
– The 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 data accurately (REE, Rule 4, Sec. 1).
*Factors for assessing evidentiary weight
In assessing the evidentiary weight of an electronic document, the
following factors may be considered:
(a) The reliability of the manner or method in which it was
generated, stored or communicated, including but not limited to
input and output procedures, controls, tests and checks for accuracy
and reliability of the electronic data message or document, in the
light of all the circumstances as well as any relevant agreement;
(b) The reliability of the manner in which its originator was
identified;
* In assessing the evidentiary weight of an electronic document, the
following factors may be considered:
11
(c) The integrity of the information and communication system in
which it is recorded or stored, including but not limited to the
hardware and computer programs or software used as well as
programming errors;
(d) The familiarity of the witness or the person who made the entry
with the communication and information system;
* In assessing the evidentiary weight of an electronic document, the
following factors may be considered:
(e) The nature and quality of the information which went into the
communication and information system upon which the electronic
data message or electronic document was based; or
(f) Other factors which the court may consider as affecting the
accuracy or integrity of the electronic document or electronic data
message. (REE, Rule 7, Sec. 1).
*Integrity of an information and communication system
In any dispute involving the integrity of the information and
communication system in which an electronic document or
electronic data message is recorded or stored, the court may
consider, among others, the following factors:
(a) Whether the information and communication system or other
similar device was operated in a manner that did not affect the
integrity of the electronic document, and there are no other
reasonable grounds to doubt the integrity of the information and
communication system;
(b) Whether the electronic document was recorded or stored by a
party to the proceedings with interest adverse to that of the party
using it; or
(c) Whether the electronic document was recorded or stored in the
usual and ordinary course of business by a person who is not a party
to the proceedings and who did not act under the control of the
party using it. (REE, Rule 7, Sec. 2).
Method of Proof
All matters relating to the admissibility and evidentiary weight of an
electronic document may be established by an affidavit stating facts
of direct personal knowledge of the affiant or based on authentic
records (REE, Rule 9).
• The affidavit must affirmatively show the competence of the
affiant to testify on the matters contained therein (REE, Rule 9,
Sec. 1).
• The affiant shall be made to affirm the contents of the affidavit
in open court and may be cross-examined as a matter of right
by the adverse party (REE, Rule 9, Sec. 2).
c) Authentication of electronic documents and electronic signatures
• Authentication of electronic documents
• 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 signed the same;
(b) by evidence that other appropriate security procedures or
devices as may be authorized by the Supreme 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. (REE, Rule 5, Sec. 2).
• Rules on Electronic Evidence
(A.M. No. 01-7-01-SC)
c) Authentication of electronic documents and electronic signatures
• Authentication of electronic documents
Proof of electronically notarized document: a document
electronically notarized in accordance with the rules promulgated by
the Supreme Court shall be considered as a public document and
proved as a notarial document under the Rules of Court. (REE, Rule
5, Sec. 2).
• Rules on Electronic Evidence
(A.M. No. 01-7-01-SC)
c) Authentication of electronic documents and electronic signatures
• Authentication of electronic signatures.
o An authenticated electronic signature under the REE is
admissible in evidence as the functional equivalent of the
signature of a person on a written document. (REE, Rule 6,
Sec. 1).
o An electronic signature may be authenticated in any of the
following manner:
(a) By evidence that a method or process was utilized to establish a
digital signature and verify the same;
(b) By any other means provided by law; or
(c) By any other means satisfactory to the judge as establishing the
genuineness of the electronic signature. (REE, Rule 6, Sec. 2).
d) Electronic documents vis-a-vis the hearsay rule
• Business records as exception to the hearsay rule
– “Business records” include records of any
business, institution, association, profession,
occupation, and calling of every kind, whether or
not conducted for profit, or for legitimate or
illegitimate purposes. (REE, Rule 2, Sec. 1[b]).
• Inapplicability of the hearsay rule. – A memorandum,
report, record or data compilation of acts, events,
conditions, opinions, or diagnoses
– made by electronic, optical or other similar
means at or near the time of or from
transmission or supply of information by a
person with knowledge thereof, and
– kept in the regular course or conduct of a
business activity, and
– such was the regular practice to make the
memorandum, report, record, or data
compilation by electronic, optical or similar
means, all of which are shown by the testimony
of the custodian or other qualified witnesses, is
excepted from the rule on hearsay evidence.
(REE, Rule 8, Sec. 1).
– However, the hearsay rule may be applied to
business records as defined under the REE by
presenting evidence of the untrustworthiness of:
• the source of information;
• the method or circumstances of the
preparation, transmission or storage
thereof. (REE, Rule 8, Sec. 2).
e) Audio, photographic, video and ephemeral evidence
• Audio, video and similar evidence shall be proven:
– by the testimony of a person who was a party to
the same or has personal knowledge thereof.
– In the absence or unavailability of such
witnesses, other competent evidence may be
admitted.
– If the foregoing communications are recorded or
embodied in an electronic document, then the
provisions of Rule 5 on authentication of
electronic documents shall apply.
*Meaning of “ephemeral electronic communication”
“Ephemeral electronic communication” refers to telephone
conversations, text messages, chatroom sessions, streaming audio,
12
streaming video, and other electronic forms of communication the
evidence of which is not recorded or retained.(REE, Rule 2, Sec. 1[k]).
X. PAROL EVIDENCE RULE
• Parol Evidence refers to any evidence aliunde, whether
oral or written, which is intended or tends to vary or
contradict a complete and enforceable agreement
embodied in a document.
a) Application of the parol evidence rule
• The following are the requisites for the application of parol
evidence rule:
– There is a valid contract;
– The terms of agreement reduced to writing;
– There is an issue as to the terms of agreement;
– The dispute is between parties and their
successors in interest (Rule 130, Sec. 9).
• The written agreement is already considered to contain all
the things agreed upon. Being a final agreement any
extraneous evidence or parol evidence is inadmissible for
any of the following purposes: (a) to modify, (b) to explain;
or (c) to add to the terms of the written agreement.
b) When parol evidence can be introduced
• A party may present evidence to –
a. Modify;
b. Explain; or
c. Add to the terms of written agreement if he puts in issue in his
pleading:
– An intrinsic ambiguity, mistake or imperfection in
the written agreement;
– The failure of the written agreement to express
the true intent and agreement of the parties
thereto;
– The validity of the written agreement; or
– The existence of other terms agreed to by the
parties or their successors in interest after the
execution of the written agreement. (Rule 130,
Sec. 9)
b) When parol evidence can be introduced
• Example: The vendee of a parcel of land can validly tell the
court that the deed of sale subject of litigation is not really
one of sale but one or mortgage as long as he puts in issue
in the pleadings, any of the matters enumerated above.
• The Parol Evidence Rule does not apply, and may not
properly be invoked by either party to the litigation against
the other, where at least one party to the suit is not a party
or privy of a party to the written instrument in question
and does not base a claim or assert a right originating in
the instrument of the relation established thereby. Thus, if
one of the parties is a complete stranger to the contract,
he is not bound by the rule. (See Rule 130, Sec. 9, par. 1)
b) When parol evidence can be introduced
• Basis of Parol Evidence Rule
– Parol evidence is based upon the consideration
that when the parties have reduced their
agreement on a particular matter into writing, all
their previous and contemporaneous
agreements on the matter are merged therein.
(De Guzman v. Calma, 100 Phil 1008).
a) Meaning of authentication
• Authentication is the act or mode of giving authenticity to
a statute, authority or other written instrument, or a
certified copy thereof, so as to render it legally admissible
in evidence (Herrera, Remedial Law Vol. VI, 1999 ed., p.
262).
• Authentication and Proof of Documents
b) Public and private documents
• For the purpose of their presentation evidence, documents
are either (a) public or (b) private. (Rule 132, Sec. 19).
• The classification of documents under the Rules of Court is
different from the classification of documents into official,
public, commercial and private under the RPC (Regalado,
p. 803).
• Authentication and Proof of Documents
b) Public and private documents
• Public documents are:
(a) The written official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and public officers,
whether of the Philippines, or of a foreign country;
(b) Documents acknowledge before a notary public except last wills
and testaments; and
(c) Public records, kept in the Philippines, of private documents
required by law to the entered therein (Rule 132, Sec. 19, par. 2).
• Authentication and Proof of Documents
b) Public and private documents
• All other writings are private (Rule 132, Sec. 19, par. 3).
• As a general rule, public documents need not be
authenticated; private documents have to be
authenticated to be admissible in evidence. (J. Benipayo,
Evidence: Basic Principles and Selected Problems)
• Authentication and Proof of Documents
c) When a private writing requires authentication; proof of a
private writing
• Before any private document offered as authentic is
received in evidence, its due execution and authenticity
must be proved either:
(a)By anyone who saw the document executed or written; or
(b)By evidence of the genuineness of the signature or handwriting of
the maker (Rule 132, Sec. 20, par. 1).
• Any other private document need only be identified as that
which it is claimed to be. (Rule 132, Sec. 20, par. 2).
• Authentication and Proof of Documents
d) When evidence of authenticity of a private writing is not
required (ancient documents)
• Evidence of authenticity is not required when:
– Private document is more than thirty years old;
– Produced from the custody in which it would
naturally be found if genuine; and
– Is unblemished by any alterations or
circumstances of suspicion, no other evidence of
its authenticity need be given (Rule 132, Sec. 21).
• Authentication and Proof of Documents
e) How to prove genuineness of a handwriting
• The handwriting of a person may be proved by:
1. Testimony of:
– Witness who actually saw the person writing the
instrument (Rule 132, Sec. 20a).
– Witness familiar with such handwriting (Rule
132, Sec. 22) and who can give his opinion
thereon, such opinion being exception to opinion
rule (Rule 130, Sec 50b).
– Expert witness (Rule 130, Sec. 49).
2. Comparison by the court of the questioned handwriting and
admitted genuine specimens thereof (Rule 132, Sec. 22).
• Authentication and Proof of Documents
e) How to prove genuineness of a handwriting
13
 • No preference rule - The law makes no preference, much
less distinction among and between the different means
stated in the Rules of Court in proving the handwriting of a
person. (Domingo v. Domingo, G.R. No. 150897, 11 April
2005)
• Probative value of opinions of handwriting experts -
Courts are not bound to give probative value or evidentiary
value to the opinions of handwriting experts, as resort to
handwriting experts is not mandatory. (Bautista v. Castro,
G.R. No. 61260, 17 February 1992, 206 SCRA 305, 312)
• Authentication and Proof of Documents
f) Public documents as evidence; proof of official record
• Public documents as evidence
1. Entries in public records made in the performance of a duty by a
public officer are prima facie evidence of the facts therein stated.
(Rule 132, Sec. 23).
2. All other public documents are evidence, even against a third
person, of:
• the fact which gave rise to their
execution;
• and of the date of the document. (Rule
132, Sec. 23).
• Authentication and Proof of Documents
f) Public documents as evidence; proof of official record
• Proof of official records
– The record of public documents (referred to in
paragraph Rule 132, Sec. 19 [a]) may be
evidenced by:
1. An official publication thereof; or
2 By a copy attested by the officer having the legal custody of the
record, or by his deputy.
• Authentication and Proof of Documents
g) Attestation of a copy
• Attestation requirements.
– Primary requisites
1. Statement of correctness - The attestation must state, in
substance, that the copy is a correct copy of the original, or a specific
part thereof, as the case may be. (Rule 132, Sec. 25)
2. Official Seal - The attestation must be under the official seal of the
attesting officer, if there be any, or if he be the clerk of a court having
a seal, under the seal of such court. (Rule 132, Sec. 25)
• Authentication and Proof of Documents
g) Attestation of a copy
• Attestation requirements.
– Requisites for foreign public documents
1. Certificate of custody - If the record is not kept in the Philippines
the copy must be accompanied by a certificate that such officer has
the custody. The certificate may be made by a secretary of the
embassy or legation, consul general, consul, vice consul, or consular
agent or by any officer in the foreign service of the Philippines
stationed in the foreign country in which the record is kept (Rule
132, Sec. 24).
2. Authentication – the certificate must be authenticated by the seal
of the office of the issuer (Rule 132, Sec. 24).
• Authentication and Proof of Documents
g) Attestation of a copy
• Attestation requirements.
– Requisites for foreign public documents
Absent the attestation of the officer having the legal custody of the
records and the certificate to that effect by a Philippine foreign
service officer, a mere copy of the foreign document is NOT
admissible as evidence to prove foreign law (Wildvalley Shipping Co.
Ltd. v. CA, G.R. No. 119602, 6 October 2000).
• Authentication and Proof of Documents
h) Public record of a public document
• Proof of public records of private documents
1. The original record; (Rule 132, Sec. 27)
2. Copy of the original record, attested by the legal custodian of the
record, with an appropriate certificate that such officer has the
custody. (Rule 132, Sec. 27)
• Authentication and Proof of Documents
i) Proof of lack of record
• A written statement signed by an officer having the
custody of an official record or by his deputy that after
diligent search no record or entry of a specified tenor is
found to exist in the records of his office, accompanied by
a certificate as above provided, is admissible as evidence
that the records of his office contain no such record or
entry (Rule 132, Sec. 28).
• Authentication and Proof of Documents
j) How a judicial record is impeached
• Any judicial record may be impeached by evidence of:
(a) want of jurisdiction in the court or judicial officer;
(b) collusion between the parties; or
(c) fraud in the party offering the record, in respect to the
proceedings (Rule 132, Sec. 29.).
• Authentication and Proof of Documents
k) Proof of notarial documents
• Notarial documents 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 (Rule 132, Sec. 30).
• Authentication and Proof of Documents
l) How to explain alterations in a document
• A party may show that alteration was:
1. made by another, without his concurrence;
2. was made with the consent of the parties affected by it or was
otherwise properly or innocent made; or
3. that the alteration did not change the meaning or language of the
instrument (Rule 132, Sec. 31).
• Authentication and Proof of Documents
m) Documentary evidence in an unofficial language
• Article XIV, Sec. 3 1935 Constitution – English and Spanish
are official languages.
• Article XV, Sec. 3(3), 1973 Constitution – English and
Filipino. (P.D. No. 155 – Spanish language shall continue to
be recognized as an official language while important
documents in government files are in the Spanish language
and not translated into Pilipino or English)
• Article XIV, Sec. 7, 1987 Constitution - the official languages
are Filipino and, until otherwise provided by law, English,
with the regional languages as auxiliary official languages
in the region
• TESTIMONIAL EVIDENCE
• Qualifications of a Witness
• All persons who can perceive, and perceiving, can make
their known perception to others, may be witnesses (Rule
130, Sec. 20).
• Religious or political belief, interest in the outcome of the
case, or conviction of a crime unless otherwise provided by
law, shall not be ground for disqualification (Rule 130, Sec.
20).
• Competency versus Credibility of a Witness
• Competency: The presence of those characteristics, or the
absence of those disabilities, which render a witness
14
 legally fit and qualified to give testimony in a court of
justice.
• Credibility: Worthiness of belief; that quality in a witness
which renders his evidence worthy of belief. After the
competence of a witness is allowed, the consideration of
his credibility arises.
• Competency versus Credibility of a Witness
• A competent witness is one who is not excluded by law or
the Rules of Court from being a witness. Competency is
determined by the prevailing exclusionary rules of
evidence.
• A credible witness is one who being competent to give
evidence, is worthy of belief (Black’s Law Dictionary).
• It is well-settled that the determination of the credibility
of the witnesses is correctly assigned to the trial court,
which is in the best position to observe the demeanor and
bodily movements of all the witnesses (People v. Banzuela,
G.R. No. 202060, 11 December 2013).
• Disqualifications of Witnesses
a) By reason of mental capacity 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 (Rule 130, Sec. 21)
• Disqualifications of Witnesses
a) By reason of mental capacity or immaturity
• Minority, alone, is not a sufficient ground for
disqualification. Leeway should be given to witnesses who
are minors, especially when they are relating past incidents
of abuse (People v. Dominguez, G.R. No. 191065, 13 June
2011). Thus, a child may still be a witness as long as the
following are shown:
(a) capacity of observation;
(b) capacity of recollection; and
(c) capacity of communication (People v. Mendoza, G.R.
No. 113791, 22 February 1996, 254 SCRA 18).
• Disqualifications of Witnesses
a) By reason of mental capacity or immaturity
• Mental retardation per se does not affect credibility
(People v. Rosales, G.R. No. 197537, 24 July 2013).
• Mental unsoundness of the witness at the time of the
event testified to affects only his or her credibility. As long
as the witness can convey ideas by words or signs and
gives sufficiently intelligent answers to the questions
propounded, she is a competent witness even if she is a
mental retardate (People v. Maceda, G.R. No. 138805, 28
February 2001, 353 SCRA 228).
• Disqualifications of Witnesses
b) By reason of marriage
• General Rule: During their marriage, spouses may not
testify for or against the other without the consent of the
affected spouse. (Rule 130, Sec. 22).
• Exceptions:
– In a civil case by one against the other; or
– In a criminal case for a crime committed by one
against the other or the latter's direct
descendants or ascendants. (Rule 130, Sec. 22).
• Disqualifications of Witnesses
b) By reason of marriage
Requisites for spousal immunity:
1. Valid marriage;
2. Other spouse is party to the action.
Waiver of spousal immunity:
– The objection to the competency of the spouse
must be made when he or she is first offered as
a witness. Failure to make a timely objection is
tantamount to waiver of spousal immunity
(People v. Pansensoy, G.R. No. 140634. 12
September 2002).
• Disqualifications of Witnesses
b) By reason of marriage
Spousal immunity in cases where a spouse is jointly charged with
other accused:
• The testimony of a wife of an accused, when timely
objected to, is inadmissible against the latter. However, the
same may be admitted as against other persons jointly
charged in said case. (People v. Quidato, Jr. G.R. No.
140634, 12 September 2002).
• Disqualifications of Witnesses
b) By reason of marriage
Estranged Spouses
• The disqualification does not apply in case of estranged
spouses. Where the marital and domestic relations are so
strained that there is no more harmony to be preserved
nor peace and tranquility which may be disturbed, the
reason based upon such harmony and tranquility fails. In
such a case, identity of interests disappears and the
consequent danger of perjury based on that identity is
non-existent. Likewise, in such a situation, the security
and confidences of private life, which the law aims at
protecting, will be nothing but ideals, which through their
absence, merely leave a void in the unhappy home
(Alvarez v. Ramirez, G.R. No. 143439, 14 October 2005).
• Disqualifications of Witnesses
c) By reason of death or insanity of adverse party
(Dead Man’s Statute or Survivor’s Disqualification Rule)
• Cases where applicable:
(i) cases against an executor or administrator or other representative
of a deceased person upon a claim or demand against the estate of a
deceased person; or
(ii) against a person of unsound mind, upon a claim or demand
against the estate of such person of unsound mind (Rule 130, Sec.
23).
• Disqualifications of Witnesses
c) By reason of death or insanity of adverse party
• To Whom or When not applicable:
(i) Ordinary witnesses, who are not the plaintiff, assignor of plaintiff,
or person in whose behalf the case is prosecuted. (Bajenting v.
Bañez, G.R. No. 166190, 20 September 2006).
(ii) Officers and/or stockholders of a corporation are not
disqualified from testifying, for or against a corporation which is a
party to an action upon a claim or demand against the estate of a
deceased person, as to any matter of fact occurring before the death
of such deceased person. (Lichauco v. Atlantic Gulf, G.R. No. L-2016,
23 August 1949).
• Disqualifications of Witnesses
c) By reason of death or insanity of adverse party
• To Whom or When not applicable:
(iii) When there is an imputation of fraud against the deceased
which had been established beyond all doubt, the plaintiff is not
barred from testifying to such fraud. The Dead Man’s Statute is not
designed to shield wrongdoers and to render a plaintiff incompetent
15
to testify to fraudulent transactions of the deceased (Ong Chua v.
Carr, 53 Phil. 975; Go Chi Gun v. Co Cho, 96 Phil. 622).
(iv) When the plaintiff is the executor, administrator or legal
representative of the deceased, or the person of unsound mind, the
defendant or defendants are free to testify against the plaintiff
(Tongco v. Vianzon, 50 Phil. 698).
• Disqualifications of Witnesses
c) By reason of death or insanity of adverse party
• To Whom or When not applicable:
(v) When the survivor's testimony refers to a negative fact.
(Mendezona v. Vda. de Goitia, 54 Phil. 557).
(vi) When the survivor's testimony is favorable to the deceased
(Icard v. Marasigan, 71 Phil. 419).
(vii) Testimony on transactions with agent of deceased or
incompetent party (Goni, et al., v. Court of Appeals, et al., 144 SCRA
231).
• Disqualifications of Witnesses
c) By reason of death or insanity of adverse party
• How protection of the dead man’s statute is waived:
(i) By not objecting to plaintiff's testimony on prohibited matters
(Marella v. Reyes, 12 Phil. 1).
(ii) By cross-examining the plaintiff on prohibited matters. (Tongco
v. Vianzon, 50 Phil. 698).
(iii) By calling witnesses to testify on prohibited matters. (Arroyo v.
Azur, 76 Phil. 493).
(iv) When the plaintiff's deposition is taken by the representative of
the estate or when counsel for the representative cross-examined
the plaintiff as to matters occurring during the deceased's lifetime
(Goni, et al., v. Court of Appeals, et al., 144 SCRA 231).
• Disqualifications of Witnesses
• Disqualifications of Witnesses
d) By reason of privileged communications
• (a) Husband and wife (Marital Privilege Rule)
 The husband or the wife, during or after the
marriage, cannot be examined without the
consent of the other as to any communication
received in confidence by one from the other
during the marriage except in a civil case by one
against the other, or in a criminal case for a crime
committed by one against the other or the
latter's direct descendants or ascendants.
• Disqualifications of Witnesses
d) By reason of privileged communications
• (a) Husband and wife (Marital Privilege Rule)
– Applicability
• Scope of protection extends during or
after the marriage. (Rule 130, Sec. 24
[a]).
• Since the confidential nature of the
communication is the basis of the
privilege, the same cannot be invoked
where it was not intended to be kept in
confidence by the spouse who received
the same, as in the case of a dying
declaration of the husband to his wife
as to who was his assailant.
• Disqualifications of Witnesses
d) By reason of privileged communications
• (a) Husband and wife (Marital Privilege Rule)
– Waiver of protection:
(1) Failure to object to presentation; or
(2) Through any conduct that may be construed as implied consent
(Lacurom v. Jacoba, A.C. No. 5921, 10 March 2006).
• Disqualifications of Witnesses
• Disqualifications of Witnesses
d) By reason of privileged communications
(b) Attorney-Client Privilege Rule
• An attorney cannot, without the consent of his client, be
examined as to any communication made by the client to
him, or his advice given thereon in the course of, or with a
view to, professional employment, nor can an attorney's
secretary, stenographer, or clerk be examined, without the
consent of the client and his employer, concerning any fact
the knowledge of which has been acquired in such
capacity.
• Disqualifications of Witnesses
d) By reason of privileged communications
(b) Attorney-Client Privilege Rule
– Requisites:
(1) Relationship of lawyer and client;
(2) Privilege is invoked with respect to a confidential communication
between them in the course of, or with the view of professional
employment;
(3) Client has not given his consent to the disclosure of the
communication. (Rule 130, Sec. 24[b]; Disini v. Sandiganbayan, G.R.
No. 180564, 22 June 2010).
• Disqualifications of Witnesses
d) By reason of privileged communications
(b) Attorney-Client Privilege Rule
 Persons covered:
(1) The attorney;
(2) The attorney's secretary, stenographer, or clerk be examined,
without the consent of the client and his employer, concerning any
fact the knowledge of which has been acquired in such capacity
(Rule 130, Sec. 24[b]).
 Waiver of protection:
The client may waive the protection of the Attorney-Client Privilege
Rule. If the client waives the privilege, even his attorney cannot
invoke it.
• Disqualifications of Witnesses
d) By reason of privileged communications
(b) Attorney-Client Privilege Rule
• The Regala Doctrine
• General rule: A lawyer may NOT
invoke the privilege and refuse to
divulge the name or identity of his
client.
• Exceptions: (1) When a strong
probability exists that revealing the
name would implicate that person in
the very same activity for which he
sought the lawyer’s advice; (2) When
disclosure would open the client to
liability; (3) When the name would
furnish the only link that would form
the chain of testimony necessary to
convict (Regala v. Sandiganbayan, G.R.
No. 105938, 20 September 1996).
• Disqualifications of Witnesses
d) By reason of privileged communications
(c) Physician-Patient Privilege
• 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
16
 information was necessary to enable him to act in capacity,
and which would blacken the reputation of the patient.
• Disqualifications of Witnesses
d) By reason of privileged communications
(c) Physician-Patient Privilege
– Requisites:
(1) The physician is authorized to practice medicine, surgery or
obstetrics;
(2) The 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) The information, advice or treatment, if revealed, would blacken
the reputation of the patient;
(4) The privilege is invoked in a civil case whether the patient is a
party thereto or not (Rule 130, Sec. 24 [c]).
• Disqualifications of Witnesses
d) By reason of privileged communications
(c) Physician-Patient Privilege
• Meaning of “professional capacity”
– The physician may be considered to be acting in
his professional capacity when he attends to the
patient for curative, preventive, or palliative
treatment. Thus, only disclosures which would
have been made to the physician to enable him
"safely and efficaciously to treat his patient" are
covered by the privilege. (Lim v. Court of
Appeals, G.R. No. 91114, 25 September 1992).
• Disqualifications of Witnesses
d) By reason of privileged communications
(c) Physician-Patient Privilege
• Waiver of protection
– This privilege belongs to the patient, so that it is
only he that can claim or waive it. It is waivable
expressly or impliedly (See Penn. Mutual Life Ins.
Co. v. Wiler, 100 Ind. 92).
– Example: Under Rule 28, the court may order a
party to submit to a physical or mental
examination, so long as the mental or physical
condition is in dispute. The party examined may
request a report of the examination. By doing so,
he waives any privilege he may have in that
action regarding the testimony of every other
person who has examined him in respect of the
same examination (Rule 28, Sec. 4).
• Disqualifications of Witnesses
d) By reason of privileged communications
(c) Physician-Patient Privilege
– Information elicited during consultation with a
physician in the presence of third parties
removes such information from the mantle of
the privilege (Lim v. Court of Appeals, G.R. No.
91114, 25 September 1992).
– What is protected is the tenor of the
consultation. The number of times a patient
consulted with his doctor is not privileged. (Lim
v. Court of Appeals, supra).
– Disqualifications of Witnesses
d) By reason of privileged communications
(d) Minister/Priest – Penitent Privilege
• 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.
• Disqualifications of Witnesses
d) By reason of privileged communications
(e) State Secrets Rule
– 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.
– Public interest is paramount. The rule that a
public officer cannot be examined as to
communications made to him in official
confidence does not apply when there is nothing
to show that the public interest would suffer by
the disclosure in question (Banco Filipino v.
Monetary Board, 142 SCRA 523).
• Disqualifications of Witnesses
d) By reason of privileged communications
(f) Parental and Filial Privilege Rule
• No person may be compelled to testify against his parents,
other direct ascendants, children or other direct
descendants (Rule 130, Sec. 25).
• No descendant shall be compelled, in a criminal case, to
testify against his parents and grandparents, except when
such testimony is indispensable in a crime against the
descendant or by one parent against the other (Family
Code, Article 215).
• Disqualifications of Witnesses
d) By reason of privileged communications
(g) Newsman’s Privilege
• The publisher, editor or duly accredited reporter of any
newspaper, magazine or periodical of general circulation
cannot be compelled to reveal the source of any news
report or information appearing in said publication which
was related in confidence to him, unless the court or a
House or committee of Congress finds that such revelation
is demanded by the security of the State (See R.A. No. 53,
as amended by R.A. No. 1477, the “Shield Law”).
• Disqualifications of Witnesses
d) By reason of privileged communications
(h) Privilege under the Labor Code
• All information and statements made at conciliation
proceedings shall be treated as privileged communications
and shall not be used as evidence in the NLRC, and
conciliators and similar officials shall not testify in any
court or body regarding any matter taken up at the
conciliation proceedings conducted by them (Labor Code,
Art. 233).
• Disqualifications of Witnesses
d) By reason of privileged communications
(i) Privilege under Alternative Dispute Resolution (ADR) laws
• Mediation
– Information obtained through mediation shall be
privileged and confidential (R.A. No. 9285, Sec.
9[a]).
– A party, a mediator, or a nonparty participant
may refuse to disclose and may prevent any
other person from disclosing a mediation
communication (R.A. No. 9285, Sec. 9[b]).
• Disqualifications of Witnesses
d) By reason of privileged communications
17
(i) Privilege under Alternative Dispute Resolution (ADR) laws
• Mediation
– Confidential information obtained during
mediation shall not be subject to discovery and
shall be inadmissible in any adversarial
proceeding, whether judicial or quasi-judicial.
However, evidence or information that is
otherwise admissible or subject to discovery
does not become inadmissible or protected from
discovery solely by reason of its use in a
mediation (R.A. No. 9285, Sec. 9[b]).
• Disqualifications of Witnesses
d) By reason of privileged communications
(i) Privilege under Alternative Dispute Resolution (ADR) laws
• Mediation
– In such an adversarial proceeding, the following
persons involved or previously involved in a
mediation may not be compelled to disclose
confidential information obtained during
mediation: (1) the parties to the dispute; (2) the
mediator; (3) the counsel for the parties; (4) the
nonparty participants; (5) any persons hired or
engaged in connection with the mediation as
secretary, stenographer, clerk or assistant; and
(6) any other person who obtains or possesses
confidential information by reason of his/her
profession (R.A. No. 9285, Sec. 9[c]).
• Disqualifications of Witnesses
d) By reason of privileged communications
(i) Privilege under Alternative Dispute Resolution (ADR) laws
• Arbitration
– The arbitration proceedings, including the
records, evidence and the arbitral award, shall be
considered confidential and shall not be
published except (1) with the consent of the
parties, or (2) for the limited purpose of
disclosing to the court of relevant documents in
cases where resort to the court is allowed
herein.
• Disqualifications of Witnesses
d) By reason of privileged communications
(i) Privilege under Alternative Dispute Resolution (ADR) laws
• Arbitration
– Provided, however, that the court in which the
action or the appeal is pending may issue a
protective order to prevent or prohibit disclosure
of documents or information containing secret
processes, developments, research and other
information where it is shown that the applicant
shall be materially prejudiced by an authorized
disclosure thereof (R.A. No. 9285, Sec. 23).
• Examination of a Witness
a) Rights and obligations of a witness
• Rights:
(1) To be protected from irrelevant, improper, or insulting
questions, and from harsh or insulting demeanor;
(2) Not to be detained longer than the interests of justice
require;
(3) Not to be examined except only as to matters pertinent to
the issue;
(4) Not to give an answer which will tend to subject him to a
penalty for an offense unless otherwise provided by law; or
(5) Not to give an answer which will tend to degrade his
reputation, unless it be to the very fact at issue or to a fact from
which the fact in issue would be presumed. But a witness must
answer to the fact of his previous final conviction for an offense.
(Rule 132, Sec. 3).
• Examination of a Witness
a) Rights and obligations of a witness
• Obligations:
1) A witness must answer questions, although his
answer may tend to establish a claim against him
(Rule 132, Sec. 3, par. 1).
2) A witness must answer to the fact of his previous
final conviction for an offense (Rule 132, Sec. 3,
par. 5).
3) A witness must testify under oath or affirmation
(Rule 132, Sec. 1).
• Examination of a Witness
b) Order in the examination of an individual witness
i. Direct examination
– Direct examination is the examination-in-chief of
a witness by the party.
– Scope: facts relevant to the issue (Rule 132, Sec.
4).
– Judicial Affidavit Rule (A.M. No. 12-8—SC) –
judicial affidavits of witnesses shall take the
place of their direct testimonies (Sec. 2)
• Examination of a Witness
b) Order in the examination of an individual witness
i. Direct examination
• Judicial Affidavit Rule (A.M. No. 12-8-8-SC) –
– Civil Case: The parties shall file with the court
and serve on the adverse party, personally or by
licensed courier service, not later than five days
(5) before pre-trial or preliminary conference or
the scheduled hearing with respect to motions
and incidents, the following:
(1) The judicial affidavits of their witnesses, which shall take the
place of such witnesses' direct testimonies; and
(2) The parties' documentary or object evidence, if any, which shall
be attached to the judicial affidavits (Sec. 2)
• Examination of a Witness
b) Order in the examination of an individual witness
i. Direct examination
• Judicial Affidavit Rule (A.M. No. 12-8-8-SC) –
– Criminal Case: The Judicial Affidavit Rule shall
apply to all criminal actions:
(1) Where the maximum of the imposable penalty does not exceed
(6) six years;
(2) Where the accused agrees to the use of judicial affidavits,
irrespective of the penalty involved; or
(3) With respect to the civil aspect of the actions, whatever the
penalties involved are (Sec. 9).
• Examination of a Witness
b) Order in the examination of an individual witness
i. Direct examination
• Judicial Affidavit Rule (A.M. No. 12-8-8-SC) –
– Criminal Case:
– The prosecution shall submit the judicial
affidavits of its witnesses not later than five days
(5) before the pre-trial, serving copies if the
same upon the accused (Sec. 9).
18
 – If the accused desires to be heard on his defense
after receipt of the judicial affidavits of the
prosecution, he shall have the option to submit
his judicial affidavit as well as those of his
witnesses within ten (10) days from receipt of
such affidavits. These affidavits shall serve as
direct testimonies of the accused and his
witnesses when they appear before the court to
testify (Sec. 9)
• Examination of a Witness
b) Order in the examination of an individual witness
ii. Cross examination
• Scope:
(1) any matters stated in the direct examination;
(2) or connected therewith (Rule 132, Sec. 5).
(3) If unwilling/hostile/adverse party witness – cross is limited to
matters stated during direct examination. (Rule 132, Sec. 12)
• Purpose:
(1) test witness’ accuracy and truthfulness and freedom from
interest or bias, or the reverse; and
(2) to elicit all important facts bearing upon the issue. (Rule 132,
Sec. 5).
• Examination of a Witness
b) Order in the examination of an individual witness
ii. Cross examination
• Nature of right of cross-examination.
1. Fundamental right - The right of a party to confront and cross-
examine opposing witnesses in a judicial litigation, be it criminal or
civil in nature, or in proceedings before administrative tribunals with
quasi-judicial powers, is a fundamental right which is part of due
process. (Savory Luncheonette v. Lakas ng Manggagawang Pilipino,
et al., 1975, 62 SCRA 258)
2. Personal right- The right to cross-examination is a personal right
which may be expressly or impliedly waived. (Savory Luncheonette v.
Lakas ng Manggagawang Pilipino, et al., 1975, supra).
• Examination of a Witness
b) Order in the examination of an individual witness
ii. Cross examination
• Lack of cross-examination; effect
When cross examination is not and cannot be done or completed
due to causes attributable to the party who offered the witness, the
uncompleted testimony is thereby rendered incomplete and should
be stricken from the record. (Bachrach Motor Co., Inc., v. Court of
Industrial Relations, 86 SCRA 27).
• Examination of a Witness
b) Order in the examination of an individual witness
iii. Re-direct examination
• Scope:
(1) any matter covered during cross-examination;
(2) Matters not covered during cross, upon the court’s discretion.
(Rule 132, Sec. 6).
• Purpose:
(1) to explain; or
(2) to supplement his answers given during the cross-examination.
(Rule 132, Sec. 6).
• Examination of a Witness
b) Order in the examination of an individual witness
iv. Re-cross examination
• Scope:
(1) Any matter covered during re-direct examination;
(2) Other matters, upon the court’s discretion. (Rule 132, Sec. 7).
• Purpose:
(1) test witness’ accuracy and truthfulness and freedom from
interest or bias, or the reverse; and
(2) to elicit all important facts bearing upon the issue.
• Examination of a Witness
b) Order in the examination of an individual witness
v. Recalling the witness
• After the examination of a witness by both sides has been
concluded, the witness cannot be recalled without leave
of the court. The court will grant or withhold leave in its
discretion, as the interests of justice may require. (Rule
132, Sec. 9)
• A showing of some concrete, substantial grounds for
recall, i.e. such as particularly identified material points
were not covered, or particular vital documents were not
presented to the witness or the cross-examination was
conducted in so inept manner as to result in a virtual
absence thereof (People v. Rivera, 200 SCRA 786).
• Examination of a Witness
• Judge’s participation during examination of a witness
• A judge who presides at a trial is not a mere referee. He
must actively participate therein by directing counsel to
the facts in dispute, by asking clarifying questions, and by
showing an interest in a fast and fair trial (Clarin v. Yatco,
56 O.G. 7042, Nov. 14, 1960).
• He can interrogate witnesses to elicit the truth, to obtain
clarification, or to test their credibility (People v Moreno,
83 Phil. 286).
• However, this power must be exercised by the court
sparingly and judiciously (People v. Ferrer, 44 O.G. 112).
• The judge cannot curtail counsel's right to interrogate
witnesses. (People v. Bedia, 83 Phil. 909)
• Examination of a Witness
Recantation of a witness
• Courts look with disfavor upon retractions, because they
can easily be obtained from witnesses through
intimidation or for monetary considerations. Hence, a
retraction does not necessarily negate an earlier
declaration. They are generally unreliable and looked
upon with considerable disfavor by the courts (People v.
Bulagao, G.R. No. 184757, 5 October 2011).
• The rule is settled that in cases where previous testimony
is retracted and a subsequent different, if not contrary,
testimony is made by the same witness, the test to decide
which testimony to believe is one of comparison coupled
with the application of the general rules of evidence
(People v. Bulagao, G.R. No. 184757, 5 October 2011)
• Examination of a Witness
c) Leading and misleading questions
• A leading question is a question which suggests to the
witness the answer which the examining party desires
(Rule 132, Sec. 10).
• General rule: A leading question is not allowed.
• Exceptions:
(a) On cross examination;
(b) On preliminary matters;
(c) When there is difficulty in getting direct and intelligible
answers from a witness who is ignorant, or a child of tender years, or
is of feeble mind, or a deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an officer, director,
or managing agent of a public or private corporation or of a
partnership or association which is an adverse party. (Rule 132, Sec.
10).
19
 • Examination of a Witness
c) Leading and misleading questions
• A misleading question is one which assumes as true a fact
not yet testified to by the witness, or contrary to that
which he has previously stated.
• General rule: A misleading question is not allowed.
• Exceptions: none.
• Examination of a Witness
d) Methods of impeachment of adverse party’s witness
A party can impeach the adverse party’s witness by (Rule 132, Sec.
11):
(1) Contradictory evidence;
Contradictory Evidence refers to other testimony of the
same witness, or other evidence presented by him in the same case,
but not the testimony of another witness
(2) Evidence of prior inconsistent statements;
Prior inconsistent Statements refer to statements, oral or
documentary, made by the witness sought to be impeached on
occasions other than the trial in which he is testifying
(3) Evidence of bad character;
(4) Evidence of bias, interest, prejudice or incompetence.
• Examination of a Witness
d) Methods of impeachment of adverse party’s witness
• A party can impeach his own witness only by:
(1) Evidence contradictory to his testimony; or
(2) Evidence of prior inconsistent statements.
• Exception: However, in the case of hostile witnesses,
adverse party witnesses or involuntary witnesses, they can
also be impeached by other modes of impeachment, aside
from contradictory statements and prior inconsistent
statements made by them. (Rule 132, Sec. 12).
• Examination of a Witness
e) How the witness is impeached by evidence of inconsistent
statements (laying the predicate)
• Before a witness can be impeached by evidence that he
has made at other times statements inconsistent with his
present testimony:
1. the statements must be related to him, with the
circumstances of the times and places and the persons
present;
2. he must be asked whether he made such statements, and
if so, allowed to explain them; and
3. if the statements be in writing, they must be shown to the
witness before any question is put to him concerning them
(Rule 132, Sec. 13).
• Examination of a Witness
e) How the witness is impeached by evidence of inconsistent
statements (laying the predicate)
• Non-compliance with the foundational elements for this
mode will be a ground for an objection based on
“improper impeachment.” Over a timely objection,
extrinsic evidence of a prior inconsistent statement
without the required foundation is not admissible (Riano,
p. 327).
• Examination of a Witness
f) Evidence of the good character of a witness
• Evidence of the good character of a witness is not
admissible until such character has been impeached (Rule
132, Sec. 14).
• This arises from the presumption that the witness is
truthful and of good character, hence the necessity of
initially showing such traits is unnecessary (Riano, p. 331).
• Examination of a Witness
g) Judicial Affidavit Rule (A.M. No. 12-8-8-SC)
• Under the Judicial Affidavit Rule, judicial affidavits of
witnesses shall take the place of their direct testimonies
(Sec. 2).
• The adverse party shall have the right to cross-examine the
witness on his judicial affidavit and on the exhibits
attached to the same.
*ADMISSIONS AND CONFESSIONS
a) Res inter alios acta rule
• The maxim res inter alios acta alteri nocere non debet
literally means “things done between strangers ought not
to injure those who are not parties to them” (Black’s Law
Dictionary, 5th ed., 1178).
• The res inter alios acta rule has two branches, to wit:
– The rule that the rights of a party cannot be
prejudiced by an act, declaration, or omission of
another, except as hereinafter provided (Rule
130, Sec. 128); and
– The rule that the 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 similar thing at another time (Rule 132,
Sec. 34).
• Admissions and Confessions
b) Admission by a party
An admission is an act, declaration or omission of a party as to a
relevant fact which may be given in evidence against him (Rule 130,
Sec. 2).
• Admissions and Confessions
• Admission and Confession, Distinguished
• Admissions and Confessions
c) Admission by a third party
• General rule: The rights of a party CANNOT be prejudiced
by an act, declaration, or omission of another (Rule 130,
Sec. 28).
*This is also known as the first branch of the Res Inter Alios Acta Rule
(from “res inter alios acta alteri nocere non debet”).
• Exceptions (a.k.a. “vicarious admissions”)
1. Admissions by partner (Rule 130, Sec. 29);
2. Admissions by agent or one who has a joint-interest with the party
(Rule 130, Sec. 29);
3. Admission of co-conspirator (Rule 130, Sec. 30);
4. Admission of privy of the party (Rule 130, Sec. 30).
• Admissions and Confessions
d) Admission by a co-partner or agent
• The act or declaration of a partner or agent of the party
may be given in evidence against such party under the
following requirements:
(1) That the partnership, agency or joint interest is established by
evidence other than the act or declaration;
(2) That the act/declaration must have been within the scope of the
partnership, etc;
(3) Such act/declaration must have been made during the existence
of the partnership, etc (Rule 130, Sec. 29).
• Admissions and Confessions
e) Admission by a conspirator
20
 • The act or declaration of a conspirator relating to the
conspiracy and during its existence, may be given in
evidence against the co-conspirator :
(1) The conspiracy is shown by evidence aliunde;
(2) The admission was made during the existence of the conspiracy;
and
(3) The admission relates to the conspiracy itself.
(Rule 130, Sec. 30; Tamargo v. Antiporda, G.R. No. 177727, 19
January 2010).
• Admissions and Confessions
e) Admission by a conspirator
• This rule applies only to extra-judicial acts or declaration
of a co-conspirator, but NOT to testimony given on the
stand at the trial, where the defendant has the
opportunity to cross-examine the declarant. And while the
testimony of accomplices or confederates in crime is
always subject to grave suspicion, "coming as it does from
a polluted source," and should be received with great
caution and doubtingly examined, it is nevertheless
admissible and competent (People v. Serrano, G.R. No. L-
7973, 27 April 1959).
• Admissions and Confessions
f) 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.
• Requisites:
(1) There must be a relation of privity between the party and the
declarant;
(2) The admission was made by the declarant, as predecessor in
interest, while holding title to the property; and
(3) The admission is in relation to said property (Rule 130, Sec. 31).
• Admissions and Confessions
f) Admission by privies
• Privity in estate may have arisen by: (1) succession; (2) by
acts mortis causa; or (3) by acts inter vivos.
• Illustration: AA, father of BB, while the former was alive,
openly told his acquaintances, that the land where his
house stood had already been sold to CC. Here, the
declaration by AA is NOT admissible against BB, because
the statement was made after AA held title to the land.
• Admissions and Confessions
g) Admission by silence
• Requisites:
Any act or declaration made in the presence and within the
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, may be given in evidence against him, under the following
requisites:
(1) He must have heard or observed the act or declaration of the
other person;
(2) He must have had the opportunity to deny it;
(3) He must have understood the statement;
• Admissions and Confessions
g) Admission by silence
• Requisites:
(4) He must have an interest to object as he would naturally have
done if the statement was not true;
(5) The facts are within his knowledge; and
(6)The fact admitted or the inference to be drawn from his silence is
material to the issue. (Rule 130, Sec. 32; People v. Ciobal, G.R. No.
86220, 20 April 1990; People v. Ranario, 49 Phil. 220)
• Admissions and Confessions
g) Admission by silence
• When not applicable
 Accused’s refusal to be a witness during trial
(Art. III, Sec. 17, 1987 Constitution).
 Silence during official investigation (Art. III, Sec.
12, 1987 Constitution; U. S. v. De la Cruz, 12 Phil.,
87).
 Where the party had a justifiable reason to
remain silent [e.g. acting on advice of counsel].
(People v. Fong, G.R. No. L-7615, 14 March
1956).
• Admissions and Confessions
g) Admission by silence
• When applicable to statements made in writing
The rule on admission by silence applies to adverse statements in
writing if the party was carrying on a mutual correspondence with
the declarant. However, if there was no such mutual
correspondence, the rule is relaxed on the theory that while the
party would have immediately reacted by a denial if the statements
were orally made in his presence, such prompt response can
generally not be expected if the party still has to resort to a written
reply (Villanueva v. Balaguer, G.R. No. 180197, 23 June 2009).
• Admissions and Confessions
g) Admission by silence
• Voluntary re-enactment.
Voluntary participation in the re-enactment of the crime conducted
by police is considered tacit admission of complicity. In such cases,
the accused actually committed positive acts without protest or
denial when he was free to refuse. Had he not actually participated
in the commission of the offense for which he is charged, he would
have protested being made to take part in the reenactment thereof
(People v. Fong, G.R. No. L-7615, 14 March 1956).
• Admissions and Confessions
h) Confessions
• 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
(Rule 130, Sec. 33).
• Admissions and Confessions
h) Confessions
• Judicial confession - one made before a court in which the
case is pending and in the course of legal proceedings
therein; can sustain conviction by itself.
• Requisites:
1. It must be a categorical acknowledgement of guilt;
2. It must be made by an accused in a criminal case; and
3. It is without any exculpatory statement or explanation.
• Admissions and Confessions
h) Confessions
• Extrajudicial confession - one made in any other place or
occasion and cannot sustain a conviction unless
corroborated by evidence of the corpus delicti. (Rule 133,
Sec. 3).
• Corpus delicti means the substance of
the crime; it is the fact that a crime has
actually been committed (People v. De
Leon, G.R. No. 180762, 4 March 2009).
• Admissions and Confessions
h) Confessions
21
 • Extrajudicial confession
• Illustrations:
(a) In arson, the corpus delicti is generally satisfied by proof of the
bare occurrence of the fire, e.g., the charred remains of a house
burned down and of its having been intentionally caused.
(b) In murder or homicide, the corpus delicti is the fact of death
(People v. Garcia, 99 Phil. 381), which may be proved even
circumstantially (People v. Sasota, 91 Phil. 111; People v. Moro
Ansang, 93 Phil. 44).
• Admissions and Confessions
h) Confessions
• Extrajudicial confession
• Illustrations:
(c) In robbery or theft, the fact of loss (People v. Niem, 75 Phil. 668).
(d) In an affray, the fact that pistol shots were heard and a bystander
was killed by one of the shots constitute evidence of corpus delicti,
which is the violent death of a person, whether feloniously caused or
not (People v. Nocum, 77 Phil. 1018)
• Admissions and Confessions
h) Confessions
• Extrajudicial confession
• Requisites of Extrajudicial Confession:
1. It must be voluntary;
2. It must be made with the assistance of a competent and
independent counsel;
3. It must be express; and
4. It must be in writing (People v. Domantay, G.R. No. 130612, 11
May 1999).
• Extrajudicial confession is not binding upon third parties
An extrajudicial confession is binding only on the confessant, is not
admissible against his or her co-accused, and is considered as
hearsay against them.
The reason for this rule is that on a principle of good faith and
mutual convenience, a man’s own acts are binding upon himself, and
are evidence against him. So are his conduct and declarations. Yet it
would not only be rightly inconvenient, but also manifestly unjust,
that a man should be bound by the acts of mere unauthorized
stranger (Tamargo v. Awingan, G.R. No. 177727, 19 January 2010).
• Extrajudicial confession; when admissible against co-
accused
While the general rule is that an extra-judicial confession of an
accused is binding only upon himself and is not admissible against
his co-accused, it has been held that such a confession is admissible
against a co-accused where the confession is used as circumstantial
evidence to show the probability of participation by the co-
conspirator (People v. Condemna, L-22426, 29 May 1968), and
where the co-conspirator's confession is corroborated by other
evidence (People v. Victor, G.R. No. 75154-55, 6 February 1990).
• Extrajudicial confession not admissible when confessant
was not assisted by counsel
An extrajudicial confession executed without the assistance of
independent and competent counsel is inadmissible in evidence.
(People v. Velarde, G.R. No. 139333, 18 July 2002). A municipal
mayor cannot be considered as a competent
and independent counsel qualified to assist a person under custodial
investigation (People v. Velarde, supra).
• Extrajudicial confession v. res gestae
Where the verbal extrajudicial confession was made without
counsel, but it was spontaneously made by the accused immediately
after the assault, the same is admissible, not under the confession
rule, but as part of the res gestae (People v. Tampus, G.R. No. L-
44690, 28 March 1980).
• Statements during press-conference
The constitutional procedures on custodial investigation do not apply
to a spontaneous statement, not elicited through questioning by the
authorities, but given in an ordinary manner whereby accused orally
admitted having committed a crime. The rights under Sec. 12 are
guaranteed to preclude the slightest use of coercion by the State as
would lead the accused to admit something false, not to prevent him
from freely and voluntarily telling the truth. (People v. Mantung, G.R.
No. 130372, 20 July 1999).
• Admissions and Confessions
i) 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 similar thing at another time(Rule 130, Sec.
34).
• However, such evidence may be received to prove a
specific intent or knowledge; identity, plan, system,
scheme, habit, custom or usage, and the like (Rule 130,
Sec. 34).
*HEARSAY RULE
a) Meaning of hearsay
• Hearsay evidence – any evidence, whether oral or
documentary, whose probative value is based not on
personal knowledge of the witness but on the knowledge
of some other person not on the witness stand.
• Hearsay Rule
a) Meaning of hearsay
• If a party does not object, the hearsay evidence is
admissible. Illustration: The repeated failure of the party to
cross-examine the witness is an implied waiver of such
right and the testimony of the said witness who died
thereafter should not be excluded from the record (Savory
Luncheonette v. Lakas ng Manggagawang Pilipino, G.R.
No. L-38964, 31 January 31).
 But even if hearsay evidence not objected to is
admissible, it has no probative value. Hearsay
evidence whether objected to or not has no
probative value (People v. Parungao, G.R. No.
125812, 28 November 1996).
• Hearsay Rule
a) Meaning of hearsay
• Two concepts of hearsay evidence:
(1) Second hand information (not derived from personal knowledge
of witness); and
(2) Testimony by a witness derived from his personal knowledge but
the adverse party is not given opportunity to cross-examine.
• Hearsay Rule
a) Meaning of hearsay
• Principle of Independently Relevant Statements
The doctrine on independently relevant statements holds that
conversations communicated to a witness by a third person may be
admitted as proof that, regardless of their truth or falsity, they were
actually made. Evidence as to the making of such statements is not
secondary but primary, for in itself it (a) constitutes a fact in issue or
(b) is circumstantially relevant to the existence of such fact (Republic
v. Heirs of Alejega, G.R. No. 146030, 3 December 2002).
• Hearsay Rule
b) Reason for exclusion of hearsay evidence
• The real basis for the exclusion of hearsay evidence lies in
the fact that hearsay testimony is not subject to the tests
which can ordinarily be applied for the ascertainment of
the truth of testimony, since the declarant is not present
22
 and available for cross-examination (Mollaneda v. the occasion renders the reception of such evidence advisable and,
Umacob, G.R. No. 140128, 6 June 2001). further that the reliability of such declaration asserts facts which
• Hearsay Rule are against his own pecuniary or moral interest (Parel v. Prudencio,
c) Exceptions to the hearsay rule G.R. No. 146556, 19 April 2006).
i. Dying declaration • Hearsay Rule
 Dying declaration is an ante mortem statement • Hearsay Rule
or statement in articulo mortis. c) Exceptions to the hearsay rule
 Requisites: iii. Act or declaration about pedigree
(1) That death is imminent and the declarant is conscious of that • Requisites:
fact; (1) The actor or declarant is dead or unable to testify;
(2) That the declaration refers to the cause and the surrounding (2) The act or declaration is made by the person related to the
circumstances of such death; subject by birth or marriage;
(3) That the declaration relates to facts which the victim is (3) The relationship between the declarant or the actor and the
competent to testify to; subject is shown by evidence other than such act or declaration;
(4) That the declaration is offered in a case wherein the declarant’s (4) The act or declaration was made prior to the controversy. (Rule
death is the subject of the inquiry (People v. Serenas, G.R. No. 130, Sec. 39; Nepomuceno v. Lopez, G.R. No. 181258, 18 March
188124, 29 June 2010). 2010).
• Hearsay Rule • Hearsay Rule
c) Exceptions to the hearsay rule c) Exceptions to the hearsay rule
i. Dying declaration iv. Family reputation or tradition regarding pedigree
 Dying declaration has weight even if declarant
did not die immediately after his declaration. • Requisites:
It is the belief of impending death and not the rapid succession of (1) Witness testifying as to reputation or tradition must be a
death that renders the dying declaration admissible (People v. member, by consanguinity or affinity, of the same family as the
Bautista, G.R. No. 111149, 5 September 1997) subject;
i. Dying declaration (2) Such tradition or reputation must have existed in that family ante
 Victim need not state that he has lost all hope litem motam. (Rule 130, Sec. 40; People v. Soriano, G.R. No. 154278,
of recovery. 27 December 2002).
It is sufficient that circumstances are such as to inevitably lead to the • Hearsay Rule
conclusion that at the time the declaration was made, the declarant c) Exceptions to the hearsay rule
would not expect to survive the injury from which he actually died. v. Common reputation
The degree and seriousness of the wounds and the fact that death – Common reputation refers to general reputation;
supervened thereafter constitute substantial evidence of the victim's definite opinion of the community in which the
consciousness of his impending death (People v. Tanaman, et al., fact to be proved is known or exists.
G.R. No. 71768, 28 July 1987). • Requisites.
• Hearsay Rule (1) The subject of inquiry must be facts of public or general interest
c) Exceptions to the hearsay rule more than 30 years old, respecting marriage or moral character;
i. Dying declaration (2) The evidence must refer to facts ante litem motam;
 Mere gesture of dying victim inconclusive. (3) The facts may be established by:
The gesture of a dying woman in pointing to a direction, when asked Testimonial evidence of competent witness;
for the identity of her assailant, is too vague to be given such Monuments and inscription in public places;
probative value in determining the culpability of the accused (People Documents containing statements of reputation.
v. Ola, G.R. No. L-47147, 3 July 1987). • Hearsay Rule
• Hearsay Rule c) Exceptions to the hearsay rule
c) Exceptions to the hearsay rule vi. Part of the Res Gestae
ii. Declaration against interest • Res gestae is a Latin phrase which literally means "things
• Requisites: done.“ (Capila v. People, G.R. No. 146161, 17 July 2006).
(1) The declaration is made by: • Two Types of Res Gestae:
(i) a person deceased; or 1. Spontaneous statements; and
(ii) a person who is unable to testify [i.e. in foreign country 2. Contemporaneous statements or verbal acts
or with physical/mental impairments]; (Rule 130, Sec. 42)
(2) The declaration is against the interest of the declarant; • Hearsay Rule
(3) The fact asserted in the declaration was at the time it was made c) Exceptions to the hearsay rule
so far contrary to declarant's own interest, that a reasonable man in vi. Part of the Res Gestae
his position would not have made the declaration, unless he believed • Requisites of the First Type (Spontaneous Statements):
it to be true (Rule 130, Sec. 38; Fuentes v. Court of Appeals, G.R. No. The rule in res gestae applies when the declarant himself did not
111692, 9 February 1996). testify and the testimony of the witness who heard the declarant
• Hearsay Rule complies with the following requisites:
c) Exceptions to the hearsay rule (1) the principal act, the res gestae, is a startling occurrence;
ii. Declaration against interest (2) the statements were made before the declarant had time to
• Theory: contrive or devise; and
The theory under which declarations against interest are received in
evidence notwithstanding they are hearsay is that the necessity of
23
(3) the statements concerned the occurrence in question and its
immediately attending circumstances (prior or subsequent) (Rule
130, Sec. 42; Maturillas v. People, G.R. No. 163217, 18 April 2006).
• Hearsay Rule
c) Exceptions to the hearsay rule
vi. Part of the Res Gestae
• Requisites of the Second Type (Verbal Acts):
(1) The principal act to be characterized must be equivocal;
(2) The equivocal act must be relevant to the issue;
(3) The verbal act must be contemporaneous with the equivocal act;
(4) The verbal act must give legal significance to the equivocal act
(Talidano v. Falcom Maritime & Allied Service, Inc. G.R. No. 172031,
14 July 2008).
• Hearsay Rule
c) Exceptions to the hearsay rule
vii. Entries in the course of business
• Requisites:
(1) The person who made the entry must be dead or unable to
testify;
(2) The entries were made at or near the time of the transaction to
which they refer;
(3) The entrant was in a position to know the facts stated in the
entries;
(4) The entries were made in his professional capacity or in the
performance of a duty, whether legal, contractual, moral or religious;
(5) The entries were made in the ordinary or regular course of
business or duty (Rule 130, Sec. 43; Jose, Jr. v Michaelmar Phils., Inc.,
et al., G.R. No. 169606, 27 November 2009).
• Hearsay Rule
c) Exceptions to the hearsay rule
• vii. Entries in the course of business
• Theory for admissibility
Entries in the course of business are accorded unusual reliability
because their regularity and continuity are calculated to discipline
record keepers in the habit of precision. If the entries are financial,
the records are routinely balanced and audited. In actual experience,
the whole of the business world function in reliance of such kind of
records (LBP v. Monet’s Export and Manufacturing Corp., G.R. No.
184971, 19 April 2010).
• Hearsay Rule
c) Exceptions to the hearsay rule
viii. Entries in official records
• Requisites:
(1) Entries were made by: (i) a public officer in the performance of
his duties; or (ii) by a person in the performance of a duty specially
enjoined by law;
(2) The entrant had personal knowledge of the facts stated by him or
such facts were acquired by him from reports made by persons
under a legal duty to submit the same; and
(3) Such entries were duly entered in a regular manner in the official
records (Alvarez v. PICOP Resources, G.R. No. 162243, 3 December
2009).
• Hearsay Rule
c) Exceptions to the hearsay rule
viii. Entries in official records
• Entrant need not be presented.
The presentation of the records themselves would, therefore, have
been admissible as an exception to the hearsay rule even if the
public officer/s who prepared them was/were not presented in
court, provided the above requisites could be adequately proven
(Alvarez v. PICOP Resources, supra; Africa v. Caltex, 123 Phil. 272).
• Hearsay Rule
c) Exceptions to the hearsay rule
viii. Entries in official records
• Police reports of vehicular accidents.
The presentation of the police report itself is admissible as an
exception to the hearsay rule even if the police investigator who
prepared it was not presented in court, as long as the requisites
under Rule 130, Sec. 44 could be adequately proved (Malayan
Insurance Co., Inc. v. Alberto, G.R. No. 194320, 1 February 2012).
• Hearsay Rule
c) Exceptions to the hearsay rule
ix. Commercial lists and the like
• Requisites:
A document is a commercial list if:
(1) it is a statement of matters of interest to persons engaged in an
occupation;
(2) such statement is contained in a list, register, periodical or other
published compilation;
(3) said compilation is published for the use of persons engaged in
that occupation, and
(4) it is generally used and relied upon by persons in the same
occupation (Rule 130, Sec. 45; PNOC Shipping v. Court of Appeals,
G.R. No. 107518, 8 October 1998).
• Hearsay Rule
c) Exceptions to the hearsay rule
x. Learned treaties
• Requisites:
(1) The court takes judicial notice of published treatise, periodical or
pamphlet on a subject of history, law, science or art; or
(2) 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 an expert in the subject (Rule 130, Sec. 46).
• Hearsay Rule
c) Exceptions to the hearsay rule
xi. Testimony or deposition at a former trial
• Requisites:
(1) Witness is dead or unable to testify;
(2) His testimony or deposition was given in a former case or
proceeding, judicial or administrative, between the same parties or
those representing the same interests;
(3) The former case involved the same subject as that in the present
case, although on different causes of action;
(4) The issues testified to by the witness in the former trial is the
same issue involved in the present case; and
(5) The adverse party had an opportunity to cross-examine the
witness in the former case.
• Hearsay Rule
c) Exceptions to the hearsay rule
xi. Testimony or deposition at a former trial
• Meaning of “unable to testify”
The phrase "unable to testify" refers to a physical inability to appear
at the witness stand and to give a testimony. Hence
notwithstanding the deletion of the phrase "out of the Philippines,"
which previously appeared in Section 47, Rule 130 of the Rules of
Court, absence from jurisdiction may still constitute inability to
testify under the same rule (Republic v. Sandiganbayan, G.R. No.
152375, 16 December 2011).
• Hearsay Rule
c) Exceptions to the hearsay rule
xi. Testimony or deposition at a former trial
• Meaning of “same parties.”
To render the testimony of a witness admissible at a later trial or
action, the parties to the first proceeding must be the same as the
24
parties to the later proceeding. Physical identity, however, is not
required; substantial identity or identity of interests suffices, as
where the subsequent proceeding is between persons who
represent the parties to the prior proceeding by privity in law, in
blood, or in estate. The term "privity" denotes mutual or successive
relationships to the same rights of property (Republic v.
Sandiganbayan, supra).
• General rule
The opinion of a witness is NOT admissible (Rule 130, Sec. 48).
• Exceptions
(1) Opinion of expert witness
(2) Opinion of ordinary witness
a) 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. (Rule 130, Sec.
48).
• Opinion Rule
a) Opinion of expert witness
• Courts are not bound by expert’s testimony.
Section 49, Rule 130 of the Revised Rules of Court states that 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. The use of the word "may" signifies that the
use of opinion of an expert witness is permissive and not
mandatory on the part of the courts. Allowing the testimony does
not mean, too, that courts are bound by the testimony of the expert
witness. The testimony of an expert witness must be construed to
have been presented not to sway the court in favor of any of the
parties, but to assist the court in the determination of the issue
before it, and is for the court to adopt or not to adopt depending on
its appreciation of the attendant facts and the applicable law (Tabao
v. People, G.R. No. 187246, 20 July 2011).
• Opinion Rule
b) Opinion of ordinary witness
• 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; (c)
the mental sanity of a person with whom he is sufficiently
acquainted; and (d) his impressions of the emotion,
behavior, condition or appearance of a person (Rule 130,
Sec. 48).
• Character Evidence
• General rule:
Character evidence is not admissible (Rule 130, Sec. 51).
• Opinion Rule
Exceptions:
a) Criminal cases
• Accused – may prove his good moral character pertinent
to the moral trait in the offense charge.
• Prosecution – may present character evidence pertaining
to accused’s bad moral character pertinent to the moral
trait involved in the offense charged only in rebuttal.
• Offended party - 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
• Opinion Rule
Exceptions:
b) 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.
• Opinion Rule
• Evidence of the good character of a witness is not
admissible until such character has been impeached (Rule
130, Sec. 51).
• Opinion Rule
• Rape Shield Rule
In prosecutions for rape, evidence of complainant's past sexual
conduct, opinion thereof or of his/her reputation shall not be
admitted unless, and only to the extent that the court finds, that
such evidence is material and relevant to the case (R.A. No. 8505,
Sec. 6).
XII. RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-
07-SC)
a) Applicability of the rule
• Unless otherwise provided, the Rule shall govern the
examination of child witnesses who are victims of crime,
accused of a crime, and witnesses to crime. It shall apply in
all criminal proceedings and non-criminal proceedings
involving child witnesses (Sec. 1).
b) Meaning of “child witness”
• A child witness is any person who at the time of giving
testimony is below the age of 18 years. In child abuse
cases, a child includes one over 18 years but is found by
the court as unable to fully take care of himself or protect
himself from abuse, neglect, cruelty, exploitation, or
discrimination because of a physical or mental disability or
condition (Sec. 4[a]).
c) Competency of a child witness
• Every child is presumed qualified to be a witness. However,
the court shall conduct a competency examination of a
child, motu propio or on motion of a party, when it finds
that substantial doubt exists regarding the stability of the
child to perceive, remember, communicate, distinguish
truth from falsehood, or appreciate the duty to tell the
truth in court (Sec. 6).
• Proof of necessity. A party seeking a competency
examination must present proof of necessity of
competency examination. The age of the child by itself is
not a sufficient basis for a competency examination (Sec.
6[a]).
• Burden of proof. To rebut the presumption of competence
enjoyed by a child, the burden of proof lies on the party
challenging his competence (Sec. 6[b]).
c) Competency of a child witness
• Persons allowed at competency examination. Only the
following are allowed to attend a competency
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; and
(e) The defendant, unless the court determines that competence can
be fully evaluated in his absence (Sec. 6[c]).
• Conduct of examination. Examination of a child as to his
competence shall be conducted only by the judge. Counsel
for the parties, however, can submit questions to the judge
that he may, in his discretion, ask the child (Sec. 6[d]).
25
 • Rule on Examination of a Child Witness (A.M. No. 004-07-
SC)
c) Competency of a child witness
• Developmentally appropriate questions. The questions
asked at the competency examination shall be appropriate
to the age and developmental level of the child; shall not
be related to the issues at trial; and shall focus on the
ability of the child to remember, communicate, distinguish
between truth and falsehood, and appreciate the duty to
testify truthfully (Sec. 6[e]).
• Continuing duty to assess competence. The court has the
duty of continuously assessing the competence of the child
throughout his testimony (Sec. 6[f]).
d) Examination of a child witness
• The examination of a child witness presented in a hearing
or any proceeding shall be done in open court. Unless the
witness is incapacitated to speak, or the question calls for
a different mode of answer, the answers of the witness
shall be given orally. The party who presents a child
witness or the guardian ad litem of such child witness may,
however, move the court to allow him to testify in the
manner provided in this Rule (Sec. 8).
e) Live-link TV testimony of a child witness
(a) The prosecutor, counsel or the guardian ad litem may apply for
an order that the testimony of the child be taken in a room outside
the courtroom and be televised to the courtroom by live-link
television.
Before the guardian ad litem applies for an order under this section,
he shall consult the prosecutor or counsel and shall defer to the
judgment of the prosecutor or counsel regarding the necessity of
applying for an order. In case the guardian ad litem is convinced that
the decision of the prosecutor or counsel not to apply will cause the
child serious emotional trauma, he himself may apply for the order.
The person seeking such an order shall apply at least five (5) days
before the trial date, unless the court finds on the record that the
need for such an order was not reasonably foreseeable.
(b) The court may motu propio hear and determine, with notice to
the parties, the need for taking the testimony of the child through
live-link television.
(c) The judge may question the child in chambers or in some
comfortable place other than the courtroom, in the presence of the
support person, guardian ad litem, prosecutor, and counsel for the
parties. The questions of the judge shall not be related to the issues
at trial but to the feelings of the child about testifying in the
courtroom.
(d) The judge may exclude any person, including the accused, whose
presence or conduct causes fear to the child.
(e) The court shall issue an order granting or denying the use of live-
link television and stating the reasons therefor. It shall consider the
following factors:
(1) The age and level of development of the child;
(2) His physical and mental health, including any mental or
physical disability;
(3) Any physical, emotional, or psychological injury experienced
by him;
(4) The nature of the alleged abuse;
(5) Any threats against the child;
(6) His relationship with the accused or adverse party;
(e) The court shall issue an order granting or denying the use of live-
link television and stating the reasons therefor. It shall consider the
following factors:
(7) His reaction to any prior encounters with the accused in court
or elsewhere;
(8) His reaction prior to trial when the topic of testifying was
discussed with him by parents or professionals;
(9) Specific symptoms of stress exhibited by the child in the days
prior to testifying;
(10) Testimony of expert or lay witnesses;
(11) The custodial situation of the child and the attitude of the
members of his family regarding the events about which he will
testify; and
(12) Other relevant factors, such as court atmosphere and
formalities of court procedure.
(f) The court may order that the testimony of the child be taken by
live-link television if there is a substantial likelihood that the child
would suffer trauma from testifying in the presence of the accused,
his counsel or the prosecutor as the case may be. The trauma must
be of a kind which would impair the completeness or truthfulness of
the testimony of the child.
(g) If the court orders the taking of testimony by live-link television:
(1) The child shall testify in a room separate from the courtroom
in the presence of the guardian ad litem; one or both of his
support persons, the facilitator and interpreter, if any; a court
officer appointed by the court; persons necessary to operate the
closed-circuit television equipment; and other persons whose
presence are determined by the court to be necessary to the
welfare and well-being of the child;
(2) The judge, prosecutor, accused, and counsel for the parties
shall be in the courtroom. The testimony of the child shall be
transmitted by live-link television into the courtroom for viewing
and hearing by the judge, prosecutor, counsel for the parties,
accused, victim, and the public unless excluded.
(g) If the court orders the taking of testimony by live-link television:
(3) If it is necessary for the child to identify the accused at trial,
the court may allow the child to enter the courtroom for the
limited purpose of identifying the accused, or the court may
allow the child to identify the accused by observing the image of
the latter on a television monitor.
(4) The court may set other conditions and limitations on the
taking of the testimony that it finds just and appropriate, taking
into consideration the best interests of the child.
(h) The testimony of the child shall be preserved on videotape,
digital disc, or other similar devices which shall be made part of the
court record and shall be subject to a protective order as provided in
Section 31(b).
f) Videotaped deposition of a child witness
(a) The prosecutor, counsel, or guardian ad litem may apply for an
order that a deposition be taken of the testimony of the child and
that it be recorded and preserved on videotape. Before the guardian
ad litem applies for an order under this section, he shall consult with
the prosecutor or counsel subject to the second and third
paragraphs of section 25(a).
(b) If the court finds that the child will not be able to testify in open
court at trial, it shall issue an order that the deposition of the child
be taken and preserved by videotape.
(c) The judge shall preside at the videotaped deposition of a child.
Objections to deposition testimony or evidence, or parts thereof,
and the grounds for the objection shall be stated and shall ruled
upon at the time of the taking of the deposition. The other persons
who may be permitted to be present at the proceeding are:
(1) The prosecutor;
(2) The defense counsel;
(3) The guardian ad litem;
(4) The accused, subject to subsection (e);
26
 (5) Other persons whose presence is determined by the court to
be necessary to the welfare and well-being of the child;
(6) One or both of his support persons, the facilitator and
interpreter, if any;
(7) The court stenographer; and
(8) Persons necessary to operate the videotape equipment.
(d) The rights of the accused during trial, especially the right to
counsel and to confront and cross-examine the child, shall not be
violated during the deposition.
(e) If the order of the court is based on evidence that the child is
unable to testify in the physical presence of the accused, the court
may direct the latter to be excluded from the room in which the
deposition is conducted. In case of exclusion of the accused, the
court shall order that the testimony of the child be taken by live-link
television in accordance with section 25 of this Rule. If the accused is
excluded from the deposition, it is not necessary that the child be
able to view an image of the accused.
(f) The videotaped deposition shall be preserved and
stenographically recorded. The videotape and the stenographic
notes shall be transmitted to the clerk of the court where the case is
pending for safekeeping and shall be made a part of the record.
(g) The court may set other conditions on the taking of the
deposition that it finds just and appropriate, taking into
consideration the best interests of the child, the constitutional rights
of the accused, and other relevant factors.
(h) The videotaped deposition and stenographic notes shall be
subject to a protective order as provided in section 31(b).
(i) If, at the time of trial, the court finds that the child is unable to
testify for a reason stated in section 25(f) of this Rule, or is
unavailable for any reason described in section 4(c), Rule 23 of the
1997 Rules of Civil Procedure, the court may admit into evidence the
videotaped deposition of the child in lieu of his testimony at the
trial. The court shall issue an order stating the reasons therefor.
(j) After the original videotaping but before or during trial, any party
may file any motion for additional videotaping on the ground of
newly discovered evidence. The court may order an additional
videotaped deposition to receive the newly discovered evidence
(Sec. 27).
g) Hearsay exception in child abuse cases
A statement made by a child describing any act or attempted act of
child abuse, not otherwise admissible under the hearsay rule, may
be admitted in evidence in any criminal or non-criminal proceeding
subject to the following rules
(a) Before such hearsay statement may be admitted, its proponent
shall make known to the adverse party the intention to offer such
statement and its particulars to provide him a fair opportunity to
object. If the child is available, the court shall, upon motion of the
adverse party, require the child to be present at the presentation of
the hearsay statement for cross-examination by the adverse party.
When the child is unavailable, the fact of such circumstance must be
proved by the proponent.
(b) In ruling on the admissibility of such hearsay statement, the court
shall consider the time, content and circumstances thereof which
provide sufficient indicia of reliability. It shall consider the following
factors:
(1) Whether there is a motive to lie;
(2) The general character of the declarant child;
(3) Whether more than one person heard the statement;
(4) Whether the statement was spontaneous;
(5) The timing of the statement and the relationship between the
declarant child and witness;
(6) Cross-examination could not show the lack of knowledge of
the declarant child;
(7) The possibility of faulty recollection of the declarant child is
remote; and
(8) The circumstances surrounding the statement are such that
there is no reason to suppose the declarant child misrepresented
the involvement of the accused.
(c) The child witness shall be considered unavailable under the
following situations:
(1) Is deceased, suffers from physical infirmity, lack of memory,
mental illness, or will be exposed to sever psychological injury; or
(2) Is absent from the hearing and the proponent of his statement
has been unable to procure his attendance by process or other
reasonable means.
(d) When the child witness is unavailable, his hearsay testimony
shall be admitted only if corroborated by other admissible evidence
(Sec. 28).
h) Sexual abuse shield rule
Inadmissible evidence: The following evidence is not admissible in
any criminal proceeding involving alleged child sexual abuse:
(1) Evidence offered to prove that the alleged victim engaged in
other sexual behavior; and
(2) Evidence offered to prove the sexual pre-disposition of the
alleged victim.
Exception: Evidence of specific instances of sexual behavior by the
alleged victim to prove that a person other than the accused was the
source of semen, injury, or other physical evidence shall be
admissible. A party intending to offer such evidence must:
(1) File a written motion at least fifteen (5) days before trial,
specifically describing the evidence and stating the purpose for
which it is offered, unless the court, for good cause, requires a
different time for filing or permits filing during trial; and
(2) Serve the motion on all parties and the guardian ad litem at
least three (3) days before the hearing of the motion.
• Before admitting such evidence, the court must conduct a
hearing in chambers and afford the child, his guardian ad
litem, the parties, and their counsel a right to attend and
be heard. The motion and the record of the hearing must
be sealed and remain under seal and protected by a
protected order set forth in section 31(b). The child shall
not be required to testify at the hearing in chambers
except with his consent (Sec. 30).
i) Protective orders
(a) Protective order. Any videotape or audiotape of a child that is
part of the court record shall be under a protective order that
provides as follows:
(1) Tapes may be viewed only by parties, their counsel, their expert
witness, and the guardian ad litem.
(2) No tape, or any portion thereof, shall be divulged by any person
mentioned in subsection (a) to any other person, except as
necessary for the trial.
(3) No person shall be granted access to the tape, its transcription or
any part thereof unless he signs a written affirmation that he has
received and read a copy of the protective order; that he submits to
the jurisdiction of the court with respect to the protective order; and
that in case of violation thereof, he will be subject to the contempt
power of the court.
(4) Each of the tape cassettes and transcripts thereof made available
to the parties, their counsel, and respective agents shall bear a
cautionary notice that the object or document and the contents
thereof are subject to a protective order issued by the court.
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(5) No tape shall be given, loaned, sold, or shown to any person  Exception: If objection is based on two or more
except as ordered by the court. grounds, a ruling sustaining the objection on one
(6) Within thirty (30) days from receipt, all copies of the tape and or some of them must specify the ground or
any transcripts thereof shall be returned to the clerk of court for grounds relied upon.
safekeeping unless the period is extended by the court on motion of • Ruling
a party. • Erroneous rulings on admissibility of evidence are:
(7) This protective order shall remain in full force and effect until (1) Considered errors in judgment, not of jurisdiction;
further order of the court (Sec. 31 [b]). (2) Are interlocutory in nature;
(b) Additional protective orders. The court may, motu propio or on (3) May not be the subject of a separate appeal or review on
motion of any party, the child, his parents, legal guardian, or the certiorari;
guardian ad litem, issue additional orders to protect the privacy of (4) Must be assigned as errors and reviewed in the appeal properly
the child (Sec. 31(c). taken from the decision rendered by the trial court on the merits of
XIII. OFFER AND OBJECTION the case. (Triplex Enterprises, Inc. v. PNB-Republic Bank, et al. G.R.
*Offer of Evidence No. 151007, 17 July 2006).
• The court shall consider no evidence which has not been • Striking Out of an Answer
formally offered. The purpose for which the evidence is • Should a witness answer the question before the adverse
offered must be specified (Rule 132, Sec. 34). party had the opportunity to voice fully its objection to the
*When To Make An Offer same, and such objection is found to be meritorious, the
Testimonial evidence - must be offered at the time the witness is court shall sustain the objection and order the answer
called to testify. given to be stricken off the record (Rule 132, Sec. 39).
• On proper motion, the court may also order the striking
Documentary and object evidence - must be offered after the out of answers which are incompetent, irrelevant, or
presentation of a party's testimonial evidence. Such offer shall be otherwise improper (Rule 132, Sec. 39).
done orally unless allowed by the court to be done in writing (Rule • Tender of Excluded Evidence
132, Sec. 35). • If documents or things offered in evidence are excluded by
*Objection the court, the offeror may have the same attached to or
• Rule: grounds for objections must always be specified. made part of the record. If the evidence excluded is oral,
(Rule 132, Sec. 36, par. 4). the offeror may state for the record the name and other
personal circumstances of the witness and the substance
*When to make objections: of the proposed testimony (Rule 132, Sec. 40).
1. Testimonial evidence - must be objected to immediately after the Thank you!
offer is made. (Rule 132, Sec. 36, par. 1).
2. Objection to a question during oral examination - must be made
as soon as the grounds therefor shall become reasonably apparent
(Rule 132, Sec. 36, par. 2).
3. Documentary evidence - shall be objected to within three (3) days
after notice of the offer unless a different period is allowed by the
court (Rule 132, Sec. 36, par. 3).
• Repetition of an Objection
• Repeating an objection is NOT necessary when it becomes
reasonably apparent in the course of the examination of a
witness that the questions being propounded are of the
same class as those to which objection has been made,
whether such objection was sustained or overruled. (Rule
132, Sec. 37).
• In such case, it is sufficient for the adverse party to record
his continuing objection to such class of questions. Rule
132, Sec. 37).
• Ruling
• When made: Immediately after the objection is made.
 Exception: Unless the court desires to take a
reasonable time to inform itself on the question
presented (Note: but the ruling shall always be
made during the trial and at such time as will
give the party against whom it is made an
opportunity to meet the situation presented by
the ruling).
• Ruling
• Content of ruling: The reason for sustaining or overruling
an objection need NOT be stated. (In contrast, objections
made by lawyers must always specify the grounds
therefor.)

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